Exhibit 1.1
__________ TRUST PREFERRED SECURITIES
CCC CAPITAL I
____% Trust Preferred Securities
(Liquidation amount $25 per Trust Preferred Security)
guaranteed to the extent set forth in the Prospectus
Supplement dated ______, 199_ by
COMMERCIAL CREDIT COMPANY
UNDERWRITING AGREEMENT
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__________, 199_
XXXXX XXXXXX INC.
[CO-MANAGERS]
As Representatives of the Several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
CCC Capital I (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C. Section
3801 et seq.), proposes, upon the terms and conditions set forth herein, to
issue and sell _______________% Trust Preferred Securities with an
aggregate liquidation amount equal to $__________ (the "Firm Preferred
Securities") to the several Underwriters named in Schedule I hereto (the
"Underwriters"). The Trust also proposes, upon the terms and conditions set
forth herein and solely for the purpose of covering over-allotments, to
issue and sell to the Underwriters up to an additional ____________ ___%
Trust Preferred Securities with an aggregate liquidation amount equal to
$_________ (the "Additional Preferred Securities"). The Firm Preferred
Securities and the Additional Preferred Securities are hereinafter
collectively referred to as the "Preferred Securities."
The Preferred Securities and the Common Securities (as defined
herein) are to be issued pursuant to the terms of a declaration of trust,
dated as of September 30, 1996, as amended and restated as of ________,
199_ (the "Declaration"), among Commercial Credit Company, a Delaware
corporation (the "Company" and, together with the Trust, the "Offerors"),
as sponsor, the trustees named therein (the "CCC Trustees") and the holders
from time to time of undivided beneficial interests in the assets of the
Trust. The Declaration is qualified as an indenture under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Pursuant to the
Declaration, the number of CCC Trustees will initially be four. Two of the
CCC Trustees (the "Regular Trustees") will be persons who are employees or
officers of, or affiliated with, the Company. The third CCC Trustee will
be a financial institution unaffiliated with the Company that will serve as
property trustee under the Declaration and as indenture trustee with
respect to the Preferred Securities for purposes of the 1939 Act (the
"Institutional Trustee"). The fourth CCC Trustee will be a financial
institution or an affiliate thereof which maintains a principal place of
business in the State of Delaware, meeting the requirements of the Delaware
Act (the "Delaware Trustee"). Initially, The Chase Manhattan Bank, a New
York banking association ("Chase"), will act as the Institutional Trustee
and Chase Manhattan Bank Delaware, a banking association with its principal
place of business in the State of Delaware, will act
as the Delaware Trustee until removed or replaced by the holder of the
Common Securities. The Preferred Securities will be guaranteed by the
Company on a subordinated basis with respect to distributions and payments
upon liquidation, redemption or otherwise (the "Guarantee") pursuant to the
Preferred Securities Guarantee Agreement dated as of ________, 199_ (the
"Guarantee Agreement") between the Company and Chase, as Trustee (the
"Guarantee Trustee"). The assets of the Trust will consist of ____% Junior
Subordinated Deferrable Interest Debentures due ___________, 203_ (the
"Subordinated Debentures") of the Company which will be issued under an
indenture, dated as of _________, 199_ (the "Indenture"), between the
Company and Chase, as Trustee (the "Indenture Trustee"). Under certain
circumstances, the Subordinated Debentures will be distributable to the
holders of undivided beneficial interests in the assets of the Trust. The
Preferred Securities, the Guarantee and the Subordinated Debentures are
referred to herein as the "Securities."
The Offerors wish to confirm as follows their agreement with you
and the other several Underwriters on whose behalf you are acting, in
connection with the several purchases of the Preferred Securities by the
Underwriters.
1. Registration Statement and Prospectus. The Offerors have
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prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"), a registration statement
on Form S-3 (File No. 333-_____) under the Securities Act (the
"registration statement"), including a prospectus subject to completion
relating to the Securities. The term "Registration Statement" as used in
this Agreement means the registration statement (including all financial
schedules and exhibits), as amended at the time it becomes effective, or,
if the registration statement became effective prior to the execution of
this Agreement, as supplemented or amended prior to the execution of this
Agreement. If it is contemplated, at the time this Agreement is executed,
that a post-effective amendment to the registration statement will be filed
and must be declared effective before the offering of the Preferred
Securities may commence, the term "Registration Statement" as used in this
Agreement means the registration statement as amended by said
post-effective amendment. If an additional registration statement is
prepared and filed with the Commission in accordance with Rule 462(b) under
the Securities Act (an "Additional Registration Statement"), the term
"Registration Statement" as used in this Agreement includes the Additional
Registration Statement. The term "Base Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement. The term "Prospectus" as used in this Agreement means the Base
Prospectus together with the prospectus supplement or supplements relating
to the Preferred Securities filed with the Commission pursuant to Rule
424(b) under the Securities Act. The term "Prepricing Prospectus" as used
in this Agreement means the prospectus supplement subject to completion
relating to the Preferred Securities together with the Base Prospectus as
such prospectus shall have been amended from time to time prior to the date
of such prospectus supplement and filed with the Commission pursuant to
Rule 424(b) under the Securities Act. Any reference in this Agreement to
the registration statement, the Registration Statement, any Prepricing
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Form S-3 under the
Securities Act, as of the date of the registration statement, the
Registration Statement, such Prepricing Prospectus or the Prospectus, as
the case may be, and any reference to any amendment or supplement to the
registration statement, the Registration Statement, any Prepricing
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") which, upon filing, are incorporated by
reference therein, as required by Form S-3. As used herein, the term
"Incorporated Documents" means the documents which at the time are
incorporated by reference in the registration statement, the Registration
Statement, any Prepricing Prospectus, the Prospectus, or any amendment or
supplement thereto.
