EXHIBIT 1
$50,000,000 in Aggregate Liquidation Amount
EQUITABLE OF IOWA COMPANIES CAPITAL TRUST II
(A Delaware Trust)
8.424% Series A Capital Securities
(Liquidation Amount $1,000 per Capital Security)
PURCHASE AGREEMENT
__________________
March 31, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
Equitable of Iowa Companies Capital Trust II (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 Code, 12 Del. C. Sections 3801 et seq.) and Equitable of Iowa
Companies, an Iowa corporation (the "Company" and, together with the Trust,
the "Offerors"), confirm their agreement with Xxxxxxx Xxxxx & Co. and Xxxxxxx
Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated (collectively, "Xxxxxxx Xxxxx" or
the "Initial Purchaser"), with respect to the issue and sale by the Trust and
the purchase by the Initial Purchaser of $50,000,000 in aggregate liquidation
amount of the 8.424% Series A Capital Securities (Liquidation Amount $1,000
per Capital Security) representing undivided beneficial interests in the
assets of the Trust (the "Series A Capital Securities").
The Series A Capital Securities will be guaranteed by the Company,
to the extent set forth in the Offering Memorandum (as defined below), with
respect to distributions and amounts payable upon liquidation or redemption
and otherwise under the Series A Capital Guarantee of the Company pursuant to
the Series A Capital Securities Guarantee Agreement (together, the "Series A
Capital Securities Guarantee") to be dated as of the Closing Time (as defined
in Section 2(b) hereof) between the Company and First National Bank of
Chicago, as trustee (the "Guarantee Trustee").
The entire proceeds from the sale of the Series A Capital
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 $51,550,000 in aggregate principal
amount of 8.424% Series A Subordinated Deferrable Interest Debentures due
April 1, 2027 (the "Series A Subordinated Debentures") issued by the Company.
The Series A Capital Securities and the Common Securities will be issued
pursuant to the Amended and Restated Declaration of Trust, to be dated as of
or prior to the Closing Time (the "Declaration"), among the Company, as
Sponsor, Xxxx X. Xxxxxxx, Xxxx X. Xxxxxx and Xxxx X. Xxxxxxxx as
administrative trustees (the "Administrative Trustees"), First National Bank
of Chicago, as property trustee (the "Property Trustee"), and First Chicago
Delaware Inc., as Delaware trustee (the "Delaware Trustee" and, together with
the Property Trustee and the Administrative Trustees, the "Trustees"). The
Common Securities will be guaranteed by the Company, to the extent set forth
in the Offering Memorandum, with respect to distributions and payments upon
liquidation and redemption pursuant to the terms of the Common Securities
Guarantee Agreement(together, the "Common Securities Guarantee") to be dated
as of the Closing Time between the Company and the Trust. The Series A
Subordinated Debentures will be issued pursuant to an indenture, dated as of
March 31, 1997 (together with other amendments or supplements thereto, the
"Indenture") between the Company and First National Bank of Chicago as
trustee (the "Debenture Trustee"). The Series A Capital Securities issued in
book-entry form will be issued to Cede & Co. as nominee of The Depository
Trust Company ("DTC") pursuant to a letter agreement, to be dated as of the
Closing Time (the "DTC Agreement"), among the Trust, the Property Trustee and
DTC.
The Series A Capital Securities, the Series A Capital Securities
Guarantee and the Series A Subordinated Debentures are collectively referred
to herein as the "Series A Securities". Capitalized terms used herein without
definition have the respective meanings specified in the Offering Memorandum.
The Series A Capital Securities will be subject to the registration
rights set forth in a registration rights agreement (the "Registration Rights
Agreement"), to be executed on and dated as of the Closing Time substantially
in the form of Exhibit A. Pursuant to the Registration Rights Agreement, the
Trust and the Company will agree, among other things, to file with the
Securities and Exchange Commission (the "Commission") (i) a registration
statement (the "Exchange Offer Registration Statement") under the Securities
Act of 1933, as amended (the "1933 Act") relating to the 8.424% Series B
Capital Securities (Liquidation Amount $1,000 per Capital Security) (the
"Series B Capital Securities"), the Series B Capital Securities Guarantee of
the Company pursuant to the Series B Capital Securities Guarantee Agreement
(together, the "Series B Capital Securities Guarantee"), and the 8.424%
Series B Subordinated Deferrable Interest Debentures due April 1, 2027 (the
"Series B Subordinated Debentures" and, collectively with the Series B
Capital Securities and the Series B Capital Securities Guarantee, the "Series
B Securities"), to be offered in exchange for the Series A Securities (such
offer to exchange being referred to herein as the "Exchange Offer") and/or
(ii) a shelf registration statement pursuant to Rule 415 under the 1933 Act
(the "Shelf Registration Statement") relating to the resale by certain
holders of the Series A Securities.
The Series A Securities and the Series B Securities are jointly
referred to as the "Securities"; the Series A Capital Securities and the
Series B Capital Securities are jointly referred to as the "Capital
Securities"; the Series A Subordinated Debentures and the Series B
Subordinated Debentures are jointly referred to as the "Subordinated
Debentures"; and the Series A Capital Securities Guarantee and the Series B
Capital Securities Guarantee are jointly referred to as the "Capital
Securities Guarantees." The Indenture, the Declaration, the Registration
Rights Agreement, the DTC Agreement, the Series A Capital Securities
Guarantee and this Agreement are hereinafter referred to collectively as the
"Operative Documents."
The Offerors understand that the Initial Purchaser proposes to make
an offering of the Series A Capital Securities (as guaranteed by the Series A
Capital Securities Guarantee) on the terms and in the manner set forth herein
and agree that the Initial Purchaser may resell in accordance with applicable
law, subject to the conditions set forth herein, all or a portion of the
Capital Securities to purchasers ("Subsequent Purchasers") at any time after
the date of this Agreement. The Series A Capital Securities are to be offered
and sold through the Initial Purchaser without being registered under the
1933 Act, in reliance upon exemptions therefrom. Pursuant to the terms of
the Series A Capital Securities, investors that acquire Series A Capital
Securities may only resell or otherwise transfer such Capital Securities if
such Capital Securities are hereafter registered under the 1933 Act or if an
exemption from the registration requirements of the 1933 Act is available
(including the exemption afforded by Rule 144A ("Rule 144A") of the rules and
regulations promulgated by the Commission under the 1933 Act (the "1933 Act
Regulations")).
The Offerors will deliver to the Initial Purchaser, as soon as
practicable, but not later than April 1, 1997, copies of an offering
memorandum for use by the Initial Purchaser in connection with its
solicitation of purchases of, or offering of, the Series A Capital Securities
(the "Offering Memorandum"). "Offering Memorandum" means, with respect to
any date or time referred to in this Agreement, the most recent offering
memorandum (or any amendment or supplement to such document), including
exhibits thereto and any documents incorporated therein by reference, which
has been prepared and delivered by the Offerors to the Initial Purchaser in
connection with its solicitation of purchases of, or offering of, the Series
A Capital Securities.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," "specified"
or "stated" in the Offering Memorandum (including other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which are incorporated by reference in the
Offering Memorandum; and all references in this Agreement to amendments or
supplements to the Offering Memorandum shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as
amended (the "1934 Act") which is incorporated by reference in the Offering
Memorandum.
SECTION 1. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant to
the Initial Purchaser as of the date hereof and as of the Closing Time referred
to in Section 2(b) hereof, and agree with the Initial Purchaser as follows:
(i) The Offerors have not, directly or indirectly, solicited
any offer to buy or offered to sell, and will not, directly or indirectly,
solicit any offer to buy or offer to sell, in the United States or to any
United States citizen or resident, any security which is or would be integrated
with the sale of the Series A Capital Securities in a manner that would require
the Series A Capital Securities to be registered under the 1933 Act.
