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EXHIBIT 1(a)
DEALER MANAGER AGREEMENT
, 1997
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXX XXXXXX INC.
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
General Motors Capital Trust D (the "Series D Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Act") of
the State of Delaware (Chapter 38, Title 12 of the Delaware Code, 12 Del. C.
Section 3801 et. seq.), pursuant to the Amended and Restated Declaration of
Trust, to be dated as of the Exchange Date (as defined herein) (the "Series D
Declaration"), among General Motors Corporation (the "Company"), as sponsor,
Wilmington Trust Company, as institutional trustee (the "Series D Institutional
Trustee"), Wilmington Trust Company (Delaware), as Delaware trustee (the "Series
D Delaware Trustee"), and the other trustees specified therein, as regular
trustees (the "Series D Regular Trustees" and together with the Series D
Institutional Trustee and the Series D Delaware Trustee, the "Series D
Trustees"), and the holders from time to time of undivided beneficial ownership
interests in the assets of the Series D Trust, proposes to issue its % Trust
Originated Preferred Securities (" % TOPrS(SM)"), (the "Series D Preferred
Securities"), in exchange for up to 5,462,917
__________________________________
(SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks
of Xxxxxxx Xxxxx & Co., Inc.
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depositary shares, each representing one-fourth of a share of the Company's
Series D 7.92% Preference Stock, par value $0.10 per share (the "Series D
Target Securities"). In addition, General Motors Capital Trust G (the "Series
G Trust", a statutory business trust organized under the Delaware Act, pursuant
to the Amended and Restated Declaration of Trust, to be dated as of the
Exchange Date (as defined herein) (the "Series G Declaration"), among the
Company, as sponsor, Wilmington Trust Company, as institutional trustee (the
"Series G Institutional Trustee"), Wilmington Trust Company, as Delaware
trustee (the "Series G Delaware Trustee"), and the other trustees specified
therein, as regular trustees (the "Series G Regular Trustees" and, together
with the Series G Institutional Trustee and the Series G Delaware Trustee, the
"Series G Trustees"), and the holders from time to time of undivided beneficial
ownership interests in the assets of the Series G Trust, proposes to issue its
% Trust Originated Preferred Securities (" % TOPrS(SM)")(the "Series G
Preferred Securities"), in exchange for up to 9,071,910 depositary shares, each
representing one-fourth of a share of the Company's Series G 9.12% Preference
Stock, par value $0.10 per share (the "Series G Target Securities"). As used
in this agreement, the Series D Trust and the Series G Trust are referred to
collectively as the "Trusts", the Series D Declaration and the Series G
Declaration are referred to collectively as the "Declarations", the Series D
Institutional Trustee and the Series G Institutional Trustee are referred to
collectively as the "Institutional Trustees", the Series D Delaware Trustee and
the Series G Delaware Trustee are referred to collectively as the "Delaware
Trustees", the Series D Regular Trustees and the Series G Regular Trustees are
referred to collectively as the "Regular Trustees", the Institutional Trustees,
Delaware Trustees and Regular Trustees are referred to collectively as the
"Trustees", the Series D Preferred Securities and the Series G Preferred
Securities are referred to collectively as the "Preferred Securities", and the
Series D Target Securities and the Series G Target Securities are referred to
collec- tively as the "Target Securities." The Preferred Securities will be
guaranteed (the "Guarantees") by the Company to the extent described in the
Prospectus (as hereinafter defined). The exchange offers described above are
herein referred to as the "Exchange Offers" and any exchange of Preferred
Securities for Target Securities pursuant to the Exchange Offers is herein
referred to as an "Exchange". In connection with the Exchange Offers, the
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Company will deposit in the Series D Trust as trust assets its % Junior
Subordinated Deferrable Interest Debentures, Series D, due [ ], 2012 (the
"Series D Debentures") and will deposit in the Series G Trust as trust assets
its % Junior Subordinated Deferrable Interest Debentures, Series G, due [
], 2012 (the "Series G Debentures" and, collectively with the Series D
Debentures, the "Debentures"), as set forth in the Prospectus, to be issued
pursuant to an Indenture (the "Indenture"), dated [ ], between the
Company and Wilmington Trust Company, as trustee (the "Indenture Trustee").
Each of the Company and each of the Trusts hereby confirms its
agreement with Xxxxxxx Xxxxx & Co. ("Xxxxxxx Xxxxx") and Xxxxx Xxxxxx Inc. (the
"Dealer Managers") as follows:
1. Registration Statement, Prospectus and Offering Materials.
The Company and the Trusts have prepared and filed with the Securities and
Exchange Commission (the "Commission"), under the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations of the Commission
promulgated thereunder (the "Securities Act Regulations"), a registration
statement on Form S-4 covering the registration of the Preferred Securities, the
Guarantees and the Debentures, including the final prospectus. Each prospectus
used before the time such registration statement becomes effective is herein
called a "preliminary prospectus". Such registration statement, including the
exhibits thereto and any documents incorporated by reference therein, as amended
at the time it becomes effective or as thereafter amended or supplemented from
time to time, is herein called the "Registration Statement". The final
prospectus included in the Registration Statement (including any documents
incorporated in the prospectus by reference) is herein called the "Prospectus",
except that if the final prospectus furnished to the Dealer Managers for use in
connection with the Exchange Offers differs from the prospectus set forth in the
Registration Statement (whether or not such prospectus is required to be filed
pursuant to Rule 424 (b)), the term "Prospectus" shall refer to the final
prospectus furnished to the Dealer Managers for such use. The terms
"supplement" and "amendment" or "amend" as used herein with respect to the
Prospectus shall include all documents deemed to be incorporated by reference in
the Prospectus that are filed subsequent to the date of the Prospectus and
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prior to the termination of the Exchange Offers by the Company and the Trusts
with the Commission pursuant to the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder
(collectively, the "Exchange Act").
The Registration Statement, Prospectus and the related letters from
the Dealer Managers to securities brokers, dealers, commercial banks, trust
companies and other nominees, letters to beneficial owners of Target Securities,
letters of transmittal (the "Letters of Transmittal"), notices of guaranteed
delivery (the "Notices of Guaranteed Delivery"), the Issuer Tender Offer
Statement on Schedule 13E-4 and any newspaper announcements, press releases and
other offering materials and information the Company may use or prepare, approve
or authorize for use in connection with the Exchange Offers, as amended or
supplemented from time to time, are herein collectively referred to as the
"Offering Materials".
