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EXHIBIT 1.1
UNITED COMPANIES FINANCIAL CORPORATION
(a Louisiana corporation)
Securities
UNDERWRITING AGREEMENT - BASIC PROVISIONS
February 19, 1997
To: The Underwriters named
in the within mentioned
Terms Agreement
Dear Sirs:
United Companies Financial Corporation, a Louisiana corporation
(the "Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell from time to time its senior debt securities, subordinated debt
securities, convertible subordinated debt securities (collectively, the "Debt
Securities"), preferred stock, par value $2.00 per share (the "Preferred
Stock"), and common stock, par value $2.00 per share (the "Common Stock"), in
one or more offerings on terms determined at the time of sale. The Preferred
Stock may be deposited by the Company against delivery of depositary receipts
(the "Receipts") to be issued by a depositary (the "Depositary") under a deposit
agreement (the "Deposit Agreement") among the Company, such Depositary and the
holders from time to time of the Receipts, and, in such event, the Receipts will
evidence depositary shares (the "Depositary Shares" and collectively with the
Preferred Stock and the Common Stock, the "Equity Securities") and each
Depositary Share will represent a fractional interest in a share of Preferred
Stock as specified in the Deposit Agreement and evidenced by a Receipt. The
Equity Securities and Debt Securities, all registered under the Registration
Statement (as defined below), are hereinafter collectively referred to as the
"Registered Securities." If specified in a Terms Agreement (as defined below),
the Company proposes to grant to the underwriters an option to purchase up to
that amount of Registered Securities specified in such Terms Agreement (herein
called the "Option Securities"). The Debt Securities will be issued under
either an indenture dated as of October 1, 1994, (the "Senior Indenture"),
between the Company and The First National Bank of Chicago, as Trustee, or an
indenture dated as of February 19, 1997, between the Company and The Bank of New
York, as Trustee, (the "Subordinated Indenture", and together with the Senior
Indenture, the "Indentures"). Each
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issue of Debt Securities may vary as to aggregate principal amount, maturity
date or dates, interest rate or rates and timing of payments thereof,
redemption provisions, conversion or exchange provisions and sinking fund
requirements, if any, covenants and any other variable terms which the
Indentures contemplate may be set forth in a supplemental indenture to the
Senior Indenture or Subordinated Indenture, as the case may be, (each, a
"Supplemental Indenture"). The Preferred Stock will be issued in one or more
series, which series may vary as to voting rights, dividends, optional and
mandatory redemption provisions, liquidation preference and conversion or
exchange provisions, if any, and any other terms, with all such terms for any
particular series or issue of the Preferred Stock being determined at the time
of issue. The Registered Securities (together with (i) the Option Securities
and (ii) any Debt Securities or shares of Equity Securities (the "Underlying
Securities") issuable upon conversion or exchange of Registered Securities (the
"Convertible Securities")) involved in any such offering are hereinafter
referred to as the "Securities."
Whenever the Company determines to make an offering of
Securities, it will enter into an agreement substantially in the form of
Exhibit A(I) or Exhibit A(II) hereto (the "Terms Agreement") providing for the
sale of such Securities (the "Offered Securities") to, and the purchase and
offering thereof by, the underwriter or underwriters named therein (the
"Underwriter" or "you", which terms shall include the underwriter or
underwriters named therein whether acting alone in the sale of such Offered
Securities or as members of an underwriting syndicate). The Terms Agreement
relating to each offering of Securities may take the form of an exchange of any
standard form of written telecommunication and shall specify the principal
amount of Debt Securities or number of shares of Equity Securities to be issued
and their terms, the name or names of the Underwriters participating in such
offering (subject to substitution as provided in Section 10 hereof) and the
principal amount of Debt Securities or number of shares of Equity Securities
which each severally agrees to purchase, the name or names of the Underwriters
acting as manager or co-managers in connection with such offerings, if any (the
"Representatives", which term shall include each Underwriter in the event that
there shall be no manager or co-manager), the price at which the Securities are
to be purchased by the Underwriters from the Company, the initial public
offering price, any delayed delivery arrangements, the time and place of
delivery and payment and such other applicable information as is indicated in
Exhibit A(I) or Exhibit A(II) hereto as agreed upon by the Company and the
Underwriters. This Agreement, the applicable Terms Agreement, any applicable
Indenture and any related Supplemental Indenture, and the Deposit Agreement, if
applicable, are hereinafter referred to collectively as the "Operative
Documents."
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Each offering of the Securities will be governed by this
Agreement, as supplemented by the applicable Terms Agreement and this Agreement
and such Terms Agreement shall inure to the benefit of and be binding upon each
Underwriter participating in the offering of such Offered Securities.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-______), including a prospectus, relating to the Securities and
the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"), and has filed such pre-
effective amendments thereto as may have been required to the date hereof.
Such registration statement, as so amended, has been declared effective by the
Commission, and the Indentures, if applicable, have been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement, as amended to the date such registration statement has been declared
effective, including any documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act which were filed under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), on or before the effective
date of the registration statement, is hereinafter called the "Registration
Statement," and such prospectus, as such prospectus is supplemented on or after
the date of the applicable Terms Agreement and prior to the related Closing
Time (as defined in Section 2(b) hereof), by any prospectus supplement relating
to the Offered Securities, including by any such prospectus supplement in the
form first filed or to be filed on or after the date of the related Terms
Agreement pursuant to Rule 424(b) under the 1933 Act, including any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act which were filed under the 1934 Act on or before the date of such
prospectus supplement (any such prospectus supplement, including such
incorporated documents, in the form first filed on or after the date of the
related Terms Agreement pursuant to Rule 424(b) is hereinafter called the
"Prospectus Supplement"), is hereinafter called the "Prospectus". All
references in this Agreement to financial statements and schedules and other
information which is "contained," "included" or "stated" in the Registration
Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and
other information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements, if any, to the
Registration Statement, the Prospectus or a Prospectus Supplement (and all
other references of like import) shall be deemed to mean and include the filing
of any document under the 1934 Act after the effective date of the Registration
Statement or the issue date of the Prospectus or Prospectus Supplement, as the
case may be, and prior to the related Closing Time which is deemed to be
incorporated therein pursuant to Item 12 of Form S-3 under the 0000 Xxx.
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Capitalized terms used herein and not otherwise defined are
used herein as defined in the applicable Indenture, if any, (or, during the
period of time following the date of this Agreement and prior to the applicable
Closing Time, as defined in the form of applicable Indenture, if any, last
filed by the Company with the Commission).
Section 1. Representations and Warranties. (a) The Company
represents and warrants at and as of the date hereof, as of the date of the
applicable Terms Agreement and as of the Closing Time (in each case, the
"Representation Date") as follows:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act. The Registration Statement, at the time it became
effective, and the prospectus contained therein, and any amendments
thereof and supplements thereto filed prior to the related Closing
Time, conformed in all material respects to the requirements of the
1933 Act and the rules and regulations of the Commission thereunder;
on the date of the related Terms Agreement and as of the related
Closing Time, the Registration Statement and the Prospectus relating
to the Offered Securities, and any amendments thereof and supplements
thereto, will conform in all material respects to the requirements of
the 1933 Act and the rules and regulations of the Commission
thereunder; the Registration Statement, at the time it became
effective (or, if an amendment to the Registration Statement or an
annual report on Form 10- K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective or as of
the most recent such filing, as the case may be), did 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; the Prospectus, on the date of any filing
pursuant to Rule 424(b) and the Prospectus (as supplemented) as of the
related Closing Time, will not include any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
are made, not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any of you expressly for use in the Registration
Statement or Prospectus or to that part of the Registration Statement
which shall constitute the Statement of Eligibility under the 1939 Act
(Form T-1) of either Trustee under the Indentures, if any.
(ii) The documents incorporated by reference in the
Registration Statement and Prospectus, at the time they were
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or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act, and
the rules and regulations of the Commission thereunder.
