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EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
2,000,000 Trust Convertible Preferred Securities
AMCV CAPITAL TRUST I
7.00% Trust Convertible Preferred Securities
(Liquidation Amount $50 per Trust Preferred Security)
Guaranteed by, and Convertible into
Common Stock of,
AMERICAN CLASSIC VOYAGES CO.
UNDERWRITING AGREEMENT
February 15, 2000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
AMCV Capital Trust I, a statutory business trust formed under the laws
of the State of Delaware (the "TRUST"), and American Classic Voyages Co., a
Delaware corporation (the "COMPANY"), propose that the Trust issue and sell to
the several underwriters named in Schedule A hereto (the "UNDERWRITERS")
2,000,000 of its 7.00% Trust Convertible Preferred Securities (liquidation
amount $50 per Trust Preferred Security) (the "FIRM SECURITIES"), representing
preferred 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 and redemption, to the extent set forth in a
guarantee agreement (the "PREFERRED GUARANTEE") between the Company and The Bank
of New York, as guarantee trustee (the "GUARANTEE TRUSTEE"), and convertible
into common stock, par value $.01 per share ("COMMON STOCK"), of the Company.
The Trust and the Company also propose that the Trust issue and sell to the
several Underwriters not more than an additional 300,000 of its 7.00% Trust
Convertible Preferred Securities (the "ADDITIONAL SECURITIES") if requested by
the Underwriters as provided in Section 2 hereof. The Firm Securities and the
Additional Securities are hereinafter referred to collectively as the
"SECURITIES". The Trust will purchase, with the proceeds of the sale of the
Securities and its 7.00% Trust Convertible Common Securities (liquidation amount
$50 per Trust
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Common Security) (the "COMMON SECURITIES"), $103,092,800 aggregate principal
amount (or $118,556,750 aggregate principal amount assuming full exercise by the
Underwriters of the overallotment option described herein) of 7.00% Subordinated
Convertible Debentures due 2015 (the "DEBENTURES") of the Company, to be issued
pursuant to the Junior Convertible Subordinated Indenture to be dated as of
February 22, 2000 (the "INDENTURE") between the Company and The Bank of New
York, as trustee (the "INDENTURE TRUSTEE" ).
Immediately after the Closing Date (as defined herein), the Company
will be the holder of all of the Common Securities. The Common Securities will
represent subordinated 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 and redemption, to the extent
set forth in a guarantee agreement (the "COMMON GUARANTEE," and together with
the Preferred Guarantee, the "GUARANTEES") executed by the Company. The Trust
will be subject to the provisions of an Amended and Restated Declaration of
Trust (the "DECLARATION") to be dated as of February 22, 2000 among the Company,
as sponsor of the Trust, The Bank of New York, as property trustee (the
"PROPERTY TRUSTEE"), The Bank of New York (Delaware), as Delaware trustee (the
"DELAWARE TRUSTEE"), and three individual trustees who are officers of the
Company (the "ADMINISTRATIVE TRUSTEES"). The Property Trustee, the Delaware
Trustee and the Administrative Trustees are collectively referred to herein as
the "TRUSTEES."
Concurrently with the offering of the Securities, the Company is
offering 2,000,000 shares of Common Stock (excluding 300,000 shares available to
cover the over-allotment) pursuant to a separate underwriting agreement. This
offering and the common stock offering are not dependent on each other.
SECTION 1. Registration Statement and Prospectus. The Trust and the
Company have prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (No. 333-94771) covering the
registration under the Securities Act of 1933, as amended and the rules and
regulations of the Commission thereunder (the "ACT") up to $250,000,000 of (i)
Common Stock, (ii) Preferred Stock of the Company, (iii) subordinated debt
securities of the Company, (iv) preferred securities of the Trust, and (v)
guarantees and back-up undertakings of the Company in connection with the
preferred securities of the Trust, of which the Securities are a part. Such
registration statement, as amended, has been declared effective by the
Commission. Such registration statement, as amended through the date of this
Agreement, including all documents incorporated or deemed to be incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "EXCHANGE ACT"), or otherwise,
are herein collectively referred to as the "REGISTRATION STATEMENT". The
prospectus in the form first used to confirm sales of Securities (including the
information contained in any prospectus supplement relating to the Securities
and any documents or information incorporated or deemed to be incorporated by
reference into such prospectus) are hereinafter collectively referred to as the
"PROSPECTUS". All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," "described" or
"stated" in the Registration Statement or the Prospectus (and all references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be.
The terms "supplement,"
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"supplemented," "amendment," "amend" and "amended" as used in this Agreement
with respect to the Registration Statement or the Prospectus shall include all
documents filed by the Trust or the Company with the Commission pursuant to the
Exchange Act that are incorporated or deemed to be incorporated therein by
reference.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Trust and the Company
agree that the Trust shall issue and sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Trust, at a price per Trust Preferred Security of $50 (the "PURCHASE PRICE"),
the number of Firm Securities set forth opposite the name of such Underwriter in
Schedule A hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Trust and the Company
agree that the Trust shall issue and sell the Additional Securities and the
Underwriters shall have the right to purchase, severally and not jointly, up to
300,000 Additional Securities from the Trust at the Purchase Price. Additional
Securities may be purchased solely for the purpose of covering over- allotments
made in connection with the offering of the Firm Securities. The Underwriters
may exercise their right to purchase Additional Securities in whole or in part
from time to time by giving written notice thereof to the Trust and the Company
within 30 days after the date of this Agreement. You shall give any such notice
and such notice shall specify the aggregate number of Additional Securities to
be purchased pursuant to such exercise and the date for payment and delivery
thereof, which date shall be a business day (i) no earlier than two business
days after such notice has been given (and, in any event, no earlier than the
Closing Date) and (ii) no later than ten business days after such notice has
been given. If any Additional Securities are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase from the Trust the number of
Additional Securities (subject to such adjustments to eliminate fractional
shares as you may determine) which bears the same proportion to the total number
of Additional Securities to be purchased from the Trust as the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule I bears
to the total number of Firm Securities.
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Securities will be
used by the Trust to purchase the Debentures of the Company, the Company on the
Closing Date or any Option Closing Date (as hereinafter defined) shall pay to
DLJ, for the respective accounts of the several Underwriters, an amount equal to
$1.625 per Security for the Securities delivered by the Trust pursuant hereto on
the Closing Date or any Option Closing Date.
The Company hereby agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
(ii) enter into any swap or other arrangement that transfers all or a portion of
the economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common
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Stock, or such other securities, in cash or otherwise), except to the
Underwriters pursuant to this Agreement, for a period of 90 days after the date
of the Prospectus without the prior written consent of Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation. Notwithstanding the foregoing, during such
90-day period (i) the Company may issue stock or grant stock options pursuant to
the Company's existing stock option and stock award plans; and (ii) the Company
may issue shares of Common Stock upon the exercise of an option or warrant or
the conversion of a security outstanding on the date hereof. The Company also
agrees not to file any registration statement with respect to any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock for a period of 90 days after the date of the Prospectus
without the prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation. The Company shall, prior to or concurrently with the execution of
this Agreement, deliver an agreement executed by (i) each of the directors and
executive officers of the Company and (ii) each stockholder listed on Schedule B
hereto to the effect that such person will not, during the period commencing on
the date such person signs such agreement and ending 90 days after the date of
the Prospectus, without the prior written consent of Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation, (A) engage in any of the transactions described
in the first sentence of this paragraph or (B) make any demand for, or exercise
any right with respect to, the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock.
