Exhibit 1.1
3,000,000
Preferred Securities
New South Capital Trust I
UNDERWRITING AGREEMENT
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May __, 1998
X.X. XXXXXXXX & CO.
XXXXXX XXXX & XXXXX, INC.
as Representatives of the Several Underwriters
c/o X.X. Xxxxxxxx & Co.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
New South Capital Trust I (the "Trust"), a statutory business trust created
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. (Sections 3801, et seq.))
and New South Bancshares, Inc., a Delaware corporation (the "Company" and
together with the Trust, the "Offerors"), confirm their agreement (the
"Agreement") with X.X. Xxxxxxxx & Co. ("X.X. Xxxxxxxx") and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters," which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof) for whom X.X. Xxxxxxxx and Xxxxxx, Xxxx & Xxxxx, Inc. are
acting as representatives (in such capacity, X.X. Xxxxxxxx and Sterne, Agee &
Xxxxx, Inc. will be referred to as the "Representatives"), with respect to the
issue and sale by the Trust and the purchase by the Underwriters, acting
severally and not jointly, of the respective number set forth in Schedule A of
3,000,000 ____% Cumulative Trust Preferred Securities (liquidation amount of
$10.00 per security) of the Trust. Said aggregate of 3,000,000 Preferred
Securities are herein referred to as the "Firm Preferred Securities." In
addition, the Company proposes to grant to the Underwriters an option to
purchase up to 450,000 additional ____% Cumulative Trust Preferred Securities
(the "Optional Preferred Securities"), as provided in Section 2 hereof. The
Firm Preferred Securities and, to the extent such option is exercised, the
Optional Preferred Securities are hereinafter collectively referred to as the
"Preferred Securities." The Preferred Securities will be guaranteed by the
Company, to the extent described in the Prospectus, with respect to
distributions and payments upon liquidation, redemption and otherwise pursuant
to the Preferred Securities Guarantee Agreement (the "Preferred Securities
Guarantee"), to be dated as of _________, 1998, between the Company and Bankers
Trust Company, as Trustee (the "Guarantee Trustee"). The Preferred 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 First Closing Date (as defined herein) or the Second Closing Date (as
defined herein), as the case may be, (the "DTC Agreement"), among the Trust, the
Guarantee Trustee and DTC.
The entire proceeds from the sale of the Preferred Securities in the
Offering will be combined with the entire proceeds from the sale by the Trust to
the Company of its common securities (the "Common Securities"), as guaranteed by
the Company, to the extent set forth in the Prospectus, with respect to
distributions and payments upon liquidation, redemption and otherwise pursuant
to the Common Securities Guarantee Agreement (the "Common Guarantee" and,
together with the Preferred Securities Guarantee, the "Guarantees"), to be dated
as of ________, 1998, made by the Company, and will be used by the Trust to
purchase $_____________ aggregate principal amount (plus up to an additional
$___________ aggregate principal amount if the Underwriters' over-allotment
option is exercised) of ____% Subordinated Debentures due ____________, 2028
(the "Subordinated Debentures") issued by the Company. The Preferred Securities
and the Common Securities will be issued pursuant to the Trust Agreement, to be
dated as of ________, 1998 (the "Trust Agreement"), among the Company, as
sponsor, and __________________ and ____________ as administrators (the
"Administrative Trustees"), Bankers Trust Company, as property trustee (the
"Property Trustee"), and Bankers Trust Company (Delaware), as Delaware trustee
(the "Delaware Trustee," and, together with the Property Trustee and the
Administrative Trustees, the "Trustees"), and the holders, from time to time, of
undivided beneficial interests in the assets of the Trust. The Subordinated
Debentures will be issued pursuant to an indenture, to be dated as of ________,
1998 (the "Indenture"), between the Company and Bankers Trust Company, as
trustee (the "Debenture Trustee").
The Preferred Securities, the Preferred Securities Guarantee and the
Subordinated Debentures are hereinafter collectively referred to as the
"Securities."
The Indenture, the Trust Agreement, the Guarantees, the Expense Agreement,
the DTC Agreement, and this Agreement are hereinafter referred to collectively
as the "Operative Documents."
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. __________)
containing a preliminary prospectus relating to the Offering under the
Securities Act of 1933, as amended (the "1933 Act"), and have filed such
amendments thereto and such amended preliminary prospectuses as may have been
required by the Commission on or prior to the date hereof and will file such
additional amendments to the registration statement and such amended
prospectuses relating to the Offering (pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), the 1933 Act, the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations") or
otherwise) as may
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hereafter be required by the Commission or pursuant to the terms of this
Agreement. Such registration statement, as amended, at the time such
registration statement becomes effective and, in the event any post-effective
amendment thereto becomes effective prior to the First Closing Date (as
hereinafter defined), at the time such post-effective amendment becomes
effective, and the prospectus relating to the Offering constituting a part
thereof (including, in the case of such registration statement, as amended, and
in the case of such prospectus, all financial statements, schedules and exhibits
thereto and the information, if any, deemed to be a part thereof pursuant to
Rule 430A(b) of the 1933 Act Regulations), as from time to time amended or
supplemented pursuant to the 1934 Act, the 1934 Act Regulations, the 1933 Act,
the 1933 Act Regulations or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that if any
revised prospectus relating to the Offering shall be provided to the
Underwriters by the Offerors for use in the Offering which differs from the
prospectus relating to the Offering on file at the Commission at the time of
such use (whether or not such revised prospectus is required to be filed by the
Offerors pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Underwriters for such use. The term "Preliminary
Prospectus" means the preliminary prospectus dated _____________, 1998
distributed by the Underwriters prior to the date hereof.
The Offerors understand that the Underwriters propose to make the Offering
of the Securities as soon as the Representatives deem advisable after the
Registration Statement becomes effective and after the Trust Agreement, the
Indenture and the Preferred Securities Guarantee have been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
SECTION 1. Representations and Warranties.