2. Exchange Offers; Agreement to Act as Dealer Managers. (a)
The Company and the Trusts intend to commence the Exchange Offers as soon as
practicable after the Registration Statement becomes effective under the
Securities Act by publicly announcing their commencement and by mailing, or
causing to be mailed on its behalf, copies of the Prospectus, the related Letter
or Letters of Transmittal and such of the other Offering Materials as is
required or as the Company and the Trusts elect to each holder of Target
Securities (the date of the commencement of such distribution being herein
called the "Commencement Date").
(b) The Company hereby appoints you as Dealer Managers and
authorizes you to act on behalf of it and the Trusts in connection with this
Agreement and the terms of the Exchange Offers. As Dealer Managers, you agree,
in accordance with the Offering Materials and otherwise in accordance with
customary practice, to perform those services in connection with the Exchange
Offers as are customarily performed by investment banking concerns in connection
with issuer exchange offers of like nature, including, but not limited to,
soliciting tenders pursuant to the Exchange Offers and communicating generally
regarding the Exchange Offers with brokers, dealers, commercial banks and trust
companies and other persons, including the holders of Target Securities. You
further agree to be
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regarded as the broker-dealers that are making the Exchange Offers on behalf of
the Company and the Trusts to holders of Target Securities in any state of the
United States in which it is required that such offers be made by or through a
registered or licensed broker-dealer, and you represent that you are registered
or licensed as broker-dealers in each of such states.
(c) The Company acknowledges and agrees that you have been retained
to act solely as Dealer Managers in connection with the Exchange Offers. In
such capacity, you shall act as independent contractors, and any of your duties
arising out of your engagement pursuant to this Agreement shall be owed solely
to the Company and the Trusts.
(d) The Company further authorizes you to communicate with The First
National Bank of Boston, in its capacity as exchange agent (the "Exchange
Agent"), and with Xxxxxxxxx & Company Inc., in its capacity as information agent
(the "Information Agent"), with respect to matters relating to the Exchange
Offers.
(e) The Company agrees to use reasonable best efforts to (i) provide
you for your use in connection with the Exchange Offers any cards, lists or
other records the Company or its agents maintain showing the names and addresses
of, and the numbers of Target Securities held by, the holders of Target
Securities as of a recent date, (ii) provide other information in its possession
concerning the holders of Target Securities reasonably requested by you in
connection with the Exchange Offers and (iii) cause you to be advised each
business day during the period of the Exchange Offers as to any transfers of
record of Target Securities known to the Company, the Exchange Agent or the
Information Agent.
(f) The Company agrees to furnish you at its expense with as many
copies as you may reasonably request of the Offering Materials and all other
related materials, filed by the Company and the Trusts with the Commission or
otherwise authorized by the Company for use in connection with the Exchange
Offers, as such materials may be amended, modified or supplemented from time to
time. The Offering Materials have been or will be prepared and approved by, and
are the sole responsibility of, the Company and the Trusts, and the Company and
the Trusts authorize you to use
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the Offering Materials in connection with the Exchange Offers in accordance
herewith and subject to the terms and conditions described in the Offering
Materials. You agree that you shall not disseminate to customers or Soliciting
Dealers (as hereinafter defined) or otherwise use any materials in connection
with the solicitation of tenders other than the Offering Materials and such
other materials, if any, as the Company and its counsel may approve in advance
of any dissemination or use by you. You shall have no obligation to cause
copies of the Offering Materials to be transmitted generally to the holders of
Target Securities.
3. Compensation. (a) The Company hereby agrees to pay to the
Dealer Managers for services rendered and to be rendered by them in connection
with the Exchange Offers a fee (the "Management Fee") in the aggregate equal to
$0.125 per Depositary Share of the Target Securities validly tendered and
accepted for exchange pursuant to the Exchange Offers. The Management Fee shall
be paid only if the Exchange Offers are consummated, and shall be paid within
one week after the consummation of the Exchange Offers.
(b) The Company agrees to pay to any Soliciting Dealer (as
defined below) a solicitation fee of $0.50 per Depositary Share of Target
Securities (except that in the case of transactions equal to or exceeding 10,000
Depositary Shares of Target Securities of any given series, the Company will pay
a solicitation fee of $0.25 per Depositary Share) for Target Securities tendered
and accepted for Exchange pursuant to either of the Exchange Offers, provided
that such Target Securities are covered by a Letter of Transmittal which
properly designates, as having solicited and obtained the tender, the name of
(i) any dealer or broker in securities, including any Dealer Manager in its
capacity as a dealer or broker, who is a member of any national securities
exchange or of the National Association of Securities Dealers, Inc. ("NASD"),
(ii) any foreign dealer or broker not eligible for membership in the NASD which
agrees to conform to the NASD's Rules of Fair Practice in soliciting tenders
outside the United States as if it were an NASD member, or (iii) any bank or
trust company, any one of which has solicited and obtained the tender of Target
Securities pursuant to the Exchange Offers (each of which is referred to herein
as a "Soliciting Dealer"). No such fee shall be payable to a
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Soliciting Dealer in respect of Target Securities beneficially owned by such
Soliciting Dealer or registered in the name of such Soliciting Dealer unless
such Target Securities are held by such Soliciting Dealer as nominee and such
Target Securities are being tendered for the benefit of one or more beneficial
owners identified on the applicable Letter of Transmittal. No such fee shall
be payable to a Soliciting Dealer (i) with respect to the tender of Target
Securities by a holder unless the applicable Letter of Transmittal accompanying
such tender designates such Soliciting Dealer as such, (ii) with respect to a
tender by the holder of record, for the benefit of the beneficial owner, of
Target Securities unless such beneficial owner has designated such Soliciting
Dealer as such, (iii) unless the Soliciting Dealer returns a properly completed
Notice of Solicited Tenders to the Exchange Agent within three (3) trading days
after the expiration of the applicable Exchange Offer or (iv) to the extent
such Soliciting Dealer is required for any reason to transfer the amount of
such fee to any person (other than itself). No Soliciting Dealer shall be
deemed to be the agent of the Company or the Trusts. Neither the Company nor
the Trusts shall be deemed to be (i) an agent of any Soliciting Dealer
including any Dealer Manager in its capacity as a Soliciting Dealer, or (ii) an
agent of any Dealer Manager in its capacity as Dealer Manager.
4. Expenses, Reimbursement. The Company agrees to reimburse the
Dealer Managers through Xxxxxxx Xxxxx for up to $100,000 of their reasonable
out-of-pocket expenses incurred in connection with the Exchange Offers,
including, without limitation, the reasonable fees and expenses of a single law
firm acting as legal counsel for the Dealer Managers. The Dealer Managers,
through Xxxxxxx Xxxxx, xxxx provide to the Company documentation with reasonable
detail in connection with and at the time of their request for reimbursement of
such expenses.