SECTION 3. Terms of the Public Offering. The Company and the Trust are
advised by you that the Underwriters propose (i) to make a public offering of
their respective portions of the Securities as soon after the execution and
delivery of this Agreement as in your judgment is advisable and (ii) initially
to offer the Securities upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Securities shall be represented by
one or more definitive global Securities in book-entry form which will be
deposited by or on behalf of the Trust with The Depository Trust Company ("DTC")
or its designated custodian. The Trust shall deliver the Securities, with any
transfer taxes thereon duly paid by the Trust, to Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation through the facilities of DTC for the respective accounts
of the several Underwriters, against payment to the Trust of the Purchase Price
therefor by wire transfer of Federal or other funds immediately available in New
York City. The global certificates representing the Securities shall be made
available for inspection not later than 9:30 A.M., New York City time, on the
business day prior to the Closing Date or the applicable Option Closing Date, as
the case may be, at the office of DTC or its designated custodian (the
"DESIGNATED OFFICE"). The time and date of delivery and payment for the Firm
Securities shall be 9:00 A.M., New York City time, on February 22, 2000 or such
other time on the same or such other date as Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation and the Company shall agree in writing. The time and date
of delivery for the Firm Securities are hereinafter referred to as the "CLOSING
DATE". The time and date of delivery and payment for any Additional Securities
to be purchased by the Underwriters shall be 9:00 A.M., New York City time, on
the date specified in the applicable exercise notice given by you pursuant to
Section 2 or such other time on the same or such other date as Xxxxxxxxx, Lufkin
& Xxxxxxxx Securities Corporation and the Company shall agree in writing. The
time and date of delivery for any Additional Securities are hereinafter referred
to as an "OPTION CLOSING DATE".
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The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 8 of this Agreement,
shall be delivered at the offices of Sidley & Austin, Bank One Plaza, 00 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "CLOSING LOCATION"), and the
Securities will be delivered at the Designated Office, all on the Closing Date
or such Option Closing Date, as the case may be.
SECTION 5. Agreements of the Trust and the Company. The Trust and the
Company jointly and severally agree with each Underwriter as follows:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purposes, (iii) when any amendment to
the Registration Statement becomes effective, (iv) of the happening of any event
during the period referred to in Section 5(d) below which makes any statement of
a material fact made in the Registration Statement or the Prospectus untrue or
which requires any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at any
time the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you four signed copies of the Registration Statement
as first filed with the Commission and of each amendment to it, including all
exhibits and documents incorporated therein by reference, and to furnish to you
and each Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without exhibits
but including documents incorporated therein by reference, as you may reasonably
request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Securities by you, and to use its best efforts to cause any
such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus
and any
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documents incorporated therein by reference) as such Underwriter or dealer may
reasonably request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters, it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the Prospectus so that
the statements in the Prospectus, as so amended or supplemented, will not in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with applicable law, and to furnish to each
Underwriter and to any dealer as many copies thereof as such Underwriter or
dealer may reasonably request.
(f) Prior to any public offering of the Securities, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Securities for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such jurisdictions
as you may request, to continue such registration or qualification in effect so
long as required for distribution of the Securities and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation, other
than a consent to service of process as to matters and transactions relating to
the Prospectus, the Registration Statement, any preliminary prospectus or the
offering or sale of the Securities, in any jurisdiction in which it is not now
so subject.
(g) To mail and make generally available to its stockholders as soon as
practicable an earnings statement covering the twelve-month period ending March
31, 2001 that shall satisfy the provisions of Section 11(a) of the Act, and to
advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement,
to furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may reasonably
request.
(i) To use the net proceeds received by it from the sale of the
Securities in the manner specified in the Prospectus (including the prospectus
supplement relating to the Securities) under "Use of Proceeds".
(j) To use reasonable best efforts to list, subject to notice of
issuance, the Securities and the Common Stock issuable upon conversion of the
Securities or the Debentures on the Nasdaq National Market and to maintain such
listing on the Nasdaq National Market so long as the Securities are outstanding.
At such time as the Debentures are distributed to holders of the
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Securities pursuant to the Declaration, the Company will use reasonable best
efforts to list the Debentures on the Nasdaq National Market and to maintain
such listing on the Nasdaq National Market so long as the Debentures are
outstanding.
(k) To, during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act, file all documents required to be
filed with the Commission pursuant to the Exchange Act within the time periods
required by the Exchange Act.
(l) The Company shall issue the Preferred Guarantee concurrently with
the issue and sale of the Securities as contemplated herein.
(m) To use their best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company or the
Trust prior to the Closing Date or any Option Closing Date, as the case may be,
and to satisfy all conditions precedent to the delivery of the Securities.
(n) So long as any Securities are outstanding, the Trust will continue
its existence in good standing as a business trust under the Delaware Business
Trust Act with power and authority to own property and conduct its business as
described in the Prospectus and the Trust will remain duly qualified to transact
business as a foreign corporation in good standing in each jurisdiction in which
such qualification is necessary, except to the extent that the failure to so
qualify would not, singly or in the aggregate, materially adversely affect the
operations of the Trust.
(o) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, the Company agrees to pay or cause
to be paid all expenses incident to the performance of its obligations under
this Agreement, including: (i) the fees, disbursements and expenses of counsel
to the Company and the Trust and the Company's and the Trust's accountants in
connection with the registration and delivery of the Securities under the Act
and all other fees and expenses in connection with the preparation, printing,
filing and distribution of the Registration Statement (including financial
statements and exhibits), any preliminary prospectus, the Prospectus and all
amendments and supplements to any of the foregoing, including the mailing and
delivering of copies thereof to the Underwriters and dealers in the quantities
specified herein, (ii) all costs and expenses related to the transfer and
delivery of the Securities to the Underwriters, including any transfer or other
taxes payable thereon, (iii) all costs of printing or producing this Agreement
and any other agreements or documents in connection with the offering, purchase,
sale or delivery of the Securities, excluding any internal sales memoranda or
other documents prepared by any of you, (iv) all expenses in connection with the
registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states and all costs of printing or
producing any Preliminary and Supplemental Blue Sky Memoranda in connection
therewith (including the filing fees and reasonable fees and disbursements of
counsel for the Underwriters in connection with such registration or
qualification and memoranda relating thereto (not in excess of $5,000)), (v) the
filing fees and reasonable disbursements of counsel for the Underwriters in
connection with the review and clearance of the offering of the Securities by
the National Association of Securities Dealers, Inc., (vi) all fees and expenses
in connection with the preparation and filing of the registration statement on
Form 8-A relating to the Securities and all costs and expenses incident to the
listing of the Securities on the Nasdaq National Market, (vii) the cost of
printing
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certificates representing the Securities, (viii) the costs and charges of any
transfer agent, registrar and/or depositary (including DTC), (ix) the fees and
expenses of the Trustees, the Guarantee Trustee and the Indenture Trustee and
their counsel in connection with the Declaration, the Guarantee, the Indenture
and the Securities and (x) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section.
SECTION 6. Representations and Warranties of the Company and the Trust.
The Company and the Trust jointly and severally represent and warrant
to each Underwriter that:
(a) Each of the Company and the Trust meets the requirements for use of
Form S-3 under the Act. The Registration Statement has become effective under
the Act and no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
At the respective times the Registration Statement became effective and
on the Closing Date (and, if any Additional Securities are purchased, on the
Option Closing Date), the Registration Statement, and any amendments and
supplements thereto complied and will comply in all material respects with the
requirements of the Act and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Prospectus
complies and, as amended or supplemented will comply, in all material respects
with the Act. The Prospectus does not contain and, as amended or supplemented,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Each preliminary
prospectus filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the Act and did not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The
representations and warranties in this paragraph do not apply to statements or
omissions in the Registration Statement or Prospectus or any preliminary
prospectus based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use therein.
(b) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and, when read together with the other
information in the Prospectus, at the time the Registration Statement became
effective, at the time the Prospectus was issued and on the Closing Date (and if
any Additional Securities are purchased, on the Option Closing Date), did not
and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
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(c) KPMG LLP are independent public accountants with respect to the
Company and its subsidiaries as required by the Act.
(d) The financial statements included in the Registration Statement and
the Prospectus (and any amendment or supplement thereto), together with the
related schedules and notes, present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries at the dates
indicated and the results of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the Registration
Statement present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the financial
statements included in the Registration Statement. The other financial and
statistical information and data set forth or incorporated by reference in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) are, in all material respects, accurately presented and prepared on a
basis consistent with the financial statements included in the Registration
Statement and the books and records of the Company.
(e) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE CHANGE"), (ii) there has not
been any material adverse change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent.
(f) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Change.
(g) Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X) (each a "SUBSIDIARY" and, collectively,
the "SUBSIDIARIES") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, except
where the failure so to qualify or to be in good standing would not result in a
Material Adverse Change; except as otherwise disclosed in the Registration
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Statement or the Prospectus, all of the issued and outstanding capital stock of
each such Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of capital stock of
any Subsidiary was issued in violation of the preemptive or similar rights of
any securityholder of such Subsidiary. The only subsidiaries of the Company are
(a) the subsidiaries listed on Schedule C hereto and (b) certain other
subsidiaries which, considered in the aggregate as a single Subsidiary, do not
constitute a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X.
