EXHIBIT 1.1
ULTRAMAR DIAMOND SHAMROCK CORPORATION
(a Delaware corporation)
UDS FUNDING I, L.P.
(a Delaware limited partnership)
UDS CAPITAL I
(a Delaware business trust)
8,000,000 Trust Preferred Securities
8.32% Trust Originated Preferred Securities SM ("TOPrS SM")
(Liquidation Amount of $25 per Preferred Security)
PURCHASE AGREEMENT
June 20, 1997
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Inc.
Xxxxx Xxxxxx Inc.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
UDS Capital I (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. Section
3801 et seq.), UDS Funding I, L.P. (the "Partnership"), a limited
partnership organized under the Revised Uniform Limited Partnership Act
(the "Delaware Partnership Act") of the State of Delaware (Chapter 17,
Title 6, of the Delaware Code, 6 Del. C. Section 17101 et seq.), and
Ultramar Diamond Shamrock Corporation, a Delaware corporation (the
"Company" and, together with the Trust and the Partnership, the
"Offerors"), confirm their agreement (the "Agreement") with Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") 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 Xxxxxxx Xxxxx, Xxxxxx Brothers Inc., Xxxxxx Xxxxxxx &
Co. Incorporated, PaineWebber Incorporated, Prudential Securities Inc.
and Xxxxx Xxxxxx Inc. 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 8.32% 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 Preferred 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 June 25,
1997 (the "Declaration"), among the Company, as Sponsor, H. Xxxx Xxxxx,
Xxxxx Xxxxx and Xxxxx X. Xxxxxxxxxxxxxxx, as regular trustees (the
"Regular Trustees"), The Bank of New York, as institutional trustee (the
"Property Trustee") and The Bank of New York (Delaware), 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"), to be dated as of June 25, 1997, between the Company
and The Bank of New York, 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, to be dated as of June 25, 1997 (the
"Partnership Agreement"), among the Company, as general partner, and H.
Xxxx Xxxxx, 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 two 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 (the "Investment Guarantees") by the Company
(the "Debenture Guarantor"). Each of the Debentures shall be issued
pursuant to an indenture (each an "Indenture"), dated as of June 25,
1997, among the applicable Investment Affiliate and The Bank of New
York, as trustee (the "Debt Trustee").
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. 333-28737)
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 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, as amended, 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 June 17, 1997 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 ("XXXXX").
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 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 Xxxxxxx Xxxxx 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 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 XXXXX, 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 except as otherwise
described therein. 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. Except as
otherwise described 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 the condition, financial or
otherwise, or in the results of operations, 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 the outstanding common stock
of the Company and regular dividends on the outstanding preferred stock
of the Company 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 Company are (A) the
subsidiaries listed in Exhibit 21 to the Annual Report on Form 10-K of
the Company for the fiscal year ended December 31, 1996, filed with the
Commission under Section 13 of the 1934 Act, and (B) Ultramar Inc.
(Nevada), each of which is a Subsidiary for the purposes hereof.
(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, 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 0000 Xxx.
(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 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 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.
(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, the 1934 Act or the 1934 Act Regulations or state
securities laws.
(xviii) [Reserved].
(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, could reasonably be expected to 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 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 which could reasonably be
expected to result in a Material Adverse Effect.
(xxi) [Reserved].
(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; and the Trust Guarantee has 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 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 Offered 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.
(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 as of the Closing Date the Trust 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 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 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 as of the
Closing Time the Partnership will be treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting
principles.
(vii) Authorization of Partnership Agreement. The
Partnership Agreement has been duly authorized by the Company as general
partner and, as of the Closing Time, 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; 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
Offered 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 June 5, 1997 (the "Certificate of Trust"); the
Partnership is not in violation of the Partnership Agreement or the
certificate of limited partnership, dated June 5, 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 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 or 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 have already been obtained or 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, or in
the results of operations, business affairs or business prospects of the
Trust or of the Company and its Subsidiaries, taken as a whole, or that
would materially and adversely affect the 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.
(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) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 919 Third
Avenue, New York, New York, or at such other place as shall be agreed
upon by the Representatives and the Company, at 9:00 A.M. (Eastern
time) on June 25, 1997 (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. The
certificate in global form for the Trust Preferred Securities will be
made available for examination by the Representatives in The City of New
York not later than 2:00 P.M. (Eastern time) on the business day prior
to the Closing Time. 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. Xxxxxxx Xxxxx,
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 funds to a
bank account designated by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated for the account of the Underwriters.
(c) [Reserved].
