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EXHIBIT 1 (c)
CMS ENERGY CORPORATION
CMS ENERGY TRUST II
% ADJUSTABLE CONVERTIBLE TRUST SECURITIES
(Stated Amount $ per Unit)
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UNDERWRITING AGREEMENT
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July __, 1999
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Banc of America Securities LLC
As Representatives of the several Underwriters
named in Schedule II hereto
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
CMS Energy Trust II, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), and CMS Energy Corporation, a
Michigan corporation, as sponsor of the Trust and as guarantor (the "Company"),
propose, subject to the terms and conditions stated herein, to issue and sell to
the Underwriters (as defined in Section 14 hereof) an aggregate of ____ __%
Adjustable Convertible Trust Securities (the "Firm Units"), consisting of (i)
the right to purchase certain common stock of the Company and (ii) certain
preferred securities of the Trust that are subject to a call option, as
described below. The Underwriters have designated the representatives named in
Schedule I hereto (the "Representatives") to execute this Agreement on their
behalf and to act for them in the manner provided in this Agreement.
In connection herewith, the Company and the Underwriters
propose, subject to the terms and conditions stated herein, to enter into the
Purchase Contracts (the "Purchase Contracts"), underlying an aggregate of Firm
Units, pursuant to the Master Unit Agreement to be dated as of July , 1999
(the "Master Unit Agreement"), between the Company and The Bank of New York, as
Master Unit Agent (the "Unit Agent").
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Further, the Trust and the Company propose that the Trust, subject to
the conditions stated herein, issue and sell to the Underwriters, an aggregate
of $ Trust Preferred Securities (liquidation amount $___ per preferred security)
(the "Trust Preferred Securities") underlying the Firm Units. The Trust
Preferred Securities will represent undivided beneficial interests in the assets
of the Trust, guaranteed on a subordinated basis by the Company as to the
payment of distributions and as to payments on liquidation or redemption, to the
extent set forth in a guarantee agreement to be dated as of July , 1999 (the
"Guarantee") between the Company and The Bank of New York, as trustee (the
"Guarantee Trustee"). In connection therewith, the Trust is to purchase, with
the proceeds from the sale of its Trust Preferred Securities and its Trust
Common Securities (liquidation amount $___ per common security) (the "Trust
Common Securities"), ___ % Subordinated Debentures due 2004 (the "Junior
Subordinated Debentures") of the Company, to be issued pursuant to an Indenture
dated as of June 1, 1997 (the "Base Indenture") between the Company and The Bank
of New York, as trustee (the "Debenture Trustee"), as supplemented by a Third
Supplemental Indenture (the "Supplemental Indenture") dated as of July __, 1999
between the Company and the Debenture Trustee (the Base Indenture as so
supplemented, the "Indenture"). The Company will be the holder of 100% of the
Trust Common Securities. The Trust will be subject to the terms of an Amended
and Restated Trust Agreement (the "Trust Agreement"), among the Company and the
trustees of the Trust (the "CMS Trustees"), including The Bank of New York, as
property trustee (the "Property Trustee"). The Trust Agreement, the Indenture
and the Guarantee will be qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
Further, the Underwriters will, on behalf of the initial
holders of the Units, sell Call Options (the "Call Options") to Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation (in its capacity as the holder of the
Call Options, the "Call Option Holder") pursuant to the Call Option Agreement
dated as of July __, 1999 between the Call Option Holder and the Unit Agent (the
"Call Option Agreement") relating to the Trust Preferred Securities. The Call
Option Agreement will entitle the Call Option Holder to acquire the Trust
Preferred Securities (or Junior Subordinated Debentures substituted therefor),
on or before the Call Option Expiration Date (as defined in the Call Option
Agreement), in exchange for the Aggregate Call Option Exercise Consideration (as
defined in the Call Option Agreement).
In connection with the Master Unit Agreement and the Call
Options, and pursuant to the Pledge Agreement, to be dated as of July , 1999
(the "Pledge Agreement"), among the Company, the Unit Agent, the Call Option
Holder and Chase Manhattan Bank, as collateral agent (the "Collateral Agent"),
the Trust Preferred Securities and any substituted securities will be pledged
(the "Pledged Securities") by the Unit Agent, on behalf of the holders of the
Units, to secure the holders' obligations to the Company and the Call Option
Holder under the Purchase Contract and Call Option, respectively.
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In addition, subject to the terms and conditions herein, the
Company proposes to grant the Underwriters an option to enter into ____
additional Purchase Contracts and the Trust and the Company propose to grant the
Underwriters an option to purchase up to ____ additional Trust Preferred
Securities, and, in the event the Underwriters enter into any such additional
Purchase Contracts, the Underwriters propose to purchase a number of additional
Trust Preferred Securities equal to such number of additional Purchase
Contracts, pledge such Trust Preferred Securities to the Collateral Agent and
sell Call Options relating to such Trust Preferred Securities to the Call Option
Holder (the Units resulting therefrom being the "Optional Units"). The Firm
Units and any Optional Units purchased by the Underwriters are herein called the
"Units".
The rights to purchase newly issued shares of common stock,
$0.01 par value per share, of the Company (the "Common Stock") to be issued upon
the settlement of the Purchase Contracts (the "Purchase Contract Shares"),
together with the Trust Preferred Securities or other Pledged Securities and
subject to (a) the obligations owed to the Company under the Purchase Contract,
(b) the obligations owed to the Call Option Holder under the Call Option and (c)
the pledge arrangements under the Pledge Agreement that secures the foregoing
obligations, collectively constitute a Unit.
1. Representations and Warranties of the Company and the Trust. Each of
the Trust and the Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (Registration No.