(h) The shares of issued and outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(i) This Agreement has been duly authorized, executed and delivered by
the Trust and the Company.
(j) The shares of Common Stock issuable upon the conversion of the
Securities or the Debentures have been duly authorized and reserved for issuance
and when issued and delivered in accordance with the Declaration or the
Indenture, as applicable, will be validly issued, fully paid and non-assessable.
The capital stock of the Company, including the Common Stock, conforms in all
material respects to all statements relating thereto contained in the Prospectus
and such description conforms in all material respects to the rights set forth
in the instruments defining the same. The issuance of the Common Stock upon the
conversion of the Securities or the Debentures is not subject to the preemptive
or other similar rights of any securityholder of the Company.
(k) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers, manufacturers,
customers or contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Change.
(l) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any subsidiary, which is required to be disclosed in
the Registration Statement or the Prospectus (other than as disclosed therein),
or which might reasonably be expected to result in a Material Adverse Change, or
which might reasonably be expected to materially and adversely affect the
properties or assets of the Company and its subsidiaries, taken as a whole, or
the consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or any subsidiary
is a party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement or the Prospectus,
including ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Change.
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(m) There are no contracts or documents which are required to be
described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have
not been so described and filed as required in all material respects.
(n) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "INTELLECTUAL PROPERTY") necessary to carry on the business now
operated by them, and neither the Company nor any of its subsidiaries has
received any written notice of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Change.
(o) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale
of the Securities hereunder or the consummation of the transactions contemplated
by this Agreement, except (i) such as have been already obtained or as may be
required under the Act or state securities laws or (ii) where the failure to
make such filing, or obtain such authorization, approval, consent, license,
order, representation, qualification or decree would not, singly or in the
aggregate, result in a Material Adverse Change.
(p) The Company and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (each, an "AUTHORIZATION") issued
by the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the Company and
its subsidiaries are in compliance with the terms and conditions of all such
Authorizations, except where the failure so to comply would not, singly or in
the aggregate, result in a Material Adverse Change; all of the Authorizations
are valid and in full force and effect, except where the invalidity of such
Authorizations or the failure of such Authorizations to be in full force and
effect would not result in a Material Adverse Change; and neither the Company
nor any of its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Authorizations which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Change.
(q) The Company and its subsidiaries have good and marketable title to
all real property owned by the Company and its subsidiaries and good title to
all other material properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the Prospectus or
(b) do not, singly or in the aggregate, materially and adversely affect the
value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company or any of its subsidiaries;
and all of the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which
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the Company or any of its subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor any
subsidiary has received any written notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or adversely
affecting the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or sublease.
(r) Except as described in the Registration Statement and except as
would not, singly or in the aggregate, result in a Material Adverse Change, to
the knowledge of the Company after due inquiry, (A) neither the Company nor any
of its subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "HAZARDOUS MATERIALS") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "ENVIRONMENTAL LAWS"), (B) the Company and
its subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D) there
are no events or circumstances that might reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(s) In connection with the operation by the Company or any of its
subsidiaries of United States flag vessels, the Company and such subsidiaries
are citizens of the United States within the meaning of Section 2 of the
Shipping Act, 1916, as amended.
(t) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(u) 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
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is not a party to or bound by any agreement or instrument other than this
Agreement, the Declaration and the agreements and instruments contemplated by
the Declaration and described in the Prospectus; based on expected operations
and current law, the Trust will be classified for United States federal income
tax purposes as a grantor trust and will not be taxable as a corporation; and
the Trust is not a party to or subject to any action, suit or proceeding of any
nature.
(v) The Securities have been duly and validly authorized by the Trust,
and, when issued and delivered to the Underwriters against payment therefor as
provided herein, will be duly and validly issued and fully paid and
non-assessable undivided preferred 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 Securities is not subject to
preemptive or other similar rights; the Securities will have the rights set
forth in the Declaration, and the terms of the Securities are valid and binding
on the Trust; the holders of the Securities will be entitled to the same
limitation of personal liability extended to the stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
(w) The 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
subordinated 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 Common Securities is not subject to preemptive or other
similar rights; and on the Closing Date or each Option Closing Date, as the case
may be, all of the issued and outstanding Common Securities of the Trust will be
directly owned by the Company free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature (each, a "LIEN"), other than
rights of the Company arising under the Declaration to redeem Common Securities;
and the Common Securities and the Securities are the only interests authorized
to be issued by the Trust.
(x) Each of the Guarantees, the Declaration and the Indenture
(collectively, the "GUARANTOR AGREEMENTS") has been duly authorized and when
validly executed and delivered by the Company and, in the case of the
Guarantees, by the Guarantee Trustee and, in the case of the Declaration, by the
Administrative Trustees and, in the case of the Indenture, by the Indenture
Trustee, will constitute valid and legally binding obligations of the Company,
enforceable against the Company or the Trust in accordance with their respective
terms, except as (A) the enforcement thereof may be limited by bankruptcy,
insolvency, or similar laws affecting creditors' rights generally and (B) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability; and each of the Preferred
Guarantee, the Declaration and the Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended, and each of the Guarantor Agreements
will conform in all material respects to all statements related thereto in the
Prospectus.
(y) The Debentures have been duly authorized and, on the Closing Date
or the Option Closing Date, as the case may be, will have been validly executed
and delivered by the Company. When the Debentures have been executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Trust in accordance with the terms of the Declaration,
the Debentures will be entitled to the benefits of the Indenture and will
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be valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (B) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(z) The Debentures conform in all material respects as to legal matters
to the description thereof contained in the Prospectus.
(aa) Neither the Company nor any of its subsidiaries (including the
Trust) is (i) in violation of its respective charter, declaration of trust or
by-laws or (ii) in default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
their respective property is bound, except in the case of clause (ii) for such
defaults which would not result in a Material Adverse Change.
(ab) The execution, delivery and performance of this Agreement by the
Trust, the compliance by the Trust with all of the provisions of this Agreement,
and the consummation of the transactions contemplated by this Agreement and by
the Declaration, including the issuance and sale of the Securities and the
Common Securities by the Trust, the purchase of the Debentures by the Trust, and
the distribution of the Debentures by the Trust in the circumstances
contemplated by the Declaration, will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the charter,
by-laws or declaration of trust of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which the Company or any
subsidiary or their respective property is bound (iii) violate or conflict with
any applicable law or any rule, regulation, judgment, order or decree of any
court or any governmental body or agency having jurisdiction over the Company,
any of its subsidiaries or their respective property, (iv) result in the
imposition or creation of (or the obligation to create or impose) a Lien under
any agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or their respective
property is bound or (v) result in the suspension, termination or revocation of
any Authorization of the Company or any of its subsidiaries or any other
impairment of the rights of the holder of any such Authorization.
(ac) The execution, delivery and performance of this Agreement, the
Debentures and the Guarantor Agreements by the Company, the compliance by the
Company with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby including the issuance and sale of
the Securities and the Common Securities by the Trust, the sale of the
Debentures by the Company to the Trust, the distribution of the Debentures by
the Trust in the circumstances contemplated by the Declaration, the issuance by
the Company of the Guarantee, and the issuance by the Company of the Common
Stock upon the conversion of the Securities or the Debentures will not (i)
require any consent, approval, authorization or other
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order of, or qualification with, any court or governmental body or agency
(except such as have been made or received and except such as may be required
under the securities or Blue Sky laws of the various states), (ii) constitute a
breach of any of the terms or provisions of, or a default under, the charter or
by-laws of the Company or any of its subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, except for such breaches or
defaults of such indentures, loan agreements, mortgages, leases or other
agreements which would not result in a Material Adverse Change, (iii) violate
any applicable law or any rule, regulation, judgment, order or decree of any
court or any governmental body or agency having jurisdiction over the Company,
any of its subsidiaries or their respective property, (iv) result in the
imposition or creation of (or the obligation to create or impose) a Lien
(excluding any right of redemption of the Company arising under the Declaration,
the Indenture or the Debentures) under any agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound, except as would not
result in a Material Adverse Change or (v) result in the suspension, termination
or revocation of any Authorization of the Company or any of its subsidiaries or
any other impairment of the rights of the holder of any such Authorization,
except as would not result in a Material Adverse Change.
