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EXHIBIT 1.1
[FORM OF PREFERRED SECURITIES UNDERWRITING AGREEMENT]
PWG CAPITAL TRUST [ ]
[ ] Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
Guaranteed by
▇▇▇▇▇ ▇▇▇▇▇▇ GROUP INC.
UNDERWRITING AGREEMENT
_________, ____
PAINEWEBBER INCORPORATED
as Representative of the several Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
PWG Capital Trust [ ] (the "Trust"), a business trust organized under the
Delaware Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. C. ss. 3801 et seq.),
proposes to issue and sell an aggregate of [ ] shares of its [ ]% preferred
trust securities (the "Firm Securities"). The Trust has also agreed to grant to
you and the other Underwriters (as defined below) an option (the "Option") to
purchase up to an additional [ ] shares of its [ ]% preferred trust securities
(the "Option Securities") on the terms and for the purposes set forth in Section
1(b). The Firm Securities and the Option Securities are hereinafter collectively
referred to as the "Preferred Securities." The Preferred Securities will be sold
to you and to the other underwriters named in Schedule I (collectively, the
"Underwriters") for whom you are acting as representative (the
"Representative"). The Preferred Securities will be guaranteed, to the extent
set forth in the Prospectus (as defined in Section 3(a) hereof), by ▇▇▇▇▇ ▇▇▇▇▇▇
Group Inc., a Delaware corporation (the "Company"). Capitalized terms used but
not separately defined herein are defined in the Prospectus and used herein as
so defined.
It is understood that substantially contemporaneously with the offering
and sale of the Firm Securities to the Underwriters contemplated hereby, (i) the
Trust, its trustees (the "Trustees") and the Company shall take all necessary
action to adopt an Amended and Restated Declaration of Trust in substantially
the form of the Form of Amended and Restated Declaration of Trust filed as
Exhibit 4.9 to the registration statement No. 333-______ (as defined in Section
3(a) hereof) (as so amended and restated, the "Declaration"), pursuant to which
the Trust shall (x) issue and sell the Preferred Securities to the Underwriters
pursuant hereto and (y) issue [ ] shares of its [ ]% common trust securities
(and up to an additional [ ] shares of such securities in connection with the
issuance and sale of the Option Securities) (the "Common Securities" and,
together with the Preferred Securities, the "Trust Securities")
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to the Company, in each case with such rights and obligations as shall be set
forth in the Declaration, (ii) the Company and The Chase Manhattan Bank, as
trustee (the "Debt Trustee"), shall enter into a Supplemental Indenture
substantially in the form filed as Exhibit 4.11 to the registration statement
No.333-____ (the "Supplemental Indenture" and, together with the Indenture dated
as of December 9, 1996 between the Company and The Chase Manhattan Bank, as
Trustee, hereinafter referred to as the "Indenture") providing for the issuance
of up to $[ ] in aggregate principal amount of the Company's [ ]% Junior
Subordinated Debentures due 20___ (the "Debentures"), (iii) the Company shall
sell such Debentures to the Trust in conjunction with the consummation of the
sale of the Preferred Securities to the Underwriters contemplated hereby and
(iv) the Company and The Chase Manhattan Bank, as Guarantee Trustee (the
"Guarantee Trustee"), shall enter into a Guarantee Agreement in substantially
the form of the Form of Guarantee Agreement with respect to the Preferred
Securities filed as Exhibit 4.13 to the registration statement No. 333-____ (the
"Guarantee") for the benefit of holders from time to time of the Preferred
Securities. The Preferred Securities together with the Guarantee are
collectively hereinafter called the "Offered Securities".
The Company confirms as follows its agreements with the Representative and
the several other Underwriters.
1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties and
agreements of the Trust and the Company herein contained and subject to all the
terms and conditions of this Agreement, the Trust agrees to sell to each
Underwriter, and each Underwriter, severally and not jointly, agrees to purchase
from the Trust, at a purchase price of $25.00 per Preferred Security plus
accrued and unpaid distributions, if any, on the Firm Securities as of the
Closing Date (as defined below), the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I, plus such additional number
of Firm Securities which such Underwriter may become obligated to purchase
pursuant to Section 8 hereof.
(b) Subject to all the terms and conditions of this Agreement,
the Trust grants the Option to the several Underwriters to purchase, severally
and not jointly, up to [ ] Option Securities from the Trust at the same purchase
price per Preferred Security as the Underwriters shall pay for the Firm
Securities plus any accrued and unpaid distributions on the Option Securities as
of the Option Closing Date (as defined below). The Option may be exercised only
to cover over-allotments in the sale of the Firm Securities by the Underwriters
and may be exercised in whole or in part at any time (but not more than once) on
or before the 30th day after the date hereof, upon written or telegraphic notice
(the "Option Securities Notice") by the Representative to the Trust and the
Company no later than 12:00 noon, New York City time, at least two and no more
than five business days before the date specified for closing in the Option
Securities Notice (the "Option Closing Date") setting forth the aggregate number
of Option Securities to be purchased and the time and date for such purchase. On
the Option Closing Date, the Trust will issue and sell to the Underwriters the
number of Option Securities set forth in the Option Securities Notice, and each
Underwriter will purchase such percentage of the Option Securities as is equal
to the percentage of Firm Securities that such Underwriter is purchasing, as
adjusted by the Representative in such manner as they deem advisable to avoid
fractional Preferred Securities.
(c) As compensation to the Underwriters for their commitment
hereunder, and in view of the fact that the proceeds of the sale of the
Preferred Securities will be used by the Trust to purchase the Debentures of the
Company, the Company hereby agrees to pay at the Closing Date and the Option
Closing Date, if applicable, for the account of the several Underwriters, an
amount equal to $25.00 per Preferred Security.
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2. Delivery and Payment. Delivery of the Firm Securities shall be
made to the Representative for the accounts of the Underwriters at the offices
of PaineWebber Incorporated, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, against payment of the purchase price by credit of immediately available
funds to the account of the Trust with The Depository Trust Company. Such
payments shall be made at 10:00 a.m., New York City time, on the third business
day after the date on which the first bona fide offering of the Firm Securities
to the public is made by the Underwriters or at such time on such other date,
not later than seven business days after such date, as may be agreed upon by the
Trust and the Representative (such date is hereinafter referred to as the
"Closing Date").
To the extent the Option is exercised, delivery of the Option
Securities against payment by the Underwriters (in the manner specified above)
will take place at the time and date (which may be the Closing Date) specified
in the Option Securities Notice.
The cost of original issue tax stamps, if any, in connection with
the issuance and delivery of the Firm Securities and Option Securities by the
Trust to the respective Underwriters shall be borne by the Trust. The Trust will
pay and save each Underwriter and any subsequent holder of the Preferred
Securities harmless from any and all liabilities with respect to or resulting
from any failure or delay in paying Federal and state stamp and other transfer
taxes, if any, which may be payable or determined to be payable in connection
with the original issuance or sale to such Underwriter of the Firm Securities
and Option Securities.
At the Closing Date and the Option Closing Date, if any, the Company
will pay, or cause to be paid, the commission payable at such time to the
Underwriters under Section 1(c) hereof by wire transfer of immediately available
funds to a bank account (or bank accounts) designated by the Representative.
