COPELCO CAPITAL FUNDING TRUST 1999-B
__________ _____% CLASS E LEASE-BACKED NOTES
__________ _____% CLASS R-1 LEASE RESIDUAL BACKED NOTES
__________ _____% CLASS R-2 LEASE RESIDUAL BACKED NOTES
SERIES 1999-B
PLACEMENT AGENT AGREEMENT
September __, 1999
First Union Capital Markets Corp.
One First Union Center, TW-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 000000
Ladies and Gentlemen:
Copelco Capital Funding LLC 99-B, a limited liability company organized and
existing under the laws of Delaware (the "Issuer") and Copelco Capital, Inc., a
corporation organized and existing under the laws of Delaware ("Copelco"),
hereby agree with you as follows:
Section 1. ISSUANCE AND SALE OF NOTES. The Issuer has authorized the
issuance of $__________ of _____% Class E Lease-Backed Notes, Series 1999-B (the
"Class E Notes"), $__________ of _____% Class R-1 Lease Residual Backed Notes,
Series 1999-B (the "Class R-1 Notes") and $__________ of _____% Class R-2 Lease
Residual Backed Notes, Series 1999-B (the "Class R-2 Notes;" collectively with
the Class R-1 Notes, the "Class R Notes;" and collectively with the Class E
Notes, the "Notes"). The Notes will be issued on September __, 1999 or such
other date as we shall mutually agree upon (the "Closing Date") pursuant to an
Indenture, dated as of September 1, 1999 (the "Indenture"), among the Issuer,
Manufacturers and Traders Trust Company (the "Trustee") and Copelco, as
servicer. The Notes are more fully described in the Private Placement Memorandum
(as defined below), a copy of which the Issuer is furnishing to you. The Notes
will evidence secured debt obligations of the Issuer. The assets of the Issuer
will include a pool of business, manufacturing and healthcare equipment lease
contracts, including all payments due thereunder (the "Leases") and certain
interests in the underlying equipment (the "Equipment"). The Issuer has also
authorized the issuance of $___________ aggregate principal amount of the
Issuer's _____% Class A-1 Lease-Backed Notes, Series 1999-B (the "Class A-1
Notes"), $___________ aggregate principal amount of the Issuer's _____% Class
A-2 Lease-Backed Notes, Series 1999-B (the "Class A-2 Notes"), $___________
aggregate principal amount of the Issuer's _____% Class A-3 Lease-Backed Notes,
Series 1999-B (the "Class A-3 Notes"),
$___________aggregate principal amount of the Issuer's _____% Class A-4
Lease-Backed Notes, Series 1999-B (the "Class A-4 Notes," together with the
Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the "Class A
Notes"), $__________ of the _____% Class B Lease-Backed Notes, Series 1999-B
(the "Class B Notes"), $__________ of the _____% Class C Lease-Backed Notes,
Series 1999-B (the "Class C Notes") and $__________ of the _____% Class D
Lease-Backed Notes, Series 1999-B. The Class A Notes, the Class B Notes, the
Class C Notes and the Class D Notes are being sold in a public offering and are
not included in this private placement. A copy of the Prospectus dated September
__, 1999 (the "Prospectus") relating to such public offering is incorporated by
reference in the Private Placement Memorandum (as defined below). Capitalized
terms used and not defined herein shall have the meanings specified in the
Indenture.
Section 2. APPOINTMENT OF PLACEMENT AGENT; PLACEMENT OF NOTES.
(a) The Issuer hereby appoints you as exclusive Placement Agent in
connection with the placement of all of the Notes (the "Placement Agent") for
the period (the "Offering Period") from the date hereof until such date as may
be agreed between us (the "Offering Termination Date"). Subject to the
performance in all material respects by the Issuer of its obligations to be
performed hereunder, and to the completeness and accuracy in all material
respects of all of the representations and warranties of the Issuer and Copelco
contained herein, you hereby accept such agency and agree, on a firm commitment
basis and subject to the terms and conditions herein set forth, to purchase, or
to find qualified purchasers ("Purchasers") for, all of the Notes on the Closing
Date. Your agency hereunder is not terminable, except as provided herein, by the
Issuer or Copelco without your permission and shall continue until the close of
business on the Offering Termination Date.
(b) In the event the offering is commenced but no Notes shall have been
subscribed for prior to the Offering Termination Date, your agency and this
Private Placement Agreement (the "Agreement") shall terminate without obligation
on your part or on the part of the Issuer except as provided in Section 7 hereof
and except that the indemnification and contribution referred to in Section 8
hereof shall continue after such termination of this Agreement.