(ad) Neither the Company nor any of its subsidiaries is, and after
giving effect to the offering and sale of the Securities, the Debentures, the
Guarantees and the Common Stock issuable upon conversion of the Securities
and/or Debentures, and the application of the proceeds thereof as described in
the Prospectus, will not be, an "investment company," or an entity "controlled"
by an investment company, as such terms are defined in the Investment Company
Act of 1940, as amended (the "INVESTMENT COMPANY ACT"). The Trust is not
required to be registered under the Investment Company Act.
(ae) The Company's obligations under the Guarantees are subordinate and
junior in right of payment to all liabilities of the Company.
(af) The Debentures are subordinated and junior in right of payment to
all Senior Debt (as defined in the Indenture) of the Company.
(ag) Each of the Administrative Trustees is an employee of the Company
and has been duly authorized by the Company to execute and deliver the
Declaration; the Declaration has been, or on the Closing Date will be, duly
executed and delivered by the Administrative Trustees and is or will be, as
applicable, a valid and binding obligation of each Administrative Trustee,
enforceable against such Administrative Trustee in accordance with its terms
except as (A) the enforcement thereof may be limited by bankruptcy, insolvency,
or similar laws affecting creditors' rights generally and (B) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(ah) The Company and the Trust have not taken and will not take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price of
the Securities.
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(ai) There are no contracts, agreements or understandings between the
Trust or the Company and any person granting such person the right to require
the Trust or the Company to file a registration statement under the Act with
respect to any Securities or securities similar to the Securities of the Trust
or the Company owned or to be owned by such person or to require the Trust or
the Company to include such securities in the securities registered pursuant to
the Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Trust or the Company under the Act.
(aj) Each certificate signed by any officer of the Company or any of
its subsidiaries or by any Administrative Trustee delivered to the Underwriters
or to counsel for the Underwriters shall be deemed a representation and warranty
by the Company or the Trust, as the case may be, to the Underwriter as to the
matters covered thereby.
SECTION 7. Indemnification. -
(a) The Trust and the Company jointly and severally agree to indemnify
and hold harmless each Underwriter, its directors, its officers and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any legal or
other expenses reasonably incurred in connection with investigating or defending
any matter, including any action, that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), the Prospectus (or any amendment or
supplement thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or judgments are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter or its market making or stabilization
activities furnished in writing to the Company by such Underwriter through you
expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter who failed to deliver a Prospectus, as then amended
or supplemented, (so long as the Prospectus and any amendments or supplements
thereto was provided by the Company to the several Underwriters in the requisite
quantity and on a timely basis to permit proper delivery on or prior to the
Closing Date) to the person asserting any losses, claims, damages, liabilities
or judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or preliminary prospectus
supplement, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if such material misstatement or omission or alleged
material misstatement or omission was cured in such Prospectus and such
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Trust, the Trustees, the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Trust or the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as
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the foregoing indemnity from the Company to such Underwriter but only with
reference to information relating to such Underwriter or its market making or
stabilization activities furnished in writing to the Company by such Underwriter
through you expressly for use in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus or preliminary prospectus supplement.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 7(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, in the case
of parties indemnified pursuant to Section 7(a), and by the Company, in the case
of parties indemnified pursuant to Section 7(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than twenty business days
after the indemnifying party shall have received a request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party) and, prior
to the date of such settlement, the indemnifying party shall have failed to
comply with such reimbursement request. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of
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such action and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of the indemnified
party.
(d) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) 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 hand
from the offering of the Securities or (ii) if the allocation provided by clause
7(d)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
7(d)(i) above but also the relative fault of the Trust and the Company on the
one hand and the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Trust and the Company on
the one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions, but before deducting expenses) received
by the Trust and the Company, and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the public
of the Securities, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Trust and the Company on the one hand
and the Underwriters on the other hand 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 or the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(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 in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of 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 Underwriters' obligations to contribute
pursuant to this Section 7(d) are several in proportion to the respective number
of Securities purchased by each of the Underwriters hereunder and not joint.
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The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
SECTION 8. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Trust contained in Section
6 hereof or in certificates of any officer of the Company or any subsidiary of
the Company or any Trustee of the Trust delivered pursuant to the provisions
hereof, to the performance by each of the Company and the Trust of its covenants
and other obligations hereunder, and to the following further conditions:
(a) The Registration Statement has become effective and on the Closing
Date 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, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. The Prospectus shall have been
filed with the Commission in accordance with Rule 424(b).
(b) On the Closing Date, the Underwriters shall have received the
favorable opinions, dated as of the Closing Date, of (i) Seyfarth, Shaw,
Xxxxxxxxxxx & Xxxxxxxxx, counsel for the Company and the Trust, in form and
substance satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit A-1 hereto and to such further effect as counsel to
the Underwriters may reasonably request, (ii) Jordan X. Xxxxx, Executive Vice
President, General Counsel and Secretary of the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect set forth
in Exhibit A-2 and to such further effect as counsel to the Underwriters may
reasonably request, (iii) Preston, Gates, Xxxxx & Rouvelas Xxxxx, counsel for
the Company, in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit A-3 hereto and to such further
effect as counsel to the Underwriters may reasonably request, (iv) Xxxxxxxx,
Xxxxxx & Finger, P.A., counsel for the Company and the Trust, in form and
substance satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit A-4 hereto and to such further effect as counsel to
the Underwriters may reasonably request and (v) Xxxxx, Xxxxxx and Xxxxxx, LLP,
counsel for the Indenture Trustee, the Property Trustee, the Delaware Trustee
and the Guarantee Trustee, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such Letter for each
of the other Underwriters to the effect set forth in Exhibit A-5 hereto and to
such further effect as counsel to the Underwriters may reasonably request. Such
counsel may state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of officers of
the Company and its subsidiaries and certificates of public officials.
(c) On the Closing Date, the Underwriters shall have received the
favorable opinion, dated as of the Closing Date, of Sidley & Austin, counsel for
the Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters to the effect set forth in Exhibit C. In giving
such opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law of
the
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United States and the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to the Representatives. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(d) On the Closing Date, the Underwriters shall have received a
certificate of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of the Closing
Date, to the effect that (i) the representations and warranties in Section 6
hereof are true and correct with the same force and effect as though expressly
made on and as of the Closing Date, (ii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date, and (iii) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or to the Company's
knowledge are contemplated by the Commission.
(e) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date hereof), (i) there
shall not have occurred any change or any development involving a prospective
change in the condition, financial or otherwise, or the earnings, business,
management or operations of the Company and its subsidiaries, taken as a whole,
(ii) there shall not have been any change or any development involving a
prospective change in the capital stock or in the long-term debt of the Company
or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 8(e)(i),
8(e)(ii) or 8(e)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus.
(f) At the time of the execution of this Agreement, the Underwriters
shall have received from KPMG LLP a letter dated such date, in form and
substance satisfactory to the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Registration Statement and the Prospectus .
(g) On the Closing Date, the Underwriters shall have received from KPMG
LLP a letter, dated as of the Closing Date, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (f) of this
Section, except that (i) the specified date referred to therein shall be a date
not more than three business days prior to the Closing Date, (ii) such letter
shall state that KPMG LLP has conducted a SFAS No. 71 review of the Company's
unaudited condensed consolidated balance sheet as of December 31, 1999, the
unaudited condensed statements of operations for the three and 12 months ended
December 31, 1999 and the unaudited condensed consolidated statement of cash
flows for the 12 months ended December 31, 1999 and shall contain customary
"negative assurance" provisions as to such financial statements, and (iii) such
letter shall contain a customary "negative assurance" provision as to the period
from January 1, 2000 through a date not more than three business days prior to
the Closing Date.
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(h) On the Closing Date, the Securities and the shares of Common Stock
issuable upon conversion of the Securities shall have been approved for
inclusion in the Nasdaq National Market, subject only to official notice of
issuance.