(iii) Deloitte & Touche LLP or such other nationally
recognized independent public accountants who are reporting upon the
audited financial statements and schedules included or incorporated by
reference in the Registration Statement are independent public
accountants as required by the 1933 Act.
(iv) This Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(v) (A) The consolidated financial statements and the
related notes of the Company included or incorporated by reference in
(i) the Registration Statement, including the prospectus contained
therein, at the time the Registration Statement became effective and
(ii) the Prospectus relating to the Offered Securities as of the issue
date of the related Prospectus Supplement and the Prospectus (as
supplemented) as of the Closing Time for the related Offered
Securities, present or will present, as the case may be, fairly, in
all material respects, the consolidated financial position of the
Company and its consolidated subsidiaries, considered as one
enterprise, as of the respective dates indicated and the consolidated
results of operations and cash flows and stockholders' equity and the
other information purported to be shown therein of the Company and its
consolidated subsidiaries, considered as one enterprise, for the
respective periods specified; (B) such financial statements and
related notes have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved (unless otherwise disclosed in a note); and (C) the
financial statement schedules incorporated by reference in the
Registration Statement present fairly, in all material respects, the
information required to be stated therein.
(vi) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Louisiana, has corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing are not
reasonably likely to, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
properties, assets, business or
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results of operations of the Company and its subsidiaries, considered
as one enterprise.
(vii) Each subsidiary of the Company has been duly
incorporated and, other than Xxxxxx Mortgage Corporation ("FMC"), is
validly existing as a corporation in good standing under the law of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing are not reasonably likely to,
individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), properties, assets, business
or results of operations of the Company and its subsidiaries,
considered as one enterprise.
(viii) Except as otherwise disclosed in the Prospectus and
other than the senior preferred stock of FMC, all of the issued and
outstanding capital stock of each subsidiary of the Company has been
duly authorized, is validly issued, fully paid and non-assessable and,
except for director qualifying shares, is owned by the Company,
directly or through one or more subsidiaries of the Company, free and
clear of any lien, mortgage, pledge, encumbrance, claim or equity.
(ix) The Company has all of the requisite corporate power
and authority to execute, issue and deliver the Securities and to
incur and perform its obligations provided for therein; as of the date
of the applicable Terms Agreement, the Debt Securities, if any, will
have been duly authorized by the Company and, when executed, issued
and authenticated in the manner provided for in the applicable
Indenture and related Supplemental Indenture, if any, and delivered as
provided for in this Agreement and the applicable Terms Agreement,
will have been duly executed, issued and delivered by the Company and
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the applicable Indenture and enforceable
against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; as of
the date of the applicable Terms Agreement, all Securities, if any,
that are Equity Securities, when issued, delivered and sold in
accordance with the Terms Agreement, will be duly and validly issued
and outstanding, fully paid and
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non-assessable, and will not have been issued in violation of or be
subject to any preemptive rights; as of the date of the applicable
Terms Agreement, if any Securities to be issued are convertible or
exchangeable, the Underlying Securities issuable upon conversion or
exchange will be duly and validly authorized, and, if Equity
Securities, (A) will have been duly reserved for issuance upon
conversion or exchange of the Securities, and (B) when issued upon the
conversion or exchange of the Securities, will be duly and validly
issued and fully paid and non-assessable; and the Securities conform
in all material respects to the description thereof contained in the
Prospectus (as supplemented).
(x) If the Offered Securities are Debt Securities or are
convertible or exchangeable for Debt Securities, the Company has all
of the requisite corporate power and authority to execute and deliver
the Indentures, if any, and to perform its obligations provided for
therein; as of the date of the applicable Terms Agreement and as of
the Closing Time for the related Offered Securities, the Company will
have all requisite corporate power and authority to execute and
deliver the related Supplemental Indenture and to perform its
obligations provided for therein; the Indentures, if any, have been
duly authorized by the Company, will be substantially in the forms
heretofore delivered to you and, when executed and delivered by the
Company and assuming due execution and delivery by the Trustees, will
constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; and
the Indentures conform in all material respects to the descriptions
thereof contained in the Prospectus (as supplemented) as of the date
of the applicable Terms Agreement, and as of the Closing Time for the
related Offered Securities, the related Supplemental Indenture, if
any, will have been duly authorized by the Company and will constitute
the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
(xi) If the Offered Securities include Depositary Shares, the
Company has all of the requisite corporate power and
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authority to execute and deliver the Deposit Agreement and to perform
its obligations provided for therein; the Deposit Agreement has been
duly authorized by the Company, will be substantially in the form
heretofore delivered to you and, when executed and delivered by the
Company and assuming due execution and delivery by the Depositary,
will constitute a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; and
the Deposit Agreement conforms in all material respects to the
description thereof contained in the Prospectus (as supplemented) as
of the date of the applicable Terms Agreement.
(xii) All of the outstanding shares of capital stock of the
Company have been duly authorized and are validly issued, fully paid
and non-assessable.
(xiii) Except as disclosed in the Prospectus (as
supplemented), there are no holders of securities (debt or equity) of
the Company, or holders of rights (including preemptive rights),
warrants or options to obtain securities of the Company, who have the
right to request the Company to register securities held by them under
the 1933 Act.
(xiv) 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 or in any amendment
thereof or supplement thereto, there has not been (A) any material
adverse change in the condition (financial or otherwise), properties,
assets, business or results of operations of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or any of its subsidiaries, other than in the ordinary
course of business, that is reasonably likely to have a material
adverse effect on the condition (financial or otherwise), properties,
assets, business or results of operations of 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, other than regular quarterly dividends.
(xv) Neither the Company nor any of its subsidiaries is (A)
in violation of its or any of their articles or certificates of
incorporation or by-laws or, other than FMC, in default (nor has an
event occurred that with notice or passage of time or both would
constitute such a default) in
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the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or its subsidiaries is subject or by
which any of them or any of their properties may be bound or affected,
(B) other than FMC, in violation of any existing applicable law,
ordinance, regulation, judgment, order or decree of any government,
governmental instrumentality, arbitrator or court, domestic or
foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their properties or (C) other than FMC, in each
case to the knowledge of the Company, in violation of or has violated
any permit, certificate, license, order or other approval or
authorization required in connection with the operation of its
business that, with respect to clause (A), (B) or (C) of this
sentence, are not reasonably likely to (individually or in the
aggregate) (1) adversely affect the legality, validity or
enforceability of this Agreement, the applicable Terms Agreement, or
the applicable Indenture and related Supplemental Indenture, if any,
(2) have a material adverse effect on the condition (financial or
otherwise), properties, assets, business or results of operations of
the Company and its subsidiaries, considered as one enterprise, or (3)
impair the ability of the Company to fully perform on a timely basis
any obligations that it has under this Agreement, the applicable Terms
Agreement, the applicable Indenture or the related Supplemental
Indenture, if any.
(xvi) The issuance, sale and delivery of the Offered
Securities, the execution, delivery and performance of the other
Operative Documents, the compliance by the Company with the terms
therein and the consummation by the Company of the transactions
contemplated thereby and in the Registration Statement do not and will
not result in a violation of any of the terms or provisions of the
articles or certificates of incorporation or by-laws of the Company or
any of its subsidiaries, and do not and will not conflict with, or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, (A) any indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which any of them or any of their properties or assets is bound,
except for such conflicts, breaches, violations or defaults that are
not reasonably likely to have a material adverse effect on the
condition (financial or otherwise), properties, assets, business or
results of operations of 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 Company or any of its subsidiaries or any of their
properties.
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(xvii) No authorization, approval, consent or order of, or
qualification with, any governmental body or agency is required to be
obtained or made by the Company for (A) the due authorization,
execution, delivery and performance by the Company of each of the
Operative Documents to which it is or will be a party or (B) the valid
authorization, issuance, sale and delivery of the Offered Securities,
except such as may be required by the securities or blue sky laws of
the various states in connection with the offer and sale of the
Securities.