Section 3. DELIVERY. Delivery of the Notes to the purchasers thereof (the
"Purchasers") shall be made at the offices of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M., New York time, on the Closing
Date. The denominations of the Notes to be delivered and the name in which each
such Note is to be registered will be set forth in a notice to be delivered by
you on behalf of the Purchasers to the Trustee. The Issuer agrees to have the
Notes available for inspection, checking and packaging by the Placement Agent in
New York, New York, not later than 1:00 P.M., New York City time, on the
Business Day prior to the Closing Date.
Section 4. REPRESENTATIONS AND WARRANTIES.
(a) The Issuer hereby represents and warrants to, and agrees with you, as
follows:
(i) The Issuer, with your assistance, will prepare and furnish to you
by the Closing Date a copy of a Private Placement Memorandum dated
September __, 1999
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relating to the Class E Notes and a copy of a Private Placement Memorandum
dated September __, 1999 related to the Class R Notes (collectively, as
supplemented and amended, the "Private Placement Memorandum") relating to
the Notes. The Private Placement Memorandum does not, as of its date, and
as of the date hereof and the Closing Date will not, contain any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Issuer makes no representations or warranties as to the Underwriting
Information (as defined in Section 8(b) hereof).
(ii) This Agreement has been duly authorized, executed and delivered
by the Issuer and constitutes a legal, valid and binding agreement of the
Issuer enforceable in accordance with its terms, except that the provisions
hereof relating to indemnification of the Placement Agent may be subject to
limitations of public policy.
(iii) Each of the Indenture and the Assignment and Servicing Agreement
has been duly authorized by the Issuer, and, when executed and delivered by
the Issuer, will constitute the legal, valid and binding obligation of the
Issuer, enforceable in accordance with its terms and each of the Indenture
and the Assignment and Servicing Agreement conforms in all material
respects to the description thereof contained in the Private Placement
Memorandum.
(iv) The issuance of the Notes has been duly authorized by the Issuer
and, when duly and validly executed, authenticated and delivered in
accordance with the Indenture and this Agreement, will be the legal, valid
and binding obligations of the Issuer, enforceable in accordance with their
terms, and entitled to the benefits of the Indenture and conform in all
material respects to the description thereof contained in the Private
Placement Memorandum.
(v) The issue and sale of the Notes and the performance of this
Agreement, the Indenture and the Assignment and Servicing Agreement by the
Issuer will not (A) not conflict with or result in a breach of, and will
not constitute a default under any of the provisions of, its certificate of
incorporation or any law, governmental rule or regulation, or any judgment,
decree or order binding on the Issuer or its properties, or any of the
provisions of any indenture, mortgage, deed of trust, contract or other
agreement or instrument to which the Issuer is a party or by which it is
bound or (B) result in the creation or imposition of any Adverse Claim and
no consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required for
the issue and sale of the Notes or the consummation by the Issuer of the
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase of the Notes by the Purchasers. As used herein, "Adverse Claim"
means a lien, pledge, security interest or other charge or encumbrance.
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(vi) The Issuer is not, and will not, as of the Closing Date, be an
"investment company" under the Investment Company Act of 1940, as amended
(the "1940 Act").
(vii) The Indenture, when executed and delivered, will have been duly
qualified under the Trust Indenture Act of 1939.
(b) Copelco hereby represents and warrants to and agrees with the Placement
Agent as follows:
(i) This Agreement has been duly authorized, executed and delivered,
the Assignment and Servicing Agreement and the Indenture have been duly
authorized, executed and delivered, and this Agreement constitutes, and
when executed and delivered, the Assignment and Servicing Agreement and the
Indenture will constitute, legal, valid and binding obligations of Copelco,
enforceable in accordance with their respective terms, except that the
provisions hereof relating to indemnification of the Placement Agent may be
subject to limitations of public policy and each of the Indenture and the
Assignment and Servicing Agreement conforms in all material respects to the
description thereof contained in the Private Placement Memorandum.
(ii) The performance of this Agreement by Copelco, and the
consummation by Copelco of the transactions herein contemplated, will not
(A) conflict with or result in a breach of, and will not constitute a
default under any of the provisions of its certificate of incorporation or
by-laws or any law, governmental rule or regulation, or any judgment,
decree or order binding on Copelco or its properties, or any of the
provisions of any indenture, mortgage, deed of trust, contract or other
agreement or instrument to which Copelco is a party or by which it is bound
or (B) result in the creation or imposition of any Adverse Claim and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
consummation by Copelco of the transactions contemplated by this Agreement,
except such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase of the Notes by the Purchasers.