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(a) The Offerors jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of each of the First Closing Date and
the Second Closing Date, and agree with each Underwriter as follows:
(i) No stop order suspending the effectiveness of the Registration
Statement, or any other amendment thereto and no cease and desist order or
temporary order under Section 8A of the 1933 Act has been issued, and no
proceeding for such purpose has been instituted or is pending or threatened
by the Commission. No order preventing or suspending the use of any
Prospectus or any Preliminary Prospectus has been issued by the Commission,
and each Preliminary Prospectus, at the time of filing thereof, conformed
in all material respects to the requirements of the 1933 Act and the 1933
Act Regulations and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
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omissions made in reliance upon and in conformity with the "Underwriter
Information" (as defined in Section 6(a) hereof) relating to the
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters expressly for use therein.
(ii) At the time the Registration Statement and any amendment
thereto becomes effective, the Registration Statement and any amendment
thereto, and the Prospectus and any further amendment or supplement
thereto, will conform in all material respects to the requirements of the
1933 Act and the 1933 Act Regulations and will not, as of effective date of
each of the Registration Statement, and any amendment thereto, and as of
the applicable filing date of the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with the Underwriter Information.
(iii) Ernst & Young LLP, which has audited certain financial
statements of the Company, are independent public accountants with respect
to the Company and its subsidiaries, as required by the 1933 Act, the 1933
Regulations, the 1934 Regulations and Commission Regulation S-X.
(iv) The consolidated financial statements, together with the
related schedules and notes, included in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its subsidiaries at the dates indicated and the consolidated
results of operations and cash flows of the Company and its subsidiaries
for the periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved, except as disclosed
in the notes to such financial statements. The supporting schedules, if
any, included in the Registration Statement and the Prospectus present
fairly, in all material respects, the information required to be stated
therein. The summary financial data included in the Registration Statement
and the Prospectus present fairly, in all material respects, the
information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included in the Registration
Statement and the Prospectus.
(v) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby and, except for normal recurring dividends
on the capital stock of the Company, there has not been (A) any material
adverse change in the condition (financial or otherwise), 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) any transaction
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entered into by the Trust, the Company or any subsidiary, other than in the
ordinary course of business, that is material to the Trust, or the Company
and its subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock.
(vi) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the
corporate power and authority under such laws to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to
the extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(vii) New South Federal Savings Bank is a duly organized and validly
existing federally-chartered stock savings bank under the laws of the
United States and continues to hold a valid certificate to do business as
such and has full power and authority to conduct its business as such. New
South Federal Savings Bank is referred to herein as the "Significant
Subsidiary"). The Significant Subsidiary has the authority under its
jurisdiction of organization to own, lease and operate its properties and
to conduct its business and is duly authorized to transact business and is
in good standing in each jurisdiction in which it owns or leases property
of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or to be in good standing would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
(viii) The Company does not have any subsidiaries which are material
to its business, except to the extent that the Significant Subsidiary may
be deemed to be so material.
(ix) (a) The Company had at the date indicated a duly authorized and
outstanding capitalization as set forth in the Registration Statement and
the Prospectus, (b) all of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable, and (c) none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive rights of any
stockholder of the Company.
(x) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Registration
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Statement and the Prospectus and to enter into and perform its obligations
under the Operative Documents, as applicable, and the Preferred Securities;
the Trust is not a party to or otherwise bound by any material agreement
other than those described in the Registration Statement and the
Prospectus; and 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.
(xi) The Common Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Registration Statement and the
Prospectus, will be validly issued and will represent undivided beneficial
interests in the assets of the Trust; the issuance of the Common Securities
is not subject to preemptive or other similar rights; and at the First
Closing Date and at the Second Closing Date, as the case may be, all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equitable right.
(xii) As of the First Closing Date and at the Second Closing Date, as
the case may be, the Preferred Securities will have been duly authorized by
the Trust Agreement and, when issued and delivered against payment therefor
in accordance with the Trust Agreement, as provided herein, will be validly
issued and fully paid and non-assessable undivided beneficial interests in
the assets of the Trust and will conform in all material respects to the
description thereof contained in the Prospectus and the issuance of the
Preferred Securities will not be subject to preemptive or other similar
rights.
(xiii) This Agreement has been duly authorized, executed and delivered
by the Offerors.
(xiv) The Trust Agreement has been duly authorized by the Company
and, at the First Closing Date and at the Second Closing Date, will have
been duly executed and delivered by the Company and the Trustees, and
assuming due authorization, execution and delivery of the Trust Agreement
by the Trustees, the Trust Agreement will, at the First Closing Date and at
the Second Closing Date, be a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally as well as to bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity) and the availability of equitable remedies
(collectively, the "Enforceability Exceptions").
(xv) Each of the Guarantees has been duly authorized by the Company
and, at the First Closing Date and at the Second Closing Date, each of the
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Guarantees will have been duly executed and delivered by the Company, and
will constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Enforceability Exceptions.
(xvi) The Indenture has been duly authorized by the Company and, at
the First Closing Date and at the Second Closing Date, will have been duly
executed and delivered by the Company and will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement thereof
may be limited by the Enforceability Exceptions; and at the First Closing
Date, the Indenture will have been duly qualified under the 1939 Act.
(xvii) The Subordinated Debentures have been duly authorized by the
Company and, at the First Closing Date and at the Second Closing Date, 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 Registration Statement and the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as enforcement
thereof may be limited by the Enforceability Exceptions; and the
Subordinated Debentures will be in the form contemplated by, and entitled
to the benefits of, the Indenture and will conform in all material respects
to the description thereof in the Prospectus.
(xix) 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 Trust Agreement.
(xx) The Trust is not, and following consummation of the
transactions contemplated hereby will not be, an "investment company" or a
company "controlled" by an "investment company" which is required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(xxi) The Operative Documents described in the Registration Statement
and the Prospectus conform in all material respects to the summary
descriptions thereof contained in the Registration Statement and the
Prospectus.
