1
SUMMIT BANCORP.
(a New Jersey corporation)
Preferred Stock and Debt Securities
UNDERWRITING AGREEMENT
Dated ________, 1999
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Table of Contents
Page
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SECTION 1. Representations and Warranties. ...............................3
(a) Representations and Warranties by the Company......................3
(1) Compliance with Registration Requirements..................3
(2) Incorporated Documents.....................................4
(3) Independent Accountants....................................5
(4) Financial Statements.......................................5
(5) No Material Adverse Change in Business.....................5
(6) Good Standing of the Company...............................5
(7) Good Standing of Subsidiaries..............................6
(8) Capitalization.............................................6
(9) Authorization of this Underwriting Agreement and
Terms Agreement............................................6
(10) Authorization of Preferred Stock...........................6
(11) Authorization of Senior Debt Securities and/or
Subordinated Debt Securities...............................7
(12) Authorization of the Indentures............................7
(13) Descriptions of the Underwritten Securities................7
(14) Absence of Defaults and Conflicts..........................8
(15) Absence of Proceedings.....................................8
(16) Accuracy of Exhibits.......................................9
(17) Absence of Further Requirements............................9
(18) Possession of Licenses and Permits.........................9
(19) Commodity Exchange Act.....................................9
(20) Investment Company Act....................................10
(b) Officers' Certificates............................................10
SECTION 2. Sale and Delivery to Underwriters; Closing....................10
(a) Underwritten Securities...........................................10
(b) Option Underwritten Securities....................................10
(c) Payment...........................................................11
(d) Denominations; Registration.......................................11
SECTION 3. Covenants of the Company......................................11
(a) Compliance with Securities Regulations and Commission
Requests..........................................................11
(b) Filing of Amendments..............................................12
(c) Delivery of Registration Statements...............................12
(d) Delivery of Prospectuses..........................................12
(e) Continued Compliance with Securities Laws.........................12
(f) Blue Sky Qualifications...........................................13
(g) Earnings Statement................................................13
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(h) Use of Proceeds...................................................13
(i) Listing...........................................................13
(j) Restriction on Sale of Securities.................................13
(k) Reporting Requirements............................................14
SECTION 4. Payment of Expenses...........................................14
(a) Expenses..........................................................14
(b) Termination of Agreement..........................................14
SECTION 5. Conditions of Underwriters' Obligations.......................14
(a) Effectiveness of Registration Statement...........................15
(b) Opinion of Counsel for Company....................................15
(c) Opinion of Counsel for Underwriters...............................15
(d) Officers' Certificate.............................................15
(e) Accountant's Comfort Letter.......................................16
(f) Bring-down Comfort Letter.........................................16
(g) Ratings...........................................................16
(h) Approval of Listing...............................................16
(i) No Objection......................................................16
(j) Lock-up Agreements................................................16
(k) Over-Allotment Option.............................................17
(l) No Ratings Downgrade..............................................17
(m) Additional Documents..............................................17
(n) Termination of Terms Agreement....................................18
SECTION 6. Indemnification...............................................18
(a) Indemnification of Underwriters...................................18
(b) Indemnification of Company, Directors and Officers................19
(c) Actions against Parties; Notification.............................19
(d) Settlement without Consent if Failure to Reimburse................19
SECTION 7. Contribution..................................................20
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery......................................................21
SECTION 9. Termination...................................................21
(a) Underwriting Agreement............................................21
(b) Terms Agreement...................................................21
(c) Liabilities.......................................................22
SECTION 10. Default by One or More of the Underwriters....................22
SECTION 11. Notices.......................................................24
SECTION 12. Parties.......................................................24
SECTION 13. Governing Law and Time........................................24
SECTION 14. Effect of Headings............................................24
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SUMMIT BANCORP.
(a New Jersey corporation)
Preferred Stock and Debt Securities
UNDERWRITING AGREEMENT
______, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Summit Bancorp., a New Jersey corporation (the "Company"), proposes to
issue and sell up to $1,000,000,000 aggregate initial public offering price of
its (i) shares of preferred stock, stated value $50 per share (the "Preferred
Stock"), or (ii) senior or subordinated debt securities (the "Debt Securities"),
or any combination thereof, from time to time, in or pursuant to one or more
offerings on terms to be determined at the time of sale.
The Preferred Stock will be issued in one or more series and each series
of Preferred Stock may vary, as applicable, as to the title, specific number of
shares, rank, stated value, liquidation preference, dividend rate or rates (or
method of calculation), dividend payment dates, redemption provisions, sinking
fund requirements, and any other variable terms as set forth in the applicable
amendment to the Certificate of Incorporation (each, the "Preferred Stock
Amendments") relating to such series of Preferred Stock.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as of
[ ], 1999 (the "Senior Indenture"), between the Company and o, as trustee (the
"Senior Trustee"), or as subordinated indebtedness (the "Subordinated Debt
Securities") under an indenture, dated as of [ ], 1999 (the "Subordinated
Indenture", and collectively with the Senior Indenture, the "Indentures", and
each, an "Indenture"), between the Company and o, as trustee (the "Subordinated
Trustee", and collectively with the Senior Trustee, the "Trustees", and each, a
"Trustee"). Each series of Debt Securities may vary, as applicable, as to title,
aggregate principal amount, rank, interest rate or formula and timing of
payments thereof, stated maturity date, redemption and/or repayment provisions,
sinking fund requirements and any other variable terms established by or
pursuant to the applicable Indenture.
As used herein, "Securities" shall mean the Preferred Stock, Senior Debt
Securities or Subordinated Debt Securities, or any combination thereof,
initially issuable by the Company.