3. Representations and Warranties of the Trust and the Company. Each
of the Trust and the Company, jointly and severally, represents and warrants to,
and agrees with, the several Underwriters that:
(a) The Trust and the Company meet the requirements for use
of Form S-3 and a registration statements (Registration Nos. 333-______ and
333-13831) on Form S-3 relating to the Offered Securities, including a
preliminary prospectus relating to the Offered Securities and such amendments to
such registration statements as may have been required to the date of this
Agreement, have been prepared by the Company and the Trust under the provisions
of the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (collectively referred to as the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, and have been
filed with the Commission. Copies of such registration statements and amendments
and of each related preliminary prospectus have been delivered to the
Representative. The Company will next file with the Commission a final
prospectus relating to the Offered Securities in accordance with Rule 415 ("Rule
415") and Rule 424(b)(2) or (5) of the Rules and Regulations. As filed, such
final prospectus shall contain all such required information, with respect to
the Offered Securities and the offering thereof and, except to the extent the
Representative shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the time (the
"Execution Time") this Agreement is entered into or, to the extent not completed
at the Execution Time, shall contain only such specific additional information
and other changes as the Company has advised you, prior to the Execution Time,
will be included or made therein. If the Registration Statements (as defined
below) contain the undertaking specified by Regulation S-K Item 512(a), the
Registration Statements, at the Execution Time, meet the requirements set forth
in Rule 415(a)(1)(x). The term "preliminary prospectus" as used herein means any
preliminary prospectus (including the supplement thereto) relating to the
Offered
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Securities referred to above and any preliminary prospectus (including the
supplement thereto) relating to the Offered Securities included in the
Registration Statements at the Effective Date that omits information pursuant to
Rule 430A ("Rule 430A") of the Rules and Regulations. The term "Registration
Statements" mean the registration statements referred to above as amended at the
time each became effective (the "Effective Date") and, in the event any
post-effective amendment thereto becomes effective prior to the Closing Date
shall also mean such registration statements as so amended, including financial
statements and all exhibits and any information deemed to be included by Rule
430A of the Rules and Regulations after the Execution Time. The term
"Prospectus" means the prospectus (including the supplement thereto) relating to
the Offered Securities that is first filed with the Commission pursuant to Rule
424(b) ("Rule 424(b)") of the Rules and Regulations after the Execution Time or,
if no such filing is required, the form of final prospectus (including the
supplement thereto) relating to the Offered Securities included in the
Registration Statements at the Effective Date. Any reference herein to the
Registration Statements, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or before the Effective Date or
the date of such preliminary prospectus or the Prospectus, as the case may be.
Any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statements, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date, or the date of any preliminary
prospectus or the Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
(b) On the Effective Date, at all times subsequent to and
including the Closing Date and, if later, the Option Closing Date and when any
post-effective amendment to the Registration Statements becomes effective, the
Registration Statements (as amended or supplemented if the Company and the Trust
shall have filed with the Commission any amendment or supplement thereto),
including the financial statements included or incorporated by reference in the
Prospectus, did or will comply with the applicable provisions of the Act, the
Exchange Act, the rules and regulations thereunder (the "Exchange Act Rules and
Regulations"), the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), the rules and regulations thereunder (the "Trust Indenture Act Rules and
Regulations") and the Rules and Regulations and will contain all statements
required to be stated therein in accordance with the Act, the Exchange Act, the
Exchange Act Rules and Regulations and the Rules and Regulations. On the date
the Prospectus is first filed with the Commission pursuant to Rule 424(b) (if
required), at all times subsequent to and including the Closing Date and, if
later, the Option Closing Date and when any amendment or supplement to the
Prospectus is filed with the Commission, the Prospectus (as amended or
supplemented if the Company and the Trust shall have filed with the Commission
any amendment or supplement thereto), including the financial statements
included or incorporated by reference in the Prospectus, will comply with the
applicable provisions of the Act, the Exchange Act, the Trust Indenture Act, the
Exchange Act Rules and Regulations, the Trust Indenture Rules and Regulations
and the Rules and Regulations and will contain all statements required to be
stated therein in accordance with the Act, the Exchange Act, the Exchange Act
Rules and Regulations and the Rules and Regulations. On the Effective Date and
when any post-effective amendment to the Registration Statements becomes
effective, no part of the Registration Statements or any such amendment did or
will contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein not misleading. At the Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b), did not, and on the
date the Prospectus is filed (if required) with the Commission pursuant to Rule
424(b) and on the Closing Date, and, if later, the Option Closing Date, the
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The foregoing
representations and warranties in this Section 3(b) do not apply to any
statements or omission made in reliance on and in conformity with information
relating to any Underwriter furnished in writing to the Company by the
Representative specifically for inclusion in the Registration Statements or the
Prospectus or any amendment or supplement thereto. The Company has not
distributed any offering material in connection with the
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offering or sale of the Offered Securities other than the Registration
Statements, the preliminary prospectus, the Prospectus or any other materials,
if any, permitted by the Act. On the Effective Date, the date the Prospectus is
first filed with the Commission pursuant to Rule 424(b) (if required), and at
all subsequent times to and including the Closing Date or, if later, the Option
Closing Date, the Indenture will comply with all applicable provisions of the
Trust Indenture Act and the Trust Indenture Act Rules and Regulations.
(c) The documents which are incorporated by reference in the
preliminary prospectus and the Prospectus or from which information is so
incorporated by reference, at the time they became effective or were filed with
the Commission, as the case may be, complied in all material respects with the
requirements of the Act and the Exchange Act, as applicable, the Exchange Act
Rules and Regulations and the Rules and Regulations and any documents so filed
and incorporated by reference subsequent to the Effective Date shall, when they
are filed with the Commission, conform in all material respects with the
requirements of the Act and the Exchange Act, as applicable, the Exchange Act
Rules and Regulations and the Rules and Regulations.
(d) The Company and each of the Company's "significant
subsidiaries" as such term is defined in Rule 1-02 of Regulation S-X under the
Act (collectively, the "Subsidiaries") is, and at the Closing Date will be, a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation. The Company and each of its Subsidiaries
has, and at the Closing Date will have, full power and authority to conduct all
the activities conducted by it, to own or lease all the assets owned or leased
by it and to conduct its business as described in the Registration Statements
and the Prospectus; except where the failure to have such power and authority
would not have a Material Adverse Effect (as defined below). The Company and
each of its Subsidiaries is, and at the Closing Date will be, duly licensed or
qualified to do business and in good standing as a foreign corporation in all
jurisdictions in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such licensing or
qualification necessary except for such failures to be licensed or qualified as
would not materially and adversely affect the business, properties, business
prospects, condition (financial or otherwise) or results of operation of the
Trust or of the Company and its subsidiaries considered as one enterprise (a
"Material Adverse Effect"). All of the outstanding shares of capital stock of
the Subsidiaries have been duly authorized and validly issued and are fully paid
and non-assessable and are owned by the Company free and clear of all liens,
encumbrances and claims (collectively, "Liens") whatsoever except for such Liens
as would not have a Material Adverse Effect. Complete and correct copies of the
certificate of incorporation and of the by-laws of the Company and each of its
Subsidiaries and all amendments thereto have been delivered to the
Representative, and no changes therein will be made subsequent to the date
hereof and prior to the Closing Date or, if later, the Option Closing Date.
(e) The descriptions of the Preferred Securities, the Common
Securities, the Guarantee and the Debentures in the Registration Statements at
the Effective Date are, and the descriptions in the Prospectus at the date it is
first filed under Rule 424(b) and in the Registration Statements and the
Prospectus at the Closing Date will be, complete and accurate in all material
respects. The Indenture conforms to the description thereof contained in the
Registration Statements and the Prospectus in all material respects.