333-68937) (the "Initial Registration Statement") in respect of the
Units, including the Purchase Contracts, the Purchase Contract Shares,
the Trust Preferred Securities, the Junior Subordinated Debentures, the
Guarantee and the Call Options, has been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in the form
heretofore delivered or to be delivered to the Representatives and,
excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus included therein,
to the Representatives for each of the other Underwriters have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein
has heretofore been filed, or transmitted for filing, with the
Commission (other than prospectuses filed pursuant to Rule 424(b) of
the rules and regulations of the Commission under the Act each in the
form heretofore delivered to the Representatives); no stop order
suspending the effectiveness of the Initial Registration Statement is
in effect and no proceedings for such purposes are pending before or,
to the knowledge of the Company, threatened by the Commission (any
preliminary prospectus included in such registration statement or filed
with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"); the various parts of
the Initial Registration Statement and
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the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the Initial Registration Statement at the time such part
of the registration statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Units, in the
form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
is hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as amended
or supplemented in relation to the Securities in the form in which it
is filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 4(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or through the
Representatives on behalf of any Underwriter expressly for use in the
Prospectus as amended or supplemented relating to the Units or to any
statements in or omissions from that part of the Registration Statement
that shall constitute the Statements of Eligibility and Qualification
under the Trust Indenture Act of the Debenture Trustee, the Guarantee
Trustee and the Property Trustee;
(c) The documents incorporated by reference in the
Registration Statement and the Prospectus, when they were filed (or, if
an amendment with respect to any such document
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was filed, when such amendment was filed) with the Commission,
conformed in all material respects to the requirements of the Exchange
Act and the rules and regulations of the Commission promulgated
thereunder, and any further documents so filed and incorporated by
reference will, when they are filed with the Commission, conform in all
material respects to the requirements of the Exchange Act and the rules
and regulations of the Commission promulgated thereunder; none of such
documents, when filed (or, if an amendment with respect to any such
document was filed, when such amendment was filed), 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, in light of the circumstances under which they were made, not
misleading; and no such further document, when it is filed, will
contain an untrue statement of a material fact or will omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are
made, not misleading;
(d) There has not been any material and adverse change in the
business, properties or financial condition of the Company and its
Subsidiaries (as defined in Rule 405 under the Act, and hereinafter
called the "Subsidiaries"), taken as a whole, from that set forth in
the Registration Statement and the Prospectus (other than changes
referred to in or contemplated by the Registration Statement or the
Prospectus);
(e) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Michigan and has all requisite authority to own or lease its
properties and conduct its business as described in the Prospectus and
to consummate the transactions contemplated hereby, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business as described in the
Prospectus or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole; each significant
subsidiary (as defined in Rule 405 under the Act, and hereinafter
called a "Significant Subsidiary") of the Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has all
requisite authority to own or lease its properties and conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business as described in the Prospectus or its
ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
Subsidiaries, taken as a whole; and the Company has the requisite power
and authority to authorize the offering of the Junior Subordinated
Debentures and the Purchase Contract Shares, to exercise, deliver and
perform the Purchase Contracts, the Master Unit Agreement, the Pledge
Agreement, the Guarantee, the Indenture, the Trust Agreement and this
Agreement, and to issue, sell and deliver the Junior Subordinated
Debentures and the Purchase Contract Shares;
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(f) The shares of Common Stock of the Company issued and
outstanding prior to the issuance and sale of the Units have been duly
authorized and are validly issued, fully paid and non-assessable; the
Purchase Contract Shares to be issued and sold by the Company pursuant
to the Purchase Contracts and the Master Unit Agreement have been duly
authorized and reserved for issuance and, when issued and delivered
against payment therefor as provided in the Purchase Contracts and the
Master Unit Agreement, will be validly issued, fully paid and
non-assessable and conform to the description of Common Stock in the
Prospectus;
(g) The Trust Preferred Securities underlying the Units have
been duly and validly authorized by the Trust, and, when the Trust
Preferred Securities are issued and delivered, such Trust Preferred
Securities will be validly issued, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; the Trust
Preferred Securities will conform in all material respects to the
description thereof contained in the Prospectus; the issuance of the
Trust Preferred Securities is not subject to any preemptive or other
similar rights; the Trust Preferred Securities will have the rights set
forth in the Trust Agreement, and the terms of the Trust Preferred
Securities are valid and binding on the Trust;
(h) The Trust Common Securities have been duly and validly
authorized by the Trust and upon delivery by the Trust to the Company
against payment therefor as described in the Prospectus, will be duly
and validly issued undivided beneficial interests in the assets of the
Trust and will conform in all material respects to the description
thereof contained in the Prospectus; the issuance of the Trust Common
Securities is not subject to preemptive or other similar rights; at
each Time of Delivery (as defined in Section 3 hereof), all of the
issued and outstanding Trust Common Securities will be directly owned
by the Company free and clear of any security interest, mortgage,
pledge, claim, lien or encumbrance (each, a "Lien"); and the Trust
Common Securities and the Trust Preferred Securities are the only
interests authorized to be issued by the Trust;
(i) Except for the outstanding shares of preferred stock of
Consumers Energy Company, the 8.36% Trust Originated Preferred
Securities of Consumers Power Company Financing I, the 8.20% Trust
Originated Preferred Securities of Consumers Energy Financing II and
the 7.75% Convertible Quarterly Income Preferred Securities of CMS
Energy Trust I, all of the outstanding capital stock of each of
Consumers Energy Company and CMS Enterprises Company is owned directly
or indirectly by the Company, free and clear of any Lien, and there are
no outstanding rights (including, without limitation, preemptive
rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity
interest in any of Consumers Energy Company and CMS Enterprises Company
or any contract, commitment, agreement, understanding or arrangement of
any kind relating to the issuance of any such capital stock, any such
convertible or exchangeable securities or any such rights, warrants or
options;
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(j) The capital stock of the Company, including the Common
Stock, conforms in all material respects to the description thereof in
the Prospectus;
(k) Each of the Company and its Significant Subsidiaries has
all necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets and to conduct
its business in the manner described in the Prospectus, except to the
extent that the failure to obtain or file would not have a material
adverse effect on the Company and its Subsidiaries, taken as a whole;
(l) No order, license, consent, authorization or approval of,
or exemption by, or the giving of notice to, or the registration with
any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, and no filing,
recording, publication or registration in any public office or any
other place, was or is now required to be obtained by the Company to
authorize its execution or delivery of, or the performance of its
obligations under, this Agreement, except such as have been obtained or
may be required under state securities or Blue Sky laws or as referred
to in the Prospectus in connection with the purchase and distribution
of the Units, the Purchase Contracts, the Master Unit Agreement, the
Pledge Agreement, the Guarantee, the Trust Agreement and the Indenture,
or to issue, sell and deliver the Junior Subordinated Debentures and
the Purchase Contract Shares;
(m) No order, license, consent, authorization or approval of,
or exemption by, or the giving of notice to, or the registration with
any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, and no filing,
recording, publication or registration in any public office or any
other place, was or is now required to be obtained by the Trust to
authorize its execution or delivery of, or the performance of its
obligations under, this Agreement, except such as have been obtained or
may be required under state securities or Blue Sky laws or as referred
to in the Prospectus in connection with the purchase and distribution
of the Units, and the Trust Agreement, or to issue, sell and deliver
the Trust Preferred Securities and the Trust Common Securities;
(n) The execution and delivery of this Agreement by the Trust,
the compliance by the Trust with all of the provisions of this
Agreement, the issuance and sale of the Trust Preferred Securities and
the Trust Common Securities by the Trust, the purchase of the Junior
Subordinated Debentures by the Trust, the distribution of the Junior
Subordinated Debentures by the Trust in the circumstances contemplated
by the Trust Agreement, the performance of this Agreement and the Trust
Agreement, and the consummation of each of the transactions
contemplated thereby did not and will not conflict with, result in a
breach of any of the terms or provisions of, or constitute a default or
require the consent of any party under the Trust Agreement, any
material terms or provisions of any material agreement or instrument to