(ii) The Offering Memorandum as of its date does not, and as of
the Closing Time will not, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therin, in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in this
subsection shall not apply to any statements contained in or omitted from the
Offering Memorandum made in reliance upon and in conformity with information
furnished to the Offerors in writing by the Initial Purchaser expressly for use
in the Offering Memorandum.
(iii) Each of the Capital Securities, the Capital Securities
Guarantees and the Subordinated Debentures satisfy the eligibility requirements
of Rule 144A(d)(3) under the 1933 Act.
(iv) The documents incorporated or deemed to be incorporated by
reference in the Offering Memorandum at the time they were or hereafter are
filed with the Commission complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read together
with the other information in the Offering Memorandum, at the date thereof
and at the Closing Time, do not and will not include 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.
(v) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the Offering
Memorandum are independent auditors with respect to the Company under Rule
101 of the AICPA's Code of Professional Conduct and its interpretations and
rulings.
(vi) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's authorization; and (ii) assets are
safeguarded and transactions are recorded to permit preparation of financial
statements in conformity with generally accepted accounting principles and,
as of the Closing Time, the Company will continue to maintain such a system.
(vii) The consolidated financial statements, together with the
related schedules and notes thereto included in the Offering Memorandum,
present fairly in all material respects the financial position of the Company
and its Subsidiaries (as defined below) at the dates indicated and the
consolidated statement of income, stockholders' equity and cash flows of the
Company and its Subsidiaries for the periods specified; said consolidated
financial statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved except as noted therein. The supporting schedules, if any,
included in the Offering Memorandum present fairly the information required
to be stated therein. The selected financial data included in the Offering
Memorandum present fairly the information shown therein and have been
compiled on a basis consistent with that of the consolidated audited
financial statements included in the Offering Memorandum except as noted
therein.
(viii) Since the date as of which information is given in the
Offering Memorandum, and except as otherwise described or stated therein, (A)
there has been no material adverse change and no development which could
reasonably be expected to result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Trust (a "Trust Material Adverse Effect") or the Company and
its Subsidiaries (as defined below) considered as one enterprise (a "Company
Material Adverse Effect," together with a Trust Material Adverse Effect, a
"Material Adverse Effect"), whether or not arising in the ordinary course of
business, (B) there have been no transactions entered into by the Trust or
the Company or any of its Subsidiaries which are material with respect to the
Trust or the Company and its Subsidiaries considered as one enterprise, other
than those in the ordinary course of business and (C) there has not been any
material change in the long term debt of the Company.
(ix) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of Iowa,
with corporate power and authority to own, lease and operate its properties and
to conduct its business as presently conducted and as described in the Offering
Memorandum, to enter into and perform its obligations under each of the
Operative Documents, to hold the Common Securities issued by the Trust, to
issue and to deliver the Subordinated Debentures, the Capital Securities and
the Capital Securities Guarantees; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where
the failure to so qualify or be in good standing would not have a Company
Material Adverse Effect.
(x) Each of the corporations of which a majority of the
outstanding voting equity securities are owned, directly or indirectly, by the
Company ("Subsidiaries") has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own, lease and
operate its properties and to conduct its business as presently conducted and
as described in the Offering Memorandum, and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the failure
to so qualify or be in good standing would not have a Company Material
Adverse Effect.
(xi) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Offering Memorandum under the caption
"Capitalization of the Company"; since the date indicated in the Offering
Memorandum there has been no change in the consolidated capitalization of the
Company and its Subsidiaries (other than changes in outstanding Common Stock
resulting from employee benefit plan or dividend reinvestment and stock
purchanse plan transactions); and all of the issued and outstanding capital
stock of the Company have been duly authorized and validly issued, are fully
paid and non-assessable and conform to the descriptions thereof contained in
the Offering Memorandum.
(xii) Each of Equitable Life Insurance Company of Iowa
(Equitable Life"), USG Annuity & Life Company ("USG"), Golden American Life
Insurance Company ("Golden American") and First Golden American Life Insurance
Company of New York ("First Golden"), and each other Subsidiary of the Company,
if any, which is engaged in the business of insurance or reinsurance
(collectively, the "Insurance Subsidiaries") holds such insurance licenses,
certificates and permits from governmental authorities (including, without
limitation, from the insurance regulatory agencies of the various
jurisdictions where it conducts business (the "Insurance Licenses")) as are
necessary to the conduct of its business as described in the Offering
Memorandum; the Company and each Insurance Subsidiary have fulfilled and
performed all obligations necessary to maintain the Insurance Licenses;
except as disclosed in the Offering Memorandum, there is no pending or, to
the knowledge of the Company, threatened action, suit, proceeding or
investigation that could reasonably be expected to result in the revocation,
termination or suspension of any Insurance License; except as disclosed in
the Offering Memorandum, no insurance regulatory agency or body has issued,
or commenced any proceeding for the issuance of, any order or decree
impairing, restricting or prohibiting the payment of dividends by any
Insurance Subsidiary to its parent.
(xiii) Except as disclosed in the Offering Memorandum, the Company
and the Insurance Subsidiaries have made no material changes in their insurance
reserving practices since the most recent audited financial statements
included or incorporated in the Offering Memorandum.
(xiv) All reinsurance treaties and arrangements to which any
Insurance Subsidiary is a party are in full force and effect and no Insurance
Subsidiary is in violation of or in default in the performance, observance or
fulfillment of, any obligation, agreement, covenant or condition contained
therein, except to the extent any such violation or default would not have a
material adverse effect on such Insurance Subsidiary; no Insurance Subsidiary
has received any notice from any of the other parties to such treaties,
contracts or agreements that such other party intends not to perform such
treaty and, to the best knowledge of the Company and the Insurance
Subsidiaries, the Company and the Insurance Subsidiaries have no reason to
believe that any of the other parties to such treaties or arrangements will
be unable to perform such treaty or arrangement except to the extent
adequately and properly reserved for in the consolidated financial statements
of the Company included in the Offering Memorandum.
(xv) The statutory financial statements of the Insurance
Subsidiaries from which certain ratios and other statistical data included or
incorporated in the Offering Memorandum have been derived, have for each
relevant period been prepared in conformity with statutory accounting
principles or practices required or permitted by the National Association of
Insurance Commissioners and by the appropriate Insurance Department of the
jurisdiction of domicile of each Insurance Subsidiary, and such statutory
accounting practices have been applied on a consistent basis throughout the
periods involved, except as may otherwise be indicated therein or in the notes
thereto, and present fairly the statutory financial position of the Insurance
Subsidiaries as of the dates thereof, and the statutory basis results of
operations of the Insurance Subsidiaries for the periods covered thereby.
(xvi) 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 its properties and to conduct its business as described in
the Offering Memorandum and to enter into and perform its obligations under
this Agreement, the Series A Capital Securities, the Common Securities, the
Declaration and the Registration Rights Agreement; the Trust is duly
qualified to transact business as a foreign corporation and is in good
standing in each jurisdiction in which such qualification is necessary,
except to the extent that the failure to so qualify or be in good standing
would not have a Trust Material Adverse Effect; the Trust is not a party to
or otherwise bound by any agreement other than those described in the
Offering Memorandum; the Trust is and will under current law be classified
for United States federal income tax purposes as a grantor trust and not as
an association taxable as a corporation; and as of the Closing Time the Trust
is and will be treated as a subsidiary of the Company pursuant to generally
accepted accounting principles.
(xvii) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Offering Memorandum, will be validly
issued and will represent undivided common beneficial interests in the assets
of the Trust and will conform in all material respects to the description
therof contained in the Offering Memorandum; the issuance of the Common
Securities is not subject to preemptive or other similar rights; and, at the
Closing Time, all of the issued and outstanding Common Securities of the Trust
will be directly or indirectly owned by the Company, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equitable
right.