(xviii) There is no action, suit, investigation or proceeding
before or by any government, governmental instrumentality or court,
domestic or foreign, now pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its subsidiaries
or any of their properties that (A) is required to be disclosed in the
Prospectus and is not so disclosed in the Prospectus (as
supplemented), (B) except as disclosed in the Prospectus (as
supplemented), is reasonably likely to result in any material adverse
change in the condition (financial or otherwise), properties, assets,
business or results of operations of the Company and its subsidiaries,
considered as one enterprise, (C) seeks to restrain, enjoin, prevent
the consummation of or otherwise challenge the issuance and sale of
the Securities or the execution and delivery of this Agreement, the
applicable Terms Agreement or the applicable Indenture or related
Supplemental Indenture, if any, or any of the transactions
contemplated hereby or thereby or (D) questions the legality or
validity of any such transaction or seeks to recover damages or obtain
other relief in connection with any such transaction, and, in each
case to the knowledge of the Company, there is no valid basis for any
such action, suit, investigation or proceeding except as otherwise
disclosed in the Prospectus (as supplemented).
(xix) There are no statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(xx) Each of the Company and its subsidiaries other than FMC
has all necessary consents, authorizations, approvals, orders,
licenses, certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Prospectus (as supplemented), except to the extent
that the failure to so obtain or file is not reasonably likely to have
a material adverse effect on the Company and its subsidiaries,
considered as one enterprise, and neither
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the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
consent, authorization, approval, order, license, certificate or
permit which singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, are reasonably likely to
result in any material adverse change in the condition (financial or
otherwise), properties, assets, business or results of operations of
the Company and its subsidiaries, considered as one enterprise.
(xxi) Each of the Company and its subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other proprietary or confidential information,
systems or procedures, whether patented or unpatented), trademarks,
service marks and trade names (collectively, "intellectual property")
presently employed by them in connection with the business now
operated by them, except where the failure to own or possess or have
the ability to acquire any such intellectual property is not
reasonably likely to have a material adverse effect on the condition
(financial or otherwise), properties, assets, business or results of
operations of the Company and its subsidiaries, considered as one
enterprise, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted
rights of others with respect to any of the foregoing that,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, is reasonably likely to result in any
material adverse change in the condition (financial or otherwise),
properties, assets, business or results of operations of the Company
and its subsidiaries, considered as one enterprise.
(xxii) 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 Securities.
(xxiii) The Company is not an investment company within the
meaning of the Investment Company Act of 1940, as amended.
(xxiv) The shares of Common Stock, if any, described in the
applicable Terms Agreement have been duly authorized for listing on
The New York Stock Exchange, Inc.
(b) Any certificate signed by any officer of either the
Company or any of its subsidiaries and delivered to you or to your counsel at
the Closing Time pursuant to this Agreement or the applicable Terms Agreement
or the transactions contemplated hereby or thereby shall be deemed a
representation and warranty by the Company or such subsidiary of the Company,
as the case may be, to each of you as to the matters covered thereby.
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Section 2. Sale and Delivery to the Underwriters: Closing.
(a) Your several commitments to purchase Securities pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties herein contained, and shall be subject to the terms and
conditions herein set forth.
(b) Payment of the purchase price for, and delivery of, any
Securities to be purchased by you shall be made at the place set forth in the
applicable Terms Agreement or at such other place as shall be agreed upon by
the Company and you, on the third full business day (unless postponed pursuant
to Section 10) following the date of the applicable Terms Agreement or at such
other time not more than ten full business days thereafter as you and the
Company shall determine (such date and time of payment and delivery being
herein called the "Closing Time"). Payment shall be made to the Company by
wire transfer payable in same-day federal funds to an account specified by the
Company in the applicable Terms Agreement or by certified or official bank
check or checks in New York Clearing House funds payable to the order of the
Company, as specified by the Company in the applicable Terms Agreement, against
delivery of the Securities to the Representatives for the respective accounts
of the Underwriters of the Securities to be purchased by them.
(c) The Debt Securities shall be in such denominations
($1,000 or an integral multiple thereof) and registered in such names as the
Representatives may request in writing at least two full business days prior to
the Closing Time. The Debt Securities, which may be in temporary form, and the
shares of Equity Securities will be made available in New York City for
examination and packaging by the Representatives not later than 10:00 A.M., New
York City time, on the business day prior to the Closing Time.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants herein contained, and subject to the
terms and conditions herein set forth, the Company grants an option to you to
purchase, severally and not jointly, up to that amount of the Option
Securities, as shall be specified in the Terms Agreement, from the Company at
the same price as you shall pay for the relevant Securities. Said option may
be exercised only to cover over-allotments in the sale of the Securities by you
and may be exercised in whole or in part at any time (not more than once) on or
before the thirtieth day after the date of the Terms Agreement upon written or
telegraphic notice by you to the Company setting forth the amount of the Option
Securities as to which you are exercising the option. The amount of Option
Securities to be purchased by each Underwriter shall be the same percentage of
the total amount of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Securities, as adjusted
by you in such manner as you deem advisable to avoid fractional shares/units.
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If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase Debt Securities from
the Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") substantially in the form of Exhibit B hereto, with such changes
therein as the Company may approve. As compensation for arranging Delayed
Delivery Contracts, the Company will pay to the Representatives at Closing Time
a fee equal to that percentage of the principal amount of Debt Securities for
which Delayed Delivery Contracts are made at Closing Time as is specified in
the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types which will be set forth in the applicable
Prospectus Supplement. At Closing Time the Company will enter into Delayed
Delivery Contracts (for not less than the minimum principal amount of Debt
Securities per Delayed Delivery Contract specified in the applicable Terms
Agreement) with all purchasers proposed by you and previously approved by the
Company as provided below, but not for an aggregate principal amount of Debt
Securities in excess of that specified in the applicable Terms Agreement. You
will not have any responsibility for the validity or performance of Delayed
Delivery Contracts.
The Representatives will submit to the Company, at least three
business days prior to Closing Time, the names of any institutional investors
with which it is proposed that the Company will enter into Delayed Delivery
Contracts and the principal amount of Debt Securities to be purchased by each
of them and the Company will advise the Representatives, at least two business
days prior to Closing Time, of the names of the institutions with which the
making of Delayed Delivery Contracts is approved by the Company and the
principal amount of Debt Securities to be covered by each such Delayed Delivery
Contract.
The principal amount of Debt Securities agreed to be purchased
by the respective Underwriters pursuant to the applicable Terms Agreement shall
be reduced by the principal amount of Debt Securities covered by Delayed
Delivery Contracts, as to each Underwriter as set forth in a written notice
delivered by the Representatives to the Company; provided, however, that the
total principal amount of Debt Securities to be purchased by all Underwriters
shall be the total amount of Debt Securities covered by the applicable Terms
Agreement, less the principal amount of Debt Securities covered by Delayed
Delivery Contracts.
Section 3. Certain Covenants of the Company. The Company
covenants with each of you as follows:
(a) Immediately following the execution of each Terms
Agreement, the Company will prepare a Prospectus Supplement setting
forth the principal amount of Debt Securities or the number of shares
of Equity Securities covered thereby and their terms not otherwise
specified in the applicable Indenture, if any, the names of the
Underwriters and the principal amount of Debt Securities or the number
of shares
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of Equity Securities which each of them severally has agreed to
purchase, the price at which the Offered Securities are to be
purchased by you from the Company, the initial public offering price,
the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as the Representatives and
the Company deem appropriate in connection with the offering of the
Securities. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule
424 under the 1933 Act and will furnish to each of you as many copies
of the Prospectus and such Prospectus Supplement as the
Representatives shall reasonably request.
(b) The Company has furnished or will furnish to you, without
charge, as many signed and conformed copies of the Registration
Statement and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) and signed copies of all
consents and certificates of experts and, during the period mentioned
in paragraph (f) below, as many copies of the Prospectus and any
supplements and amendments thereto, in each case as soon as available,
as you may reasonably request.
