Exhibit 1.2
Everest Re Capital Trust
Preferred Securities
guaranteed to the extent set forth in the Guarantees by
EVEREST REINSURANCE HOLDINGS, INC.
-----------------------------
Underwriting Agreement
----------------------
____________ ___, 1999
To the Representatives of the several Underwriters
named in Schedule I to the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
From time to time Everest Re Capital Trust, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), and Everest Reinsurance
Holdings, Inc., a Delaware corporation (the "Company"), as depositor of the
trust and as guarantor, propose to enter into one or more Pricing Agreements
(each a "Pricing Agreement") in the form of Annex I hereto, with such additions
and deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms named
in Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its preferred securities (the "Securities")
specified in Schedule II to such Pricing Agreement, representing undivided
beneficial interests in the assets of the Trust (with respect to such Pricing
Agreement, the "Firm Designated Securities"). If specified in such Pricing
Agreement, the Trust may grant the Underwriters the right to purchase at their
election an additional number of Securities, specified as provided in such
Pricing Agreement as provided in Section 3 hereof (the "Optional Designated
Securities"). The Firm Designated Securities and any Optional Designated
Securities are collectively called the "Designated Securities". The proceeds of
the sale of the Designated Securities to the public and of common securities of
the Trust (the "Common Securities") to the Company concurrently with the sale of
the Designated Securities are to be invested in junior subordinated deferrable
interest debentures of the Company (the "Subordinated Debentures") identified in
the Pricing Agreement with respect to such Designated Securities (with respect
to such Pricing Agreement, the "Designated Subordinated Debentures"), to be
issued pursuant to a junior subordinated indenture to be dated as of
_____________ ___, 1999 (the "Indenture") between the Company and The Chase
Manhattan Bank as trustee (the "Indenture Trustee"). The Designated Securities
may be exchangeable into Designated Subordinated Debentures, as specified in
Schedule II to such Pricing Agreement. The Designated Securities will be
guaranteed by the Company to the extent set forth in the Pricing Agreement with
respect to such Designated Securities (the "Designated Guarantee") (all such
Designated Guarantees together, the "Guarantees").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the amended and restated trust agreement identified in such Pricing
Agreement (with respect to such Pricing Agreement, the "Trust Agreement").
1. Particular sales of Designated Securities may be made from time to time to
the Underwriters of such Designated Securities, for whom the firms designated
as representatives of the Underwriters of such Designated Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Trust to sell any of the Securities or as an obligation of any
of the Underwriters to purchase the Securities. The obligation of the Trust to
issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such Firm
Designated Securities, the maximum principal amount of Optional Designated
Securities, if any, the initial public offering price of such Firm and Optional
Designated Securities or the manner of determining such price, the terms of the
Designated Securities, including the terms on which and terms of the securities
into which the Designated Securities will be exchangeable, the purchase price to
the Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Firm Designated Securities and such Optional Designated
Securities, if any, and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and registration statement
and prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. The Trust and the Company, jointly and severally, each represents and
warrants to, and agrees with, each of the Underwriters that:
2
(a) A registration statement on Form S-3 (File No. 333-87363) and one or
more pre-effective amendments thereto (the "Initial Registration Statement")
in respect of the Securities, the Subordinated Debentures and the Guarantees,
(including the Designated Securities, the Designated Subordinated Debentures
and the Designated Guarantees) have been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration Statement
and any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding exhibits
to the Initial Registration Statement, but including all documents
incorporated by reference contained in the prospectus, to the Representatives
for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document with
respect to the Initial Registration Statement or document incorporated by
reference therein has heretofore been filed or transmitted for filing with
the Commission (other than prospectuses filed pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act, each in the form
heretofore delivered to the Representatives); and no stop order suspending
the effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or, to the best
of the Company's knowledge, threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement, any post-effective amendment thereto and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the Initial
Registration Statement became effective but excluding Form T-1, each as
amended at the time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective, are hereinafter collectively called
the "Registration Statement"; the prospectus relating to the Securities, the
Subordinated Debentures and the Guarantees, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to the applicable form under the Act, as of the
date of such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed after
the date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment to the Initial
Registration Statement shall be deemed to refer to and include any annual
report of the Trust, if any, and the Company filed pursuant to Sections 13(a)
or 15(d) of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the Registration
Statement; and any reference to the
3
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof,
including any documents incorporated by reference therein as of the date of
such filing);
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to the Trust or the Company by an Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the Prospectus
will conform, in all material respects to the requirements of the Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Trust or the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated
by reference in the Prospectus any material loss or material interference
with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental
action, order or decree material to the Company and its subsidiaries taken as
a whole, otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the
4
Registration Statement and the Prospectus, there has not been any change in
the capital stock or any material change in the long-term debt of the Company
or any of its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus;
(e) The Trust has been duly created and is validly existing as a business
trust in good standing under the laws of the State of Delaware, with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus. The Company and each of
its subsidiaries have been duly incorporated and are validly existing as
corporations in good standing (to the extent such concept is relevant) under
the laws of the jurisdiction of its incorporation, with corporate power and
authority to own their respective properties and conduct their respective
businesses as described in the Prospectus, and each of them has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing (to the extent such concept is relevant) under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except where the failure to be
so qualified would not have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole; the Company has full corporate
power and authority to enter into this Agreement and to carry out all the
terms and provisions hereof to be carried out by it; and this Agreement has
been duly executed and delivered by the Company;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued and outstanding shares of capital stock of
the Company have been duly and validly authorized and issued and are fully
paid and non-assessable; all the outstanding beneficial interests in the
Designated Trust have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the descriptions thereof contained in
the Prospectus;
(g) The Designated Securities have been duly authorized, and, when the
Firm Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities and, in the case of any Optional Designated Securities, pursuant
to Over-allotment Options (as defined in Section 3 hereof) with respect to
such Securities, such Designated Securities will have been duly and validly
issued and fully paid and non-assessable beneficial interests in the Trust
entitled to the benefits provided by the applicable Trust Agreement, which
will be substantially in the form filed as an exhibit to the Registration
Statement; the Designated Securities conform to the description thereof
contained in the Registration Statement and the Designated Securities will