(xxii) None of the Trust, the Company nor the Significant Subsidiary
is 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 may be subject, except for such defaults that would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise; the execution and delivery of
the
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Operative Documents by the Trust or the Company, as the case may be, the
issuance and delivery of the Securities, the consummation by the Offerors
of the transactions contemplated in the Operative Documents, and compliance
by the Offerors with the terms of the Operative Documents to which they are
a party have been duly authorized by all necessary corporate action on the
part of the Company, and do not and will not result in any violation of the
charter or by-laws of the Company or of the Significant Subsidiary or the
Trust Agreement or the certificate of trust of the Trust filed with the
State of Delaware on ______________, 1998 (the "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 Trust, the Company or any of the Significant Subsidiary under
(A) any indenture, mortgage, loan agreement, note, lease or other agreement
or instrument to which the Trust, the Company or the Significant Subsidiary
is a party or by which it may be bound or to which any of its properties
may be subject, except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Trust, or the Company and its subsidiaries
considered as one enterprise 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
Trust, the Company or the Significant Subsidiary or any of its properties,
except for such defaults that would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
(xxiii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, other than those that have been made or obtained, is
necessary or required for the performance by the Company or the Trust of
their obligations hereunder, in connection with the issuance and sale of
the Preferred Securities or the consummation of the transactions
contemplated by the Operative Documents, except such as may be required by
the securities as "Blue Sky" laws of the various states in connection with
the offer and sale of the Preferred Securities.
(xxiv) Except as disclosed in the Registration Statement and the
Prospectus, there is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign, now
pending or, to the knowledge of the Company or the Trust, threatened
against or affecting the Trust, or the Company or the Significant
Subsidiary that is required to be disclosed in the Registration Statement
and the Prospectus or that, in the final outcome, could, in the judgment of
the Company, result in any material adverse effect on the condition
(financial or otherwise), earnings or business of the Trust, or the
Company and its subsidiaries considered as one enterprise, or that could
materially and adversely affect the properties or assets of the Trust, or
the Company and its
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subsidiaries considered as one enterprise, or that could adversely affect
the consummation of the transactions contemplated in the Operative
Documents; the aggregate liability or loss, if any, resulting from the
final outcome of all pending legal or governmental proceedings to which the
Trust, the Company or any of the Significant Subsidiaries is a party or
which affect any of its properties that are not described in the
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to its business, would not have a material adverse
effect on the condition (financial or otherwise), earnings or business
affairs of the Trust, or the Company and its subsidiaries considered as one
enterprise.
(xxv) There are no contracts or documents of a character required to
be described in the Registration Statement and the Prospectus that are not
described as required.
(xxvi) The Offerors and the Significant Subsidiary each owns or
possesses, or can acquire on reasonable terms, adequate patents, patent
licenses, trademarks, service marks and trade names necessary to carry on
their businesses as presently conducted, except where the failure to own,
procure or obtain any of the foregoing would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, and none of the Offerors nor the Significant
Subsidiary has received any notice of infringement of or conflict with
asserted rights of others with respect to any patents, patent licenses,
trademarks, service marks or trade names that, in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise), earnings
or business of the Trust, or the Company and its subsidiaries considered as
one enterprise.
(xxvii) The Offerors and the Significant Subsidiary each owns,
possesses or has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted, and neither
the Offerors nor any of the Significant Subsidiary has received any notice
of proceedings relating to revocation or modification of any such licenses,
permits, certificates, consents, orders, approvals or authorizations that,
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, could materially adversely affect the condition (financial or
otherwise), earnings or business of the Trust, or the Company and its
subsidiaries considered as one enterprise.
(xxix) The Offerors and the Significant Subsidiary each has good and
marketable title to all properties and assets described in the Registration
Statement and the Prospectus as owned by it, free and clear of all liens,
charges, encumbrances or restrictions, except such as (A) are described in
the Registration Statement and the Prospectus or (B) are neither material
in amount nor materially
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significant in relation to the business of the Trust, or the Company and
its subsidiaries considered as one enterprise; and all of the leases and
subleases material to the business of the Trust, and the Company and its
subsidiaries considered as one enterprise, and under which the Offerors or
the Significant Subsidiary holds properties described in the Registration
Statement and the Prospectus, are in full force and effect, and neither the
Offerors nor the Significant Subsidiary has any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of
the Offerors or such Significant Subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of such
corporation to the continued possession of the leased or subleased premises
under any such lease or sublease.
(xxx) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Preferred Securities or the Common Stock.
(xxxi) None of the Trust, the Company, or any of their affiliates, as
such term is defined in Rule 501(b) under the 1933 Act ("Affiliates"), or
any person acting on its or any of their behalf (other than the
Underwriters, as to whom the Offerors make no representation) has engaged
or will engage, in connection with the offering of the Preferred
Securities, in any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the 1933 Act.
(xxxii) There are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 0000 Xxx.
(b) Any certificate signed by any Trustee of the Trust or any duly
authorized officer of the Company or the Significant Subsidiary and delivered to
the Representatives or to counsel for the Underwriters shall be deemed only a
representation and warranty by the Trust or the Company, as the case may be, to
each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
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(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 each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Trust, at a price of
$10.00 per Security, the number of Firm Preferred Securities set forth in
Schedule A opposite the name of such Underwriter, plus any additional Preferred
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof.
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(b) Deliveries of certificates for the Firm Preferred Securities shall be
made at the office of X.X. Xxxxxxxx in Nashville, Tennessee, and payment of the
purchase price for the Firm Preferred Securities shall be made by X.X. Xxxxxxxx,
on behalf of the several Underwriters, to the Trust by wire transfer of
immediately available funds contemporaneous with closing at such place as shall
be agreed upon by X.X. Xxxxxxxx and the Offerors, at 10:00 A.M. on
_____________, 1998 (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by X.X. Xxxxxxxx and the Offerors (such time and date of
payment and delivery being herein called the "First Closing Date").