5. Certain Covenants of the Trusts and the Company. Each of the
Company and each of the Trusts covenants jointly and severally with the Dealer
Managers:
(a) To use reasonable efforts to notify the Dealer Managers as
soon as practicable and, if requested by the Dealer Managers, will confirm the
notice in writing, (i) when the Registration Statement and any post-effective
amendment to the Registration Statement shall have become
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effective, or any supplement to the Prospectus or any amended Prospectus or any
amended or additional Offering Materials shall have been filed, (ii) of the
receipt of any comments from the Commission relating to the Exchange Offers,
(iii) of any request by the Commission to amend the Registration Statement or
amend or supplement the Prospectus or the other Offering Materials or for
additional information relating to the Exchange Offers and (iv) of (A) the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or (B) the issuance by the Commission of any order
preventing or suspending the use of any of the Offering Materials or (C) the
suspension of the qualification of the Preferred Securities for offering or
sale in connection with the Exchange Offers in any jurisdiction or (D) the
institution or threatening of any proceedings for any of such purposes or (E)
the occurrence of any event which reasonably could cause the Company or either
Trust to withdraw, rescind, terminate or modify the Exchange Offers or would
permit the Company or the Trusts to exercise any right not to accept the Target
Securities tendered pursuant to the Exchange Offers. The Company and the
Trusts will make every reasonable effort to prevent the issuance of any such
stop order, the issuance of any order preventing or suspending such use and the
suspension of any such qualification and, if any such order is issued or
qualification suspended, to obtain the lifting of such order or suspension at
the earliest practicable time.
(b) Prior to the termination of the Exchange Offers, before
amending or supplementing the Registration Statement or the Prospectus, to
furnish copies of drafts to, and consult with, the Dealer Managers and their
counsel within a reasonable time in advance of filing with the Commission of any
amendment or supplement to the Registration Statement, the Prospectus or the
other Offering Materials. Neither the Company nor the Trusts shall file any
such amendment or supplement to which the Dealer Managers shall reasonably
object in writing; provided, however, that the foregoing shall not apply to any
of the Company's filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, and the Company will
deliver copies of such filings to the Dealer Managers promptly after being
transmitted for filing with the Commission.
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(c) To make available to the Dealer Managers, without charge, a
signed copy of the Registration Statement, all amendments thereto and any other
filing with the Commission in connection with the Exchange Offers, whether filed
before or after the Registration Statement becomes effective.
(d) To furnish promptly to the Dealer Managers, without charge,
as soon as the Registration Statement shall have become effective and during the
period mentioned in the second sentence of paragraph (e) below such number of
copies of the Prospectus and the other Offering Materials (as supplemented or
amended) as the Dealer Managers may reasonably request and to cause all
amendments and supplements filed with the Commission to be distributed to
holders of Target Securities as may be required by the Securities Act and the
Exchange Act.
(e) To comply in all material respects with the Securities Act,
the Exchange Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), in connection with the Offering Materials, the Exchange Offers
and the transactions contemplated hereby and thereby, as applicable. If at any
time when the Prospectus is required by the Securities Act or the Exchange Act
to be delivered in connection with any solicitation or Exchange any event shall
occur or condition shall exist as a result of which it is necessary to amend the
Registration Statement or amend or supplement the Prospectus or any other
Offering Materials in order that the Prospectus or such other Offering Materials
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements in the Prospectus or
such other Offering Materials, in the light of the circumstances under which
they were made, not misleading or if it shall be necessary to amend the
Registration Statement or amend or supplement the Prospectus or any other
Offering Materials to comply with the requirements of the Securities Act or the
Exchange Act, the Company and the Trusts will promptly prepare, file with the
Commission, subject to Section 5(b) of this Agreement, and furnish, at its own
expense, to the Dealer Managers and to the dealers (whose names and address will
be furnished to the Company by the Dealer Managers) to which Preferred
Securities may have been exchanged, such amendment or supplement as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus or
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such other Offering Materials comply with such requirements.
(f) To endeavor, in cooperation with the Dealer Managers, to
qualify the Preferred Securities for offering and sale in connection with the
Exchange Offers under the applicable securities or Blue Sky laws of such
jurisdictions as the Company and the Trusts may elect and to maintain such
qualifications in effect for such time as may be required for the consummation
of the Exchange Offers; provided, however, that neither the Company nor the
Trusts shall 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; provided, further, that the Dealer Managers shall not be obligated to
solicit tenders in jurisdictions where the Preferred Securities are not
qualified for offer and sale. The Company and the Trusts will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Preferred Securities have been qualified as above provided.
(g) In the case of the Company, to make generally available to
its security holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section 11(a) of the
Act and the rules and regulations of the Commission thereunder (including, at
the option of the Company, Rule 158).
(h) To use its reasonable best efforts to effect the listing of
the Preferred Securities on the New York Stock Exchange, Inc. (the "NYSE"),
subject to official notice of issuance, as soon as practicable prior to the
Exchange Date.
(i) To timely file any report or other document required to be
filed by the Company or the Trusts with the Commission pursuant to Section 13,
14 or 15 of the Exchange Act during the period of time referred to in the second
sentence of Section 5(e) hereof.
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(j) Subject to Section 4 of this Agreement, to pay all costs and
expenses incurred in connection with the performance of its obligations in
connection with this Agreement and the Solicitations including, without
limitation, (i) the preparation, printing and filing of the Registration
Statement, as originally filed and as amended, the preliminary prospectuses, the
Prospectus and the other Offering Materials and any amendments or supplements to
any of the foregoing, and the cost of furnishing copies thereof to the Dealer
Managers, (ii) the preparation and distribution of this Agreement and any Blue
Sky surveys and the printing of certificates for the Preferred Securities, (iii)
the distribution of the Offering Materials to the holders of the Target
Securities, (iv) the fees and disbursements of counsel to the Company and the
Trusts, and the Company's and the Trusts' accountants, (v) the qualification of
the Preferred Securities under the applicable securities laws in accordance with
Section 5(f) of this Agreement, (vi) the fees and expenses of the Trustees, the
Indenture Trustee, the trustee under the Guarantees (the "Guarantee Trustee"),
the Information Agent and the Exchange Agent and (vii) all other costs and
expenses incident to the Solicitations incurred by the Trusts and the Company
and its subsidiaries. The Company agrees to pay all of the aforementioned costs
and expenses whether or not either Exchange Offer is consummated.