(f) The financial statements and schedules included or
incorporated by reference in the Registration Statements or the Prospectus, and
any amendment or supplement thereto, present fairly the consolidated financial
condition of the Company as of the respective dates thereof and the consolidated
results of operations and cash flows of the Company for the respective periods
covered thereby, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the entire period involved, except as
otherwise disclosed in the Prospectus. No other financial
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statements or schedules of the Company are required by the Act, the Exchange Act
or the Rules and Regulations to be included in the Registration Statements or
the Prospectus. Ernst & Young LLP (the "Accountants"), who have reported on such
financial statements and schedules, are independent accountants with respect to
the Company as required by the Act and the Rules and Regulations. The statements
included in the Registration Statements with respect to the Accountants pursuant
to Rule 509 of Regulation S-K of the Rules and Regulations are true and correct
in all material respects.
(g) Each of the Trust and the Company maintains a system of
internal accountings control sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(h) Subsequent to the respective dates as of which information
is given in the Registration Statements and the Prospectus and prior to the
Closing Date, except as set forth in or contemplated by the Registration
Statements or the Prospectus, (i) there has not been and will not have been any
change in the capitalization of the Trust or material change in the
capitalization of the Company, or any material adverse change in the business,
properties, business prospects, condition (financial or otherwise) or results of
operations of the Trust or the Company and its subsidiaries considered as one
enterprise, arising for any reason whatsoever, (ii) neither the Trust nor the
Company nor any of its Subsidiaries has incurred nor will incur any material
liabilities or obligations, direct or contingent, nor have they entered into nor
will they enter into any material transactions other than pursuant to this
Agreement and the transactions referred to herein or, in the case of the Company
and its Subsidiaries, in the ordinary course of business, and (iii) the Trust
has not and will not have paid or declared any distributions of any kind on any
class of its securities.
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act; all filings required
under the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made; under the Delaware
Act and the Declaration, the Trust has the business trust power and authority to
(x) own property and conduct its business, all as described in the Prospectus,
(y) enter into and perform its obligations under this Agreement, and (z) issue
and perform its obligations under the Preferred Securities and the Common
Securities and is not required to be authorized to do business in any
jurisdiction other than Delaware; the Trust is not a party to or otherwise bound
by any agreement other than those described in the Prospectus; the Trust does
not have any consolidated or unconsolidated subsidiaries; and the Trust is and
will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(j) The Declaration has been duly and validly authorized by
the Company and, when executed and delivered by the Company and the Regular
Trustees (as defined in the Declaration) at the Closing Date, and assuming due
authorization, execution and delivery thereof by the Property Trustee and the
Delaware Trustee (as such terms are defined in the Declaration), will be the
valid and binding obligation of the Company and the Regular Trustees,
enforceable against the Company and the Regular Trustees in accordance with its
terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights generally
from time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding
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in equity or at law) and conforms to the description thereof contained in the
Prospectus; and, at the Closing Date, the Declaration will have been duly
qualified under the Trust Indenture Act.
(k) The execution and delivery by the Trust and the Company of
this Agreement and the performance by the Trust and the Company of their
respective obligations hereunder, have been duly authorized by all necessary
business trust action on the part of the Trust and corporate action on the part
of the Company; and this Agreement has been duly executed and delivered by the
Trust and the Company.
(l) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
payment therefor in accordance with the Declaration, will be validly issued and
fully paid and undivided beneficial interests in the assets of the Trust; and
under the Delaware Act and the Declaration, the issuance of the Common
Securities will not be subject to preemptive or other similar rights.
(m) The Preferred Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust in accordance with the
Declaration to the Underwriters and paid for in accordance with this Agreement,
will be validly issued, and fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will be entitled to the benefits of the
Declaration; provided, however, the holders of the Preferred Securities may be
obligated, pursuant to the Declaration, (i) to provide indemnity and/or security
in connection with and pay taxes or governmental charges arising from transfers
or exchanges of Preferred Securities and the issuance of replacement Preferred
Securities certificates, and (ii) to provide security or indemnity in connection
with requests of or directions to the Property Trustee (as defined in the
Declaration) to exercise its rights and powers under the Declaration. The
holders of the Preferred Securities, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability as that extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware; under the Delaware Act and the
Declaration, the issuance of the Preferred Securities will not be subject to
preemptive or other similar rights; and the Preferred Securities will conform to
the description thereof in the Prospectus.
(n) At the Closing Date and the Option Closing Date, all of
the issued and outstanding Common Securities of the Trust will be directly or
indirectly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity other than any encumbrances
created by the terms of such Common Securities in the Declaration or by Section
4.04 of the Supplemental Indenture relating to the Debentures.
(o) At the Closing Date and the Option Closing Date, the
Property Trustee will be the record holder of the Debentures and no security
interest, mortgage, pledge, lien, encumbrance, claim or equity will be noted
thereon or on the Debenture register maintained by or on behalf of the Company.
(p) The Guarantee has been duly and validly authorized by the
Company and, when executed and delivered by the Company at the Closing Date,
will constitute a valid and legally binding agreement of the Company enforceable
in accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether considered in
a proceeding in equity or at law); at the Closing Date, the Guarantee will have
been duly qualified under the Trust Indenture Act; and the Guarantee will
conform to the description thereof contained in the Prospectus.
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(q) The Indenture has been duly and validly authorized by the
Company and, when executed and delivered by the Company at the Closing Date and,
assuming due authorization, execution and delivery by the Debt Trustee, at such
Closing Date will constitute a valid and legally binding agreement of the
Company enforceable in accordance with its terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, regardless
of whether considered in a proceeding in equity or at law); at the Closing Date,
the Indenture will have been duly qualified under the Trust Indenture Act; and
the Indenture will conform to the description thereof contained in the
Prospectus.
(r) The Debentures have been duly and validly authorized by
the Company and, when executed and authenticated in accordance with the terms of
the Indenture and delivered to and paid for by the Trust in accordance with the
Declaration, will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, regardless
of whether considered in a proceeding in equity or at law); and the Debentures
will be in the form contemplated by, and entitled to the benefits of, the
Indenture and will conform to the description thereof contained in the
Prospectus.
(s) Neither the Commission nor the Blue Sky or securities
authority of any jurisdiction has issued an order (a "Stop Order") suspending
the effectiveness of the Registration Statements, preventing or suspending the
use of any preliminary prospectus, the Prospectus, the Registration Statements
or any amendment or supplement thereto, refusing to permit the effectiveness of
the Registration Statements, suspending the registration or qualification of the
Offered Securities, nor have any such authorities instituted or, to the
knowledge of the Trust or the Company, threatened to institute any proceedings
with respect to a Stop Order in any jurisdiction in which the Offered Securities
are to be sold or in which the Offered Securities may be issued, nor, with
respect to accuracy on the Closing Date, has there been any Stop Order
instituted or, to the knowledge of the Trust or the Company, threatened on or
after the effective date of the Registration Statements in any jurisdiction.
(t) The execution, delivery and performance by the Company of
this Agreement, the Indenture, the Debentures, the Declaration and the Guarantee
and the execution, delivery and performance by the Trust of this Agreement and
the Trust Securities, the performance by the Trust of the Declaration and the
consummation of the transactions contemplated hereby and thereby and compliance
by the Company and the Trust, as the case may be, with the terms hereof and
thereof and the application of the net proceeds from the offering and sale of
the Trust Securities to be sold by the Trust and the Debentures to be sold by
the Company in the manner set forth in the Prospectus under "Use of Proceeds"
will not result in the creation or imposition of any lien, charge or encumbrance
upon any of the assets of the Trust (other than the creation of a lien on the
Debentures in favor of the holders of the Trust Securities as provided in the
Declaration) or the Company or any of the Subsidiaries pursuant to the terms or
provisions of, or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give any other party a right to
terminate any of its obligations under, or result in the acceleration of any
obligation under, the Declaration, the certificate of incorporation or by-laws
of the Company or any of the Subsidiaries, any contract or other agreement to
which the Trust or the Company or any of the Subsidiaries is a party or by which
the Trust or the Company or any of the Subsidiaries or any of their respective
properties is bound or affected, or violate or conflict with any judgment,
ruling, decree, order, statute, rule or regulation of any court or governmental
agency or body applicable to the
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business or properties of the Trust or the Company or any of the Subsidiaries
except for any of the foregoing which would not have a Material Adverse Effect.