which the Trust is a party, any existing material applicable law, rule
or
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regulation or any judgment, order or decree of any governmental
instrumentality or court, domestic or foreign, having jurisdiction over
the Trust or any of its properties or assets, or did or will result in
the creation or imposition of any Lien on the Company's properties or
assets;
(o) The execution and delivery of this Agreement by the
Company, the compliance by the Company with all of the provisions of
this Agreement, the entry into the Purchase Contracts by the Company,
the issuance and sale of the Trust Preferred Securities and the Trust
Common Securities by the Trust, the sale of the Junior Subordinated
Debentures by the Company to the Trust, the distribution of the Junior
Subordinated Debentures by the Trust in the circumstances contemplated
by the Trust Agreement, the issuance and sale by the Company of the
Purchase Contract Shares, the execution, delivery and performance of
this Agreement, the Purchase Contracts, the Master Unit Agreement, the
Pledge Agreement, the Guarantee, the Trust Agreement and the Indenture,
and the consummation of each of the transactions contemplated thereby,
did not and will not conflict with, result in a breach of any of the
terms or provisions of, or constitute a default or require the consent
of any party under the Company's Articles of Incorporation or by-laws,
any material terms or provisions of any material agreement or
instrument to which the Company is a party, any existing material
applicable law, rule or regulation or any judgment, order or decree of
any governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its properties or assets, or
did or will result in the creation or imposition of any Lien on the
Company's properties or assets;
(p) Except as disclosed in the Prospectus, there is no action,
suit, proceeding, inquiry or investigation (at law or in equity or
otherwise) pending or, to the knowledge of the Company, threatened
against the Company or any Subsidiary by any governmental authority
that (i) questions the validity, enforceability or performance of this
Agreement or the Units or (ii) if determined adversely, is likely to
have a material adverse effect on the business or financial condition
of the Company and its Subsidiaries, taken as a whole, or materially
adversely affect the ability of the Company to perform its obligations
hereunder or the consummation of the transactions contemplated by this
Agreement;
(q) Except as set forth in the Prospectus, no event or
condition exists that constitutes, or with the giving of notice or
lapse of time or both would constitute, a default or any breach or
failure to perform by the Company or any of its Significant
Subsidiaries in any material respect under any indenture, mortgage,
loan agreement, lease or other material agreement or instrument to
which the Company or any of its Significant Subsidiaries is a party or
by which it or any of its Significant Subsidiaries, or any of their
respective properties, may be bound;
(r) Neither the Company, the Trust nor any of the Subsidiaries
is, or, after giving effect to the offering and sale of the Units, will
be an "investment company" within the
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meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"). The Trust is not required to be registered
under the Investment Company Act;
(s) The Units have been approved for listing on the New York
Stock Exchange, subject to notice of issuance;
(t) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Business Trust
Act of the State of Delaware (the "Delaware Business Trust Act") with
the trust power and authority to own property and conduct its business
as described in the Prospectus, and has conducted and will conduct no
business other than the transactions contemplated by this Agreement and
described in the Prospectus; the Trust is not a party to or bound by
any agreement or instrument other than this Agreement, the Trust
Agreement between the Company and the CMS Trustees named therein and
the agreements and instruments contemplated by the Trust Agreement and
described in the Prospectus; based on expected operations and current
law, the Trust is not and will not be classified as an association
taxable as a corporation for United States federal income tax purposes;
and, to the knowledge of each of the Company and the Trust, the Trust
is not a party to or subject to any action, suit or proceeding of any
nature;
(u) This Agreement has been duly authorized, executed and
delivered by the Company and the Trust and constitutes a valid and
binding obligation of each of the Company and the Trust, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or by general principles of equity
(regardless of whether enforcement is considered in a proceeding at law
or in equity);
(v) The Purchase Contracts underlying the Units have been duly
authorized and when validly executed and delivered by the Company and
the other parties thereto pursuant to this Agreement and the Master
Unit Agreement, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is considered
in a proceeding at law or in equity); and the Purchase Contracts will
conform to the descriptions thereof in the Prospectus;
(w) The Master Unit Agreement and the Pledge Agreement, have
each been duly authorized by the Company and, when executed and
delivered by the Company and the other parties thereto, will constitute
valid and binding obligations, enforceable in accordance with their
respective terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or by general principles of equity
(regardless of whether enforcement is considered in a proceeding at law
or in equity); the Master Unit Agreement and the Pledge Agreement
conform or will conform to the descriptions thereof in the Prospectus;
and the Pledge Agreement creates, as collateral
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security, for the performance when due, by the holders of the Units, of
the respective obligations created under the Purchase Contracts and
Call Options, a legal, valid and perfected security interest (as that
term is defined in the Uniform Commercial Code, as adopted and in
effect in the State of New York), in favor of the Collateral Agent, in
the right, title and interest of such holders in the Pledged Securities
that constitute a part of the Units;
(x) The Guarantee, the Junior Subordinated Debentures, the
Trust Agreement and the Indenture have each been duly authorized and
when validly executed and delivered by the Company and, in the case of
the Guarantee, by the Guarantee Trustee and, in the case of the Trust
Agreement, by the CMS Trustees and, in the case of the Indenture, by
the Debenture Trustee, and, in the case of the Junior Subordinated
Debentures, when validly authenticated and delivered by the Debenture
Trustee and, in the case of the Guarantee, upon due execution,
authentication and delivery of the Junior Subordinated Debentures and
upon payment therefor, will constitute valid and binding obligations of
the Company, enforceable in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
or by general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity); the Junior
Subordinated Debentures are entitled to the benefits of the Indenture;
the Trust Agreement, the Indenture and the Guarantee have been duly
qualified under the Trust Indenture Act;
(y) Each of the Trust Agreement, the Guarantee, the Indenture
and the Junior Subordinated Debentures will conform in all material
respects to the description thereof contained in the Prospectus.
2. Sale of Units.
(a) Subject to the terms and conditions set forth herein:
(i) the Company and each of the Underwriters,
severally and not jointly, agree to enter into the Purchase
Contracts underlying the number of Firm Units set forth
opposite the name of such Underwriter in Schedule II hereto,
(ii) the Company and the Trust agree that the Trust
will sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase
from the Trust, at a purchase price of $_____ per Trust
Preferred Security, the number of Trust Preferred Securities
underlying the number of Firm Units set forth opposite the
name of such Underwriter in Schedule II hereto, and
(iii) in the event and to the extent that the
Underwriters shall exercise the election to enter into
additional Purchase Contracts underlying Optional Units as
provided in sub-section (b) below,
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(1) the Company and each of the
Underwriters, severally and not jointly, agree to
enter into that number of additional Purchase
Contracts as to which such election shall have been
exercised (to be adjusted by you so as to eliminate
fractional Purchase Contracts) determined by
multiplying such number of additional Purchase
Contracts by a fraction, the numerator of which is
the maximum number of Optional Units set forth
opposite the name of such Underwriter in Schedule II
hereto and the denominator of which is the maximum
number of Optional Units set forth in total opposite
the names of all such Underwriters in Schedule II
hereto, and
(2) the Company and the Trust agree that the
Trust will sell to each of the Underwriters and each
of the Underwriters agrees, severally and not
jointly, to purchase from the Trust at the purchase
price set forth in clause (a) of this Section 2, a
number of Trust Preferred Securities equal to such
number of additional Purchase Contracts.
(b) The Company hereby grants to the Underwriters the right to
enter into at their election up to____Purchase Contracts underlying
Optional Units and the Company and the Trust hereby grant the
Underwriters the right to purchase from the Trust at their election up
to____Trust Preferred Securities, for the sole purpose of covering
overallotments in the sale of the Firm Units. Any such election to
enter into such additional Purchase Contracts and purchase such Trust
Preferred Securities may be exercised only by written notice from you
to the Company and the Trust, given within a period of 30 calendar days
after the date of this Agreement and setting forth the aggregate number
of such additional Purchase Contracts to be entered into and Trust
Preferred Securities to be purchased (which shall be an identical
number) and the date on which the related Optional Units are to be
delivered, as determined by you but in no event earlier than the First
Time of Delivery (as defined in Section 4 hereof) or, unless you and
the Company otherwise agree in writing, earlier than two or later than
ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent,
on behalf of the initial purchasers of the Units, the Trust Preferred
Securities underlying the Firm Units and the Optional Units with
respect to which the Company and the Underwriters have entered into
Purchase Contracts. Such pledge shall be effected by the delivery by
the Underwriters to the Collateral Agent in New York of the Trust
Preferred Securities to be pledged at the appropriate Time of Delivery
(as defined below) in accordance with the Pledge Agreement.
