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EXHIBIT 1.1
SYNOVUS FINANCIAL CORP.
(a Georgia corporation)
UNDERWRITING AGREEMENT
December ___, 2000
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TABLE OF CONTENTS
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SECTION 1. REPRESENTATIONS AND WARRANTIES..................................................................... 2
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY...................................................... 2
(b) OFFICER'S CERTIFICATES............................................................................. 7
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING......................................................... 7
(a) UNDERWRITTEN SECURITIES............................................................................ 7
(b) SALE AND PURCHASE.................................................................................. 7
(c) PAYMENT............................................................................................ 7
(d) DENOMINATIONS; REGISTRATION........................................................................ 8
SECTION 3. COVENANTS OF THE COMPANY........................................................................... 8
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS..................................... 8
(b) FILING OF AMENDMENTS............................................................................... 8
(c) DELIVERY OF REGISTRATION STATEMENTS................................................................ 9
(d) DELIVERY OF PROSPECTUSES........................................................................... 9
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS.......................................................... 10
(f) BLUE SKY QUALIFICATIONS............................................................................ 10
(g) EARNINGS STATEMENT................................................................................. 10
(h) USE OF PROCEEDS.................................................................................... 10
(i) RESTRICTION ON SALE OF SECURITIES.................................................................. 10
(j) REPORTING REQUIREMENTS............................................................................. 11
SECTION 4. PAYMENT OF EXPENSES................................................................................ 11
(a) EXPENSES........................................................................................... 11
(b) TERMINATION OF AGREEMENT........................................................................... 12
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS............................................................ 12
(a) EFFECTIVENESS OF REGISTRATION STATEMENT............................................................ 12
(b) OPINION OF COUNSEL FOR COMPANY..................................................................... 13
(c) OPINION OF COUNSEL FOR UNDERWRITERS................................................................ 13
(d) OFFICERS' CERTIFICATE.............................................................................. 13
(e) ACCOUNTANT'S COMFORT LETTER........................................................................ 13
(f) BRING-DOWN COMFORT LETTER.......................................................................... 13
(g) RATINGS............................................................................................ 14
(h) ADDITIONAL DOCUMENTS............................................................................... 14
SECTION 6. INDEMNIFICATION.................................................................................... 14
(a) INDEMNIFICATION OF UNDERWRITERS.................................................................... 14
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS................................................. 15
(c) ACTIONS AGAINST PARTIES; NOTIFICATION.............................................................. 15
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE................................................. 16
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SECTION 7. CONTRIBUTION....................................................................................... 17
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY..................................... 18
SECTION 9. TERMINATION........................................................................................ 18
(a) UNDERWRITING AGREEMENT............................................................................. 18
(b) TERMINATION; GENERAL............................................................................... 18
(c) LIABILITIES........................................................................................ 19
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS......................................................... 19
SECTION 11. NOTICES............................................................................................ 20
SECTION 12. PARTIES............................................................................................ 20
SECTION 13. GOVERNING LAW AND TIME............................................................................. 20
SECTION 14. EFFECT OF HEADINGS................................................................................. 20
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$200,000,000
SYNOVUS FINANCIAL CORP.
(a Georgia corporation)
______% Senior Notes Due 2005
UNDERWRITING AGREEMENT
December ___, 2000
Banc of America Securities LLC
Goldman, Sachs & Co.
The Robinson-Humphrey Company, LLC
Salomon Smith Barney Inc.