conform to the description thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(h) The holders of the Designated Securities (the "Securityholders") 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;
5
(i) The Common Securities of the Trust have been duly authorized on behalf
of the Trust by the Company, as depositor of the Trust, and upon delivery by
the Trust to the Company against payment therefor as set forth in the Trust
Agreement, will be duly and validly issued and non-assessable beneficial
interests in the Trust and will conform to the description thereof contained
in the Prospectus; the issuance of the Common Securities of the Trust is not
subject to preemptive or other similar rights; the Common Securities conform
to the description thereof contained in the Registration Statement; and at
each Time of Delivery (as defined in Section 4 hereof), all of the issued and
outstanding Common Securities of the Trust will be directly owned by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity;
(j) The Designated Guarantee, the Agreement as to Expenses and Liabilities
between the Company and the Trust set forth in the Pricing Agreement (the
"Designated Expense Agreement") (all such Designated Expense Agreements
together, the "Expense Agreements") the Trust Agreement for the Trust, the
Designated Subordinated Debentures and the Indenture (the Designated
Guarantee, the Designated Expense Agreement, such Trust Agreement, the
Designated Subordinated Debentures and the Indenture being collectively
referred to as the "Company Agreements") have each been duly authorized and
when validly executed and delivered by the Company and, in the case of the
Designated Guarantee, by the Guarantee Trustee (as defined in the Guarantee),
in the case of the Designated Expense Agreement, by the Trust, in the case of
the Trust Agreement, by the Trustees (as defined in the Trust Agreement) and,
in the case of the Indenture, by the Indenture Trustee, and, in the case of
the Company Subordinated Debentures, when validly issued by the Company and
duly authenticated and delivered by the Indenture Trustee, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; the Trust Agreement, the Indenture and the Designated
Guarantee have each been duly qualified under the Trust Indenture Act; the
Designated Subordinated Debentures are entitled to the benefits of the
Indenture; and the Company Agreements, which will be in substantially the
form filed as exhibits to the Registration Statement, will conform, in all
material respects, to the descriptions thereof contained in the Prospectus as
amended or supplemented with respect to the Designated Securities to which
they relate;
(k) The issue and sale of the Designated Securities by the Trust, the
compliance by the Trust with all of the provisions of this Agreement, any
Pricing Agreement and each Over-allotment Option, if any, the Designated
Securities, the Designated Expense Agreement and the Trust Agreement, the
purchase of the Designated Subordinated Debentures by the Trust, the
execution, delivery and performance by the Trust of the Trust Agreement and
the consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other material agreement or instrument to which
the Trust is a party or by which the Trust is bound or to which any of the
property or assets of the Trust is subject, except for any such conflict,
breach, violation or default which would not have a material
6
adverse effect on consolidated financial position, stockholders' equity or
results of operations of the Trust, nor will such action result in any
violation of the provisions of (A) the Trust Agreement or (B) any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Trust or any of its properties, except, in the
case of this clause (B), for any such violation which, individually or in the
aggregate, would not have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of the
Trust; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Securities and the Common
Securities by the Trust, the purchase of the Subordinated Debentures by the
Trust or the consummation by the Trust of the transactions contemplated by
this Agreement, the Pricing Agreement or any Over-allotment Option, the
Designated Expense Agreement, the Indenture or the Trust Agreement, except
such as have been, or will have been prior to each Time of Delivery, obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(l) The statements set forth in the Prospectus under the captions
"Description of the Junior Subordinated Notes", "Description of the Preferred
Securities", "Description of the Preferred Securities Guarantee",
"Description of the Expense Agreement", and "Relationship Among the Preferred
Securities, Preferred Securities Guarantee, Expense Agreement and Junior
Subordinated Notes Held By the Trust", insofar as they purport to constitute
a summary of the terms of the Securities, and under the caption
"Underwriting", insofar as it purports to describe the provisions of the laws
and documents referred to therein, are accurate and complete in all material
respects;
(m) The issuance by the Company of the Guarantees and the Subordinated
Debentures, the compliance by the Company with all of the provisions of this
Agreement, any Pricing Agreement and each Over-allotment Option, if any, the
Guarantees, the Expense Agreements, the Subordinated Debentures, the Trust
Agreements and the Indenture, the execution, delivery and performance by the
Company of the Company Agreements, and the consummation of the transactions
contemplated herein and therein will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement, lease or other
material agreement or instrument to which it is a party or by which it or any
of its properties may be bound, except for such as individually or in the
aggregate would not have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole, nor will such action result in
any violation of the provisions of the Restated Certificate of Incorporation
or By-Laws of the Company or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company
or any of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue of the Guarantees or the
Subordinated Debentures or the consummation by the Company of the other
transactions contemplated by this Agreement, any Pricing
7
Agreement or the Company Agreements, except such as have been or will have
been, prior to each Time of Delivery, obtained under the Act or the Trust
Indenture Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the issuance by the Company of the Guarantees and the
Subordinated Debentures;
(n) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Trust, the Company or any of
its subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the Trust,
the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Trust, the
Company and its subsidiaries; and, to the best of the Trust's and the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(o) Neither the Company nor the Trust is and, after giving effect to the
offering and sale of the Securities, will not be, an "investment company", as
such term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(p) None of the Trust, the Company nor any of its subsidiaries, as
applicable, is in violation of the Trust Agreement for the Trust, the
Certificate of Trust for the Trust, the Restated Certificate of Incorporation
or By-Laws of the Company, or the charter or by-laws of any of its
subsidiaries, or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other material agreement or
instrument to which it is a party or by which it or any of its properties may
be bound, other than any such violation or default that would not have a
material adverse effect on the consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries taken as
a whole;
(q) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(r) The consolidated financial statements and financial statement
schedules of the Company and its consolidated subsidiaries included in the
Registration Statement and the Prospectus fairly present in all material
respects the financial position of the Company and its consolidated
subsidiaries and the results of operations and changes in financial condition
and cash flows as of the dates and periods therein specified. Such financial
statements and financial statement schedules have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved (except as otherwise noted therein);
(s) Each of the Company and its subsidiaries, when necessary, is duly
licensed to conduct an insurance or a reinsurance business, as the case may
be, under the insurance
8
statutes of each jurisdiction in which the conduct of its business requires
such licensing, except for such jurisdictions in which the failure of the
Company or any of its subsidiaries to be so licensed would not, individually
or in the aggregate, have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole. The Company and each of its
subsidiaries have made all required filings under applicable insurance
holding company statutes in each jurisdiction where such filings are
required, except for such jurisdictions in which the failure to make such
filings would not, individually or in the aggregate, have a material adverse
effect on the consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole.