(k) To advise or cause the Exchange Agent to advise the Dealer
Managers at 5:00 P.M., New York City time, or as promptly as practicable
thereafter, daily, by telephone or facsimile transmission, as of 4:00 P.M. on
such day with respect to Target Securities tendered as follows:
(i) the number of shares of Target Securities validly tendered
represented by certificates physically held by the Exchange Agent (or for which
the Exchange Agent has received confirmation of receipt of book-entry transfer
of such Target Securities into the Exchange Agent's account at a Depository
Institution (as defined in the Prospectus) pursuant to the procedures set forth
in the Exchange Offers) on such day;
(ii) the number of shares of Target Securities represented by
Notices of Guaranteed Delivery on such day;
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(iii) the number of shares of Target Securities properly
withdrawn on such day;
(iv) the cumulative number of shares of Target Securities in
categories (i) through (iii) above.
On the day following such oral communication, the Company shall
furnish or cause the Exchange Agent to furnish to the Dealer Managers a written
report confirming the above information which has been communicated orally. The
Company shall furnish or cause the Exchange Agent to furnish to the Dealer
Managers such reasonable information on the tendering holders of Targeted
Securities as may be requested from time to time.
(l) To give the Dealer Managers notice of any change of the
expiration time of the Exchange Offers (the "Expiration Time").
6. Representations and Warranties of the Company and the Trusts.
Each of the Company and each of the Trusts jointly and severally represents and
warrants to and agrees with the Dealer Managers that:
(a) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 of the Securities Act, will comply when so filed, in all
material respects, as to form with the Securities Act and the Exchange Act; the
Registration Statement at the time it becomes effective and the Prospectus and
any other Offering Materials, on the Commencement Date and on the date on which
the Company commences delivery of the Preferred Securities for exchange of the
Target Securities pursuant to the Exchange Offers (such date, the "Exchange
Date"), will comply, in all material respects, as to form with the Securities
Act and the Exchange Act; the Registration Statement, when it becomes effective,
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and as of the Commencement Date and the Exchange Date,
none of the Prospectus or the other Offering Materials or any amendments or
supplements to such Offering Materials will contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
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which they were made, not misleading, except that the representations and
warranties set forth in this Section 6(a) do not apply (A) to statements or
omissions made based upon and in conformity with information supplied in
writing by the Dealer Managers through Xxxxxxx Xxxxx expressly for use in the
Registration Statement, Prospectus, any other Offering Materials or any
amendments or supplements to any of the foregoing or (B) to that part of the
Registration Statement that constitutes the Statements of Eligibility and
Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of
the Indenture Trustee, the Property Trustees, and the institutional trustee
under the Guarantees.
(b) (i) The Company has the corporate power and authority to
execute, deliver and perform its obligations under this Agreement, the
Declarations, the Indenture and the Guarantees; and this Agreement has been duly
authorized, executed and delivered by the Company.
(ii) Each Trust has the business trust power and authority to
execute, deliver and perform its obligations under this Agreement; and this
Agreement has been duly authorized, executed and delivered by each Trust.
(iii) The Preferred Securities to be issued pursuant to the Exchange
Offers will be duly authorized by the Declarations and, when issued in exchange
for Target Securities pursuant to the Exchange Offers, will be validly issued
and (subject to the terms of the Declarations) fully paid and non-assessable
undivided beneficial interests in the assets of the applicable Trust, not
subject to any preemptive or similar rights, and will conform in all material
respects to all statements relating thereto contained in the Prospectus.
Holders of the Preferred Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit.
(iv) The common securities to be issued by the Trusts to the Company
as described in the Registration Statement (the "Common Securities") will be
duly authorized by the Declarations and, when issued to the Company for cash as
described in the Registration Statement, will be validly issued and (subject to
the terms of the Declarations) fully paid and non-assessable undivided
beneficial interests in the assets of the applicable Trust, not
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subject to any preemptive or similar rights, and will conform in all material
respects to all statements relating thereto contained in the Prospectus.
(c) The Declarations and the Guarantees have been duly authorized
by the Company and, as of the Exchange Date, will have been duly executed and
delivered by the Company. Assuming due authorization, execution and delivery of
the Declarations by the applicable Trustees, the Declarations will, as of the
Exchange Date, be valid and binding obligations of the Company and the Trustees,
enforceable against the Company and the Trustees in accordance with their terms,
except as the same may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights generally, by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), or considerations of public policy or the effect of
applicable law relating to fiduciary duties. As of the Exchange Date, the
Guarantees will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the same may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(d) The Indenture (including any related supplemental
indentures), the Declarations and the Guarantees will be duly qualified under
the Trust Indenture Act and, assuming due authorization, execution and delivery
of the Indenture by the Indenture Trustee and upon execution and delivery by the
Company, the Indenture will be enforceable against the Company in accordance
with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by general
equitable principles, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
(e) The Debentures to be deposited in the Trusts as trust assets
in connection with the Exchange Offers have been duly authorized by the Company,
and, assuming due
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authorization, execution and delivery of the Indenture by the Indenture
Trustee, when executed and authenticated in accordance with the provisions of
the Indenture and delivered to the Trusts pursuant to the terms of the Exchange
Offers will be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, except as the same may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights generally and by
general equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(f) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
(g) The Exchange Offers, the purchase of Target Securities pursuant
thereto and the issuance of the Preferred Securities, and the execution,
delivery and performance of this Agreement, the Declarations, the Indenture, the
Debentures and the Guarantees do not and will not (i) conflict with or violate
the articles of incorporation or by-laws or equivalent organizational documents
of the Company, (ii) conflict with or violate in any material respect any law,
rule, regulations, order, judgment or decree applicable to the Company or the
Trusts or by which any property or asset of the Company or the Trusts is bound
or (iii) result in a breach of or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or other encumbrance on any property or asset of the
Company or the Trusts pursuant to, any indenture, loan agreement or other
material agreement, instrument or contract to which the Company or the Trusts or
any of the Company's subsidiaries is a party, or by which the Company or the
Trusts or any of the Company's subsidiaries, or any property or asset of the
Company or the Trusts or any of the Company's subsidiaries, is bound; except,
with regard to clauses (ii) and (iii), where any such conflict, breach or
default would not materially adversely affect the ability of the Company or
either Trust to execute, deliver and perform this Agreement, the Declarations,
the Indenture, the Debentures and
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the Guarantees or to commence and consummate the Exchange Offers.
