1
Exhibit 1.1
UNDERWRITING AGREEMENT
[DATE], 20__
Mellon Funding Corporation
Mellon Financial Corporation,
One Mellon Center,
000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
Ladies and Gentlemen:
[NAME(S) OF UNDERWRITERS], as Underwriters (the "Underwriters"),
understand that Mellon Funding Corporation, a Pennsylvania corporation (the
"Company"), proposes to issue and sell $[AMOUNT] aggregate principal amount of
[TITLE OF SECURITIES] (the "Offered Securities"), which are to be
unconditionally guaranteed [on a subordinate basis] (as described in the
Prospectus Supplement and Prospectus referred to below) as to payments of
principal, premium, if any, and interest, if any, by Mellon Financial
Corporation, a Pennsylvania corporation registered as a financial holding
company and a bank holding company under the Bank Holding Company Act (the
"Guarantor"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell, the
Guarantor agrees to guarantee [on a subordinate basis], and the Underwriters
agree to purchase, severally and not jointly, the principal amounts of such
Offered Securities set forth opposite their names on Schedule A hereto at
[PERCENTAGE]% of their principal amount, yielding total proceeds at closing of
$[AMOUNT].
The Underwriters will pay for such Offered Securities in immediately
available funds upon delivery thereof at the offices of Xxxxxxxx & Xxxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. (local time) on [DATE],
20__, or at such other time, not later than [DATE], 20__, as will be designated
by the Underwriters.
The Offered Securities will have the terms set forth in the Company's
and the Guarantor's Prospectus Supplement, dated [DATE], 20__, and the
Prospectus, dated [DATE], 20__, particularly as follows:
Maturity: [DATE]
2
Interest Rate: [RATE]
Redemption Provisions:
Interest Payment Dates: [DATES], commencing [DATE], 20__
All the provisions contained in the documents entitled Mellon Funding
Corporation Underwriting Agreement Standard Provisions (Debt), dated March __,
2000, a copy of which you have previously received, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein.
-2-
3
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the appropriate space set forth below. This Agreement
may be signed in any number of counterparts with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Very truly yours,
[UNDERWRITERS]
By: [LEAD UNDERWRITER]
By:
----------------------------
Name:
Title:
Accepted: [DATE], 20__
MELLON FUNDING CORPORATION
By:
----------------------------
Name:
Title:
MELLON FINANCIAL CORPORATION
By:
----------------------------
Name:
Title:
-3-
4
SCHEDULE A
Principal Amount
Underwriter of Securities
----------- -------------
$
-------------
TOTAL $
=============
-4-
5
MELLON FUNDING CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
March 24, 2000
From time to time Mellon Funding Corporation, a Pennsylvania
corporation (the "Company"), and Mellon Financial Corporation, a Pennsylvania
corporation registered as a financial holding company and a bank holding company
under the Bank Holding Company Act (the "Guarantor"), may enter into one or more
underwriting agreements that provide for the sale of designated securities to
the several underwriters named therein. The standard provisions set forth herein
may be incorporated by reference in any such underwriting agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein referred to as "this Agreement".
Unless otherwise defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined.
ARTICLE I.
SECTION 1.1 The Company proposes to issue from time to time debt
securities consisting of debentures, notes and/or other unsecured evidences of
indebtedness (the "Securities") to be issued pursuant to the provisions of the
Indenture, dated as of May 2, 1988, as supplemented by the First Supplemental
Indenture, dated as of November 29, 1990, and the Second Supplemental Indenture,
dated as of [DATE], 2000, among the Company, the Guarantor and The Chase
Manhattan Bank, as trustee, and/or the Indenture, dated as of [DATE], 2000 among
the Company, the Guarantor and Bank One Trust Company, National Association, as
trustee, as the same may be from time to time amended or supplemented (the
applicable indenture being referred to herein as the "Indenture" and the trustee
thereunder being referred to herein as the "Trustee"). The Securities will have
varying designations, maturities, rates and times of payment of interest,
selling prices and redemption terms, and may be either senior or subordinate
obligations of the Company as specified in the Underwriting Agreement. The
Securities will be guaranteed as to payment of principal, premium, if any, and
interest, if any, by the Guarantor on a senior or subordinated basis as
specified in the Underwriting Agreement.