Each of the Company and its subsidiaries has all other necessary
authorizations, approvals, orders, consents, certificates, permits,
registrations and qualifications of and from all insurance regulatory
authorities necessary to conduct their respective businesses as described in
the Prospectus, except where the failure to have such authorizations,
approvals, orders, consents, certificates, permits, registrations or
qualifications would not, individually or in the aggregate, have a material
adverse effect on the consolidated financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a
whole, and neither the Company nor any of its subsidiaries has received any
notification from any insurance regulatory authority to the effect that any
additional authorization, approval, order, consent, certificate, permit,
registration and qualification needs to be obtained by either the Company or
any of its subsidiaries, in any case, where it could be reasonably expected
that (x) the Company or any of its subsidiaries would be required either to
obtain such additional authorization, approval, order, consent, certificate,
permit, registration or qualification or to cease or otherwise limit the
writing of certain business and (y) the failure to obtain such additional
authorization, approval, order, consent, certificate, permit, registration or
qualification or the limiting of the writing of such business would have a
material adverse effect on the consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries taken as
a whole; and no insurance regulatory authority having jurisdiction over the
Company or any of its subsidiaries has issued any order or decree impairing,
restricting or prohibiting the payment of dividends by or to the Company or
any of its subsidiaries except as set forth in the letter dated October 21,
1999 from the State of Delaware Department of Insurance to Everest
Reinsurance Company;
(t) The consolidated financial statements and financial statement
schedules of the Company and its consolidated subsidiaries included in the
Registration Statement and the Prospectus fairly present in all material
respects the financial position of the Company and its consolidated
subsidiaries and the results of operations and changes in financial condition
and cash flows as of the dates and period therein specified. Such financial
statements and financial statement schedules have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved (except as otherwise noted therein);
(u) The statements set forth in the Prospectus as amended or supplemented
under the captions "Description of the Junior Subordinated Notes",
"Description of the Preferred Securities", "Description of the Preferred
Securities Guarantee", "Description of the
9
Expense Agreement" and "Relationship Among the Preferred Securities,
Preferred Securities Guarantee, Expense Agreement and Junior Subordinated
Notes Held By the Trust", insofar as they constitute a summary of the terms
of the Securities, Subordinated Debentures, the Preferred Securities
Guarantee, the Expense Agreements and the Company Agreements (including the
Designated Securities, the Designated Subordinated Debentures, the Designated
Guarantee and the Designated Expense Agreement), and (x) in the Prospectus
under the caption "Plan of Distribution" and (y) in the Prospectus as amended
or supplemented under the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to therein, in
each case are accurate, complete and fair;
(v) The Pricing Agreement with respect to the Designated Securities
(incorporating the provisions hereof) and this Agreement each have been duly
authorized, executed and delivered by the Company and the Trust;
(w) Each certificate signed by any officer of the Company or the Trust and
delivered to the Representatives or counsel for the Underwriters pursuant to
this Agreement shall be deemed to be a representation and warranty by the
Company or the Trust, as the case may be, and not by such officer in an
individual capacity, to each Underwriter as to the matters covered thereby;
and
(x) The Company and the Trust have reviewed their operations and, in the
case of the Company, that of its subsidiaries, and have made inquiries of any
third parties with which the Company, the Trust or any of their subsidiaries
have a material relationship to evaluate the extent to which the business or
operations of the Company, the Trust or any of their subsidiaries will be
affected by the Year 2000 Problem. As a result of such review and inquiries
to which responses have been received, and except as described in the
Prospectus, the Company and the Trust do not believe that the Year 2000
Problem will have a material adverse effect on the general affairs,
management, the current or future consolidated financial position, business
prospects, stockholders' equity or results of operations of the Company, the
Trust and their subsidiaries or result in any material loss or material
interference with the Company's or the Trust's business or operations. The
"Year 2000 Problem" as used herein means any significant risk that computer
hardware or software used in the receipt, transmission, processing,
manipulation, storage, retrieval, retransmission or other utilization of data
or in the operation of mechanical or electrical systems of any kind will not,
in the case of dates or time periods occurring after December 31, 1999,
function at least as effectively as in the case of dates or time periods
occurring prior to January 1, 2000.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of the Firm
Designated Securities, the several Underwriters propose to offer the Firm
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Trust may specify in the Pricing Agreement applicable to any Designated
Securities that the Trust thereby grants to the Underwriters the right (an
"Over-allotment Option") to
10
purchase at their election up to the number of Optional Designated Securities
set forth in such Pricing Agreement, on the terms set forth in the paragraph
above, for the sole purpose of covering over-allotments in the sale of the Firm
Designated Securities. Any such election to purchase Optional Designated
Securities may be exercised by written notice from the Representatives to the
Trust and the Company, given within a period specified in the Pricing Agreement,
setting forth the aggregate number of Optional Designated Securities to be
purchased and the date on which such Optional Designated Securities are to be
delivered, as determined by the Representatives but in no event earlier than the
First Time of Delivery (as defined in Section 4 hereof) or, unless the
Representatives, the Trust and the Company otherwise agree in writing, earlier
than or later than the respective number of business days after the date of such
notice set forth in such Pricing Agreement.
The number of Optional Designated Securities to be added to the number of
Designated Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which the
Trust and the Company have been advised by the Representatives have been
attributed to such Underwriter; provided, however, that, if the Trust and the
Company have not been so advised, the number of Optional Designated Securities
to be so added shall be, in each case, that proportion of Optional Designated
Securities which the number of Firm Designated Securities to be purchased by
such Underwriter under such Pricing Agreement bears to the aggregate number of
Firm Designated Securities (rounded as the Representatives may determine to the
nearest 100 securities). The total number of Designated Securities to be
purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Designated Securities set forth in Schedule I to
such Pricing Agreement plus the aggregate number of Optional Designated
Securities which the Underwriters elect to purchase.
As compensation to the Underwriters of the Designated Securities for their
commitments hereunder and under the Pricing Agreement, and in view of the fact
that the proceeds of the sale of the Designated Securities will be used by the
Trust to purchase the Designated Subordinated Debentures of the Company, the
Company agrees to pay at each Time of Delivery to Xxxxxxx, Xxxxx & Co., for the
accounts of the several Underwriters, the amount set forth in the Pricing
Agreement per capital security for the Designated Securities to be delivered at
each Time of Delivery.
4. Certificates for the Firm Designated Securities and the Optional
Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least 48 hours' prior notice to the
Trust and the Company, shall be delivered by or on behalf of the Trust to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same day) Funds to an account designated by the Trust, (i) with respect
to the Firm Designated Securities, all in the manner and at the place and time
and date specified in such Pricing Agreement or at such other place and time and
date as the Representatives, the Trust and the Company may agree upon in
writing, such time and date being herein called the "First Time of Delivery" and
(ii) with respect
11
to the Optional Designated Securities, if any, in the manner and at the time and
date specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Designated Securities, or at such other time and date as the Representatives,
the Trust and the Company may agree upon in writing, such time and date, if not
the First Time of Delivery, being herein called the "Second Time of Delivery".
Each such time and date for delivery is herein called a "Time of Delivery".