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Whenever the Company determines to make an offering of Securities through
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), or through an underwriting syndicate managed by ▇▇▇▇▇▇▇
▇▇▇▇▇, the Company will enter into an agreement (each, a "Terms Agreement")
providing for the sale of such Securities to, and the purchase and offering
thereof by, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and such other underwriters, if any, selected by
▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Underwriters", which term shall include ▇▇▇▇▇▇▇ ▇▇▇▇▇,
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Securities shall specify the number or
aggregate principal amount, as the case may be, of Securities to be initially
issued (the "Initial Underwritten Securities"), the name of each Underwriter
participating in such offering (subject to substitution as provided in Section
10 hereof) and the name of any Underwriter other ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as
co-manager in connection with such offering, the number or aggregate principal
amount, as the case may be, of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, whether such offering is on a fixed or
variable price basis and, if on a fixed price basis, the initial offering price,
the price at which the Initial Underwritten Securities are to be purchased by
the Underwriters, the form, time, date and place of delivery and payment of the
Initial Underwritten Securities and any other material variable terms of the
Initial Underwritten Securities. In addition, if applicable, such Terms
Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Securities to cover
over-allotments, if any, and the number or aggregate principal amount, as the
case may be, of Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of any Option
Underwritten Securities. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting
for itself and, if applicable, as representative of any other Underwriters. Each
offering of Underwritten Securities through ▇▇▇▇▇▇▇ ▇▇▇▇▇ as sole Underwriter or
through an underwriting syndicate managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇ will be governed by
this Underwriting Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-o) [and
pre-effective amendment[s] no[s]. o thereto] for the registration of the
Securities under the Securities Act of 1933, as amended (the "1933 Act"), and
the offering thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission and each Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
the applicable Terms Agreement and each such post-effective amendment has been
declared effective by the Commission. Such registration statement (as so
amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to
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herein as the "Prospectus"; provided, however, that all references to the
"Registration Statement" and the "Prospectus" shall also be deemed to include
all documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to the execution of the
applicable Terms Agreement; provided, further, that if the Company files a
registration statement with the Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "Rule 462(b) Registration Statement"), then, after such
filing, all references to "Registration Statement" shall also be deemed to
include the Rule 462 Registration Statement; and provided, further, that if the
Company elects to rely upon Rule 434 of the 1933 Act Regulations, then all
references to "Prospectus" shall also be deemed to include the final or
preliminary prospectus and the applicable term sheet or abbreviated term sheet
(the "Term Sheet"), as the case may be, in the form first furnished to the
Underwriters by the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references in this Underwriting Agreement to the date of
the Prospectus shall mean the date of the Term Sheet. A "preliminary prospectus"
shall be deemed to refer to any prospectus used before the Registration
Statement became effective and any prospectus that omitted, as applicable, the
Rule 430A Information, the Rule 434 Information or other information to be
included upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations and was used after such effectiveness
and prior to the execution and delivery of the applicable Terms Agreement. For
purposes of this Underwriting Agreement, all references to the Registration
Statement, Prospectus, Term Sheet or preliminary prospectus or to any amendment
or supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of the applicable Terms Agreement;
and all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall be
deemed to mean and include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to ▇▇▇▇▇▇▇ ▇▇▇▇▇, as of the date hereof, and to each Underwriter
named in the applicable Terms Agreement, as of the date thereof, as of the
Closing Time (as defined below) and, if applicable, as of each Date of Delivery
(as defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement (or such
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Rule 462(b) Registration Statement) has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. In addition, each Indenture has been duly qualified under
the 1939 Act.
At the respective times the Registration Statement (including any
Rule 462(b) Registration Statement) and any post-effective amendments
thereto (including the filing of the Company's most recent Annual Report
on Form 10-K with the Commission (the "Annual Report on Form 10-K"))
became effective and at each Representation Date, the Registration
Statement (including any Rule 462(b) Registration Statement) and any
amendments thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus, at the Closing Time and at each
Date of Delivery, if any, neither the Prospectus nor any amendments and
supplements thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, the Company will comply with
the requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through ▇▇▇▇▇▇▇
▇▇▇▇▇ expressly for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with the offering of Underwritten Securities will,
at the time of such delivery, be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the date of the
Prospectus, at the Closing Time and at each Date of Delivery, if any, did
not and will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
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(3) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Company
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present fairly
the financial position of the Company and its consolidated subsidiaries,
or such other entity, as the case may be, at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries, or such other entity, as the
case may be, for the periods specified. Such financial statements have
been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved.
The supporting schedules, if any, included in the Registration Statement
and the Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the Registration
Statement and the Prospectus. In addition, any pro forma financial
statements of the Company and its subsidiaries and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(5) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"), (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those arising in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except (i) for regular dividends on
the Company's common stock or preferred stock, if any, in amounts per
share that are consistent with past practice (including periodic increases
or decreases to such cash dividends) or the applicable charter document or
supplement thereto, respectively, and (ii) for any dividend payable in
stock or rights to purchase securities (common or preferred) of the
Company, respectively, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(6) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of
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New Jersey and has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and to enter into and perform its obligations under, or as contemplated
under, this Underwriting Agreement and the applicable Terms Agreement. The
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse
Effect.
(7) Good Standing of Subsidiaries. Each subsidiary bank chartered
under the laws of any state or the federal laws of the United States that
meets the definition of a "significant subsidiary" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X promulgated under the ▇▇▇▇
▇▇▇) (each, a "Significant Bank Subsidiary" and, collectively, the
"Significant Bank Subsidiaries"), if any, has been duly organized and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
to so qualify or be in good standing would not result in a Material
Adverse Effect. Except as otherwise stated in the Registration Statement
and the Prospectus, all of the issued and outstanding capital stock of
each Significant Bank Subsidiary has been duly authorized and is validly
issued, fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. None of the
outstanding shares of capital stock of any Significant Bank Subsidiary was
issued in violation of preemptive or other similar rights of any
securityholder of such Significant Bank Subsidiary.