(h) Except as disclosed in the Prospectus, the Exchange Offers, the
purchase of Target Securities pursuant thereto, the issuance of the Preferred
Securities and the execution, delivery and performance of this Agreement, the
Declarations, the Indenture, the Debentures and the Guarantees comply and will
comply in all material respects with all applicable laws, including the Exchange
Act and the various state securities or "blue sky" laws and state "takeover"
statutes (collectively, "State Laws") and with all applicable regulations of any
governmental or regulatory agency, and neither the execution, delivery and
performance of this Agreement, the Declarations, the Indenture, the Debentures
and the Guarantees by the Company and the Trusts, nor the commencement and
consummation by the Company and the Trusts of the Exchange Offers, in accordance
with their terms, require or will require any consent, approval, authorization
or permit of, or filing with or notification to, any governmental or regulatory
agency, except for such consents, approvals, authorizations, permits or other
actions which have been obtained and are in full force and effect and any such
filings or notifications which have been made or will be made in compliance with
applicable law, except where the failure to so comply, or to obtain or make such
consent, approval, authorization, permit, filing or notification, would not
materially adversely affect the ability of the Company or either Trust to
execute, deliver and perform this Agreement, the Declarations, the Indenture,
the Debentures and the Guarantees or to commence and consummate the Exchange
Offers.
(i) No restraining order or denial of any application for approval
has been issued or proceedings, litigation or investigation initiated or, to the
best knowledge of the Company, threatened, with respect to the Exchange Offers,
the purchase of Target Securities pursuant thereto or the execution, delivery
and performance of this Agreement, the Declarations, the Indenture, the
Debentures and the Guarantees by or before any governmental or regulatory
agency, or any court.
(j) Each Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act, is and will be treated
as a "grantor
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trust" for federal income tax purposes under existing law, has the business
trust power and authority to conduct its business as presently conducted and as
described in the Prospectus, and is not required to be authorized to do
business in any other jurisdiction.
(k) Neither of the Trusts nor the Company is or, after giving
effect to the consummation of the Exchange Offers, will be, and neither of the
Trusts nor the Company is directly or indirectly controlled by, or acting on
behalf of any person which is, an investment company within the meaning of the
Investment Company Act of 1940, as amended.
(l) The documents incorporated by reference or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference or deemed to be incorporated by
reference in the Registration Statement and the Prospectus or any further
amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder, and will
not contain an untrue statement or a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the representations and warranties set
forth in this Section 6(l) shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Trusts or the Company by the Dealer Managers through Xxxxxxx Xxxxx expressly for
use in the Registration Statement and the Prospectus as amended or supplemented.
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7. Indemnification; Limitation of Indemnified Party Liability;
Contribution.
(a) Each of the Company and the Trusts jointly and severally
agrees to (i) indemnify and hold you and your affiliates, and you and your
affiliates' respective directors, officers, employees, agents and controlling
persons (you and each such person being an "Indemnified Party") harmless from
and against any loss, damage, expense, liability or claim (or action in respect
thereof) (A) which arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Offering Materials
or any of the documents referred to therein or in any amendment or supplement to
any of the foregoing, or which arises out of or is based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such loss, damage,
expense, liability or claim arises out of or is caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished to the Company in writing by any Indemnified Party through
Xxxxxxx Xxxxx expressly for use therein, (B) which arises out of or is based
upon any breach by the Company or a Trust of any representation or warranty or
failure to comply with any of the agreements set forth herein or (C) which
arises out of or is based upon a withdrawal, rescission, termination or
modification of or a failure to make or consummate the Exchange Offers; and (ii)
to indemnify and hold each Indemnified Party harmless against any other loss,
damage, expense, liability or claim (or action in respect thereof) which
otherwise arises out of or is based upon or asserted against such Indemnified
Party in connection with your activities as Dealer Managers under this Agreement
and as Dealer Managers in connection with the Exchange Offers or in connection
with your rendering any financial advisory services to the Company in connection
with the Exchange Offers or your rendering any financial advisory services to
the Company in connection with any other matter referred to in this Agreement,
except to the extent that any loss, damage, expense, liability or claim referred
to in clause (i)(C) or this clause (ii) of this Section 7(a) is found in a final
judgment by a court to have resulted primarily from your gross negligence, bad
faith or willful misconduct in performing such services and activities. The
Company and
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the Trusts will reimburse any Indemnified Party for all reasonable expenses
(including reasonable counsel fees and expenses) as they are incurred in
connection with the investigation of, preparation for or defense of any pending
or threatened claim or any action or proceeding arising therefrom, whether or
not such Indemnified Party is a party. The Company and the Trusts also agree
that no Indemnified Party shall have any liability to the Company, the Trusts
or any person asserting claims on behalf of or in right of the Company or the
Trusts in connection with your activities as Dealer Managers under this
Agreement and as Dealer Managers in connection with the Exchange Offers or in
connection with your rendering any financial advisory services to the Company
in connection with the Exchange Offers or your rendering any financial advisory
services to the Company or the Trusts in connection with any other matter
referred to in this Agreement, except to the extent that any loss, damage,
expense, liability or claim incurred by the Company or the Trusts is found in a
final judgment by a court to have resulted primarily from your gross
negligence, bad faith or willful misconduct in performing such services and
activities.
(b) Promptly after receipt by an Indemnified Party of notice of
its involvement in any action, proceeding, claim or investigation, such
Indemnified Party shall notify the Company and the Trusts in writing of such
involvement, but the omission so to notify the Company and the Trusts shall not
relieve them from any liability which they may have hereunder, except to the
extent that they are materially prejudiced by such omission. In case any such
action, proceeding, claim or investigation shall be brought against or otherwise
involve an Indemnified Party and such Indemnified Party shall promptly notify
the Company and the Trusts of the commencement thereof or its involvement
therein, the Company shall promptly retain counsel reasonable satisfactory to
the Indemnified Party to represent the Indemnified Party and any others the
Company may designate in such action, proceeding, claim or investigation and
shall pay the reasonable fees and expenses of such counsel related thereto. In
any such action, proceeding, claim or investigation, any Indemnified Party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the Company
and the Indemnified Party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such action, proceeding,
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claim or investigation (including any impleaded parties) include both the
Company or a Trust and the Indemnified Party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Company and the Trusts shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for all such Indemnified
Parties, and that all such fees and expenses shall be reimbursed as they are
incurred. In the case where any such separate firm is required Xxxxxxx Xxxxx
shall designate such separate firm in writing. The Company and the Trusts
shall not, without your written consent, effect the settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
is being sought hereunder unless such settlement, compromise or judgment (i)
includes an unconditional release of all Indemnified Parties from all liability
arising out of such action or claim and (ii) does not include a statement as
to, or an admission of, fault, culpability or failure to act, by or on behalf
of any Indemnified Party. Notwithstanding anything in this Agreement to the
con- trary, the Company and the Trusts shall not be liable to any Indemnified
Party for any claim arising out of, or in connection with, any settlement or
compromise, or consent to entry of judgment with respect to, any pending or
threatened action or claim which was affected without the written consent of
the Company, unless such settlement, compromise or consent to entry of judgment
was effected more than 30 days after receipt by the Company of a written notice
from you, substantially reflecting the proposed terms of such settlement,
compromise or consent, to which the Company had not responded prior to the date
such settlement was affected. If any claim arising out of, or in connection
with, any settlement or compromise, or consent to entry of judgment with
respect to, any pending or threatened action or claim is settled with the
written consent of the Company or if there be a final judgment for the
plaintiff, the Company and the Trusts jointly and severally agree to indemnify
the Indemnified Party from and against any loss or liability by reason of such
settlement or judgment.