2. Agreements to Sell and Purchase. The Trust hereby agrees,
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subject to all the terms and conditions set forth herein, to issue and sell
to each Underwriter and, upon the basis of the
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representations, warranties and agreements of the Offerors herein contained
and subject to all the terms and conditions set forth herein each Underwriter
agrees, severally and not jointly, to purchase from the Trust, at a purchase
price of $25 per Firm Preferred Security, plus accrued distributions, if any,
from , 199 , the number of Firm Preferred Securities set forth
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opposite the name of such Underwriter in Schedule I hereto (or such number of
Firm Preferred Securities increased as set forth in Section 10 hereof).
The Company agrees that, in view of the fact that the proceeds of
the sale of the Preferred Securities will be invested in the Subordinated
Debentures, it shall pay to the Underwriters as compensation
("Underwriters' Compensation") for their arranging the investment of the
proceeds therein, on the Closing Date, $ per Firm Preferred Security,
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provided, however, that such compensation shall be $ per
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Preferred Security for each sale of 10,000 or more Firm Preferred
Securities to a single purchaser. The Underwriters shall inform the
Company in writing on the Closing Date of the aggregate number of Firm
Preferred Securities so sold.
The Trust also agrees, subject to all the terms and conditions
set forth herein, to sell to the Underwriters, and upon the basis of the
representations, warranties and agreements of the Company herein contained
and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Company pursuant to
an option (the "over-allotment option") which may be exercised at any one
time prior to 9:00 P.M., New York City time, on the 30th day after the date
of the Prospectus (or, if such 30th day shall be a Saturday or Sunday or a
holiday, on the next business day thereafter when the New York Stock
Exchange is open for trading), up to Additional Preferred
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Securities at the same purchase price as the Firm Preferred Securities,
plus accrued distributions, if any, from , 199 . Upon
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exercise of the over-allotment option, each Underwriter, severally and not
jointly, agrees to purchase that number of Additional Preferred Securities
(subject to such adjustments as you may determine in order to avoid
fractional shares) which bears the same proportion to the aggregate number
of Additional Preferred Securities to be purchased by the Underwriters as
the number of Firm Preferred Securities set forth opposite the name of such
Underwriter bears in Schedule I hereto (or such number of Firm Preferred
Securities increased as set forth in Section 10 hereof) to the aggregate
number of Firm Preferred Securities. The Company agrees that it will pay
Underwriters' Compensation on the Option Closing Date in the amounts per
Preferred Security set forth in the immediately preceding paragraph with
respect to any Additional Preferred Securities purchased by the
Underwriters.
3. Terms of Public Offering. The Offerors have been advised by
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you that the Underwriters propose to make a public offering of their
respective portions of the Preferred Securities as soon as the Underwriters
deem advisable after the Registration Statement has become effective, this
Agreement has been executed and delivered, and the Declaration, the
Guarantee Agreement and the Indenture have been qualified under the 0000
Xxx. The entire proceeds from the sale of the Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company
of its common securities (the "Common Securities"), and will be used by the
Trust to purchase an equivalent amount of the Subordinated Debentures.
4. Delivery of the Preferred Securities and Payment Therefor.
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Delivery to the Underwriters of and payment for the Firm Preferred
Securities shall be made at the office of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 8:30 A.M., New York City time, on
___________, 199_ (the "Closing Date"). The place of closing for the
Preferred Securities and the Closing Date may be varied by agreement
between you and the Company.
Delivery to the Underwriters of and payment for any Additional
Preferred Securities to be purchased by the Underwriters shall be made at
the aforementioned office of Xxxxx Xxxxxx Inc. at such time on such date
(the "Option Closing Date"), which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor earlier than two nor
later than ten business days after the giving of the notice hereinafter
referred to, as shall be specified in a written notice from you to the
Offerors of the Underwriters' determination to purchase the number of
Additional Preferred Securities specified in such
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notice. The place of closing for any Additional Preferred Securities and
the Option Closing Date for such Additional Preferred Securities may be
varied by agreement between you and the Offerors.
The Firm Preferred Securities and any Additional Preferred
Securities which the Underwriters may elect to purchase shall be delivered
to you for the accounts of the several Underwriters registered in the name
of CEDE & CO., as nominee for the Depository Trust Company, against payment
of the purchase price therefor in immediately available funds. The
Preferred Securities to be delivered to the Underwriters shall be made
available to you in New York City for inspection and packaging not later
than 9:30 A.M., New York City time, on the business day next preceding the
Closing Date or the Option Closing Date, as the case may be.
