Exhibit 1.1
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▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
(a Delaware corporation)
▇▇▇▇▇▇▇ ▇▇▇▇▇ PREFERRED FUNDING II, L.P.
(a Delaware limited partnership)
▇▇▇▇▇▇▇ ▇▇▇▇▇ PREFERRED CAPITAL TRUST II
(a Delaware business trust)
______% Trust Originated Preferred Securities(SM) ("TOPrS(SM)")
PURCHASE AGREEMENT
Dated: February __, 1997
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Table of Contents
Page
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SECTION 1. Representations and Warranties.................................. 5
(a) Representations and Warranties by the Company.................. 5
(i) Compliance with Registration Requirements.............. 5
(ii) Incorporated Documents................................. 6
(iii) Independent Accountants................................ 6
(iv) Financial Statements................................... 6
(v) No Material Adverse Change in Business................. 7
(vi) Good Standing of the Company........................... 7
(vii) Good Standing of Subsidiaries.......................... 7
(viii) Authorization of Agreement............................. 8
(ix) Authorization of the Debentures and
Indentures......................................... 8
(x) Authorization of Investment Guarantees................. 8
(xi) Due Authorization of Additional
Agreements......................................... 9
(xii) Description of Additional Agreements .................. 9
(xiii) Absence of Defaults and Conflicts...................... 9
(xiv) Absence of Labor Dispute............................... 10
(xv) Absence of Proceedings................................. 10
(xvi) Exhibits............................................... 10
(xvii) Absence of Further Requirements........................ 10
(xviii) Possession of Intellectual Property.................... 11
(xix) Possession of Licenses and Permits..................... 11
(xx) Title to Property...................................... 11
(xxi) Rating of Securities................................... 12
(xxii) Investment Company Act.
(xxiii) Authorization of Trust Guarantee....................... 12
(xxiv) Authorization of Partnership Guarantee................. 13
(b) Officers' Certificates......................................... 13
(c) Representations and Warranties by the Trust,
Partnership and Company........................................ 13
(i) Good Standing of Trust................................. 13
(ii) Authorization of Declaration........................... 13
(iii) Authorization of Trust Common Securities............... 14
(iv) Authorization of Trust Preferred
Securities......................................... 14
(v) Regular Trustees....................................... 14
(vi) Good Standing of the Partnership....................... 14
(vii) Authorization of Partnership Agreement................. 15
(viii) Authorization of Partnership Preferred
Securities......................................... 15
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Table of Contents (cont'd)
Page
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(ix) General Partner Status................................. 15
(x) Investment Company Act................................. 15
(xi) Absence of Conflicts................................... 15
(xii) Absence of Further Requirements........................ 16
(xiii) Absence of Proceedings................................. 16
SECTION 2. Sale and Delivery to Underwriters; Closing...................... 16
(a) Securities..................................................... 16
(b) Payment........................................................ 17
(c) Denominations; Registration.................................... 18
SECTION 3. Covenants of the Offerors....................................... 18
(a) Compliance with Securities Regulations and
Commission Requests......................................... 18
(b) Filing of Amendments........................................... 18
(c) Delivery of Registration Statements............................ 19
(d) Delivery of Prospectuses....................................... 19
(e) Continued Compliance with Securities Laws...................... 19
(f) Blue Sky Qualifications........................................ 20
(g) Rule 158....................................................... 20
(h) Use of Proceeds................................................ 20
(i) Listing........................................................ 21
(j) Reporting Requirements......................................... 21
SECTION 4. Payment of Expenses............................................. 21
(a) Expenses....................................................... 21
(b) Termination of Agreement....................................... 21
SECTION 5. Conditions of Underwriters' Obligations......................... 22
(a) Effectiveness of Registration Statement........................ 22
(b) Opinion of Counsel for Company................................. 22
(c) Opinion of Counsel for Underwriters............................ 22
(d) Opinion of Counsel for the Property Trustee.................... 23
(e) Officers' Certificate.......................................... 23
(f) Accountant's Comfort Letter.................................... 23
(g) Bring-down Comfort Letter...................................... 24
(h) Maintenance of Rating.......................................... 24
(i) Approval of Listing............................................ 24
(j) Additional Documents........................................... 24
(k) Termination of Agreement....................................... 24
(l) No Objection................................................... 25
(a) Indemnification of Underwriters................................ 25
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Table of Contents (cont'd)
Page
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(b) Indemnification of Offerors, Directors and
Officers....................................................... 26
(c) Actions against Parties; Notification.......................... 26
(d) Settlement without Consent if Failure to
Reimburse...................................................... 27
SECTION 7. Contribution.................................................... 27
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery..................................................... 29
SECTION 9. Termination of Agreement........................................ 29
(a) Termination; General........................................... 29
(b) Liabilities.................................................... 30
SECTION 10. Default by One or More of the Underwriters..................... 30
SECTION 11. Notices........................................................ 31
SECTION 12. Parties........................................................ 31
SECTION 13. Governing Law and Time......................................... 31
SECTION 14. Effect of Headings............................................. 31
SCHEDULE A........................................................Schedule A-1
SCHEDULE B........................................................Schedule B-1
EXHIBIT A..................................................................A-1
EXHIBIT B..................................................................B-1
EXHIBIT C..................................................................C-1
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▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
(a Delaware corporation)
▇▇▇▇▇▇▇ ▇▇▇▇▇ PREFERRED FUNDING II, L.P.