SECTION 1.2 The Company and the Guarantor have filed with the
Securities and Exchange Commission (the "Commission") a registration statement,
including a prospectus relating to the Securities and to the unconditional
guarantee by the Guarantor of payment of principal, premium, if any, and
interest, if any (the "Guarantees"), and will prepare and file a prospectus
supplement specifically relating
-5-
6
to the Offered Securities and related Guarantees (the "Offered Guarantees") in
accordance with Section 6.1(a) hereof. The term "Registration Statement" means
the registration statement as amended to the date of the Underwriting Agreement.
If the Company and the Guarantor have filed an abbreviated registration
statement to register additional Securities and Guarantees pursuant to Rule
462(b) under the Securities Act of 1933 (the "Securities Act"), then any
reference herein to the term "Registration Statement" shall be deemed to include
such a registration statement filed pursuant to Rule 462(b). The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the Offered Securities and Offered
Guarantees as filed with the Commission pursuant to Rule 424. The term
"preliminary prospectus" means a preliminary prospectus supplement specifically
relating to the Offered Securities and Offered Guarantees together with the
Basic Prospectus. As used herein, the terms "Registration Statement", "Basic
Prospectus", "Prospectus" and "preliminary prospectus" shall include in each
case the material, if any, incorporated by reference therein.
SECTION 1.3 The term "Underwriters' Securities" means the Offered
Securities to be purchased by the Underwriters herein. The term "Contract
Securities" means the Offered Securities, if any, to be purchased pursuant to
the delayed delivery contracts referred to below.
ARTICLE II.
SECTION 2.1 If the Prospectus provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company hereby authorizes the
Underwriters to solicit offers to purchase Contract Securities on the terms and
subject to the conditions set forth in the Prospectus pursuant to delayed
delivery contracts substantially in the form of Schedule I attached hereto
("Delayed Delivery Contracts") but with such changes therein as the Company may
authorize or approve. Delayed Delivery Contracts are to be with institutional
investors approved by the Company and of the types set forth in the Prospectus.
On the Closing Date (as hereinafter defined), the Company will pay the manager
of the Underwriters (the "Manager") as compensation, for the accounts of the
Underwriters, the fee set forth in the Underwriting Agreement in respect of the
principal amount of Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts.
SECTION 2.2 If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the Contract Securities shall be
deducted from the Offered Securities to be purchased by the several
Underwriters, and the aggregate principal amount of Offered Securities to be
purchased by each Underwriter shall be reduced pro rata in proportion to the
principal amount of Offered Securities set forth opposite each Underwriter's
name in the Underwriting Agreement, except to the extent that the Manager
determines that such reduction shall be otherwise and so advises the Company.
-6-
7
ARTICLE III.
SECTION 3.1 The Company is advised by the Manager that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in the
Manager's judgment is advisable. The Underwriters will offer the Underwriters'
Securities for sale upon the terms and conditions set forth in the Prospectus.
ARTICLE IV.
SECTION 4.1 Delivery of and payment for the Underwriters' Securities
shall be made at the office, on the date and at the time specified in the
Underwriting Agreement (such date and time of delivery of and payment for the
Underwriters' Securities being herein called the "Closing Date"). Unless
otherwise set forth in the Prospectus and/or the Underwriting Agreement, the
Underwriters' Securities will be represented by one or more global Securities
which will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian. Delivery of the Underwriters'
Securities shall be made by causing DTC to credit the Underwriters' Securities
to the account of the Manager at DTC, for the respective accounts of the several
Underwriters at DTC, against payment by the several Underwriters through the
Manager of the purchase price thereof to or upon the order of the Company in the
manner and type of funds specified in the Underwriting Agreement. The Offered
Securities will be made available for checking at the closing location specified
in the Underwriting Agreement at least twenty-four hours prior to the time for
delivery.
ARTICLE V.