5. The Trust and the Company, jointly and severally, agree with each of the
Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business
day following the execution and delivery of the Pricing Agreement relating to
the applicable Designated Securities or, if applicable, such earlier time as
may be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities which shall
be disapproved by the Representatives for such Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery for the Designated
Securities and furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Trust or the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale
of the Designated Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any prospectus
relating to the Securities, of the suspension of the qualification of the
Designated Securities or the Designated Subordinated Debentures for offering
or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any prospectus
relating to the Securities or suspending any such qualification, to promptly
use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Designated Securities or the
Designated Subordinated Debentures for offering and sale under the securities
laws of such jurisdictions in the United States as the Representatives may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Designated Securities, provided that in
connection therewith neither the Trust nor the Company shall be required to
qualify
12
as a foreign corporation or as a dealer in securities or to file a general
consent to service of process in any jurisdiction or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise subject;
(c) Prior to 12:00 p.m., New York City time, on the New York Business Day
next succeeding the date of the Pricing Agreement for such Designated
Securities and from time to time thereafter, to furnish the Underwriters with
copies of the Prospectus as amended or supplemented in New York City in such
quantities as the Representatives may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Designated Securities or the Designated Subordinated
Debentures and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or,
if for any other reason it shall be necessary during such same period to
amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with
the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance;
(d) In the case of the Company, to make generally available to its
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement, an
earnings statement (as defined in Rule 158(c) under the Act) of the Company
and its subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing Agreement for
such Designated Securities and continuing to and including the later of 180
days after the Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of, except as provided hereunder,
any Securities, any other beneficial interests in the assets of the Trust, or
any capital securities or any other securities of the Trust or the Company,
as the case may be, that are substantially similar to such Designated
Securities (including any guarantee of such securities) or any securities
that are convertible into or exchangeable for, or that represent the right to
receive, securities, capital securities or any such substantially similar
securities of the Trust or the Company without the prior written consent of
the Representatives;
(f) In the case of the Company, to issue the Guarantee concurrently with
the issue and sale of the Securities as contemplated herein or in the Pricing
Agreement; and
13
(g) If the Trust and the Company elect to rely upon Rule 462(b), the Trust
and the Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C.
time, on the date of this Agreement, and the Trust and the Company shall at
the time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities, the Guarantees and the Subordinated Debentures
under the Act and all other out-of-pocket expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing (excluding any related legal fees) any
Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, Company Agreement, the Securities and the Subordinated Debentures,
any Blue Sky and Legal Investment Memoranda, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities, the Guarantees and the Subordinated
Debentures for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and Legal Investment Surveys; (iv) any fees charged by
securities rating services for rating the Securities and the Subordinated
Debentures; (v) any filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities and the issuance of the Guarantees and the Subordinated Debentures;
(vi) the cost of preparing the Securities and the Subordinated Debentures; (vii)
the fees and expenses of any Trustee, Indenture Trustee and Guarantee Trustee,
and any agent of any Trustee and the fees and disbursements of counsel for any
Trustee in connection with any Trust Agreement, Indenture, Guarantee and the
Securities; (viii) the cost of qualifying the Securities with The Depository
Trust Company; (ix) any fees and expenses in connection with listing the
Securities and the Subordinated Debentures and the cost of registering the
Securities under Section 12 of the Exchange Act; and (x) all other costs and
expenses incident to the performance of its obligations hereunder and under any
Over-allotment Options which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Securities under the
Pricing Agreement relating to such Designated Securities shall be subject, in
the discretion of the Representatives, to the condition that all representations
and warranties and other statements of the Trust and the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
14
Securities, true and correct, the condition that the Trust and the Company shall
have performed all of their respective obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; if the Trust and the Company have elected to rely upon
Rule 462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission shall
have been complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated the Time of Delivery
for such Designated Securities, with respect to the incorporation of the
Company, the validity of the Designated Subordinated Debentures and the
Designated Guarantee, the Registration Statement, the Prospectus as amended
or supplemented, as well as such other related matters as the Representatives
may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Counsel for the Company satisfactory to the Representatives shall have
furnished to the Representatives their written opinion, dated each Time of
Delivery for such Designated Securities, respectively, in form and substance
reasonably satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; the Designated Securities
have been duly authorized by the Company as depositor on behalf of the
Trust; and the Designated Securities conform to the description of the
Securities contained in the Prospectus as amended or supplemented;
(iii) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by
the Trust and the Company;
15
(iv) The issuance by the Company of the Designated Guarantee and the
Designated Subordinated Debentures, the compliance by the Company with all
of the provisions of this Agreement and the Pricing Agreement and the
Company Agreements, the execution, delivery and performance by the Company
of the Company Agreements and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company is a
party or by which the Company is bound or to which any of the property or
assets of the Company is subject, (except for such conflicts, breaches or
violations which do not or would not have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, nor will
such actions result in any violation of any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Trust or the Company or any of their
properties, except for such violations which, individually or in the
aggregate would not have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries or the Trust, taken as a whole;
(v) The Designated Securities have been duly authorized, executed,
issued and delivered by the Trust and authenticated by the Trustee and
constitute valid and legally binding obligations of the Trust and the
Company entitled to the benefits provided by the Trust Agreement; and the
Designated Securities and the Trust Agreement conform in all material
respects to the descriptions thereof in the Prospectus as amended or
supplemented;
(vi) The Trust Agreement has been duly authorized, executed and
delivered by the Trust and constitutes a valid and legally binding
instrument of the Trust, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Trust Agreement has been
duly qualified under the Trust Indenture Act;
(vii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Securities being
delivered at such Time of Delivery or the issuance of the Designated
Guarantee and the Designated Subordinated Debentures or the consummation
by the Trust or the Company of the transactions contemplated by this
Agreement or such Pricing Agreement and the Company Agreements, except
such as have been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue Sky laws
and state insurance laws in connection with the purchase and distribution
of the Designated Securities by the Underwriters or the
16
issuance of the Designated Guarantee and Designated Subordinated
Debentures by the Company;
(viii) The statements set forth in the Prospectus under the caption
"Underwriting", insofar as it purports to describe the provisions of the
laws and documents referred to therein, are accurate and complete in all
material respects;
(ix) Neither the Company nor the Trust is an "investment company", as
such term is defined in the Investment Company Act;
(x) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the Designated Securities
(other than the financial statements and related schedules and other
financial data included therein or omitted therefrom, as to which such
counsel need express no opinion) comply, as to form in all material
respects with the requirements of the Act and the Trust Indenture Act and
the rules and regulations thereunder;
(xi) The Designated Subordinated Debentures are in the form prescribed
in or pursuant to the Indenture, have been duly and validly authorized by
the Company by all necessary corporate action and, when completed,
executed and authenticated as specified in or pursuant to the Indenture
and issued and delivered, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(xii) The Company Agreements have each been duly authorized, executed
and delivered by the parties thereto and constitute valid and legally
binding instruments, enforceable in accordance with their respective
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture, the Designated Guarantee and the Trust Agreement have been duly
qualified under the Trust Indenture Act;
(xiii) The issuance by the Company of the Guarantee and the
Subordinated Debentures, the compliance by the Company with all of the
provisions of this Agreement and the Pricing Agreement and the Company
Agreements, the execution, delivery and performance by the Company of the
Company Agreements and the consummation of the transactions herein and
therein contemplated will not result in any violation of the provisions of
the Company's Certificate of Incorporation or By-Laws; and
(xiv) Such counsel shall also state that the Registration Statement and
the Prospectus as amended or supplemented, and any further amendments and
supplements thereto made by the Trust or the Company prior to such Time of
Delivery
17
(other than the financial statements and related schedules therein, as to
which such counsel need express no opinion), comply as to form in all
material respects with the requirements of the Act and the Trust Indenture
Act and the rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection (v) of this
Section 7(c), no facts have come to their attention that would cause them
to believe that, as of its effective date, the Registration Statement or
any further amendment thereto made by the Trust or the Company prior to
the Time of Delivery (other than the financial statements and related
schedules and other financial data included therein or omitted therefrom,
as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by the
Trust or the Company prior to the Time of Delivery (other than the
financial statements and related schedules and other financial data
included therein or omitted therefrom, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading or that, as of the Time of Delivery, either the Registration
Statement or the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Trust or the Company prior to
the Time of Delivery (other than the financial statements and related
schedules and other financial data included therein or omitted therefrom,
as to which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and they do not know of any
amendment to the Registration Statement required to be filed or any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or described
as required;
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and of public officials. Such opinions shall be
limited to the federal laws of the United States, the laws of New York State
and the General Corporation Law of the State of Delaware. The parties
acknowledge that, in rendering such opinions, such counsel is not rendering
any opinion with respect to the insurance laws or regulations or state
securities laws of any state.