(a Delaware limited partnership)
▇▇▇▇▇▇▇ ▇▇▇▇▇ PREFERRED CAPITAL TRUST II
(a Delaware business trust)
12,000,000 Trust Preferred Securities
______% Trust Originated Preferred Securities(SM) ("TOPrS(SM)")
(Liquidation Amount of $25 per Preferred Security)
PURCHASE AGREEMENT
February __, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Preferred Capital Trust II (the "Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Trust Act")
of the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
▇▇.▇▇. 3801 et seq.), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Preferred Funding II, L.P. (the
"Partnership"), a limited partnership organized under the Revised Uniform
Limited Partnership Act (the "Delaware Partnership Act") of the State of
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(SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
Delaware (Chapter 17, Title 6, of the Delaware Code, 6 Del. C. ▇▇.▇▇. 17101 et
seq.), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc., a Delaware corporation (the "Company" and,
together with the Trust and the Partnership, the "Offerors"), confirm their
agreement (the "Agreement") with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other Underwriters
named in Schedule A hereto (collectively, the "Underwriters", which term shall
also include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ and __________, are acting as representatives
(in such capacity, they shall hereinafter be referred to as the
"Representatives"), with respect to the issue and sale by the Trust and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of ___% Trust Originated Preferred Securities (liquidation
amount of $25 per preferred security) representing preferred undivided
beneficial ownership interests in the assets of the Trust ("TOPrS" or the "Trust
Preferred Securities") set forth in said Schedule A. The Company will own all
the common securities (the "Trust Common Securities" and, together with the
Trust Partnership Securities, the "Trust Securities"), representing undivided
beneficial ownership interests in the assets of the Trust. The Trust Preferred
Securities and the Trust Common Securities will be issued pursuant to the
amended and restated declaration of trust of the Trust, dated as of February __,
1997 (the "Declaration"), among the Company, as Sponsor, ▇▇▇▇▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as regular trustees (the "Regular Trustees"), The Chase
Manhattan Bank, a national banking association, as institutional trustee (the
"Property Trustee") and Chase Manhattan Bank Delaware, a Delaware corporation,
as Delaware trustee (the "Delaware Trustee" and, together with the Regular
Trustees and the Property Trustee, the "Issuer Trustees"), and the holders from
time to time of undivided beneficial interests in the assets of the Trust. The
Trust Preferred Securities will be guaranteed by the Company, to the extent set
forth in the Prospectus with respect to distributions and payments upon
liquidation, redemption and otherwise pursuant to the Trust Preferred Securities
Guarantee Agreement (the "Trust Guarantee"), dated as of February __, 1997,
between the Company and The Chase Manhattan Bank, as trustee (the "Guarantee
Trustee").
The proceeds from the sale of the Trust Securities will be used by
the Trust to purchase partnership preferred securities ("Partnership Preferred
Securities"), representing all of the limited partner interests of the
Partnership. All of the general partner interests will be owned by the Company,
which initially shall be sole general partner (in such capacity, the "General
Partner"). The Partnership Preferred Securities will be issued pursuant to an
amended and restated agreement of limited partnership, dated as of February __,
1997 (the "Partnership Agreement"), among the Company, as general partner, and
Merrill
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▇▇▇▇▇ Group, Inc., as initial limited partner, and such other persons who become
limited partners thereto, and will be guaranteed by the Company, to the extent
set forth in the Prospectus, with respect to distributions and payments upon
liquidation and redemption pursuant to the Partnership Guarantee Agreement (the
"Partnership Guarantee" and, together with the Trust Guarantee, the
"Guarantees"). The Trust Preferred Securities and the related Trust Guarantee,
together with the Partnership Preferred Securities and the related Partnership
Guarantee, are referred to herein as the "Offered Securities."
The Partnership will use the proceeds from the sale of the
Partnership Preferred Securities and the capital contribution of the General
Partner to acquire, among other things, (i) a subordinated debenture (the
"Company Debenture") of the Company and (ii) senior debentures of one or more
wholly-owned subsidiaries of the Company (the "Investment Subsidiaries", and
together with the Company, the "Investment Affiliates"). The debentures to be
issued by the Investment Subsidiaries (collectively, the "Subsidiary Debentures"
and, together with the Company Debenture, the "Debentures") are to be fully and
unconditionally guaranteed by the Company (the "Investment Guarantees"). Each of
the Debentures shall be issued pursuant to an indenture (each an "Indenture"),
to be dated as of February __, 1997, among the applicable Investment Affiliate,
The Chase Manhattan Bank, as trustee (the "Debt Trustee"), and with respect to
the Debentures issued by the Investment Subsidiaries, the Company, as guarantor
(the "Debenture Guarantor").
The Offerors understand that the Underwriters propose to make a
public offering of the Offered Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered and the
Declaration, Trust Guarantee, Indenture relating to the Company Debenture and
the Investment Guarantees have been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act").
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-20137) covering
the registration under the Securities Act of 1933, as amended (the "1933 Act"),
of (i) the Trust Preferred Securities, (ii) the Trust Guarantee, (iii) the
Partnership Preferred Securities, (iv) the Partnership Guarantee, (v) the
Company Debenture and (vi) the Investment Guarantees. Promptly after execution
and delivery of this Agreement, the Offerors will either (i) prepare and file a
prospectus in accordance with the provisions of Rule 430A ("Rule 430A") of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act
Regulations or (ii) if the Company has elected to rely upon Rule 434 ("Rule
434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in
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accordance with the provisions of Rule 434 and Rule 424(b). The information
included in such prospectus or in such Term Sheet, as the case may be, that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred to as "Rule
430A Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information." Each prospectus used before such registration statement
became effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus". Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement". Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement", and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
the offering of the Securities is herein called the "Prospectus". If Rule 434 is
relied on, the term "Prospectus" shall refer to the preliminary prospectus dated
December 5, 1996 together with the Term Sheet and all references in this
Agreement to the date of the Prospectus shall mean the date of the Term Sheet.
For purposes of this Agreement, all references to the Registration Statement,
any preliminary prospectus, the Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and
schedules and other information which are "contained", "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference in the
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Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to each Underwriter as of the date hereof, and as of the Closing
Time referred to in Section 2(b) hereof, and agrees with each underwriter, as
follows:
(i) Compliance with Registration Requirements. The Offerors meet the
requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, any Rule 462(b)
Registration Statement and any amendments and supplements thereto complied and
will comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), and did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. At the date of the Prospectus and at the Closing Time, the
Prospectus and any amendments or supplements thereto did not and will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is used,
the Offerors will comply with the requirements of Rule 434. The representations
and warranties in this subsection shall not apply to (A) 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 through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement or Prospectus or (B) that part of the Registration Statement that
constitutes the Statement of Eligibility on Form T-1 (the "Form T-1") under the
1939 Act of a trustee.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part
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of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act Regulations
and each preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the Prospectus,
at the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time, 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.