(c) If for any reason the indemnification provided for in
Subsection (a) of this Section 7 is un-
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available or insufficient to hold any Indemnified Party harmless, then the
Company and the Trusts shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, damage, expense, liability or claim
(or actions in respect thereof) referred to therein in such proportion as is
appropriate to reflect the relative benefits to the Company and the Trusts and
their stockholders on the one hand and the Indemnified Party on the other hand
in matters contemplated by this Agreement as well as the relative fault of the
Company and the Trusts and the Indemnified Party with respect to such loss,
damage, expense, liability or claim (or actions in respect thereof) and any
other relevant equitable considerations. The relative fault of the Company and
the Trusts and any Indemnified Party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by, or relating to, the Company and the Trusts and their
affiliates or the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Trusts, and you agree that it would
not be just and equitable if contribution pursuant to this Subsection (c) of
this Section 7 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Subsection (c) of this Section 7.
(d) The reimbursement, indemnity and contribution obligations of the
Company and the Trusts under this Section 7 shall be in addition to any
liability that the Company and the Trusts may otherwise have and shall be
binding upon and inure to the benefit of any successors, assigns, heirs and
personal representatives of the Company and the Trusts, you, any such affiliate
and any such person.
(e) Each of the Dealer Managers agrees, severally and not
jointly, to indemnify the Company, its directors, its officers who sign the
Registration Statement, the Trusts, the Regular Trustees and their controlling
persons to the same extent as the foregoing indemnity from the Company and the
Trusts contained in Section 7 (a)(A)(i) above, but only with reference to
information furnished to the Company in writing through Xxxxxxx Xxxxx expressly
for
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use in the Registration Statement or the Offering Materials.
8. Conditions to Dealer Managers' Obligations. The obligations
of the Dealer Managers hereunder are subject as of the Commencement Date and as
of the Exchange Date to the accuracy in all material respects of the
representations and warranties of the Company and the Trusts contained herein or
in certificates of any officer of the Company or Trustee of the Trusts delivered
pursuant to the provisions hereof, to the performance, in all material respects,
by the Company and the Trusts of their obligations hereunder to be performed,
and to the following additional conditions:
(a) On the Commencement Date and the Exchange Date, the
Registration Statement shall have become effective under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement shall be
in effect, and no proceedings for such purpose shall be pending before or, to
the Company's or the Trusts' knowledge, threatened by the Commission.
(b) The Dealer Managers shall have received on the Commencement
Date and the Exchange Date a certificate, dated such date and signed by the
Treasurer or any executive officer of the Company, to the effect (i) that the
representations and warranties of the Company contained in this Agreement are
true and correct in all material respects with the same force and effect as
though expressly made as of such date (except for representations and warranties
which by their terms speak as of a different date or dates), (ii) that the
Company has complied in all material respects with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied on or
before such date and (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or are, to the best of the Company's knowledge,
threatened by the Commission. The officer signing and delivering such
certificate may rely upon such officer's knowledge as to clause (iii).
(c) On the Commencement Date and the Exchange Date, there shall
not have been since the respective dates as of which information is given in the
Registration Statement, any material adverse change, or any development
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involving a prospective material adverse change, in the financial condition or
results of operations of either Trust.
(d) The Dealer Managers shall have received on the Commencement
Date and the Exchange Date a certificate, dated such date and signed by an
Administrative Trustee or other officer of each Trust, to the effect (i) set
forth in clause (c) above, (ii) that the representations and warranties of such
Trust contained in this Agreement are true and correct in all material respects
with the same force and effect as though expressly made as of such date (except
for representations and warranties which by their terms speak as of a different
date or dates), (iii) that such Trust has complied in all material respects with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before such date and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or are, to the
best of such Trusts' knowledge, threatened by the Commission. The
Administrative Trustee or other Officer of the Trusts signing and delivering
such certificate may rely upon knowledge as to proceedings threatened.
(e) On the Exchange Date and on the Commencement Date, the Dealer
Managers shall receive a signed opinion of Xxxxxxxx, Xxxxxx & Finger, Delaware
counsel for the Trusts, dated as of such date, to the effect that:
(i) each Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act and has the trust power
and authority to conduct its business, all as described in the Prospectus;
(ii) assuming due authorization, execution and delivery of the
Declarations by the Company and the Trustees, the Declarations are valid and
binding agreements of the Company and the Trustees, enforceable against the
Company and the Trustees, in accordance with their terms, subject to the effect
upon the Declarations of (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent transfer or conveyance and other similar
laws relating to or affecting the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceed-
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ing in equity or at law), and (iii) the effect of applicable of public policy
on the enforceability of provisions relating to indemnification or
contribution;
(iii) under the Declarations and the Delaware Act, the execution
and delivery of this Agreement by the Trusts, and the performance by the Trusts
of their obligations hereunder and in the Exchange Offers, have been duly
authorized by all requisite trust action on the part of the Trusts;
(iv) the Preferred Securities have been duly authorized by the
Declarations and upon issuance in accordance with the Declarations and the
Prospectus will be duly and validly issued and, subject to qualifications set
forth in this paragraph (iv), fully paid and non-assessable undivided beneficial
interests in the assets of the applicable Trusts. The holders of Preferred
Securities will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. Such counsel may note that
the holders of Preferred Securities may be obligated pursuant to the
Declarations (A) to provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers or exchanges of Preferred
Security Certificates and the issuance of replacement Preferred Security
Certificates, and (B) to provide indemnity and/or security in connection with
requests of or directions to the Institutional Trustee to exercise its rights
and powers under the Declaration;
(v) under the Declarations and the Delaware Act, the issuance of
the Preferred Securities is not subject to preemptive rights;
(vi) the issuance and sale by the Trusts of the Preferred
Securities and the Common Securities, the execution, delivery and performance by
the Trusts of this Agreement, the consummation by the Trusts of the transactions
contemplated hereby and compliance by the Trusts with its obligations hereunder
will not violate (a) any of the provisions of the Certificate of Trusts of the
Trusts or the Declaration, or (b) any applicable Delaware law or administrative
regulation;
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(vii) assuming that the Trusts derive no income from or
connected with services provided within the State of Delaware and have no
assets, activities (other than maintaining the Delaware Trustee and the filing
of documents with the Secretary of State of the State of Delaware) or employees
in the State of Delaware, no authorization, approval, consent or order of any
Delaware court or governmental authority or agency is required to be obtained by
the Trusts solely in connection with the issuance and sale of the Preferred
Securities and the Common Securities of the Trusts (in rendering the opinion
expressed in this paragraph (vii), such counsel need express no opinion
concerning the securities laws of the State of Delaware); and
(viii) assuming that the Trusts derive no income from or
connected with services provided within the State of Delaware and have no
assets, activities (other than maintaining the Delaware Trustee and the filing
of documents with the Secretary of State of the State of Delaware) or employees
in the State of Delaware, the Preferred Securityholders (other than those
Preferred Securityholders who reside or are domiciled in the State of Delaware)
will have no liability for income taxes imposed by the State of Delaware solely
as a result of their participation in the Trusts, and the Trusts will not be
liable for any income tax imposed by the State of Delaware.