5. Agreements of the Offerors. The Offerors jointly and
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severally agree with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective amendment
thereto (or any Additional Registration Statement) to be declared or to
become effective before the offering of the Securities may commence, the
Offerors will endeavor to cause the Registration Statement or such
post-effective amendment to become effective as soon as possible and will
advise you promptly and, if requested by you, will confirm such advice in
writing, when the Registration Statement or such post-effective amendment
(or any Additional Registration Statement) has become effective.
(b) The Offerors will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the
Commission for amendment of or a supplement to the Registration Statement,
any Prepricing Prospectus or 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 purpose; and (iii) within the
period of time referred to in paragraph (f) below, of the happening of any
event which makes any statement of a material fact made in the Registration
Statement or the Prospectus (as then amended or supplemented) untrue or
which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or supplemented)
in order to state a material fact required by the Securities Act or the
regulations thereunder to be stated therein or necessary in order to make
the statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with
the Securities Act or any other law. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, the Offerors will make every reasonable effort to obtain the
withdrawal of such order at the earliest possible time.
(c) The Offerors will furnish to you, without charge, (i)
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copies (which may be photocopies) of the registration statement as
originally filed with the Commission via XXXXX and of each amendment
thereto so filed, including financial statements and all exhibits to the
registration statement, and will furnish you with an equal number of copies
of executed signature pages regarding the same, (ii) such number of
conformed copies of the registration statement as originally filed and of
each amendment thereto, but without exhibits, as you may reasonably request
and (iii) such number of copies of the Declaration, the Guarantee and the
Indenture and of the Incorporated Documents, as you may reasonably request.
(d) Prior to the end of the period of time referred to in the
first sentence in subsection (f) below, the Offerors will not file any
amendment to the Registration Statement or any Additional Registration
Statement or make any amendment or supplement to the Prospectus to which
you shall reasonably object or file any Form 8-K which upon filing becomes
an Incorporated Document and of which you shall not previously have been
advised (other than Form 8-Ks filed in connection with debt offerings by
the Company).
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(e) Prior to the execution and delivery of this Agreement, the
Offerors have delivered to you, without charge, in such quantities as you
have reasonably requested, copies of each Prepricing Prospectus. The
Offerors consent to the use, in accordance with the provisions of the
Securities Act and with the securities or Blue Sky laws of the
jurisdictions in which the Preferred Securities are offered by the several
Underwriters and by dealers, prior to the date of the Prospectus, of each
Prepricing Prospectus so furnished by the Offerors.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the
opinion of counsel for the Underwriters a Prospectus is required by the
Securities Act to be delivered in connection with sales by any Underwriter
or dealer, the Offerors will expeditiously deliver to each Underwriter and
each dealer, without charge, as many copies of the Prospectus (and of any
amendment or supplement thereto) as you may reasonably request. The
Offerors' consent to the use of the Prospectus (and of any amendment or
supplement thereto) in accordance with the provisions of the Securities Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Preferred Securities are offered by the several Underwriters and by all
dealers to whom Preferred Securities may be sold, both in connection with
the offering and sale of the Preferred Securities and for such period of
time thereafter as the Prospectus is required by the Securities Act to be
delivered in connection with sales by any Underwriter or dealer. If during
such period of time any event shall occur that in the judgment of the
Offerors or in the opinion of counsel for the Underwriters is required to
be set forth in the Prospectus (as then amended or supplemented) or should
be set forth therein in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it
is necessary to supplement or amend the Prospectus (or to file under the
Exchange Act any document which, upon filing, becomes an Incorporated
Document) in order to comply with the Securities Act or any other law, the
Offerors will forthwith prepare and, subject to the provisions of paragraph
(d) above, file with the Commission an appropriate supplement or amendment
thereto (or to such document), and will expeditiously furnish to the
Underwriters and dealers a reasonable number of copies thereof.
(g) The Offerors will cooperate with you and with counsel for
the Underwriters in connection with the registration or qualification of
the Securities for offering and sale by the several Underwriters and by
dealers under the securities or Blue Sky laws of such jurisdictions as you
may designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Company or the Trust be
obligated to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to service of
process in suits, other than those arising out of the offering or sale of
the Preferred Securities, in any jurisdiction where it is not now so
subject.
(h) The Offerors will make generally available to the Trust's
security holders a consolidated earnings statement, which need not be
audited, covering a twelve-month period commencing after the effective date
of the Registration Statement and ending not later than 15 months
thereafter, as soon as practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act.
(i) During the period of three years hereafter (i) the Company
will furnish to you, upon your request (x) as soon as available, a copy of
each report of the Company mailed to stockholders and a copy of each Annual
Report on Form 10-K, each quarterly report on Form 10-Q and each current
report on Form 8-K filed by the Company with the Commission under the
Exchange Act and (y) from time to time such other information concerning
the Company as you may reasonably request, and (ii) the Trust will furnish
to you, upon your request, a copy of each report of the Trust mailed to
holders of Preferred Securities or Common Securities.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant
to the second paragraph of Section 10 hereof or by notice
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given by you terminating this Agreement pursuant to Section 10 or Section
11 hereof) or if this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Offerors to comply
with the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse the Representatives for all reasonable
out-of-pocket expenses (including reasonable fees and expenses of counsel
for the Underwriters) incurred by you in connection herewith.