References to the Registration Statement and the Prospectus in this
paragraph (c) shall include any amendment or supplement thereto at the date
of such opinion.
18
(d) Special Delaware counsel to the Trust and the Company satisfactory to
the Representatives shall have furnished to the Representatives, the Company
and the Trust their written opinion, dated the respective Time of Delivery,
in form and substance satisfactory to the Representatives, to the effect that
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, and
all filings required under the laws of the State of Delaware with respect
to the creation and valid existence of the Trust as a business trust have
been made;
(ii) Under the Delaware Business Trust Act and the Trust Agreement, the
Trust has the power and authority to own property and conduct its
business, all as described in the Prospectus;
(iii) The Trust Agreement constitutes a valid and binding obligation of
the Company and the Trustees, enforceable against the Company and the
Trustees, in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, receivership, liquidation, fraudulent conveyance,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights, to
general equity principles, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding in
equity or at law), and to the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution;
(iv) Under the Delaware Business Trust Act and the Trust Agreement, the
Trust has the requisite trust power and authority to (a) execute, deliver
and perform its obligations under this Agreement and the Pricing Agreement
and (b) issue and perform its obligations under the Designated Securities
and the Common Securities of the Designated Trust;
(v) Under the Delaware Business Trust Act and the Trust Agreement, the
execution and delivery by the Trust of this Agreement and the Pricing
Agreement, and the performance by the Trust of its obligations hereunder
and thereunder, have been duly authorized by the requisite trust action on
the part of the Trust;
(vi) The Designated Securities have been duly authorized by the Trust
Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and non-assessable beneficial
interests in the Trust and are entitled to the benefits provided by the
Trust Agreement; the Securityholders, as beneficial owners of the 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; provided that such
counsel may note that the Securityholders may be obligated, pursuant to
the Trust Agreement, to (a) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising from
transfers or exchanges of Securities Certificates and the issuance of
replacement Securities Certificates and (b) provide security and indemnity
in
19
connection with requests of or directions to the Property Trustee (as
defined in the Trust Agreement) to exercise its rights and remedies under
the Trust Agreement;
(vii) The Common Securities of the Trust have been duly authorized by
the Trust Agreement and are validly issued and represent beneficial
interests in the Trust;
(viii) Under the Delaware Business Trust Act and the Trust Agreement,
the issuance of the Designated Securities and the Common Securities of the
Trust is not subject to preemptive rights;
(ix) The issuance and sale by the Trust of Designated Securities and
the Common Securities of the Trust, the execution, delivery and
performance by the Trust of this Agreement and the Pricing Agreement, the
consummation by the Trust of the transactions contemplated thereby and
compliance by the Trust with its obligations thereunder will not violate
(a) any of the provisions of the Certificate of Trust of the Trust or the
Trust Agreement, or (b) any applicable Delaware law or administrative
regulation;
(x) Assuming that the Trust derives no income from or connected with
sources within the State of Delaware and has no assets, activities (other
than maintaining the Delaware Trustee and the filing of documents with the
Secretary of State of the State of Delaware) or employees in the State of
Delaware, no authorization, approval, consent or order of any Delaware
court or governmental authority or agency is required to be obtained by
the Trust solely in connection with the issuance and sale of the
Designated Securities and the Common Securities of the Trust. (In
rendering the opinion expressed in this paragraph (x), such counsel need
express no opinion concerning the securities laws of the State of
Delaware.);
(xi) Assuming that the Trust derives no income from or connected with
sources within the State of Delaware and has no assets, activities (other
than maintaining the Delaware Trustee and the filing of documents with the
Secretary of State of the State of Delaware) or employees in the State of
Delaware, the Securityholders (other than those holders of the Securities
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 Trust, and the Trust will not be
liable for any income tax imposed by the State of Delaware; and
(xii) Assuming that the Trust derives no income from or connected with
sources within the State of Delaware and has no assets, activities (other
than maintaining the Delaware Trustee and the filing of documents with the
Secretary of State of the State of Delaware) or employees in the State of
Delaware, there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees of the Designated Trust on behalf of the
Designated Trust) under the laws of the State of Delaware or any political
subdivision thereof in connection with the execution, delivery and
performance by either Trustee of the Trust of the Trust Agreement;
20
(e) Xxxxx Xxxxx, General Counsel for the Company, shall have furnished to
you a written opinion, dated such Time of Delivery, in form and substance
reasonably satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware;
(ii) The Company and each of its subsidiaries, where necessary, is duly
licensed to conduct an insurance or a reinsurance business, as the case
may be, under the insurance statutes of each jurisdiction in which the
conduct of its business requires such licensing, except for such
jurisdictions in which the failure of the Company or any of its
subsidiaries to be so licensed would not, individually or in the
aggregate, have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole. The Company and its subsidiaries have
made all required filings under applicable insurance holding company
statutes in each jurisdiction where such filings are required, except for
such jurisdictions in which the failure to make such filings would not,
individually or in the aggregate, have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole. Each of
the Company and its subsidiaries has all other necessary authorizations,
approvals, orders, consents, certificates, permits, registrations and
qualifications of and from all insurance regulatory authorities necessary
to conduct their respective businesses as described in the Prospectus,
except where the failure to have such authorizations, approvals, orders,
consents, certificates, permits, registrations or qualifications would
not, individually or in the aggregate, have a material adverse effect on
the consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, and
neither the Company nor any of its subsidiaries has received any
notification from any insurance regulatory authority to the effect that
any additional authorization, approval, order, consent, certificate,
permit, registration or qualification is needed to be obtained by either
the Company or any of its subsidiaries, in any case where it could be
reasonably expected that (x) the Company or any of its subsidiaries would
be required either to obtain such additional authorization, approval,
order, consent, certificate, permit, registration or qualification or to
cease or otherwise limit the writing of certain business and (y) the
failure to obtain such additional authorization, approval, order, consent,
certificate, permit, registration or qualification or the limiting of the
writing of such business would have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and no
insurance regulatory authority having jurisdiction over the Company or any
of its subsidiaries has issued any order or decree impairing, restricting
or prohibiting the payment of dividends by or to the Company or any of its
subsidiaries except as set forth in the letter dated October 21, 1999 from
the State of Delaware Department of Insurance to Everest Reinsurance
Company;
21
(iii) The Company has the corporate power to own or lease its
respective properties and conduct its business as described in the
Registration Statement and the Prospectus;
(iv) The issued and outstanding shares of capital stock of the Company
have been duly authorized and validly issued, are fully paid and non-
assessable and are owned by its holders, free and clear of any adverse
claims;
(v) Other than as set forth in the Prospectus or the Registration
Statement, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and, to
the best knowledge of such counsel, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others and other
than as set forth in the Prospectus or the Registration Statement, there
are no legal or governmental proceedings pending to which the Trust is a
party or of which any property of the Trust is the subject which, if