(f) On the Exchange Date and (except the opinion with respect to
the execution and delivery of the Declarations, the Indenture, the Debentures
and the Guarantees) on the Commencement Date, the Dealer Managers shall have
received a signed opinion of Xxxxxx X. Xxxxxxx, counsel to the Company, dated
as of such date, to the effect that:
(i) the Company is a corporation validly existing and in good
standing under the laws of the State of Delaware;
(ii) the Company has all necessary corporate power and
authority to execute and deliver this Agreement, the Declarations, the
Indenture, the Guarantees and the Debentures, to perform its obligations
hereunder and thereunder and to consummate the Exchange Offers in accordance
with their terms;
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(iii) this Agreement and the Declarations have been duly
authorized, executed and delivered by the Company;
(iv) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes (or, as of the Exchange Date, will
constitute) a valid and binding agreement of the Company enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights generally and by
general equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law and except as rights to indemnity
or contribution thereunder may be limited by public policy;
(v) the Debentures have been duly authorized, executed and
delivered by the Company and, when authenticated in accordance with the
provisions of the Indenture and delivered to the Trusts in exchange for the
Preferred Securities and money pursuant to the terms of the Exchange Offers,
will be entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company enforceable in accordance with their terms, except as
the same may be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws relating to or affecting the enforcement of
creditors' rights generally and by general equitable principles, regardless of
whether such enforceability is considered in a proceeding in equity or at law
and except as rights to indemnity or contribution thereunder may be limited by
public policy;
(vi) the Guarantees have been duly authorized and executed by
the Company, and constitute (or, as of the Exchange Date, will constitute) valid
and binding agreements of the Company enforceable in accordance with their
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by general
equitable principles, regardless of whether such enforceability is considered in
a proceeding in equity or at law and except as rights to indemnity or
contribution thereunder may be limited by public policy;
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(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Declarations, the Indenture, the Debentures and the Guarantees and the
consummation of the Exchange Offers and the fulfillment of the terms herein
contemplated (including the issuance of the Preferred Securities by the Trusts)
will not contravene any provision of applicable law or the Company's Restated
Certificate of Incorporation or by-laws or any agreement or other instrument
known to such counsel and binding upon the Company, and no consent, approval or
authorization of any governmental body or agency is required for the performance
by the Company of its obligations under this Agreement, the Declarations, the
Indenture, the Guarantees and the Debentures or in connection with the Exchange
Offers, other than under the Act and the Exchange Act and the regulations
thereunder and compliance with other securities or Blue Sky laws of various
jurisdictions (as to which such counsel need express no opinion);
(viii) except as set forth in the Registration Statement or the
Prospectus, after due inquiry, such counsel does not know of any legal or
governmental proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company is
subject with respect to the Exchange Offers, the purchase of Target Securities
pursuant thereto, the issuance of the Preferred Securities by the Trusts, or the
execution, delivery and performance of this Agreement, the Declarations, the
Indenture, the Guarantees or the Debentures;
(ix) the documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company or the Trusts
prior to the Exchange Date (other than the financial statements and related
schedules contained or incorporated by reference therein or omitted therefrom,
as to which such counsel need not express any opinion), when they were filed
with the Commission, complied as to form in all material respects with the
requirements of the Exchange Act.
In addition, such counsel shall state that such counsel have
participated in the preparation of the Registration Statement, the Prospectus
and the documents incorporated by reference therein and no facts have come to
such counsel's attention that leads them to believe that
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the Registration Statement (including the documents incorporated by reference
therein pursuant to Item 11 of Form S-4) at the time such Registration
Statement became effective, or if an amendment to the Registration Statement or
an Annual Report on Form 10-K has been filed with the Commission subsequent to
the effectiveness of the Registration Statement, then at the time such
amendment became effective or at the time of the most recent such filing,
contained an untrue statement of a material factor omitted to state a material
fact required to be stated therein or necessary to make the statements
contained therein not misleading, or that the Prospectus as of its date and the
date of such opinion (including the documents incorporated by reference therein
pursuant to Item 11 of Form S-4) or any amendment or supplement thereto,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, except that such counsel need express no belief with
respect to the financial statements and schedules included or incorporated by
reference in the Registration State- ments, or the Prospectus or any amendment
thereto or the Statement of Eligibility on Form T-1 of the Trustee.