(c) From the date of a Terms Agreement, and for so long as a
Prospectus is required to be delivered in connection with the sale of
Offered Securities covered by such Terms Agreement, the Company will
give you notice of its intention to file any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1934 Act, the 1933 Act or
otherwise, and will furnish you with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable time
in advance of filing and will not file any such amendment or
supplement or use any such prospectus to which you or your counsel
reasonably shall object.
(d) From the date of a Terms Agreement, and for so long as a
Prospectus is required to be delivered in connection with the sale of
Offered Securities covered by such Terms Agreement, the Company will
notify you immediately, and confirm the notice in writing, (i) of the
effectiveness of any amendment to the Registration Statement, (ii) of
the mailing or the delivery to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to
the 1934 Act which will be incorporated by reference into the
Registration Statement or Prospectus, (iii) of the receipt of any
comments from the Commission with respect to the Registration
Statement, the Prospectus or any Prospectus Supplement, (iv) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) of the issuance by
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the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(e) Except as provided in the applicable Terms Agreement,
between the date of any Terms Agreement and termination of any trading
restrictions specified in the applicable Terms Agreement, if any, or
Closing Time, whichever is later, with respect to (i) the Debt
Securities covered thereby, the Company will not, without your prior
consent or as otherwise permitted by the Terms Agreement, offer or
sell, or enter into any agreement to sell, any debt securities of the
Company with a maturity of more than one year (it being understood
that the Company may enter into lending agreements with commercial
banks and other lenders and make borrowings thereunder, which
borrowings may have maturities greater than one year), including
additional Debt Securities, (ii) the Equity Securities covered
thereby, the Company will not, without your prior consent or as
otherwise permitted by the Terms Agreement, offer or sell, or enter
into any agreement to sell, any shares of its Equity Securities or any
securities convertible into or exchangeable or exercisable for or any
right to purchase or acquire any shares of Equity Securities (it being
understood that grants of stock options to directors, officers and
employees of the Company or a subsidiary thereof, and issuances
pursuant to the exercise of such options, shall not be precluded by
this subsection (e)) and (iii) the Underlying Securities covered
thereby, the Company will not, without your prior consent or as
otherwise permitted by the Terms Agreement, offer or sell, or enter
into any agreement to sell, any securities of the same class as the
Underlying Securities or any securities convertible into or
exercisable or exchangeable for or any right to purchase or acquire
Underlying Securities or securities of such class.
(f) The Company will comply to the best of its ability with
the 1933 Act, the 1934 Act and the 1939 Act and the regulations
thereunder so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement, the applicable Terms
Agreement and in the Prospectus. If at any time when, in the opinion
of your counsel, the Prospectus is required by law to be delivered in
connection with sales of the Offered Securities by you or by a dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, the Company shall
forthwith prepare and furnish, at the Company's
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expense, to each of you and to the dealers (whose names and addresses
you will furnish to the Company) to which Offered Securities may have
been sold by you and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus as so amended or supplemented
will comply with the law.
(g) The Company will endeavor to qualify the Securities for
offer and sale under the securities or blue sky laws of such
jurisdictions as you shall reasonably request and to maintain such
qualifications in effect for as long as may be required for the
distribution of the Securities; 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. The Company
will file such statements and reports as may be required by the laws
of each jurisdiction in which the Securities have been qualified as
above provided.
(h) With respect to each sale of Offered Securities, the
Company will make generally available to its security holders as soon
as practicable but in any event not later than 90 days after the close
of the period covered thereby a consolidated earning statement for a
twelve-month period beginning after the effective date (as defined in
Rule 158(c) under the 0000 Xxx) of the Registration Statement relating
to such Securities, but not later than the first day of the Company's
fiscal quarter next following such effective date and that otherwise
satisfies the provisions of Section 11(a) of the 1933 Act and the
regulations thereunder.
(i) The Company will use the proceeds received from the sale
of the Offered Securities in the manner specified in the Prospectus
under the heading "Use of Proceeds."
(j) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13 or 14 of the 1934 Act within the time periods required under the
1934 Act.
(k) For a period of five years after the applicable Closing
Time, the Company will furnish to each of you copies of all annual
reports, quarterly reports and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as
may be designated by the
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Commission, and such other documents, reports and information as shall
be furnished by the Company to the holders of the Securities or to
security holders of its respective publicly issued securities
generally.
(1) Upon the conversion or exchange of any Convertible
Securities for shares of Common Stock, the Company will use its best
efforts to cause such shares of Common Stock to be duly listed on the
New York Stock Exchange, Inc.
Section 4. Payment of Expenses. The Company will pay and
bear all costs and expenses incident to the performance of its obligations
under this Agreement and each related Terms Agreement, including (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and schedules and exhibits), as originally filed and as
amended and the Prospectus and any amendments or supplements thereto, and the
cost of furnishing copies thereto to you, (b) the preparation, printing and
distribution of this Agreement (including each related Terms Agreement), the
Offered Securities, any related Indentures, a survey of state securities or
blue sky laws (the "Blue Sky Survey"), (c) the delivery of the Offered
Securities to you, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Offered Securities under the
applicable securities laws in accordance with Section 3(g) and any filing for
review of the offering with the National Association of Securities Dealers,
Inc., if any, including filing fees and fees and disbursements of your counsel
in connection therewith and in connection with the Blue Sky Survey and any
legal investment survey, (f) any fees charged by rating agencies for rating the
Offered Securities, (g) the fees and expenses of any Trustees, including the
fees and disbursements of counsel for any Trustees, in connection with the
related Indentures and the Debt Securities, (h) any transfer agent's fees and
(i) the listing, if any, of the Securities on any securities exchange or any
quotation of the Securities on the Nasdaq National Market. Subject to the
provisions of the following paragraph, you agree to pay, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of your
obligations under this Agreement and the applicable Terms Agreement not payable
by the Company pursuant to the preceding sentence, including without limitation
the fees and disbursements of your counsel.
If this Agreement is terminated by you in accordance with the
provisions of Section 5 or 9(a)(i), the Company shall reimburse each of you up
to an aggregate amount to be set forth in the related Terms Agreement for all
of your out-of-pocket expenses, including the reasonable fees and disbursements
of your counsel, upon receipt of itemized statements therefor.
Section 5. Conditions of Underwriters' Obligations. The
obligations of each of you to purchase and pay for the Offered Securities
pursuant to any related Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained herein (including those
contained in the applicable Terms Agreement) or in certificates of any officer
of the Company delivered pursuant to the provisions hereof, to the
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performance by the Company of its covenants and other obligations hereunder and
to the following further conditions:
(a) At the applicable Closing Time, (i) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act and no proceedings for that purpose
shall have been instituted and shall be pending or, to your knowledge
or the knowledge of the Company, shall be contemplated by the
Commission, and any request on the part of the Commission for
additional information shall have been complied with to the
satisfaction of your counsel.
