1
▇▇▇▇ ▇▇▇▇▇, INC.
(a Maryland corporation)
Debt Securities
UNDERWRITING AGREEMENT
February 9, 1996
To the Underwriters
to be named in the applicable
Pricing Agreement supplemental hereto
Dear Sirs:
▇▇▇▇ ▇▇▇▇▇, Inc., a Maryland corporation (the "Company"),
proposes to sell up to $150,000,000 aggregate principal amount, or its
equivalent based on the applicable exchange rate at the time of offering, in
such foreign currencies or units of two or more thereof as the Company shall
designate at the time of offering, of its senior debt securities ("Senior Debt
Securities"), and its subordinated debt securities ("Subordinated Debt
Securities," and, together with the Senior Debt Securities, the "Debt
Securities"). Unless otherwise specified in the applicable Pricing Agreement
(as defined below), the Senior Debt Securities are to be issued under an
indenture (the "Senior Indenture") between the Company and The Bank of New
York, as trustee (the "Senior Debt Trustee"). Unless otherwise specified in
the applicable Pricing Agreement, the Subordinated Debt Securities are to be
issued under an indenture (the "Subordinated Indenture") between the Company
and The Bank of New York, as trustee (the "Subordinated Debt Trustee"). The
Senior Indenture and the Subordinated Indenture are collectively referred to
herein as the "Indentures" and the Senior Debt Trustee and the Subordinated
Debt Trustee are collectively referred to herein as the "Trustees." Each issue
of Debt Securities may vary, where applicable, as to aggregate principal
amount, maturity, interest rate or rates and timing of payments thereof,
redemption provisions, conversion provisions and sinking fund requirements, if
any, and any other variable terms which the
2
applicable Indenture contemplates may be set forth in the Debt Securities as
issued from time to time. As used herein, "Securities" shall mean the Debt
Securities covered by the applicable Pricing Agreement.
Whenever the Company determines to make an offering of Debt
Securities, it will enter into an agreement (a "Pricing Agreement") providing
for the sale of such Securities to, and the purchase and offering thereof by,
the underwriter or underwriters named therein (the "Underwriters" or "you,"
which terms shall include the underwriter or underwriters named therein whether
acting alone in the sale of Securities or as members of an underwriting
syndicate and any underwriters substituted pursuant to Section 10 hereof). The
Pricing Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of written
telecommunication between you and the Company. The Pricing Agreement relating
to each offering of Securities shall specify such applicable information as is
indicated in Exhibit A hereto. Each offering of Securities will be governed by
this Agreement, as supplemented by the applicable Pricing Agreement, and this
Agreement and such Pricing Agreement shall inure to the benefit of and be
binding upon each Underwriter participating in the offering of such Securities.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-00151) relating to the Debt Securities and the offering thereof from time
to time in accordance with Rule 415 under the Securities Act of 1933 (the "1933
Act") and the rules and regulations thereunder (the "1933 Act Regulations"),
and has filed such amendments thereto as may have been required to the date
hereof. Such registration statement as amended has been declared effective by
the Commission, and the respective Indentures have been qualified under the
Trust Indenture Act of 1939 (the "1939 Act") and the rules and regulations of
the Commission thereunder (collectively, the "1939 Act Regulations"). Such
registration statement as amended and the prospectus relating to the sale of
Debt Securities by the Company constituting a part thereof, including all
documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934 (the "1934 Act"),
the 1933 Act or otherwise, are collectively
2
3
referred to herein as the "Registration Statement" and the "Prospectus,"
respectively; provided, however, that a supplement of the Prospectus
contemplated by Section 3(a) hereof and any term sheet as contemplated by Rule
434 of the 1933 Act Regulations (a "Prospectus Supplement") shall be deemed to
have supplemented the Prospectus only with respect to the offering of
Securities to which it relates.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each
Underwriter as of the date hereof and as of the date of the execution of the
Pricing Agreement (such latter date being hereinafter referred to as the
"Representation Date") as follows:
(i) The Company meets the requirements for use of
Form S-3 under the 1933 Act and at the time the Registration Statement
became effective and as of the applicable Representation Date, the
Registration Statement and the Prospectus complied in all material
respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations, and did not,
and will not, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, at the
time the Registration Statement became effective and as of the
applicable Representation Date and at the Closing Time referred to in
Section 2, did not, and will
3
4
not, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties
in this subsection shall not apply to statements in or omissions from
the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter expressly for use in the Registration Statement or the
Prospectus (or to that part of the Registration Statement that shall
constitute the Statement of Eligibility under the 1939 Act (Form T-1)
of the respective Trustees).