(8) Capitalization. If the Prospectus contains a "Capitalization"
section, the authorized, issued and outstanding shares of capital stock of
the Company is as set forth in the column entitled "Actual" under such
section (except for subsequent issuances thereof, if any, contemplated
under this Underwriting Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the
Prospectus). Such shares of capital stock have been duly authorized and
validly issued by the Company and are fully paid and non-assessable, and
none of such shares of capital stock was issued in violation of preemptive
or other similar rights of any securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the applicable Terms
Agreement as of the date thereof will have been, duly authorized, executed
and delivered by the Company.
(10) Authorization of Preferred Stock. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Preferred Stock, such Underwritten Securities have been, or as of the date
of such Terms Agreement will have
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been, duly authorized by the Company for issuance and sale pursuant to
this Underwriting Agreement and such Terms Agreement. The applicable
Preferred Stock, when issued and delivered by the Company pursuant to this
Underwriting Agreement and such Terms Agreement against payment of the
consideration therefor specified in such Terms Agreement, will be validly
issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company.
No holder of such Preferred Stock is or will be subject to personal
liability by reason of being such a holder. The applicable Preferred Stock
Amendments will be in full force and effect prior to the Closing Time.
(11) Authorization of Senior Debt Securities and/or Subordinated
Debt Securities. If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or
Subordinated Debt Securities, such Underwritten Securities have been, or
as of the date of such Terms Agreement will have been, duly authorized by
the Company for issuance and sale pursuant to this Underwriting Agreement
and such Terms Agreement. Such Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the consideration therefor specified in such
Terms Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof
may be limited by requirements that a claim with respect to any Debt
Securities payable in a foreign or composite currency (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or by governmental authority to limit, delay or
prohibit the making of payments outside the United States. Such
Underwritten Securities will be in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the applicable
Indenture.
(12) Authorization of the Indentures. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities, each applicable Indenture
has been, or prior to the issuance of the Debt Securities thereunder will
have been, duly authorized, executed and delivered by the Company and,
upon such authorization, execution and delivery, will constitute a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally, or
by general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(13) Descriptions of the Underwritten Securities. The Underwritten
Securities being sold pursuant to the applicable Terms Agreement and each
applicable Indenture, as of each Representation Date, when issued and
delivered in accordance with the terms of
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the related Underwritten Securities, will conform in all material respects
to the statements relating thereto contained in the Prospectus and will be
in substantially the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(14) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which it or any of them may be bound, or to which any of the assets,
properties or operations of the Company or any of its subsidiaries is
subject (collectively, "Agreements and Instruments"), except for such
violations or defaults that would not result in a Material Adverse Effect.
The execution, delivery and performance of this Underwriting Agreement,
the applicable Terms Agreement and each applicable Indenture and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated
hereby or thereby or in the Registration Statement and the Prospectus and
the consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and sale
of the Underwritten Securities and the use of the proceeds from the sale
of the Underwritten Securities as described under the caption "Use of
Proceeds") and compliance by the Company with its obligations hereunder
and thereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice or
passage of time or both, result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries, or conflict
with or constitute a breach of, or default (except for a conflict, breach
or default that would not result in a Material Adverse Effect) or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets, properties
or operations of the Company or any of its subsidiaries pursuant to, any
Agreements and Instruments, nor will such action result in the violation
of any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries
or any of their assets, properties or operations (except for such
Repayment Events or violations that would not result in a Material Adverse
Effect). As used herein, a "Repayment Event" means any event or condition
which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any of its subsidiaries.
(15) Absence of Proceedings. Other than as disclosed in the
Registration Statement and the Prospectus, there is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to the
knowledge of the Company threatened, against or affecting the Company or
any of its subsidiaries which is required to be disclosed in the
Registration Statement and the Prospectus, or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect the assets, properties or
operations thereof or the consummation of the transactions contemplated
under the Prospectus, this Underwriting Agreement, the
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applicable Terms Agreement or any applicable Indenture, or the performance
by the Company of its obligations hereunder and thereunder. The aggregate
of all pending legal or governmental proceedings to which the Company or
any of its subsidiaries is a party or of which any of their respective
assets, properties or operations is the subject which are not described in
the Registration Statement and the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(16) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(17) Absence of Further Requirements. No consent, license, approval
or authorization of or filing with, or decree or order of, any court or
governmental authority or agency, including the New Jersey Department of
Banking and Insurance and the Pennsylvania Department of Banking, as
applicable, is necessary or required for the due authorization, execution
and delivery by the Company of this Underwriting Agreement or the
applicable Terms Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus, this Underwriting
Agreement, such Terms Agreement or any applicable Indenture, except such
as have been already made, obtained or rendered, as applicable.
(18) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except where the
failure to possess such Governmental Licenses would not have a Material
Adverse Effect. The Company and its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, result in
a Material Adverse Effect. All of the Governmental Licenses are valid and
in full force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not result in a Material Adverse Effect. Neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(19) Commodity Exchange Act. If the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Debt Securities,
such Debt Securities, upon issuance, will be excluded or exempted under,
or beyond the purview of, the Commodity Exchange Act, as amended (the
"Commodity Exchange Act"), and the rules and regulations of the Commodity
Futures Trading Commission under the Commodity Exchange Act (the
"Commodity Exchange Act Regulations").