(xviii) This Agreement has been duly authorized and, at the Closing
Time will have been duly executed and delivered by the Company and the Trust;
(xix) The Declaration has been duly authorized by the Company
and, at theClosing Time, will have been duly executed and delivered by the
Company and the Administrative Trustees and assuming the due authorization,
execution and delivery of the Declaration by the Delaware Trustee and the
Property Trustee, the Declaration will, at the Closing Time, be a valid and
binding obligation of the Company and the Administrative Trustees, enforceable
against the Company and the Administrative Trustees in accordance with its
terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity) (the "Bankruptcy Exceptions"); and the
Declaration will conform in all material respects to the description thereof
in the Offering Memorandum.
(xx) The Series A Capital Securities have been duly authorized
and, when issued and delivered by the Trust pursuant to this Agreement against
payment therefore as provided herein, will be validly issued and fully paid and
nonassessable undivided beneficial interests in the assets of the Trust, and
will conform in all material respects to the description thereof in the
Offering Memorandum; the issuance of the Series A Capital Securities is not
subject to preemptive or other similar rights; and the Series B Capital
Securities have been duly authorized by the Trust and, in the event of the
consummation of the Exchange Offer, will be validly issued and fully paid and
nonassessable undivided common beneficial interests in the assets of the
Trust; and (subject to the terms of the Declaration) holders of Series A
Capital Securities will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
incorporated under the laws of the State of Delaware.
(xxi) Each of the Series A Capital Securities Guarantee, the
Series B Capital Securities Guarantee and the Common Guarantee has been duly
authorized by the Company and, at the Closing Time, the Series A Capital
Securities Guarantee will have been duly executed and delivered by the
Company and assuming due authorization, execution and delivery of the Series
A Capital Securities Guarantee by the Guarantee Trustee, will constitute a
valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except to the extent that enforcement thereof
may be limited by the Bankruptcy Exceptions; and the Series A Capital
Securities Guarantee will conform in all material respects to the description
thereof in the Offering Memorandum. In the event the Exchange Offer is
consummated, the Series B Capital Securities Guarantee will have been duly
executed and delivered by the Company and (assuming due authorization,
execution and delivery of the Series B Capital Securities Guarantee by First
National Bank of Chicago as trustee, (the "Series B Capital Securities
Guarantee Trustee")), will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions; and the Series B Capital Securities Guarantee will have been duly
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(xxii) The Indenture has been duly authorized by the Company and,
at the Closing Time, will have been duly executed and delivered by the Company
and, assuming due authorization, execution and delivery of the Indenture by the
Debenture Trustee, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
to the extent enforcement thereof may be limited by the Bankruptcy
Exceptions; the Indenture will conform in all material respects to the
description thereof in the Offering Memorandum. In the event the Exchange
Offer is consummated, the Indenture will have been duly qualified under the
Trust Indenture Act.
(xxiii) The issuance and delivery of the Subordinated Debentures
have been duly authorized by the Company and, at the Closing Time, the Series A
Subordinated Debentures will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered
against payment therefor as described in the Offering Memorandum, will
constitute valid and binding obligations of the Company; and the Series B
Subordinated Debentures have been duly authorized by the Company and, when
duly executed by the Company and authenticated in the manner provided in the
Indenture, and delivered in exchange for the Series A Subordinated Debentures
will constitute valid and binding obligations of the Company, in each case
enforceable against the Company in accordance with their terms, except to the
extent enforcement thereof may be limited by the Bankruptcy Exceptions. The
Subordinated Debentures will conform in all material respects to the
description thereof in the Offering Memorandum; and the Subordinated
Debentures will be in the form contemplated by, and entitled to the benefits
of, the Indenture.
(xxiv) At the Closing Time, the Registration Rights Agreement will
have been duly authorized, executed and delivered by each of the Trust and the
Company and, assuming the due authorization, execution and delivery thereof
by the other parties thereto, will constitute the valid and binding
obligation of each of the Trust and the Company enforceable against each of
the Trust and the Company in accordance with the terms thereof, except to the
extent enforcement thereof may be limited by the Bankruptcy Exceptions; and
the Registration Rights Agreement will conform in all material respects to
the description thereof in the Offering Memorandum.
(xxv) The Series A Subordinated Debentures are subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Company.
(xxvi) Each of the Administrative Trustees of the Trust is an
officer of the Company and has been duly authorized by the Company to execute
and deliver the Declaration.
(xxvii) None of the Offerors is an "investment company" or a
"company controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxviii) None of the Company, any Subsidiary or the Trust is in
violation of its charter, bylaws, certificate or declaration of trust, as
applicable, or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to which
it is a party or by which it may be bound or to which any of its properties or
assets may be subject, except for such violations or defaults that would not
have a Material Adverse Effect. The execution and delivery of the Operative
Documents, the issuance and delivery of the Series A Capital Securities, the
Series A Capital Securities Guarantee, the Series A Subordinated Debentures,
the Common Securities Guarantee and the consummation of the transactions
contemplated herein and therein have been duly authorized by all necessary
corporate action on the part of the Company and the Trust and do not and will
not result in any violation of the charter or by-laws of the Company or any
Subsidiary nor any violation of the Declaration or Trust Certificate, and do
not and will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company, the Trust or any Subsidiary under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which the Company, the Trust or any Subsidiary is a party or by which it may
be bound or to which any of its properties or assets may be subject (except
for such conflicts, breaches or defaults or liens, charges or encumbrances
that would not have a Material Adverse Effect) or (B) any existing applicable
law, rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company, the Trust or any Subsidiary or any of their
respective properties or assets.
(xxix) No order, license, consent, authorization or approval of,
or exemption by, or the giving of notice to, or the registration with any
federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, and no filing, recording,
publication or registration in any public office or any other place, was or
is now required in connection with the issuance and sale of the Series A
Capital Securities, the Common Securities, the Series A Subordinated
Debentures, the Series A Capital Securities Guarantee or the Common
Securities hereunder, except for such as may be required under the 1933 Act,
the 1934 Act or state securities or insurance laws.
(xxx) The Series A Capital Securities are eligible for resale
pursuant to Rule 144A and will not be, at the Closing Time, of the same class
(within the meaning of Rule 144A) as securities listed on a national securities
exchange registered under Section 6 of the 1934 Act or quoted on a U.S.
automated interdealer quotation system.
(xxxi) None of the Company, its affiliates (as such term is
defined in Rule 501(b) under the 1933 Act for any person or entity,
"Affiliates"), or any person acting on its or any of their behalf (other than
the Initial Purchaser or any person acting on behalf of the Initial Purchaser,
as to whom the Company makes no representation) has engaged, or will engage, in
connection with the offering of the Series A Capital Securities, in any form
of general solicitation or general advertising within the meaning of Section
502(c) under the 1933 Act.
(xxxii) Subject to compliance by the Initial Purchaser with the
representations and warranties set forth in Section 2 and the procedures set
forth in Section 6, it is not necessary on connection with the offer, sale
and delivery of the Series A Capital Securities to the Initial Purchaser and
each Subsequent Purchaser in the manner contemplated by this Agreement and
the Offering Memorandum to register the Series A Capital Securities under the
1933 Act and neither the Company nor the Trust shall take any action to cause
the resale of the Series A Capital Securities by the Initial Purchaser to
violate Section 5 of the 1933 Act.
(xxxiii) Other than as set forth in the Offering Memorandum, there
are no legal or governmental proceedings pending to which the Company or any of
its Subsidiaries is a party or of which any property of the Company or any of
its Subsidiaries is the subject which, if determined adversely to the Company
or any of its Subsidiaries, would individually or in the aggregate have a
material adverse effect on the consolidated position, stockholders' equity or
results of operations of the Company and its Subsidiaries considered as one
enterprise; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(b) Any certificate signed by any trustee of the Trust or any
officer of the Company and delivered to the Initial Purchaser or to counsel for
the Initial Purchaser shall be deemed a representation and warranty by the
Trust or the Company, as the case may be, to the Initial Purchaser as to the
matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchaser; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to the Initial Purchaser and the Initial Purchaser agrees to
purchase from the Trust, 50,000 of the Series A Capital Securities at a price
of $1,000 per Series A Capital Security.