(b) At the applicable Closing Time, each of you shall have
received a signed opinion of Stroock & Stroock & Xxxxx LLP, or such
other outside counsel of recognized standing reasonably acceptable to
the Underwriters that may opine on matters of New York law and federal
securities law, counsel for the Company, dated as of the applicable
Closing Time, in form and substance satisfactory to your counsel, to
the effect that:
(i) The Indentures and the related Supplemental
Indenture(s), if any, described in the applicable Terms
Agreement are the legally valid and binding agreements of the
Company, enforceable against the Company in accordance with
their terms except as enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing;
(ii) The Debt Securities, if any, covered by the
applicable Terms Agreement are in the form contemplated by the
applicable Indenture and the related Supplemental
Indenture(s), and, when executed and authenticated in
accordance with the terms of the applicable Indenture and
delivered to and paid for by you in accordance with the terms
of this Agreement as supplemented by the applicable Terms
Agreement, will be legally valid and binding obligations of
the Company, enforceable against the Company in accordance
with their terms except as enforcement thereof may be limited
by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
(iii) The Indentures, if any, have been duly
qualified under the 1939 Act;
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(iv) If the Offered Securities include Depositary
Shares, the Deposit Agreement is the legally valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms except as enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
(v) If the Offered Securities include Depositary
Shares, the Depositary Shares covered by the applicable Terms
Agreement are in the form contemplated by the Deposit
Agreement, and, when executed and authenticated in accordance
with the terms of the Deposit Agreement and delivered to and
paid for by you in accordance with the terms of this Agreement
as supplemented by the applicable Terms Agreement, and
assuming the due execution by the Depositary of the Deposit
Agreement and the Receipts in accordance with the terms of the
Deposit Agreement (the Company having deposited the related
Preferred Stock with the Depositary pursuant to the Deposit
Agreement), will be legally valid and binding interests in
such related Preferred Stock;
(vi) The Company is not an investment company
within the meaning of the Investment Company Act of 1940, as
amended;
(vii) If the Offered Securities are Debt Securities
or are convertible or exchangeable for Debt Securities, the
statements set forth in the Prospectus under the caption
"Description of Debt Securities," insofar as they constitute
summaries of documents, are accurate in all material respects
and the Indentures, if any, and the Offered Securities covered
by the applicable Terms Agreement conform in all material
respects to the descriptions thereof in the Prospectus;
(viii) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no
proceedings therefor have been initiated or threatened by the
Commission; and any required filing of the Prospectus pursuant
to Rule 424(b) under the 1933 Act has been made in accordance
with Rule 424(b) under the 1933 Act; and
(ix) The Registration Statement (excluding the
documents incorporated therein by reference) and the
Prospectus comply as to form in all material respects
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with the requirements for registration statements on Form S-3 under
the 1933 Act; it being understood, however, that such counsel
expresses no opinion with respect to the financial statements,
schedules and other financial and statistical data included or
incorporated in the Registration Statement or the Prospectus or with
respect to the Statement as to the Eligibility of the Trustee on Form
T-1, if any. In passing upon the compliance as to form of the
Registration Statement and the Prospectus, such counsel has assumed
that the statements made therein are correct and complete.
In addition, such counsel has participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company, and the Representatives, at
which the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing upon, and does
not assume any responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the Prospectus and
have not been called on to make and have not made any independent check or
verification thereof, during the course of such participation (relying as to
materiality to a large extent upon the statements of officers and other
representatives of the Company), no facts came to such counsel's attention that
caused such counsel to believe that the Registration Statement, at the time it
became effective, or if an amendment to the Registration Statement or an annual
report on Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement, then at the time
such post-effective amendment became effective or as of the most recent filing,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus (including the documents incorporated by
reference therein but giving effect to Rule 412 under the 1933 Act), as of the
date of the most recent Prospectus Supplement or the Prospectus (as
supplemented) as of the applicable Closing Time, contained an untrue statement
of a material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; it being understood that such counsel expresses no belief with
respect to the financial statements and notes and schedules thereto and other
financial, accounting, tax and statistical data included in (or incorporated
in) the Registration Statement or the Prospectus or with respect to the
Statement of Eligibility of the Trustee on Form T-1, if any.
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In rendering such opinion, Stroock & Stroock & Xxxxx LLP (or
such other counsel) (i) may rely as to factual matters upon
certificates or written statements from officers or other appropriate
representatives of the Company or upon certificates of public
officials, (ii) may rely (to the extent such counsel deems proper and
specifies in their opinion), as to matters involving the application
of the laws of the State of Louisiana, upon the opinion of Kantrow,
Spaht, Xxxxxx & Blizter (A Professional Law Corporation) or such other
outside counsel of recognized standing reasonably acceptable to the
Underwriters, that may opine on matters of Louisiana law, and (iii)
need not express any opinion with regard to the laws of any
jurisdiction other than the federal law of the United States and the
law of the State of New York. Further, such opinion may contain
assumptions, limitations, exceptions and restrictions which are
reasonably satisfactory to you and your counsel.
(c) At the applicable Closing Time, each of you shall have
received a signed opinion of Kantrow, Spaht, Xxxxxx & Blizter (A
Professional Law Corporation), or such other outside counsel of
recognized standing reasonably acceptable to the Underwriters that may
opine on matters of Louisiana law, counsel for the Company, dated as
of the applicable Closing Time, in form and substance satisfactory to
your counsel, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the
State of Louisiana, with corporate power and authority to own
its property and to conduct its business as described in the
Prospectus. The Company is duly qualified as a foreign
corporation in each of the respective jurisdictions set forth
on Exhibit A to such opinion and officers of the Company have
submitted to such counsel a certificate, a copy of which is
attached to such opinion as Exhibit B, stating that, in their
opinion, such jurisdictions are the only jurisdictions in
which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent
that the failure to be so qualified is not reasonably likely
to have a material adverse effect on the Company and its
subsidiaries considered as one enterprise;
(ii) Each significant subsidiary (as such term is
defined in Regulation S-X) of the Company has been duly
incorporated, is validly existing as a corporation under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation in each of the
respective jurisdictions set forth on Exhibit A to such
opinion
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and officers of such significant subsidiary have submitted to such
counsel a certificate, a copy of which is attached to such opinion as
Exhibit B, stating that, in their opinion, such jurisdictions are the
only jurisdictions in which the conduct of its business or its
ownership or leasing of property requires such qualifications, except
to the extent that the failure to be so qualified is not reasonably
likely to have a material adverse effect on the Company and its
subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each subsidiary (other than the senior
preferred stock of FMC) has been duly authorized and validly issued,
is fully paid and non-assessable and all of the issued and outstanding
capital stock of such significant subsidiaries (other than the senior
preferred stock of FMC), except for director qualifying shares is
owned of record by the Company, directly or through subsidiaries, and
is free and clear of any pledge, lien, encumbrance, claim or equity;
United Companies Lending Corporation is a corporation in good standing
under the laws of the State of Louisiana;
(iii) The shares of Equity Securities, if any,
described in the applicable Terms Agreement have been duly
authorized and validly issued, are fully paid and
non-assessable and have not been issued in violation of or
subject to any preemptive rights;
(iv) If the Offered Securities are Equity
Securities or are convertible or exchangeable for Equity
Securities, the statements set forth in the Prospectus under
the caption "Description of Capital Stock," insofar as they
constitute summaries of documents, are accurate in all
material respects and the Offered Securities covered by the
applicable Terms Agreement conform in all material respects to
the descriptions thereof in the Prospectus;
(v) The shares of Common Stock, if any, described
in the applicable Terms Agreement (other than any such shares
described therein because they are Underlying Securities) have
been duly listed on the New York Stock Exchange, Inc.;
(vi) The Debt Securities, if any, described in the
applicable Terms Agreement have been duly authorized by the
Company;
(vii) The Company has the requisite corporate power
and authority to execute, deliver and perform its obligations
under the Indentures and the related Supplemental
Indenture(s), if any. The Indentures, if any, have been duly
authorized, executed and delivered by the Company;
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(viii) The Company has the requisite corporate power
and authority to issue and deliver the Offered Securities;
(ix) The Company has the requisite corporate power
and authority to execute, deliver and perform its obligations
under this Agreement and the applicable Terms Agreement. This
Agreement, the applicable Terms Agreement and the Delayed
Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company;
(x) Neither (A) the execution and delivery by the
Company of each of the Operative Documents to be executed and
delivered by the Company at or prior to the applicable Closing
Time nor (B) the issuance and sale of the Offered Securities
by the Company pursuant to this Agreement, the applicable
Terms Agreement and the Indentures and the related
Supplemental Indentures, if any, will, as of the applicable
Closing Time, result in the violation or breach by the Company
of, or a default under, (1) its articles of incorporation or
by-laws, (2) any federal or Louisiana statute, rule or
regulation applicable to the Company or any of its
subsidiaries (except that no opinion is expressed with respect
to blue sky or state securities laws), (3) any agreement or
other instrument known to such counsel and listed as an
Exhibit to the Company's most recent Annual Report on Form 10-
K for the Company's most recent fiscal year binding upon the
Company or any of its subsidiaries that is material to the
Company and its subsidiaries, considered as one enterprise, or
(4) any court or administrative orders, writs, judgments or
decrees applicable to the Company and known to such counsel;
(xi) To the best of such counsel's knowledge, no
consent, approval, authorization or order of, or filing with,
any federal or Louisiana court or governmental body or agency
is required to be obtained or made by the Company or any of
its subsidiaries for the execution and delivery by the Company
of each of the Operative Documents to be executed and
delivered by the Company at or prior to the Closing Time and
the consummation of the issuance and sale of the Offered
Securities by the Company pursuant to this Agreement, the
applicable Terms Agreement and the Indentures and the related
Supplemental Indentures, if any, except such as have been
obtained or made under the 1933 Act and such as may be
required under state securities laws in connection with the
purchase and distribution of such Securities by you;
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(xii) After due inquiry, such counsel has no
knowledge 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 or
any of its subsidiaries is subject that is required to be
described in the Registration Statement or the Prospectus and
is not so described therein; or of any statutes, regulations,
contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not
described or filed as required;
(xiii) If any Offered Securities to be issued are
convertible or exchangeable, the related Underlying Securities
are duly and validly authorized, have been duly reserved for
issuance upon conversion or exchange of the Offered
Securities, and when issued upon the conversion or exchange of
the Offered Securities, will be duly and validly issued and
fully paid and non-assessable;
(xiv) All of the outstanding shares of capital stock
of the Company have been duly authorized and are validly
issued, fully paid and non-assessable, and except as disclosed
in the Prospectus none of the outstanding shares of capital
stock of the Company are subject to any preemptive or similar
rights; and
(xv) Each of the documents incorporated or deemed
to be incorporated by reference in the Registration Statement,
at the time it was filed with the Commission, complied as to
form in all material respects with the requirements for such
document under the 1934 Act and the regulations thereunder.