(iii) Independent Accountants. The accountants who certified the
financial statements and any supporting Schedules thereto included in the
Registration Statement and the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements of the Company
included in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
statements of consolidated earnings, consolidated stockholders' equity and
consolidated cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement present fairly in accordance with GAAP
the information of the Company required to be stated therein. The selected
financial data and the summary financial information included in the
Registration Statement and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements incorporated by reference in the Registration Statement and
the Prospectus.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no material
adverse change in
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the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those arising in the ordinary
course of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise and (C) except for regular quarterly
dividends on its outstanding common stock, par value $1.331/3 per share, of the
Company and regular dividends on its outstanding preferred stock in amounts per
share that are consistent with the terms of such preferred stock, there has been
no dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each subsidiary of the Company
which is a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X
under the 1933 Act (each a "Subsidiary" and, collectively, the "Subsidiaries")
has been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of each Subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; and none of the
outstanding shares of capital stock of any Subsidiary was issued in violation of
preemptive or similar rights of any securityholder of such Subsidiary. The only
subsidiaries of the
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Company are (A) the subsidiaries listed in Exhibit 21 to the Annual Report on
Form 10-K of the Company filed with the Commission under Section 13 of the 1934
Act and (B) certain other subsidiaries which, considered in the aggregate as a
single subsidiary, do not constitute a "significant subsidiary" as defined in
Rule 1-02 of Regulation S-X under the 1933 Act.
(viii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Offerors.
(ix) Authorization of the Debentures and Indentures. Each Indenture
has been duly authorized, and at the Closing Time, will have been duly executed
and delivered by the applicable Investment Affiliate and, when duly executed and
delivered by the Debt Trustee, will constitute a valid and binding agreement of
such Investment Affiliate enforceable against such Investment Affiliate in
accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) (the "Bankruptcy Exceptions").
The Indenture of the Company has been duly qualified under the 1939 Act. The
Debentures have been duly authorized for issuance and sale pursuant to this
Agreement and, at the Closing Time, will have been duly executed by the
applicable Investment Affiliate and, when authenticated, issued and delivered in
the manner provided for in the applicable Indenture and delivered against
payment of the purchase price therefor as provided in this Agreement, will
constitute valid and legally binding obligations of such Investment Affiliate,
enforceable against such Investment Affiliate in accordance with their terms,
except as the enforcement thereof may be limited by the Bankruptcy Exceptions.
(x) Authorization of Investment Guarantees. The Investment
Guarantees have been duly authorized and, at the Closing Time, will have been
duly executed and delivered by the Debenture Guarantor, and, when authenticated
in the manner provided in the Investment Guarantee, will constitute a valid and
binding obligation of the Debenture Guarantor, enforceable against the Debenture
Guarantor in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions. The Investment Guarantees
have been duly qualified under the ▇▇▇▇ ▇▇▇.
(xi) Due Authorization of Additional Agreements. Each of the Trust
Guarantee, Partnership Guarantee and Investment Guarantees (the "Transaction
Documents") and the Debentures and Indentures has been duly authorized, executed
and delivered by the applicable Investment Affiliate, and each agreement
8
constitutes a valid and binding agreement of the applicable Investment
Affiliate, except as enforcement thereof may be limited by the Bankruptcy
Exceptions.
(xii) Description of Additional Agreements. The Offered Securities
and the Declaration, the Partnership Agreement, the Trust Guarantee and the
Partnership Guarantee will conform in all material respects to the respective
statements relating thereto contained in the Prospectus and will be in
substantially the respective forms filed or incorporated by reference, as the
case may be, as exhibits to the Registration Statement.
(xiii) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or any
subsidiary is subject (collectively, "Agreements and Instruments"), except for
such defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of the Transaction Documents by the Company,
the Debentures and the Indentures by the Company or the applicable Investment
Subsidiary, as the case may be, and any other agreement or instrument entered
into or issued or to be entered into or issued by the Company in connection with
the transactions contemplated hereby or thereby or in the Registration Statement
and the Prospectus and the consummation of the transactions contemplated herein
and in the Registration Statement and the Prospectus (including the issuance and
sale of the Offered Securities and the use of the proceeds from the sale of the
Offered Securities as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations hereunder and
thereunder do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or a default
or Repayment Event (as defined below) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary of the Company pursuant to, the Agreements and
Instruments (except for such conflicts, breaches, defaults, events, liens,
charges or encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the charter or
by-laws of the Company or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their assets, properties or operations. As
used herein, a "Repayment Event" means any event or condition
9
which gives the holder of any note, debenture or other evidence of indebtedness
of the Company or any of its subsidiaries (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any of its subsidiaries.
(xiv) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent, which may reasonably be expected to result in a Material
Adverse Effect.
(xv) Absence of Proceedings. There is not any action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company or any of
its subsidiaries, which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the assets,
properties, or operations thereof or the consummation of the transactions
contemplated in the Transaction Documents and the Debentures and the Indentures
or the performance by the Company and the applicable Investment Affiliate,
respectively, of their obligations hereunder and thereunder; and the aggregate
of all pending legal or governmental proceedings to which the Company or any of
its subsidiaries is a party or of which any of their respective assets,
property, or operations is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xvi) Exhibits. There are no contracts or documents which are of a
character required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(xvii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations under this
Agreement, in connection with the offering, issuance or sale of the Offered
Securities hereunder or the consummation of the transactions contemplated under
this Agreement, or the due execution, delivery or performance of any Indenture
except such as have been already obtained or as may be required under the 1933
Act or the 1933 Act Regulations or state securities laws.
10
(xviii) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
trademarks, service marks, trade names and other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business now
operated by them, except where the failure to own or possess or the lack of
ability to acquire such Intellectual Property, singly or in the aggregate, would
not result in a Material Adverse Effect, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly
or in the aggregate, would result in a Material Adverse Effect.
(xix) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, except where the failure to so
possess such Governmental Licenses would not, singly or in the aggregate, have a
Material Adverse Effect; the Company and its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full force and
effect, except where the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xx) Title to Property. The Company and its subsidiaries have good
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind, except such as (A) are described in
the Registration Statement and the Prospectus or (B) do not, singly or in the
aggregate, materially affect the value of such property, do not interfere with
the use made and proposed to be made of such property by the Company or any of
its subsidiaries and do not, singly or in the aggregate have a Material Adverse
Effect; and all of the leases and subleases
11
material to the business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries holds
properties described in the Prospectus, are in full force and effect, except
where the failure of such leases or subleases to be in full force and effect
would not have a Material Adverse Effect, and neither the Company nor any
subsidiary has any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any subsidiary under
any of the leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xxi) Rating of Securities. Subsequent to the execution and delivery
of this Agreement and prior to the Closing Time (i) no downgrading shall have
occurred in the rating accorded the Trust Preferred Securities or the Company's
senior long-term debt securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Trust Preferred Securities or any of the
Company's debt securities.