(c) Payment for the Firm Preferred Securities purchased by the Underwriters
shall be made to the Trust by wire transfer of immediately available funds,
against delivery for the respective accounts of the Underwriters of certificates
for the Firm Preferred Securities. Certificates for the Firm Preferred
Securities shall be in such denominations and registered in such names as the
Underwriters may request in writing at least one business day before the First
Closing Date. It is understood that each Underwriter has authorized X.X.
Xxxxxxxx, for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Firm Preferred Securities which it has agreed to
purchase. X.X. Xxxxxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Firm Preferred Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the First Closing Date, but
such payment shall not relieve such Underwriter from its obligations hereunder.
The certificates representing the Firm Preferred Securities shall be made
available for examination and packaging by the Underwriters in Nashville,
Tennessee not later than 10:00 A.M. on the last business day prior to the First
Closing Date.
(d) In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to an aggregate of 450,000 Optional
Preferred Securities at the purchase price per security to be paid for the Firm
Preferred Securities, for use solely in covering any over-allotments made by the
Representatives for the account of the Underwriters in the sale and distribution
of the Firm Preferred Securities. The option granted hereunder may be exercised
at any time (but not more than once) within 30 days after the first date that
any of the Preferred Securities are released by the Representatives for sale to
the public, upon notice by the Representatives to the Company setting forth the
aggregate number of Optional Preferred Securities as to which the Underwriters
are exercising the option, the names and denominations in which the certificates
for such securities are to be registered and the time and place at which such
certificates will be delivered. Such time of delivery (which may not be earlier
than the First Closing Date), being herein referred to as the "Second Closing
Date," shall be determined by the Representatives, but if at any time other than
the First Closing Date shall not be earlier than three nor later than five full
business days after delivery of such notice of exercise. The number of Optional
Preferred Securities to be purchased by each Underwriter shall be determined by
multiplying the number of Optional Preferred Securities to be sold by the
Company pursuant to such
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notice of exercise by a fraction, the numerator of which is the number of Firm
Preferred Securities to be purchased by such Underwriter as set forth opposite
its name in Schedule A and the denominator of which is 3,000,000 (subject to
such adjustments to eliminate any fractional share purchases as the
Representatives in their discretion may make). The manner of payment for and
delivery of the Preferred Securities shall be the same as for the Firm Preferred
Securities purchased from the Company as specified in the three preceding
paragraphs. At any time before lapse of the option, you may cancel such option
by giving written notice of such cancellation to the Company. If the option is
cancelled or expires unexercised in whole or in part, the Company will
deregister under the 1933 Act the number of Option Preferred Securities as to
which the option has not been exercised.
(e) As compensation to the Underwriters for their commitments hereunder and
in view of the fact that the proceeds of the sale of the Preferred Securities
will be used to purchase Subordinated Debentures of the Company, the Company
hereby agrees to pay at the First Closing Date or the Second Closing Date, as
the case may be, to X.X. Xxxxxxxx in immediately available funds, for the
accounts of the several Underwriters, $____ per Preferred Security to be
delivered by the Trust hereunder at the First Closing Date or the Second Closing
Date, as the case may be.
(f) The Underwriter will comply with all material applicable laws and rules
in connection with the sale of the Securities and the Underwriters are not
acting as an agent for the Company.
SECTION 3. Covenants of the Offerors. The Offerors covenant with each
-------------------------
Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement and any post-effective amendments to the Registration Statement to be
declared effective by the Commission (as and when specified in the reasonable
request of the Representatives) and will prepare the Prospectus in a form
reasonably approved by the Representatives and file such Prospectus pursuant to
Rule 424(b) under the 1933 Act not later than the Commission's close of business
on the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the 1933 Act. The Company will make no further amendment or
any supplement to the Registration Statement or the Prospectus prior to any
First Closing Date which shall be reasonably disapproved by the Representatives
after reasonable notice thereof. The Company will notify the Representatives
immediately and confirm the notice in writing (i) when the Registration
Statement or any post-effective amendment thereto (and any other amendment
thereto) has been declared effective by the Commission, (ii) of the transmittal
to the Commission for filing of any amendment or supplement to the Prospectus,
(iii) of the receipt by the Company of any comments from the Commission or any
state securities commission with respect to the transactions contemplated by
this Agreement, (iv) of any request by the Commission or any state securities
commission for any amendment or supplement to the Registration Statement or the
Prospectus, or for additional information, (v) of the issuance by the
Commissioner or
-12-
any state securities commission or court of competent jurisdiction of any order
suspending either the Offering or the use of either the Preliminary Prospectus
or the Prospectus or of the threat of any such action by any such entity, (vi)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or any amendment thereto or of the receipt by the
Company of any notification with respect to the suspension of the registration,
qualification or exemption of the Preferred Securities for offering or sale in
any jurisdiction, or the initiation or threatening of any proceeding for such
purpose. In the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or Prospectus or
suspending any such registration, qualification or exemption, the Company
promptly will use its best efforts to obtain its withdrawal.
(b) The Company will give the Representatives notice of its intention to
file or prepare any amendment or supplement to the Registration Statement or any
amendment or supplement to the Prospectus (whether, in the case of the
Registration Statement and the Prospectus, by the filing of documents pursuant
to the 1934 Act, the 1933 Act or otherwise and, in the case of the Prospectus,
by amending or supplementing the Prospectus then being used by the
Underwriters).
(c) The Company has furnished or will deliver to the Representatives and
counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith) and signed copies of all consents and certificates of experts,
and will also deliver to the Representatives a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters.