In addition, such counsel has participated in conferences with
officers and other representatives of the Company, representatives of
the independent public accountants for the Company, and the
Representatives, at which the contents of the Registration Statement
and the Prospectus and related matters were discussed and, although
such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
and have not been called on to make and have not made any independent
check or verification thereof, during the course of such participation
(relying as to materiality to a large extent upon the statements of
officers and other representatives of the Company), no facts came to
such counsel's attention that caused such counsel to believe that the
Registration Statement, at the time it became effective, or if an
amendment to the Registration
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Statement or an annual report on Form 10-K has been filed by the
Company with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time such post-effective amendment
became effective or as of the most recent filing, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus (including the
documents incorporated by reference therein but giving effect to Rule
412 under the 1933 Act), as of the date of the most recent Prospectus
Supplement or the Prospectus (as supplemented) as of the applicable
Closing Time, contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; it being understood that such counsel expresses no belief
with respect to the financial statements and notes and schedules
thereto and other financial, accounting, tax and statistical data
included in (or incorporated in) the Registration Statement or the
Prospectus or with respect to the Statement of Eligibility of the
Trustee on Form T-1, if any.
In rendering such opinion, Kantrow, Spaht, Xxxxxx & Blizter (A
Professional Law Corporation) (or such other counsel) (i) may rely as
to factual matters upon certificates or written statements from
officers or other appropriate representatives of the Company and its
subsidiaries and upon certificates of public officials and (ii) need
not express any opinion with respect to the laws of any jurisdiction
other than the federal law of the United States and the law of the
State of Louisiana. Further, such opinion may contain assumptions,
limitations, exceptions and restrictions which are reasonably
satisfactory to you and your counsel.
(d) At the Closing Time, each of you shall have received the
favorable opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx as your counsel, dated
as of the applicable Closing Time, to the effect that the opinions
delivered pursuant to Sections 5(b) and 5(c) appear on their face to
be appropriately responsive to the requirements of this Agreement and
the applicable Terms Agreement except, specifying the same, to the
extent waived by you, and with respect to the Securities, this
Agreement and the applicable Terms Agreement, the Indentures, if any,
the Deposit Agreement, if any, the Registration Statement, the
Prospectus, the incorporation and legal existence of the Company and
such other related matters as you may reasonably require. In giving
such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the federal law of the United States,
the law of the State of New York and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory
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to you. 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 or other appropriate
representatives of the Company and its subsidiaries and certificates
of public officials.
(e) At the applicable Closing Time, (i) the Registration
Statement and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be
stated therein under the 1933 Act and the regulations thereunder and
in all material respects shall conform to the requirements of the 1933
Act and the regulations thereunder and the 1939 Act and the
regulations thereunder, and neither the Registration Statement nor the
Prospectus, as they may then be amended or supplemented, shall contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; (ii) there shall not have been, since the
respective dates as of which information is given in the Prospectus
(as supplemented), any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or otherwise), properties, assets, business or results of
operations of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business;
(iii) no action, suit or proceeding at law or in equity shall be
pending or, to the knowledge of the Company, threatened against the
Company or any of its subsidiaries that would be required to be set
forth in the Prospectus other than as set forth therein or in any
supplement thereto and no proceedings shall be pending or, to the
knowledge of the Company, threatened against it or any of its
subsidiaries before or by any federal, state or other commission,
board or administrative agency wherein an unfavorable decision, ruling
or finding is reasonably likely to materially adversely affect the
condition (financial or otherwise), properties, assets, business or
results of operations of the Company and its subsidiaries, considered
as one enterprise, other than as set forth in the Prospectus or in any
supplement thereto; (iv) the Company shall have complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the applicable Closing Time; and (v) the
other representations and warranties of the Company set forth in
Section l(a) shall be accurate as though expressly made at and as of
the applicable Closing Time. At the applicable Closing Time, each of
you shall have received a certificate of the President or a Vice
President, and the Treasurer or Assistant Treasurer, of the Company,
dated as of the applicable Closing Time, to such effect to such
officer's knowledge.
27
27
(f) At the time that a Terms Agreement is executed by the
Company, each of you shall have received from Deloitte & Touche LLP or
such other nationally recognized independent public accountants who
are reporting on the audited financial statements and schedules
included or incorporated by reference in the Registration Statement a
letter dated the date thereof and also at the applicable Closing Time
a letter dated the date thereof, in each case in form and substance
satisfactory to the Representatives, containing statements and
information of the type ordinarily included in the accountant's
"comfort letters" to underwriters with respect to financial statements
and certain financial information contained in the Registration
Statement and the Prospectus.
(g) At the applicable Closing Time, your counsel shall have
been furnished with all such documents (including any consents under
any agreements to which the Company is a party), certificates and
opinions as they may reasonably request for the purpose of enabling
them to pass upon the issuance and sale of the Securities as
contemplated in this Agreement and the applicable Terms Agreement and
the matters referred to in Section 5(d) and in order to evidence the
accuracy and completeness of any of the representations, warranties or
statements of the Company, the performance of any of the covenants of
the Company, or the fulfillment of any of the conditions herein and in
the applicable Terms Agreement contained; and all proceedings taken by
the Company at or prior to the applicable Closing Time in connection
with the authorization, issuance and sale of the Offered Securities,
and by the Company at or prior to the applicable Closing Time in
connection with the authorization and delivery of any other Operative
Documents, each as contemplated in this Agreement and the applicable
Terms Agreement, shall be reasonably satisfactory in form and
substance to you and to your counsel.
(h) If the Offered Securities to be sold to you pursuant to
an applicable Terms Agreement are to be listed on any securities
exchange, such Securities shall have been duly authorized for listing
on such exchange on the date of the applicable Terms Agreement,
subject only to official notice of issuance thereof and notice of a
satisfactory distribution of the Securities.
(i) On or after the date of the applicable Terms Agreement
(i) no downgrading shall have occurred in the rating accorded any of
the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization" as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the 1933 Act and
regulations thereunder and (ii) no such organization shall have
publicly announced that it has under surveillance
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28
or review, with possible negative implications, its rating of the
Company's debt securities or preferred stock.