(xxii) Investment Company Act. The Company is not, and upon the
issuance and sale of the Trust Preferred Securities as herein contemplated and
the application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of 1940, as
amended (the "1940 Act").
(xxiii) Authorization of Trust Guarantee. The Trust Guarantee has
been duly authorized by the Company and, when validly executed and delivered by
the Company, and, assuming due authorization, execution and delivery of the
Trust Guarantee by the Guarantee Trustee, will constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions; the Trust Guarantee will conform to all statements
relating thereto contained in the Prospectus; and the Trust Preferred Guarantee
Agreement, at the Closing Time, will have been duly qualified under the 1939
Act.
(xxiv) Authorization of Partnership Guarantee. The Partnership
Guarantee has been duly authorized by the Company and, when validly executed and
delivered by the Company will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms
12
except to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate
and, unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
(c) Representations and Warranties by the Trust, Partnership and Company.
The Offerors, jointly and severally, represent and warrant to each Underwriter
as of the date hereof, and as of the Closing Time referred to in Section 2(b)
herein, as follows:
(i) Good Standing of Trust. The Trust has been duly created and is
validly existing in good standing as a business trust under the Delaware Trust
Act with the power and authority to own property and to conduct its business as
described in the Registration Statement and Prospectus and to enter into and
perform its obligations under this Agreement, the Trust Preferred Securities,
the Trust Common Securities and the Declaration; the Trust is duly qualified to
transact business as a foreign business trust and is in good standing in any
other jurisdiction in which such qualification is necessary, except to the
extent that the failure to so qualify or be in good standing would not have a
material adverse effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Prospectus; and the
Trust is and will be treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(ii) Authorization of Declaration. The Declaration has been duly
authorized by the Company and, at the Closing Time, will have been duly executed
and delivered by the Company, as Sponsor, and the Trustees, and assuming due
authorization, execution and delivery of the Declaration by the Property
Trustee, the Declaration will, at the Closing Time, be a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions, and will conform to all statements relating thereto in
the Prospectus; and at the Closing Time, the Declaration will have been duly
qualified under the 1939 Act.
(iii) Authorization of Trust Common Securities. The Trust Common
Securities have been duly authorized by the Declaration and, when issued and
delivered by the Trust to the Company against payment therefor as described in
the Registration
13
Statement and Prospectus, will be validly issued and (subject to the terms of
the Declaration) fully paid undivided beneficial interests in the assets of the
Trust and will conform to all statements relating thereto contained in the
Prospectus; the issuance of the Trust Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time all of the issued
and outstanding Trust Common Securities of the Trust will be directly owned by
the Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(iv) Authorization of Trust Preferred Securities. The Trust
Preferred Securities have been duly authorized by the Declaration and, when
issued and delivered against payment of the consideration set forth in this
Agreement, will be validly issued and (subject to the terms of the Declaration)
fully paid and nonassessable undivided beneficial interests in the Trust, will
be entitled to the benefits of the Declaration and will conform to all
statements relating thereto contained in the Prospectus; the issuance of the
Trust Preferred Securities is not subject to preemptive or other similar rights;
and (subject to the terms of the Declaration) holders of Trust Preferred
Securities will be entitled to the same limitation of personal liability under
Delaware law as extended to stockholders of private corporations for profit.
(v) Regular Trustees. Each of the Regular Trustees of the Trust is
an employee of the Company; the Declaration has been duly executed and delivered
by the Regular Trustees and is a valid and binding obligation of each Regular
Trustee, enforceable against such Regular Trustee in accordance with its terms
except to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions.
(vi) Good Standing of the Partnership. The Partnership has been duly
formed and is validly existing in good standing as a limited partnership under
the Delaware Partnership Act with the power and authority to own property and to
conduct its business as described in the Registration Statement and Prospectus
and to enter into and perform its obligations under this Agreement, the
Partnership Preferred Securities and the Partnership Agreement; the Partnership
is duly qualified to transact business as a foreign limited partnership and is
in good standing in any other jurisdiction in which such qualification is
necessary, except to the extent that the failure to so qualify or be in good
standing would not have a material adverse effect on the Partnership; the
Partnership is not a party to or otherwise bound by any agreement other than
those described in the Prospectus; and the Partnership is and will be treated as
a consolidated subsidiary of the Company pursuant to generally accepted
accounting principles.
14
(vii) Authorization of Partnership Agreement. The Partnership
Agreement has been duly authorized by the Company as general partner and, on the
Closing Date, will have been duly executed and delivered by the Company, and
will be a valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions, and will
conform to the description thereof in the Prospectus.
(viii) Authorization of Partnership Preferred Securities. The
Partnership Preferred Securities have been duly authorized by the Partnership
Agreement and, when issued and delivered pursuant to the Partnership Agreement
against payment of the consideration set forth therein, will be duly issued and
fully paid and not subject to assessment for additional capital contributions,
will be entitled to the benefits of the Partnership Agreement and will conform
to the description thereof in the Prospectus; the issuance of the Partnership
Preferred Securities is not subject to preemptive or other similar rights;
assuming that the holders of Partnership Preferred Securities in their
capacities as such do not participate in the control of the business of the
Company, the holders of the Partnership Preferred Securities, in their
capacities as such, will have no liability in excess of their obligations to
make payments provided for in the Limited Partnership Agreement (subject to the
obligation of a holder of Partnership Preferred Securities to repay any funds
distributed to it).
(ix) General Partner Status. The Company is the sole general partner
of the Partnership.
(x) Investment Company Act. Neither the Trust nor the Partnership is
and, after giving effect to the offering and sale of the Trust Preferred
Securities and the application of the proceeds thereof as described in the
Prospectus, neither will be an "investment company" under the 1940 Act.