(u) No holder of securities of the Company or the Trust has
rights to the registration of any securities of the Company or the Trust because
of the filing of the Registration Statements.
(v) Neither the Trust nor the Company is an "investment
company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
(w) Except as set forth in the Registration Statements and the
Prospectus, there are no actions, suits or proceedings pending or threatened
against or affecting the Trust or the Company or any of its Subsidiaries or any
of their respective officers in their capacity as such, before or by any Federal
or state court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, wherein an unfavorable ruling, decision
or finding would reasonably be expected to have a Material Adverse Effect.
(x) Each of the Trust and the Company and each of its
Subsidiaries has, and at the Closing Date will have, (i) all governmental
licenses, permits, consents, orders, approvals and other authorizations
necessary to carry on its business as contemplated in the Prospectus, (ii)
complied in all respects with all laws, regulations and orders applicable to it
or its business and (iii) performed all obligations required to be performed by
it, and is not, and at the Closing Date will not be, in default, under any
indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement, lease, contract or other agreement or
instrument (collectively, a "contract or other agreement") to which it is a
party or by which its property is bound or affected, except in the case of (i),
(ii) or (iii) above, for such failures to possess, comply or perform as would
not have a Material Adverse Effect. To the best knowledge of each of the Trust
and the Company and each of its Subsidiaries, no other party under any contract
or other agreement to which it is a party is in material default thereunder.
None of the Trust, the Company nor any of its Subsidiaries is, nor at the
Closing Date will any of them be, in violation of its respective Declaration,
charter or by-laws.
(y) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is required
in connection with the authorization, issuance, transfer, sale or delivery of
the Trust Securities by the Trust or the Guarantee and the Debentures by the
Company, in connection with the execution, delivery and performance of this
Agreement by the Trust and the Company or in connection with the taking by the
Trust or the Company of any action contemplated hereby and in the Indenture, the
Guarantee, the Preferred Securities and the Common Securities, except such as
have been obtained under the Act, the Exchange Act, the Trust Indenture Act and
the Exchange Act Rules and Regulations, the Trust Indenture Act Rules and
Regulations and the Rules and Regulations and such as may be required under
state securities or Blue Sky laws or the by-laws and rules of the National
Association of Securities Dealers, Inc. (the "NASD") in connection with the
purchase and distribution by the Underwriters of the Preferred Securities.
(z) The Company and each of its Subsidiaries has valid,
subsisting and enforceable leases for the properties described in the
Registration Statements and the Prospectus as leased by it, with such exceptions
as are not material and do not materially interfere with the use made and
proposed to be made of such properties by the Company and such Subsidiaries.
(aa) There is no document or contract of a character required
to be described in the Registration Statements or the Prospectus or to be filed
as an exhibit to the Registration Statements
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which is not described or filed as required. All such contracts to which the
Trust or the Company or any Subsidiary is a party have been duly authorized,
executed and delivered by the Trust or the Company or such Subsidiary,
constitute valid and binding agreements of the Trust or the Company or such
Subsidiary and are enforceable against the Trust or the Company or such
Subsidiary in accordance with the terms thereof (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, regardless
of whether considered in a proceeding in equity or at law).
(bb) No statement, representation, warranty or covenant made
by the Trust or the Company in this Agreement, the Indenture or the Declaration
or made in any certificate or document required by this Agreement to be
delivered to the Representative was or will be, when made, inaccurate, untrue or
incorrect in any material respect.
(cc) Neither the Company nor the Trust nor any of their
respective directors, officers, trustees or controlling persons has taken,
directly or indirectly, any action intended, or which might reasonably be
expected, to cause or result, under the Act or otherwise, in, or which has
constituted, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Preferred Securities.
(dd) Neither the Trust, the Company nor any of its
Subsidiaries is involved in any material labor dispute nor, to the knowledge of
the Trust or the Company, is any such dispute threatened.
(ee) The Company and its Subsidiaries own, or are licensed or
otherwise have the full right to use, all material trademarks and trade names
which are used in or necessary for the conduct of their respective businesses as
described in the Prospectus. No claims have been asserted by any person to the
use of any such trademarks or trade names or challenging or questioning the
validity or effectiveness of any such trademark or trade name except such claims
as would not reasonably be expected to have a Material Adverse Effect. The use,
in connection with the business and operations of the Company and its
Subsidiaries of such trademarks and trade names does not, to the Company's
knowledge, infringe on the rights of any person except such infringements as
would not reasonably be expected to have a Material Adverse Effect.
(ff) Neither the Trust, the Company nor any of its
Subsidiaries nor, to the Trust's or the Company's knowledge, any employee or
agent of the Trust, the Company or any Subsidiary has made any payment of funds
of the Trust, the Company or any Subsidiary or received or retained any funds in
violation of any law, rule or regulation or of a character required to be
disclosed in the Prospectus.
4. Agreements of the Trust and the Company. The Trust and the
Company, jointly and severally, agree with the several Underwriters as follows:
(a) The Company and the Trust will not, either prior to the
Effective Date or thereafter during such period as a prospectus is required by
law to be delivered in connection with sales of the Offered Securities by an
Underwriter or dealer, file any amendment or supplement to the Registration
Statements or the Prospectus, unless a copy thereof shall first have been
submitted to the Representative within a reasonable period of time prior to the
filing thereof and the Representative shall not have objected thereto in good
faith.
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(b) The Trust and the Company will use their best efforts to
cause the Registration Statements to become effective (if not yet effective),
and will notify the Representative promptly, and will confirm such advice in
writing, (1) when the Registration Statements have become effective (if not yet
effective) and when any post-effective amendment thereto becomes effective, (2)
of any request by the Commission for amendments or supplements to the
Registration Statements or the Prospectus or for additional information, (3) of
the issuance by the Commission of any Stop Order suspending the effectiveness of
the Registration Statements or the initiation of any proceedings for that
purpose or the threat thereof, (4) of the happening of any event during the
period mentioned in the second sentence of Section 4(e) that in the judgment of
the Trust or the Company makes any statement made in the Registration Statements
or the Prospectus untrue or that requires the making of any changes in the
Registration Statements or the Prospectus in order to make the statements
therein, in the light of the circumstances in which they are made, not
misleading, and (5) of receipt by the Trust or the Company or any representative
or attorney of the Trust or the Company of any other communication from the
Commission relating to the Trust or the Company, the Registration Statements,
any preliminary prospectus or the Prospectus. If at any time the Commission
shall issue any order suspending the effectiveness of the Registration
Statements, the Trust and the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible moment. The Trust
and the Company will use their best efforts to comply with the provisions of and
make all requisite filings with the Commission pursuant to Rule 430A, if any,
and to notify the Representative promptly of all such filings.
(c) The Trust or the Company will promptly furnish to the
Representative, without charge, two conformed copies of the Registration
Statements and of any post-effective amendment thereto, including financial
statements and schedules, and all exhibits thereto (including any document filed
under the Exchange Act and deemed to be incorporated by reference into the
Prospectus) and will furnish to the Representative, without charge, for
transmittal to each of the other Underwriters, copies of the Registration
Statements and any post-effective amendment thereto, including financial
statements and schedules.
(d) The Trust and the Company will comply with all the
provisions of any undertakings contained in the Registration Statements.