(j) Each of the Indentures and the related Supplemental
Indentures, if any, shall have been executed and delivered by all
parties thereto on or prior to the Closing Time, in each case in
substantially the form last filed by the Company with the Commission,
and each such instrument shall be in full force and effect at the
Closing Time.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement or the applicable
Terms Agreement to be fulfilled, this Agreement and the applicable Terms
Agreement may be terminated by you on notice to the Company at any time at or
prior to the applicable Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 6 and 7 shall
remain in effect.
Section 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each of you and each person, if any, who controls
any of you within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of an untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including all
documents incorporated or deemed to be incorporated by reference in
the Registration Statement, 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 an untrue statement or alleged untrue statement of a material fact
included in 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 investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever (including
fees and disbursements of counsel chosen by you (except to
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29
the extent otherwise expressly provided in paragraph (c) of this
Section 6)) reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) above;
provided, however, that the Company's obligations under this indemnity do not
apply to any loss, liability, claim, damage or expense to the extent arising
out of an untrue statement or omission or alleged untrue statement or omission
made in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by any of you through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto);
and provided further, that as to any related preliminary prospectus or
preliminary prospectus supplement this indemnity agreement shall not inure to
the benefit of any Underwriter on account of any loss, claim, damage or
liability (or action in respect thereof) arising from the sale of Offered
Securities to any person by that Underwriter if that Underwriter failed to send
or give a copy of the Prospectus, as the same may be amended or supplemented,
to that person within the time required by the 1933 Act, and the untrue
statement or alleged untrue statement of any material fact or omission or
alleged omission to state any material fact in such preliminary prospectus or
preliminary prospectus supplement was corrected in the Prospectus, unless such
failure resulted from non-compliance by the Company with Section 3(b). For
purposes of the second proviso to the immediately preceding sentence, the term
Prospectus shall not be deemed to include the documents incorporated by
reference therein, and no Underwriter shall be obligated to send or give any
supplement or amendment to any document incorporated by reference in a
preliminary prospectus, a preliminary prospectus supplement or the Prospectus
to any person other than a person to whom such Underwriter has delivered such
incorporated documents in response to a written request therefor.
(b) Each of you agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of their
respective officers who signed the Registration Statement, 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 all loss, liability, claim,
damage and expense described in the indemnity contained in Section 6(a), 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 the Prospectus (or any amendment or supplement thereto)
in reliance
30
30
upon and in conformity with written information furnished to the Company by you
through the Representatives expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers served, but
failure to so notify an indemnifying party shall not relieve it from any
liability that it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action. If it so elects within a reasonable time after receipt
of such notice, an indemnifying party, jointly with any other indemnifying
parties receiving such notice, may assume the defense of such action with
counsel chosen by it and approved by the indemnified parties who are defendants
in such action, provided that, if such indemnified party or parties reasonably
determine that there may be legal defenses that are different from or in
addition to those available to such indemnifying party or parties, then such
indemnifying party or parties shall not be entitled to assume such defense. If
the indemnifying party or parties are not entitled to assume the defense of
such action as a result of the proviso to the preceding sentence, counsel for
the indemnifying party or parties shall be entitled to conduct the defense of
such indemnifying party or parties and counsel for the indemnified party or
parties shall be entitled to conduct the defense of such indemnified party or
parties. If an indemnifying party assumes the defense of such action, the
indemnifying parties shall not be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such action.
In no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(d) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding. No indemnifying party shall be liable for any settlement
that an indemnified party may effect without the consent of the indemnifying
party, which consent shall not be unreasonably withheld.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances under which the indemnity provided for
in Section 6 is for any reason held to be
31
31
unenforceable by the indemnified parties although applicable in accordance with
its terms, the Company and each of you shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity incurred by the Company and one or more of you, in such
proportions as will reflect the relative benefits from the offering of such
Securities received by the Company on the one hand and by you, on the other
hand, provided that if the Securities are offered by you at an initial public
offering price set forth in a Prospectus Supplement, the relative benefits
shall be deemed to be such that you shall be responsible for that portion of
the aggregate losses, liabilities, claims, damages and expenses represented by
the percentage that the underwriting commission appearing on the cover page of
the Prospectus Supplement bears to the initial public offering price appearing
thereon and the Company shall be responsible for the balance; provided,
however, that 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 any of you within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as you, and each director of the Company, each officer of the
Company who signed the Registration Statement, 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.
Section 8. Representations, Warranties and Agreements to
Survive Delivery. The representations, warranties, indemnities, agreements and
other statements of the Company or its officers set forth in or made pursuant
to this Agreement will remain operative and in full force and effect regardless
of any termination of the applicable Terms Agreement (including this Agreement
as incorporated by reference therein), or any investigation made by or on
behalf of the Company or any of you or any controlling person and will survive
delivery of and payment for the Securities.
Section 9. Termination of Agreement. (a) The
Representatives may terminate the applicable Terms Agreement (including this
Agreement, as incorporated by reference therein), immediately by notice to the
Company, at any time at or prior to the applicable Closing Time (i) if there
has been, since the respective dates as of which information is given in the
Prospectus, any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or otherwise),
properties, assets, business or results of operations of 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 new outbreak of
hostilities or escalation of existing hostilities or other calamity or crisis
the effect of which on the financial markets
32
32
of the United States is such as to make it, in your reasonable judgment,
impracticable to market the Securities or enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company has been
suspended by the Commission, or if trading generally on either the New York
Stock Exchange or the American Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of such exchanges or by order of the
Commission or any other governmental authority or (iv) if a general commercial
banking moratorium has been declared by either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4 hereof. Notwithstanding any such
termination, the covenants set forth in Section 3 with respect to any offering
of Securities purchased from the Company pursuant to the applicable Terms
Agreement and the provisions of Sections 6 and 7 shall remain in effect.
(c) This Agreement may also terminate pursuant to the
provisions of Sections 2, 5 and 10, with the effect stated in such Sections.
Section 10. Default by One or More of the Underwriters. If
one or more of you shall fail at the applicable Closing Time to purchase the
Securities that such Underwriter or Underwriters are obligated to purchase
pursuant to the applicable Terms Agreement (the "Defaulted Securities"), the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
substitute 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
set forth in this Agreement; if, however, you have not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate amount of Defaulted Securities does not
exceed 10% of the aggregate amount of the Securities to be purchased
pursuant to such Terms Agreement, the non-defaulting Underwriters
shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligation proportions
bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate amount of Defaulted Securities exceeds
10% of the aggregate amount of the Securities to be purchased pursuant
to such Terms Agreement, such Terms Agreement (including this
Agreement as incorporated by reference therein) shall terminate
without liability on the part of any non-defaulting Underwriter.
33
33
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of the applicable Terms Agreement, either the Representatives or
the Company shall have the right to postpone the applicable Closing Time for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
Section 11. Notices. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to you shall be directed to you as provided in the
applicable Terms Agreement. Notices to the Company shall be directed to it c/o
United Companies Financial Corporation, 0000 Xxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxx
00000, attention of Xxxx X. Xxxxxx, with copies to Kantrow, Spaht, Xxxxxx &
Blitzer (A Professional Law Corporation), attention of Xxx X. Xxxxxxx and
Stroock & Stroock & Xxxxx LLP, attention of Xxxx X. Xxxxxxxx.
Section 12. Parties. The applicable Terms Agreement and this
Agreement are made solely for the benefit of each of you, the Company and, to
the extent expressed, any person controlling either the Company or any of you,
and the directors of the Company, the officers of the Company who have signed
the Registration Statement, and the executors, administrators, successors and
assigns of such persons and, subject to the provisions of Section 10, no other
person shall acquire or have any right under or by virtue of the applicable
Terms Agreement or this Agreement. The term "successors and assigns" shall not
include any purchaser, as such purchaser, from any of you of the Securities.