(xi) Absence of Conflicts. The Trust is not in violation of the
Declaration or its certificate of trust filed with the State of Delaware, dated
January 16, 1997 (the "Certificate of Trust"); the Partnership is not in
violation of the Partnership Agreement or the certificate of limited
partnership, dated January 16, 1997 (the "Certificate of Partnership"); and the
execution, delivery and performance of applicable Transaction Documents by the
Partnership and the Trust and the consummation of the transactions contemplated
herein and therein and compliance by the Partnership and the Trust with their
respective obligations hereunder and thereunder have been duly authorized by all
necessary action on the part of the Partnership and the Trust and do not and
will not result in any violation of the Declaration or Certificate of Trust or
the
15
Partnership Agreement or the Certificate of Partnership and do not and will not
conflict with, or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Trust or the
Partnership under any existing applicable law, rule, regulation, judgment, order
or decree of any government, governmental instrumentality or court, domestic or
foreign, or any regulatory body or administrative agency or other governmental
body having jurisdiction over the Trust or the Partnership of their respective
properties.
(xii) Absence of Further Requirements. No authorization, approval,
consent or order of any court or governmental authority or agency is necessary
in connection with the issuance, offer and sale of the Trust Securities and the
Partnership Preferred Securities, the consummation of the transactions
contemplated by this Agreement by the Partnership or the Trust, or the
execution, delivery, and performance by the Partnership or the Trust of the
applicable Transaction Documents, except such as may be required under the 1933
Act or the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations or
state securities laws and the qualification of the Declaration and the Trust
Guarantee under the 1939 Act.
(xiii) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending or, to
the knowledge of the Trust or the Partnership, threatened against or affecting
the Trust or the Partnership that is required to be disclosed in the Prospectus
or that would result in any material adverse change in the condition (financial
or otherwise), earnings or business affairs of the Trust or the Company and its
subsidiaries, taken as a whole, or that would materially and adversely affect
the properties or assets of the Trust or the Partnership, or that could
adversely affect the consummation of the transactions contemplated in this
Agreement.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the initial public offering price set forth in Schedule B, the number of Trust
Preferred Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Trust Preferred Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
16
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Trust Preferred Securities shall be made at the offices of
(i) ▇▇▇▇▇ & ▇▇▇▇ LLP, or at such other place as shall be agreed upon by the
Representatives and the Company, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representatives and the Company
(such time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
such persons designated by the Representatives for the respective accounts of
the Underwriters of a certificate in global form for the Trust Preferred
Securities to be purchased by them. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Trust Preferred Securities
which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Trust Preferred Securities to be purchased
by any Underwriter whose funds have not been received by the Closing Time, but
such payment shall not relieve such Underwriter from its obligations hereunder.
The purchase price per Trust Preferred Security to be paid by the
several Underwriters for the Trust Preferred Securities shall be an amount equal
to the initial public offering price as set forth in Schedule B. The initial
public offering price per Trust Preferred Security shall be a fixed price to be
determined by agreement between the Representatives and the Offerors. The
initial public offering price and the purchase price, when so determined, shall
be set forth in Schedule B.
As compensation to the Underwriters for their commitments hereunder
and in view of the fact that the proceeds of the sale of the Trust Preferred
Securities will ultimately be used to purchase the Debentures of the Company and
the Investment Subsidiaries, the Company hereby agrees to pay at Closing Time to
the Representatives, for the accounts of the several Underwriters, a commission
per Trust Preferred Security set forth on Schedule B.
At the Closing Time, the Company will pay, or cause to be paid, the
commission payable at such time to the Underwriters under Section 2 hereof by
wire transfer of immediately available
17
funds to a bank account designated by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated for the account of the Underwriters.
(c) Denominations; Registration. Certificates for the Trust Preferred
Securities shall be in such denominations and registered in such names as the
Representatives may request in writing at least two full business days before
the Closing Time. The Trust Preferred Securities will be made available for
examination and packaging by the Representatives in The City of New York not
later than 9:00 A.M. (Eastern time) on one business day prior to the Closing
Time.
SECTION 3. Covenants of the Offerors. The Offerors covenant with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Offerors, subject to Section 3(b), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Representatives
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission, (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, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the Offered
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Offerors will
promptly effect the filings necessary pursuant to Rule 424(b) and will take such
steps they deem necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. During the period when the Underwriters are
required to deliver a prospectus with respect to the Offered Securities, the
Offerors will give the Representatives notice of their intention to file or
prepare any amendment to the Registration Statement (including any filing under
Rule 462(b)), any Term Sheet or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise, will furnish the Representatives with copies of any such documents
a
18
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Representatives or
counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Offerors have furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and conformed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Offerors have delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Offerors hereby consent to the
use of such copies for purposes permitted by the 1933 Act. The Offerors will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Offerors will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations with respect to the
offer of the Offered Securities so as to permit the completion of the
distribution of the Trust Preferred Securities as contemplated in this Agreement
and in the Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Trust Preferred Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters and for the Company,
to amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing
19
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Offered Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Offered 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 and any Rule
462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use or cause to be used the net
proceeds received by and from the sale of the Offered Securities in the manner
specified in the Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the listing
of the Trust Preferred Securities on the New York Stock Exchange.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed
20
with the Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, the Declaration, the Partnership Agreement, and the Indentures and
such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities, (iii) the preparation,
issuance and delivery of the certificates for the Trust Preferred Securities to
the Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Offered Securities
under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectus and any amendments or supplements thereto, (vii)
the copying of the Agreement Among Underwriters (viii) the preparation, printing
and delivery to the Underwriters of copies of the Blue Sky Survey and any
supplement thereto, (ix) the fees and expenses of the Property Trustee, the
Regular Trustees, the Delaware Trustee and the Trust Guarantee Trustee,
including the fees and disbursements of counsel for the Trustees in connection
with the Indentures, the Investment Guarantees and the Debentures, (x) any fees
payable in connection with the rating of the Trust Preferred Securities, and
(xi) the fees and expenses incurred in connection with the listing of the
Offered Securities on the New York Stock Exchange; provided, however that the
Underwriters shall reimburse the Company for certain expenses incurred in
connection with the transactions contemplated by this Agreement as may be agreed
upon in writing.