SECTION 5.1 The several obligations of the Underwriters hereunder are
subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by
the Commission, and the Manager shall have received on the Closing Date
a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the foregoing effect. The officer making
such certificate may rely upon the best of his knowledge as to
proceedings pending or threatened;
(b) The Manager shall have received on the Closing Date an
opinion of the General Counsel, Associate General Counsel or Assistant
General Counsel
-7-
8
of the Guarantor and counsel to the Company, dated the Closing Date, to
the effect set forth in Exhibit A;
(c) The Manager shall have received on the Closing Date an
opinion of Xxxxxxxx & Xxxxxxxx, as counsel to the Underwriters, dated
the Closing Date, with respect to the incorporation of the Company and
the Guarantor, the validity of the Indenture, the Offered Securities
and the Offered Guarantees, the Registration Statement, the Prospectus
and other related matters as the Manager may reasonably request, and
such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(d) The Manager shall have received, on each of the date of
the Underwriting Agreement and the Closing Date, a letter dated the
date of the Underwriting Agreement or the Closing Date, as the case may
be, in form and substance satisfactory to the Manager, from KPMG LLP or
any other independent public accountants to the Guarantor, 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; provided that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier
than the date of the Underwriting Agreement;
(e) (i) Neither the Company, the Guarantor nor any of its
subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, and (ii) since the respective dates as of which information
is given in the Prospectus, there shall not have been any change in the
capital stock or long-term debt of the Company, the Guarantor or any of
its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of
the Company or the Guarantor and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in
any such case described in clause (i) or (ii), is in the reasonable
judgment of the Manager so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Offered Securities on the terms and in the manner
contemplated in the Prospectus;
(f) On or after the date of the Underwriting Agreement (i) no
downgrading shall have occurred in the rating accorded the debt
securities of or guaranteed by the Guarantor or the preferred stock of
the Guarantor by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act and (ii) no such
organization shall have publicly announced that it has under
-8-
9
surveillance or review, with possible negative implications, its rating
of any debt securities of or guaranteed by the Guarantor or preferred
stock of the Guarantor;
(g) On or after the date of the Underwriting Agreement there
shall not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York
Stock Exchange; (ii) trading of any securities of the Company or the
Guarantor shall have been suspended on any exchange or in the
over-the-counter market; (iii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war or any changes in financial markets or any
calamity or crisis, if the effect of any such events specified in this
clause (iv) in the judgment of the Manager makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being delivered on the Closing Date on the terms and in the
manner contemplated by the Prospectus;
(h) Each of the Company and the Guarantor shall have complied
with the provisions of Section 6.1(b) hereof with respect to the
furnishing of prospectuses on the business day next succeeding the date
of the Underwriting Agreement; and
(i) Each of the Company and the Guarantor shall have furnished
or caused to be furnished to the Manager at the Closing Date
certificates of officers of the Company and Guarantor, as the case may
be, satisfactory to the Manager as to the accuracy of the
representations and warranties of each of the Company and the Guarantor
herein as of the Closing Date, as to the performance by each of the
Company and the Guarantor of all of its obligations hereunder to be
performed as of or prior to the Closing Date and as to such other
matters as the Manager may reasonably request.
ARTICLE VI.
SECTION 6.1 In further consideration of the agreements of the
Underwriters contained in this Agreement, the Company and the Guarantor hereby
covenant:
(a) to prepare the Prospectus in a form approved by the
Manager and to file, or transmit for filing, such Prospectus with the
Commission pursuant to Rule 424 under the Securities Act within the
applicable time period prescribed for such filing by the rules and
regulations under the Securities Act, and prior to the termination of
the offering of the Offered Securities to which such Prospectus relates
also will promptly advise the Manager (i) when any amendment to the
Registration Statement has become effective or any further
-9-
10
supplement to the Prospectus has been so filed or transmitted for
filing, (ii) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose, and (iv)
of the receipt by the Company or Guarantor of any notification with
respect to the suspension of the qualification of the Offered
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. Each of the Company and
the Guarantor will use its reasonable best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
practicable the withdrawal thereof. The Company and the Guarantor will
not file or transmit for filing any amendment to the Registration
Statement or supplement to the Prospectus unless they have furnished to
the Manager a copy for their review prior to filing or transmission for
filing;
(b) to furnish the Manager without charge a signed copy of the
Registration Statement, including exhibits and materials, if any,
incorporated by reference therein, prior to 10:00 a.m. New York City
time on the business day next succeeding the date of the Underwriting
Agreement and during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request. (The
terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934 (the "Exchange Act")
subsequent to the date of the Basic Prospectus that are deemed to be
incorporated by reference in the Prospectus);
(c) if, during such period after the date of the first public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish at
its own expense to the Underwriters and to the dealers (whose names and
addresses the Manager will furnish to the Company or Guarantor) to
which Offered Securities and Offered Guarantees may have been sold by
the Manager on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law;
-10-
11
(d) to endeavor to qualify the Offered Securities and the
Offered Guarantees for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the Manager shall reasonably request,
provided that, in connection therewith, neither the Company nor the
Guarantor shall be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction, and
to pay all expenses (including fees and disbursements of counsel) in
connection with the determination of the eligibility of the Offered
Securities and the Offered Guarantees for investment under the laws of
such jurisdictions as the Manager may designate;
(e) to make generally available to the Guarantor's security
holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Securities Act) an earnings
statement covering a twelve-month period beginning after the date of
the Underwriting Agreement, which shall satisfy the provision of
Section 11(a) of the Securities Act and the rules and regulations of
the Commission thereunder; and
(f) during the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities issued or guaranteed by the Guarantor that in the
reasonable judgment of the Manager are substantially similar to the
Offered Securities, without the prior written consent of the Manager.