(d) The Company will deliver to each Underwriter, without charge, from time
to time until the effective date of the Registration Statement, as many copies
of each Preliminary Prospectus as such Underwriter may reasonably request, and
the Company hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Company will furnish to each Underwriter, without charge,
from time to time during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act or the
respective applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or the Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b),
-13-
such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) If, at the time that the Registration Statement or a post-effective
amendment thereto becomes effective, any information shall have been omitted
therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then
immediately following effectiveness, the Company will prepare, and file or
transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b) of the 1933 Act Regulations, copies of an amended Prospectus, or, if
required by such Rule 430A, a post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all information so
omitted and will use its best efforts to cause any such post-effective amendment
to be declared effective as promptly as practicable.
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Preferred Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Preferred Securities have been so
qualified the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement.
(h) The Company will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(i) The Offerors will cooperate with the Underwriters and use their best
efforts to permit the Preferred Securities to be eligible for clearance and
settlement through the facilities of DTC.
(j) The Trust will use the net proceeds received by it from the sale of the
Preferred Securities, and the Company will use the proceeds received by it from
the sale of the Subordinated Debentures, in the manners specified in the
Prospectus under "Use of Proceeds."
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(k) Prior to __________, 1998, neither the Trust nor the Company will,
without the prior written consent of X.X. Xxxxxxxx, directly or indirectly,
issue, sell, offer or agree to sell, grant any option for the sale of, or
otherwise dispose of, any securities that are substantially similar to the
Preferred Securities, any security convertible into exchangeable or exercisable
for Preferred Securities or any equity security substantially similar to the
Preferred Securities (except for the Securities issued pursuant to this
Agreement or with the prior written consent of X.X. Xxxxxxxx).
SECTION 4. Payment of Expenses.
-------------------
The Company will pay all costs and expenses incident to the performance of
its obligations under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 9 hereof, including all costs and expenses incident to (i) the printing
or other production of documents, including the Operative Documents, with
respect to the transactions, including any costs of printing the Registration
Statement originally filed with respect to the Preferred Securities and any
amendment thereto, any Rule 462(b) Registration Statement, and the Prospectus
and any amendment or supplement thereto, this Agreement and any blue sky
memoranda, (ii) all arrangements relating to the delivery to the Underwriters of
copies of the foregoing documents, (iii) the fees and disbursements of the
counsel, the accountants and any other experts or advisors retained by the
Company, (iv) preparation, issuance and delivery to the Underwriters of any
certificates evidencing the Preferred Securities, including transfer agent's and
registrar's fees, (v) the qualification of the Preferred Securities under state
securities and blue sky laws, including filing fees and fees and disbursements
of counsel for the Underwriters relating thereto, (vi) the filing fees of the
Commission and the National Association of Securities Dealers, Inc. relating to
the Preferred Securities, and (vii) the fees and expenses of any trustee
appointed under any of the Operative Documents, including the fees and
disbursements of counsel for such trustees in connection with the Operative
Document. If the sale of the Preferred Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 5 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 9 hereof or because of any failure, refusal or inability on
the part of the Company to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder other than by reason of a
default by any of the Underwriters, the Company will reimburse the
Representatives upon demand for all reasonable out-of-pocket expenses (including
counsel fees and disbursements) that shall have been incurred by it in
connection with the proposed purchase and sale of the Preferred Securities. The
Company shall not in any event be liable to any of the Underwriters for the loss
of anticipated profits from the transactions covered by this Agreement.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof or
in certificates of any Trustee of the Trust, officer of the Company or any of
its subsidiaries delivered pursuant to the
-15-
provisions hereof, to the performance by the Offerors of their obligations
hereunder, and to the following further conditions:
(a) If the Registration Statement or any post-effective amendment to the
Registration Statement filed prior to the First Closing Date has not been
declared effective as of the time of execution hereof, the Registration
Statement or any such post-effective amendment, and, if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement, shall have
been declared effective not later than the earlier of (i) 11:00 A.M., Eastern
Standard Time, on the first business day following the date on which this
Agreement is executed, and (ii) the time confirmations are sent or given as
specified by Rule 462(b) or, with respect to the Registration Statement, such
later time and date as shall have been consented to by the Representative; if
required, the Prospectus or any term sheet that constitutes a part thereof and
any amendment or supplement thereto shall have been filed with the Commission in
the manner and within the time period required by Rules 434 and 424(b) under the
Act; no stop order suspending the effectiveness of the Registration Statement or
any amendment thereto shall have been issued, and no proceedings for that
purpose shall have been instituted or threatened or, to the knowledge of the
Company or X.X. Xxxxxxxx, shall be contemplated by the Commission; and the
Company shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise).
(b) Opinion of Outside Counsel for Offerors. At the Closing Date, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Date, of Xxxxx & Xxxxxxx LLP, counsel for the Company, to the effect set forth
in Exhibit A hereto. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of Trustees of the Trust, officers of the Company and its
subsidiaries and certificates of public officials.
(c) Opinion of Special Delaware Counsel for Offerors. If the opinion
referred to in Section 5(b) does not cover applicable matters of Delaware law,
at the Closing Date, the Underwriters shall have received the favorable opinion,
dated as of the Closing Date, of special Delaware counsel to the Offerors, to
the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for Bankers Trust Company. At the Closing Date, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Date, of _______________, counsel to Bankers Trust Company, as Property Trustee
under the Trust Agreement, and Guarantee Trustee under the Preferred Securities
Guarantee Agreement, to the effect set forth in Exhibit C hereto.
(e) Opinion of Special Tax Counsel for the Offerors. At the Closing Date,
the Underwriters shall have received an opinion, dated as of the Closing Date,
of Xxxxx & Xxxxxxx LLP, special tax counsel to the Offerors, that (i) the Trust
will be classified for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation and (ii) although the
discussion set forth in the Prospectus under
-16-
the heading "Certain Federal Income Tax Consequences" does not purport to
discuss all possible United States federal income tax consequences of the
purchase, ownership and disposition of the Preferred Securities, such discussion
constitutes, in all material respects, a fair and accurate summary of the United
States federal income tax consequences of the purchase, ownership and
disposition of the Preferred Securities under current law. 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 other documents deemed necessary
for such opinion.