(ii) The accountants who certified the financial
statements and supporting schedules incorporated in the Registration
Statement are independent public accountants for the Company as
required by the 1933 Act and the 1933 Act Regulations.
(iii) The financial statements, including the notes
thereto, incorporated in the Registration Statement and the Prospectus
present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of
their operations for the periods specified; except as otherwise stated
in the Registration Statement, said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved; and the
supporting schedules incorporated in the Registration Statement
present fairly the information required to be stated therein.
(iv) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordi-
4
5
nary course of business, that are material to the Company and its
subsidiaries considered as one enterprise and (C) except for
regular quarterly dividends, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus or documents incorporated by reference therein; and the
Company is not required to be qualified as a foreign corporation to
transact business in any other jurisdiction.
(vi) Each subsidiary (a "Subsidiary") of the Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described or incorporated by reference
in the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, except to the extent that the failure
to be so qualified or be in good standing would not have a material
adverse effect on the Subsidiaries taken as a whole. All of the issued
and outstanding capital stock of each Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any mortgage, pledge, lien, encumbrance, claim or equity.
(vii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under "Capitalization"
or in documents incorporated therein by reference (except for
subsequent issuances, if any, pursuant to reservations, agreements,
employee benefit plans or the exercise of convertible securities
referred to in the Prospectus or in documents incorporated therein by
reference); the shares of issued and outstanding
5
6
capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; any shares of the
Company's common stock, par value $.10 per share (the "Common Stock"),
initially issuable upon conversion of Securities that are designated in
a Pricing Agreement as being convertible into Common Stock
("Convertible Debt Securities") have been duly authorized and reserved
for issuance (or will have been so authorized or reserved prior to each
issuance of such Securities), and such shares when issued and delivered
in accordance with the provisions of the Securities and Indenture, will
be validly issued, fully paid and non-assessable and conform to the
description of the Common Stock in the Prospectus.
(viii) The Securities have been duly authorized for
issuance pursuant to this Agreement (or will have been so authorized
prior to each issuance of Securities) and, when executed, issued and
delivered by the Company and authenticated by the Trustee pursuant to
the provisions of the applicable Indenture and this Agreement against
payment of the consideration set forth in the Pricing Agreement, will
have been duly executed, issued and delivered by the Company and will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the applicable Indenture and enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws now or
hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). The Indentures have
been duly authorized by the Company, will be substantially in the
forms heretofore delivered to you and, when duly executed and
delivered by the Company and the Trustees, will constitute legal,
valid and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as the
enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws now or
hereafter in effect relating to creditors' rights generally and (b)
6
7
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). The Securities and
the Indentures conform in all material respects to all statements
relating thereto contained in the Prospectus.
(ix) Neither the Company nor any of the Subsidiaries
is in violation of its charter, or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of the Subsidiaries is a party or by which it or any of them may be
bound. The execution and delivery of this Agreement, the applicable
Indenture and the Pricing Agreement and the consummation of the
transactions contemplated herein have been, or will be, duly
authorized by all necessary corporate action and do not and will not
conflict with or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of the Subsidiaries
pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of the Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
of the Subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company
or any applicable law or administrative regulation or any
administrative or court decree and no consent, approval, authorization
or order of any court or governmental authority or agency is required
for the consummation by the Company of the transactions contemplated
by this Agreement, except such as have been obtained under the 1933
Act, the 1933 Act Regulations, the 1939 Act or the 1939 Act
Regulations or state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters.
(x) The Company and the Subsidiaries own or possess
or have obtained all material governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to lease or own,
7
8
as the case may be, and to operate their respective properties and to
carry on their respective businesses as presently conducted.
(xi) No labor disturbance by the employees of the
Company or any Subsidiary exists or, to the best knowledge of the
Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its principal
suppliers or contractors which might be expected to materially
adversely affect the conduct of the business, operations, financial
condition or income of the Company and the Subsidiaries, considered as
one enterprise.
(xii) There is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened against
or affecting the Company or any of the Subsidiaries, which is required
to be disclosed in the Registration Statement (other than as disclosed
therein or in documents incorporated therein by reference) and is not
so disclosed, or which might result in any material adverse change in
the condition, financial or otherwise, or in the earnings, affairs or
business prospects of the Company and the Subsidiaries taken as one
enterprise or which might materially and adversely affect the
properties or assets thereof or which might materially or adversely
affect the consummation of this Agreement; all pending legal or
governmental proceedings to which the Company or any Subsidiary is a
party or of which any of their property is the subject which are not
described in the Registration Statement or documents incorporated
therein by reference, including ordinary routine litigation incidental
to the business, are, considered in the aggregate, not material to the
Company and the Subsidiaries taken as one enterprise; and there are no
contracts or documents of the Company or any of the Subsidiaries which
are required to be filed as exhibits to the Registration Statement by
the 1933 Act or by the 1933 Act Regulations which have not been so
filed.