ARTICLE VII.
SECTION 7.1 Each of the Company and the Guarantor represents and
warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceeding for such purpose is pending before or
threatened by the Commission;
(b) No order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each
preliminary prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Securities Act and the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the rules
and regulations thereunder, and did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty will not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company or Guarantor by an
Underwriter expressly for use therein;
-11-
12
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects with the requirements
of the Securities Act or Exchange Act and the rules and regulations of
the Commission thereunder, and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty will not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company or Guarantor by an
Underwriter expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus
and any further amendments and supplements to the Registration
Statement or the Prospectus will conform, in all material respects with
the requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
will not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company or
Guarantor by an Underwriter expressly for use therein;
(e) Each of the Guarantor and the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the Commonwealth of Pennsylvania, and each has the
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; each of the Guarantor's wholly
owned banking subsidiaries, as described in the Prospectus, has been
duly established and is validly existing as a national banking
association or a state bank, as the case may be, under the laws of the
jurisdiction of its formation; and each other wholly owned subsidiary
of the Guarantor has been duly incorporated (or formed) and is validly
existing as a corporation (or applicable entity) in good standing under
the laws of its jurisdiction of incorporation (or formation);
-12-
13
(f) The Guarantor has an authorized equity capitalization as
set forth in the Prospectus and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned by the Guarantor, free
and clear of all liens, encumbrances, equities or claims;
(g) The Guarantor has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of failure to be so qualified in any such jurisdiction;
(h) All of the issued and outstanding capital stock of each
subsidiary of the Guarantors has been duly authorized and validly
issued, is fully paid and non-assessable (except, in the case of each
of its national bank subsidiaries, as provided in 12 U.S.C. Section 55,
as amended), and, except for directors' qualifying shares, all issued
and outstanding stock of each such subsidiary owned by the Guarantor is
owned by the Guarantor, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity;
(i) There are no legal or governmental proceedings pending to
which the Company, the Guarantor or any of its subsidiaries is a party
or of which any property of the Company, the Guarantor or any of its
subsidiaries is the subject, other than as set forth in the Prospectus,
which, taking into account the likelihood of the outcome, the damages
or other relief sought and other relevant factors, would individually
or in the aggregate have a material adverse effect on the financial
position, shareholders' equity or results of operation of the Company
or the Guarantor and its subsidiaries on a consolidated basis; and to
the best of each of the Company's and the Guarantor's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(j) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and by the Guarantor;
(k) The Offered Securities have been duly authorized, and when
issued and delivered pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the benefits
provided by the Indenture; and the Offered Securities, the Offered
Guarantees and the Indenture will conform to the descriptions thereof
in the Prospectus;
-13-
14
(l) The Offered Guarantees have been duly authorized, and when
delivered pursuant to this Agreement, will have been duly endorsed on
the Offered Securities and executed, and, upon due execution,
authentication and delivery of the Offered Securities pursuant to this
Agreement, the Offered Guarantees will have been duly delivered and
will constitute valid and legally binding obligations of the Guarantor
entitled to the benefits provided by the Indenture;
(m) The Indenture has been duly authorized, executed and
delivered by the Guarantor and the Company and constitutes a valid and
legally binding instrument, enforceable against the Company and the
Guarantor in accordance with its terms, subject, as to enforcement, to
bankruptcy, moratorium, insolvency, fraudulent transfer, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Indenture
has been duly qualified under the Trust Indenture Act;
(n) The issue and sale of the Offered Securities and the
compliance by the Company and the Guarantor with all of the provisions
of the Offered Securities, the Offered Guarantees, the Indenture and
this Agreement and the consummation of the transactions herein and
therein contemplated 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 of the property or assets of the Company, the Guarantor or any
of its subsidiaries pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company, the Guarantor or any of its subsidiaries is a party or by
which the Company, the Guarantor or any of its subsidiaries is bound or
to which any of the property or assets of the Company, the Guarantor or
any of its subsidiaries is subject, nor will such action result in any
violation of the provisions of the Articles of Incorporation or the
By-Laws of the Company or of the Guarantor, or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, the Guarantor or any of its