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(20) Investment Company Act. The Company is not, and upon the
issuance and sale of the Underwritten Securities as herein contemplated
and the application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of
Section 3 of the Investment Company Act of 1940, as amended (the "1940
Act").
(b) Officers' Certificates. Any certificate signed by any executive
officer of the Company or any of its subsidiaries and delivered to any
Underwriter or to counsel for the Underwriters in connection with the offering
of the Underwritten Securities shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby on the date of
such certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(b) Option Underwritten Securities. Subject to the terms and conditions
herein set forth, the Company may grant, if so provided in the applicable Terms
Agreement, an option to the Underwriters, severally and not jointly, to purchase
up to the number or aggregate principal amount, as the case may be, of the
Option Underwritten Securities set forth therein at a price per Option
Underwritten Security equal to the price per Initial Underwritten Security, less
an amount equal to any dividends or distributions declared by the Company and
paid or payable on the Initial Underwritten Securities but not payable on the
Option Underwritten Securities. Such option, if granted, will expire 30 days
after the date of such Terms Agreement, and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial
Underwritten Securities upon notice by ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Company setting
forth the number or aggregate principal amount, as the case may be, of Option
Underwritten Securities as to which the several Underwriters are then exercising
the option and the time, date and place of payment and delivery for such Option
Underwritten Securities. Any such time and date of payment and delivery (each, a
"Date of Delivery") shall be determined by ▇▇▇▇▇▇▇ ▇▇▇▇▇, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, unless otherwise agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇
and the Company. If the option is exercised as to all or any portion of the
Option Underwritten Securities, each of the Underwriters, severally and not
jointly, will purchase that proportion of the total number or aggregate
principal amount, as the case may be, of Option Underwritten Securities then
being purchased which the number or aggregate principal amount, as the case may
be, of Initial Underwritten Securities each such Underwriter has severally
agreed to purchase as set forth in such Terms Agreement bears to the total
number or aggregate principal amount, as the case may be, of Initial
Underwritten Securities, subject to such adjustments as ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its
discretion shall make to eliminate any sales or purchases of a fractional number
or aggregate principal amount, as the case may be, of Option Underwritten
Securities.
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(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of ▇▇▇▇▇ & Wood
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as
shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company, at 9:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time)
on any given day) business day after the date of the applicable Terms Agreement
(unless postponed in accordance with the provisions of Section 10 hereof), or
such other time not later than ten business days after such date as shall be
agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event that the
Underwriters have exercised their option, if any, to purchase any or all of the
Option Underwritten Securities, payment of the purchase price for, and delivery
of such Option Underwritten Securities, shall be made at the above-mentioned
offices of ▇▇▇▇▇ & Wood LLP , or at such other place as shall be agreed upon by
▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company, on the relevant Date of Delivery as specified in
the notice from ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
▇▇▇▇▇▇▇ ▇▇▇▇▇ for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities shall be in such denominations and
registered in such names as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may request in writing at least one
full business day prior to the Closing Time or the relevant Date of Delivery, as
the case may be. The Underwritten Securities or certificates for the
Underwritten Securities will be made available for examination and packaging by
▇▇▇▇▇▇▇ ▇▇▇▇▇ in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with ▇▇▇▇▇▇▇
▇▇▇▇▇ and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify the Representative(s) immediately, and confirm
the notice in writing, of (i) the effectiveness of any post-effective amendment
to the Registration Statement or the filing of any supplement or amendment to
the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension
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of the qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424 of the 1933 Act Regulations and will take such steps as it deems
necessary to ascertain promptly whether the Prospectus transmitted for filing
under Rule 424 of the 1933 Act Regulations was received for filing by the
Commission and, in the event that it was not, it will promptly file the
Prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give ▇▇▇▇▇▇▇ ▇▇▇▇▇ notice of
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ or counsel for the Underwriters
shall object, unless, in the opinion of counsel to the Company, it is required
to file such document by applicable law or regulation.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or
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for the Company, to amend the Registration Statement in order that the
Registration Statement 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 or to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters, without charge, such number of copies
of such amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities for
offering and sale under the applicable securities laws of such states as ▇▇▇▇▇▇▇
▇▇▇▇▇ may designate, and other jurisdictions (domestic or foreign) as may be
agreed upon in the applicable Terms Agreement, and to maintain such
qualifications in effect for a period of not less than one year from the date of
the applicable Terms Agreement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities have been so qualified, the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period of not
less than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act, which may be satisfied by the Company's filing of reports
under the 1934 Act as permitted by Rule 158 of the 1933 Act Regulations.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the listing
of the Underwritten Securities prior to the Closing Time on any national
securities exchange or quotation system if and as specified in the applicable
Terms Agreement.