(d) The Underwriters further agree to sell, on behalf of the
initial purchasers of the Units, to the Call Option Holder a Call
Option with respect to each Trust Preferred Security purchased at a
purchase price of $____ per Call Option at the appropriate Time of
Delivery.
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(e) Unless the context otherwise requires, for purposes of
this Agreement, the act of entering into a Purchase Contract,
purchasing a Trust Preferred Security and selling a Call Option with
respect to such Trust Preferred Security shall be referred to as the
"purchase" of a Unit.
3. Delivery of Units.
(a) The Units to be purchased by each Underwriter shall be
delivered by or on behalf of the Company to such Underwriter, through
the facilities of the Depository Trust Company ("DTC"), for the account
of such Underwriter, against (i) payment by or on behalf of such
Underwriter of the purchase price therefor by certified or official
bank check or checks, payable to the order of, or by wire transfer to
the account designated by, the Company in federal or other immediately
available funds and (ii) delivery to the Collateral Agent of the Trust
Preferred Securities relating to such Units. The Company will cause the
certificates representing the Units to be made available for checking
and packaging at least twenty-four hours prior to the Time of Delivery
(as defined below) at the office of DTC or its designated custodian
(the "Designated Office"). The Units to be purchased by each
Underwriter hereunder will be represented by one or more definitive
global Units in book-entry form which will be deposited by or on behalf
of the Company with the DTC or its designated custodian. The time and
date of such delivery and payment shall be 9:30 a.m., New York City
time, on July __, 1999 or such other time and date as the Underwriters,
the Trust and the Company may agree upon in writing, and, with respect
to the Optional Units, 9:30 a.m., New York City time, on the date
specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Units, or such other time and date as the Representatives and the
Company may agree upon in writing. Such time and date for delivery of
the Firm Units is herein called the "First Time of Delivery," such time
and date for delivery of the Optional Units, if not the First Time of
Delivery, is herein called the "Second Time of Delivery," and each such
time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 6 hereof,
including the cross-receipt for the Units, will be delivered at such
time and date at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing
Location"), and the Units will be delivered at the Designated Office,
all at each Time of Delivery. A meeting will be held at the Closing
Location prior to each Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Agreement, "New York Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
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4. Covenants of the Trust and the Company. The Trust and the Company,
jointly and severally, agree with each of the Representatives and each of the
Underwriters:
(a) To prepare the Prospectus as amended and supplemented in
relation to the Units in a form approved by the Representatives and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 424(b); prior
to each Time of Delivery, to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented unless the Company has furnished the Representatives and
their counsel with a copy, for their review and comment, a reasonable
time prior to filing and has reasonably considered any comments of the
Representatives, and to make no such amendment or supplement to which
such counsel shall reasonably object on legal grounds in writing, after
consultation with the Representatives; to timely file all reports and
any definitive proxy or information statements required to be filed by
the Trust or the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Units, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Units, of the suspension of
the qualification of the Units for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Units or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such
order;
(b) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time during the period of time (not exceeding nine months) after the
date of the Prospectus when a Prospectus is required to be delivered
under the Act to furnish the Representatives in New York City with
copies of the Prospectus as amended or supplemented in such quantities
as the Representatives may reasonably request, and, if the delivery of
a prospectus is required at any time after the expiration of nine
months in connection with the offering or sale of the Units, and if at
such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated
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by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to prepare and file such
document and to furnish without charge as many copies as the
Representatives may reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(c) If the Company and the Trust elect to rely upon Rule
462(b), the Company and the Trust shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00
p.m., Washington, D.C. time, on the date of this Agreement, and the
Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act;
(d) To make generally available to the Company's
securityholders, as soon as practicable but in any event not later than
eighteen months after the effective date of the Registration Statement,
an "earning statement" (which need not be audited by independent public
accountants) covering a twelve-month period commencing after the
effective date of the Registration Statement and ending not later than
15 months thereafter, which shall comply in all material respects with
the provisions of Section 11(a) of the Act and Rule 158 under the Act);
(e) To use its best efforts to qualify the Units for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives may reasonably request, to comply with such laws so as
to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Units, and to pay (or cause to be paid), or
reimburse (or cause to be reimbursed) the Representatives and their
counsel for, reasonable filing fees and expenses in connection
therewith (including the reasonable fees and disbursements of counsel
to the Representatives and filing fees and expenses paid and incurred
prior to the date hereof), provided, however, that the Company shall
not be required to qualify to do business as a foreign corporation or
as a securities dealer or to file a general consent to service of
process or to file annual reports or to comply with any other
requirements deemed by the Company to be unduly burdensome;
(f) During the period beginning from the date hereof and
continuing for a period of ___ days after the issuance of the Units,
not to offer, sell, contract to sell or otherwise dispose of any Units,
Trust Preferred Securities or Common Stock or any other securities of
the Company which are substantially similar to the Units, including any
guarantee of such securities, or any securities convertible into or
exchangeable for or representing the right to receive any of the
foregoing securities, other than shares of Common Stock issuable upon
conversion of the Units or pursuant to the Company's Stock Purchase
Plan, Performance Incentive Stock Plan, Employee Stock Ownership Plan
and Employee Savings and Incentive Plan, without the prior written
consent of the Representatives;
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(g) To use the net proceeds received by it from the sale of
the Units, pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds"; and
(h) To use its best efforts to list, subject to notice of
issuance, the Units on the New York Stock Exchange.
5. Expenses. The Company covenants and agrees with the several
Representatives and the several Underwriters that the Company will pay or cause
to be paid the following: (i) the fees, disbursements and expenses of the
Trust's and the Company's counsel and accountants in connection with the
registration of the Units under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the dealers and the
Underwriters; (ii) the cost of any delivery to the Underwriters of any Blue Sky
Memorandum; (iii) all expenses in connection with the qualification of the Units
for offering and sale under state securities laws as provided in Section 4(e)
hereof, including the fees and disbursements of counsel for the Representatives
in connection with such qualification and in connection with the Blue Sky
survey(s) up to an aggregate amount not to exceed $5,000; (iv) any fees charged
by securities rating services for rating the Units, the Trust Preferred
Securities and the Junior Subordinated Debentures; (v) the cost of preparing the
certificates for the Units, the Trust Preferred Securities, the Junior
Subordinated Debentures, the Trust Common Securities and any Purchase Contract
Shares; (vi) the fees and expenses of the CMS Trustees, the Debenture Trustee
and the Guarantee Trustee and any other agent thereof and the fees and
disbursements of their counsel (it being understood that as among the Company
and the Trust and such trustees, such fees and expenses shall not exceed
$5,000); (vii) the cost and charges of any transfer agent or registrar or
dividend disbursing agent; (viii) the fees and expenses of the Unit Agent,
Collateral Agent and Debenture Trustee and any agent of the Unit Agent,
Collateral Agent and Debenture Trustee and the fees and disbursements of any
counsel for the Unit Agent, Collateral Agent or Trustee in connection with the
Master Unit Agreement, the Pledge Agreement, the Call Option Agreement, the
Indenture and the Junior Subordinated Debentures, as the case may be and (ix)
all other reasonable costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Section 8 hereof, the Representatives and the Underwriters will pay all of
their own costs and expenses, including, without limitation, the fees of their
counsel.