subsidiaries or any of their properties;
(o) No consent, approval, authorization, order, registration
or qualification of or with any court or any such regulatory authority
or other governmental body is required for the issue and sale of the
Offered Securities, the execution and delivery of the Offered
Guarantees or the consummation of the other transactions contemplated
by this Agreement, the Offered Guarantees or the Indenture, except such
as have been obtained under the Securities Act and the Trust Indenture
Act and the exemption of the Company from the provisions of the
Investment Company Act of 1940, as amended, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Offered Securities and the Offered
Guarantees by the Underwriters;
-14-
15
(p) Neither the Company, the Guarantor nor any of its
subsidiaries is in violation of its Articles of Incorporation or
By-laws or in default in the performance or observance of any material
obligation, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or any other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
(q) The Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an "investment
company", as such term is defined in the Investment Company Act of
1940, as amended; and
(r) Neither the Company, the Guarantor nor any of its
subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus; and since the respective dates as of which information is
given in the Prospectus, there has not been any change in the capital
stock or long-term debt of the Company, the Guarantor or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company
or the Guarantor and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus.
ARTICLE VIII.
SECTION 8.1 The Company and the Guarantor jointly and severally agree
to indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including without limitation, any legal
or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any preliminary prospectus or the Prospectus (if used within the
period set forth in Section 6.1(c) hereof and as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements in the Registration
Statement, any preliminary prospectus, the Prospectus or any document
incorporated by reference in the Registration Statement not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company or the Guarantor by any
Underwriter expressly for use therein.
-15-
16
SECTION 8.2 Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Guarantor, the directors of
either, the officers of either who sign the Registration Statement and any
person who controls the Company or the Guarantor within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company and the Guarantor to each
Underwriter, but only with respect to information relating to such Underwriter
furnished in writing by such Underwriter expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus.
SECTION 8.3 In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 8.1 or 8.2, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing, and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by the Manager in the case of parties indemnified
pursuant to Section 8.1 and by the Company in the case of parties indemnified
pursuant to Section 8.2. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid
-16-
17
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement, compromise or judgment (i) includes an unconditional release of
such indemnified party from all liability arising out of such action or claim
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
SECTION 8.4 If the indemnification provided for in this Article VIII is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8.1 or 8.2 in respect of any losses, claims, damages, or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantor on the one hand and the Underwriters on the
other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Guarantor on the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received (by the Company and the Guarantor on the one hand and
the Underwriters on the other) in connection with the offering of the Offered
Securities shall be deemed to be in the same proportion as the total net
proceeds from the offering of such Offered Securities received by the Company
(before deducting expenses) bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Company and the Guarantor on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
and the Guarantor on the one hand or by the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statements or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 8.4 are several in proportion
to their respective underwriting obligations and not joint.
SECTION 8.5 The Company, the Guarantor and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Article VIII
were determined by pro rata allocation or by any other method of allocation
which does not take account of the considerations referred to in Section 8.4.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to
-17-
18
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Article VIII, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Securities
and Offered Guarantees underwritten and distributed to the public by such
Underwriter exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation within the meaning of Section 11(f) of the Securities Act
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Article VIII are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
SECTION 8.6 The indemnity and contribution agreements contained in this
Article VIII and the representations and warranties of the Company and the
Guarantor in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by any Underwriter or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, the Guarantor or the directors or
officers or any person controlling the Company or the Guarantor and (iii)
acceptance of any payment for any of the Offered Securities.