(k) The Trust will apply the net proceeds from the sale of the
Preferred Securities, and the Company will apply the net proceeds from the
sale of the Subordinated Debentures, substantially in accordance with the
description set forth in the Prospectus.
(l) The Offerors will timely file the Prospectus pursuant to
Rule 424(b) under the Securities Act.
(m) Each of the Trust and the Company agree, during the period
beginning on the date of this Agreement and continuing to and including the
date that is 60 days after the Closing Date, not to offer, sell, contract
to offer, sell or otherwise dispose of any preferred securities, any
preferred stock or any other securities (including any backup undertakings
for such preferred stock or other securities) of the Company or of the
Trust, in each case that are substantially similar to the Preferred
Securities, or any securities convertible into or exchangeable for the
Preferred Securities or such substantially similar securities of either the
Trust or the Company, except Preferred Securities offered pursuant to the
Base Prospectus, without the prior written consent of Xxxxx Xxxxxx Inc.
(n) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take,
directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price
of the Preferred Securities to facilitate the sale or resale of the
Preferred Securities.
6. Representations and Warranties of the Offerors. The
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Offerors jointly and severally represent and warrant to, and agree with,
each Underwriter that:
(a) The Prepricing Prospectus dated , 19 complied
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in all material respects with the provisions of the Securities Act. The
Commission has not issued any order preventing or suspending the use of any
Prepricing Prospectus.
(b) The registration statement in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective, any Additional
Registration Statement when filed with the Commission pursuant to Rule
462(b) under the Securities Act and the Prospectus and any supplement or
amendment thereto when filed with the Commission under Rule 424(b) under
the Securities Act complied or will comply in all material respects with
the provisions of the Securities Act and will not at any such times 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, except that this representation and warranty does not apply
to statements in or omissions from the registration statement or the
Prospectus made in reliance upon and in conformity with (i) information
relating to any Underwriter furnished to the Offerors in writing by or on
behalf of any Underwriter through you expressly for use therein, or (ii)
the Statement of Eligibility and Qualification (Form T-1) under the 1939
Act of each of the Institutional Trustee, the Guarantee Trustee and the
Indenture Trustee.
(c) The Incorporated Documents heretofore filed, when they were
filed (or, if any amendment with respect to any such document was filed,
when such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder,
any further Incorporated Documents so filed will, when they are filed,
conform in all material respects with the requirements of the Exchange Act
and the rules and regulations thereunder; no such document when it
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was filed (or, if an amendment with respect to any such document was filed,
when such amendment was filed), contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and no
such further document, when it is filed, will contain an untrue statement
of a material fact or will omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading.
(d) The execution and delivery of, and the performance by the
Company and the Trust of their respective obligations under this Agreement
have been duly and validly authorized by the Company and the Trust,
respectively, and this Agreement has been duly executed and delivered by
the Company and the Trust.
(e) The Preferred Securities have been duly and validly
authorized by the Declaration and, when executed by the Trust and
authenticated by the Institutional Trustee in accordance with the
Declaration and delivered to you against payment therefor in accordance
with the terms hereof, will be validly issued and (subject to the terms of
the Declaration) will be fully paid and non-assessable undivided beneficial
interests in the assets of the Trust, will be entitled to the benefits of
the Declaration and will conform to all statements relating thereto
contained in the Registration Statement and the Prospectus, and any
amendment or supplement thereto; the issuance of the Preferred Securities
is not subject to preemptive or other similar rights; holders of Preferred
Securities will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit under the
General Corporation Law of the State of Delaware; and the Preferred
Securities have been registered under the Exchange Act and authorization
for listing the Preferred Securities on the New York Stock Exchange has
been given.
(f) The Declaration has been duly and validly authorized by the
Company and, at the Closing Date, will have been duly executed and
delivered by the Company and the Regular Trustees, and assuming due
execution and delivery by the Institutional Trustee and the Delaware
Trustee, the Declaration will be a valid and legally binding obligation of
the Company and the Regular Trustees, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights generally and
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); and the Declaration has
been (or will have been) duly qualified under the 1939 Act and conforms to
the description thereof in the Registration Statement and the Prospectus,
and any amendment or supplement thereto.
(g) The Guarantee has been duly and validly authorized by the
Company and, at the Closing Date, will have been duly executed and
delivered by the Company, and assuming due execution and delivery by the
Guarantee Trustee, the Guarantee will be a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally and general principles
of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity); and the Guarantee has been (or will have
been) duly qualified under the 1939 Act and conforms to the description
thereof in the Registration Statement and the Prospectus, and any amendment
or supplement thereto.