(b) Deliveries of a certificate for the account of the Initial
Purchaser for the Series A Capital Securities shall be made at the office of
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 and payment of the purchase price for the Series A Capital
Securities shall be made by the Initial Purchaser to the Trust by wire
transfer of immediately available funds contemporaneous with closing at such
place as shall be agreed upon by the Initial Purchaser and the Offerors, at
10:00 a.m. (New York time) on April 3, 1997 or such other time not later than
ten business days after such date as shall be agreed upon by the Initial
Purchaser and the Offerors (such time and date of payment and delivery being
herein called the "Closing Time").
Certificates for the Series A Capital Securities shall be in such
denominations and registered in such names as the Initial Purchaser may
request in writing at least one business day before the Closing Time. The
certificates representing the Series A Capital Securities which are not
resold to institutional "accredited investors" shall be registered in the
name of Cede & Co. pursuant to the DTC Agreement and shall be made available
for examination and packaging by the Initial Purchaser in The City of New
York not later than 10:00 A.M. on the last business day prior to the Closing
Time.
(c) As compensation to the Initial Purchaser for its commitment
hereunder and in view of the fact that the proceeds of the sale of the Series
A Capital Securities will be used to purchase Series A Subordinated
Debentures of the Company, the Company hereby agrees to pay at the Closing
Time to the Initial Purchaser, $10 per Series A Capital Security to be
delivered by the Trust hereunder at the Closing Time.
(d) The Initial Purchaser represents and warrants to, and
agrees with, the Company that it is a Qualified Institutional Buyer (as defined
in Section 6(a)(i)) and an Institutional Accredited Investor (as defined in
Section 6(a)(i)).
SECTION 3. Covenants of the Offerors.
Each of the Offerors jointly and severally agrees with the Initial
Purchaser as follows:
(a) The Offerors, as promptly as possible, will furnish to
the Initial Purchaser, without charge, such number of copies of the Offering
Memorandum and any amendments and supplements thereto and documents
incorporated by reference therein as the Initial Purchaser may reasonably
request.
(b) The Offerors will immediately notify the Initial Purchaser,
and confirm such notice in writing, of (x) any filing made by the Offerors of
information relating to the offering of the Series A Capital Securities to
the Initial Purchaser with any securities exchange or any other regulatory
body in the United States or any other jurisdiction, and (y) prior to the
completion of the placement of the Series A Capital Securities by the Initial
Purchaser as evidenced by a notice in writing from the Initial Purchaser to
the Offerors, any material changes in or affecting the earnings, business
affairs or business prospects of the Trust, or the Company and its
Subsidiaries considered as one enterprise, which (i) make any statement in
the Offering Memorandum false or misleading or (ii) are not disclosed in the
Offering Memorandum. In such event or if during such time any event shall
occur as a result of which it is necessary, in the reasonable opinion of the
Company, its counsel or counsel for the Initial Purchaser, to amend or
supplement the Offering Memorandum in order that the Offering Memorandum not
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances then existing, the Company will forthwith amend or
supplement the Offering Memorandum by preparing and furnishing to the Initial
Purchaser an amendment or amendments of, or a supplement or supplements to,
the Offering Memorandum (in form and substance satisfactory in the reasonable
opinion of counsel for the Initial Purchaser) so that, as so amended or
supplemented, the Offering Memorandum will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing at the
time it is delivered to a Subsequent Purchaser, not misleading.
(c) The Offerors will advise the Initial Purchaser promptly of
any proposal to amend or supplement the Offering Memorandum and will not effect
such amendment or supplement without the consent of the Initial Purchaser,
which consent shall not be unreasonably withheld. Neither the consent of the
Initial Purchaser, nor the Initial Purchaser's delivery of any such amendment
or supplement, shall constitute a waiver of any of the conditions set forth
in Section 5 hereof.
(d) The Offerors shall take all reasonable action necessary to
enable Standard & Poor's Ratings Services, a division of McGraw Hill, Inc.
("S&P"), and Xxxxx'x Investors Service, Inc. ("Moody's") to provide their
respective credit ratings of the Series A Capital Securities.
(e) The Offerors will cooperate with the Initial Purchaser and
use reasonable efforts to permit the Series A Capital Securities to be eligible
for clearance and settlement through the facilities of DTC.
(f) The Trust will use the net proceeds received by it from the
sale of the Series A Capital Securities, and the Company will use the proceeds
received by it from the sale of the Series A Subordinated Debentures, in the
manners specified in the Offering Memorandum under "Use of Proceeds".
(g) The Offerors will endeavor, in cooperation with the Initial
Purchaser, to qualify, or confirm or perfect an exemption regarding, the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Initial Purchaser
may designate; provided, however, that the Offerors shall not be obligated to
qualify as a foreign corporation in any jurisdiction in which they are not so
qualified. In each jurisdiction in which the Series A Capital Securities
have been so qualified, the Offerors will file such statements and reports as
may be required by the laws of such jurisdiction to continue such
qualification in effect for so long as may be required in connection with
distribution of the Securities.
(h) Prior to 30 days after the date hereof, neither the Trust
nor the Company will, without the prior written consent of the Initial
Purchaser, directly or indirectly, issue, sell, offer or agree to sell, grant
any option for the sale of, or otherwise dispose of, Capital Securities, any
security convertible into exchangeable or exercisable for Capital Securities or
the Subordinated Debentures or any debt securities substantially similar
(including provisions with respect to the deferral of interest) to the
Subordinated Debentures or any equity security substantially similar to the
Capital Securities (except for the Securities issued pursuant to this
Agreement) or enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Capital Securities, whether such swap
transaction is to be settled by delivery of Capital Securities or such other
securities, in cash or otherwise; provided, however, that the foregoing
restrictions shall not apply to any disposal of the Subordinated Debentures
following any liquidation of the Trust.
(i) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
An Act Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date of the
Offering Memorandum or if the information reported in the Offering
Memorandum, if any, concerning the Company's business with Cuba or with any
person or affiliate located in Cuba changes in any material way, the Company
will provide the Florida Department of Banking and Finance (the "Department")
notice of such business or change, as appropriate, in a form acceptable to
the Department.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and any filing of the Offering Memorandum (including
financial statements and any schedules or exhibits and any document
incorporated therein by reference) and of each amendment or supplement
thereto, (ii) the preparation, printing and delivery to the Initial Purchaser
of this Agreement, the Operative Documents and such other documents as may be
required in connection with the offering, purchase, sale and delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates
for the Series A Capital Securities, the Series A Capital Securities
Guarantee and the Series A Subordinated Debentures to the Initial Purchaser,
(iv) the fees and disbursements of the Company's counsel, accountants and
other advisors, (v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(g), including filing fees
and the fees and disbursements of counsel for the Initial Purchaser in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any Legal Investment Survey, (vi) rating agency fees, (vii) the
fees and expenses of any trustee appointed under any of the Operative
Documents or the Capital Securities Guarantees, including the fees and
disbursements of counsel for such trustees in connection with the Operative
Documents, (viii) the printing and delivery to the Initial Purchaser of
copies of the Blue Sky Survey and any Legal Investment Survey and (ix) the
cost of qualifying the Capital Securities with the DTC.
(b) Termination of Agreement. If this Agreement is terminated
by the Initial Purchaser in accordance with the provisions of Section 5 or
Section 10(a)(i) hereof, the Company shall reimburse the Initial Purchaser for
all of its out-of-pocket expenses, including the reasonable fees and
disbursements of LeBoeuf, Lamb, Xxxxxx & XxxXxx L.L.P., counsel for the Initial
Purchaser.