SECTION 8.7 Anything to the contrary notwithstanding, the indemnity
agreement of the Company and the Guarantor in Section 8.1 hereof, the
representations and warranties in Sections 7.1(b), 7.1(c) and 7.1(d) hereof and
any representation or warranty as to the accuracy of the Registration Statement
or the Prospectus contained in any certificate furnished by the Company or the
Guarantor pursuant to Article V hereof, insofar as they may constitute a basis
for indemnification for liabilities (other than by payment of the Company or the
Guarantor of expenses incurred or paid in the successful defense of any action,
suit or proceeding) arising under the Securities Act, shall not extend to the
extent of any interest therein of a controlling person or partner of an
Underwriter who is a director, officer or controlling person of the Company or
the Guarantor when the Registration Statement has become effective, except in
each case to the extent that an interest of such character shall have been
determined by a court of appropriate jurisdiction as not against public policy
as expressed in the Securities Act. Unless in the opinion of counsel for the
Company and the Guarantor the matter has been settled by controlling precedent,
the Company and the Guarantor will, if a claim for such indemnification is
asserted, submit to a court of appropriate jurisdiction the question of whether
such interest is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
-18-
19
ARTICLE IX.
SECTION 9.1 If any Underwriter shall default in its obligation to
purchase the Offered Securities which it has agreed to purchase hereunder, the
Underwriters may in their discretion arrange for themselves or another party or
other parties to purchase such Offered Securities on the terms contained herein.
If within thirty-six hours after such default by any Underwriter the
Underwriters do not arrange for the purchase of such Offered Securities, then
the Company and the Guarantor shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Underwriters to purchase such Offered Securities on such
terms. In the event that, within the respective prescribed periods, the
Underwriters notify the Company and the Guarantor that they have so arranged for
the purchase of such Offered Securities, or the Company and the Guarantor notify
the Underwriters that they have so arranged for the purchase of such Offered
Securities, the Underwriters or the Company and the Guarantor shall have the
right to postpone the Closing Date for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company and the Guarantor agree to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the reasonable opinion of the Manager may thereby be made necessary. The term
"Underwriters" as used in this Agreement shall include any person substituted
under this Article IX with like effect as if such person has originally been a
party to this Agreement with respect to such Offered Securities.
SECTION 9.2 If, after giving effect to any arrangements for the
purchase of the Offered Securities of a defaulting Underwriter or Underwriters
as provided in Section 9.1, the aggregate principal amount of such Offered
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Offered Securities, then the Guarantor and
the Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Offered Securities which such Underwriter
agreed to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
Offered Securities which such Underwriter agreed to purchase hereunder) of the
Offered Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
SECTION 9.3 If, after giving effect to any arrangements for the
purchase of the Offered Securities of a defaulting Underwriter or Underwriters
as provided in Section 9.1, the aggregate principal amount of Offered Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Offered Securities or if the Guarantor and the Company shall not
exercise the right described in the immediately preceding paragraph to require
non-defaulting Underwriters to purchase Offered Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the
-19-
20
part of any non-defaulting Underwriters or the Company or the Guarantor, except
for the expenses to be borne by the Company, the Guarantor and the Underwriters
as provided in Article X hereof and the indemnity and contribution agreements in
Article VIII hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
ARTICLE X.
SECTION 10.1 Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, each of the Guarantor
and the Company covenants and agrees with the several Underwriters that the
Company and the Guarantor will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Guarantor's and the Company's counsel
and accountants in connection with the registration of the Offered Securities
and the Offered Guarantees under the Securities Act and all other fees or
expenses in connection with the preparation, printing and filing of the
Registration Statement, any preliminary prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and to dealers; (ii) the cost of printing or
producing this Agreement, the Indenture and any Blue Sky and legal investment
memoranda, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Offered Securities; (iii) all expenses in connection with the qualification of
the Offered Securities and the Offered Guarantees for offering and sale under
state securities laws as provided in Section 6.1(d) hereof, including filing
fees and the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Offered Securities; (v) the cost of preparing the Offered Securities;
(vi) the fees and expenses of the Trustee and any agent of the Trustee and the
fees and disbursements of counsel for the Trustee in connection with the
Indenture, the Offered Securities and the Offered Guarantees; (vii) the costs
and charges of any transfer agent, registrar or depositary; and (vii) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section 10.1. It is
understood, however, that, except as provided in this Section 10.1 and Articles
VIII and XI hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Offered Securities by them and any advertising expenses connected with
any offers they may make.