(f) Opinion of Counsel for Underwriters. At the Closing Date, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Date, of Xxxxxx & Bird LLP, counsel for the Underwriters, with respect to the
incorporation and legal existence of the Company, the Preferred Securities, the
Indenture, the Preferred Securities Guarantee Agreement, this Agreement, and the
Prospectus and other related matters as the Underwriters may require. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of Trustees
of the Trust, officers of the Company and its subsidiaries and certificates of
public officials. Such counsel may rely as to matters of Delaware law on the
opinions of counsel furnished pursuant to subsections (b) and (c) of this
Section.
(g) Certificates. At the Closing Date, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Trust, or the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, and the Underwriters shall
have received a certificate of the Chairman, any Vice Chairman, the Chief
Executive Officer, the President or any Vice President of the Company and of the
chief financial officer or the chief accounting officer of the Company and a
certificate of an Administrative Trustee of the Trust, dated as of the Closing
Date, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1 hereof were true and
correct, in all material respects, when made and are true and correct, in all
material respects, with the same force and effect as though expressly made at
and as of the Closing Date, 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 Date.
(h) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Underwriters shall have received from Ernst & Young LLP a letter,
dated such date, in form and substance reasonably satisfactory to the
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to Underwriters with respect to the
financial statements and certain financial information contained in the
Prospectus.
-17-
(i) Bring-down Comfort Letter. At the Closing Date, the Underwriters shall
have received from Ernst & Young LLP a letter, dated as of the Closing Date, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (h) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Date.
(j) On or before the Closing Date, the Representatives and counsel for the
Underwriters shall have received such further certificates, documents or other
information as they may have reasonably requested from the Company.
(k) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Offerors at any
time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 6, 7 and 8 and this Section 5(l) shall survive any such
termination and remain in full force and effect.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase any pay
for any Option Preferred Securities shall be subject, in their discretion, to
each of the foregoing conditions to purchase the Firm Preferred Securities,
except that all references to the Firm Preferred Securities and the First
Closing Date shall be deemed to refer to such Option Preferred Securities and
the related Second Closing Date, respectively.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Offerors agree to jointly and
severally indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact included in the Registration Statement
or any amendment to the Registration Statement, including the information
deemed to be part of the Registration Statement pursuant to Rule 430A(b) of
the 1933 Act Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue
-18-
statement of a material fact contained in any preliminary prospectus or
prospectus, including the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Offerors; and
(iii) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by X.X. Xxxxxxxx),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above; provided, however, that this Section 6(a) shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Offerors by any Underwriter through X.X. Xxxxxxxx expressly for use in
the Registration Statement or any amendment to the Registration Statement
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto). Such written information provided by the Underwriters
is referred to as "Underwriter Information."
The foregoing indemnification with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Preferred Securities, or any person controlling such Underwriter, if a copy
of the Prospectus (as then amended or supplemented if the Offerors shall
have furnished any amendments or supplements thereto) was not sent or given
by or on behalf of such Underwriter to such person, if such is required by
law, at or prior to the written confirmation of the sale of such shares to
such person and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, claim, damage or liability.
(b) Indemnification of Offerors, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors and
officers, the Trust, each of the Trustees and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and
-19-
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Offerors by such Underwriter through the Representatives expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by X.X. Xxxxxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Offerors. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
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. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
SECTION 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances under which the indemnification provided for in
Section 6 hereof is for any reason held to be unenforceable by an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and the Underwriters on the other hand from the offering of the Preferred
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) above is not permitted by
-20-
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
considerations.
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand in connection with the offering of the Preferred
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Preferred Securities pursuant to this Agreement (before deducting expenses)
received by the Offerors and the total commission received by the Underwriters
in the Preferred Offering, bear to the aggregate initial offering price of the
Preferred Securities. The relative fault of the Company, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or the Underwriters, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Preferred Securities purchased by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have
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the same rights to contribution as such Underwriter, and each officer and
director of the Company, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the 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 Underwriter or controlling
person, or by or on behalf of the Trust or the Company, and shall survive
delivery of the Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Underwriters may terminate this Agreement
with respect to the Firm Preferred Securities or any Option Preferred
Securities, by notice to the Offerors, at any time at or prior to the First
Closing Date or the Second Closing Date, respectively (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Trust or the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or any outbreak of hostilities or escalation thereof or
other calamity or crisis, in each case the effect of which is such as to make
it, in the judgment of the Underwriters, impracticable to market the Preferred
Securities or to enforce contracts for the sale of the Preferred Securities, or
(iii) if trading in any securities of the Company has been suspended or limited
by the Commission, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the Nasdaq National Market System has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or Alabama authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 6, 7,
and 8 and this Section 9 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters shall fail at the First Closing Date or at the Second
Closing Date to purchase the First Preferred Securities or the Option Preferred
Securities, as the case may be, which
-22-
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Underwriters shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any
other Underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Underwriters shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the total
number of Securities to be purchased hereunder, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective purchasing obligations
hereunder bear to the purchasing obligations of all non-defaulting Underwriters,
or
(b) if the number of Defaulted Securities exceeds 10% of the Securities to
be purchased hereunder, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Underwriters or the Company shall have the right to
postpone the First Closing Date or the Second Closing Date, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters c/o X.X. Xxxxxxxx at 000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, attention of Xxxxxxx Xxxxx with a
copy to Xxxxxx & Bird LLP, 000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx Xxxxxxxx, 00xx
Xxxxx, Xxxxxxxxxx, X.X. 00000, attention of Xxxxx X. Xxxxxx III; notices to the
Offerors shall be directed to New South Bancshares, Inc., 0000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, attention of Xxxxxx X. Xxxxx, President,
with a copy to Xxxxx & Xxxxxxx LLP, 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx
00000, attention of Xxxxxx X. Xxxxx, Xx..
SECTION 12. Parties. This Agreement shall each inure to the benefit of
-------
and be binding upon the Underwriters and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Offerors and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained.