(iii) Copelco hereby makes and repeats the representations and
warranties set forth in Section 2 of the Assignment and Servicing
Agreement. Such representations and warranties are incorporated by
reference in this Section 4(b), and the Placement Agent and the Purchasers
may rely thereon as if such representations and warranties were fully set
forth herein.
(iv) Copelco represents and warrants it has delivered to the Placement
Agent complete and correct copies of its balance sheet and statements of
income and retained earnings reported by Copelco Capital Inc. and Copelco
Financial Services Group, Inc. (the "Copelco Entities") for the year ended
December 31, 1998 and the period ended March 31, 1998. Except as set forth
in or contemplated in the Private Placement Memorandum, there has been no
material adverse change in the condition (financial or otherwise) of the
Copelco Entities since March 31, 1999.
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(v) Any taxes, fees and other governmental charges arising from the
execution and delivery of this Agreement, the Assignment and Servicing
Agreement and the Indenture and in connection with the execution, delivery
and issuance of the Notes and with the transfer of the Leases and the
Equipment, have been paid or will be paid by Copelco prior to the Closing
Date.
(c) Each of the Issuer and Copelco represents and warrants to you that
there is no pending or threatened action, suit or proceeding against or
affecting it in any court or tribunal or before any arbitrator of any kind or
before or by any governmental authority (i) asserting the invalidity of this
Agreement, the Assignment and Servicing Agreement, the Indenture or the Notes,
(ii) seeking to prevent the issuance of the Notes or the consummation of any of
the transactions contemplated by this Agreement, the Assignment and Servicing
Agreement or the Indenture or (iii) seeking any determination or ruling that
might materially and adversely affect (A) its performance of its obligations
under this Agreement, the Assignment and Servicing Agreement or the Indenture
(as applicable) or (B) the validity or enforceability of this Agreement, the
Assignment and Servicing Agreement, the Indenture or the Notes.
(d) The Placement Agent represents and warrants to, and agrees with Copelco
and the Issuer that:
(i) It understands that the Notes have not been registered under the
Securities Act of 1933, as amended (the "1933 Act"), in reliance upon the
exemption provided in Section 4(2) of the 1933 Act, and it hereby covenants
and agrees that it will not offer or sell the Notes in a manner that would
cause such exemption to be inapplicable. Such Placement Agent has not
utilized and will not utilize any form of general solicitation or general
advertising in connection with the placement of the Notes, including any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar medium or broadcast over television or
radio, or conduct any seminar or meeting with respect to the Notes whose
attendees have been invited by general solicitation or advertising.
(ii) The Notes will only be offered and sold by the Placement Agent to
Purchasers to whom the Placement Agent have delivered a Private Placement
Memorandum.
(iii) It is understood that Copelco and the Issuer have only
authorized the Placement Agent to distribute the Private Placement
Memorandum, the information specifically referred to therein and any other
documents authorized by Copelco or the Issuer and the Placement Agent
agrees and covenants to Copelco and the Issuer that it shall offer and sell
the Notes only pursuant to delivery of such materials.
(iv) The Placement Agent shall advise Copelco and the Issuer of the
jurisdictions in which it desires to sell the Notes.
(v) The Placement Agent represents and agrees that it has not offered
or sold, and will not offer or sell, any Notes constituting part of its
allotment, except (i) to "qualified institutional buyers" as defined in
Rule 144A under the 1933 Act or (ii) to
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institutional "accredited investors" as defined in Rule 501(a)(1),(2),(3)
or (7) under the 1933 Act.
(vi) The Placement Agent represents and agrees that it will (i)
deliver to each initial purchaser of the Notes, at or prior to the related
confirmation of sale, a copy of the Private Placement Memorandum, as then
amended or supplemented, and (ii) if definitive notes have been issued to
an initial purchaser of the Notes, receive a representation letter from
each such purchaser substantially in the form of Exhibit B to the
Indenture.
Section 5. COVENANTS OF THE ISSUER AND COPELCO. The Issuer and Copelco,
jointly and severally, hereby covenant and agree with you as follows:
(a) Each of the Issuer and Copelco will promptly advise the Placement Agent
of the receipt by any of them of any notification with respect to the suspension
of the qualification of the Notes for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose. The Issuer will not prepare
any amendment or supplement to the Private Placement Memorandum to which the
Placement Agent or its counsel reasonably objects.
(b) If, at any time when the Private Placement Memorandum relating to the
Notes is to be delivered to a potential Purchaser, any event occurs as a result
of which the Private Placement Memorandum as then supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be necessary, in the opinion of
the Placement Agent, to supplement such Private Placement Memorandum, the Issuer
promptly will prepare and deliver to the Placement Agent or any such potential
Purchaser, subject to paragraph (a) of this Section 5, a supplement which will
correct such statement or omission.