(i) The NASD has confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(j) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(k) The Underwriters shall have received a certificate of the
Administrative Trustees of the Trust to the effect that (i) the representations
and warranties of the Trust in Section 6 hereof are true and correct with the
same force and effect as though expressly made on and as of the Closing Date,
(ii) the Trust has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied on or prior to the Closing Date, and (iii)
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or to the Trust's knowledge as contemplated by the Commission.
(l) The Preferred Guarantee, the Declaration and the Indenture shall
have been executed and delivered, in each case in a form reasonably satisfactory
to counsel to the Underwriters.
(m) In the event that the Underwriters exercise their option provided
in Section 2 hereof to purchase all or any portion of the Additional Securities,
the representations and warranties of the Company and the Trust contained herein
and the statements in any certificates furnished by the Company or any
subsidiary of the Company or the Trust hereunder shall be true and correct as of
each Option Closing Date, the condition set forth in Section 8(e) shall be
satisfied and, on the relevant Option Closing Date, the Underwriters shall have
received:
(i) A certificate, dated such Option Closing Date, of the President
or a Vice President of the Company and of the chief financial or chief
accounting officer of the Company confirming that the certificate
delivered on the Closing Date pursuant to Section 8(d) hereof remains
true and correct as of such Option Closing Date.
(ii) The favorable opinion of Seyfarth, Shaw, Xxxxxxxxxxx & Xxxxxxxxx,
counsel for the Company, Jordan X. Xxxxx, Executive Vice President,
General Counsel and Secretary of the Company, Preston, Gates, Xxxxx &
Rouvelas Xxxxx, counsel for the Company, Xxxxxxxx, Xxxxxx & Finger,
P.A., counsel for the Company, and Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel
for the Indenture Trustee, Property Trustee, Delaware Trustee and
Guarantee Trustee, each in form and substance satisfactory to counsel
for the Underwriters, dated such Option Closing Date, relating to the
Additional Securities to be purchased on such Option Closing Date and
otherwise to the same effect as the opinion required by Section 8(b)
hereof.
(iii) The favorable opinion of Sidley & Austin, counsel for the
Underwriters, dated such Option Closing Date, relating to the
Additional Securities to be purchased on such Option Closing Date and
otherwise to the same effect as the opinion required by Section 8(c)
hereof.
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22
(iv) A letter from KPMG LLP, in form and substance satisfactory to the
Underwriters and dated such Option Closing Date, substantially in the
same form and substance as the letter furnished to the Underwriters
pursuant to Section 8(g) hereof, except that the "specified date" in
the letter furnished pursuant to this paragraph shall be a date not
more than three business days prior to such Option Closing Date.
(v) A certificate, dated such Option Closing Date, of the
Administrative Trustees of the Trust confirming that the certificate
delivered on the Closing Date pursuant to Section 8(k) hereof remains
true and correct as of such Option Closing Date.
(n) On the Closing Date and on each Option Closing Date, counsel for
the Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
SECTION 9. Effectiveness of Agreement; Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus, (ii)
the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on the Nasdaq National
Market, (iv) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects,
or will materially and adversely affect, the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole, (v) the declaration of a banking moratorium by either federal or New
York State authorities or (vi) the taking of any action by any federal, state or
local government or agency in respect of its monetary or fiscal affairs which in
your opinion has a material adverse effect on the financial markets in the
United States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Securities or Additional Securities, as the case may be, which it has or
they have agreed to purchase hereunder on such date and the aggregate number of
Firm Securities or Additional Securities, as the case may be, which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the total number of Firm Securities or Additional
Securities, as the case may be, to be purchased on such date by all
Underwriters, each non-defaulting Underwriter shall be
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obligated severally, in the proportion which the number of Firm Securities set
forth opposite its name in Schedule I bears to the total number of Firm
Securities which all the non-defaulting Underwriters have agreed to purchase, or
in such other proportion as you may specify, to purchase the Firm Securities or
Additional Securities, as the case may be, which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Firm Securities or Additional Securities,
as the case may be, which any Underwriter has agreed to purchase pursuant to
Section 2 hereof be increased pursuant to this Section 9 by an amount in excess
of one-ninth of such number of Firm Securities or Additional Securities, as the
case may be, without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Firm
Securities and the aggregate number of Firm Securities with respect to which
such default occurs is more than one-tenth of the aggregate number of Firm
Securities to be purchased by all Underwriters and arrangements satisfactory to
you and the Company for purchase of such Firm Securities are not made within 48
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter and the Company. In any such case which
does not result in termination of this Agreement, either you or the Company
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. If, on the Option Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Additional Securities and the aggregate number of
Additional Securities with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Securities to be purchased on
such date, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase such Additional Securities or
(ii) purchase not less than the number of Additional Securities that such
non-defaulting Underwriters would have been obligated to purchase on such date
in the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
SECTION 10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company or the
Trust, to American Classic Voyages Co., Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Jordan X. Xxxxx and (ii) if to any
Underwriter or to you, to you c/x Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the Trust and the several
Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Securities, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the officers or
directors of any Underwriter, any person controlling any Underwriter, the
Company, the Trust, the officers or directors of the Company or Trustees of the
Trust or any person controlling the Company, (ii) acceptance of the Securities
and payment for them hereunder and (iii) termination of this Agreement.
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If for any reason the Securities are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 9 or as a result of breach by the
Underwriters of their obligations to purchase the Securities hereunder), the
Company agrees to reimburse the several Underwriters for all out-of-pocket
expenses (including the fees and disbursements of counsel) incurred by them.
Notwithstanding any termination of this Agreement, the Company shall be liable
for all expenses which it has agreed to pay pursuant to Section 5(i) hereof. The
Company also agrees to reimburse the several Underwriters, their directors and
officers and any persons controlling any of the Underwriters for any and all
fees and expenses (including, without limitation, the reasonable fees and
disbursements of counsel) incurred by them in connection with enforcing their
rights hereunder (including, without limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Trust, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the Company's directors and the Company's officers who sign
the Registration Statement, the Administrative Trustees of the Trust and their
respective successors and assigns, all as and to the extent provided in this
Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Securities from any of the several Underwriters merely
because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
-24-
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Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Trust and the several Underwriters.
Very truly yours,
AMERICAN CLASSIC VOYAGES CO.
By: ______________________________
Name:
Title:
AMCV CAPITAL TRUST I
By: AMERICAN CLASSIC VOYAGES
CO., as Sponsor
By: ______________________________
Name:
Title:
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES
CORPORATION
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
By: XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By _____________________________________
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SCHEDULE A
Name of Underwriter Number of Firm Securities
------------------- -------------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation.......................... 1,300,000
Xxxxxxx, Sachs & Co. ........................................................ 350,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated........................... 350,000
Total........................................................................ 2,000,000
=========
-A-
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SCHEDULE B
Xxxxxx Xxxx
Xxx Xxxxx Revocable Trust
EGI Holdings, Inc.
EGIL Investments, Inc.
Samstock, L.L.C.
Anda Partnership
Xxxxxx X. Xxxxxx
Jordan X. Xxxxx
Xxxxxxxx X. XxXxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxxx Xxxxxxx
Xxxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
Xxxx Xxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxx
Xxxxxxxx Xxxx, III
Xxxxxxxx X. Xxxxxx
-B-
28
SCHEDULE C
AMCV Cruise Operations, Inc.
AMCV Holdings, Inc.
The Delta Queen Steamboat Co.
Cruise America Travel, Incorporated
Great River Cruise Line, L.L.C.
Great Ocean Cruise Line, L.L.C.
Great AQ Steamboat, L.L.C.
Great Hawaiian Cruise Line, Inc.
Great Independence Ship Co.
Great Hawaiian Properties Corporation
American Hawaii Properties Corporation
Project America, Inc.
Project America Ship I, Inc.
Great Pacific NW Cruise Line, L.L.C.
-C-
29
Exhibit A-1
FORM OF OPINION OF SEYFARTH, XXXX XXXXXXXXXXX & XXXXXXXXX
(i) The Company has been incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under the
Underwriting Agreement.
(iii) The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable; and to the best of our knowledge, after reasonable
inquiry, none of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or other similar rights of
any securityholder of the Company under the Certificate of
Incorporation or By-laws of the Company, the General Corporation Law of
the State of Delaware, or based solely upon a certificate of an officer
of the Company, any agreement to which the Company is a party.