6. Conditions on the Obligations of the Underwriters. The obligations
of the Underwriters shall be subject to the condition that all representations
and warranties and other statements of the Trust and the Company herein are, at
and as of such Time of Delivery, true and correct, the condition that the Trust
and the Company shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
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(a) The Prospectus as amended or supplemented in relation to
the Securities shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance
with Section 4(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP ("Xxxxxxx Xxxx"),
counsel for the Underwriters, shall have furnished to the
Representatives such written opinion or opinions, dated the appropriate
Time of Delivery, with respect to the the formation of the Trust,
insofar as the federal laws of the United States and the laws of the
State of New York or the General Corporation Law of the State of
Delaware or the Delaware Business Trust Act are concerned, the validity
of the Units, the Trust Preferred Securities, the Junior Subordinated
Debentures, the Guarantee and the Prospectus, as well as such other
related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass
upon such matters;
(c) Xxxxxxx X. Xxx Xxxxxx, Assistant General Counsel to the
Company, shall have furnished to the Representatives his written
opinion or opinions, dated such Time of Delivery, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company is a duly organized and validly
existing corporation in good standing under the laws of
Michigan, with power and authority (corporate and other) to
own its properties and conduct its business as described in
the Prospectus, as amended and supplemented;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, as amended or supplemented, and
all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid
and non-assessable;
(iii) The Purchase Contract Shares to be issued and
sold by the Company pursuant to the Purchase Contracts and the
Master Unit Agreement have been duly authorized and reserved
for issuance and, when issued and delivered against payment
therefor as provided in the Purchase Contracts and the Master
Unit Agreement, will be duly and validly issued, fully paid
and non-assessable and will conform to the description of the
Common Stock in the Prospectus;
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(iv) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or
any of its Subsidiaries is a party or of which any property of
the Company or any of its Subsidiaries is the subject which,
if determined adversely to the Company or any of its
Subsidiaries, would in the aggregate have a material adverse
effect on the current or future consolidated financial
position, securityholders' equity or results of operations of
the Company and its Subsidiaries; and to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(v) This Agreement has been duly authorized,
executed and delivered by the Company;
(vi) To the best knowledge of such counsel, there are
no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments or sale or Liens
related to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of, or other ownership
interest in, any Significant Subsidiary;
(vii) The issuance and sale of the Units being
delivered at such Time of Delivery, the entry by the Company
into the Purchase Contracts, the compliance by the Company
with all the provisions of this Agreement, the issuance and
sale of the Trust Preferred Securities and the Trust Common
Securities by the Trust, the sale of the Junior Subordinated
Debentures by the Company to the Trust, the issuance by the
Company of the Purchase Contract Shares pursuant to the
Purchase Contracts and the Master Unit Agreement, the
distribution of the Junior Subordinated Debentures by the
Trust in the circumstances contemplated by the Trust Agreement
and the execution, delivery and performance of this Agreement,
the Purchase Contracts, the Master Unit Agreements, the Pledge
Agreements, the Guarantee, the Trust Agreement and the
Indenture and the consummation of each of the transactions
contemplated thereby, will not conflict with or result in a
breach or violation of any of the material terms or provisions
of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any
of its Subsidiaries is a party or by which the Company is
bound or to which any of the property or assets of the Company
or any of its Subsidiaries is subject (except for such
breaches or violations or defaults that would not have a
material adverse effect on the business, property or financial
condition of the Trust or of the Company and its Subsidiaries,
taken as a whole), nor will such action result in any
violation of the provisions of the Articles of Incorporation
or by-laws of the Company or any statute or any currently
existing order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction
over the Company or any of its Subsidiaries or any of its
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properties (other than the securities or Blue Sky laws of the
various states, as to which such counsel need express no
opinion);
(viii) No consent, approval, authorization, order,
registration or qualifica tion of or with any such court or
governmental agency or body is required for the issuance and
sale of the Units or the consummation by the Company of the
transactions contemplated herein, except such as have been
obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws (as to which
such counsel need express no opinion) in connection with the
purchase and distribution of the Units;
(ix) Neither the Company nor any of its Significant
Subsidiaries is in violation of its respective charters or
bylaws or in default in the performance or observance of any
material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be
bound, except for such violations or defaults the existence of
which would not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole;
(x) The statements made in the Prospectus under the
captions "Descrip tion of the Units," "Description of the
Purchase Contracts," "Description of the Call Options,"
"Pledged Securities and Pledge Agreement," "Certain Provisions
of Principal Agreements," "Description of the Trust Preferred
Securities," "Description of the Guarantee," "Description of
the Junior Subordinated Debentures," and "Relationship Among
the Preferred Securities, the Debenture and the Guarantee,"
insofar as such statements constitute summaries of legal
matters or documents referred to therein, are accurate in all
material respects; the Units, the Trust Preferred Securities,
the Junior Subordinated Debentures, the Guarantee, the Trust
Agreement, the Indenture and the Trust Common Securities
conform as to legal matters to the description thereof and to
the statements in regard thereto contained in the Registration
Statement and the Prospectus as amended or supplemented;
(xi) The Company is not an "investment company"
within the meaning of the Investment Company Act. The Trust is
not required to be registered under the Investment Company
Act;
(xii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
operating statistics, financial statements, notes, auditors'
reports and related schedules therein, and any other financial
or statistical data included or incorporated by reference
therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material
respects with
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the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of
such documents, when they became effective or were so filed,
as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other
documents which were filed under the Act or the Exchange Act
with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made when such documents were so filed,
not misleading;
(xiii) The Registration Statement and the Prospectus
as amended or supplemented, and any further amendments and
supplements thereto made by the Company prior to such Time of
Delivery (other than the operating statistics, financial
statements, notes, auditors' reports and related schedules and
any other financial or statistical data included or
incorporated by reference therein, as to which such counsel
need express no opinion), comply as to form in all material
respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder;
although he does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus, except for
those referred to in the opinion in subsection (ix) of this
Section 6(c), he has no reason to believe that, as of its
effective date, the Registration Statement or any further
amendment thereto made by the Company prior to such Time of
Delivery (other than the operating statistics, financial
statements, notes, auditors' reports and related schedules and
any other financial or statistical data included or
incorporated by reference therein, as to which such counsel
need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery
(other than the operating statistics, financial statements,
notes, auditors' reports and related schedules and any other
financial or statistical data included or incorporated by
reference therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of such Time
of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company prior to such Time
of Delivery (other than the operating statistics, financial
statements, notes, auditors' reports and related schedules and
any other financial or statistical data included or
incorporated by reference therein, as to which such counsel
need express no opinion) contains an untrue statement of a
material fact or
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omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and he does not know of
any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required;
(xiv) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid
and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent
that (a) enforcement thereof may be limited by (i) bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law) and (b) the waiver of usury
contained in Section 5.13 of the Base Indenture may be
unenforceable;
(xv) The Junior Subordinated Debentures have been
duly authorized for issuance by the Company and, when
authenticated by the Debenture Trustee in accordance with the
terms of the Indenture, will be validly issued by the Company
and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their
terms, except to the extent that (a) enforcement thereof may
be limited by (i) bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law)
and (b) the waiver of usury contained in Section 5.13 of the
Base Indenture may be unenforceable;
(xvi) The Trust Agreement has been duly authorized,
executed and delivered by the Company, and constitutes 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 (a) bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (b) general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law);
(xvii) The Guarantee has been duly authorized,
executed and delivered by the Company, and constitutes a valid
and binding agreement of the Company,
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enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited
by (i) bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(xviii) Each of the Master Unit Agreement, the
Purchase Contracts being delivered at such Time of Delivery
and the Pledge Agreement has been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery by the other parties thereto,
constitutes a valid and legally binding agreement of the
Company enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization,
fraudulent transfer, fraudulent conveyance, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general principles (whether such
principles are considered in a proceeding in equity or in
law); the Master Unit Agreement, the Pledge Agreement and the
Purchase Contracts conform in all material respects to the
descriptions thereof in the Prospectus as amended or
supplemented; and
(xix) To the best of such counsel's knowledge, the
Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Trust Agreement and
the agreements and instruments contemplated by the Trust
Agreement and described in the Prospectus; and to the best of
such counsel's knowledge, there are no legal or governmental
proceedings pending to which the Trust is a party or of which
any property of the Trust is the subject and no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
The foregoing opinions may be limited to the laws of Delaware,
Michigan and the federal law of the United States. In giving such opinion, such
counsel may rely, as to matters of Delaware law, upon the opinion of Xxxxxxx
Xxxx, special Delaware counsel to the Trust and the Company, in which case the
opinion shall state that such counsel believes that you and he are entitled to
so rely.