All of the obligations of each of you hereunder are several and not joint.
Section 13. Governing Law and Time. This Agreement and each
Terms Agreement shall be governed by the law of the State of New York without
regard to the conflicts of law principles thereof. Specified times of the day
refer to New York City time.
Very truly yours,
UNITED COMPANIES
FINANCIAL CORPORATION
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
and Treasurer
34
Exhibit A(I)
UNITED COMPANIES FINANCIAL CORPORATION
(a Louisiana corporation)
$___________
Debt Securities
TERMS AGREEMENT
_______ __, 199_
To: United Companies Financial Corporation
0000 Xxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Dear Sirs:
Reference is made to the United Companies Financial Corporation
Securities Underwriting Agreement-Basic Provisions dated _____ __, 1997 (the
"Underwriting Agreement"). This Agreement is the Terms Agreement referred to
in the Underwriting Agreement. We offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement, the following securities
("Securities") on the following terms:
Title: due
------------ ------------
Principal Amount to be issued: $
-----------
Date of maturity:
------------
Interest rate: %
------------
Interest payment dates: and of each year
------------ --------------
Public offering price: %[, plus accrued interest from ]
------------ ------------
Purchase Price: %[, plus accrued interest from ] (payable
------------ ------------
by [wire transfer in same-day federal funds] [certified or official
bank check in New York Clearinghouse funds])
Underwriting Commission: %
------------
35
2
Redemption provisions: [Redeemable at the option of the Company in whole or in part on and
after , at 100% of principal amount plus accrued
-------- -- -----
interest to the date of redemption.]
Conversion or
------------
Exchange Provisions:
Trading
------------
Restrictions:
Delayed Delivery Contracts:
------------
Closing date and location: , 10:00 A.M.;
------------
Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Additional co-managers, if any:
------------
Additional underwriters, if any:
------------
Other terms:
------------
The Company represents and warrants to each of us that the
representations and warranties of the Company set forth in Section 1 of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof. All of the provisions contained in the Underwriting Agreement, a
copy of which is attached hereto as Annex A, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein defined.
As contemplated by Section 2 of the Underwriting Agreement,
attached as Schedule A hereto is a completed list of our respective
underwriting commitments, which shall be a part of this Agreement and the
Underwriting Agreement.
This Agreement shall be governed by the laws of the State of
New York without regard to the conflicts of law principles thereof.
If the foregoing is in accordance with your understanding of
the agreement between the Underwriters and you, please sign and return to the
Underwriters a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a binding
36
3
agreement between the Underwriters and you in accordance with its terms and the
terms of the Underwriting Agreement.
Very truly yours,
[ ]
By: ________________________
Confirmed and accepted as of
the date first above written:
UNITED COMPANIES
FINANCIAL CORPORATION
By: ________________________
Name:
Title:
37
Exhibit A(II)
UNITED COMPANIES FINANCIAL CORPORATION
(a Louisiana corporation)
Equity Securities
TERMS AGREEMENT
_______ __, 199_
To: United Companies Financial Corporation
0000 Xxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Dear Sirs:
Reference is made to the United Companies Financial Corporation
Securities Underwriting Agreement-Basic Provisions dated _____ __, 1997 (the
"Underwriting Agreement"). This Agreement is the Terms Agreement referred to
in the Underwriting Agreement. We offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement, the following securities
("Securities") on the following terms:
Title: [Common][Preferred] Stock[, Series __] [and Depositary Shares each
representing __ shares of Preferred Stock]
Number of Shares to be issued: shares
-----------
Voting Rights:
------------
Dividends: [cash] dividends of $ to $ per share payable
quarterly in arrears on , , , and
-------- -- -------- -- -------- -- -------- --
Public offering price: $ per share
------------
Purchase Price: $ per share (payable by [wire transfer in same-day
------------
federal funds] [certified or official bank check in New York
Clearinghouse funds])
Underwriting Commission: %
-------------
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2
Redemption provisions:
------------
Liquidation Preference: $ per share plus .
------------
Conversion or Exchange
------------
Provisions:
Trading Restrictions:
------------
Over-Allotment Option:
------------
Closing date and location: , 10:00 A.M.;
------------
Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Additional co-managers, if any:
------------
Additional underwriters, if any:
------------
Other Terms:
------------
Name of Transfer Agent and
------------
Registrar:
The Company represents and warrants to each of us that the
representations and warranties of the Company set forth in Section 1 of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof. All of the provisions contained in the Underwriting Agreement, a
copy of which is attached hereto as Annex A, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein defined.
As contemplated by Section 2 of the Underwriting Agreement,
attached as Schedule A hereto is a completed list of our respective
underwriting commitments, which shall be a part of this Agreement and the
Underwriting Agreement.
This Agreement shall be governed by the laws of the State of
New York without regard to the conflicts of law principles thereof.
If the foregoing is in accordance with your understanding of
the agreement between the Underwriters and you,
39
3
please sign and return to the Underwriters a counterpart hereof, whereupon this
instrument along with all counterparts and together with the Underwriting
Agreement shall be a binding agreement between the Underwriters and you in
accordance with its terms and the terms of the Underwriting Agreement.
Very truly yours,
[ ]
By: ________________________
Confirmed and accepted as of
the date first above written:
UNITED COMPANIES
FINANCIAL CORPORATION
By: ________________________
Name:
Title:
40
SCHEDULE A
Principal Amount
of Debt Securities
to be Purchased/
Number of Shares of
Underwriter Equity Securities
----------- -------------------
[ ] . . . . . . . . . . . . . . . . . . .
[ ] . . . . . . . . . . . . . . . . . . .
[ ] . . . . . . . . . . . . . . . . . . .
------------------------
Total . . . . . . . . . . .
-------------------------
41
Exhibit B
United Companies Financial Corporation
c/o [Manager's Address]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from United
Companies Financial Corporation (the "Company"), and the Company agrees to sell
to the undersigned, on ____________, 19__ (the "Delivery Date"), $____________
principal amount of the Company's ___% [Notes][Debentures] due ____________,
19__ (the "Securities"), offered by the Company's Prospectus dated
____________, 19__, as supplemented by its Prospectus Supplement dated
____________, 19__, receipt of which is hereby acknowledged, at a purchase
price of ___% of the principal amount thereof, plus accrued interest from
____________, 19__, to the Delivery Date, and on the further terms and
conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by
[certified or official bank check in New York Clearing House] [wire transfer of
federal] funds, at the office of the Underwriters, on the Delivery Date, upon
delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligations of the undersigned to take delivery of and
make payment for Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject and (2) the Company, on or before
____________, 19__, shall have sold to the Underwriters of the Securities (the
"Underwriters") such principal amount of the Securities as is to be sold to
them pursuant to the Terms Agreement dated ____________, 19__ between the
Company and the Underwriters. The obligation of the undersigned to take
delivery of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payment for Securities
pursuant to other contracts similar to this contract. The undersigned
represents and warrants to you that its investment in the Securities is not, as
of the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied
42
2
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
By the execution hereof, the undersigned represents and
warrants to the Company that all necessary corporate action for the due
execution and delivery of this contract and the payment for and purchase of the
Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the Company
and mailing or delivery of a copy as provided below, this contract will
constitute a valid and binding agreement of the undersigned in accordance with
its terms.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed
Delivery Contracts for an aggregate principal amount of Securities in excess of
$____________ and that the acceptance of any delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance on a copy
hereof and mail or deliver a signed copy hereof to the undersigned at its
address set forth below. This
43
3
will become a binding contract between the Company and the undersigned when
such copy is mailed or delivered.
This Agreement shall be governed by the laws of the State of
New York without regard to the conflicts of law principles thereof.
Yours very truly,
______________________________
(Name of Purchaser)
By____________________________
(Title)
______________________________
______________________________
(Address)
Accepted as of the date
first above written.
United Companies
Financial Corporation
By________________________
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
is as follows: (Please print.)
Telephone No.
Name (Including Area Code)
---- ---------------------------