(xiii) The Company and the Subsidiaries own or
possess, or can acquire on reasonable terms,
8
9
adequate trademarks, service marks and trade names necessary to conduct
the business now operated by them, and neither the Company nor any of
the Subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
affairs or business prospects of the Company and the Subsidiaries,
considered as one enterprise.
(xiv) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated ("LMWW")
and Howard, Weil, Labouisse, ▇▇▇▇▇▇▇▇▇▇ Incorporated ("HWLF") have
each been duly registered as a broker dealer under the 1934 Act, and
each is a member of the National Association of Securities Dealers,
Inc. ("NASD"), the Securities Investor Protection Corporation ("SIPC")
and the Stock Exchanges indicated in the documents incorporated by
reference in the Registration Statement; LMWW, ▇▇▇▇ ▇▇▇▇▇ Fund
Adviser, Inc. ("LMFA"), ▇▇▇▇ ▇▇▇▇▇ Capital Management, Inc. ("LMCM"),
Batterymarch Financial Management, Inc. ("BFM"), ▇▇▇▇▇▇▇▇ & Co.
("▇▇▇▇▇▇▇▇"), ▇▇▇▇, ▇▇▇▇▇▇▇ & Co., Inc. ("GSC"), and Western Asset
Management Company ("WAM") have each been duly registered as an
investment adviser under the Investment Advisers Act of 1940, as
amended (the "Investment Advisers Act"); each of LMWW, HWLF, LMFA,
LMCM, BFM, ▇▇▇▇▇▇▇▇, GSC and WAM is in compliance in all material
respects with all applicable laws, rules, regulations, orders, by-laws
and similar requirements in connection with such registrations and
memberships; and each of LMWW and HWLF is also duly registered,
licensed or qualified as a broker-dealer, and each of LMWW, LMFA,
LMCM, BFM, ▇▇▇▇▇▇▇▇, GSC and WAM is also duly registered, licensed or
qualified as an investment adviser, and is in each case in compliance
in all material respects with all laws, rules, regulations, orders and
similar requirements in connection therewith, in all states in which
the conduct of each of its businesses as presently conducted requires
such registration, licensing or qualification.
9
10
(xv) The Company has not taken and will not take,
directly or indirectly, any action designed to, or which might be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities or, in the case of an
offering of Convertible Debt Securities, the Common Stock.
(xvi) The Company has complied and will comply with
all the provisions of Florida H.B. 1771, codified as Section 517.075 of
the Florida statutes, as contemplated by the regulations promulgated
thereunder relating to issuers doing business with Cuba.
(xvii) The documents (as amended prior to the date
hereof, as the case may be) incorporated or deemed to be incorporated
by reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act, and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in
the Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the Closing Time (as defined
below), will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(b) Any certificate signed by any officer of the
Company and delivered to the Underwriters or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
SECTION 2. Purchase and Sale. The several commitments of the
Underwriters to purchase Securities pursuant to any Pricing Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
10
11
Payment of the purchase price for, and delivery of, the
Securities shall be made at the date, time and location specified in
the applicable Pricing Agreement relating to the Securities, or at such
other date, time and location as shall be agreed upon by the
Representatives (as defined in Section 3 below) and the Company, or as
shall otherwise be provided in Section 10 (such time and date of
payment and delivery being herein called the "Closing Time"). Unless
otherwise specified in the applicable Pricing Agreement, payment shall
be made to the Company by wire transfer of same-day funds at the
Closing Time to an account or accounts designated by the Company
against delivery to the Representatives for the respective accounts of
the Underwriters of the Securities to be purchased by them (unless such
Securities are issuable only in the form of one or more global
Securities registered in the name of a depository or a nominee of a
depository, in which event the Underwriters' interest in such global
certificate shall be noted in a manner satisfactory to the Underwriters
and their counsel). Such Securities shall be in such authorized
denominations and registered in such names as the Representatives may
request in writing at least two business days prior to the applicable
Closing Time. Such Securities, which may be in temporary form, will be
made available for examination and packaging by the Representatives on
or before the first business day prior to Closing Time.