(d) The opinion or opinions of Xxxxxxx Xxxx, dated as of such Time of
Delivery, in form and substance to the effect that:
(i) Assuming that:(i) the Pledge Agreement has been duly
authorized executed and delivered b the Unit Agent on behalf of each of
the Holders from time to time, (ii) the Pledge Agreement constitutes
the legal, valid and binding obligation of the Unit Agent on behalf of
each Holder and of each other party to such agreement enforceable
against the Unit Agent, each Holder and each other party in accordance
with its terms; (iii) the Unit Agent and each Holder has full power,
authority and legal right (including, without limitation, any legal
right dependent upon there being no conflict with laws, governing
documents or contracts) to make and perform its obligations under the
Pledge Agreement; then such counsel is of the opinion that the
provisions of the Pledge Agreement are effective to create, in favor of
the Collateral Agent for the benefit of the Company and the Call Option
Holder to secure the obligations of the Holders under the Purchase
Contracts and the Call Options, a valid security interest in each
Holders's rights in the certificates identified on Schedule I to the
opinion (the "Pledged Trust Securities"). Upon delivery of the Pledged
Trust Securities to the Collateral Agent in the State of New York, the
security interest of the Collateral Agent for the benefit of the
Company and the Call Option Holder in the Pledged Trust Securities will
be perfected. Such opinion will be subject to customary assumptions and
qualifications; and
(ii) Assuming that the Master Unit Agreement, the Purchase
Contract underlying the Units being delivered at such Time of Delivery,
and the Pledge Agreement have been duly authorized, executed and
delivered by the Company under Michigan law, and subject to the enforce
ability of the choice of law provisions thereof, each is a valid and
legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except as may be limited by the
bankruptcy exceptions; provided, however, that based on a review of
applicable case law, upon the occurrence of a Termination Event,
Section 365 (e)(2) of the Bankruptcy Code (11 U.S.C. xx.xx. 101-1330,
as amended) should not substantively limit the provisions of Sections
__ and __ of the Master Unit Agreement and Section __ of the Pledge
Agreement that require termination of the Purchase Contracts and
release of the Collateral Agent's security interest in the Trust
Preferred Securities or other Pledged Securities; provided, however,
that procedural restrictions respecting relief from the automatic stay
under Section 362 of the Bankruptcy Code may affect the timing of the
exercise of such rights and remedies.
(e) Skadden, Arps, special tax counsel to the Trust and the Company,
shall have furnished to the Representatives such opinion or opinions, dated such
Time of Delivery, in form and substance satisfactory to the Representatives, to
the effect that:
(i) The Trust will be classified as a grantor
trust and not as an association taxable as a corporation; and
(ii) Although the summary set forth in the
prospectus included as part of the Registration Statement
under the caption "Certain Federal Income Tax consequences"
does not purport to discuss all possible United States
federal income tax consequences of the purchase, ownership
and disposition of the Firm Units such summary is a fair
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and accurate summary of the material aspects of the United
States federal income tax treatment, under current law, of
an investment in the Firm Units.
(f) Xxxxxxx Xxxx, special Delaware counsel to the Trust and
the Company, shall have furnished to the Representatives, the Company
and the Trust their written opinion or opinions, dated as of such Time
of Delivery, in form and substance satisfactory to the Representatives,
to the effect that:
(i) This Agreement has been duly authorized,
executed and delivered by the Trust;
(ii) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act and has the trust power and
authority to conduct its business as described in the Trust
Agreement;
(iii) The Trust Agreement is a valid and binding
agreement of each of the Company and the Trust, enforceable
against the Company in accordance with its terms, except as
enforcement thereof may be limited by (a) bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (b) general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law);
(iv) Under the Delaware Business Trust Act and the
Trust Agreement, the Trust has the power and authority to (a)
execute and deliver, and to perform its obligations pursuant
to, this Agreement, and (b) issue and perform its obligations
under the Trust Preferred Securities;
(v) The execution and delivery by the Trust of this
Agreement, and the performance by the Trust of its obligations
thereunder, have been duly authorized by all necessary action
on the part of the Trust;
(vi) The Trust Preferred Securities have been duly
authorized for issuance by the Trust and, when executed and
authenticated by the Property Trustee in accordance with the
terms of the Trust Agreement and delivered and paid for in
accordance with this Agreement, will be fully paid and
non-assessable undivided beneficial interests in the assets of
the Trust and will entitle the holders thereof to the benefits
of this Agreement except to the extent that enforcement of the
Trust Agreement may be limited by (a) bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (b) general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law); and the holders of the Trust
Preferred Securities
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will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware, except that the holders of Trust Preferred
Securities may be obligated, pursuant to the Trust Agreement,
to make payments, including (i) to provide indemnity and/or
security in connection with and pay taxes or governmental
charges arising from transfers of the Trust Preferred
Securities and (ii) to provide security and indemnity in
connection with requests of or directions to the Property
Trustee to exercise its rights and powers under the Trust
Agreement; the issuance of the Trust Preferred Securities is
not subject to preemptive or other similar rights under the
Delaware Business Trust Act or the Trust Agreement;
(vii) None of the execution and delivery by the Trust
of, or the performance by the Trust of its obligations under,
this Agreement, or the issuance and sale of the Trust
Preferred Securities by the Trust in accordance with the terms
of this Agreement or the consummation of the other
transactions contemplated hereby, will contravene any
provision of applicable law or the Trust Agreement or any
agreement or other instrument governed by the laws of the
State of Delaware binding upon the Trust as set forth in the
Trust's certificate, or any judgment, order or decree
applicable to the Trust as set forth in the Trust's
certificate, of any governmental authority;
(viii) No governmental approval is required for the
issuance and sale of the Trust Preferred Securities and the
Trust Common Securities by the Trust pursuant to this
Agreement or the consummation of the other transactions
contemplated hereby, except such as have been obtained and
made;
(g) On the date of the Prospectus and also at such Time of
Delivery, the independent accountants of the Company who have certified
the financial statements of the Company and its consolidated
Subsidiaries included or incorporated by reference in the Registration
Statement shall have furnished to the Representatives a letter, dated
as of such date, (i) confirming that they are independent public
accountants within the meaning of the Act and the applicable published
rules and regulations of the Commission thereunder, (ii) stating that
in their opinion the financial statements examined by them and included
or incorporated by reference in the Registration Statement complied as
to form in all material respects with the applicable accounting
requirements of the Commission, including applicable published rules
and regulations of the Commission, and (iii) covering, as of a date not
more than five business days prior to the date of such letter, such
other matters as the Representatives reasonably request;
(h) That, between the date of the execution of this Agreement