SECTION 5. Conditions of Initial Purchaser's Obligations. The
obligations of the Initial Purchaser hereunder are subject to the accuracy of
the representations and warranties of the Offerors contained in Section 1
hereof or in certificates of any Trustee of the Trust, officer of the Company
or any of its subsidiaries delivered pursuant to the provisions hereof, to the
performance by the Offerors of their obligations hereunder, and to the
following further conditions:
(a) At the Closing Time the Initial Purchaser shall have
received:
(1) The favorable opinion, dated as of the Closing Time,
of Nyemaster, Xxxxx, XxXxxxxxxx, Xxxxxx, Xxxx, Xxxxxxx & X'Xxxxx, P.C., counsel
for the Company, in form and substance satisfactory to counsel for the Initial
Purchaser, to the effect that:
(i) Each of the Company and Equitable Life, Equitable
American Insurance Company, Equitable Investment Services, Inc. and Locust
Street Securities, Inc. has been duly incorporated and is validly existing
under the laws of the State of Iowa, USG has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Oklahoma, Golden American has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware and
each of EIC Variable, Inc. and First Golden has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
State of New York, in each case with corporate power and authority to carry
on the business in which it is engaged and to own, lease and operate its
properties and conduct its business as described in the Offering Memorandum;
(ii) The capital stock of the Company conforms in all
material respects to the description thereof in the Offering Memorandum;
(iii) The Trust is not required to be qualified and in
good standing as a foreign company in Iowa, except to the extent that the
failure to so qualify or be in good standing would not have a Trust Material
Adverse Effect; and the Trust is not a party to or otherwise bound by any
agreement other than those described in the Offering Memorandum;
(iv) The Declaration has been duly authorized,
executed and delivered by the Company and the Trustees and is a valid and
binding obligation of the Company, enforceable against the Company and each of
the Administrative Trustees in accordance with its terms, except as enforcement
thereof may be limited by the Bankruptcy Exceptions;
(v) All legally required proceedings in connection
with the authorization, issuance and validity of the Series A Securities and
the sale of the Series A Securities in accordance with this Agreement (other
than the filing of post-issuance reports, the non-filing of which would not
render the Series A Securities invalid) have been taken and all legally
required orders, consents or other authorizations or approvals of any other
public boards or bodies in connection with the authorization, issuance and
public boards or Series A Securities and the sale of the Series A Securities in
accordance with this Agreement (other than in connection with or in compliance
with the provisions of the securities or Blue Sky laws of any jurisdictions, as
to which no opinion need be expressed) have been obtained and are in full force
and effect;
(vi) Each of the Series A Capital Securities, the
Series A Capital Securities Guarantee and the Series A Subordinated Debenture
satisfies the eligibility requirements of Rule 144A(d)(3) under the 1933 Act.
(vii) Each of the documents incorporated by reference
in the Offering Memorandum at the time they were filed or last amended (other
than the financial statements and the notes thereto, the financial schedules,
and any other financial or statistical data included or incorporated by
reference therein, as to which such counsel need express no belief) complied as
to form in all material respects with the requirements of the 1934 Act and the
1934 Act Regulations, as applicable;
(vii) The Common Securities, the Capital Securities,
the Subordinated Debentures, the Capital Securities Guarantees, the Common
Securities Guarantee, the Declaration and the Indenture conform in all material
respects to the descriptions thereof contained in the Offering Memorandum;
(ix) The descriptions in the Offering Memorandum and
each amendment or supplement thereto of regulations, statutes, legal and
governmental proceedings and contracts and other documents are accurate in all
material respects and fairly present the information required to be shown and
such counsel does not know of any legal or governmental proceedings required to
be described in the Offering Memorandum or any amendment or supplement thereto
that are not so described (or the descriptions of which are not incorporated
by reference) or of any contracts or documents of a character required to be
described in the Offering Memorandum or any amendment or supplement thereto
that are not so described (or the descriptions of which are not incorporated
by reference).
(x) All of the issued and outstanding Common
Securities of the Trust are directly owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equitable
right;
(xi) This Agreement and the Registration Rights
Agreement have been duly authorized, executed and delivered by each of the
Trust and the Company and constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions;
(xii) The Capital Securities Guarantees and the
Common Securities Guarantee have been duly authorized by the Company and the
Series A Guarantee has been duly executed and delivered by the Company and
assuming it is duly authorized, executed, and delivered by the Guarantee
Trustee, constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by Bankruptcy Exceptions. In the event the
Exchange Offer is consummated pursuant to the terms of such Exchange Offer, the
Series B Guarantee, assuming it is duly executed and delivered by the Company
and duly authorized, executed, and delivered by the Series B Guarantee Trustee,
will constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions
(xiii) The Indenture has been duly executed and
delivered by the Company and, assuming due authorization, execution, and
delivery thereof by the Debenture Trustee, is a valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions;
(xiv) The issuance and delivery of the Series A
Subordinated Debentures have been duly authorized by the Company and the
Series A Subordinated Debentures have been duly executed and delivered by the
Company and, when authenticated by the Debenture Trustee in the manner provided
for in the Indenture and delivered against payment therefor as provided in the
Offering Memorandum, constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by the Bankruptcy Exceptions;
(xv) The Series B Subordinated Debentures have been
duly authorized by the Company and when executed by the Company and
authenticated by the Debenture Trustee in the manner provided for in the
Indenture and delivered in exchange for the Series A Subordinated Debentures
pursuant to the terms of the Exchange Offer, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof may be limited by
the Bankruptcy Exceptions;
(xvi) Neither the Company nor the Trust is an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the 1940 Act;
(xvii) The execution, delivery and performance of this
Agreement, the Operative Documents and the issuance and delivery of the Capital
Securities, the Capital Securities Guarantees, the Common Securities Guarantee,
the Subordinated Debentures and the consummation of the transactions
contemplated herein and therein; and the compliance by each of the Offerors
with their respective obligations hereunder and thereunder do not and will not
conflict with, result in a breach of, or constitute a default under the charter
or by-laws of the Company or any of its Subsidiaries or the terms of any
indenture or other agreement or instrument known to such counsel and to which
the Company or any of its Subsidiaries is a party or bound, or result in a
violation of any statute or regulation, or any order or decree known to such
counsel to be applicable to the Company or any of its Subsidiaries of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its Subsidiaries;
(xiii) Each Insurance Subsidiary holds such insurance
licenses, certificates and permits from governmental authorities (including,
without limitation, Insurance Licenses) which are necessary to the conduct of
its business as described in the Offering Memorandum; to the best knowledge of
such counsel, there is no pending or threatened action, suit, proceeding or
investigation that could reasonably be expected to result in the revocation,
termination or suspension of any Insurance License; and, except as disclosed
in the Offering Memorandum, to the knowledge of such counsel, no insurance
regulatory agency or body has issued, or commenced any proceeding for the
issuance of, any order or decree impairing, restricting or prohibiting the
payment of dividends by any Insurance Subsidiary to its parent; and
(xix) To the best knowledge of such counsel, all
reinsurance treaties and arrangements to which any Insurance Subsidiary is a
party are in full force and effect and no Insurance Subsidiary is in violation
of or in default in the performance, observance or fulfillment of, any
obligation, agreement, covenant or condition contained therein, except to the
extent any such violation or default would not have a material adverse effect
on such Insurance Subsidiary.