(iv) The Securities have been duly authorized for issuance and sale
to the Underwriters pursuant to the Underwriting Agreement and, when
issued and delivered by the Trust pursuant to the Underwriting
Agreement against payment of the consideration set forth in the
Underwriting Agreement, will be validly issued and fully paid and
non-assessable.
(v) The issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the Company
under the Certificate of Incorporation or By-laws of the Company, the
General Corporation Law of the State of Delaware, or based solely upon
a certificate of an officer of the Company, any agreement to which the
Company is a party.
(vi) Each Subsidiary has been incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and, to the best of our knowledge, is owned by the
Company, directly or through subsidiaries, and based solely upon a
certificate of an officer of the Company is free and clear of any
material security interest, mortgage, pledge, lien, encumbrance, except
that such capital stock may be pledged or otherwise encumbered in
connection with that certain Credit Agreement dated as of February 25,
1999 with a group of lenders, with the Chase Manhattan Bank, as agent,
and any related agreements and instruments ("CHASE CREDIT AGREEMENT");
and to the best of our knowledge, none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any
A-1-1
30
securityholder of such Subsidiary under the Certificate or Articles of
Incorporation or By-laws of such Subsidiary, the corporation statute of
the jurisdiction of incorporation of such Subsidiary, or, based solely
upon a certificate of an officer of the Company, any agreement to which
such Subsidiary is a party.
(vii) Each of Underwriting Agreement, the Indenture and each of the
Guarantees has been duly authorized, executed and delivered by the
Company and the Trust, the Declaration has been duly authorized,
executed and delivered by the Company and duly executed and delivered
by the Administrative Trustees.
(viii) The Registration Statement has been declared effective under
the Act; any required filing of the Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule
424(b); and, to the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the
Act and no proceedings for that purpose have been instituted or are
pending or threatened by the Commission.
(ix) The Registration Statement, the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and Prospectus, excluding the
documents incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements and
schedules and other financial information included therein or omitted
therefrom, as to which we need express no opinion) complied as to form
in all material respects with the requirements of the Act.
(x) The documents incorporated by reference in the Prospectus
(other than the financial statements and schedules and other financial
information included therein or omitted therefrom, as to which we 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 the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder.
(xi) The form of certificate used to evidence the Securities
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the Declaration and
the requirements of the Nasdaq National Market.
(xii) To the best of our knowledge, except as described in the
Prospectus, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or any
Subsidiary is a party, or to which the property of the Company or any
Subsidiary is subject, before or brought by any court or governmental
agency or body, domestic or foreign, which could reasonably be expected
to result in a Material Adverse Change, or which could reasonably be
expected to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated in the
Underwriting Agreement or the performance by the Company of its
obligations thereunder.
A-1-2
31
(xiii) The information in the Registration Statement under Item 15 of
Part II, to the extent that it constitutes matters of law, summaries of
legal matters, the Company's Certificate of Incorporation and Bylaws or
legal proceedings, or legal conclusions, has been reviewed by us and
fairly presents all material respects the information set forth
therein.
(xiv) To the best of our knowledge, except for any statutes or
regulations relating to maritime or transportation matters, as to which
we express no opinion, there are no material statutes or regulations
that are required to be described in the Prospectus that are not
described or incorporated by reference therein.
(xv) All descriptions in the Registration Statement of contracts
and other written agreements to which the Company or its Subsidiaries
are a party fairly present, in all material respects, the material
terms of such contracts and agreements; to the best of our knowledge,
there are no material or other written agreements to which the Company
or its Subsidiaries is a party required to be described or referred to
in the Registration Statement or to be filed or incorporated by
reference as exhibits thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto;
provided that we express no opinion with respect to any contract or
other agreement relating to vessel construction or maritime matters,
other than the agreement to acquire a vessel described on page S-41 of
the Prospectus under the heading "American Classic Voyages-Expansion
Plans-Delta Queen Expansion Plans-New Riverboat."
(xvi) To the best of our knowledge, neither the Company nor any
Subsidiary is in violation of its Certificate or Articles of
Incorporation or By-laws.
(xvii) To the best of our knowledge, after reasonable inquiry, no
filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the Act,
which have been obtained, or as may be required under the securities or
blue sky laws of the various states, as to which we need express no
opinion) is necessary or required in connection with the due
authorization, execution and delivery of the Underwriting Agreement,
for the offering, issuance, sale or delivery of the Securities or for
the issuance of the Guarantees or the Debentures.
(xviii) The execution, delivery and performance of the Underwriting
Agreement and the consummation of the transactions contemplated in the
Underwriting Agreement and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Prospectus under the
caption "Use Of Proceeds"), compliance by the Company and the Trust
with their obligations under the Underwriting Agreement, the issuance
and sale of the Securities and the Common Securities by the Trust, the
sale of the Debentures by the Company to the Trust, the issuance by the
Company of the Guarantees, the execution, deliver and performance by
the Company of the Guarantees, the issuance by the Company of the
Common Stock upon the conversion of the Securities or the Debentures,
or the distribution of the Debentures by the Trust in the circumstances
contemplated by the
A-1-3
32
Declaration, do not and will not, whether with or without the giving of
notice or lapse of time or both, to the best of our knowledge, conflict
with or constitute a breach of, or default under or result in the
creation or imposition of any Lien upon any property or assets of the
Company or any subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument to which the Company or any Subsidiary is
a party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any Subsidiary is subject
(except for such conflicts, breaches or defaults or Liens that would
not result in a Material Adverse Change and except that we express no
opinion with respect to the Chase Credit Agreement or any contract,
mortgage, note, other agreement or instrument with the Maritime
Administration of the United States Department of Transportation)), nor
will such action result in any violation of the provisions of the
Certificate or Articles of Incorporation or By-laws of the Company or
any Subsidiary, or, to the best of our knowledge, any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations.
(xix) The Common Stock issuable upon the conversion of the
Securities and/or the Debentures has been duly authorized by the
Company and reserved for issuance upon conversion and, if and when
issued in accordance with the Declaration and the Indenture, will be
validly issued and fully paid and nonassessable and will conform to the
description of the Common Stock contained in the Prospectus; and the
issuance of such Common Stock is not subject to any preemptive right or
any other similar rights of securityholders of the Company under the
Certificate of Incorporation or By-laws of the Company, under the
General Corporation Law of the State of Delaware or, based solely upon
a certificate of an officer of the Company, any agreement to which the
Company is a party.
(xx) To the best of our knowledge, the Trust is not a party to or
bound by any agreement or instrument other than the Underwriting
Agreement, the Declaration and the agreements and instruments
contemplated by the Declaration and described in the Prospectus; and to
the best of our 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.
(xxi) Upon due execution, authentication and delivery of the
Securities and upon payment therefor, each of the Guarantees, the
Debentures and the Indenture will be a legally valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general principles of equity and,
with respect to indemnification provisions, applicable limitations of
public policy; the Debentures are entitled to the benefits provided by
the Indenture.
A-1-4
33
(xxii) The Securities, the Debentures, the Guarantees, the Trust
Agreement, the Indenture and the Common Securities conform in all
material respects to the descriptions thereof contained in the
Prospectus.
(xxiii) The Trust will be classified as a grantor trust for United
States Federal income tax purposes and not as an association subject to
tax as a corporation.
(xxiv) Neither the Company nor any of its subsidiaries is, and after
giving effect to the offering and sale of the Securities, the
Debentures, the Guarantee and the Common Stock issuable upon the
conversion of the Securities and/or Debentures will be, an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act. The Trust is not
required to be registered under the Investment Company Act.
(xxv) To the best of our knowledge, all of the issued and
outstanding Common Securities are directly owned by the Company free
and clear of any lien, encumbrance or claim.
(xxvi) The statements set forth in the Prospectus under the captions
"The AMCV Trust," "Description of Capital Stock," "Description of
Subordinated Debt Securities," "Description of Preferred Securities of
the AMCV Trust," "Description of Guarantees," "Description of the
Debentures," "Description of Preferred Securities," "Description of the
Preferred Securities Guarantee," and "Effect of Obligations Under the
Debentures and the Preferred Securities Guarantees-Additional Covenants
of American Classic Voyages" insofar as they purport to constitute a
summary of the terms of the Securities, the Debentures, the Guarantee,
the Common Stock and the documents referred to therein, insofar as they
purport to describe the provisions of the law and the documents
described therein, fairly summarize or describe such terms, documents
and laws in all material respects.