and such Time of Delivery, no material and adverse change shall have
occurred in the business, properties or financial condition of the
Company and its Subsidiaries, taken as a whole, which, in the
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judgment of the Representatives, impairs the marketability of the Units
(other than changes referred to in or contemplated by the Registration
Statement or Prospectus);
(i) That, between the date of the execution of this Agreement
and such Time of Delivery, there has been no downgrading of the
investment ratings of the Company's debt securities or preferred stock
by Standard & Poor's Corporation, Xxxxx'x Investors Service, Inc. or
Duff & Xxxxxx Credit Rating Co., and the Company shall not have been
placed on "credit watch" or "credit review" with negative implications
by any of such statistical rating organizations if any of such
occurrences shall, in the judgment of the Representatives, after
reasonable inquiries on the part of the Representatives, impair the
marketability of the Units;
(j) Each of the Purchase Contracts, the Master Unit Agreement,
the Pledge Agreement, the Trust Agreement, the Guarantee and the
Indenture shall have been executed and delivered, in each case in a
form reasonably satisfactory to the Representatives;
(k) The Units shall have been duly listed, subject to notice
of issuance, on the New York Stock Exchange;
(l) The Company shall have complied with the provisions of
Section 4(b) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(m) The Trust and the Company shall have furnished or caused
to be furnished to the Representatives at such Time of Delivery
certificates of officers of the Trust and the Company to the effect
that to the best of such person's knowledge, information and belief (i)
there has been no material adverse change in the business, properties
or financial condition of the Company and its Subsidiaries, taken as a
whole or the Trust from that set forth in the Registration Statement or
Prospectus (other than changes referred to in or contemplated by the
Registration Statement or Prospectus), (ii) the representations and
warranties of the Trust and the Company herein at and as of the Time of
Delivery are true and correct, (iii) the Trust and the Company have
complied with all agreements and satisfied all conditions on their part
to be performed or satisfied at or prior to the Time of Delivery, and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
7. Condition on the Obligations of the Company and the Trust. The
obligations of the Company and the Trust shall be subject, in the discretion of
the Company and the Trust, to the condition that the Registration Statement
shall be effective under the Act and no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the Act or
proceedings therefor initiated or threatened by the Commission.
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8. Indemnification.
(a) The Trust and the Company, jointly and severally, will, to
the extent permitted by law, indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that neither
the Trust nor the Company shall be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Units, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the Trust
and the Company by the Representatives expressly for use in the Prospectus as
amended or supplemented relating to the Units or with any statements in or
omissions from that part of the Registration Statement that shall constitute the
Statements of Eligibility and Qualification under the Trust Indenture Act of the
Debenture Trustee, the Guarantee Trustee and the Property Trustee, and except
that this indemnity shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) on account of any losses, claims, damages,
liabilities or actions, suits or proceedings arising from the sale of the Units
to any person if a copy of the Prospectus, as the same may then be supplemented
or amended (excluding, however, any document then incorporated or deemed
incorporated therein by reference), was not sent or given by or on behalf of
such Underwriter to such person (i) with or prior to the written confirmation of
sale involved or (ii) as soon as available after such written confirmation,
relating to an event occurring prior to the payment for and delivery to such
person of the Units involved in such sale, and the omission or alleged omission
or untrue statement or alleged untrue statement was corrected in the Prospectus
as supplemented or amended at such time.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Trust and the Company against any losses,
claims, damages or liabilities to which the Trust and the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Units, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each
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case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Trust and the
Company by Underwriter through the Representatives expressly for use therein;
and will reimburse the Trust and the Company for any legal or other expenses
reasonably incurred by the Trust and the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) If a claim is made or an action, suit or proceeding
(including governmental investigations) is commenced or threatened against any
person as to which indemnity may be sought under subsection (a) or (b), such
person (the "Indemnified Person") shall notify the person against whom such
indemnity may be sought (the "Indemnifying Person"), promptly after any
assertion of such claim threatening to institute an action, suit or proceeding
or if such an action, suit or proceeding is commenced against such Indemnified
Person, promptly after such Indemnified Person shall have been served with a
summons or other first legal process, giving information as to the nature and
basis of the claim. Failure to so notify the Indemnifying Person shall not,
however, relieve the Indemnifying Person from any liability which it may have on
account of the indemnity under subsection (a) or (b) if the Indemnifying Person
has not been prejudiced in any material respect by such failure. Subject to the
immediately succeeding sentence, the Indemnifying Person shall assume the
defense of any such litigation or proceeding, including the employment of
counsel and the payment of all expenses, with such counsel being designated,
subject to the immediately succeeding sentence, in writing by the
Representatives in the case of parties indemnified pursuant to subsection (b)
and by the Company in the case of parties indemnified pursuant to subsection
(a). Any Indemnified Person shall have the right to participate in such
litigation or proceeding and to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include (x) the
Indemnifying Person and (y) the Indemnified Person and, in the written opinion
of counsel to such Indemnified Person, representation of both parties by the
same counsel would be inappropriate due to actual or likely conflicts of
interest between them, in either of which cases the reasonable fees and expenses
of counsel (including disbursements) for such Indemnified Person shall be
reimbursed by the Indemnifying Person to the Indemnified Person. If there is a
conflict as described in clause (ii) above, and the Indemnified Persons have
participated in the litigation or proceeding utilizing separate counsel whose
fees and expenses have been reimbursed by the Indemnifying Person and the
Indemnified Persons, or any of them, are found to be solely liable, such
Indemnified Persons shall repay to the Indemnifying Person such fees and
expenses of such separate counsel as the Indemnifying Person shall have
reimbursed. It is understood that the Indemnifying Person shall not, in
connection with any litigation or proceeding or related litigation or
proceedings in the same jurisdiction as to which the Indemnified Persons are
entitled to such separate representation, be liable under this Agreement for the
reasonable fees and out-of-pocket expenses for more than one separate firm
(together with not more than one appropriate local counsel) for all such
Indemnified Persons. Subject to the next paragraph,
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all such fees and expenses shall be reimbursed by payment to the Indemnified
Persons of such reasonable fees and expenses of counsel promptly after payment
thereof by the Indemnified Persons.