ARTICLE XI.
SECTION 11.1 If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of the Company or
the
-20-
21
Guarantor to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company or the Guarantor shall be unable to
perform its obligations under this Agreement, the Company and the Guarantor will
reimburse the Underwriters, or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with the Offered Securities.
SECTION 11.2 This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 11.3 This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
-21-
22
SCHEDULE I
DELAYED DELIVERY CONTRACT
[DATE]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Mellon Funding
Corporation, a Pennsylvania corporation (the "Company"), and the Company agrees
to sell to the undersigned $_______________________ principal amount of the
Company's [TITLE OF ISSUE], which are guaranteed as to payment of principal,
premium, if any, and interest, if any, by Mellon Financial Corporation (the
"Securities"), offered by the Prospectus dated [DATE] and Prospectus Supplement
dated [DATE], receipt of copies of which are hereby acknowledged, at a purchase
price of [PERCENTAGE]% of the principal amount thereof plus accrued interest
from the date from which interest accrues as set forth in this contract, and on
the further terms and conditions set forth in this contract. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery dates set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
---- ------ --------------
_________________ $_________________ _________________
_________________ $_________________ _________________
_________________ $_________________ _________________
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date will be made to the Company or its order by certified or
official bank check drawn on a bank approved by the Company and in New York
Clearing House funds at the office of _______________, New York, N.Y., or by
wire transfer to a bank account specified by the Company, on the Delivery Date
upon delivery to the undersigned of the Securities to be purchased by the
undersigned on the Delivery Date, in definitive fully registered form and in
such denominations and registered in such names as the undersigned may designate
by written, telex or facsimile communication addressed to the Company not less
than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date will be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to
-22-
23
the underwriters (the "Underwriters") named in the Prospectus Supplement
referred to above, of such part of the Securities as is to be sold to them.
Promptly after completion of sale and delivery to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
[PURCHASER]
By:
--------------------------
Name:
Title:
[ADDRESS]
Accepted:
MELLON FUNDING CORPORATION
By:
--------------------------
Name:
Title:
-23-
24
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
_________________ _____________________ ______________
_________________ _____________________ ______________
_________________ _____________________ ______________
_________________ _____________________ ______________
_________________ _____________________ ______________
_________________ _____________________ ______________
-24-
25
EXHIBIT A
Opinion of the Counsel of the Guarantor
And Counsel to the Company
The opinion of the General Counsel, Associate General Counsel or
Assistant General Counsel of the Guarantor and counsel to the Company to be
delivered pursuant to Section 5.1(b) of the document entitled Mellon Funding
Corporation Underwriting Agreement Standard Provisions (Debt) will be to the
following effect (all terms used herein which are defined in the Agreement have
the meanings set forth therein):
(i) Each of the Guarantor and the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the Commonwealth of Pennsylvania, and each has the
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and each of the Guarantor's
wholly owned banking subsidiaries, as described in the Prospectus, has
been duly established and is validly existing as a national banking
association or a state bank, as the case may be, under the laws of the
jurisdiction of its formation.
(ii) The Guarantor has an authorized equity capitalization as
set forth in the Prospectus and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned by the Guarantor, free
and clear of all liens, encumbrances, equities or claims.
(iii) The Guarantor has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of failure to be so qualified in any such jurisdiction.
(iv) All of the issued and outstanding capital stock of each
subsidiary of the Guarantor has been duly authorized and validly
issued, is fully paid and non-assessable (except, in the case of each
of its national bank subsidiaries, as provided in 12 U.S.C. Section 55,
as amended), and, except for directors' qualifying shares, is owned by
the Guarantor, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(v) To the best of such counsel's knowledge there are no legal
or governmental proceedings pending to which the Company, the Guarantor
or any of its subsidiaries is a party or of which any property of the
Company, the Guarantor or any of its subsidiaries is the subject, other
than as set forth in the Prospectus, which, taking into account the
likelihood of the outcome, the damages or other relief sought and other
relevant factors, would individually or in the aggregate have a
material adverse effect on the financial position,
-25-
26
shareholders' equity or results of operation of the Company or the
Guarantor and its subsidiaries on a consolidated basis; and to the best
of such counsel's knowledge no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(vi) The Agreement has been duly authorized, executed and
delivered by the Company and by the Guarantor.