-23-
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Underwriters and the Offerors and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Preferred Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TENNESSEE.
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
-24-
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 Underwriters and the Offerors in accordance with its terms.
Very truly yours,
NEW SOUTH BANKSHARES, INC.
By:
-----------------------------------
Title:
-----------------------------------
NEW SOUTH CAPITAL TRUST I
By:
-----------------------------------
Title:
-----------------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
X.X. XXXXXXXX & CO.
STERNE, AGEE & XXXXX, INC.
By: X.X. XXXXXXXX & CO.
By:
-----------------------------------
Authorized Signatory
-25-
SCHEDULE A
Number of
Preferred
Name of Underwriters Securities
----------------------------------------------------------- ------------------
X.X. Xxxxxxxx & Co.
Xxxxxx Xxxx & Xxxxx, Inc.
------------------
Total 3,000,000
==================
EXHIBIT A
Form of Opinion of Xxxxx & Xxxxxxx LLP, Counsel for the Company, to be
delivered pursuant to Section 5(b) of this Agreement:
1. The Company is validly existing as a corporation under the laws of
the State of Delaware and has full corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Registration Statement and in the Prospectus. The Company is duly authorized to
transact business and is in good standing in each jurisdiction in which it owns
or leases property of a nature, or transacts business of a type, that would make
such qualification necessary, except to the extent that the failure to so
qualify or to be in good standing would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one enterprise.
2. Based solely on a letter dated ____________ from ______________ of
the Office of Thrift Supervision, the Company is registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended.
3. New South Federal Savings Bank is validly existing as a federally-
chartered stock savings bank under the laws of the United States and has full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and in the
Prospectus New South Federal Savings Bank being referred to herein as the
"Significant Subsidiary." The Significant Subsidiary is duly authorized to
transact business and is in good standing in each jurisdiction in which it owns
or leases property of a nature, or transacts business of a type, that would make
such qualification necessary, except to the extent that the failure to so
qualify or to be in good standing would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one enterprise.
4. All of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and non-assessable and
have not been issued in violation of the preemptive rights of any shareholder of
the Company.
5. Under the laws of the State of Delaware, its Certificate of
Incorporation and its Bylaws, the Company has the corporate power and authority
to execute and deliver, and to perform its obligations under, the Operative
Documents to which it is a party and to issue and perform its obligations under
the Subordinated Debentures.
6. This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by the Enforceability
Exceptions.
A-1
7. The Trust Agreement has been duly authorized, executed and delivered
by the Company.
8. Each of the Guarantees has been duly and validly authorized, executed
and delivered by the Company, and constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions; and the Preferred Securities Guarantee has been duly
qualified under the 1939 Act.
9. The Indenture has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by the Enforceability
Exceptions; and the Indenture has been duly qualified under the 1939 Act.
10. The Subordinated Debentures have been duly and validly authorized for
issuance by the Company, and when executed, authenticated and delivered in the
manner provided for in the Indenture and paid for in accordance with the
Subordinated Debenture Purchase Agreement, will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by the Enforceability Exceptions;
and the issuance of the Subordinated Debentures is not subject to preemptive or
other similar rights arising under the Certificate of Incorporation or Bylaws of
the Company, under the laws of the State of Delaware or, to our knowledge of
such counsel, otherwise.
11. Such counsel has reviewed the statements in the Prospectus under the
captions "Capitalization," "Description of the Preferred Securities,"
"Description of the Subordinated Debentures," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Subordinated Debentures and
the Guarantee," and "Description of New South Capital Stock," to the extent that
such statements purport to summarize certain provisions of the Preferred
Securities, the Subordinated Debentures, the Guarantee, the Indenture, the
Common Stock, the Company's Certificate of Incorporation and Bylaws, and the
Delaware General Corporation Law, and such statements fairly summarize such
provisions in all material respects and conform in all material respects to the
instruments defining the same.
12. Neither the Company nor the Trust is or, immediately following
consummation of the transactions contemplated by the Agreement, will be required
to be registered under the Investment Company Act of 1940, as amended.
13. Except as disclosed in the Registration Statement or the Prospectus,
to the knowledge of such counsel, there is no action, suit or proceeding before
or by any government, governmental instrumentality or court, domestic or
foreign, now pending or threatened against or affecting the Company or any
subsidiary that in the final outcome
A-2
would in our judgment result in any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, or that could
materially and adversely affect the properties or assets of the Company and its
subsidiaries considered as one enterprise, or that would adversely affect the
consummation of the transactions contemplated in the Operative Documents. To
the knowledge of such counsel, the aggregate liability or loss, if any,
resulting from the final outcome of all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or which affect
any of its properties that are not described in the Registration Statement or
the Prospectus, including ordinary routine litigation incidental to its
business, would not have a material adverse effect on the condition, financial
or otherwise, earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
14. The execution and delivery by the Company of the Operative Documents
to which it is a party, the issuance and delivery of the Preferred Securities
and the Common Securities and the consummation by the Company of the
transactions contemplated by the Operative Documents do not and will not violate
or conflict with the Certificate of Incorporation or the Bylaws of the Company.
15. The execution and delivery by the Company of the Operative Documents
to which it is a party, the issuance and delivery of the Preferred Securities
and the Common Securities and the consummation by the Company of the
transactions contemplated by the Operative Documents 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 or any
subsidiary under (a) any indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or any subsidiary is a party
or by which it may be bound or to which any of its properties may be subject and
which would have been filed as an exhibit to the Company's Annual Report on Form
10-K for the year ended December 31, 1997, if the Company had been required to
file such a report, or (b) to the knowledge of such counsel, any existing
applicable law, rule, regulation, qualification, judgment, order or decree of
any governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of its properties, except
for such conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company or
its subsidiaries considered as one enterprise.