(e) On the Effective Date, and thereafter from time to time,
the Company will deliver to each of the Underwriters, without charge, as many
copies of the preliminary prospectus and Prospectus and any amendment or
supplement thereto, as the Representative may reasonably request. The Company
and the Trust consent to the use of the preliminary prospectus or Prospectus and
any amendment or supplement thereto, as the case may be, by the several
Underwriters and by all dealers to whom the Offered Securities may be sold, both
in connection with the offering or sale of the Offered Securities and for any
period of time thereafter during which the Prospectus is required by law to be
delivered in connection therewith. If during such period of time any event shall
occur which in the judgment of the Company or counsel to the Underwriters should
be set forth in the Prospectus in order to make any statement therein, in the
light of the circumstances under which it was made, not misleading in any
material respect, or if it is necessary to supplement or amend the Prospectus to
comply with law, the Company will forthwith prepare and duly file with the
Commission an appropriate supplement or amendment thereto, and will deliver to
each of the Underwriters, without charge, such number of copies thereof as the
Representative may reasonably request. The Company shall not file any document
under the Exchange Act before the termination of the offering of the Offered
Securities by the Underwriters if such document would be deemed to be
incorporated by reference into the Prospectus which is not approved by the
Representative after reasonable notice thereof.
(f) Prior to any public offering of the Offered Securities by
the Underwriters, the Trust and the Company will cooperate with the
Representative and counsel to the
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Underwriters in connection with the registration or qualification of the Offered
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative may request; provided, that in no event
shall the Trust or the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where it is not now
so subject.
(g) During the period of five years commencing on the
Effective Date, the Company will furnish to the Representative and each other
Underwriter who may so request copies of such financial statements and other
periodic and special reports as the Company may from time to time distribute
generally to the holders of any class of its capital stock, and will furnish to
the Representative and each Underwriter who may so request a copy of each annual
or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of
the Preferred Securities and the Representative as soon as may be practicable
but in no event later than the last day of the fifteenth full calendar month
following the calendar quarter in which the Effective Date falls, an earnings
statement (which need not be audited but shall be in reasonable detail) for a
period of 12 months ended commencing after the Effective Date, and satisfying
the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and
Regulations).
(i) The Trust will apply the net proceeds from the offering
and sale of the Preferred Securities in the manner set forth in the Prospectus
under the caption "Use of Proceeds."
(j) During a period of 30 days from the date hereof, neither
the Trust nor the Company will, without the Representative's prior written
consent, directly or indirectly, sell, offer to sell, contract to sell, grant
any option for the sale of, or otherwise dispose of, any Preferred Securities,
any security convertible into or exchangeable into or exercisable for, Preferred
Securities or Debentures or any debt securities substantially similar to the
Debentures or any equity securities substantially similar to the Preferred
Securities, except for the Debentures and Preferred Securities offered hereby.
For the avoidance of doubt, it is acknowledged that debt securities
substantially similar to the Debentures would be debt securities that have
substantially the same rate, maturity and other provisions as the Debentures.
(k) The Trust and the Company will use every reasonable effort
to effect and maintain the listing of the Preferred Securities on the New York
Stock Exchange (the "NYSE") and to file with the NYSE all documents and notices
required by the NYSE of issuers that have securities quoted on such exchange.
(l) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay
or cause to be paid or reimburse if paid by the Representative all costs and
expenses incident to the performance of the obligations of the Trust and the
Company under this Agreement, including but not limited to costs and expenses of
or relating to (1) the preparation, printing and filing of the Registration
Statements and exhibits to it, each preliminary prospectus, the Prospectus, any
amendment or supplement to the Registration Statements or the Prospectus and the
Indenture, (2) the preparation and delivery of certificates representing the
Trust Securities, (3) the printing of this Agreement, the Agreement Among
Underwriters, any Dealer Agreements and any Underwriters' Questionnaire, (4)
furnishing (including cost of shipping, mailing and courier) such copies of the
Registration Statements, the Prospectus and any preliminary prospectus, and all
amendments and supplements thereto, as may be requested for use in connection
with the offering and sale of the Offered Securities by the Underwriters or by
dealers to whom Preferred Securities may be sold, (5) the listing of the
Preferred Securities on the NYSE, (6) any filings required to be made by the
Underwriters with the NASD, and the fees, disbursements and other charges of
counsel for the
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Underwriters in connection therewith, (7) the registration or qualification of
the Offered Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions designated pursuant to Section 4(f), including the fees,
disbursements and other charges of counsel to the Underwriters in connection
therewith, and the preparation and printing of preliminary, supplemental and
final Blue Sky memoranda, (8) counsel to the Company and the Trust, (9) the
transfer agent and registrar for the Trust Securities, (10) the rating of the
Debentures by one or more rating agencies, (11) the Debt Trustee under the
Indenture, the Guarantee Trustee under the Guarantee, the Property Trustee, the
Delaware Trustee and the Regular Trustees under the Declaration and any agents
of such trustees and the fees, disbursements and other charges of counsel for
such trustees in connection with the Indenture, the Guarantee, the Declaration
and the Debentures and (12) the Accountants.
(m) If this Agreement shall be terminated by the Company or
the Trust pursuant to any of the provisions hereof (other than pursuant to
Section 8) or if for any reason the Company or the Trust shall be unable to
perform its obligations hereunder, the Company or the Trust will reimburse the
several Underwriters for all out-of-pocket expenses (including the fees,
disbursements and other charges of counsel to the Underwriters) reasonably
incurred by them in connection herewith.
(n) The Company and the Trust will not at any time, directly
or indirectly, take any action intended, or which might reasonably be expected,
to cause or result in, or which will constitute, stabilization of the price of
the Preferred Securities to facilitate the sale or resale of any of the
Preferred Securities.
(o) The Company will not claim the benefit of any usury law
against any holders of Debentures or Preferred Securities.
5. Conditions of Obligations of the Underwriters. The obligations of
each Underwriter hereunder are subject to the following conditions:
(a) Notification that the Registration Statements have become
effective shall be or have been received by the Representative not later than
5:00 P.M., New York City time, on the date of this Agreement or at such later
date and time as shall be consented to in writing by the Representative and all
filings required by Rule 424 of the Rules and Regulations and Rule 430A shall
have been made.
(b) (i) No Stop Order suspending the effectiveness of the
Registration Statements shall have been issued and no proceeding for that
purpose shall be pending or threatened by the Commission; (ii) no order
suspending the effectiveness of the Registration Statements or the qualification
or registration of the Offered Securities under the securities or Blue Sky laws
of any jurisdiction shall be in effect and no proceeding for such purpose shall
be pending before or threatened or contemplated by the Commission or the
authorities of any such jurisdiction, (iii) any request for additional
information on the part of the staff of the Commission or any such authorities
shall have been complied with to the satisfaction of the staff of the Commission
or such authorities and (iv) after the date hereof no amendment or supplement to
the Registration Statements or the Prospectus shall have been filed unless a
copy thereof was first submitted to the Representative and the Representative
did not object thereto in good faith, and the Representative shall have received
a certificate dated the Closing Date and signed by the chief executive officer
or a vice president and the principal financial or accounting officer of the
Company (who may, as to proceedings threatened, rely upon the best of their
information and belief), to the effect of clauses (i), (ii) and (iii).