(h) The Indenture has been duly and validly authorized by the
Company and, at the Closing Date, will have been duly executed and
delivered by the Company, and assuming due execution and delivery by the
Indenture Trustee, the Indenture will be a valid and binding obligation of
the Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally and general principles
of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity); and the Indenture has been (or will have
been) duly qualified under the 1939 Act and conforms to the description
thereof in the Registration Statement and the Prospectus, and any amendment
or supplement thereto.
(i) The Subordinated Debentures have been duly and validly
authorized by the Company and, when authenticated by the Indenture Trustee
in the manner provided for in the Indenture and
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issued in accordance with the Indenture and delivered to the Trust against
payment therefor as described in the Registration Statement and the
Prospectus, and any amendment or supplement thereto, will be valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights generally, and
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), and will be in the form
contemplated by, and entitled to the benefits of, the Indenture and
conforms to the description thereof in the Registration Statement and the
Prospectus, and any amendment or supplement thereto.
(j) The Trust has been duly created and is validly existing and
in good standing as a business trust under the Delaware Act with the power
and authority to own property and to conduct its business as described in
the Registration Statement and Prospectus, and any amendment or supplement
thereto, and to enter into and perform its obligations under this
Agreement, the Preferred Securities and the Declaration and is not required
to be authorized to do business in any other jurisdiction; the Trust is not
a party to or otherwise bound by any agreement other than those described
in the Prospectus, and any amendment or supplement thereto; the Trust will
be classified as a grantor trust and not as an association taxable as a
corporation for United States federal income tax purposes; and the Trust is
and will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(k) The Regular Trustees of the Trust are officers of the
Company and have been duly authorized by the Company to execute and deliver
the Declaration.
(l) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with full
corporate power and authority to enter into and perform its obligations
under this Agreement, the Declaration, the Indenture, the Guarantee and the
Subordinated Debentures, and to purchase, own and hold the Common
Securities issued by the Trust.
(m) The consolidated historical financial statements, together
with related schedules and notes, included or incorporated by reference in
the Registration Statement and the Prospectus (and any amendment or
supplement thereto), comply as to form in all material respects with the
requirements of the Securities Act. Such historical financial statements
present fairly the consolidated financial position of the Company and its
subsidiaries at the respective dates indicated and the results of their
operations and their cash flows for the respective periods indicated in
accordance with generally accepted accounting principles consistently
applied throughout such periods.
(n) The Offerors have not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of
the Preferred Securities, will not distribute any offering materials in
connection with the offering and sale of the Preferred Securities other
than the Registration Statement, the Prepricing Prospectus, the Prospectus
or other materials, if any, permitted by the Securities Act.
(o) No holder of any security of the Company or the Trust has
any right to require registration of the Preferred Securities or of any
other security of the Company or the Trust because of the filing of the
registration statement or the consummation of the transactions contemplated
by this Agreement.
(p) Neither the Trust nor the Company is now, nor after giving
effect to the transactions contemplated hereby will be, and neither the
Trust nor the Company is controlled by, or acting on behalf of any person
which is, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
7. Indemnification and Contribution. (a) Each of the Trust and
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the Company jointly and severally agrees to indemnify and hold harmless
each of you and each other Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Securities
Act or
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Section 20 of the Exchange Act from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus
or in the Registration Statement or the Prospectus or in any amendment or
supplement thereto, or arising out of or based upon 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 expenses arise out of or are
based upon any untrue statement or omission or alleged untrue statement or
omission which has been made therein or omitted therefrom in reliance upon
and in conformity with the information relating to such Underwriter
furnished in writing to the Offerors by or on behalf of any Underwriter
through you expressly for use in connection therewith; provided, however,
that the indemnification contained in this paragraph (a) with respect to
any Prepricing Prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) to the
extent that any such loss, claim, damage, liability or expense arises from
the sale of the Preferred Securities by such Underwriter to any person if
it shall be established that a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the Securities
Act and the regulations thereunder, and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact
contained in such Prepricing Prospectus was corrected in the Prospectus and
such correction would have cured the defect giving rise to such loss,
claim, damage, liability or expense, provided that the Offerors have
delivered the Prospectus to the several Underwriters in requisite quantity
on a timely basis to permit such delivery or sending. The foregoing
indemnity agreement shall be in addition to any liability which the Trust
or the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against
any Underwriter or any person controlling any Underwriter in respect of
which indemnity may be sought against the Trust or the Company, such
Underwriter or such controlling person shall promptly notify the Trust and
the Company, and the Trust or the Company shall assume the defense thereof,
including the employment of counsel and payment of all fees and expenses.