(c) Each of the Issuer and Copelco understands that pursuant to this
Agreement each potential Purchaser may request documents or information in
addition to those referred to in Section 5(b) relating to Copelco, the Issuer,
and the Leases. Each of the Issuer and Copelco will provide to you and such
Purchaser all such documents and opportunities to meet with officials of Copelco
or the Issuer as such potential Purchasers shall reasonably request or have
requested; it being understood that all such documents and disclosures may be
subject to appropriate confidentiality agreements. Upon request, Copelco and the
Issuer will make available to Noteholders and to you such information as will
satisfy the provisions of Rule 144A under the 1933 Act in order to effect
resales of the Notes pursuant thereto.
(d) Copelco and the Issuer will furnish to you, so long as delivery of a
placement memorandum is desired by you, as many copies of the Private Placement
Memorandum relating to the Notes and any supplement thereto as you may
reasonably request.
(e) Copelco and the Issuer will take all reasonable actions requested by
you to arrange for the qualification of the Notes for sale under the laws of the
jurisdictions within the United States as you may designate and will maintain
such qualifications in effect as long as required for the completion of the
placement of the Notes; provided, that the Issuer shall not be
6
required to register the Notes under any such jurisdiction in connection
therewith if the Issuer shall be required to qualify as a foreign corporation
doing business in any such jurisdiction.
(f) For so long as the Notes are outstanding, the Issuer and Copelco shall
deliver to you by first-class mail as soon as practicable a copy of all reports
and notices delivered to the Rating Agencies, the Trustee or the Noteholders
under the Indenture.
(g) For so long as the Notes are outstanding, the Issuer and Copelco will
furnish to you as soon as practicable after filing any other information
concerning the Issuer or Copelco filed with any government or regulatory
authority which is otherwise publicly available.
(h) To the extent, if any, that any rating provided with respect to the
Notes set forth in Section 6(e) hereof is conditional upon the furnishing of
documents reasonably available to the Issuer or Copelco, the Issuer and Copelco
shall furnish such documents within any required time period.
Section 6. CONDITIONS OF PLACEMENT AGENT'S OBLIGATION. The obligations of
the Placement Agent to act as Placement Agent for the Notes on the Closing Date
shall be subject to the accuracy in all material respects of the representations
and warranties of the Issuer and Copelco herein, in the Assignment and Servicing
Agreement and in the Indenture, to the performance by the Issuer and Copelco in
all material respects of their obligations hereunder and to the following
additional conditions:
(a) The Issuer and Copelco shall each have delivered a certificate (an
"Officer's Certificate"), dated the Closing Date, signed by its Vice President
and its Chief Financial Officer to the effect that:
(i) the representations and warranties made by the Issuer or Copelco
(as the case may be) in this Agreement, the Indenture and the Assignment
and Servicing Agreement are true and correct in all material respects at
and as of the date of such Officer's Certificate as if made on and as of
such date (except to the extent they expressly relate to an earlier date);
(ii) the Issuer or Copelco (as the case may be) has complied with all
the agreements and satisfied all the conditions on its part to be performed
or satisfied under this Agreement, the Indenture and the Assignment and
Servicing Agreement at or prior to the date of such Officer's Certificate;
(iii) nothing has come to such officer's attention that would lead him
to believe that the Private Placement Memorandum contains any untrue
statement of a material fact or omits to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and
(iv) such officer is not aware of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction
or the threatening of any proceeding for that purpose.