(b) Termination of Agreement. If this 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 for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof or
in certificates of any
21
officer of the Company, the Trust, the Partnership or any subsidiary of the
Company delivered pursuant to the provisions hereof, to the performance by the
Offerors of their covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Representatives
shall have received the favorable opinion, dated as of Closing Time, of (i)
▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Company, the Trust and the Partnership, in form
and substance satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit A hereto and (ii) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ (Delaware), special Delaware counsel to the Company, the Trust, and the
Partnership, in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for the Company and
each of the Underwriters to the effect set forth in Exhibit B hereto. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters in form and substance satisfactory to the Underwriters. In giving
such opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal law of
the United States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to the Representatives. Such counsel may
also state that, insofar as
22
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(d) Opinion of Counsel for the Property Trustee. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Property Trustee in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letters for each of the other Underwriters to the effect set
forth in Exhibit C hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus except as stated therein, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole, whether
or not arising in the ordinary course of business, and the Representatives shall
have received a certificate of the President or a Vice President of the Company
and of the chief financial 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 l(a) hereof are true
and correct in all material respects with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or are contemplated by the
Commission.
(f) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Deloitte & Touche LLP, a
letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus in a form acceptable to the
Representatives.
(g) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from Deloitte & Touche LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to
23
subsection (f) of this Section, except that the specified date referred to shall
be a date not more than three business days prior to Closing Time.
(h) Maintenance of Rating. At Closing Time, the Trust Preferred Securities
shall be rated at least "aa3" by ▇▇▇▇▇'▇ Investors Service Inc. and "A" by
Standard & Poor's Ratings Services, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. and the Company shall have delivered to the Representatives a letter dated
on or prior to the Closing Time, from each such rating agency, or other evidence
satisfactory to the Representatives, confirming that the Trust Preferred
Securities have such ratings; and since the date of this Agreement, there shall
not have occurred a downgrading in the rating assigned to the Trust Preferred
Securities or the Company's debt securities by any "nationally recognized
statistical rating agency," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall
have publicly announced that it has under surveillance or review, its rating of
the Trust Preferred Securities or any of the Company's debt securities.
(i) Approval of Listing. At Closing Time, the Trust Preferred Securities
shall have been approved for listing on the New York Stock Exchange, subject
only to official notice of issuance.
(j) Additional Documents. 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, 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 Representatives
and counsel for the Underwriters.
(k) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by 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 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
(l) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
24
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Offerors agree jointly and
severally to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(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), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact 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 statements
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; provided that (subject to Section 6(d) below) any 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 fees and disbursements of
counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not
paid under (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 Offerors by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if
25
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Offerors, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Offerors, directors of the
Company, the General Partner of the Partnership, the Issuer Trustees of the
Trust, each of the officers of the Offerors who signed the Registration
Statement, and each person, if any, who controls any of the Offerors within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of
26
which indemnification or contribution could be sought under this Section 6 or
Section 7 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offeror on the one
hand and the Underwriters on the other hand from the offering of the Trust
Preferred Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Offerors on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Offerors on the one hand and
the Underwriters on the other hand in connection with the offering of the Trust
Preferred Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Trust Preferred Securities pursuant to this Agreement (before deducting expenses
but after deducting the total underwriting commission received by the
Underwriters) received by the Offerors
27
and the total underwriting commission received by the Underwriters, in each case
as set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet, bear to the aggregate initial public
offering price of the Trust Preferred Securities as set forth on such cover.
The relative fault of the Offerors on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Offerors and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Trust Preferred Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, the General Partner of the Partnership, the Issuer
Trustees of the Trust, each officer of the Offerors who signed
28
the Registration Statement, and each person, if any, who controls any of the
Offerors within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the principal amount of Securities set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Offerors or any of its subsidiaries 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 Offerors, and shall survive delivery of the
Trust Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus any material
adverse change in the condition, financial or otherwise, or in the earnings or
business affairs or business prospects of the Company and its subsidiaries taken
as a whole, 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 the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable to
market the Trust Preferred Securities or to enforce contracts for the sale of
the Trust Preferred Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York State
authorities.
29
(b) Liabilities. 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 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at Closing Time to purchase the Trust Preferred
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate number of the Securities to be purchased hereunder, each
of the non-defaulting Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters; or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
number of the Securities to be purchased hereunder, this Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken 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 this Agreement, either the Representatives or the Company shall
have the right to postpone 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 arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representatives at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of Office of IBK
30
Counsel; and notice to the Offerors shall be directed to it at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of the Secretary
with a copy to the Treasurer at World Financial Center, South Tower, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be binding
upon the Underwriters and the Offerors and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Offerors 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 provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Offerors 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 Trust Preferred 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 SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Offerors in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
By:____________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ PREFERRED
FUNDING II, L.P.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.,
as General Partner
By:____________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ PREFERRED
CAPITAL TRUST II
By:____________________
Name:
Title: Regular Trustee
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:_____________________________________
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
32
SCHEDULE A
Number of
Trust Preferred
Name of Underwriter Securities
------------------- ---------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ......... ____________
Total ...................................................... ____________
Schedule A-1
SCHEDULE B
1. The initial public offering price per security for the Trust Preferred
Securities, determined as provided in said Section 2, shall be $25.00.
2. The purchase price per security for the Trust Preferred Securities to
be paid by the several Underwriters shall be $25.00, being an amount equal to
the initial public offering price set forth above.
3. The compensation per Trust Preferred Security to be paid by the Company
to the several Underwriters in respect of their commitments hereunder shall be
$__________; provided, however, that the compensation per Trust Preferred
Security for sales of 10,000 or more Trust Preferred Securities to a single
purchaser shall be $_____.
Schedule A-2
EXHIBIT A
FORM OF OPINION OF ▇▇▇▇▇ & WOOD LLP
COMPANY COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 5(b)
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
2. The Company has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Purchase Agreement.
3. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect (as defined in
Section 1(a)(v) of the Purchase Agreement).
4. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("MLPF&S") has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, has corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in the State of New York; all of the issued and
outstanding capital stock of MLPF&S has been duly authorized and validly issued,
is fully paid and non-assessable and, to the best of our knowledge, is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of MLPF&S was issued in violation of
preemptive or other similar rights of any securityholder of MLPF&S.
5. The Purchase Agreement has been duly authorized, executed and delivered
by the Company.