SECTION 3. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) Immediately following the execution of each
Pricing Agreement, the Company will prepare a Prospectus Supplement
setting forth the principal amount of Debt Securities covered thereby
and their terms not otherwise specified in the applicable Indenture,
whether the Debt Securities will be Senior Debt Securities or
Subordinated Debt Securities, the names of the Underwriters
participating in the offering and the principal amount of Debt
Securities which each severally has agreed to purchase, the names of
any Underwriters acting as manager or co-managers in connection with
the offering (the "Representatives" which term shall include each
Underwriter in the event that there be no manager or co-manager), the
price at which the Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the selling
concession and
11
12
reallowance, if any, and such other information as you and the Company deem
appropriate in connection with the offering of the Securities. The Company will
promptly transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424 of the Regulations and will furnish to the
Underwriters named therein as many copies of the Prospectus and such Prospectus
Supplement as the Representatives shall reasonably request.
(b) The Company will notify the Underwriters
promptly, and confirm the notice in writing, (i) of the effectiveness of any
amendment to the Registration Statement, (ii) of the receipt of any comments
from the Commission with respect to the Registration Statement, the Prospectus
or any Prospectus Supplement, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose and (v) of the
mailing or the delivery to the Commission for filing of any supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act. The Company
will make every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(c) The Company will give the Underwriters notice of
its intention to file or prepare any amendment to the Registration Statement or
any amendment or supplement to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, will furnish the Underwriters with copies of
any such amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such
amendment or supplement or use any such prospectus to which the Representatives
or counsel to the Underwriters shall reasonably object, unless required to do
so pursuant to the applicable federal securities laws.
(d) The Company will deliver to the Representatives
signed copies of the Registration Statement as initially filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to
12
13
be incorporated by reference therein) and will also deliver to the Underwriters
as many conformed copies of the Registration Statement as initially filed and
of each amendment thereto (without exhibits) as the Underwriters may reasonably
request.
(e) If at any time when the Prospectus is required
by the 1933 Act to be delivered in connection with sales of Securities any
event shall occur or condition exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters, to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser or if it shall be necessary, in the
view of such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1934 Act or the 1934 Act Regulations, the Company will promptly prepare and
file with the Commission such amendment or supplement, whether by filing
documents pursuant to the 1934 Act or otherwise, as may be necessary to correct
such untrue statement or omission or make the Registration Statement comply
with such requirements.
(f) The Company will endeavor, in cooperation with
the Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Representatives may designate and will maintain such
qualification in effect for as long as may be required for the distribution of
the Securities; provided, however, that the Company shall not be obligated to
qualify as a foreign corporation in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement.
(g) With respect to each sale of Securities, the
Company will make generally available to its security holders as soon as
practicable, but not later than 60 days after the close of the period covered
there-
13
14
by, an earnings statement (in a form which complies with the provisions of Rule
158 under the 1933 Act Regulations) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter next following the
"Effective Date" (as defined in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(i) The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14
or 15 of the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(j) Between the date of any Pricing Agreement and
the later of termination of any trading restrictions or Closing Time with
respect to the Securities, the Company will not, without your prior written
consent, directly or indirectly, offer to sell, sell, enter into an agreement
to sell, grant any option for the sale of, or otherwise dispose of, any new
issue of debt securities of the Company with a maturity of more than one year,
including additional Debt Securities (except for (i) any debt securities issued
upon exercise of warrants, (ii) any debt securities of the Company denominated
in a currency other than the currency in which the Securities subject to such
Pricing Agreement shall be denominated) or any warrants for the purchase of
debt securities of the Company with a maturity of more than one year. If the
Securities designated in the applicable Pricing Agreement are convertible into
Common Stock, for a period of 90 days from the date of the applicable Pricing
Agreement, the Company will not, without your prior written consent, directly
or indirectly, offer to sell, sell, enter into an agreement to sell, grant any
option for the sale of, or otherwise dispose of, any Common Stock, or security
convertible into or exchangeable for Common Stock, of the Company other than
pursuant to existing employee incentive plans as set forth in the Registration
Statement or documents incorporated by reference therein or in connection with
an acquisition in which the issuance of the securities is exempt from
14
15
registration under the 1933 Act (including resales by the recipients of shares
in any such acquisition).
(k) If any Securities are designated by the
applicable Pricing Agreement to be convertible into Common Stock, the Company
will reserve and keep available at all times, free of preemptive rights, shares
of Common Stock of the Company for the purpose of enabling the Company to
satisfy any obligations to issue shares of its Common stock upon conversion of
the Securities.