(vii) The Offered Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture; and the Offered Securities, the Offered
Guarantees and the Indenture conform to the descriptions thereof in the
Prospectus.
(viii) The Offered Guarantees have been duly authorized,
endorsed on the Offered Securities and executed, and, upon due
execution, authentication and delivery of the Offered Securities
pursuant to the Agreement, the Offered Guarantees will have been duly
delivered and will constitute valid and legally binding obligations of
the Guarantor entitled to the benefits provided by the Indenture.
(ix) The Indenture has been duly authorized, executed and
delivered by the Guarantor and the Company and constitutes a valid and
legally binding instrument, enforceable against the Company and the
Guarantor in accordance with its terms, subject, as to enforcement, to
bankruptcy, moratorium, insolvency, fraudulent transfer, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the Indenture has
been duly qualified under the Trust Indenture Act of 1939 (the "Trust
Indenture Act"), and all taxes and fees required to be paid with
respect to the execution of the Indenture and the issuance of the
Offered Securities and the Offered Guarantees have been paid.
(x) The issue and sale of the Offered Securities and the
compliance by the Company and the Guarantor with all of the provisions
of the Offered Securities, the Offered Guarantees, the Indenture and
the Agreement and the consummation of the transactions herein and
therein contemplated 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 of the property or assets of the Company, the Guarantor or any
of its subsidiaries pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to
such counsel to which the Company, the Guarantor or any of its
subsidiaries is a party or by which the Company, the Guarantor or any
of its subsidiaries is bound or to which any of the property or assets
of the Company, the Guarantor or any of its subsidiaries is subject,
nor will such action result
-26-
27
in any violation of the provisions of the Articles of Incorporation or
the By-Laws of the Company or of the Guarantor, or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, the Guarantor or any of its
subsidiaries or any of their properties.
(xi) No consent, approval, authorization, order, registration
or qualification of or with any court or any such regulatory authority
or other governmental body is required for the issue and sale of the
Offered Securities, the execution and delivery of the Offered
Guarantees or the consummation of the other transactions contemplated
by the Agreement, the Offered Guarantees or the Indenture, except such
as have been obtained under the Securities Act of 1933 (the "Securities
Act") and the Trust Indenture Act and the exemption of the Company from
the provisions of the Investment Company Act of 1940, as amended, and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Offered
Securities and the Offered Guarantees by the Underwriters.
(xii) The documents incorporated by reference in the
Prospectus or any further amendment or supplement made by the Company
and the Guarantor prior to the Closing Date (other than the financial
statements and related schedules and statistical information contained
or required to be contained therein, as to which such counsel need
express no opinion or belief), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Securities Act or the
Securities Exchange Act of 1934 (the "Exchange Act"), as applicable,
and the rules and regulations of the Commission thereunder; and such
counsel has no reason to believe that any of such documents (other than
the financial statements and related schedules and statistical
information contained or required to be contained therein, as to which
such counsel need express no opinion or belief), when they became
effective or were so filed, as the case may be, contained, in the case
of a registration statement which became effective under the Securities
Act, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other documents
which were filed under the Securities Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
documents were so filed, not misleading.
(xiii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company or the
Guarantor prior to the Closing Date (other than the financial
statements and related
-27-
28
schedules and statistical information contained or required to be
contained therein, as to which such counsel need express no opinion or
belief) comply as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations thereunder; such counsel has no reason to believe
that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company or the Guarantor prior to
the Closing Date (other than the financial statements and related
schedules and statistical information contained or required to be
contained therein, as to which such counsel need express no opinion or
belief) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the
Company or the Guarantor prior to the Closing Date (other than the
financial statements and related schedules and statistical information
contained or required to be contained therein, as to which such counsel
need express no opinion or belief) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading or that, as of the Closing Date, either the
Registration Statement or the Prospectus or any further amendment or
supplement thereto made by the Company or the Guarantor prior to the
Closing Date (other than the financial statements and related schedules
and statistical information contained or required to be contained
therein, as to which such counsel need express no opinion or belief)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and such
counsel does not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement or
the Prospectus which are not filed or incorporated by reference or
described as required.
(xiv) The Company is exempt from the registration and other
provisions of the Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may rely as to matters of fact
upon certificates of officers of the Guarantor and its subsidiaries, provided
that such counsel shall state that he believes he is justified in relying upon
such certificates.
-28-