c/o Banc of America Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
Ladies and Gentlemen:
Synovus Financial Corp., a Georgia corporation (the "Company"),
proposes to issue and sell $200,000,000 aggregate principal amount of its ___%
Senior Notes Due 2005 (the "Underwritten Securities") to Banc of America
Securities LLC, Goldman, Sachs & Co., The Robinson-Humphrey Company, LLC and
Salomon Smith Barney Inc. (the "Underwriters," which term shall include any
Underwriter substituted pursuant to Section 10 hereof) upon the terms and
conditions set forth herein. The Underwritten Securities will be issued under an
indenture, dated as of December ___, 2000 (the "Indenture"), between the Company
and The Bank of New York, as trustee (the "Trustee"), filed as an exhibit to
Amendment No. 1 to the Registration Statement (as defined below). Banc of
America Securities LLC will act as representative (the "Representative") for the
Underwriters.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-49686) for the
registration of the Underwritten Securities under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof in accordance with the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement (as so amended, if applicable) has
been declared effective by the Commission and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement, as amended by Amendment No. 1 thereto, including
the information deemed to be a part thereof pursuant to Rule 430A of the 1933
Act Regulations (the "Rule 430A Information"), is referred to herein as the
"Registration Statement"; and the final prospectus relating to the offering of
the Underwritten Securities, in the form first filed pursuant to Rule 424(b)
under the 1933 Act, is referred to herein as the "Prospectus;" provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference
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pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), as
of, in the case of the Registration Statement, its effective date and, in the
case of the Prospectus, the date of such Prospectus; and provided further, that
if the Company files a registration statement with the Commission pursuant to
Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration
Statement"), then, after such filing, all references to "Registration Statement"
shall also be deemed to include the Rule 462(b) Registration Statement. A
"preliminary prospectus" shall be deemed to refer to any prospectus used before
the registration statement became effective and any prospectus that omitted the
Rule 430A Information, or other information to be included upon pricing in a
form of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933
Act Regulations, that was used after such effectiveness. For purposes of this
Underwriting Agreement, all references to the Registration Statement, Prospectus
or preliminary prospectus or to any amendment or supplement to any of the
foregoing shall be deemed to include any copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Underwriting Agreement to amendments or
supplements to the Registration Statement, Prospectus or preliminary prospectus
shall be deemed to mean and include the filing of any document after the
effective date of the Registration Statement or the date of such Prospectus or
preliminary prospectus, as the case may be, under the 1934 Act which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(A) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each Underwriter, as of the date hereof and as of the
Closing Time (as defined below), as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are threatened by the Commission, and any
request on the part of the Commission for additional information has
been complied with. In addition, the Indenture has been duly qualified
under the 1939 Act. At the respective times the Registration Statement
and any Rule 462(b) Registration Statement and any post-effective
amendments thereto became or become effective, the Registration
Statement, such Rule 462(b) Registration Statement and such amendments
complied or upon such effectiveness will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and, to the extent applicable, the 1939 Act and the rules
and regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not or upon such effectiveness will not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus and any amendment or supplement
thereto, as of the date of the Prospectus or any such amendment or
supplement, complied in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and, to the extent
applicable, the 1939 Act and the 1939 Act Regulations and did not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the
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statements therein, in the light of the circumstances under which they
were made, not misleading, and the Prospectus, as amended or
supplemented at the Closing Time, will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and,
to the extent applicable, the 1939 Act and the 1939 Act Regulations and
will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the 1939 Act of the
Trustee or (ii) the statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any Underwriter
through the Representative expressly for use in the Registration
Statement or Prospectus. Each preliminary prospectus, at the time filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act and the 1933 Act Regulations, and
to the extent applicable, the 1939 Act and the 1939 Act Regulations and
each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of Underwritten
Securities has been or will be, as the case may be, filed by electronic
transmission with the Commission pursuant to EDGAR in compliance in all
material respects with Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Registration Statement and the Prospectus (including
the filing of the Company's most recent Annual Report on Form 10-K with
the Commission (the "Annual Report on Form 10-K")), at the time they
were or hereafter are filed with the Commission, complied or upon such
filing will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission thereunder
(the "1934 Act Regulations") and did not or upon such filing will not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) GOOD STANDING OF THE COMPANY. The Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the state of Georgia, has corporate power
and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and to enter into and
perform its obligations under, or as contemplated under, this
Underwriting Agreement, and is duly registered as a financial holding
company under the Bank Holding Company Act of 1956, as amended. The
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect. As used herein, "Material Adverse Effect"
means any material adverse change in or affecting the financial
condition, earnings or business of the Company and its Subsidiaries (as
defined below) considered as one enterprise, whether or not arising in
the ordinary course of business.
(iv) GOOD STANDING OF SUBSIDIARIES. Each subsidiary of the
Company (each, a "Subsidiary" and, collectively, the "Subsidiaries")
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and
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to conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in
good standing would not result in a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus, all
of the issued and outstanding capital stock of each such Subsidiary has
been duly authorized and is validly issued, fully paid and
non-assessable and is owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding
shares of capital stock of any Subsidiary was issued in violation of
preemptive or other similar rights of any securityholder of such
Subsidiary.
(v) AUTHORIZATION OF THIS UNDERWRITING AGREEMENT. This
Underwriting Agreement has been duly authorized, executed and delivered
by the Company.
(vi) AUTHORIZATION OF THE UNDERWRITTEN SECURITIES. The
Underwritten Securities have been duly authorized by the Company for
issuance and sale pursuant to this Underwriting Agreement and, when
duly executed, authenticated, issued and delivered in the manner
provided for in the Indenture against payment of the consideration
therefor specified in this Underwriting Agreement, will constitute
valid, legal and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, general equitable
principles and the discretion of the courts in granting equitable
remedies. Such Underwritten Securities will be substantially in the
form contemplated by, and entitled to the benefits of, the Indenture.