(j) Restriction on Sale of Securities. Between the date of the applicable
Terms Agreement and the Closing Time, or such other date specified in such Terms
Agreement, the Company will not, without the prior written consent of ▇▇▇▇▇▇▇
▇▇▇▇▇, directly or indirectly,
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issue, sell, offer or contract to sell, grant any option for the sale of, or
otherwise dispose of, the securities specified in such Terms Agreement.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement or the
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any Agreement among Underwriters, the Indentures and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Underwritten Securities, (iii) the preparation,
issuance and delivery of the Underwritten Securities or any certificates for the
Underwritten Securities to the Underwriters, including any transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Underwritten Securities to the Underwriters, (iv) the fees and disbursements of
the Company's counsel, accountants and other advisors or agents (including
transfer agents and registrars), as well as the fees and disbursements of the
Trustee, (v) the qualification of the Underwritten Securities under state
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky Survey, and any amendment thereto, (vi)
the printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheet, and the Prospectus and any amendments or supplements
thereto, (vii) the fees charged by nationally recognized statistical rating
organizations for the rating of the Underwritten Securities, (viii) the fees and
expenses incurred with respect to the listing of the Underwritten Securities,
(ix) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review, if any, by the
National Association of Securities Dealers, Inc. (the "NASD") of the terms of
the sale of the Underwritten Securities, and (x) the fees and expenses of any
Underwriter acting in the capacity of a "qualified independent underwriter" (as
defined in Section 2(l) of Schedule E of the bylaws of the NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any executive officer of the Company or any of its subsidiaries delivered
pursuant to the provisions hereof, to the
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performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Underwritten Securities, the specific method of distribution
and similar matters shall have been filed with the Commission in accordance with
Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A), or, if the
Company has elected to rely upon Rule 434 of the 1933 Act Regulations, a Term
Sheet including the Rule 434 Information shall have been filed with the
Commission in accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall
have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇., General Counsel for the Company and of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel for
the Company, in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such opinions for each of the other
Underwriters, to the effect set forth in Exhibits B and C hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇ &
Wood LLP, counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, with respect to the
matters set forth in (1), (2), (6), (7) to (9), as applicable (it being
understood that any opinion required with respect to the Underwritten Securities
not being subject to preemptive or other similar rights of the securityholders
of the Company shall be limited to such rights arising by operation of law or
under the charter or by-laws of the Company), (10), (11) (solely as to the
information in the Prospectus under "Description of the Underwritten
Securities", or any caption purporting to describe any such Securities), (17),
(18), (21) and the penultimate paragraph of Exhibit B hereto. In giving such
opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law of
the United States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received a certificate of the Chairman, Vice Chairman,
President or a Vice President
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of the Company and of the Chief Financial Officer or Chief Accounting Officer of
the Company, dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties in Section
1(a) are true and correct with the same force and effect as though expressly
made at and as of the Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted, are pending or, to the best of such
officer's knowledge, are threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received from KMPG Peat
Marwick LLP a letter dated such date, in form and substance satisfactory to
▇▇▇▇▇▇▇ ▇▇▇▇▇, together with signed or reproduced copies of such letter for each
of the other Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have
received from KMPG Peat Marwick LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (e) of this Section 5, except that the specified date referred to
shall be a date not more than three business days prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization", as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to ▇▇▇▇▇▇▇
▇▇▇▇▇ a letter, dated as of such date, from each such rating organization, or
other evidence satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇, confirming that the Underwritten
Securities have such ratings. Since the time of execution of such Terms
Agreement, there shall not have occurred a downgrading in, or withdrawal of, the
rating assigned to the Underwritten Securities or any of the Company's other
securities by any such rating organization, and no such rating organization
shall have publicly announced that it has under surveillance or review its
rating of the Underwritten Securities or any of the Company's other securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(i) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(j) Lock-up Agreements. On the date of the applicable Terms Agreement,
▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
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(k) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Company in the applicable Terms Agreement and
the Underwriters exercise their option to purchase all or any portion of the
Option Underwritten Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by the
Company or any of its subsidiaries hereunder shall be true and correct as of
each Date of Delivery, and, at the relevant Date of Delivery, ▇▇▇▇▇▇▇ ▇▇▇▇▇
shall have received:
(1) A certificate, dated such Date of Delivery, of the Chairman,
Vice Chairman, President or a Vice President of the Company and of the
Chief Financial Officer or Chief Accounting Officer of the Company,
confirming that the certificate delivered at the Closing Time pursuant to
Section 5(d) hereof remains true and correct as of such Date of Delivery;
(2) The favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., General Counsel
for the Company and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Underwritten Securities and otherwise to
the same effect as the opinion required by Section 5(b) hereof;
(3) The favorable opinion of ▇▇▇▇▇ & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof; and
(4) A letter from KMPG Peat Marwick LLP, in form and substance
satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to Section 5(f) hereof, except that the "specified
date" on the letter furnished pursuant to this paragraph shall be a date
not more than three business days prior to such Date of Delivery.
(l) No Ratings Downgrade. Since the time of execution of such Terms
Agreement, there shall not have occurred a downgrading in, or withdrawal of, the
rating assigned to the Underwritten Securities or any of the Company's other
securities by any "nationally recognized statistical rating organization" as
defined by the Commission for purposes of Rule 436(g)(2) of the 1933 Act
Regulations, and no such rating organization shall have publicly announced that
it has under surveillance or review its rating of the Underwritten Securities or
any of the Company's other securities.
(m) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be satisfactory in form and
substance to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for the Underwriters.
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(n) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may be terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ by notice to the Company at any
time at or prior to the Closing Time (or such Date of Delivery, as applicable),
and such termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8 hereof
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, if applicable,
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company; and
(3) against any and all expense whatsoever, as incurred, including
as provided in Section 6(c) hereof, the fees and disbursements of counsel
chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information
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furnished to the Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for
use in the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim, and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and
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23
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(2) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(2)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the
20
24
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company or any of its subsidiaries submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by ▇▇▇▇▇▇▇ ▇▇▇▇▇ upon the giving of 30 days prior written notice of
such termination to the other party hereto.