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 promptly, 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 practicable 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
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 Xxxxxxx Xxxxx 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, upon request and
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 XXXXX, 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 XXXXX, 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 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 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, copying 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 global certificate 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, copying 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 Trust Preferred
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 reasonable 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 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) Xxxxxxx X. Xxxxxxx, Executive Vice President,
General Counsel and Secretary of the Company, 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,
Xxxxxxx & Xxxx LLP, 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, Xxxxxxx & Xxxx 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 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 Tax Counsel for Company, Trust and Partnership. At
Closing Time, the Representatives shall have received the favorable
opinion, dated as of Closing Time, of Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, special tax 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 that under
current law, and based on certain representations, facts and assumptions
set forth in such opinion, (i) the Trust will be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation, (ii) the Partnership will be
classified for United States federal income tax purposes as a
partnership and not as an association or publicly traded partnership
taxable as a corporation, (iii) the Debentures will be classified as
indebtedness of the relevant issuer for United States federal income tax
purposes, and (iv) the statements set forth in the Prospectus under the
caption "Certain Federal Income Tax Considerations," while general in
nature, constitute, in all material respects, a fair and accurate
summary of the anticipated United States federal income tax consequences
of the purchase, ownership and disposition of the Trust Preferred
Securities.
(e) Opinion of Counsel for the Property Trustee. At Closing Time,
the Representatives and the Company shall have received the favorable
opinion, dated as of Closing Time, of Xxxxx, Xxxxxx & Xxxxxx, 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.
(f) 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 Effect, and the Representatives shall have received a
certificate of the President or a Vice President of the Company or 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 Effect, (ii) the representations and warranties in Section 1(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) to the knowledge of such officer, 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.
(g) Accountants' Comfort Letters. At the time of the execution of
this Agreement, the Representatives shall have received from each of
Ernst & Young LLP and Xxxxxx Xxxxxxxx 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.
(h) Bring-down Comfort Letter. At Closing Time, the
Representatives shall have received from each of Ernst & Young LLP and
Xxxxxx Xxxxxxxx LLP a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant
to subsection (g) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to
Closing Time.
(i) Maintenance of Rating. At Closing Time, the Trust Preferred
Securities shall be rated at least "baa3" by Xxxxx'x Investors Service
Inc. ("Moody's") and "BBB-" by Standard & Poor's Ratings Services, a
division of the XxXxxx-Xxxx Companies, Inc. ("S&P"); 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 Moody's or S&P and neither of such organizations 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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.
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 Xxxxxxx Xxxxx), 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 Xxxxxxx Xxxxx
expressly for use 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).
(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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx
and approved by the Company, such approval not to be unreasonably
withheld, 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. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to
any local counsel) 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 unless the named parties in
such action or separate but similar or related actions include both the
indemnifying and indemnified parties and legal defenses available to the
indemnified party create a conflict of interest with the indemnifying
party, in which case the indemnified party shall have the right to
employ separate counsel, and the indemnifying party shall bear the
reasonable fees and expenses of such separate counsel, provided that the
indemnifying party shall not be responsible for the fees and expenses of
more than one such separate counsel (in addition to any local counsel)
for all indemnified parties. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or
Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of
counsel and shall have provided to the indemnifying party all
information and documentation reasonably requested by the indemnifying
party regarding such fees and expenses (collectively, a "Completed
Request"), 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
Completed 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
Completed 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 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 0000 Xxx) 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 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, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
or (ii) 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 New York
Stock Exchange 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.
(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
Xxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
attention of Office of Legal Compliance; and notice to the Offerors
shall be directed to it at 0000 Xxxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxx
00000, attention of the Executive Vice President, General Counsel, and
Secretary.
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.
SM "Trust Originated Preferred Securities" and TOPrS" are service marks
of Xxxxxxx Xxxxx & Co., Inc.
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,
ULTRAMAR DIAMOND SHAMROCK
CORPORATION
By: /s/ XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Vice President and
Treasurer
UDS FUNDING I, L.P.
By: ULTRAMAR DIAMOND SHAMROCK
CORPORATION
as General Partner
By: /s/ XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Vice President and
Treasurer
UDS CAPITAL I
By: /s/ XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Vice President and
Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ XXXX XXXXXX
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
SCHEDULE A
Number of
Trust Preferred
Name of Underwriter Securities
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated. . . . . . 1,155,000
Xxxxxx Brothers Inc.. . . . . . . . . . . . . . . . . . . . . 1,145,000
Xxxxxx Xxxxxxx & Co. Incorporated . . . . . . . . . . . . . . 1,145,000
PaineWebber Incorporated. . . . . . . . . . . . . . . . . . . 1,145,000
Prudential Securities Inc.. . . . . . . . . . . . . . . . . . 1,145,000
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . 1,145,000
Bear, Xxxxxxx & Co. Inc.. . . . . . . . . . . . . . . . . . . 80,000
Alex. Xxxxx & Sons Incorporated . . . . . . . . . . . . . . . 80,000
Xxxxx & Company . . . . . . . . . . . . . . . . . . . . . . . 80,000
Xxxx Xxxxxxxx Incorporated. . . . . . . . . . . . . . . . . . 80,000
Xxxxxx, Read & Co. Inc. . . . . . . . . . . . . . . . . . . . 80,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation . . . . . 80,000
X.X. Xxxxxxx & Sons, Inc. . . . . . . . . . . . . . . . . . . 80,000
EVEREN Securities, Inc. . . . . . . . . . . . . . . . . . . . 80,000
The Ohio Company. . . . . . . . . . . . . . . . . . . . . . . 80,000
Xxxxxxxxxxx & Co., Inc. . . . . . . . . . . . . . . . . . . . 80,000
Xxxxx Xxxxxxx Inc.. . . . . . . . . . . . . . . . . . . . . . 80,000
Xxxxxxx Xxxxx & Associates, Inc.. . . . . . . . . . . . . . . 80,000
Xxxxxx Xxxxxxx Incorporated . . . . . . . . . . . . . . . . . 80,000
Wheat, First Securities, Inc. . . . . . . . . . . . . . . . . 80,000
Total . . . . . . . . . . . . . . . . . . . . . . . 8,000,000
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 $.7875; 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 $.50. Xxxxxxx Xxxxx on behalf
of the Underwriters will advise the Company by the close of business on
the business day prior to the Closing Time of the number of sales of
10,000 or more Trust Preferred Securities to a single purchaser.