(vii) AUTHORIZATION OF THE INDENTURE. The Indenture has
been duly authorized, executed and delivered by the Company and, upon
such authorization, execution and delivery, will constitute a valid,
legal and binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, general equitable principles and
the discretion of the courts in granting equitable remedies.
(viii) DESCRIPTION OF THE UNDERWRITTEN SECURITIES AND
INDENTURE. The Underwritten Securities will conform in all material
respects to the descriptions thereof contained in the Prospectus and,
when issued, will be in substantially the form filed as an exhibit to
the Registration Statement.
(ix) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the
Company nor any of its Subsidiaries is in violation of its charter or
bylaws. Neither the Company nor any of its Subsidiaries is in default
in the performance or observance of any obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or
any Subsidiary is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
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Effect. The execution, delivery and performance of this Underwriting
Agreement and the Indenture, and any other agreement or instrument
entered into or issued or to be entered into or issued by the Company
in connection with the transactions contemplated hereby or thereby and
the consummation of the transactions contemplated herein and therein
(including the issuance and sale of the Underwritten Securities and the
use of the proceeds from the sale of the Underwritten Securities as
described under the caption "Use of Proceeds" in the Prospectus) have
been duly authorized by all necessary corporate action and do not and
will not (a) whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets or
property of the Company or any of its Subsidiaries pursuant to, any
Agreements and Instruments, (b) result in any violation of the
provisions of the articles of incorporation or bylaws of the Company or
any of its Subsidiaries or (c) violate any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its Subsidiaries or any of
their assets or properties except, in the case of clauses (a) and (c),
for such conflicts, breaches, defaults, Repayment Events, liens,
charges, encumbrances, or violations that would not result in a
Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its
Subsidiaries.
(x) POSSESSION OF INTELLECTUAL PROPERTY. The Company and
its Subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
trade secrets, trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and no officer of the
Company or any of its Subsidiaries has received any notice of any
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company
or any of its Subsidiaries therein and which infringement, conflict,
invalidity or inadequacy, individually or in the aggregate, would
result in a Material Adverse Effect.
(xi) POSSESSION OF LICENSES AND PERMITS. The Company and
its Subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses") issued
by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them, and
the Company and its Subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to possess or comply with such Governmental Licenses would not,
individually or in the aggregate, result in a Material Adverse Effect.
All of the Governmental Licenses are valid and in full force and
effect, except where the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and
effect would not result in a Material Adverse Effect. No officer of the
Company or any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
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(xii) TITLE TO PROPERTY. The Company and its Subsidiaries
have good and marketable title to all real property owned by the
Company and its Subsidiaries and good title to all other material
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims or encumbrances
of any kind, except (A) as otherwise stated in the Prospectus or (B)
those which do not, individually or in the aggregate, materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its
Subsidiaries. All of the leases and subleases material to the business
of the Company and its Subsidiaries considered as one enterprise, and
under which the Company or any of its Subsidiaries holds properties
described in the Prospectus, are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property by the Company and its Subsidiaries, and no officer of the
Company or any of its Subsidiaries has received any notice of any
material claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any of its Subsidiaries under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such Subsidiary to the continued possession of
the leased or subleased premises under any such lease or sublease.
(xiii) INVESTMENT COMPANY ACT. Neither the Company nor any
of its Subsidiaries is, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will not be,
an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(xiv) ENVIRONMENTAL LAWS. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not,
individually or in the aggregate, result in a Material Adverse Effect,
(A) neither the Company nor any of its Subsidiaries is in violation of
any federal, state, local or foreign statute, law, rule, regulation or
order relating to pollution or protection of human health, the
environment, hazardous or toxic substances, or wastes, pollutants or
contaminants ("Environmental Laws"), (B) the Company and its
Subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance in
all material respects with their requirements, and (C) there are no
pending or, to the Company's knowledge, threatened administrative,
regulatory or judicial actions, suits, claims, notices of noncompliance
or violation, investigation or proceedings relating to any
Environmental Law against or affecting the Company or any of its
Subsidiaries.
(xv) ACCOUNTING CONTROLS. The Company maintains a system
of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific authorization;
and (D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
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(xvi) INSURANCE. Each of the Company and its Subsidiaries
is insured (including in each case self-insurance and reinsurance) by
insurers of recognized financial responsibility against such losses and
risks and in such amounts and covering such risks as management
reasonably believes are prudent and customary in the businesses in
which it is engaged and all such insurance is in full force and effect;
neither the Company nor any of its Subsidiaries has within the last
three years been refused any insurance coverage applied for; and
neither the Company nor any of its Subsidiaries has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business; except in the case of each of the foregoing as would not have
a Material Adverse Effect.