(c) Since the respective dates as of which information is
given in the Registration Statements and the Prospectus (i) there shall not have
been a material adverse change in the general affairs, business, business
prospects, properties, management, condition (financial or otherwise)
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or results of operations of the Company and its subsidiaries, considered as one
enterprise, whether or not arising from transactions in the ordinary course of
business, in each case other than as set forth in or contemplated by the
Registration Statements and the Prospectus, and (ii) neither the Company nor any
of its Subsidiaries shall have sustained any material loss or interference with
its business or properties from fire, explosion, flood or other casualty,
whether or not covered by insurance, or from any labor dispute or any court or
legislative or other governmental action, order or decree, which is not set
forth in the Registration Statements and the Prospectus, if in the judgment of
the Representative any such development makes it impracticable or inadvisable to
consummate the sale and delivery of the Offered Securities by the Underwriters
in accordance with the terms hereof and thereof.
(d) Since the respective dates as of which information is
given in the Registration Statements and the Prospectus, there shall have been
no litigation or other proceeding instituted against the Trust, the Company or
any of its Subsidiaries or any of their respective officers or directors in
their capacities as such, before or by any Federal, state or local court,
commission, regulatory body, administrative agency or other governmental body,
domestic or foreign, in which litigation or proceeding an unfavorable ruling,
decision or finding would materially and adversely affect the business,
properties, business prospects, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries considered as one enterprise.
(e) Each of the representations and warranties of the Company
and the Trust contained herein shall be true and correct in all material
respects on the Closing Date and, with respect to the Option Securities, on the
Option Closing Date, if applicable, as if made on the Closing Date, or on the
Option Closing Date, if applicable, and all covenants and agreements herein
contained to be performed on the part of the Trust and the Company and all
conditions herein contained to be fulfilled or complied with by the Company or
the Trust on or prior to the Closing Date and, with respect to the Option
Securities, on or prior to the Option Closing Date, if applicable, shall have
been duly performed, fulfilled or complied with.
(f) The Representative shall have received an opinion of
Cravath, Swaine & ▇▇▇▇▇, counsel for the Trust and the Company, dated the
Closing Date and with respect to the Option Securities, the Option Closing Date,
to the effect set forth in Exhibit A hereto, addressed to the Underwriters.
(g) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, dated the Closing Date and
with respect to the Option Securities, the Option Closing Date, to the effect
set forth in Exhibit B hereto, addressed to the Underwriters.
(h) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Trust, dated the
Closing Date and with respect to the Option Securities, the Option Closing Date,
to the effect set forth in Exhibit C hereto, addressed to the Underwriters.
(i) On the Closing Date, the Representative shall have
received a certificate of the Company, in its capacity as Sponsor of the Trust
and on its own behalf, and of the Chief Financial Officer, the Controller or the
Treasurer of the Company, dated the Closing Date, to the effect that the
conditions set forth in this Section 5 have been satisfied, that as of the date
hereof and on the Closing Date, the representations and warranties of the Trust
and the Company set forth in Section 3 hereof are true and correct in all
material respects, and that on the Closing Date, each of the covenants and
obligations of the Trust and the Company to be performed hereunder on or prior
to the Closing Date have been duly performed in all material respects. In
addition, such certificate shall state that the signer of
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such certificate has carefully examined the Registration Statements and the
Prospectus (including the documents incorporated by reference therein) and (A)
as of the date of such certificate, such documents are true and correct in all
material respects and do not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not untrue or
misleading and (B) in the case of the certificate delivered on the Closing Date
and the Option Closing Date, if applicable, since the Effective Date no event
has occurred as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein not untrue or misleading in
any material respect and there has been no document required to be filed under
the Exchange Act and the rules and regulations thereunder that upon such filing
would be deemed to be incorporated by reference into the Prospectus that has not
been so filed.
(j) Concurrently with the execution and delivery of this
Agreement, the Accountants shall have furnished to the Representative a letter,
dated the date of its delivery, addressed to the Representative and in form and
substance satisfactory to the Representative, confirming that they are
independent accountants with respect to the Trust and the Company as required by
the Act and the Rules and Regulations and with respect to the financial and
other statistical and numerical information contained in the Registration
Statements or incorporated by reference therein. On the Closing Date and, as to
the Option Securities, the Option Closing Date, if applicable, the Accountants
shall have furnished to the Representative a letter, dated the date of its
delivery, which shall confirm, on the basis of a review in accordance with the
procedures set forth in the letter from the Accountants, that nothing has come
to their attention during the period from the date of the letter referred to in
the prior sentence to a date (specified in the letter) not more than three days
prior to the Closing Date and the Option Closing Date, if applicable, which
would require any change in their letter dated the date hereof if it were
required to be dated and delivered on the Closing Date and the Option Closing
Date, if applicable.
(k) The Representative shall have received an opinion, dated
the Closing Date, and, with respect to the Option Securities, the Option Closing
Date, from ▇▇▇▇▇ & Wood LLP, counsel to the Underwriters, with respect to the
Registration Statements, the Prospectus, and this Agreement, which opinion shall
be satisfactory in all respects to the Representative.
(l) The Offered Securities shall be qualified for sale in such
states as the Representative may reasonably request, each such qualification
shall be in effect and not subject to any Stop Order or other proceeding on the
Closing Date or the Option Closing Date, if applicable.
(m) Prior to the Closing Date, the Preferred Securities shall
have been duly authorized for listing by the NYSE upon official notice of
issuance, and the Representative shall have been furnished with appropriate
evidence, reasonably satisfactory to it and its counsel, of the granting of such
authorization for listing of the Preferred Securities by the NYSE.
(n) The Trust and the Company shall have furnished to the
Representative such certificates, in addition to those specifically mentioned
herein, as the Representative may have reasonably requested as to the accuracy
and completeness on the Closing Date and the Option Closing Date, if applicable,
of any statement in the Registration Statements or the Prospectus or any
documents filed under the Exchange Act and deemed to be incorporated by
reference into the Prospectus, as to the accuracy on the Closing Date and the
Option Closing Date, if applicable, of the representations and warranties of the
Trust and the Company herein, as to the performance by the Trust and the Company
of their respective obligations hereunder, or as to the fulfillment of the
conditions concurrent and precedent to the obligations hereunder of the
Representative.
6. Indemnification.
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(a) The Trust and the Company, jointly and severally, will
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person, if any, who controls each
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, liabilities, expenses
and damages (including any and all investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding between any of the indemnified parties and any
indemnifying parties or between any indemnified party and any third party, or
otherwise, or any claim asserted), to which any Underwriter, or any such person,
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, liabilities, expenses or damages arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statements or the Prospectus or any
amendment or supplement to the Registration Statements or the Prospectus or the
omission or alleged omission to state in such document a material fact required
to be stated in it or necessary to make the statements in it not misleading,
provided that neither the Company nor the Trust will be liable to the extent
that such loss, claim, liability, expense or damage arises from the sale of the
Offered Securities in the public offering to any person by an Underwriter and is
based on an untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company or the Trust by the
Representative on behalf of any Underwriter expressly for inclusion in the
Registration Statements, any preliminary prospectus or the Prospectus. This
indemnity agreement will be in addition to any liability which the Trust and the
Company might otherwise have including under this Agreement.