determined adversely to the Trust, would individually or in the aggregate
have a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Trust; and, to the
best knowledge of such counsel, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) Such counsel does not know of any contract or document of a
character required to be described or summarized in the Registration
Statement or to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement or
the Prospectus as amended or supplemented which is not so filed,
incorporated by reference or described;
(vii) The issuance by the Company of the Designated Guarantee and the
Designated Subordinated Debentures, the compliance by the Company with all
of the provisions of the Designated Securities, this Agreement, the
Pricing Agreement and the Company Agreements and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, (A) any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property of the Company or any of its subsidiaries is subject, or any
statute or any rule, regulation or order known to such counsel of any
court or governmental agency or body having jurisdiction over any of its
subsidiaries or any of their properties (except for such conflicts,
breaches, violations or defaults which do not or would not, individually
or in the aggregate have a material adverse effect on the consolidated
financial position,
22
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole), or (B) any provision of the charter or by-
laws of the Company or any of its subsidiaries;
(viii) No consent, approval, authorization or order of, or
registration, qualification or filing with, any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties is required for the
issue and sale of the Designated Securities or the issuance of the
Designated Guarantee and the Designated Subordinated Debentures or the
consummation by the Trust and the Company of the transactions contemplated
by this Agreement or such Pricing Agreement or the Company Agreements,
except such as have been obtained under the Act and the Trust Indenture
Act and such consents, approvals, authorizations, orders, registrations,
qualifications or filings under state or foreign insurance laws in
connection with the purchase and distribution of the Designated Securities
by the Underwriters or the issuance of the Designated Guarantee and
Designated Subordinated Debentures by the Company;
(ix) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules and other financial data included therein or omitted therefrom,
as to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be, complied
as to form in all material respects with the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; and such counsel has no reason to believe that any
of such documents, when they became effective or were so filed, as the
case may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the case
of other documents which were filed under the Act or the Exchange Act with
the Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading;
(x) Neither the Company nor any of its subsidiaries is (i) in violation
of its respective charter or by-laws or (ii) to the knowledge of such
counsel, in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other material agreement
or instrument to which it is a party or by which it or any of its
properties may be bound or affected, except, in the case of clause (ii),
for such as, individually or in the aggregate, would not have a material
adverse effect on the consolidated financial position, stockholders'
equity or result of operations of the Company and its subsidiaries taken
as a whole; the Trust is not in violation of (i) its Trust Agreement or
(ii) to the knowledge of such counsel in default in the performance or
observation of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
23
or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound or affected, except, in the case of
clause (ii), for such as, individually or in the aggregate, would not have
a material adverse effect on the consolidated financial position,
stockholders' equity or result of operations of the Trust; and
(xi) The Statements set forth under the headings "Description of the
Junior Subordinated Notes", "Description of the Preferred Securities",
"Description of the Preferred Securities Guarantee", "Description of the
Expense Agreement" and "Relationship Among the Preferred Securities,
Preferred Securities Guarantee, Expense Agreement and Junior Subordinated
Notes Held By the Trust", insofar as they constitute a summary of the
terms of the Securities, Subordinated Debentures, the Guarantees, the
Expense Agreements and the Company Agreements (including the Designated
Securities, the Designated Subordinated Debentures, the Designated
Guarantee and the Designated Expense Agreement), and (x) in the Prospectus
under the caption "Plan of Distribution" and (y) in the Prospectus as
amended or supplemented under the caption "Underwriting", insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, provide a fair summary of such legal
matters, documents and proceedings.
In rendering such opinion, such counsel may rely, as to matters of fact,
to the extent such counsel deems proper, on certificates or responsible
officers of the Company and its subsidiaries and of public officials and, as
to matters involving the application of the General Corporation Law of the
State of Delaware, upon the opinions of the Company counsel referred to in
Sections 7(c) and (d). Such opinions shall be limited to the federal laws of
the United States and the laws of the State of New Jersey and the general
corporate and insurance laws of the State of Delaware;
(f) Tax counsel for the Trust and the Company satisfactory to the
Representatives shall have furnished to the Representatives their written
opinion, dated the respective Time of Delivery, in form and substance
satisfactory to the Representatives, to the effect that such firm confirms
its opinion set forth in the Prospectus under the caption "Material United
States Federal Income Tax Consequences";
(g) On the date of the Pricing Agreement for such Designated Securities at
a time prior to the execution of the Pricing Agreement with respect to the
Designated Securities and at each Time of Delivery for such Designated
Securities, PricewaterhouseCoopers LLP, who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement, shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the Representatives
may reasonably request and in form and substance satisfactory to the
Representatives;
24
(h) None of the Trust, the Company or any of the Company's subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as amended
or supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior to
the date of the Pricing Agreement relating to the Designated Securities there
shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the date
of the Pricing Agreement relating to the Designated Securities, the effect of
which, in any such case described in clause (i) or (ii), is in the judgment
of the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Firm
Designated Securities or Optional Designated Securities or both on the terms
and in the manner contemplated in the Prospectus as amended or supplemented
relating to the Designated Securities;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock or the Company's
financial strength or claims paying ability by any "nationally recognized
statistical rating organization", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred stock or the Company's financial strength or claims
paying ability, the effect of which, in any such case described in clause (i)
or (ii), is in the judgment of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented relating to the
Designated Securities;
(j) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following: (i)
a suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a suspension or material limitation in trading
in the Company's securities on the New York Stock Exchange (other than in
connection with the proposed restructuring of the Company as described in the
Prospectus as amended or supplemented) (iii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the
00
Xxxxxx Xxxxxx of a national emergency or war, if the effect of any such event
specified in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Firm Designated Securities or Optional Designated Securities
or both on the terms and in the manner contemplated in the Prospectus as
amended or supplemented relating to the Designated Securities;
(k) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of the Pricing Agreement for such
Designated Securities or some other day as agreed by the Company and the
Underwriters; and
(l) The Designated Trust and the Company shall have furnished or caused to
be furnished to the Representatives at each Time of Delivery for the
Designated Securities a certificate or certificates of officers of the
Designated Trust and the Company reasonably satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Designated Trust and the Company herein at and as of such Time of
Delivery, as to the performance by the Designated Trust and the Company of
all of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (j) of this
Section and as to such other matters as the Representatives may reasonably
request.