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(b) You shall have received from Xxxxxxx X. Xxxxxxx, Esq., a favorable
opinion (subject to customary and usual qualifications) with respect to Copelco
and the Issuer, dated the Closing Date and reasonably satisfactory in form and
substance to the Placement Agent and their counsel with respect to, or to the
effect that: (i) the due formation and qualification of each of the Issuer and
Copelco and that the Issuer and Copelco, as applicable, have the corporate power
and authority to perform this Agreement, the Assignment and Servicing Agreement
and the Indenture and the transactions contemplated herein and therein; (ii) the
due authorization, execution, delivery and enforceability of this Agreement, the
Assignment and Servicing Agreement and the Indenture, as applicable, by the
Issuer and Copelco; (iii) each of this Agreement, the Assignment and Servicing
Agreement and the Indenture are the legal, valid and binding obligation of the
Issuer and Copelco, as applicable, enforceable against each of them in
accordance with its terms (subject to customary exceptions relating to
bankruptcy and laws affecting creditors' rights); (iv) the Notes have been duly
authorized, executed and delivered by the Issuer and constitute the legal, valid
and binding obligations of the Issuer, enforceable in accordance with their
terms (subject to customary exceptions as to bankruptcy and laws affecting
creditors' rights) and are entitled to the benefits of the Indenture; (v) the
issuance and sale of the Notes by the Issuer, the performance of this Agreement
by the Issuer and Copelco and the compliance by the Issuer and Copelco with the
terms of the Indenture and the Assignment and Servicing Agreement, as
applicable, and the consummation of the transactions contemplated herein and
therein will not conflict with the organizational documents of the Issuer or
Copelco, or any other contracts to which the Issuer or Copelco is party or by
which either of them is bound; (vi) there is no legal or governmental proceeding
pending or, to the best of my knowledge, threatened against the Issuer or
Copelco which would have a material adverse effect on the issuance of the Notes;
(vii) (other than with respect to financial data, as to which such counsel need
not express an opinion) nothing has come to such counsel's attention that leads
such counsel to believe that the Prospectus (as of its date or the Closing Date)
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; (viii) in the event a court disregarded the intent of the
parties and characterized the transfers of the Leases and the Equipment (or
interests therein) by Copelco to the Issuer as a pledge of collateral rather
than as a sale or absolute assignment, the Assignment and Servicing Agreement
and accompanying documentation creates a valid security interest in the Leases
and the Equipment (or interests therein) under applicable law; and (ix) assuming
no prior financing statements covering the Leases are in effect, that financing
statements covering the Leases and naming (A) the Issuer as secured party and
Copelco as debtor and (B) the Issuer as debtor and the Trustee as secured party
are being filed in the appropriate filing offices of the State of New Jersey,
and assuming that the Trustee has taken possession of the Leases, the Trustee
has a first priority perfected security interest in all right, title and
interest of Copelco and the Issuer in the Leases. In rendering such opinion,
counsel may rely, to the extent deemed proper and as stated therein, as to
matters of fact on certificates of responsible officers of the Issuer or Copelco
and public officials and as to matters of state law of jurisdictions other than
the jurisdictions in which such counsel is admitted to practice, on opinions of
local counsel satisfactory to the Placement Agent.
(c) The Placement Agent shall have received from Xxxxx Xxxxxxxxxx, special
counsel for the Placement Agent, such opinion or opinions, dated the Closing
Date, with respect to the validity of the Notes, the Private Placement
Memorandum, true sale, nonconsolidation,
8
enforceability of the Transaction Documents and the Notes, certain securities
law issues, perfection, federal tax, and other related matters as the Placement
Agent may require.
(d) On the date hereof and at the Closing Date, KPMG LLP shall have
furnished to the Placement Agent a letter or letters, dated the date of this
Agreement and the Closing Date, respectively, in form and substance satisfactory
to the Placement Agent.
(e) The Class E Notes shall have been rated at least "___" by Xxxx & Xxxxxx
Credit Rating Co. ("DCR") and "___" by Standard & Poors Rating Group ("S&P"),
which rating shall not have been reduced or withdrawn as evidenced by the
Officer's Certificate referred to in Section 6(b). The Class R-1 Notes shall
have been rated at least "___" by Xxxxx'x Investors Service, Inc. ("Moody's"),
"___" by DCR and "___" by S&P, which rating shall not have been reduced or
withdrawn as evidenced by the Officer's Certificate referred to in Section 6(b).
The Class R-2 Notes shall have been rated at least "___" by Moody's, "___" by
DCR and "___" by S&P, which ratings shall not have been reduced or withdrawn as
evidenced by the Officer's Certificate referred to in Section 6(b).
(f) Counsel to the Trustee shall have delivered a favorable opinion
(subject to customary and usual exceptions), dated the Closing Date, as the case
may be, and satisfactory in form and substance to the Placement Agent and
counsel for the Placement Agent and to the Issuer and Copelco and their counsel
with respect to, or to the effect that: (i) the due incorporation and valid
existence of the Trustee, (ii) the due authorization, execution and delivery by
the Trustee of the Indenture, (iii) the Indenture is the legal, valid and
binding obligation of the Trustee, enforceable against the Trustee in accordance
with its terms (subject to customary and usual exceptions) and (iv) the
execution, delivery and performance of the Indenture will not conflict with the
Trustee's organizational documents.
(g) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be reasonably
satisfactory in form and substance to you, and you and your special counsel
shall have received such other information, certificates and documents as you or
they may reasonably request.
(h) The issuance and sale of the Class A Notes, the Class B Notes, the
Class C Notes and the Class D Notes shall have occurred.