In furtherance of the requirement above that fees and expenses of any
separate counsel for the Indemnified Persons shall be reasonable, the
Representatives and the Company agree that the Indemnifying Person's obligations
to pay such fees and expenses shall be conditioned upon the following:
(i) in case separate counsel is proposed to be
retained by the Indemnified Persons pursuant to clause (ii) of
the preceding paragraph, the Indemnified Persons shall in good
faith fully consult with the Indemnifying Person in advance as
to the selection of such counsel;
(ii) reimbursable fees and expenses of such separate
counsel shall be detailed and supported in a manner reasonably
acceptable to the Indemnifying Person (but nothing herein
shall be deemed to require the furnishing to the Indemnifying
Person of any information, including without limitation,
computer print-outs of lawyers' daily time entries, to the
extent that, in the judgment of such counsel, furnishing such
information might reasonably be expected to result in a waiver
of any attorney-client privilege); and
(iii) the Company and the Representatives shall
cooperate in monitoring and controlling the fees and expenses
of separate counsel for Indemnified Persons for which the
Indemnifying Person is liable hereunder, and the Indemnified
Person shall use every reasonable effort to cause such
separate counsel to minimize the duplication of activities as
between themselves and counsel to the Indemnifying Person.
The Indemnifying Person shall not be liable for any settlement of any
litigation or proceeding effected without the written consent of the
Indemnifying Person, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees, subject to the
provisions of this Section 8, to indemnify the Indemnified Person from and
against any loss, damage, liability or expenses by reason of such settlement or
judgment. The Indemnifying Person shall not, without the prior written consent
of the Indemnified Persons, effect any settlement of any pending or threatened
litigation, proceeding or claim in respect of which indemnity has been properly
sought by the Indemnified Persons hereunder, unless such settlement includes an
unconditional release by the claimant of all Indemnified Persons from all
liability with respect to claims which are the subject matter of such
litigation, proceeding or claim.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a
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result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Trust and the Company on the one hand and the Underwriters on
the other from the offering of the Units. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c)
above and such failure resulted in the indemnifying party being prejudiced in a
material way, then each indemnifying party shall contribute to such amount paid
or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Trust
and the Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Trust and the
Company on the one hand and such Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Trust and the Company bear to the total
placement fees received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Trust and the Company on
the one hand or such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Trust, the Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (d)
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
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim, provided that the
provisions of subsection (c) have been complied with (in all material respects)
in respect of any separate counsel for such indemnified party. Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount greater than the excess of (i) the total price at which
the Units placed by it and distributed to the public were offered to the public
over (ii) the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters in this subsection (d) to contribute are several
in proportion to their respective placement fees and not joint.
(e) The obligations of the Trust and the Company under this
Section 8 shall be in addition to any liability which the Trust and the Company
may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Agents under this Section 8 shall be in addition to any
liability which the respective Agents may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company, each
Administrative Trustee under the Trust
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Agreement and to each person, if any, who controls the Trust and the Company
within the meaning of the Act.
9. Survival. The respective indemnities, agreements,
representations, warranties and other statements of the Trust and the Company
and the several Agents, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Trust, the Company, or any officer, director,
Administrative Trustee or controlling person of the Trust or the Company, and
shall survive delivery of and payment for the Units.
10. Termination.
(a) This Agreement may be terminated at any time prior to such
Time of Delivery by the Representatives if, prior to such time, any of the
following events shall have occurred: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this Clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus.
(b) If the Representatives elect to terminate this Agreement,
as provided in this Section 10, the Representatives will promptly notify the
Company and each other Underwriter by telephone or telecopy, confirmed by
letter. If this Agreement shall not be carried out by any Underwriter for any
reason permitted hereunder, or if the sale of the Units to the Underwriters as
herein contemplated shall not be carried out because the Company is not able to
comply with the terms hereof, the Company shall not be under any obligation
under this Agreement and shall not be liable to any Underwriter or to any member
of any selling group for the loss of anticipated profits from the transactions
contemplated by this Agreement and Underwriters shall be under no liability to
the Company nor be under any liability under this Agreement to one another.
(c) Notwithstanding the foregoing, the provisions of Sections
5 and 8 shall survive any termination of this Agreement.
11. Notices. All notices hereunder shall, unless otherwise
expressly provided, be in writing and be delivered at or mailed to the
following addresses or be sent by telecopy as follows: if to the Underwriters
or the Representatives, to the Representatives at the address or number, as
appropriate, designated in Schedule I hereto, and, if to the Company, to CMS
Energy Corporation, Fairlane Plaza South, Suite 1100, 000 Xxxx Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000, attention: Xxxx X. Xxxxxx, Senior Vice President and
Chief Financial Officer.
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12. Parties in Interest. This Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Trust, the Company and, to
the extent provided in Sections 8 and 9 hereof, the officers, directors and
administrative trustees of the Trust, the Company and each person who controls
the Trust, the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Units from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
13. Time of the Essence. Time shall be of the essence of this
Agreement.
14. Definition of Certain Terms. The term "Underwriters," as used
herein, shall be deemed to mean the several persons, firms or corporations,
named in Schedule II hereto (including the Representatives herein mentioned, if
so named), and the term "Representatives," as used herein, shall be deemed to
mean the Representatives or Representatives designated by, or in the manner
authorized by, the Underwriters in Schedule I hereto. All obligations of the
Underwriters hereunder are several and not joint. If there shall be only one
person, firm or corporation named in Schedule I and Schedule II hereto, the term
"Underwriters" and the term "Representatives," as used herein, shall mean such
person, firm or corporation. If the firm or firms listed in Schedule I hereto
are the same as the firm or firms listed in Schedule II hereto, then the terms
"Underwriters" and "Representatives," as used herein, shall each be deemed to
refer to such firm or firms. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the Units from any
of the respective Underwriters.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Counterparts. This Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please sign
and return to us one for the Trust, the Company, each of the Underwriters and
each of the Representatives plus one for each counsel counterparts hereof.
Very truly yours,
CMS ENERGY TRUST II
By:
---------------------------------
Xxxx X. Xxxxxx
Administrative Trustee
CMS ENERGY CORPORATION
By:
---------------------------------
Xxxx X. Xxxxxx
Senior Vice President,
Chief Financial Officer and Treasurer
Accepted as of the date hereof:
XXXXXXX XXXXX BARNEY, INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
BANC OF AMERICA SECURITIES LLC
As Representatives of the several
Underwriters named in Schedule II hereto
By: XXXXXXX XXXXX BARNEY INC.
By:
-------------------------------------------
Name:
Title: Authorized Signatory
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SCHEDULE I
REPRESENTATIVES:
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SCHEDULE II
NUMBER OF OPTIONAL UNITS
NUMBER OF FIRM UNITS TO BE PURCHASED IF
UNDERWRITERS TO BE PURCHASED MAXIMUM OPTION EXERCISED
------------ --------------- ------------------------
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxxxx Xxxxxx & Xxxxxxxx
Securities Corporation
Banc of America LLC
======================== =========================
Total.....................