(B) OFFICER'S CERTIFICATES. Any certificate signed by any officer
of the Company or any of its Subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(A) UNDERWRITTEN SECURITIES. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to this
Underwriting 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) SALE AND PURCHASE. The Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company the principal amount of Underwritten Securities
opposite their names set forth in Schedule I hereto at a purchase price of __%
of such principal amount. Upon the issuance and delivery to the Underwriters of
the Underwritten Securities, the several Underwriters propose to offer the
Underwritten Securities for sale upon the terms and conditions set forth in the
Prospectus.
(C) PAYMENT. The documents to be delivered at the Closing Time by
or on behalf of the parties hereto shall be delivered at the offices of King &
Spalding, Atlanta, Georgia, or at such other place as shall be agreed upon by
the Representative and the Company, at 10:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10 hereof), or such other time not later than ten business
days after such date as shall be agreed upon by the Representative and the
Company (such time and date of payment and delivery being herein called "Closing
Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them.
It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Underwritten
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Securities which it has severally agreed to purchase. The Representative,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time, but such payment shall not relieve such Underwriter from
its obligations hereunder.
(D) DENOMINATIONS; REGISTRATION. The Underwritten Securities shall
be in such denominations and registered in such names as the Representative may
request in writing at least one full business day before the Closing Time. The
Underwritten Securities to be purchased by each Underwriter hereunder will be
represented by one or more global notes in book-entry form which will be
deposited by or on behalf of the Company with The Depository Trust Company
("DTC") or its designated custodian. The Company will deliver the Underwritten
Securities to Banc of America Securities LLC, for the account of each
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor, by causing DTC to credit the Underwritten Securities to the
account or to the order of Banc of America Securities LLC at DTC. The Company
will cause the certificate or certificates representing the Underwritten
Securities to be made available to Banc of America Securities LLC for inspection
at least twenty-four hours prior to the Closing Time at the office of DTC or its
designated custodian.
SECTION 3. COVENANTS OF THE COMPANY.
The Company covenants with the Representative and with each Underwriter
participating in the offering of the Underwritten Securities, as follows:
(A) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A of the 1933 Act Regulations and will notify directly
a Managing Director of the Representative in the Corporate Finance department in
Charlotte, North Carolina promptly of (i) the effectiveness of any
post-effective amendment to the Registration Statement or the filing of any
supplement or amendment to the Prospectus, (ii) the receipt of any comments from
the Commission, (iii) 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 (iv) of the issuance by the Commission of any stop
order (to the extent known by the Company) suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Underwritten Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424 and will
take such steps as it deems necessary to ascertain promptly whether any
Prospectus transmitted for filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, it will promptly file the
Prospectus. The Company will use its reasonable efforts 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.
(B) FILING OF AMENDMENTS. The Company will give the Representative
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act Regulations)
or any amendment or supplement to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, will furnish the Representative with copies of
any such documents a reasonable amount of time prior to such proposed filing or
use, as
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the case may be, and will not file or use any such document to which the
Representative or counsel for the Underwriters shall reasonably object.
(C) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished
or will deliver to the Representative and counsel for the Underwriters, without
charge, signed or conformed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by reference
therein) and will also deliver to the Underwriters, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The Registration
Statement and each amendment thereto, copies of which have been or will be
furnished to the Underwriters, have been or will be, as the case may be, filed
by electronic transmission with the Commission pursuant to EDGAR, in compliance
in all material respects with Regulation S-T.
(D) DELIVERY OF PROSPECTUSES. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies solely for purposes permitted and in the manner contemplated
by the 1933 Act and for other purposes permitted by applicable law. The Company
will furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto, copies of which have
been or will be furnished to the Underwriters, have been or will be, as the
case may be, filed by electronic transmission with the Commission pursuant to
EDGAR, in compliance in all material respects with Regulation S-T.
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(E) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will
comply in all material respects with the 1933 Act and the 1933 Act Regulations
and the 1934 Act and the 1934 Act Regulations as required to permit the
completion of the distribution of the Underwritten Securities as contemplated in
this Underwriting Agreement and in the Registration Statement and the
Prospectus. If at any time prior to the expiration of nine months after the time
of issue of a Prospectus, the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Underwritten Securities, any event
shall occur or condition shall exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will give immediate notice directly to a Managing Director of the
Representative in the Corporate Finance department in Charlotte, North Carolina,
on behalf of the Underwriters to cease sales of the Underwritten Securities, and
the Company will promptly prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Company will furnish to the Underwriters,
without charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(F) BLUE SKY QUALIFICATIONS. The Company will use its reasonable
best efforts, in cooperation with the Underwriters, to qualify the Underwritten
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Representative may
designate and to maintain such qualifications in effect for so long as required
for the distribution of the Underwritten 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 broker or 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.