Moreover, such counsel shall confirm that nothing has come to such
counsel's attention that would lead such counsel to believe that the Offering
Memorandum (except for financial statements and related schedules included or
incorporated by reference therein as to which such counsel need not express
an opinion) as of the date thereof does not, and as of the Closing Time will
not, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading (except such
counsel need express no opinion as to statements contained in or omitted from
such documents made in reliance upon and in conformity with information
furnished to the Offerors in writing by the Initial Purchaser expressly for
use in such documents).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of Delaware, Iowa and
the federal law of the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel of good standing
whom they believe to be reliable and who are satisfactory to counsel for the
Initial Purchaser and (B) as to matters of Delaware Law, upon the opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Offerors, in
which case the opinion shall state that such counsel believes that you and
such counsel are entitled to so rely.
(2) The Offerors shall have furnished to the Initial
Purchaser the opinion of Xxxx, Xxxxxxx, Xxxxx & Xxxxxxxxxx, counsel for the
Offerors, covering matters set forth in subparagraphs (b)(1)(xi) (relating
solely to the enforceability of the Registration Rights Agreement), (xiii),
(xiv) and (xv) above.
(3) The favorable opinion, dated as of Closing Time, of
Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special Delaware counsel to the Offerors, in
form and substance satisfactory to counsel for the Initial Purchaser, to the
effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act, and all
filings required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust have been made.
(ii) Under the Delaware Act and the Declaration, the
Trust has the power and authority to own property and conduct its business, all
as described in the Offering Memorandum.
(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, subject, as to
enforcement, to (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance and other similar laws
relating to or affecting the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding in
equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification and contribution.
(iv) Under the Delaware Act and the Declaration, the
Trust has the power and authority to (i) execute and deliver, and to perform
its obligations under, this Agreement and the Registration Rights Agreement and
(ii) issue, and perform its obligations under, the Capital Securities and
Common Securities.
(v) Under the Delaware Act and the Declaration, the
execution and delivery by the Trust of this Agreement and the Registration
Rights Agreement, and the performance by the Trust of its obligations hereunder
and under the Registration Rights Agreement, have been duly authorized by all
necessary action on the part of the Trust.
(vi) The certificates for the Series A Capital
Securities are in due and proper form, the Series A Capital Securities have
been duly authorized by the Declaration and are duly and validly issued and,
subject to qualifications hereinafter expressed in this paragraph (vi), fully
paid and nonassessable undivided beneficial interests in the assets of the
Trust; the holders of the Series A Capital Securities, as beneficial owners of
the Trust, 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; said counsel may note that
the holders of the Series A Capital Securities may be obligated to make
payments as set forth in the Declaration.
(vii) The certificates for the Series B Capital
Securities are in due and proper form and the Series B Capital Securities have
been duly authorized by the Declaration. The Series B Capital Securities
issuable in the Exchange Offer, when issued and delivered in such Exchange
Offer upon the terms and conditions thereof, will be duly and validly issued
subject to qualifications hereinafter expressed in this paragraph (vii), fully
paid and nonassessable undivided beneficial interests in the assets of the
Trust and the holders of the Series B Capital Securities, as beneficial owners
of the Trust, 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; said counsel may note that
the holders of the Series B Capital Securities may be obligated to make
payments as set forth in the Declaration.
(viii) The Common Securities have been duly authorized
by the Declaration and are duly and validly issued and represent undivided
beneficial interests in the assets of the Trust.
(ix) Under the Delaware Act and the Declaration, the
issuance of the Capital Securities is not subject to preemptive rights.
(x) The issuance and sale by the Trust of the Capital
Securities and Common Securities, the purchase by the Trust of the Subordinated
Debentures, the execution, delivery and performance by the Trust of this
Agreement and the Registration Rights Agreement, the consummation by the Trust
of the transactions contemplated hereby and by the Registration Rights
Agreement and compliance by the Trust with its obligations hereunder and
thereunder will not violate (i) any of the provisions of the Certificate of
Trust or the Declaration or (ii) any applicable Delaware law or administrative
regulation.
(4) The favorable opinion, dated as of Closing Time, of
the law department of the First National Bank of Chicago, counsel of the First
National Bank of Chicago, as Property Trustee under the Declaration, and
Guarantee Trustee under the Capital Securities Guarantees, in form and
substance satisfactory to counsel for the Initial Purchaser, to the effect
that:
(i) The First National Bank of Chicago is a national
banking association with trust powers, duly organized, validly existing and in
good standing under the laws of the United States with all necessary power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of the Declaration and the Series A Guarantee.
(ii) The execution, delivery and performance by the
Property Trustee of the Declaration and the execution, delivery and performance
by the Guarantee Trustee of the Series A Guarantee have been duly authorized by
all necessary corporate action on the part of the Property Trustee and the
Guarantee Trustee, respectively. The Declaration and the Capital Securities
Series A Guarantee have been duly executed and delivered by the Property
Trustee and the Guarantee Trustee, respectively, and constitute the legal,
valid and binding obligations of the Property Trustee and the Guarantee
Trustee, respectively, enforceable against the Property Trustee and the
Guarantee Trustee, respectively, in accordance with their terms, except to the
extent the enforcement thereof may be limited by the Bankruptcy Exceptions.
(iii) The execution, delivery and performance of the
Declaration and the Series A Guarantee by the Property Trustee and the
Guarantee Trustee, respectively, do not conflict with or constitute a breach
of the Articles of Organization or Bylaws of the Property Trustee and the
Guarantee Trustee, respectively.
(iv) No consent, approval or authorization of, or
registration with or notice to, any state or federal banking authority is
required for the execution, delivery or performance by the Property Trustee
and the Guarantee Trustee of the Declaration and the Series A Guarantee.
(5) The opinion of Xxxxxxxxx, Xxxxx, XxXxxxxxxx, Xxxxxx,
Xxxx, Xxxxxxx & X'Xxxxx, P.C., special tax counsel to the Offerors, that
(i) the Series A Subordinated Debentures will be classified for United States
federal income tax purposes as indebtedness of the Company, (ii) the Trust will
be classified for United States federal income tax purposes as a grantor trust
and not as an association taxable as a corporation and (iii) the discussion
set forth in the Offering Memorandum under the heading "Certain United States
Federal Income Tax Consequences" is a fair and accurate summary of the
matters addressed therein, based upon current law and the assumptions stated
or referred to therein. Such opinion may be conditioned on, among other
things, the initial and continuing accuracy of the facts, financial and other
information, covenants and representations set forth in certificates of
officers of the Company and the Trust and other documents deemed necessary
for such opinion.
(6) The favorable opinion, dated as of Closing Time, of
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for the Initial Purchaser, in
form and substance satisfactory to the Initial Purchaser with respect to the
incorporation and legal existence of the Company, the Capital Securities, the
Indenture, the Capital Securities Guarantee, this Agreement, the Registration
Rights Agreement and other related matters as the Initial Purchaser may
require. In giving its opinion, LeBoeuf, Xxxx, Xxxxxx & XxxXxx, L.L.P. may
rely as to certain matters of Iowa and Delaware law upon the opinions of
Xxxxxxxxx, Xxxxx, XxXxxxxxxx, Xxxxxx, Xxxx, Xxxxxxx & X'Xxxxx, P.C. and
Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel for the Offerors, which shall be
delivered in accordance with Section 5(a)(1) and 5(a)(3) hereto.
(b) At the Closing Time there shall not have been, since the
date hereof or since the respective dates as of which information is given in
the Offering Memorandum, any material adverse change, or any development or
event involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Trust, or the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Initial Purchaser shall have received a certificate of an executive officer of
the Company, and a certificate of an Administrative Trustee of the Trust, dated
as of the Closing Time, to the effect that except as disclosed in the
Offering Memorandum, (i) there has been no such material adverse change or
development or event, (ii) the representations and warranties in Section 1
hereof are true and correct with the same force and effect as though
expressly made at and as of the Closing Time, and (iii) the Offerors have
complied with all agreements and satisfied all conditions on their part to be
performed or satisfied at or prior to the Closing Time.