6. Each Indenture has been duly authorized, executed, and delivered by the
applicable Investment Affiliate and, in the case of the Subsidiary Debentures,
the Debenture Guarantor and, when duly authorized, executed and delivered by the
Debt Trustee, will constitute a valid and legally binding obligation of such
Investment Affiliate and, in the case of the Subsidiary Debentures, the
Debenture Guarantor, enforceable against such Investment Affiliate and, in the
case of the Subsidiary Debentures, the Debenture Guarantor, in accordance with
its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar
A-1
laws relating to or affecting creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether the enforcement is considered in a proceeding in equity or at law). The
Indenture in respect of the Company Debentures has been duly qualified under the
1939 Act.
(i) The Debentures have been duly authorized, executed and delivered
by the applicable Investment Affiliate and, when duly authenticated by the Debt
Trustee and upon payment and delivery as described in the Purchase Agreement
will constitute valid and legally binding obligations of such Investment
Affiliate enforceable against such Investment Affiliate in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether the enforcement is
considered in a proceeding in equity or at law).
(ii) The Investment Guarantees in respect of each of the Subsidiary
Debentures have been duly authorized, executed and issued by the Debenture
Guarantor and, when duly authorized, executed and delivered by the Debt Trustee
and upon payment and delivery as described in the Purchase Agreement will
constitute valid and legally binding obligations of the Debenture Guarantor
enforceable against the Debenture Guarantor in accordance with their terms
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether the enforcement is considered in a
proceeding in equity or at law). The Investment Guarantee has been duly
qualified under the 1939 Act.
(iii) The Trust Preferred Securities Guarantee Agreement has been
duly authorized, executed and delivered by the Company and assuming due
authorization, execution and delivery by the Guarantee Trustee, will constitute
a valid and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether the
enforcement is considered in a proceeding in equity or at law). The Trust
Preferred Securities Guarantee Agreement has been duly qualified under the 1939
Act.
(iv) The Partnership Guarantee Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating
A-2
to or affecting creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether the enforcement
is considered in a proceeding in equity or at law).
(v) The Declaration has been duly authorized, executed and delivered
by the Company and has been duly qualified under the 1939 Act.
(vi) The Partnership Agreement has been duly authorized, executed
and delivered by the Company.
(vii) No consent, approval, authorization, order, registration or
qualification of or with any Federal or New York governmental agency or body or
any Delaware governmental agency or body acting pursuant to the Delaware General
Corporation Law or, to our knowledge, any Federal or New York court or any
Delaware court acting pursuant to the Delaware General Corporation Law is
required for the issue and sale by the Offerors of the Offered Securities, the
issuance by the Investment Affiliates of the Debentures, the issuance of the
Investment Guarantees, the Partnership Guarantee and the Trust Guarantee by the
Company and the compliance by the Offerors with all of the provisions of the
Purchase Agreement, except for (a) the registration under the 1933 Act and the
1934 Act of the Offered Securities and (b) such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Trust Preferred Securities and the Trust Preferred Securities Guarantee by
the Underwriters.
(viii) The statements made in the Prospectus under the captions
"▇▇▇▇▇▇▇ ▇▇▇▇▇ Preferred Capital Trust II", "▇▇▇▇▇▇▇ ▇▇▇▇▇ Preferred Funding II,
L.P.", "Description of Trust Preferred Securities", "Description of Trust
Guarantee", "Description of Partnership Preferred Securities", and "Description
of the Partnership Guarantee", insofar as such statements purport to constitute
summaries of the terms of the Offered Securities, constitute accurate summaries
of the terms of the Offered Securities.
(ix) We hereby confirm (a) our opinions set forth in the Prospectus
under the caption "Certain Federal Income Tax Considerations" and (b) that,
subject to the qualifications set forth therein, the discussion set forth in the
Prospectus under such caption is an accurate summary of the United States
federal income tax matters described therein.
(x) The Registration Statement has been declared effective under the
1933 Act. Any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b); and to
the best of our knowledge, no stop order suspending the effectiveness
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of the Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
(xi) Neither the Trust nor the Partnership is required to be
registered as an "investment company" under the 1940 Act.
(xii) Each of the Company and the Investment Subsidiaries is not,
and after giving effect to the offering and sale of the Trust Preferred
Securities and the application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" as such term is defined in the
1940 Act.
We have participated in conferences with officers and representatives of
the Company, representatives of the independent accountants of the Company and
the Underwriters at which the contents of the Registration Statement and
Prospectus and related matters were discussed and, although we are not passing
upon or assuming responsibility for the accuracy, completeness or fairness of
the statements contained or incorporated by reference in the Registration
Statement and Prospectus and have made no independent check or verification
thereof, on the basis of the foregoing, nothing has come to our attention that
would lead us to believe that the Registration Statement or any post-effective
amendment thereto (except for financial statements and schedules and other
financial data included or incorporated by reference therein or omitted
therefrom and the Form T-1s, as to which we make no statement), at the time the
Registration Statement or any post-effective amendment thereto (including the
filing of the Company's Annual Report on Form 10-K with the Commission) became
effective or at the date of the applicable Terms Agreement, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included or incorporated
therein or omitted therefrom, as to which we make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. In
addition, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal law of
the United States and the General Corporation Law of the State
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of Delaware, upon the opinions of counsel satisfactory to the Representatives.
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EXHIBIT B
FORM OF OPINION OF SKADDEN, ARPS, SLATE, ▇▇▇▇▇▇▇ & ▇▇▇▇
(Delaware)
SPECIAL DELAWARE COUNSEL TO THE COMPANY, THE TRUST,
AND THE PARTNERSHIP TO BE DELIVERED
PURSUANT TO SECTION 5(b).
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Trust Act with the power and
authority to own property and to conduct its business as described in the
Registration Statement and Prospectus and to enter into and perform its
obligations under each of the Purchase Agreement, the Trust Preferred
Securities, the Trust Common Securities and the Declaration; the Trust is duly
qualified to transact business as a foreign company and is in good standing in
any other jurisdiction in which such qualification and good standing is
necessary, except to the extent that the failure to so qualify or be in good
standing would not have a material adverse effect on the Trust; the Trust is not
a party to or otherwise bound by any agreement other than those described in
thee Prospectus.
(ii) The Trust Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and Prospectus, will
be validly issued and (subject to the terms of the Declaration) fully paid
undivided beneficial interests in the assets of the Trust and will conform to
all statements relating thereto contained in the Prospectus; the issuance of the
Trust Common Securities is not subject to preemptive or other similar rights.