Such Underwriter or any such controlling person shall have the right to
employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling
person unless (i) the Trust or the Company has agreed in writing to pay
such fees and expenses, (ii) the Trust or the Company has failed to assume
the defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both
such Underwriter or such controlling person and the Trust or the Company,
and such Underwriter or such controlling person shall have been advised by
its counsel that representation of such indemnified party and the Trust or
the Company by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by
the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the Trust or the Company shall not
have the right to assume the defense of such action, suit or proceeding on
behalf of such Underwriter or such controlling person). It is understood,
however, that the Trust and the Company together shall, in connection with
any one such action, suit or proceeding or separate but substantially
similar or related actions, suits or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of only one separate firm of attorneys (in
addition to any local counsel) at any time for all such Underwriters and
controlling persons not having actual or potential differing interests with
you or among themselves, which firm shall be designated in writing by Xxxxx
Xxxxxx Inc., and that all such fees and expenses shall be reimbursed as
they are incurred. The Trust and the Company shall not be liable for any
settlement of any such action, suit or proceeding effected without the
Company's written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Trust and the Company agree to indemnify and hold harmless
any Underwriter, to the extent provided in the preceding paragraph, and any
such controlling person from and against any loss, claim, damage, liability
or expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Trust, the Company, the Company's
directors, the Company's officers and the CCC Trustees
9
who sign the Registration Statement, and any person who controls the
Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, to the same extent as the foregoing indemnity from
the Trust and the Company to each Underwriter, but only with respect to
information relating to such Underwriter furnished in writing by or on
behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall
be brought against the Trust, the Company, any of the Company's directors,
any such officer or trustee, or any such controlling person, based on the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be
sought against any Underwriter pursuant to this paragraph (c), such
Underwriter shall have the rights and duties given to the Trust or the
Company by paragraph (b) above (except that if the Trust or the Company
shall have assumed the defense thereof, such Underwriter shall not be
required to do so, but may employ separate counsel therein and participate
in the defense thereof, but the fees and expenses of such counsel shall be
at such Underwriter's expense), and the Trust, the Company, the Company's
directors, any such officer or trustee, and any such controlling person
shall have the rights and duties given to the Underwriters by paragraph (b)
above. The foregoing indemnity agreement shall be in addition to any
liability which the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an 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
or expenses (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 Preferred
Securities, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Trust and the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, 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 shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Trust bear to the total Underwriting Compensation received
by the Underwriters, 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 Offerors on the one
hand or by the Underwriters on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Trust, the Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7
were determined by a pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities
and expenses referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
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 of the Preferred Securities underwritten by it and distributed
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 Securities
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 are several in proportion to the
respective numbers of Preferred Securities set forth opposite their
10
names in Schedule I hereto (or such numbers of Preferred Securities
increased as set forth in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or
consent relating to any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent (i) includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding and (ii) does not include
a statement as to or an admission of fault or culpability by or on behalf
of any indemnified party.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution
under this Section 7 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or expenses
are incurred. The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Trust and the
Company set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter, the Trust,
the Company, the Company's directors or officers, the CCC Trustees, or any
person controlling the Company, (ii) acceptance of any Preferred Securities
and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the Trust, the Company, the Company's directors or
officers, the CCC Trustees, or any person controlling the Company, shall be
entitled to the benefits of the indemnity, contribution, and reimbursement
agreements contained in this Section 7.
8. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the several Underwriters to purchase and pay for the Securities as provided
herein shall be subject to the accuracy, as of the date of this Agreement
and the Closing Date (as if made at the Closing Date), of the
representations and warranties of the Offerors herein, to the performance
by the Offerors of their obligations hereunder, and to the following
additional conditions:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the registration statement or a post-effective amendment
thereto (or an Additional Registration Statement) to be declared or to
become effective before the offering of the Preferred Securities may
commence, the registration statement or such post-effective amendment or
Additional Registration Statement shall have become effective not later
than 5:30 P.M., New York City time, on the date hereof, or at such later
date and time as shall be consented to in writing by you, and all filings,
if any, required by Rules 424 and 430A under the Securities Act shall have
been timely made; and no stop order suspending the effectiveness of the
registration statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of the Offerors or
any Underwriter, threatened by the Commission, and any request of the
Commission for additional information (to be included in the registration
statement or the Prospectus or otherwise) shall have been complied with to
your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the business or properties of the
Company or its subsidiaries which, in the judgment of a majority in
interest of the Underwriters, including the Representatives, materially
impairs the investment quality of the Preferred Securities, or (ii) any
event or development relating to or involving the Company or any officer or
director of the Company which makes any statement made in the Prospectus
untrue or which, in the opinion of the Company and its counsel or the
Underwriters and their counsel, requires the making of any addition to or
change in the Prospectus in order to state a material fact required by the
Securities Act or any other law to be stated therein or necessary in order
to make the statements therein not misleading, if amending or supplementing
the Prospectus to reflect such event or development would, in your opinion,
as Representatives of the several Underwriters, materially adversely affect
the market for the Preferred Securities.
11
(c) You shall have received an opinion, dated the Closing Date,
of Skadden, Arps, Slate, Xxxxxxx & Xxxx, special counsel to the Offerors,
substantially in the form attached hereto as Exhibit A. Insofar as such
opinion involves factual matters, such counsel may rely, to the extent such
counsel deems proper, upon certificates of officers of the Company, its
subsidiaries and the Trust and certificates of public officials.
(d) You shall have received an opinion, dated the Closing Date,
of Xxxxxxx X. Xxxxxx, III, Esq., Executive Vice President and General
Counsel of the Company, substantially in the form attached hereto as
Exhibit B.
(e) You shall have received an opinion, dated the Closing Date,
of Skadden, Arps, Slate, Xxxxxxx & Xxxx, special tax counsel to the Company
and the Trust, substantially in the form attached hereto as Exhibit C.