(b) Terms Agreement. ▇▇▇▇▇▇▇ ▇▇▇▇▇ may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the
21
25
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or, if the Underwritten
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, in the international financial markets,
or any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) trading in any securities of
the Company has been suspended or materially limited by the Commission, or if
trading generally on the New York Stock Exchange or the American Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by either of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (iv) a
banking moratorium has been declared by either Federal or New York authorities
or, if the Underwritten Securities include Debt Securities denominated or
payable in, or indexed to, one or more foreign or composite currencies, by the
relevant authorities in the related foreign country or countries.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 hereof shall survive
such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein and therein set forth; if, however, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations under such Terms Agreement bear to the
underwriting obligations of all non-defaulting Underwriters; or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on
such date pursuant to such Terms
22
26
Agreement, such Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of
Option Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and the Company to
sell, such Option Underwritten Securities on such Date of Delivery) shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement, or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Company shall have
the right to postpone the Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
23
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SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at World Financial Center, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of o; and notices to the Company
shall be directed to it at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of the Chief Financial Officer, telecopy (609)
987-3481, with a copy to the General Counsel, telecopy (▇▇▇) ▇▇▇-▇▇▇▇.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
▇▇▇▇▇▇▇ ▇▇▇▇▇ and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned in
this Underwriting Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 hereof and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Underwriting Agreement or such Terms Agreement or any
provision herein or therein contained. This Underwriting Agreement and such
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company in accordance with its terms.
Very truly yours,
SUMMIT BANCORP.
By:
-------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
-----------------------------------
Authorized Signatory
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29
Exhibit A
SUMMIT BANCORP.
(a New Jersey corporation)
[Senior Debt Securities] [Subordinated Debt Securities] [Preferred Stock]
TERMS AGREEMENT
_____ __, ____
To: Summit Bancorp.
at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We understand that Summit Bancorp., a New Jersey corporation (the
"Company"), proposes to issue and sell [ shares of its preferred stock,
par value $__ per share (the "Preferred Stock")] [$ aggregate principal
amount of its [senior] [subordinated] debt securities (the "Debt Securities")]
(the "Underwritten Securities"). Subject to the terms and conditions set forth
or incorporated by reference herein, we [the underwriters named below (the
"Underwriters")] offer to purchase [, severally and not jointly,] the [[number]
[principal] [amount] of] Underwritten Securities [opposite their names set forth
below] at the purchase price set forth below [, and a proportionate share of
Option Underwritten Securities set forth below, to the extent any are
purchased].
A-1
30
[Number]
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
--------------------------------------------------------------------------------
___________________________
Total [$]
The Underwritten Securities shall have the following terms:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Listing requirements:
Marketing jurisdictions outside the U.S.:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $___ plus accumulated dividends,
if any, from _____
Purchase price per share: $___ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
A-2
31
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Listing requirements:
Marketing jurisdictions outside the U.S.:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: % of
the principal amount, plus accrued interest [amortized original issue
discount], if any, from _________________.
Purchase price per share: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
A-3
32
All of the provisions contained in the document attached as Annex I hereto
entitled "SUMMIT BANCORP.-- Preferred Stock and Debt Securities --Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
A-4
33
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
-----------------------------------------
Authorized Signatory
[Acting on behalf of itself and the other
named Underwriters.]
Accepted:
SUMMIT BANCORP.
By
---------------------------
Name:
Title:
A-5
34
Exhibit B
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.,
GENERAL COUNSEL OF THE COMPANY,
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New Jersey.
(2) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement and the applicable Terms
Agreement.
(3) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect.
(4) Each Significant Bank Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect. Except as otherwise
stated in the Registration Statement and the Prospectus, all of the issued and
outstanding capital stock of each Significant Bank Subsidiary has been duly
authorized and is validly issued, fully paid and non-assessable and, to the best
of my knowledge, is owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity. None of the outstanding shares of capital stock of any Significant
Bank Subsidiary was issued in violation of preemptive or other similar rights of
any securityholder of such Significant Bank Subsidiary.
(5) The authorized, issued and outstanding shares of capital stock of the
Company is as set forth in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances thereof, if any, contemplated
under the Underwriting Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Prospectus) or in the
Company's most recently filed Quarterly Report on Form 10-Q. Such shares of
capital stock have been duly authorized and validly issued by the Company and
are fully paid and non-assessable, and none of such shares of capital stock was
issued in violation of preemptive or other similar rights of any securityholder
of the Company.
B-1
35
(6) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(7) [Opinion to be given only in the case of Preferred Stock: The
Underwritten Securities have been duly authorized by the Company for issuance
and sale pursuant to the Underwriting Agreement and the applicable Terms
Agreement. The applicable Preferred Stock, when issued and delivered by the
Company pursuant to the Underwriting Agreement and such Terms Agreement against
payment of the consideration therefor specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company. No
holder of such Preferred Stock is or will be subject to personal liability by
reason of being such a holder. The form of certificate used to evidence the
Preferred Stock is in due and proper form and complies with the applicable
statutory requirements, with any applicable requirements of the charter or
by-laws of the Company and with the requirements of the [o Stock Exchange/Nasdaq
National Market].]
(8) [Opinion to be given only in the case of Debt Securities: The
Underwritten Securities have been duly authorized by the Company for issuance
and sale pursuant to the Underwriting Agreement and the applicable Terms
Agreement. The Underwritten Securities, when issued and authenticated in the
manner provided for in the applicable Indenture and delivered against payment of
the consideration therefor specified in such Terms Agreement, will constitute
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally, or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof may
be limited by requirements that a claim with respect to any Debt Securities
payable in a foreign or corporate currency (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. The Underwritten Securities are in the form
contemplated by, and each registered holder thereof is entitled to the benefits
of, the applicable Indenture.]
(9) Each applicable Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and delivery
thereof by the applicable Trustee) constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally, or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(10) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and each applicable Indenture conform in all material respects
to the statements relating thereto contained in the Prospectus and are in
substantially the form filed or incorporated by reference, as the case may be,
as an exhibit to the Registration Statement.