(iii) The Trust Preferred Securities have been duly authorized by
the Declaration and, when issued and delivered against payment of the
consideration as set forth in the Purchase Agreement, will be validly issued and
(subject to the terms of the Declaration) fully paid and non-assessable
undivided beneficial interests in the Trust, will be entitled to the benefits of
the Declaration and will conform to all statements relating thereto contained in
the Prospectus; under the Declaration or Delaware law the Trust Preferred
Securities are not subject to preemptive or other similar rights; and holders of
Trust Preferred Securities will be entitled to the same limitation of personal
liability under Delaware law as extended to stockholders of private corporations
for profit.
(iv) The Partnership has been duly created and is validly existing
in good standing as a limited partnership under the Delaware Partnership Act
with the power and authority to own property and to conduct its business as
described in the Registration Statement and Prospectus and to enter into and
perform its obligations under each of the Purchase Agreement, the
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Partnership Preferred Securities and the Partnership Agreement; the Partnership
is duly qualified to transact business as a foreign company and is in good
standing in any other jurisdiction in which such qualification is necessary,
except to the extent that the failure to so qualify or be in good standing would
not have a material adverse effect on the Partnership; the Partnership is not a
party to or otherwise bound by any agreement other than those described in the
Prospectus.
(v) The Partnership Preferred Securities have been duly authorized
and, when issued and delivered pursuant to the Partnership Agreement against
payment of the consideration set forth therein, will represent valid partnership
interests in the Partnership will be entitled to the benefits of the Partnership
Agreement and will conform to the description thereof in the Prospectus; the
issuance of the Partnership Preferred Securities is not subject to preemptive or
other similar rights; assuming that the holders of Partnership Preferred
Securities in their capacities as such do not participate in the control of the
business of the Partnership, the holders of the Partnership Preferred
Securities, in their capacities as such, will have no liability to third parties
in excess of their obligations to make payments provided for in the Limited
Partnership Agreement; to our knowledge, there are no provisions in the
Partnership Agreement which would permit the holders of Partnership Preferred
Securities in their capacities as such to participate in the control of the
business of the Partnership.
(vi) Assuming the Declaration has been duly authorized by the
Company, the Declaration has been duly executed and delivered by the Company and
the Trustees, and assuming due authorization, execution and delivery of the
Declaration by the Institutional Trustee, the Declaration constitutes a valid
and binding obligation of the Company and the Regular Trustees, enforceable
against the Company and the Regular Trustees in accordance with its terms,
except to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions and conforms to all statements relating thereto in the Prospectus.
(vii) Assuming the Partnership Agreement has been duly authorized by
the Company, the Partnership Agreement has been duly executed and delivered by
the Company and constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by the Bankruptcy Exceptions
and conforms to the description thereof in the Prospectus.
(viii) The execution, delivery and performance of the Transaction
Documents by the Offerors and the consummation of the transactions contemplated
herein and therein and compliance by the Offerors with their respective
obligations do not and will not result in any violation of the Declaration or
Certificate of Trust or the Partnership Agreement or the Certificate of
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Partnership and do not and will not conflict with, or result in a breach of any
of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Trust or the Partnership under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument in each
case governed by Delaware law to which the Trust or the Partnership is a party
or by which they may be bound or to which any of their properties may be subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company subsidiaries taken as a whole or (B) any existing applicable law,
rule, regulation, judgment, order or decree of any Delaware government,
governmental instrumentality or court, domestic or foreign, or any Delaware
regulatory body or administrative agency or other governmental body having
jurisdiction over the Offerors of their respective properties.
(ix) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any Delaware court or Delaware
governmental authority or agency (other than as may be required under the
securities or blue sky laws of the state of Delaware, as to which we need
express no opinion) is necessary or required in connection with the due
authorization, execution and delivery of the Purchase Agreement or the due
execution, delivery or performance of the Transaction Documents by the Offerors
or for the offering, issuance, sale or delivery of the Offered Securities.
B-3
EXHIBIT C
FORM OF OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇
COUNSEL FOR THE PROPERTY TRUSTEE TO BE
DELIVERED PURSUANT TO SECTION 5(d)
(i) The Chase Manhattan Bank is a national banking association with
trust powers, is duly organized, is validly existing and is in good standing
under the laws of the United States with all necessary power and authority to
execute, deliver and to carry out and perform its obligations under the terms of
the Declaration and each of the Trust Preferred Guarantees.
(ii) Chase Manhattan Bank Delaware is a Delaware banking corporation
with trust powers, is duly organized, is validly existing and is in good
standing under the laws of the State of Delaware with all necessary power and
authority to execute, deliver and to carry out and perform its obligations under
the terms of the Declaration.
(iii) The execution, delivery and performance by the Property
Trustee and the Delaware Trustee of the Declaration and the execution, delivery
and performance by the Guarantee Trustee of the Trust Preferred Guarantee have
been duly authorized by all necessary corporate action on the part of the
Institutional Trustee and the Delaware Trustee, in the case of the Declaration,
and the Guarantee Trustee, in the case of the Trust Preferred Guarantee. The
Declaration and the Trust Preferred Guarantee have been duly executed and
delivered by the Property Trustee and the Delaware Trustee, in the case of the
Declaration, and the Guarantee Trustee, in the case of the Trust Preferred
Guarantee, and constitute the legal, valid and binding obligations of the
Property Trustee and the Delaware Trustee, in the case of the Declaration, and
the Guarantee Trustee, in the case of the Trust Preferred Guarantee, enforceable
against the Property Trustee and the Delaware Trustee, in the case of the
Declaration, and the Guarantee Trustee, in the case of the Trust Preferred
Guarantee, in accordance with their terms, except as enforcement thereof may be
limited by the Bankruptcy Exceptions.
(iv) The execution, delivery and performance of the Declaration and
the Trust Preferred Guarantee by the Property Trustee and the Delaware Trustee,
in the case of the Declaration, and the Guarantee Trustee, in the case of the
Trust Preferred Guarantee, do not conflict with or constitute a breach of the
Articles of Organization or Bylaws of the Property Trustee or the Delaware
Trustee, in the case of the Declaration, or the Guarantee Trustee.
(v) No consent, approval or authorization of, or registration with
or notice to, any Illinois, Delaware or federal banking authority is required
for the execution, delivery or performance by the Property Trustee or the
Delaware Trustee of
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the Declaration or by the Guarantee Trustee of the Trust Preferred Guarantee.
C-2