(f) You shall have received an opinion, dated the Closing Date,
of Xxxxxx & Xxxxxx, counsel to Chase, substantially in the form attached
hereto as Exhibit D.
(g) You shall have received an opinion, dated the Closing Date,
of Xxxxx Xxxxxxxxxx, counsel for the Underwriters, substantially in the
form attached hereto as Exhibit E.
(h) The Company and the Trust shall each have furnished to a
certificate, dated the Closing Date, and, in the case of the Company,
signed by the Chairman of the Board, any Vice Chairman, the President, any
Executive Vice President, any Vice President, the Treasurer or Xxxxx X.
Xxxxxxxx, a Deputy Treasurer of the Company, and the principal financial or
accounting officer of the Company and, in the case of the Trust, signed by
one of the Regular Trustees to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company or
the Trust, as the case may be, in this Agreement are true and correct
on and as of the Closing Date with the same effect as if made on the
Closing Date, and the Company or the Trust, as the case may be, has
complied in all material respects with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
by it hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
Registration Statement has been issued, and no proceedings for that
purpose have been instituted or, to their knowledge, threatened;
(iii) the Registration Statement, including any supplements
or amendments thereto, does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
the Prospectus, including any supplements or amendments thereto, does
not contain any 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; and since the effective date of the
Registration Statement there has not occurred any event concerning
which information is required to be contained in an amended or
supplemented Prospectus concerning which such information is not
contained therein; and
(iv) there have been no material adverse changes in the
general affairs of the Company and its subsidiaries taken as a whole
or the Trust, as the case may be, or in the financial position as
shown by information contained in the Registration Statement and the
Prospectus, other than changes disclosed in or contemplated by the
Registration Statement and the Prospectus.
(i) You shall have received on the Closing Date a letter from
KPMG Peat Marwick
12
LLP, dated the Closing Date, substantially in the form heretofore approved
by you.
(j) On or after the date of this Agreement no downgrading shall
have occurred in the rating accorded the Preferred Securities or the
Company's debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities
Act).
(k) The Preferred Securities shall have been registered under
the Exchange Act and shall have been listed or approved for listing on the
New York Stock Exchange.
(l) Prior to the Closing Date, the Company shall have furnished
to you such further information, certificates and documents as you may
reasonably request.
The obligations of the Underwriters to purchase any Additional
Preferred Securities hereunder are subject to the satisfaction on and as of
any Option Closing Date of the conditions set forth in this Section 8,
except that, if any Option Closing Date is other than the Closing Date, the
certificates, opinions and letters referred to in this Section 8 shall be
dated the Option Closing Date and shall be revised to reflect the sale of
the Additional Preferred Securities.
9. Expenses. The Company agrees to pay the following costs and
--------
expenses and all other costs and expenses incident to the performance by it
and by the Trust of its and the Trust's respective and joint obligations
hereunder: (i) the preparation, printing or reproduction, and filing
(including filing fees) with the Commission of the registration statement
(including financial statements and exhibits thereto), each Prepricing
Prospectus, the Prospectus, each amendment or supplement to any of them,
this Agreement, the Declaration, the Guarantee, the Indenture and the
Statement of Eligibility and Qualification of each of the Institutional
Trustee, the Guarantee Trustee and the Indenture Trustee; (ii) the printing
(or reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the registration
statement, each Prepricing Prospectus, the Prospectus, the documents
incorporated by reference in the Registration Statement, and all amendments
or supplements to any of them, as may be reasonably requested for use in
connection with the offering and sale of the Preferred Securities; (iii)
the preparation, printing (or reproduction), execution and delivery of the
Declaration, the Guarantee and the Indenture and the preparation, printing,
authentication, issuance and delivery of the Securities, including any
stamp taxes in connection with the original issuance and sale of the
Preferred Securities; (iv) the printing (or reproduction) and delivery of
this Agreement, the preliminary and supplemental Blue Sky Memoranda and all
other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Preferred Securities; (v) the
registration of the Securities under the Exchange Act and the listing of
the Preferred Securities on the New York Stock Exchange; (vi) the
registration or qualification of the Securities for offer and sale under
the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Underwriters relating to the preparation,
printing (or reproduction), and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and qualification);
(vii) the filing fees and the reasonable fees and expenses of counsel for
the Underwriters in connection with any filings required to be made with
the National Association of Securities Dealers, Inc.; (viii) the fees and
expenses of the Institutional Trustee, the Delaware Trustee, the Guarantee
Trustee and the Indenture Trustee; (ix) the fees and expenses associated
with obtaining ratings for the Preferred Securities from nationally
recognized statistical rating organizations; (x) the transportation and
other expenses incurred by or on behalf of representatives of the Offerors
(other than the Underwriters and their representatives) in connection with
presentations to prospective purchasers of the Preferred Securities; and
(xi) the fees and expenses of the Company's accountants and the fees and
expenses of counsel (including local and special counsel) for the Offerors.