SECTION 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the printing of this
Agreement and each Pricing Agreement covered below, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and any
Legal Investment Survey, (vi) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement as
originally filed and of each amendment thereto, of any preliminary prospectus,
and of the Prospectus and any amendments or supplements thereto, (vii) the fees
and expenses of the applicable Trustee, (viii) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey, the applicable Indenture and any
Legal Investment Survey, (ix) the fees charged by the rating agencies in
connection with the rating of the Securities, (x) the fee of the National
Association of Securities Dealers, Inc. and (xi) the fees and expenses, if any,
incurred in connection with the listing of the Securities on the New York Stock
Exchange or any other national exchange.
If a Pricing Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters named in such Pricing Agreement for
all of their out-of-pocket expenses, including
15
16
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase Securities pursuant to any Pricing
Agreement are subject to the accuracy of the representations and warranties of
the Company herein contained, to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of all of its covenants and other
obligations hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act, and no proceedings under the 1933 Act therefor
shall have been initiated or threatened by the Commission, and (ii) the rating
assigned by any nationally recognized securities rating agency to any debt
securities, preferred stock or other obligations of the Company as of the date
of the applicable Pricing Agreement shall not have been lowered since the
execution of such Pricing Agreement and no notice shall have been given of any
intended or potential down-grading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded
any of the Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule 436(g)(2)
under the 1933 Act.
(b) At Closing Time the Underwriters shall have
received:
(1) The favorable opinion, dated as of Closing Time,
of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters, to
the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the State of Maryland.
16
17
(ii) The Company has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement.
(iii) To the best of his knowledge and
information, the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which the conduct of its business requires such qualification and the
failure to so qualify would not have a material adverse effect on the
Company.
(iv) The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus under
"Capitalization" or in documents incorporated therein by reference
(except for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans or the exercise of convertible
securities referred to in the Prospectus or in documents incorporated
therein by reference), and the shares of issued and outstanding Common
Stock have been duly authorized and validly issued and are fully paid
and nonassessable.
(v) The Securities, including any Securities
in global form, are in the form contemplated by the applicable
Indenture and have been duly authorized for issuance and sale to the
Underwriters by all necessary corporate action. The Securities have
been duly executed, issued and delivered by the Company and, when
authenticated as specified in the applicable Indenture and delivered
against payment pursuant to this Agreement, as supplemented by the
applicable Pricing Agreement, will be legal, valid and binding
obligations of the Company entitled to the benefits of the applicable
Indenture and enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or similar laws now or hereafter in effect relating to
creditors' rights generally, (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity) and (c) requirements that a claim (or a foreign
currency judgment in respect of such claim)
17
18
be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law. The
definitive Securities in bearer form issuable in exchange for any
global Security, when duly executed, authenticated, issued and
delivered in exchange for such global Security as specified in the
applicable Indenture, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except as the
enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws now or
hereafter in effect relating to creditors' rights generally, (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (c) requirements
that a claim (or a foreign currency judgment in respect of such claim)
be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law. The
applicable Indenture has been duly authorized, executed and delivered
by the Company, is substantially in the form heretofore delivered to
you and, when duly executed and delivered by the applicable Trustee,
will constitute a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except
as the enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar
laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
(vi) Each principal Subsidiary of the
Company set forth on Schedule II to the applicable Pricing Agreement
(the "Principal Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and, to the best
of his knowledge, is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which the conduct of its
18
19
business requires such qualification and the failure to so qualify
would have a material adverse effect on such Principal Subsidiary.
All of the issued and outstanding capital stock of each Principal
Subsidiary has been duly authorized and validly issued, and is fully
paid and nonassessable, and all of such capital stock is, to the best
of his knowledge and information, owned by the Company, directly or
through subsidiaries, free and clear of any pledge, lien, encumbrance,
claim or equity.
(vii) LMWW and HWLF have each been duly
registered as a broker-dealer under the 1934 Act and each is a member
of the NASD, the SIPC and the Stock Exchanges indicated in the
documents incorporated by reference in the Registration Statement;
LMWW, LMFA, LMCM, BFM, ▇▇▇▇▇▇▇▇, GSC, and WAM have each been duly
registered as an investment adviser under the Investment Advisers Act;
to the best of his knowledge, each of LMWW, HWLF, LMFA, LMCM, BFM,
▇▇▇▇▇▇▇▇, GSC, and WAM is in compliance in all material respects with
all material applicable laws, rules, regulations, orders, by-laws and
similar requirements in connection with such registrations and
memberships; and to the best of his knowledge, each of LMWW and HWLF
is also duly registered, licensed or qualified as a broker-dealer, and
each of LMWW, LMFA, LMCM, BFM, ▇▇▇▇▇▇▇▇, GSC, and WAM is also duly
registered, licensed or qualified as an investment adviser, and is in
each case in compliance in all material respects with all material
laws, rules, regulations, orders and similar requirements in
connection therewith, in all states in which the conduct of each of
its businesses as presently conducted requires such registration,
licensing or qualification.