8. (a) The Designated Trust and the Company, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Designated Trust nor the Company
shall be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Designated Trust and the
Company by any Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Securities; and provided, further, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this subsection (a) with respect to
any Preliminary Prospectus (as supplemented by a preliminary prospectus
supplement filed with the Commission) to the extent that any such loss, claim,
damage or
26
liability of such Underwriter results from the fact that such Underwriter sold
Securities to a person as to whom it shall be established that there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents incorporated by
reference) in any case where such delivery is required by the Act if the Company
has previously furnished copies thereof in sufficient quantity to such
Underwriter and the loss, claim, damage or liability of such Underwriter results
from an untrue statement or omission of a material fact contained in the
Preliminary Prospectus (as so supplemented) which was (i) identified in writing
to such Underwriter at or prior to the earlier of the filing with the Commission
or the furnishing to such Underwriter of the Prospectus and (ii) corrected in
the Prospectus (excluding documents incorporated by reference) or in the
Prospectus as then amended or supplemented (excluding documents incorporated by
reference).
(b) Each Underwriter will indemnify and hold harmless the Designated Trust
and the Company against any losses, claims, damages or liabilities to which the
Designated Trust may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Designated Trust and
the Company by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Designated Trust and the Company for any legal
or other expenses reasonably incurred by the Designated Trust in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such
27
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party. No
indemnified party shall, without the written consent of the indemnifying party
(such written consent not to be unreasonably withheld), effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending action or claim in respect of which indemnification or contribution is
sought hereunder if the indemnifying party has assumed the defense of such
action or claim.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Designated Trust and the Company on the one hand and the Underwriters of
the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Designated Trust and the
Company on the one hand and the Underwriters of the Designated Securities on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Designated Trust and the Company on the one hand and such Underwriters on
the other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Designated Trust
and the Company bear to the total underwriting discounts and commissions
received by such Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Designated Trust and the Company on the
one hand or such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Designated Trust, the Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount
28
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Designated Trust and the Company under this
Section 8 shall be in addition to any liability which the Designated Trust and
the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Designated Trust and the Company and to each person,
if any, who controls the Designated Trust and the Company within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Designated Securities or Optional Designated Securities which it has agreed
to purchase under the Pricing Agreement relating to such Designated Securities,
the Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Designated Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Designated Securities or Optional Designated Securities, as the case may be,
then the Designated Trust shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties reasonably
satisfactory to the Representatives to purchase such Designated Securities on
such terms. In the event that, within the respective prescribed period, the
Representatives notify the Designated Trust that they have so arranged for the
purchase of such Designated Securities, or the Designated Trust notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Designated Trust shall have the right to
postpone the Time of Delivery for such Designated Securities for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Designated
Trust agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to the Pricing Agreement with respect to
such Designated Securities.
29
(b) If, after giving effect to any arrangements for the purchase of the Firm
Designated Securities or Optional Designated Securities, as the case may be, of
a defaulting Underwriter or Underwriters by the Representatives and the
Designated Trust as provided in subsection (a) above, the aggregate principal
amount of such Designated Securities which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of the Firm Designated Securities
or Optional Designated Securities, as the case may be, to be purchased at the
respective Time of Delivery, then the Designated Trust shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of Firm
Designated Securities or Optional Designated Securities, as the case may be,
which such Underwriter agreed to purchase under the Pricing Agreement relating
to such Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
Firm Designated Securities or Optional Designated Securities, as the case may
be, which such Underwriter agreed to purchase under such Pricing Agreement) of
the Firm Designated Securities or Optional Designated Securities, as the case
may be, of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Firm
Designated Securities or Optional Designated Securities, as the case may be, of
a defaulting Underwriter or Underwriters by the Representatives and the
Designated Trust as provided in subsection (a) above, the aggregate principal
amount of Firm Designated Securities or Optional Designated Securities, as the
case may be, which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of the Firm Designated Securities or Optional Designated
Securities, as the case may be, to be purchased at the respective Time of
Delivery, as referred to in subsection (b) above, or if the Designated Trust
shall not exercise the right described in subsection (b) above to require non-
defaulting Underwriters to purchase Firm Designated Securities or Optional
Designated Securities, as the case may be, of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Firm Designated
Securities or the Over-allotment Option relating to such Optional Designated
Securities, as the case may be, shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the Designated Trust or the
Company, except for the expenses to be borne by the Designated Trust and the
Company and the Underwriters as provided in Section 6 hereof and the indemnity
and contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Designated Trust or the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Designated Trust or the Company, or any officer or director
or controlling person of the Designated Trust or the Company, and shall survive
delivery of and payment for the Securities.
30
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, neither the Designated Trust nor the Company shall
then be under any liability to any Underwriter with respect to the Firm
Designated Securities or Optional Designated Securities with respect to which
such Pricing Agreement shall have been terminated except as provided in Sections
6 and 8 hereof; but, if for any other reason Designated Securities are not
delivered by or on behalf of the Designated Trust or the Company as provided
herein, the Company will reimburse the Underwriters through the Representatives
for all out-of-pocket expenses approved in writing by the Representatives,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of such
Designated Securities, but the Designated Trust or the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
overnight courier, telex or facsimile transmission to the address of the
Representatives as set forth in the Pricing Agreement; and if to the Designated
Trust or the Company shall be delivered or sent by mail, overnight courier,
telex or facsimile transmission to the address of the Designated Trust or the
Company, respectively, set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Designated Trust and the Company by the Representatives upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, each Designated Trust, the
Company and, to the extent provided in Sections 8 and 10 hereof, the officers
and directors of each Designated Trust, the Company and each person who controls
any Designated Trust or the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
31
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
32
Very truly yours,
EVEREST REINSURANCE HOLDINGS, INC.