(b) Each Underwriter will indemnify and hold harmless (i) the
Trust, the Trustees, its officers who sign the Registration Statements and any
person controlling the Trust within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and (ii) the Company, its directors, its officers
who shall have signed the Registration Statements, and each other person, if
any, who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, in each case to the same extent as the foregoing
indemnity from the Trust and the Company to each Underwriter, but only insofar
as losses, liabilities, claims, expenses or damages arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission,
made in reliance on and in conformity with written information furnished to the
Trust or the Company by the Representative expressly for use in the Registration
Statements, any preliminary prospectus or the Prospectus. This indemnity will be
in addition to any liability that each Underwriter may otherwise have.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 6, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party
will not relieve it from any liability that it may have to any indemnified party
under the foregoing provisions of this Section 6 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent that it
elects by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the
defense of the action, with counsel satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will
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be at the expense of such indemnified party unless (1) the employment of counsel
by the indemnified party has been authorized in writing by the indemnifying
party, (2) the indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists (based on advice
of counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the indemnified party), or (4)
the indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction at any one time for
all such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent will not be
unreasonably withheld). No indemnifying party shall, without the prior written
consent of each indemnified party, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action or proceeding
relating to the matters contemplated by this Section 6 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising or that may arise out of such claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Trust and the Company or the
Underwriters, the Trust, the Company and the Underwriters shall contribute to
the aggregate losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claims asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Trust or the Company, any contribution
received by the Trust or the Company from persons other than the Underwriters,
such as persons who control the Trust or the Company within the meaning of the
Act and directors and officers of the Company) to which the Trust, the Company
and any one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Trust and the
Company on the one hand and the Underwriters on the other. The relative benefits
received by the Trust and the Company on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses other than underwriting discounts
and commissions) received by the Trust and the Company bear to the total
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Prospectus. If, but only if, the allocation provided by the foregoing sentence
is not permitted by applicable law, the allocation of contribution shall be made
in such proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of the Trust
and the Company on the one hand and the Underwriters on the other with respect
to the statements or omissions which resulted in such loss, claim, liability,
expense or damage, or action in respect thereof, as well as any other relevant
equitable considerations with respect to such offering. The relative fault of
the Trust and the Company on the one hand and of the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact related to information supplied by the Trust or the
Company or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Trust, the Company and the
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Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 6(d) were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 6(d) shall be deemed to
include, for purpose of this Section 6(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6(d), no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts and commissions received by it, and no
person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) will be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 6(d) are several in
proportion to their respective underwriting obligations and not joint. For
purposes of this Section 6(d), any person who controls a party to this Agreement
within the meaning of the Act will have the same rights to contribution as that
party, and each officer of the Trust and the Company who signed the Registration
Statements will have the same rights to contribution as the Trust and the
Company, respectively, subject in each case to the provisions hereof. Any party
entitled to contribution, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim for contribution may
be made under this Section 6(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 6(d). No party will be liable for
contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in
this Section 6 and the representations and warranties of the Company contained
in this Agreement shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of the Underwriters, (ii)
acceptance of any of the Offered Securities and payment therefor, or (iii) any
termination of this Agreement.
7. Termination. The obligations of the several Underwriters under
this Agreement may be terminated at any time on or prior to the Closing Date
(or, with respect to the Option Securities, on or prior to the Option Closing
Date), by notice to the Trust and the Company from the Representative, without
liability on the part of any Underwriter to the Trust or the Company, if, prior
to delivery and payment for the Preferred Securities (or the Option Securities,
as the case may be), in the sole judgment of the Representative, (i) trading in
any of the equity securities of the Company shall have been suspended by the
Commission, by an exchange that lists the Preferred Securities or by the Nasdaq
Stock Market, (ii) trading in securities generally on the NYSE shall have been
suspended or limited or minimum or maximum prices shall have been generally
established on such exchange, or additional material governmental restrictions,
not in force on the date of this Agreement, shall have been imposed upon trading
in securities generally by such exchange or by order of the Commission or any
court or other governmental authority, (iii) a general banking moratorium shall
have been declared by either Federal or New York State authorities, or (iv) any
material adverse change in the financial or securities markets in the United
States or in political, financial or economic conditions in the United States or
any outbreak or material escalation of hostilities or declaration by the United
States of a national emergency or war or other calamity or crisis shall have
occurred, the effect of any of which is such as to make it, in the sole judgment
of the Representative, impracticable or inadvisable to market the Offered
Securities on the terms and in the manner contemplated by the Prospectus.
8. Substitution of Underwriters. If any one or more of the
Underwriters shall fail or refuse to purchase any of the Firm Securities which
it or they have agreed to purchase hereunder, and the
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aggregate principal amount of Firm Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of Firm Securities, the other
Underwriters shall be obligated, severally, to purchase the Firm Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase, in the proportions which the principal amount of Firm Securities
which they have respectively agreed to purchase pursuant to Section 1 bears to
the aggregate principal amount of Firm Securities which all such non-defaulting
Underwriters have so agreed to purchase, or in such other proportions as the
Representative may specify; provided that in no event shall the maximum
principal amount of Firm Securities which any Underwriter has become obligated
to purchase pursuant to Section 1 be increased pursuant to this Section 8 by
more than one-ninth of the principal amount of Firm Securities agreed to be
purchased by such Underwriter without the prior written consent of such
Underwriter. If any Underwriter or Underwriters shall fail or refuse to purchase
any Firm Securities and the aggregate principal amount of Firm Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase exceeds one-tenth of the aggregate principal amount of the Firm
Securities and arrangements satisfactory to the Representative and the Trust and
the Company for the purchase of such Firm Securities are not made within 48
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Trust and the Company for the
purchase or sale of any Preferred Securities under this Agreement. In any such
case either the Representative or the Trust and the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statements and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken pursuant to this Section 8 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
9. Miscellaneous. Notice given pursuant to any of the provisions of
this Agreement shall be in writing and, unless otherwise specified, shall be
mailed or delivered (a) if to the Trust, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, ▇▇▇▇▇ ▇▇▇▇▇▇ Group Inc., or (b) if
to the Company, at the office of the Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, ▇▇▇▇▇ ▇▇▇▇▇▇ Group Inc., or (c) if
to the Underwriters, to the Representative at the offices of PaineWebber
Incorporated, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Finance Department. Any such notice shall be effective only upon
receipt. Any notice under Section 7 or 8 may be made by facsimile, telex or
telephone, but if so made shall be subsequently confirmed in writing.
This Agreement has been and is made solely for the benefit of the
several Underwriters and the Trust and the Company and of the controlling
persons, Trustees, directors and officers referred to in Section 6, and their
respective successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement. The term "successors and assigns" as
used in this Agreement shall not include a purchaser, as such purchaser, of
Offered Securities from any of the several Underwriters.
All representations, warranties and agreements of the Trust and the
Company contained herein or in certificates or other instruments delivered
pursuant hereto, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of any Underwriter or any of their
controlling persons and shall survive delivery of and payment for the Preferred
Securities hereunder.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
This Agreement may be signed in two or more counterparts with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
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In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
The Trust, the Company and the Underwriters each hereby irrevocably
waive any right they may have to trial by jury in respect of any claim based
upon or arising out of this Agreement or the transactions contemplated hereby.
This Agreement may not be amended or otherwise modified or any
provision hereof waived except by an instrument in writing signed by the
Representative, the Trust and the Company.
Please confirm that the foregoing correctly sets forth the agreement among
the Trust, the Company and the several Underwriters.
Very truly yours,
PWG CAPITAL TRUST [ ]
a Delaware business trust
By: ▇▇▇▇▇ ▇▇▇▇▇▇ GROUP INC.
as Sponsor
By: _______________________________
Title:
▇▇▇▇▇ ▇▇▇▇▇▇ GROUP INC.
By: _______________________________
Title:
Confirmed as of the date first above mentioned:
PAINEWEBBER INCORPORATED Acting on behalf of themselves and as the
Representative of the other several Underwriters named in Schedule I hereof.
By: PAINEWEBBER INCORPORATED
By: _______________________________
Title:
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SCHEDULE I
UNDERWRITERS
Name of Number of
Underwriters Firm
Securities
to be
Purchased
PaineWebber Incorporated..................... [ ]
[underwriter] ............................... [ ]
[underwriter] ............................... [ ]
[underwriter]................................ [ ]
[underwriter] ............................... [ ]
-----------------
Total .................................. [ ]
=================
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EXHIBIT A
TO
UNDERWRITING AGREEMENT
FORM OF
OPINION OF CRAVATH, SWAINE & ▇▇▇▇▇
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EXHIBIT B
TO
UNDERWRITING AGREEMENT
----------------------
FORM of OPINION of
[General Counsel of ▇▇▇▇▇ ▇▇▇▇▇▇ Group Inc.]