(viii) This Agreement and the applicable
Pricing Agreement have been duly authorized, executed and delivered by
the Company.
(ix) At the time the Registration Statement
became effective and at the Representation Date, the Registration
Statement (other than the financial statements and supporting
schedules and any other financial or statistical data included or
incorporated by reference therein, as to which no
19
20
opinion need be rendered) complied as to form in all material respects
with the applicable requirements of the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations.
(x) The applicable Indenture and Securities
conform in all materials respects to the description thereof
contained in the Prospectus.
(xi) The Registration Statement is effective
under the 1933 Act and, to the best of his knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(xii) The applicable Indenture is qualified
under the ▇▇▇▇ ▇▇▇.
(xiii) Any shares of Common Stock initially
issuable upon conversion of the Securities will be, when the
Securities are issued, duly and validly authorized and reserved for
issuance, and such shares, when issued and delivered in accordance
with the provisions of the Securities and the applicable Indenture,
will be duly and validly issued and fully paid and non-assessable; the
issuance of such shares upon conversion will not be subject to
preemptive rights; and the Common Stock conforms in all material
respects to the description thereof in the Prospectus.
(xiv) To the best of his knowledge, there
are no legal or governmental proceedings pending or threatened which
are required to be disclosed in the Registration Statement, other than
those disclosed therein or in documents incorporated by reference
therein, and all pending legal or governmental proceedings to which
the Company or any Principal Subsidiary is a party or to which any of
their property is subject which are not described in the Registration
Statement or documents incorporated by reference therein, including
ordinary routine litigation incidental to the business, are considered
in the aggregate, not material.
20
21
(xv) To the best of his knowledge and
information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments or documents required
to be described or referred to in the Registration Statement or to be
filed as exhibits thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are correct, and no default
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to, filed or incorporated by
reference.
(xvi) No authorization, approval, consent or
order of any court or governmental agency is required in connection
with the sale of the Securities to the Underwriters, except such as
may be required under the 1933 Act, the 1933 Act Regulations, the 1939
Act, the 1939 Act Regulations or state securities laws or the NYSE;
and, to the best of his knowledge, the execution and delivery of this
Agreement, the Pricing Agreement, the applicable Indenture and the
consummation of the transactions contemplated herein will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Principal Subsidiaries
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of them is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of them is subject; nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company, or any applicable law,
administrative regulation or administrative or court decree.
(xvii) Each document filed pursuant to the
1934 Act (other than the financial statements and supporting schedules
included therein, as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference in the
Prospectus complied when so filed as to form in all
21
22
material respects with the 1934 Act and the 1934 Act Regulations.
In rendering the opinions set forth in this paragraph, ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ may rely on such opinions of counsel as he may reasonably request,
provided that such counsel is reasonably satisfactory to counsel for the
Underwriters and that copies of such opinions are attached to his opinion.
(2) The favorable opinion, dated as of Closing Time,
of ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, with respect to the
matters set forth in (i), (v), (viii) through (xiii) and (xvii) of
subsection (b)(1) of this Section. In rendering such opinion, ▇▇▇▇▇▇
& ▇▇▇▇▇ may rely as to the matters set forth in (xvii) of subsection
(b)(1) of this Section and the incorporation of the Company and all
other matters governed by Maryland law upon the opinion of ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ referred to above.
(3) The favorable opinion, dated as of Closing Time,
of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, counsel for the Underwriters,
with respect to the matters set forth in (i), (v) and (viii) through
(xiii) of subsection (b)(1) of this Section. In rendering such
opinion, Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ may rely as to the
incorporation of the Company and all other matters governed by
Maryland law upon the opinion of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ referred to above.
(4) In giving their opinions required by subsections
(b)(1), (b)(2) and (b)(3) of this Section, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇ and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, respectively, shall
each additionally state that although they are not passing upon, and
do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
Prospectus and have not made any independent check or verification
thereof, on the basis of the foregoing (relying as to materiality upon
the opinions of officers and other representatives of the Company)
nothing has come to their respective attention that would lead them to
believe that the Registration Statement, at the time it became effec-
22
23
tive, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, at
Closing Time, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that none of them
expresses any belief with respect to the financial statements and
related schedules or other financial and statistical data included or
incorporated by reference in the Registration Statement or the
Prospectus or with respect to the Statement of Eligibility on Form T-1
of the Trustee).