Section 7. FEES AND EXPENSES. In consideration of the Placement Agent'
services in acting as exclusive Placement Agent for the placement of the Notes
on a firm commitment basis, the Company hereby agrees to pay to the Placement
Agent a fee in an amount equal to ____% of the initial principal amount of the
Class E Notes, ____% of the initial principal amount of the Class R-1 Notes, and
____% of the initial principal amount of the Class R-2 Notes. In the event that
(x) no closing of the sale of the Notes occurs by the Closing Date through no
fault of the Issuer or Copelco or because the conditions set forth in Section 6
have not been met, or (y) the Placement Agent terminates the engagement pursuant
to Section 10 or because any conditions precedent in Section 6 have not been
fulfilled, then the Issuer and Copelco's liability to the Placement Agent shall
be limited to the reimbursement of the Placement Agent's expenses incurred
through the date of termination for its reasonable out-of-pocket and incidental
expenses. In addition, whether or not the Notes are issued or sold:
9
(a) Copelco shall pay the reasonable fees and expenses associated with the
transactions contemplated hereby not paid by the Placement Agent in accordance
with the provisions of Section 7(b), including, without limitation, the
following fees and expenses:
(i) Rating Agency fees payable to DCR, S&P and Moody's with respect to
each of their ratings of the Notes;
(ii) Fees charged by the firm of independent public accountants
referred to in Section 6(d);
(iii) Filing fees in connection with the transactions contemplated
hereby;
(iv) Reasonable fees and expenses of Xxxxx Xxxxxxxxxx LLP;
(v) Trustee's fees and fees of counsel to the Trustee;
(vi) the costs and expenses of printing any Private Placement
Memorandum;
(vii) the costs of printing or reproducing this Agreement, the Blue
Sky Survey and any other documents in connection with the offer, sale and
delivery of the Notes;
(viii) all expenses in connection with the qualification of the Notes
under state securities laws as provided in Section 4(a)(v), including the
fees and disbursements of counsel in connection with the Blue Sky Survey;
(ix) the cost of preparing the Notes;
(x) the cost or expenses of any transfer agent or registrar; and
(xi) all other costs and expenses incident to the performance of their
obligations hereunder which are not otherwise specifically provided for in
this Section 7; provided, however, that Copelco does not hereby waive any
rights to reimbursement from the Placement Agent in the event of the
Placement Agent's failure to perform in accordance with this Agreement.
(b) It is understood and agreed that, except as provided in Sections 8 and
9, the Placement Agent will pay securities transfer taxes on the resale of any
of the Notes by them, and any expenses connected with any placements they may
make.
Section 8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Issuer and Copelco, jointly and severally, will indemnify and hold
harmless the Placement Agent, each of the Placement Agent's officers and
directors, and each person, if any, who controls the Placement Agent within the
meaning of Section 15 of the 1933 Act from and against any and all losses,
claims, damages or liabilities, joint or several, to which the Placement Agent
or any such controlling person may become subject, under the 1933 Act or
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otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) an untrue statement or
alleged untrue statement of a material fact contained in any Private Placement
Memorandum, or any amendment or supplement thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances under
which they were made, not misleading, and will promptly reimburse the Placement
Agent and each such controlling person for any legal or other expenses
reasonably incurred by such Placement Agent or such controlling person in
connection with investigating, preparing to defend or defending, or appearing as
a third party witness in connection with, any such loss, action, damage,
liability, claim or action as such expenses are incurred; provided, however,
that the Issuer and Copelco shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Private Placement Memorandum or any such amendment or supplement in
reliance upon and in conformity with the Underwriting Information. The foregoing
indemnity agreement is in addition to any liability which each of the Issuer and
Copelco may otherwise have to you or any person who controls you.
(b) The Placement Agent agrees to indemnify and hold harmless the Issuer
and Copelco against any losses, claims, damages or liabilities to which the
Issuer or Copelco may become subject, under the 1933 Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) an untrue statement or alleged untrue
statement of a material fact contained in the Private Placement Memorandum, or
any amendment or supplement thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Private Placement Memorandum or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Issuer or Copelco by or on behalf of such Placement Agent expressly for
use therein and provided that such written information was not based upon
Company-Provided Information (as defined herein); and will reimburse the Issuer
or Copelco for any legal or other expenses reasonably incurred by the Issuer or
Copelco in connection with the investigating, preparing to defend or defending,
or appearing as a third party witness in connection with, any such loss, claim,
damage, liability or action as such expenses are incurred. The Issuer and
Copelco acknowledge that the statements set forth in the second and sixth
paragraph under the heading "Underwriting" in the Prospectus, which is included
with the Private Placement Memorandum, constitute the only information furnished
in writing by or on behalf of the Placement Agent for inclusion in the Private
Placement Memorandum (the "Underwriting Information"), and each of you confirm
that such statements are correct. The foregoing indemnity agreement is in
addition to any liability which you may otherwise have to each of the Issuer and
Copelco.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
claim or commencement thereof; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case any such action
shall be brought against any
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indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have been advised by counsel that representation of such
indemnified party and the indemnifying party may be inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, the indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. It is understood that the indemnifying party
shall, in connection with any such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys together with appropriate local counsel at
any time from all indemnified parties not having actual or potential differing
interests with any other indemnified party. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to appoint
counsel to defend such action and approval by the indemnified party of such
counsel, the indemnifying party will not be liable for any settlement entered
into without its consent and will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence, (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii). Notwithstanding the immediately preceding sentence and the first
sentence of this paragraph, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
(d) You agree to deliver to the Issuer or Copelco no later than the date on
which the Prospectus Supplement is required to be filed pursuant to Rule 424
with a copy of its Derived Information (defined below).