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EXHIBIT C
TO
UNDERWRITING AGREEMENT
FORM OF OPINION OF
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FINGER
SPECIAL DELAWARE COUNSEL
_________, ____
To Each of the Persons Listed
on Schedule I Hereto
Re: PWG Capital Trust [ ]
Ladies and Gentlemen:
We have acted as special Delaware counsel for ▇▇▇▇▇ ▇▇▇▇▇▇ Group
Inc., a Delaware corporation ("▇▇▇▇▇ ▇▇▇▇▇▇"), and PWG Capital Trust [ ], a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. This opinion is being furnished to you pursuant to Section 5(h) of the
Underwriting Agreement referred to below.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of ___________
(the "Certificate"), as filed in the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on
___________;
(b) The Declaration of Trust of the Trust, dated as of ____________,
among ▇▇▇▇▇ ▇▇▇▇▇▇, and the trustees of the Trust named therein
(collectively, the "Trustees");
(c) The Amended and Restated Declaration of Trust of the Trust,
dated as of __________ (including Exhibits A, B and C thereto) (the
"Declaration"), among ▇▇▇▇▇ ▇▇▇▇▇▇, as Sponsor, the Trustees and the
holders, from time to time, of undivided beneficial interests in the
assets of the Trust;
(d) The Underwriting Agreement, dated ___________ (the "Underwriting
Agreement"), among the Trust, ▇▇▇▇▇ ▇▇▇▇▇▇ and PaineWebber
Incorporated, individually and as Representative of the several
underwriters named in Schedule I thereto (the "Underwriters");
(e) The Registration Statements on Form S-3 of ▇▇▇▇▇ ▇▇▇▇▇▇, the
Trust and others (Registration Nos. 333- ______ and 333-13831, the
"Registration Statements") as filed with the Securities and Exchange
Commission (the "Commission") on _________, as amended by Amendment
No. 1 thereto filed with the Commission on ________,
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including a prospectus, dated __________, and a prospectus
supplement, dated ____________ (together, the "Prospectus"),
relating to the [ ]% Preferred Trust Securities of the Trust,
representing preferred undivided beneficial interests in the assets
of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"); and
(f) A Certificate of Good Standing for the Trust, dated the date
hereof, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (f) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (f) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation, and termination of the Trust, and that the Declaration and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation, due formation or
due organization, as the case may be, and valid existence in good standing of
each party to the documents examined by us under the laws of the jurisdiction
governing its creation, formation or organization, (iii) the legal capacity of
each natural person who is a party to the documents examined by us, (iv) except
to the extent provided in paragraph 5 below, that each of the parties to the
documents examined by us has the power and authority to execute and deliver, and
to perform its obligations under, such documents, (v) except to the extent
provided in paragraph 5, 6 and 7 below, that each of the parties to the
documents examined by us has duly authorized, executed and delivered such
documents, (vi) the receipt by each Person to whom a Preferred Security is to be
issued by the Trust (the "Holders") of a Preferred Securities Certificate for
such Preferred Security and the payment for the Preferred Security acquired by
it, in accordance with the Declaration and the Prospectus, (vii) that the
Preferred Securities are issued and sold to the Holders in accordance with the
Declaration and the Prospectus, (viii) that the Trust derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than having a Delaware trustee as required by the Delaware
Business Trust Act and the filing of documents with the Secretary of State) or
employees in the State of Delaware, (ix) the receipt by the Person (the "Common
Security Holder") to whom a [ ]% Common Security of the Trust representing
common undivided beneficial interests in the assets of the Trust (each, a
"Common Security" and collectively, the "Common Securities") (the Preferred
Securities and the Common Securities being hereinafter collectively referred to
as the "Trust Securities") is to be issued by
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the Trust of a Common Securities Certificate for the Common Security and the
payment for the Common Security acquired by it, in accordance with the
Declaration, and as described in the Prospectus, (x) that the Common Securities
are issued and sold to the Common Security Holder in accordance with the
Declaration, and as described in the Prospectus, and (xi) that the Trust is
treated as a grantor trust for federal income tax purposes. We have not
participated in the preparation of the Prospectus and assume no responsibility
for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, and all
filings required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust have been made.
2. Under the Delaware Business Trust Act and the Declaration, the
Trust has the trust power and authority to own its property and conduct its
business, all as described in the Prospectus.
3. The Declaration constitutes a valid and binding obligation of
▇▇▇▇▇ ▇▇▇▇▇▇ and the Trustees, and is enforceable against ▇▇▇▇▇ ▇▇▇▇▇▇ and the
Trustees, in accordance with its terms.
4. Under the Delaware Business Trust Act and the Declaration, the
Trust has the trust power and authority (i) to execute and deliver, and to
perform its obligations under, the Underwriting Agreement and (ii) to issue and
perform its obligations under the Preferred Securities.
5. Under the Delaware Business Trust Act and the Declaration, the
execution and delivery by the Company on behalf of the Trust of the Underwriting
Agreement and the performance by the Trust of its obligations thereunder have
been duly authorized by all necessary trust action on the part of the Trust.
6. The Common Securities have been duly authorized by the
Declaration and, when issued and sold in accordance with the Declaration,
represent validly issued undivided beneficial interests in the assets of the
Trust.
7. The Preferred Securities have been duly authorized by the
Declaration and are duly and validly issued and, subject to the qualifications
set forth herein, fully paid and non-assessable undivided beneficial interests
in the assets of the Trust and are entitled to the benefits of the Declaration.
The Holders, as beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware. We note that the Holders may be obligated, pursuant to the
Declaration, (i) to provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from
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transfers or exchanges of Preferred Securities Certificates and the issuance of
replacement Preferred Securities Certificates, and (ii) to provide security or
indemnity in connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Declaration.
8. Under the Delaware Business Trust Act, the certificates attached
to the Declaration as Exhibits B and C are appropriate forms of certificates to
evidence ownership of the Preferred Securities and Common Securities,
respectively.
9. Under the Delaware Business Trust Act and the Declaration, the
issuance of the Preferred Securities is not subject to preemptive rights.
10. The issuance and sale by the Trust of the Preferred Securities,
the execution, delivery and performance by the Trust of the Underwriting
Agreement, the consummation by the Trust of the transactions contemplated
thereby and compliance by the Trust with its obligations thereunder do not
violate (i) any of the provisions of the Certificate or the Declaration, or (ii)
any applicable Delaware law or administrative regulation.
11. No authorization, approval, consent or order of any Delaware
court or Delaware governmental authority or agency is required to be obtained by
the Trust solely in connection with the issuance and sale of the Preferred
Securities.
12. The Holders of the Preferred Securities (other than those
Holders who reside or are domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of Delaware solely as a result
of their participation in the Trust, and the Trust will not be liable for any
income tax imposed by the State of Delaware.
The opinion expressed in paragraph 3 above is subject, as to
enforcement, to the effect upon the Declaration of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent transfer and
other similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
We consent to your relying as to matters of Delaware law upon this
opinion in connection with the Underwriting Agreement. We also consent to the
reliance of ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. and Cravath, Swaine &
▇▇▇▇▇ as to matters of Delaware law upon this opinion in connection with
opinions to be rendered by them to the Underwriters pursuant to the Underwriting
Agreement. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other person
for any purpose.
Very truly yours,
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