(c) At Closing Time, there shall not have been,
since the date of the applicable Pricing Agreement or since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and the Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, and the Underwriters shall have received a
certificate of the Chairman of the Board, the President or a Vice President of
the Company and of the chief financial officer or chief accounting officer of
the Company, dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied by it at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or, to the
knowledge of the Company, threatened by the Commission.
(d) The Underwriters shall have received from
Coopers & ▇▇▇▇▇▇▇ or other independent certified public accountants acceptable
to the Representatives letters dated as of the date of the applicable Pricing
Agreement and as of the date of the applicable Closing
23
24
Time, respectively, in form and substance reasonably satisfactory to the
Representatives.
(e) At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated and related proceedings, or
in order to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and sale of
the Securities as herein contemplated shall be reasonably satisfactory in form
and substance to the Underwriters and their counsel.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Pricing
Agreement may be terminated by the Representatives by written notice to the
Company at any time at or prior to Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof. Notwithstanding any such termination, the provisions of Sections 6,
7, 8 and 13 shall remain in effect.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the state-
24
25
ments therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense
whatsoever, as incurred (including, subject to Section 6(c) hereof,
the reasonable fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriters expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration
25
26
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) The Company agrees to indemnify and hold
harmless each Underwriter against any documentary stamp or similar issue tax
and any related interest or penalties on the issue or sale of the Securities to
the Underwriters which are due in the United States of America, the United
Kingdom or any other jurisdiction.
(d) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of any such action. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
except that the Company shall be liable for the fees and expenses of one counsel
representing LMWW and one counsel representing the other Underwriters and the
persons controlling the other Underwriters.
Insofar as this indemnity may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of an Underwriter
or who controls an Underwriter within the meaning of Section 15 of the 1933 Act
and who, at the date of the applicable Pricing Agreement, is a director,
officer or controlling person of the Company, such indemnity agreement is
subject to the undertaking of the Company in the Registration Statement.
SECTION 7. Contribution. In order to provide for just and
equitable contribution in circumstances in
26
27
which the indemnity agreement provided for in Section 6 hereof is for any reason
held to be unenforceable by the indemnified parties although applicable in
accordance with its terms, the Company and the Underwriters shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Company and one or more
of the Underwriters, as incurred, in such proportions that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount set forth in the applicable Pricing Agreement bears to the initial
public offering price set forth in the applicable Pricing Agreement and the
Company is responsible for the balance; provided, however, that no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇
▇▇▇) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) The Representatives may terminate the applicable
Pricing Agreement, by notice to the Company, at any time at or prior to the
applicable Closing Time (i) if there has been, since the date of the applicable
Pricing Agreement or since the respective dates as of which information is
given in the Registration Statement or documents incorporated by reference
therein, any material adverse change in the condition, financial or other-
27
28
wise, or in the earnings, business affairs or business prospects of the Company
and the Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or elsewhere or any
outbreak of hostilities or escalation thereof or other calamity or crisis, the
effect of which is such as to make it, in the judgment of the Underwriters,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in the Common Stock has been suspended by
the Commission, or if trading generally on either the American Stock Exchange or
the New York Stock Exchange has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of said Exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal, New York or Maryland authorities or if a banking moratorium has been
declared by the relevant authorities in the country or countries of origin of
any foreign currency or currencies underlying the Securities.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4. Notwithstanding any such termination,
the provisions of Sections 6, 7, 8 and 13 shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If
one or more of the Underwriters participating in an offering of Securities
shall fail at the applicable Closing Time to purchase the Securities which it
or they are obligated to purchase hereunder and under the applicable Pricing
Agreement (the "Defaulted Securities"), then you, as the Representatives of the
Underwriters, shall use your reasonable efforts to procure within 36 hours
thereafter one or more of the other Underwriters, or any others, to purchase
from the Company such amounts as may be agreed upon and upon the terms set
forth therein and in the applicable Pricing Agreement, the Securities which the
defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Secu-
28
29
rities agreed to be purchased by the defaulting Underwriter or Underwriters,
then (a) if the aggregate amount of the Defaulted Securities does not exceed 10%
of the Securities covered by the applicable Pricing Agreement, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Securities which they are obligated to purchase under such Pricing
Agreement, to purchase the Securities which such defaulting Underwriter or
Underwriters failed to purchase, or (b) if the aggregate amount of the Defaulted
Securities exceeds 10% of the Securities covered by the applicable Pricing
Agreement, the Company or you as the Representatives of the Underwriters will
have the right, by written notice given within the next 36-hour period to the
parties to the applicable Pricing Agreement, to terminate the applicable Pricing
Agreement without liability on the part of any nondefaulting Underwriter.