(g) On the Exchange Date and on the Commencement Date, the Dealer
Managers shall have received a signed opinion of Xxxxxxxx & Xxxxx, special
counsel to the Company, dated as of such date, to the effect that:
(i) neither of the Trusts is, or, after giving effect to the
consummation of the Exchange Offers, will be, an "investment company" registered
or required to be registered under the Investment Company Act of 1940, as
amended;
(ii) a member of the Commission's staff has advised such
counsel (or the Company) by telephone that the Commission has issued an order
declaring the Registration Statement effective under the Securities Act and such
counsel has no knowledge that any stop order suspending the effectiveness of the
Registration Statement has been issued or that any proceeding for that purpose
is pending before or has been threatened by the Commission; the Registration
Statement and the Prospectus (and, with respect to the opinion to be delivered
on the Exchange Date, any further amendments and supplements thereto made by the
Company or
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the Trusts prior to the Exchange Date) (other than the financial statements and
related schedules contained in the Registration Statement or the Prospectus or
any further amendments or supplements thereto, or omitted therefrom, other than
documents incorporated therein by reference and other than that part of the
Registration Statement that constitutes the Forms T-1, as to which such counsel
need not express any opinion) appear on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act;
(iii) The statements set forth in the Prospectus under the
captions "Description of the Junior Subordinated Debentures", "Description of
the Preferred Securities", "Description of the Preferred Securities Guarantees"
and "Relationship Among the Preferred Securities, the Junior Subordinated
Debentures and the Preferred Securities Guarantees", insofar as they purport to
constitute summaries of certain terms of the Preferred Securities and each of
the Guarantees, the Declarations, the Debentures and the Indenture, in each case
are accurate in all material respects.
In addition, such counsel shall state that such counsel have
participated in the preparation of the Registration Statement and the Prospectus
(but not the documents incorporated by reference therein) and that based on such
participation and other described activities, such counsel has no knowledge that
has caused such counsel to conclude that the Registration Statement (including
the documents incorporated by reference therein pursuant to Item 11 of Form S-4)
at the time such Registration Statement became effective, or if an amendment to
the Registration Statement has been filed with the Commission subsequent to the
effectiveness of the Registration Statement and prior to the date of such
opinion, then at the time such amendment became effective or at the time of the
most recent such filing, contained an untrue statement of a material factor
omitted to state a material fact required to be stated therein or necessary to
make the statements contained therein not misleading, or that the Prospectus as
of its date and the date of such opinion (including the documents incorporated
by reference therein pursuant to Item 11 of Form S-4) or any amendment or
supplement thereto, filed prior to the date of such opinion, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or
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necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except that such counsel need express no
belief with respect to the financial statements and schedules included or
incorporated by reference in the Registration Statements, or the Prospectus or
any amendment thereto or omitted therefrom or the Statements of Eligibility on
Form T-1 of the Trustee.
(h) Xxxxxx X. Xxxxx, special tax counsel to the Company and the
Trusts, shall have furnished to the Dealer Managers his written opinion, dated
the Commencement Date and the Exchange Date, respectively, in form and substance
satisfactory to the Dealer Managers, to the effect that he confirms his opinion
set forth in the Prospectus under the caption "Certain Federal Income Tax
Consequences".
(i) The Dealer Managers shall have received the favorable opinion
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Dealer Managers,
dated as of the Commencement Date and the Exchange Date, with respect to the
validity of the Preferred Securities, the Registration Statement, the Prospectus
and other related matters as the Dealer Managers may reasonably require. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York and Delaware,
and the federal law of the United States, upon the opinions of counsel
satisfactory to the Dealer Managers. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company, trustees of the
Trusts and certificates of public officials.
(j) On the Commencement Date, the Dealer Managers shall have
received from the Company's independent public accountants, in form and
substance reasonably satisfactory to the Dealer Managers and dated as of such
date, containing statements and information of the type ordinarily included in
accountants' "comfort letters" to dealer managers with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Prospectus.
(k) At the Exchange Date, the Dealer Managers shall have received
from the Company's independent public accountants, in form and substance
reasonably satisfactory
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to the Dealer Managers and dated as of such dates, to the effect that such
accountants reaffirm the statements made in the letter furnished pursuant to
Section 8(j).
(l) At the Exchange Date, the Preferred Securities shall have
been duly listed, subject to official notice of issuance, on the NYSE.
9. Termination.
(a) This Agreement shall terminate with respect to each Exchange
Offer upon the earliest to occur of (i) the Exchange Date, (ii) the date on
which the Dealer Managers give notice to the Company and the Trusts that any of
the conditions specified in Section 8 have not been fulfilled as of any date
such conditions are required to be fulfilled pursuant to Section 8 with respect
to such Exchange Offer or (iii) the date on which the Company terminates or
withdraws such Exchange Offer for any reason (the earliest to occur of clauses
(i), (ii) or (iii) being referred to as the "Termination Date ").
(b) Notwithstanding termination of this Agreement pursuant to
subsection (a) of this Section 9, the obligations of the Company and the Trusts
to compensate and/or reimburse, as applicable, the Dealer Managers pursuant to
Section 3 or 4, the representations and warranties contained in Section 6 and
the provisions of Section 7 shall survive any termination of this Agreement.
10. 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 Dealer
Managers shall be directed to them c/o Merrill Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, World Financial Center, Xxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention: Syndicate Operations; notices to the
Trusts shall be directed to them at [ ], Attention:
Corporate Trusts Administrator and notices to the Company shall be directed to
it at [ ], Attention: [ ].
11. Tombstone. The Company and the Trusts acknowledge that the
Dealer Managers may, with the prior review and approval of the Company, which
approval shall not be unreasonably withheld, place an announcement in such
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newspapers and periodicals as the Dealer Managers may choose, stating that the
Dealer Managers are or were acting as dealer managers and financial advisors to
the Company and the Trusts in connection with the Exchange Offers. The costs
relating to any such tombstone shall be borne by the Dealer Managers.
12. Survival of Certain Provisions. The representations,
warranties, indemnities and agreements of the Company and the Trusts will remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Dealer Managers or any affiliate or controlling person
thereof and, subject to Section 9(b), will survive the consummation of the
Exchange Offers.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute one and
the same Agreement.
15. Successors. This Agreement is made solely for the benefit of
the Dealer Managers, the Company and the Trusts and, to the extent expressed,
the parties indemnified pursuant to Section 7, and no other persons shall
acquire or have any right under or by virtue of this Agreement. Nothing in this
Agreement, expressed or implied, is intended to confer on any person other than
the parties hereto or their respective successors and assigns, and, to the
extent expressly set forth herein, the parties indemnified pursuant to Section 7
hereof, any rights or remedies under or by reason of this Agreement. Without
limiting the generality of the foregoing, the parties acknowledge that nothing
in this Agreement, expressed or implied, is intended to confer on holders of the
securities of the Trusts, the Company or any of its subsidiaries or creditors of
the Company or any of its subsidiaries or the respective successors and assigns
of such creditors, any rights or remedies under or by reason of this Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Trusts and the
Dealer Managers in accordance with its terms.
Very truly yours,
[Company]
By:
-------------------------
[Trust]
By:
-------------------------
[Trust]
By:
-------------------------
Confirmed and accepted as of
the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
[Co-Managers]
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------
Authorized Signatory
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