By: _______________________
Name:
Title:
EVEREST RE CAPITAL TRUST
By: Everest Reinsurance Holdings, Inc.
as Depositor
By: ________________________
Name:
Title:
ANNEX I
Pricing Agreement
-----------------
Xxxxxxx, Xxxxx & Co.,
[Names of Co. Representative(s)]
As Representatives of the several
Underwriters named in Schedule I hereto,
[c/o Goldman, Sachs & Co.,]
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
______ ___, 2000
Ladies and Gentlemen:
Everest Re Capital Trust, a statutory business trust formed under the laws of
the State of Delaware (the "Trust") and Everest Reinsurance Holdings, Inc., a
Delaware corporation (the "Company"), propose, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated
......................, 1999 (the "Underwriting Agreement") to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities" consisting of Firm
Designated Securities and any Optional Designated Securities the Underwriters
may elect to purchase). The principal asset of the Trust consists of debt
securities of the Company (the "Subordinated Debentures"), as specified in
Schedule II to this Agreement. The Designated Securities will be guaranteed by
the Company to the extent set forth in this Agreement with respect to such
Designated Securities (the "Guarantee"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its 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; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Registration Statement or a supplement to the Prospectus,
as the case may be, relating to the Designated Securities, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, (a) the Designated Trust agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Designated Trust, at the time
and place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the number of Firm Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto and, (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional
Designated Securities, as provided below, the Designated Trust agrees to issue
and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Designated Trust at the purchase
price to the Underwriters set forth in Schedule II hereto that portion of the
number of Optional Designated Securities as to which such election shall have
been exercised.
The Designated Trust hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto on the
terms referred to in the paragraph above for the sole purpose of covering over-
allotments in the sale of the Firm Designated Securities. Any such election to
purchase Optional Designated Securities may be exercised by written notice from
the Representatives to the Designated Trust and the Company given within a
period of 30 calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Designated Securities to be purchased and
the date on which such Optional Designated Securities are to be delivered, as
determined by the Representatives, but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Designated Trust otherwise
agree in writing, no earlier than two or later than ten business days after the
date of such notice.
If the foregoing is in accordance with your understanding, please sign and
return to us [one for the Company and each of the Representatives plus one for
each counsel] counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Designated Trust and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Designated Trust and the Company for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
2
Very truly yours,
EVEREST REINSURANCE HOLDINGS, INC.
By: __________________________________
Name:
Title:
EVEREST RE CAPITAL TRUST
By: Everest Reinsurance Holdings, Inc.
as Depositor
By: __________________________________
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
[Names of Co-Representative Corporations]
By:__________________________________
Name:
Title:
______________________________________
[Names of Co-Representative Partnership(s)]
On behalf of each of the Underwriters
3
SCHEDULE I
Maximum
Principal
Principal Amount of
Amount of Optional
Firm Designated
Designated Securities Which
Securities May be
Underwriter to be Purchased Purchased
----------- --------------- ----------------
$ $
[Names of Representatives]........
[Names of Co-Representative(s)]...
[Names of other Underwriters].....
Total.............................. $ $
I-1
SCHEDULE II
Designated Trust:
Everest Re Capital Trust
Title of Designated Securities:
[ %] [Floating Rate] Preferred Securities
Liquidation Amount of the Designated Securities:
$ _______ per Designated Security
Aggregate principal amount:
Aggregate liquidation amount of Designated
Securities to be sold: $ ____________
Price to Public:
___% of the liquidation amount of the Designated Securities
Purchase Price by Underwriters:
___% of the liquidation amount of the Designated Securities
Underwriters' Compensation:
As compensation to the Underwriters for their commitments hereunder, and in
view of the fact that the proceeds of the sale of the Designated Securities
will be used by the Designated Trust to purchase the Subordinated
Debentures of the Company, the Company hereby agrees to pay at each Time of
Delivery to [the Designated Representative], for the accounts of the
several Underwriters, an amount equal to $ per preferred
security for the Designated Securities to be delivered at each Time of
Delivery ($ in the aggregate).
Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the
Representatives]] Book entry only form represented by one or more global
securities deposited with The Depository Trust Company ("DTC") or its
designated custodian, to be made available for checking by the
Representatives at least twenty-four hours prior to the Time of Delivery at
the office of DTC.]
II-1
Specified funds for payment of purchase price:
Federal (same day) Funds
Accountants' Letter to be delivered on date of Pricing Agreement:
Yes
Trust Agreement:
Amended and Restated Trust Agreement dated as of ________, ____, between
the Company, as Depositor, The Chase Manhattan Bank, as Property Trustee,
The Chase Manhattan Bank (Delaware), as Delaware Trustee, and the several
Holders of Trust Securities
Indenture:
Indenture dated as of _______, ____, between the Company and The Chase
Manhattan Bank, as Indenture Trustee (the "Indenture")
Guarantee:
Guarantee Agreement dated as of ________, ____, between Company and The
Chase Manhattan Bank, as Guarantee Trustee
Expense Agreement
Agreement as to Expenses and Liabilities, dated as of _______, ____ between
the Company and the Designated Trust
Subordinated Debentures:
[ %] [Floating Rate] Junior Subordinated Debentures.
Maturity:
_________, ____ [(subject to shortening such maturity to a date not earlier
than ______, ___)]
Interest Rate:
Interest Payment Dates:
II-2
[Months and dates, commencing .................., 2000]
Extension Period:
Redemption Provisions:
[The redemption provisions set forth in Section ___ of the Trust Agreement
shall apply to the Designated Securities]
Sinking Fund Provisions:
No sinking fund provisions
Exchange for Designated Securities:
[The Subordinated Debentures may be delivered in exchange for the
Designated Securities as provided in the Prospectus Supplement]
Listing of Designated Securities:
[New York Stock Exchange][None]
Time of Delivery:
____ a.m., New York City time
_______, ____
Closing Location:
Names and addresses of Representatives:
[Names of Representatives]
[Address for Notices]
II-3
[Other Terms]*:
--------------------------
* A description of particular tax, accounting or other unusual features (such
as the addition of event risk provisions) of the Designated Securities
should be set forth, or referenced to an attached and accompanying
description, if necessary, to ensure agreement as to the terms of the
Designated Securities to be purchased and sold. Such a description might
appropriately be in the form in which such features will be described in
the Prospectus Supplement for the offering.
II-4
ANNEX II
Pursuant to Section 7(g) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Designated Trust and the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations adopted by the
Commission thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, pro forma
financial information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to form
in all material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related rules and
regulations; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon,
copies of which have been furnished to the representatives of the
Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly reports on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies
of which [have been separately furnished to the Representatives] [are
attached to such letters]; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and
regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the
basis of limited procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the published rules and regulations adopted by
the Commission, or (ii) any material modifications should be made to
the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and
2
balance sheet items included in the Prospectus and referred to in
clause (B) were not determined on a basis substantially consistent
with the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the rules and regulations
adopted by the Commission thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the compilation
of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived
from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives
3
or in documents incorporated by reference in the Prospectus specified by
the Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
4