No action pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of the applicable Pricing Agreement, either the non-defaulting
Underwriter or Underwriters, as the case may be, or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangement.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be directed as set forth in the applicable Pricing
Agreement; notices to the Company shall be directed to it at ▇▇▇▇ ▇▇▇▇▇, Inc.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Senior Executive Vice President.
SECTION 12. Parties. This Agreement and each applicable
Pricing Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement or any such Pricing Agreement is
intended or shall be construed to give
29
30
any person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any Pricing Agreement or any provision herein or
therein contained. This Agreement and each applicable Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement and the
Pricing Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State. Except as otherwise set forth herein, specified times of day
refer to New York time.
30
31
Very truly yours,
▇▇▇▇ ▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
31
32
Exhibit A
▇▇▇▇ ▇▇▇▇▇, INC.
(a Maryland corporation)
___% Debt Securities due _____
PRICING AGREEMENT
___________, 199_
[Name and address of the
Underwriter(s) or Representative(s)
of the Underwriter(s), if any]
Dear Sirs:
▇▇▇▇ ▇▇▇▇▇, Inc., a Maryland corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated __________, 1996 (the "Underwriting Agreement"),
to issue and sell to [___________ (the "Underwriter(s)")] [the several
Underwriters listed on Schedule I hereto, for whom ____________ is/are acting
as representative(s) (the "Representative(s)")], the Securities specified
herein (the "Securities"). This agreement is the Pricing Agreement relating to
the Securities referred to in the Underwriting Agreement.
Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Pricing Agreement to the same extent as if such provisions had
been set forth in full herein. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
The address of the Underwriter(s) referred to in Section 11 of the Under-
A-1
33
writing Agreement is ______________________, Attention: ______________.
An amendment to the Registration Statement, or the Prospectus
Supplement, as the case may be, relating to the Securities, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and to sell to the Underwriters, and the Underwriters agree to
purchase from the Company, at the time and place and at the purchase price to
the Underwriters set forth herein, the aggregate principal amount of
Securities.
Pursuant to Section 2 of the Underwriting Agreement, the
Company agrees with the Underwriters as follows:
Title of Debt Securities:
Whether Senior or Subordinated Debt Securities:
Indenture (if other than as specified in the
Underwriting Agreement):
Principal amount to be issued: $
Current ratings:
Interest rate: % Payable
Date of maturity:
[Currency of Denomination:
Currency of Payment:
Form and Denomination:
Overseas Paying Agent:]
Redemption provisions:
Conversion:
Sinking fund requirements:
[Public offering price: %, plus accrued interest, or
amortized original issue discount, if any,
from , 19 .]
Purchase price: %, plus accrued interest, or amortized
original issue discount, if any, from 19 (payable in
next day funds).
Closing date and location:
This Agreement shall be governed by the laws of the State of
New York.
A-2
34
------------
If the foregoing is in accordance with your understanding of
the agreement between you and the Company, please sign and return to the
Company a counterpart hereof, whereupon this instrument along with all
counterparts (including the provisions of the Underwriting Agreement
incorporated by reference herein) shall be a binding agreement between the
Underwriter and the Company in accordance with its terms and the terms of the
Underwriting Agreement.
Very truly yours,
▇▇▇▇ ▇▇▇▇▇, INC.
By:
--------------
Name:
Title:
Accepted as of the date first above written:
UNDERWRITER(S) or
REPRESENTATIVE(S),
on behalf of the several Underwriters
named in Schedule I hereto
By:
-----------------------------------------
Name:
Title:
A-3
35
SCHEDULE I
Aggregate
Principal
Amount
Name of Underwriter of Securities
------------------- -------------
TOTAL..............................................
A-4
36
SCHEDULE II
Principal Subsidiaries of the Company
[to be revised at Pricing if necessary]
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
▇▇▇▇▇▇ ▇▇▇▇ Financial Corporation
Howard, Weil, Labouisse, ▇▇▇▇▇▇▇▇▇▇ Incorporated
Western Asset Management Company
▇▇▇▇ ▇▇▇▇▇ Real Estate Services, Inc.
▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇ Fund Adviser, Inc.
Batterymarch Financial Management, Inc.
▇▇▇▇▇▇▇▇ & Co.
A-5