(e) You agree, assuming all Company-Provided Information (defined below) is
accurate and complete in all material respects, to indemnify and hold harmless
the Issuer and Copelco against any and all losses, claims, damages or
liabilities, joint or several, to which they may become subject under the 1933
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
of a material fact contained in the Derived Information provided by you, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by him, her or it in connection
with investigating or defending
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or preparing to defend any such loss, claim, damage, liability or action as such
expenses are incurred. Your obligations under this Section 8(e) shall be in
addition to any liability which you may otherwise have.
(f) Each of the Issuer and Copelco agrees to indemnify and hold harmless
the Placement Agent, each of the Placement Agent's officers and directors and
each person who controls the Placement Agent within the meaning of Section 15 of
the 1933 Act against any and all losses, claims, damages or liabilities, joint
or several, to which they may become subject under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement of a material fact
contained in the Company-Provided Information provided by the Issuer or Copelco,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by him, her or it in connection
with investigating or defending or preparing to defend any such loss, claim,
damage, liability or action as such expenses are incurred. Your obligation under
this Section 8(f) shall be in addition to any liability which you may otherwise
have.
The procedures set forth in Section 8(c) shall be equally applicable to
Sections 8(e) and 8(f).
(g) For purposes of this Section 8, the term Derived Information means such
portion, if any, of the information delivered to the Issuer or Copelco by the
Placement Agent pursuant to Section 8(d) as:
(i) is not contained in the Private Placement Memorandum without
taking into account information incorporated therein by reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the type of information defined as Collateral Term Sheets,
Structural Term Sheets or Computational Materials (as such terms are
interpreted in the No-Action Letters).
"Company-Provided Information" means any computer tape furnished to the
Placement Agent by the Company concerning the Leases or any other information
furnished by the Company to the Placement Agent that is relied on or is
reasonably anticipated by the parties hereto to be relied on by the Placement
Agent in the course of the Placement Agent's preparation of its Derived
Information or the written information to be included in the Private Placement
Memorandum by the Placement Agent as set forth in Section 8(b) herein.
The terms "Collateral Term Sheet" and "Structural Term Sheet" shall have
the respective meanings assigned to them in the February 13, 1995 letter (the
"PSA Letter") of Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto, were
publicly available February 17, 1995). The term "Collateral Term Sheet" as used
herein includes any subsequent Collateral Term Sheet that reflects a substantive
change in the information presented. The term "Computational Materials" has the
13
meaning assigned to it in the May 17, 1994 letter (the "Xxxxxx letter" and
together with the PSA Letter, the "No-Action Letters") of Xxxxx & Xxxx on behalf
of Xxxxxx, Xxxxxxx & Co., Inc. (which letter, and the SEC staff's response
thereto, were publicly available May 20, 1994).
(h) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuer and Copelco on the one hand and the Placement Agent on the other from
the offering of the Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Issuer or Copelco on
the one hand and the Placement Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the Issuer
or Copelco on the one hand and the Placement Agent on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Issuer and Copelco bear to the total
commissions received by the Placement Agent. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuer or Copelco or the
Placement Agent on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Issuer, Copelco and the Placement Agent agree that it would not be just and
equitable if contributions pursuant to this subsection (h) were determined by
pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to above in this subsection
(h). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this subsection (h) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating, preparing to defend or defending, or appearing as
a third party witness in connection with, any such action or claim.
Notwithstanding the provisions of this subsection (h), the Placement Agent shall
not be required to contribute any amount in excess of the fee paid to the
Placement Agent pursuant to Section 7 hereof. No person guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(i) The obligations of the Issuer and Copelco under this Section 8 shall be
in addition to any liability which the Issuer or Copelco may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Placement Agent within the meaning of the 1933 Act; and the
obligations of the Placement Agent under this Section 8 shall be in addition to
any liability which the Placement Agent may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Issuer
and Copelco and to each person, if any, who controls the Issuer or Copelco
within the meaning of the 1933 Act.