B-2
36
(11) The information in the Prospectus under "Description of Underwritten
Securities" and "Description of Underlying Securities", if any, or any caption
purporting to describe any such Securities and in the Annual Report on Form 10-K
under "o"and in the Registration Statement under Item 15, to the extent that it
constitutes matters of law, summaries of legal matters or the Company's charter,
bylaws or legal proceedings, or legal conclusions, has been reviewed by us and
is correct in all material respects.
(12) To the best of my knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the assets, properties or operations of the Company or any of
its subsidiaries is subject (collectively, "Agreements and Instruments"), except
for such violations or defaults that would not result in a Material Adverse
Effect. The execution, delivery and performance of the Underwriting Agreement,
the applicable Terms Agreement and each applicable Indenture and any other
agreement or instrument entered into or issued or to be entered into or issued
by the Company in connection with the transactions contemplated thereby or in
the Registration Statement and the Prospectus and the consummation of the
transactions contemplated in the Underwriting Agreement, the applicable Terms
Agreement, each applicable Indenture, and in the Registration Statement and the
Prospectus (including the issuance and sale of the Underwritten Securities and
the use of the proceeds from the sale of the Underwritten Securities as
described under the caption "Use of Proceeds") and compliance by the Company
with its respective obligations thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, result in any violation of the
provisions of the charter or by-laws of the Company or any of its subsidiaries,
or conflict with or constitute a breach of, or default (except for a conflict,
breach or default that would not result in a Material Adverse Effect) or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets, properties or
operations of the Company or any of its subsidiaries pursuant to, any Agreements
and Instruments, nor will such action result in the violation of any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of their assets,
properties or operations (except for such Repayment Events or violations that
would not result in a Material Adverse Effect). As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its subsidiaries.
(13) To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to which the Company or any
of its subsidiaries thereof is a party or to which the assets, properties or
operations of the Company or any of its subsidiaries thereof is subject, before
or by any court or governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect or which might
reasonably be expected to materially and adversely affect the assets, properties
or operations thereof or the consummation of the transactions contemplated under
the Underwriting
B-3
37
Agreement, the applicable Terms Agreement or any applicable Indenture or the
performance by the Company of its obligations thereunder.
(14) All descriptions in the Prospectus of contracts and other documents
to which the Company or its subsidiaries are a party are accurate in all
material respects. To the best of my knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Prospectus or to be
filed as exhibits to the Registration Statement other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(15) To the best of my knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(16) The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b). To the best of my knowledge, no stop
order suspending the effectiveness of the Registration Statement (or such Rule
462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
(17) The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom and each Trustee's Statement of
Eligibility on Form T-1 (the "Form T-1s"), as to which we express no opinion)
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
(18) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules therein or omitted therefrom,
as to which we 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 1933 Act or the 1934 Act, as applicable,
and the rules and regulations of the Commission thereunder.
(19) No consent, license, approval or authorization of or filing with, or
decree or order of, any court or governmental authority or agency, including the
New Jersey Department of Banking and Insurance and the Pennsylvania Department
of Banking, as applicable, is necessary or required for the due authorization,
execution or delivery by the Company of the Underwriting Agreement or the
applicable Terms Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus, the Underwriting Agreement, such
Terms Agreement or any applicable Indenture other than under the 1933 Act, the
1933 Act Regulations, the 1939 Act and the 1939 Act Regulations, which have
already been made, obtained or rendered, as applicable.
B-4
38
(20) The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an "investment
company" within the meaning of Section 3 of the Investment Company Act of 1940,
as amended (the "1940 Act").
Nothing has come to my attention that would lead us to believe that the
Registration Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom and for
the Form T-1s, as to which we make no statement), at the time the Registration
Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (including the filing of the Company's Annual
Report on Form 10-K with the Commission) became effective or at the date of the
applicable Terms Agreement, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (financial statements and supporting schedules
and other financial data included therein or omitted therefrom, as to which we
make no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
This opinion is limited to the laws of the State of New Jersey and the
federal laws of the United States of America. In rendering such opinion, such
counsel has assumed, with the permission of the Underwriters, that the laws of
the States of New Jersey and New York are the same in all respects relevant to
this opinion. This opinion shall be dated and furnished to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at the
Closing Time, and shall be satisfactory in form and substance to counsel for the
Underwriters and shall expressly state that the Underwriters may rely on such
opinion as if it were addressed to them. Such counsel may rely on matters of
fact (but not as to legal conclusions), to the extent they deem proper, and on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
B-5
39
Exhibit C
FORM OF OPINION OF ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
COMPANY'S COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 5(b)
(1) The information in the Prospectus under "Certain Federal Income Tax
Considerations" and "o" and our opinion set forth under "Certain Federal Income
Tax Considerations" is confirmed.
(2) Each applicable Indenture has been duly qualified under the 1939 Act.
(3) The Underwritten Securities, upon issuance, will be excluded or
exempted under, or beyond the purview of, the Commodity Exchange Act, as amended
(the "Commodity Exchange Act"), and the rules and regulations of the Commodity
Futures Trading Commission under the Commodity Exchange Act (the "Commodity
Exchange Act Regulations").