(c) At the time of the execution of this Agreement and at the
Closing Time, Xxxxx & Young LLP shall have furnished to the Initial Purchaser a
letter or letters, dated respectively as of the date of this Agreement and as
of the Closing Time, in form and substance satisfactory to the Initial
Purchaser, confirming that they are independent auditors with respect to the
Company under Rule 101 of the AICPA's Code of Professional Conduct and its
interpretations and rulings and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules incorporated in the Offering Memorandum and
reported on by them comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of carrying out certain specified
procedures (but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of the minutes
of the meetings of the stockholders, directors and executive and audit
committees of the Company, Equitable Life, USG and Golden American; and
inquiries of certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most recent audited
financial statements included or incorporated into the Offering Memorandum,
nothing came to their attention which caused them to believe that there were
any changes, at a specified date not more than five business days prior to the
date of the letter, in the debt of the Company and its subsidiaries or capital
stock of the Company or, to the extent such information is available, there
were any decreases in the stockholders' equity of the Company, as compared with
the amounts shown on the most recent consolidated balance sheet incorporated in
the Offering Memorandum, or, to the extent such information is available,
there were any decreases, as compared with the corresponding period in the
preceding year, in net investment income, total revenues, income before
income taxes or net income of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by the
Initial Purchaser; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Offering Memorandum,
including, without limitation, the information set forth under the captions
"Ratio of Earnings to Fixed Charges" and such other captions as the Initial
Purchaser may reasonably request in the Offering Memorandum, the information
included or incorporated in Items 1, 5, 6, 7, 11 and 13 of the Company's most
recent Annual Report on Form 10-K, incorporated in the Offering Memorandum,
agrees with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
(d) At Closing Time, counsel for the Initial Purchaser shall
have been furnished with the Registration Rights Agreement, executed by the
Company and the Trust, and such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Series A Capital Securities as herein contemplated and related proceedings,
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 Offerors in connection with the issuance and sale
of the Series A Capital Securities as herein contemplated shall be satisfactory
in form and substance to the Initial Purchaser and counsel for the Initial
Purchaser.
(e) At Closing Time, the Series A Capital Securities shall be
"rated BBB-" or higher by Standard & Poor's Corporation ("S&P") or "Baa3" or
higher by Xxxxx'x Investors Services ("Moody's") and the Trust shall have
delivered to the Initial Purchaser a letter, dated the Closing Time, from S&P
or Moody's, or other evidence satisfactory to the Initial Purchaser, confirming
that the Series A Capital Securities have such ratings; and there shall not
have occurred any decrease in the ratings of the Series A Capital Securities
or any other security of the Company by either S&P or Moody's and neither S&P
nor Moody's shall have publicly announced that it has under surveillance or
review its rating of the Series A Capital Securities or any other security of
the Company; it being understood that the negative outlook in existence as of
the date hereof with respect to certain of the debt securities of the Company
shall not be deemed to be such a public announcement.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Initial Purchaser by notice to the Offerors at any time at
or prior to Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 4 and except that
Sections 7 and 9 shall survive any such termination and remain in full force
and effect.
SECTION 6. Subsequent Offers and Sales of the Series A Capital Securities.
(a) Offer and Sale Procedures. The Initial Purchaser and the
Offerors hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Series A Securities:
(i) Offers and Sales Only to Institutional Accredited
Investors and Qualified Institutional Buyers. Offers and sales of the Series A
Capital Securities will be made only by the Initial Purchaser or an affiliate
thereof qualified to do so in the jurisdictions in which such offers or sales
are made. Each such offer or sale shall only be made (A) to persons whom the
offeror or seller reasonably believes to be qualified institutional buyers
(as defined in Rule 144A under the 1933 Act) ("Qualified Institutional
Buyers") or (B) to a limited number of other institutional accredited
investors (as such term is defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D) that the Initial Purchaser reasonably believe to be and, with
respect to sales and deliveries, that are accredited investors
("Institutional Accredited Investors").
(ii) No General Solicitation. The Series A Capital
Securities will be offered by approaching prospective Subsequent Purchasers on
an individual basis. No general solicitation or general advertising (within the
meaning of Rule 502(c) under the 1933 Act) will be used in connection with the
offering of the Series A Capital Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a
non-bank Subsequent Purchaser of a Series A Capital Security acting as a
fiduciary for one or more third parties, in connection with an offer and sale
to such purchaser pursuant to clause (a) above, each third party shall, in the
judgment of the Initial Purchaser, be an Institutional Accredited Investor or
a Qualified Institutional Buyer.
(iv) Subsequent Purchaser Notification. The Initial
Purchaser will take reasonable steps to inform, and cause each of its U.S.
affiliates to take reasonable steps to inform, persons acquiring Series A
Capital Securities from such Initial Purchaser or affiliate, as the case may
be, that the Series A Capital Securities (A) have not been and will not be
registered under the 1933 Act, (B) are being sold to them without registration
under the 1933 Act in reliance on Rule 144A or in accordance with another
exemption from registration under the 1933 Act, as the case may be, and (C) may
not be offered, sold or otherwise transferred except (1) to the Company and
(2) in accordance with (x) Rule 144A to a person whom the seller reasonably
believes is a Qualified Institutional Buyer that is purchasing such Securities
for its own account or for the account of a Qualified Institutional Buyer to
whom notice is given that the offer, sale or transfer is being made in reliance
on Rule 144A or (y) an exemption from registration under the 1933 Act
(including the exemption provided by Rule 144), if available.
(v) Minimum Amount. No sale of the Series A Capital
Securities to any one Subsequent Purchaser will be in blocks of less than
U.S.$100,000 liquidation amount.
(vi) Restrictions on Transfer. The transfer restrictions
and the other provisions of the Declaration, including the legend required
thereby, shall apply to the Series A Capital Securities except as otherwise
agreed by the Offerors and the Initial Purchaser. Following the sale of the
Series A Capital Securities by the Initial Purchaser to Subsequent Purchasers
pursuant to the terms hereof, the Initial Purchaser shall not be liable or
responsible to the Offerors for any losses, damages or liabilities suffered or
incurred by the Offerors, including any losses, damages or liabilities under
the 1933 Act, arising from or relating to any resale or transfer of any Capital
Security.
(vii) Delivery of Offering Memorandum. The Initial
Purchaser will deliver to each purchaser of the Series A Capital Securities
from the Initial Purchaser, in connection with its original distribution of the
Series A Capital Securities, a copy of the Offering Memorandum, as amended and
supplemented at the date of such delivery.
(b) Covenants of the Offerors. Each of the Offerors, jointly
and severally, covenants with the Initial Purchaser as follows:
(i) Due Diligence. In connection with the original
distribution of the Series A Capital Securities, the Offerors agree that, prior
to any offer or sale of the Series A Capital Securities by the Initial
Purchaser, the Initial Purchaser and counsel for the Initial Purchaser shall
have the right to make reasonable inquiries into the business of the Trust, the
Company and its subsidiaries. The Offerors also agree to provide answers to
inquiries from each prospective Subsequent Purchaser of Series A Capital
Securities who so requests concerning the Trust, Company and its subsidiaries
(to the extent that such information is available or can be acquired and made
available to each prospective Subsequent Purchaser without unreasonable effort
or expense and to the extent the provision thereof is not prohibited by
applicable law or contractual restriction) and the terms and conditions of the
offering of the Securities, as provided in the Offering Memorandum.