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Section 9. SURVIVAL. The respective representations, warranties and
agreements of the Issuer, Copelco and the Placement Agent set forth or made
pursuant to this Agreement will remain in full force and effect, notwithstanding
any investigation heretofore or hereafter made by or on behalf of the Issuer,
Copelco or the Placement Agent, and such representations, warranties and
agreements made by the Issuer and Copelco shall survive the delivery and payment
for the Notes. The provisions of Section 7 and 8 shall survive the termination
or cancellation of this Agreement.
(a) No other person will have any right or obligation hereunder, except
that the provisions of this Agreement, including, without limitation, the
representations and warranties and the covenants and agreements of the Issuer
and Copelco contained herein are intended to be for the benefit of all
Purchasers and shall be enforceable against Copelco by any such Purchaser,
whether or not an express assignment to such Purchaser of rights under this
Agreement has been made by you, any intervening Purchaser or any of your or
their successors and assigns.
Section 10. TERMINATION.
(a) This Agreement may be terminated by you in your absolute discretion at
any time upon the giving of notice at any time prior to the Closing Date: (i) if
there has been any material adverse change in the condition, financial or
otherwise, of Copelco or the Issuer, or in the earnings, business affairs or
business prospects of Copelco or the Issuer, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your reasonable
judgment, impracticable to market the Notes or enforce contracts for the sale of
the Notes, or (iii) if trading generally on either the American Stock Exchange
or the New York 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 said exchanges or by order of the Commission or any
other governmental authority, or (iv) if a banking moratorium has been declared
by either federal or New York authorities. In the event of any such termination,
no party will have any liability to any other party hereto, except as otherwise
provided in Section 7 or 8 hereof.
(b) This Agreement may not be terminated by the Issuer or Copelco without
the written consent of the Placement Agent, except in accordance with law.
(c) Notwithstanding anything herein to the contrary, in the event the
Issuer or Copelco does not perform any obligation under this Agreement or any
representation and warranty hereunder is incomplete or inaccurate in any
material respect, this Agreement and all of the Placement Agent' obligations
hereunder may be immediately cancelled by the Placement Agent by notice thereof
to the Issuer or Copelco. Any such cancellation shall be without liability of
any party to any other party except that the provisions of Sections 8 and 9
hereof shall survive any such cancellation.
Section 11. NOTICES. All communications provided for or permitted hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered to or mailed by certified or registered mail, postage prepaid, or
transmitted by telex or telegraph and confirmed by a similar mailed writing, if
to you, addressed to you, at the address first stated in this
15
Agreement, or to such other address as you may designate in writing to the
Issuer and Copelco, if to Copelco, addressed to Copelco at Xxx Xxxxxxxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000 or if to the Issuer, addressed to the Issuer
at 000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000-5400, or to such other
address as Copelco or the Issuer may have designated in writing to you.
Section 12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the Issuer and Copelco and their successors and assigns and the
Placement Agent and its successors and assigns.
Section 13. ENTIRE AGREEMENT. This Agreement and the documents referred to
herein and to be delivered pursuant hereto constitute the entire agreement
between the parties pertaining to the subject matter hereof and supersede all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties.
Section 14. GOVERNING LAW.
(a) THIS AGREEMENT IS TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) OF THE STATE OF
NEW YORK.
(b) THE ISSUER AND COPELCO HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT
LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, AND EACH WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS SET FORTH IN SECTION
11 HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER
THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS, POSTAGE PREPAID. THE
ISSUER AND COPELCO HEREBY WAIVE ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND
ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE
COURT. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF THE ISSUER OR COPELCO
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT EITHER'S
RIGHT TO BRING ANY ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
(c) THE ISSUER AND COPELCO HEREBY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH THIS
AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH
TRIAL WITHOUT A JURY.
Section 15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument.
16
Section 16. MISCELLANEOUS. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. If you are in agreement with the foregoing, please sign a counterpart
hereof and return the same to the Issuer or Copelco, whereupon this Agreement
shall become a binding agreement between you, and the Issuer and Copelco.
17
Very truly yours,
COPELCO CAPITAL, INC.
By:
----------------------------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Title: Vice President, Chief Financial Officer
& Treasurer
COPELCO CAPITAL FUNDING LLC 99-B
By: COPELCO MANAGER, INC.
as Manager
By:
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
The foregoing Agreement is
hereby accepted and entered
into as of the date hereof.
FIRST UNION CAPITAL MARKETS CORP.
By:
------------------------------
Name:
Title:
[Signature Page to the Placement Agent Agreement]
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