(xxvii) The discussions set forth in the Prospectus under the captions
"Federal Income Tax Consequences," "Risk Factors--Ability to defer
distributions has tax consequences for you and may affect the trading
price of the preferred Securities" and "Risk Factors--Proposed tax
legislation could result in a Trust Tax Event" to the extent such
information constitutes matters of law, summaries of legal matters, or
legal conclusions, has been reviewed by such counsel, and fairly
presents in all material respects the provisions of law and documents
referred to therein.
(xxviii) Each of the Preferred Guarantee, the Declaration and the
Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended.
We have participated in discussions with officers and representatives
of the Company during the course of the preparation of the Registration
Statement. Although we have not independently checked or verified the
information contained in the Registration Statement or Prospectus, on
the basis of the aforementioned discussions, nothing has come to our
attention that would lead us to believe that the Registration Statement
or any
A-1-5
34
amendment thereto (except for financial statements and schedules and
other financial information included or incorporated by reference
therein or omitted therefrom as to which we need make no statement), at
the time such Registration Statement or any such amendment became
effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or
any amendment or supplement thereto (except for financial statements
and schedules and other financial information included or incorporated
by reference therein or omitted therefrom, as to which we need make no
statement), on the date of the Prospectus or on the date of any such
amended or supplemented prospectus, or on the Closing Date, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
In rendering such opinion, such counsel may, as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public
officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written
policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law
(1991). In such opinion, counsel may indicate that they are not
expressing any opinion concerning any law other than the laws of the
State of Illinois and the State of New York (but not including any
statutes, ordinances, administrative decisions, rules or regulations of
counties, towns, municipalities and special political subdivisions, or
any judicial decisions to the extent that they deal with any of the
foregoing), the General Corporation Law of the State of Delaware and
applicable federal law of the United States.
A-1-6
35
Exhibit A-2
FORM OF OPINION OF
JORDAN X. XXXXX
(i) The Company is qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse
Change.
(ii) Each Subsidiary is qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse
Change.
(iii) To the best of my knowledge, no default by the Company
or any Subsidiary exists in the due performance or observation of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described or reference to in the
Registration Statement or the Prospectus or filed or incorporated by
reference as an exhibit to the Registration Statement (except for such
violations or defaults which could not reasonably be expected to result
in a Material Adverse Change).
(iv) The execution, delivery and performance of the
Underwriting Agreement and the consummation of the transactions
contemplated in the Underwriting Agreement and in the Registration
Statement (including the issuance and sale of the Securities and the
use of the proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use Of Proceeds"), compliance by the
Company and the Trust with their obligations under the Underwriting
Agreement, the issuance and sale of the Securities and the Common
Securities by the Trust, the sale of the Debentures by the Company to
the Trust, the issuance by the Company of the Guarantees, the
execution, delivery and performance by the Company of the Guarantees,
the issuance by the Company of the Common Stock upon the conversion of
the Securities or the Debentures, or the distribution of the Debentures
by the Trust in the circumstances contemplated by the Declaration, do
not and will not, whether with or without the giving of notice or lapse
of time or both, to the best of my knowledge, conflict with or
constitute a breach of, or default under or result in the creation or
imposition of any Lien upon any property or assets of the Company or
any subsidiary pursuant to the Chase Credit Agreement (except for such
Liens that would not result in a Material Adverse Change).
36
Exhibit A-3
FORM OF OPINION OF
PRESTON, GATES, XXXXX &
ROUVELAS XXXXX
(i) The information in the Prospectus under the headings
"Prospectus Supplement Summary-American Classic Voyages-Investment
Highlights -- Statutory Competitive Advantages," "Risk Factors-Risk
Factors Relating to American Classic Voyages-If we cannot benefit from
exclusive rights of the Pilot Project Statute, our revenue growth in
Hawaii will be adversely affected," "Risk Factors-Risk Factors Relating
to American Classic Voyages-Modification of the Passenger Vessel Act
may adversely affect our business," "Risk Factors-Risk Factors Relating
to American Classic Voyages-If we do not complete drydockings or wet
dockings on schedule or within budget, our revenues may be adversely
impacted," "American Classic Voyages-Statutory Competitive Advantages,"
and "American Classic Voyages-Current Operations-Governmental
Regulation" (together, the "REGULATORY PORTION") to the extent it
constitutes matters of law, summaries of legal matters or legal
conclusions has been reviewed by us and is correct in all material
respects.
(ii) Nothing has come to our attention that would lead us to
believe that the information contained in the Regulatory Portion of the
Registration Statement or any amendment thereto, at the time such
Registration Statement or any such amendment became effective or on the
date of the Underwriting Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the information contained in the Regulatory Portion of the
Prospectus or any amendment or supplement thereto, on the date of the
Prospectus, as amended or supplemented, or on the Closing Date,
included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(iii) To the best of our knowledge there are no statutes or
regulations that are required to be described in the Regulatory Portion
of the Prospectus that are not described as required.
(iv) All descriptions in the Registration Statement and the
Prospectus of the construction contract between Project America, Inc.,
an indirect subsidiary of the Company, and Xxxxxxx Shipbuilding, Inc.,
the construction contract between Coastal Queen Holdings, L.L.C. and
Atlantic Marine, Inc. and the construction contract between The Delta
Queen Steamboat Co. and Cascade General, Inc. and the description of
the vessel acquisition contract described under "American Classic
Voyages--Hawaii Expansion Plans--Acquisition and Introduction of ms
Patriot" fairly present in all material respects, the material terms of
such contract, and, to the best of our knowledge,
A-3-1
37
there are no material contracts or other written agreements for the
construction of vessels to which the Company or is Subsidiaries are a
party required to be described or referred to in the Registration
Statement or filed as exhibits thereto, other than those described or
referred to therein or filed or incorporated by reference as exhibits.
(v) The execution, delivery and performance of the
Underwriting Agreement and the consummation of the transactions
contemplated in the Underwriting Agreement and in the Registration
Statement (including the issuance and sale of the Securities and the
use of the proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use of Proceeds") and compliance by the
Company with its obligations under the Underwriting Agreement do not
and will not, whether with or without the giving of notice or lapse of
time or both, to the best of our knowledge, conflict with or constitute
a breach of, or default under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to any contract, mortgage, note,
other agreement or instrument with the Maritime Administration of the
United States Department of Transportation to which the Company or any
Subsidiary is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any Subsidiary is
subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Change).
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-3-2
38
Exhibit A-4
FORM OF OPINION OF
XXXXXXXX, XXXXXX & FINGER
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust
Act;
(ii) Under the Delaware Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority (a) to own its
properties and conduct its business, (b) to execute and deliver the
agreements (as defined in such opinion) to which it is a party, and (c)
to issue and perform its obligations under the Securities and Common
Securities, all as described in the Declaration;
(iii) The Declaration constitutes a valid and binding
obligation of the Company and the Trustees and is enforceable against
the Company and the Trustees in accordance with its terms;
(iv) Under the Delaware Business Trust Act and the
Declaration, the execution and delivery by the Trust of the agreements
to which it is a party, and the performance by the Trust of its
obligations thereunder, have been duly authorized by all necessary
Trust action on the part of the Trust;
(v) The Securities will represent valid and, subject to the
qualifications set forth in clause (vi) below, fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust;
(vi) Under the Delaware Business Trust Act, the certificate
attached to the Declaration as Exhibit A-1 is an appropriate form of
certificate to evidence ownership of the Securities. The Securities
have been duly authorized by the Declaration. The holders of the
Securities 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.