(ii) Integration. The Offerors agree that they will not and
will cause their affiliates not to make any offer or sale of securities of the
Offerors of any class if, as a result of the doctrine of "integration" referred
to in Rule 502 under the 1933 Act, such offer or sale would render invalid (for
the purpose of (i) the sale of the Series A Capital Securities by the Trust to
the Initial Purchaser, (ii) the resale of the Series A Capital Securities by
the Initial Purchaser to Subsequent Purchasers or (iii) the resale of the
Series A Capital Securities by such Subsequent Purchasers to others) the
exemption from the registration requirements of the 1933 Act provided by
Section 4(2) thereof or by Rule 144A thereunder,
(iii) Rule 144A Information. The Company agrees that, in
order to render the Series A Capital Securities eligible for resale pursuant to
Rule 144A under the 1933 Act, while any of the Series A Capital Securities
remain outstanding, the Company will make available, upon request, to any
holder of Series A Capital Securities or prospective purchasers of Series A
Capital Securities the information specified in Rule 144A(d)(4), unless such
information is furnished to the Commission pursuant to Section 13 or 15(d) of
the 1934 Act (such information, whether made available to holders or
prospective purchasers or furnished to the Commission, is herein referred to
as "Additional Information").
(iv) Restriction on Repurchases. Until the expiration of
three years (or such shorter period as may hereafter be referred to in
Rule 144(k) (or similar successor rule)) after the original issuance of the
Series A Capital Securities, the Offerors will not, and will cause their
affiliates not to, purchase or agree to purchase or otherwise acquire any
Series A Capital Securities which are "restricted securities" (as such term is
defined under Rule 144(a)(3) under the 1933 Act), whether as beneficial owner,
or otherwise unless, immediately upon any such purchase, the Offerors or any
affiliate shall submit such Series A Capital Securities to the Trustee for
cancellation; provided, that any affiliate which is an insurance company need
not deliver such securities to the Trustee for cancellation for so long as
such affiliate continues to hold such Series A Capital Securities for its own
account.
(c) Resale Pursuant to Rule 144A. The Initial Purchaser
understands that the Series A Capital Securities have not been and will not be
registered under the 1933 Act and may not be offered or sold except pursuant to
an exemption from the registration requirements of the 1933 Act. The Initial
Purchaser represents and agrees, that, except as permitted below, it has
offered and sold Series A Capital Securities and will offer and sell Series A
Capital Securities (i) as part of their distribution at any time and (ii)
otherwise until forty days after the later of the date upon which the
offering of the Series A Capital Securities commences and the Closing Time,
only in accordance with Rule 144A under the 1933 Act or to Institutional
Accredited Investors. Accordingly, neither the Initial Purchaser and its
affiliates nor any persons acting on their behalf have engaged or will engage
in any directed selling efforts with respect to Series A Capital Securities.
The Initial Purchaser represents and agrees that it has not entered and will
not enter into any contractual arrangements with respect to the distribution
of the Series A Capital Securities, except with its affiliates that are
Qualified Institutional Buyers or with the prior written consent of the
Offerors.
(d) Compliance with Other Laws. The Initial Purchaser
acknowledges that no action has been taken to permit a public offering of the
Series A Capital Securities in any jurisdiction outside of the United States
where action would be required for such purpose.
(e) No Offers or Sales outside the United States. The Initial
Purchaser agrees that it will not offer or sell any Series A Capital
Securities in any jurisdiction outside of the United States.
SECTION 7. Indemnification.
(a) The Offerors agree to jointly and severally indemnify and
hold harmless the Initial Purchaser and each person, if any, who controls any
Initial Purchaser within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Offering Memorandum, or
the omission or alleged omission therefrom of 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;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with the
written consent of the Offerors; and
(iii) against any and all expenses whatsoever, as incurred
(including fees and disbursements of counsel chosen by you), reasonably
incurred in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any
loss, liability, claim, damage or expense to the extent arising out of an
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Offerors by the Initial Purchaser expressly for use in the Offering
Memorandum;
(b) The Initial Purchaser severally agrees to indemnify and
hold harmless the Company, its directors and officers, the Trust, the
Administrative Trustees and each person, if any, who controls the Company or
the Trust within the meaning of Section 15 of the 1933 Act, against any and
all loss, liability, claim, damage and expense described in the indemnity
agreement in Section 7(a), as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
the Offering Memorandum in reliance upon and in conformity with written
information furnished to the Company or the Trust by the Initial Purchaser
expressly for use in the Offering Memorandum.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action. In no event
shall the indemnifying party or parties be liable for the fees and expenses
of more than one counsel for all indemnified parties in connection with any
one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement; provided
that an indemnifying party shall not be liable for any such settlement
effected without its consent if such indemnifying party (1) reimburses such
indemnified party in accordance with such request to the extent it considers
reasonable and (2) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
SECTION 8. Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnity provided for in
Section 7 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Offerors and the
Initial Purchaser shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
the Company, the Trust and the Initial Purchaser, as is incurred, in such
proportions that (a) the Initial Purchaser is responsible for the amount
represented by the total commission for the Initial Purchaser appearing on
the cover page of the Offering Memorandum, it being understood that such
amount shall not include any amounts received by the Initial Purchaser with
respect to the payment or reimbursement of any expenses or fees, including
attorney's fees and, (b) the Offerors are responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Initial Purchaser, and
each officer and director of the Company, each Administrative Trustee and
each person, if any, who controls the Company or the Trust within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as
the Company and the Trust.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or trustees of the
Trust submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Initial
Purchaser or controlling person, or by or on behalf of the Trust or the
Company, and shall survive delivery of the Series A Capital Securities to the
Initial Purchaser.
SECTION 10. Termination of Agreement.
(a) Termination; General. The Initial Purchaser may terminate
this Agreement, by notice to the Offerors, at any time at or prior to the
Closing Time (i) if there has occurred any material adverse change in the
financial markets in the United States or any outbreak of hostilities or
escalation thereof or other calamity or crisis the effect of which is such as
to make it, in your judgment, impracticable to market the Series A Capital
Securities or to enforce contracts for the sale of the Series A Capital
Securities, or (ii) if trading in any securities of the Company has been
suspended by the Commission or the New York Stock Exchange, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
or in the over-the-counter market has been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by any of such exchange or such system or by order of the
Commission or any other governmental authority or (iii) if a banking
moratorium has been declared by either federal, New York, Delaware or Iowa
authorities, or (iv) if there has been, since the date hereof or since the
respective dates as of which information is given in the Offering Memorandum,
any material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Trust or the
Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business.
(b) Liabilities. If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Initial Purchaser shall be
directed to the Initial Purchaser c/x Xxxxxxx Xxxxx at 0000 Xxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, attention of Xxxxx X. Xxxxxxxx, Director, with a
copy to LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx Xxxxx, Esq.; notices to the
Offerors shall be directed to Equitable of Iowa Companies, 000 Xxxxxx Xxxxxx,
X.X. Box 1635, Des Moines, Iowa 50306-1635, attention of Secretary/General
Counsel, with a copy to Nyemaster, Xxxxx, XxXxxxxxxx, Xxxxxx, Xxxx, Xxxxxxx &
X'Xxxxx, P.C., 1900 Hub Tower, Des Moines, Iowa 50309, Attention of X.X.
Xxxxxxx, Xxx.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Initial Purchaser and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchaser and the Offerors and their respective successors and the
controlling persons and officers and directors referred to in Sections 7 and
8 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Initial Purchaser
and the Offerors and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from the Initial Purchaser shall be deemed to be a successor by
reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable
to agreements made and to be performed in said State. Specified times of day
refer to New York City time unless otherwise indicated.
SECTION 14. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
Agreement between the Initial Purchaser and the Offerors in accordance with
its terms.
Very truly yours,
EQUITABLE OF IOWA COMPANIES
By: /s/ Xxxx X. Xxxxxx
_______________________________
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
EQUITABLE OF IOWA COMPANIES CAPITAL
TRUST II
By: /s/ Xxxx X. Xxxxxx
_______________________________
Title: Administrative Trustee
By: /s/ Xxxx X. Xxxxxxx
_______________________________
Title: Administrative Trustee
By: /s/ Xxxx X. Xxxxxxxx
_______________________________
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:/s/ Xxxx X. Xxxxxxx, Xx.
__________________________________
Authorized Signatory