16. No Governmental Approval which has not been made or obtained is
required for the execution or delivery by the Company of the Operative Documents
to which it is a party, or the consummation by the Company of the transactions
contemplated thereby, except approvals issued by the NASD and pursuant to the
securities or "blue sky" laws of the State of Alabama, as to which such counsel
need express no opinions.
A-3
17. The Registration Statement and any post-effective amendments thereto
have become effective under the 1933 Act and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement or such
amendments thereto has been issued under the 1933 Act, and no proceeding
therefor has been instituted or is pending or threatened by the Commission.
18. The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the Closing Date
(other than the financial statements and related notes thereto, related
schedules and financial and statistical data, and descriptions of accounting
treatment included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations.
19. In addition, such counsel shall state that they have participated in
the preparation of the Registration Statement and the Prospectus and, while they
are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as specified above), or the basis of the
foregoing, no facts have come to the attention of such counsel to lead them to
believe that, as of the effective date of the Registration Statement or any
post-effective amendment thereto or the date of the Prospectus or as of the
Closing Date, either the Registration Statement, any post-effective amendment
thereto, or the Prospectus (or, as of its date, any further amendment or
supplement thereto made by the Company prior to the Closing Date) contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (except for the
financial statements and related notes thereto, related schedules and financial
and statistical data, and descriptions of accounting treatment included therein,
as to which such counsel need express no belief).
20. Such counsel does not know of any amendment or supplement to the
Registration Statement or any post-effective amendment thereto required to be
filed or of any contract, agreement, instrument, lease, license, arrangement or
understanding of a character required to be filed as an exhibit to, described
in, the Registration Statement, post-effective amendment thereto, or the
Prospectus, as amended or supplemented, which is not filed or described as
required.
A-4
EXHIBIT B
Form of Opinion of Xxxxxxxx, Xxxxxx & Finger, Special Delaware Counsel to
the Offerors, to be delivered pursuant to Section 5(c) of this Agreement:
1. The Trust has been duly created and is validly existing in good
standing as a statutory business trust under the Delaware Business Trust Act.
2. Under the Delaware Business Trust Act and the Trust Agreement, the
Trust has the trust power and authority to (a) execute and deliver, and to
perform its obligations under, the Operative Documents to which it is a party,
(b) issue and perform its obligations under the Preferred Securities and the
Common Securities, and (c) conduct its business as described in the
Registration Statement, or the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of the
Company and the Administrative Trustees, and is enforceable against the Company
and the Administrative Trustees, in accordance with its terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent conveyance or
transfer 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 or
contribution.
4. The Preferred Securities have been duly authorized by the Trust
Agreement, and the Preferred Securities, when duly issued, executed and
authenticated in accordance with the Trust Agreement and delivered and paid for
in accordance with the Agreement, will be, subject to the qualifications set
forth in paragraph 6 below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust and will be entitled to the benefits of the
Trust Agreement, except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer 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 or contribution.
5. The Common Securities have been duly authorized for issuance by the
Trust Agreement and, when issued, executed and authenticated in accordance with
the Trust Agreement and delivered and paid for in accordance with the Common
Security Purchase Agreement, will be validly issued undivided beneficial
interests in the assets of
B-1
the Trust. The issuance of the Common Securities is not subject to preemptive
rights under the Delaware Business Trust Act or the Trust Agreement.
6. The holders of the Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the Delaware General Corporation Law.
We bring to your attention, however, that the holders of the Preferred
Securities may be obligated, pursuant to the Trust Agreement, to (a) provide
indemnity and/or security in connection with, and pay taxes or governmental
charges arising from, transfers or exchange of Preferred Securities and the
issuance of replacement Preferred Securities Certificates and (b) provide
security or indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and powers under the Trust Agreement.
7. No authorization, approval, consent or order of any Delaware court or
any Delaware governmental authority or Delaware agency is required to be
obtained by the Trust solely in connection with the execution, delivery or
performance by the Trust of the Operative Documents to which it is a party, or
the consummation by the Trust of the transactions contemplated thereby or the
issuance and sale of the Preferred Securities. We express no opinion in this
paragraph 7, however, as to any governmental approvals which may be required
under state securities or "blue sky" laws.
8. None of the execution and delivery by the Trust of the Operative
Documents, or the issuance and sale of the Preferred Securities by the Trust in
accordance with the terms of the Agreement or the consummation by the Trust of
the other transactions contemplated thereby, (a) violate any applicable Delaware
laws, or (b) conflict with the Certificate of Trust or the Trust Agreement,
except that we express no opinion in this paragraph 8 with respect to (i) the
rights to indemnity and contribution contained in the Trust Agreement which may
be limited by state securities laws or the public policy underlying such laws or
(ii) any state securities or "blue sky" laws.
B-2
EXHIBIT C
Form of Opinion of Xxxxxx & Xxxxxx, Special Counsel for the Property
Trustee, Guarantee Trustee, and Debenture Trustee to be delivered pursuant to
Section 5(d) of this Agreement:
1. Bankers Trust Company is a New York banking corporation validly
existing under the laws of the State of New York.
2. The Indenture Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture and has taken
all necessary action to authorize the execution, delivery and performance by it
of the Indenture.
3. The Guarantee Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Guarantee, and has taken
all necessary action to authorize the execution, delivery and performance by it
of the Guarantee.
4. The Property Trustee has the requisite power and authority to execute
and deliver the Trustee Agreement, and has taken all necessary action to
authorize the execution and delivery of the Trust Agreement.
5. Each of the Indenture and the Guarantee has been duly executed and
delivered by the Indenture Trustee and the Guarantee Trustee, respectively, and
constitutes a legal, valid and binding obligation of the Indenture Trustee and
the Guarantee Trustee, respectively, enforceable against the Indenture Trustee
and the Guarantee Trustee, respectively, in accordance with its respective
terms, except that certain payment obligations may be enforceable solely against
the assets of the Trust and except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation, or other
similar laws affecting the enforcement of creditors' rights generally, and by
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
6. The Securities delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
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