Nothing has come to our attention that would lead us to believe that the
Registration Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom and for
the Form T-1s, as to which we make no statement), at the time the Registration
Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (including the filing of the Company's Annual
Report on Form 10-K with the Commission) became effective or at the date of the
applicable Terms Agreement, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom, as to
which we make no statement), at the time the Prospectus was issued, at the time
any such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
This opinion is limited to the federal laws of the United States of
America. In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of the State of New Jersey, upon the
opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., General Counsel of the Company of even date
herewith (which opinion shall be dated and furnished to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at the
Closing Time, shall be satisfactory in form and substance to counsel for the
Underwriters and shall expressly state that the Underwriters may rely on such
opinion as if it were addressed to them), provided that ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall
state in their opinion that they believe that they and the Underwriters are
justified in relying upon such opinion, and (B), as to matters of fact (but not
as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
Annex I-1
40
Annex I
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)]
We are independent public accountants with respect to the Company and its
subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations
and:
(i) in our opinion, the audited consolidated financial statements
and the related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim consolidated financial statements of the
Company for the [three- month periods ended _________, 19__ and _________,
19__, the three- and six-month periods ended _________, 19__ and
_________, 19__ and the three- and nine-month periods ended _________,
19__ and _________, 19__, included or incorporated by reference in the
Registration Statement and the Prospectus (collectively, the "10-Q
Financials")] [, a reading of the unaudited interim consolidated financial
statements of the Company for the _____-month periods ended _________,
19___ and _________, 19___, included or incorporated by reference in the
Registration Statement and the Prospectus (the "_____-month financials")]
[, a reading of the latest available unaudited interim consolidated
financial statements of the Company], a reading of the minutes of all
meetings of the stockholders and directors of the Company and its
subsidiaries and committees thereof since [day after end of last audited
period], inquiries of certain officials of the Company and its
subsidiaries responsible for financial and accounting matters, a review of
interim financial information in accordance with standards established by
the American Institute of Certified Public Accountants in Statement on
Auditing Standards No. 71, Interim Financial Information ("SAS 71"), with
respect to the [description of relevant periods] and such other inquiries
and procedures as may be specified in such letter, nothing came to our
attention that caused us to believe that:
(A) the 10-Q Financials included or incorporated by reference
in the Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations applicable
to unaudited financial statements included in Form 10-Q or any
material modifications should be made to the 10-Q Financials
included or incorporated by reference in the Registration Statement
and the Prospectus for them to be in conformity with generally
accepted accounting principles;
[(B) the _____-month financials included or incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
applicable to unaudited interim financial statements
Annex I-2
41
included in registration statements or any material modifications
should be made to the _____-month financials included in the
Registration Statement and the Prospectus for them to be in
conformity with generally accepted accounting principles;]
(C) at [_________, 19___ and at] a specified date not more
than five days prior to the date of the applicable Terms Agreement,
there was any change in the ___________ of the Company and its
subsidiaries, any decrease in the __________ of the Company and its
subsidiaries or any increase in the __________ of the Company and
its subsidiaries, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus, except in each case for
any changes, decreases or increases that the Registration Statement
and the Prospectus disclose have occurred or may occur; or
(D) for the period from [_________, 19__ to _________, 19__
and for the period from] _________, 19__ to a specified date not
more than five days prior to the date of the applicable Terms
Agreement, there was any decrease in _________, __________ or
___________, in each case as compared with the comparable period in
the preceding year, except in each case for any decreases that the
Registration Statement and the Prospectus discloses have occurred or
may occur;
[(iii) based upon the procedures set forth in clause (ii) above and
a reading of the Selected Financial Data included or incorporated by
reference in the Registration Statement and the Prospectus [and a reading
of the financial statements from which such data were derived], nothing
came to our attention that caused us to believe that the Selected
Financial Data included or incorporated by reference in the Registration
Statement and the Prospectus do not comply as to form in all material
respects with the disclosure requirements of Item 301 of Regulation S-K of
the 1933 Act [, that the amounts included in the Selected Financial Data
are not in agreement with the corresponding amounts in the audited
consolidated financial statements for the respective periods or that the
financial statements not included or incorporated by reference in the
Registration Statement and the Prospectus from which certain of such data
were derived are not in conformity with generally accepted accounting
principles;]
(iv) we have compared the information included or incorporated by
reference in the Registration Statement and the Prospectus under selected
captions with the disclosure requirements of Regulation S-K of the 1933
Act and on the basis of limited procedures specified herein, nothing came
to our attention that caused us to believe that such information does not
comply as to form in all material respects with the disclosure
requirements of Items 302, 402 and 503(d), respectively, of Regulation
S-K;
[(v) based upon the procedures set forth in clause (ii) above, a
reading of the latest available unaudited financial statements of the
Company that have not been included or incorporated by reference in the
Registration Statement and the Prospectus and a review of such financial
statements in accordance with SAS 71, nothing came to our attention that
caused us to believe that the unaudited amounts for ________ for the
Annex I-3
42
[most recent period] do not agree with the amounts set forth in the
unaudited consolidated financial statements for those periods or that such
unaudited amounts were not determined on a basis substantially consistent
with that of the corresponding amounts in the audited consolidated
financial statements;]
[(vi) we are unable to and do not express any opinion on the [Pro
Forma Combined Balance Sheet and Statement of Operations] (collectively,
the "Pro Forma Statements") included or incorporated by reference in the
Registration Statement and the Prospectus or on the pro forma adjustments
applied to the historical amounts included in the Pro Forma Statements;
however, for purposes of this letter we have:
(A) read the Pro Forma Statements;
(B) performed [an audit] [a review in accordance with SAS 71]
of the financial statements to which the pro forma adjustments were
applied;
(C) made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters about the
basis for their determination of the pro forma adjustments and
whether the Pro Forma Statements comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Statements; and
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe
that the Pro Forma Statements included or incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those statements;]
and
(vii) in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, which are specified herein, and have
compared certain of such items with, and have found such items to be in
agreement with, the accounting and financial records of the Company.
Annex I-4