Such counsel may note that the Securities holders may be obligated,
pursuant to the Declaration, to (a) provide indemnity and/or security
in connection with and pay taxes or governmental charges arising from
transfers of Securities and the issuance of replacement Securities, and
(b) provide security and indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and powers
under the Declaration;
(vii) Under the Delaware Business Trust Act and the
Declaration, the issuance of the Securities is not subject to
preemptive rights;
(viii) No authorization, approval or consent, registration or
qualification or other action by or with any court or governmental
authority or regulatory body of the State of
A-4-1
39
Delaware is required solely for the issuance and sale of the Securities
or the consummation of the transactions contemplated by the Agreements;
(xix) Assuming that the Trust is treated as a grantor trust or
partnership for federal income tax purposes, the holders of the
Securities (other than those holders of Securities who reside or are
domiciled in the State of Delaware) will have no liability for income
taxes imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable for any
income tax imposed by the State of Delaware;
(x) The purchase of the Debentures by the Trust does not, and
the distribution of the Debentures by the Trust will not, in each case
in the circumstances contemplated by the Trust Agreement, conflict with
or result in a breach or violation of any of the terms or provisions of
the Certificate of Trust of the Trust dated as of January 12, 2000 or
the Declaration or any Delaware statute or any order, rule or
regulation of any Delaware governmental agency or body having
jurisdiction over the Trust or any of its properties; and
(xi) The Common Securities have been duly authorized by the
Declaration and are duly and validly issued undivided beneficial
interests in the assets of the Trust and, under the Delaware Business
Trust Act and the Declaration, the issuance of the Common Securities is
not subject to preemptive or other similar rights.
A-4-2
40
Exhibit A-5
FORM OF OPINION OF
XXXXX, XXXXXX AND XXXXXX LLP
(i) The Trustee is a banking corporation duly incorporated and
validly existing under the laws of the State of New York.
(ii) The execution, delivery and performance by the Property
Trustee of the Declaration, the execution, delivery and performance by
the Guarantee Trustee of the Guarantee Agreement and the execution,
delivery and performance by the Indenture Trustee of the Indenture have
been duly authorized by all necessary corporate action on the part of
the Property Trustee, the Guarantee Trustee and the Indenture Trustee,
respectively. The Declaration, the Guarantee Agreement and the
Indenture have been duly executed and delivered by the Property
Trustee, the Guarantee Trustee and the Indenture Trustee, respectively,
and constitute the legal, valid and binding obligations of the Property
Trustee, the Guarantee Trustee and the Indenture Trustee, respectively,
enforceable against the Property Trustee, the Guarantee Trustee and the
Indenture Trustee, respectively, in accordance with their terms, except
as enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to the
enforcement of creditors' rights generally, and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) The execution, delivery and performance of the
Declaration, the Guarantee Agreement and the Indenture by the Property
Trustee, the Guarantee Trustee and the Indenture Trustee, respectively,
do not conflict with or constitute a breach of the Organization
Certificate or By-laws of the Property Trustee, the Guarantee Trustee
and the Indenture Trustee, respectively, or the terms of any indenture
or other agreement or instrument known to us and to which the Property
Trustee, the Guarantee Trustee or the Indenture Trustee, respectively,
is a party or is bound or any judgment, order or decree known to us to
be applicable to the Property Trustee, the Guarantee Trustee or the
Indenture Trustee, respectively, of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Property Trustee, the Guarantee Trustee or the
Indenture Trustee, respectively.
(iv) No consent, approval or authorization of, or registration
with or notice to any Federal or New York State banking authority is
required for the execution, delivery or performance by the Property
Trustee, the Guarantee Trustee or the Indenture Trustee of the
Declaration, the Guarantee Agreement and the Indenture, respectively.
A-5-1
41
FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS
PURSUANT TO SECTION 2
Exhibit B
February 15, 2000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Public Offering by American Classic Voyages Co.
--------------------------------------------------------
Dear Sirs:
The undersigned understands that Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, Xxxxxxx, Sachs & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx (the "UNDERWRITERS"), propose to enter into an Underwriting Agreement with
American Classic Voyages Co. (the "COMPANY") and AMCV Capital Trust I (the
"TRUST"), providing for the public offering (the "PUBLIC OFFERING") of trust
preferred securities of the Trust.
To induce the Underwriters to participate in the Public Offering and to
continue their efforts in connection with the Public Offering, the undersigned,
during the period commencing on the date hereof and ending 90 days after the
date of the final prospectus relating to the Public Offering:
42
(i) agrees not to (x) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any shares of common stock, par value $.01 per share
(the "COMMON STOCK") of the Company or any securities convertible into or
exercisable or exchangeable for Common Stock (including, without limitation,
shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock which may be deemed to be beneficially owned by
the undersigned in accordance with the rules and regulations of the Securities
and Exchange Commission) or (y) enter into any swap or other arrangement that
transfers all or a portion of the economic consequences associated with the
ownership of any Common Stock (regardless of whether any of the transactions
described in clause (x) or (y) is to be settled by the delivery of Common Stock,
or such other securities, in cash or otherwise), without the prior written
consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation;
(ii) agrees not to make any demand for, or exercise any right with
respect to, the registration of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, without the
prior written consent of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation;
and
(iii) authorizes the Company to cause the transfer agent to decline to
transfer and/or to note stop transfer restrictions on the transfer books and
records of the Company with respect to any shares of Common Stock and any
securities convertible into or exercisable or exchangeable for Common Stock for
which the undersigned is the record holder and, in the case of any such shares
or securities for which the undersigned is the beneficial but not the record
holder, agrees to cause the record holder to cause the transfer agent to decline
to transfer and/or to note stop transfer restrictions on such books and records
with respect to such shares or securities.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into the agreements set forth herein, and
that, upon request, the undersigned will execute any additional documents
necessary or desirable in connection with the enforcement hereof. All authority
herein conferred or agreed to be conferred shall survive the death or incapacity
of the undersigned and any obligations of the undersigned shall be binding upon
the heirs, personal representatives, successors, and assigns of the undersigned.
Very truly yours,
Signature: ______________________
Print Name: _____________________
B-1
43
Exhibit C
FORM OF OPINION OF
SIDLEY & AUSTIN
(i) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(ii) The statements under the captions "The AMCV Trust," "Description
of Capital Stock," "Description of Subordinated Debt Securities," "Description
of Preferred Securities of the AMCV Trust," "Description of Guarantees,"
"Description of the Debentures," "Description of Preferred Securities,"
"Description of the Preferred Securities Guarantee," "Effect of Obligations
Under the Debentures and the Preferred Securities Guarantees," and
"Underwriting," insofar as such statements constitute summaries of the legal
matters and documents referred to therein, fairly summarize the legal matters
and documents referred to therein in all material respects.
(iii) Each of the Indenture, the Declaration and the Guarantee has been
duly authorized, executed and delivered by the Company. The Debentures are in
the form established pursuant to the Indenture and have been duly authorized,
executed and delivered by the Company.
(iv) Assuming the due authorization, execution and delivery by the
Indenture Trustee of the Indenture and the due authentication of the Debentures
by the Indenture Trustee in accordance with the provisions of the Indenture, the
Debentures, upon delivery of the Debentures to the Trust against payment
therefor, will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, subject to the qualification that
the enforceability thereof may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equity principles.
(v) Each of the Registration Statement and the Prospectus, as of its
respective effective or issue date (other than the financial statements,
financial data and supporting schedules included therein or omitted therefrom
and the Statement of Eligibility on Form T-1 of each of the Indenture Trustee,
the Delaware Trustee and the Guarantee Trustee (the "Forms T-1"), as to which we
express no opinion), complied as to form in all material respects with the
requirements of the 1933 Act.
(vi) Assuming the due authorization, execution and delivery by the
Indenture Trustee and the Guarantee Trustee, as applicable, each of the
Indenture and the Guarantee is a valid and binding agreement of the Company
enforceable in accordance with its terms, subject to the qualification that the
enforceability thereof may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium and other laws relating to or affecting
44
creditors' rights generally and by general equity principles.
(vii) The shares of Common Stock initially issuable upon conversion of
the Securities and the Debentures have been duly authorized by the Company and
reserved for issuance upon such conversion and, if and when issued in accordance
with the Declaration and the Indenture, upon conversion of the Securities and
the Debentures, will be validly issued, fully paid and non-assessable.
(viii) Each of the Preferred Guarantee, the Declaration and the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended.
(ix) Nothing has come to our attention which causes us to believe that
the Registration Statement (other than the financial statements, financial data
and supporting schedules included therein and the Forms T-1, as to which we
express no belief), at the time it became effective, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus (other than the financial statements, financial data and
supporting schedules included therein and the Forms T-1, as to which we express
no belief), as of its date or at the date hereof, included or includes any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