10. Effective Date of Agreement. This Agreement shall become
---------------------------
effective: (i) upon the execution and delivery hereof by the parties
hereto; or (ii) if, at the time this Agreement is executed and delivered,
it is necessary for the registration statement or a post-effective
amendment thereto or an
13
Additional Registration Statement to be declared effective before the
offering of the Preferred Securities may commence, when notification of the
effectiveness of the registration statement or such post-effective
amendment has been released by the Commission or, in the case of an
Additional Registration Statement, upon the filing of such Additional
Registration Statement. Until such time as this Agreement shall have
become effective, it may be terminated by the Company or the Trust, by
notifying you, or by you, as Representatives of the several Underwriters,
by notifying the Offerors.
If any one or more of the Underwriters shall fail or refuse to
purchase Firm Preferred Securities which it or they are obligated to
purchase hereunder, and the aggregate number of Firm Preferred Securities
which such defaulting Underwriter or Underwriters are obligated but fail or
refuse to purchase is not more than one-tenth of the aggregate number of
the Firm Preferred Securities, each non-defaulting Underwriter shall be
obligated, severally, in the proportion which the number of Firm Preferred
Securities set forth opposite its name in Schedule I hereto bears to the
aggregate number of Firm Preferred Securities set forth opposite the names
of all non-defaulting Underwriters, to purchase the Firm Preferred
Securities which such defaulting Underwriter or Underwriters are obligated,
but fail or refuse, to purchase. If any Underwriter or Underwriters shall
fail or refuse to purchase Firm Preferred Securities and the aggregate
number of Firm Preferred Securities with respect to which such default
occurs is more than one-tenth of the aggregate number of the Firm Preferred
Securities and arrangements satisfactory to you and the Offerors for the
purchase of such Firm Preferred Securities by one or more non-defaulting
Underwriters or other party or parties approved by you and the Offerors are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the
Offerors. In any such case which does not result in termination of this
Agreement, either you or the Offerors 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. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for
all purposes of this Agreement, any party not listed in Schedule I hereto
who, with your approval and the approval of the Offerors, purchases Firm
Preferred Securities which a defaulting Underwriter is obligated, but fails
or refuses, to purchase.
Any notice under this Section 10 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject
------------------------
to termination in your absolute discretion, without liability on the part
of any Underwriter to the Offerors, by notice to the Offerors, if prior to
the Closing Date or any Option Closing Date (if different from the Closing
Date and then only as to the Additional Preferred Securities) there shall
have occurred: (i) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (ii) any banking moratorium declared by Federal or New York
authorities; or (iii) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if,
in the judgment of a majority in interest of the Underwriters, including
the Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Securities.
Notice of such termination may be given to the Company by telegram,
telecopy or telephone and shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The statements
-----------------------------------------
set forth in the last paragraph on the cover page, the stabilization legend
on the third page, and the statements in the first paragraph, the seventh
paragraph, the ninth paragraph and the tenth paragraph under the caption
"Underwriting" in the Prospectus Supplement and the stabilization legend on
the third page in the Prospectus, constitute the only information furnished
by or on behalf of the Underwriters through you as such information is
referred to in Sections 6(b) and 7 hereof.
14
13. Miscellaneous. Except as otherwise provided herein, notice
-------------
given pursuant to any provision of this Agreement shall be in writing and
shall be delivered (i) if to the Offerors, to the Company, or to the Trust
care of the Company, at the office of the Company at 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx, III, Esq.,
Executive Vice President and General Counsel, with a copy to Skadden, Arps,
Slate, Xxxxxxx & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx X. Xxxxxxx; or (ii) if to you, as Representatives of
the several Underwriters, care of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking Division,
with a copy to General Counsel, Investment Banking Division, and to Xxxxx
Xxxxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxxxx X. Xxxxxx.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Trust, the Company, the Company's directors and
officers, the CCC Trustees, and the other controlling persons referred to
in Section 7 hereof and their respective successors and assigns, to the
extent provided herein, and no other person shall acquire or have any right
under or by virtue of this Agreement. Neither the term "successor" nor the
term "successors and assigns" as used in this Agreement shall include a
purchaser from any Underwriter of any of the Preferred Securities in his
status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be
----------------------------
governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed within the State of
New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in
counterparts, this Agreement shall not become effective unless at least one
counterpart hereof shall have been executed and delivered on behalf of each
party hereto.
15
Please confirm that the foregoing correctly sets forth the
agreement among the Trust, the Company and the several Underwriters.
Very truly yours,
CCC CAPITAL I
By _____________________
as Regular Trustee
By _____________________
as Regular Trustee
Commercial Credit Company
By _____________________
Name:
Title:
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
XXXXX XXXXXX INC.
[CO-MANAGERS]
As Representatives of the Several Underwriters
By XXXXX XXXXXX INC.
By ___________________________
Managing Director
16
SCHEDULE I
CCC CAPITAL I
____% Trust Preferred Securities
NUMBER OF FIRM
UNDERWRITERS PREFERRED SECURITIES
------------ --------------------
Xxxxx Xxxxxx Inc. . . . . . . . .
--------------------------
Total . . . . . . . . . . .
==========================
1