EXHIBIT A
FORM OF OPINION OF XXXXXXX X. XXXXXXX
COMPANY COUNSEL, TO BE DELIVERED
PURSUANT TO SECTION 5(b)
(i) Diamond Shamrock Corporation (the "Company") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, has the requisite 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, 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.
(ii) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(iii) 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. The Indenture in
respect of the Company Debentures has been duly qualified under the 0000
Xxx.
(iv) The Debentures have been duly authorized, executed and
delivered by the applicable Investment Affiliate.
(v) The Investment Guarantees in respect of each of the Subsidiary
Debentures have been duly authorized, executed and issued by the
Debenture Guarantor. The Investment Guarantees have been duly qualified
under the 1939 Act.
(vi) The Trust Preferred Securities Guarantee Agreement has been
duly authorized, executed and delivered by the Company. The Trust
Preferred Securities Guarantee Agreement has been duly qualified under
the 0000 Xxx.
(vii) The Partnership Guarantee Agreement has been duly
authorized, executed and delivered by the Company.
(viii) The Declaration has been duly authorized, executed and
delivered by the Company and has been duly qualified under the 1939 Act.
(ix) The Partnership Agreement has been duly authorized, executed
and delivered by the Company.
(x) 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 my 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, (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 and (c) such consents,
approvals, authorizations, registrations or qualifications as have
already been obtained or made.
(xi) The statements made in the Prospectus under the captions "UDS
Capital I", "UDS Funding I, 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.
(xii) 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 my knowledge, no stop order
suspending the effectiveness 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.
(xiii) Neither the Trust nor the Partnership is required to be
registered as an "investment company" under the 1940 Act.
(xiv) 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.
I have participated in conferences with officers and
representatives of the Company at which the contents of the Registration
Statement and Prospectus and related matters were discussed and,
although I am 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 my attention that would lead me 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 I make no statement), at the
time the Registration Statement or any post-effective amendment thereto
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 I 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 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.
EXHIBIT B
FORM OF OPINION OF SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP,
SPECIAL DELAWARE COUNSEL AND SPECIAL TAX 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 the
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 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; 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) Assuming each Indenture has been duly authorized by the
Company, each Indenture, 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 the Bankruptcy Exceptions.
(ix) Assuming the Debentures have been duly authorized by the
Applicable Investment Affiliate, the Debentures, 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 the Bankruptcy Exceptions.
(x) Assuming the Investment Guarantees in respect of each of the
Subsidiary Debentures have been duly authorized by the Debenture
Guarantor, such Investment Guarantees, 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 the Bankruptcy Exceptions.
(xi) Assuming the Trust Preferred Securities Guarantee Agreement
has been duly authorized by the Company, the Trust Preferred Securities
Guarantee Agreement, when duly authorized, executed and delivered 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 the
Bankruptcy Exceptions.
(xii) Assuming the Partnership Guarantee Agreement has been duly
authorized by the Company, the Partnership Guarantee Agreement
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 the Bankruptcy Exceptions.
(xiii) 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 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, or in the earnings,
business affairs or business prospects of the Company and its
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.
(xiv) 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.
EXHIBIT C
FORM OF OPINION OF XXXXX, XXXXXX & XXXXXX,
COUNSEL FOR THE PROPERTY TRUSTEE, TO BE
DELIVERED PURSUANT TO SECTION 5(e)
(i) The Bank of New York is a New York banking corporation with
trust powers, is duly organized, is validly existing and is in good
standing under the laws of the State of New York 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) The Bank of New York (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, in the case of the Trust
Preferred Guarantee.
(v) No consent, approval or authorization of, or registration with
or notice to, any New York, Delaware or federal banking authority is
required for the execution, delivery or performance by the Property
Trustee or the Delaware Trustee of the Declaration or by the Guarantee
Trustee of the Trust Preferred Guarantee.