(G) EARNINGS STATEMENT. The Company will make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(H) USE OF PROCEEDS. The Company will use the net proceeds
received by it from the sale of the Underwritten Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(I) RESTRICTION ON SALE OF SECURITIES. Between the date of this
Underwriting Agreement and the Closing Time, the Company will not, without the
prior written consent of the Representative, directly or indirectly, issue,
sell, offer to sell, grant any option for the sale of, or otherwise dispose of,
any debt securities other than the Underwritten Securities.
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(J) REPORTING REQUIREMENTS. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. PAYMENT OF EXPENSES.
(A) EXPENSES. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement, including (i)
the preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Underwriting Agreement, any agreement among underwriters, the Indenture and such
other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Underwritten Securities, (iii) the
preparation, issuance and delivery of the Underwritten Securities to the
Underwriters, including any transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Underwritten Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the reasonable fees and disbursements of any Trustees
and their respective counsel, (v) the qualification of the Underwritten
Securities under state securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel in connection therewith and in connection with the
preparation, printing and delivery of any Blue Sky Survey or Legal Investment
Survey, and any amendment thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus and the Prospectus and any
amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities, if applicable, (viii) the fees and expenses incurred with respect to
the listing of the Underwritten Securities, if applicable, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities, (x) the fees and expenses of any Underwriter acting in
the capacity of a "qualified independent underwriter" (as defined in the bylaws
of the NASD), if applicable, and (xi) the expenses of the Company and the
Underwriters incurred in connection with any "road show" relating to the
offering of the Underwritten Securities. It is understood, however, that except
as provided in this Section 4, and in Sections 6 and 7 hereof, the Underwriters
will be responsible for all their own costs and expenses, including the fees of
their counsel, any transfer taxes on the Underwritten Securities upon resale by
them and all other expenses incurred by them in connection with any offering of
the Underwritten Securities made by the Underwriters.
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(B) TERMINATION OF AGREEMENT. If this Underwriting Agreement is
terminated by the Representative in accordance with the provisions of Section 5
(other than Section 5(c)) or Section 9(b)(i) or the first clause of Section
9(b)(iii) or Section 9(b)(v) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses reasonably incurred by the
Underwriters in connection with preparations for the purchase, sale and delivery
of Underwritten Securities pursuant to this Underwriting Agreement, including
the reasonable fees and disbursements of counsel for the Underwriters, but the
Company shall then be under no further liability to any Underwriter with respect
to such Underwritten Securities except as provided in Sections 4(a), 6 and 7
hereof.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to this Underwriting Agreement are subject to
the accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any of its
Subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(A) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and 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 initiated or be pending or, to the
Company's knowledge, threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with. The
Prospectus shall have been filed with the Commission in accordance with Rule
424(b) (or any required post-effective amendment providing such information
shall have been filed and declared effective in accordance with the requirements
of Rule 430A).
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(B) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of (i) G. Sanders Griffith, III, Senior Executive Vice President and
General Counsel of the Company, together with signed copies of such letter for
each of the other Underwriters, to the effect set forth in Exhibit A hereto, and
(ii) King & Spalding, counsel for the Company, together with signed copies of
such letter for each of the other Underwriters, to the effect set forth in
Exhibit B hereto.
(C) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Moore & Van Allen PLLC, counsel for the Underwriters, together with
signed copies of such letter for each of the other Underwriters, with respect to
the matters set forth in clauses (1), (2), (4), (5), (6) (solely as to the
information in the Prospectus under "Description of the Senior Notes"), (9),
(10) and the penultimate paragraph of Exhibit B hereto. In giving such opinion,
such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the laws of the State of New York and the federal laws of the United
States, upon the opinions of counsel satisfactory to the Representative. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its Subsidiaries otherwise delivered in connection with the
closing and certificates of public officials.
(D) OFFICERS' CERTIFICATE. At Closing Time, there shall not have
been, since the date of this Underwriting Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its Subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and
the Representative shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that to their knowledge
(i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1 are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or, to the Company's
knowledge, threatened by the Commission.
(E) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of
this Underwriting Agreement, the Representative shall have received from KPMG
LLP a letter dated such date, in form and substance reasonably satisfactory to
the Representative, together with signed copies of such letter for each of the
other Underwriters, including matters such as those set forth in Annex I hereto
and containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(F) BRING-DOWN COMFORT LETTER. At the Closing Time, the
Representative shall have received from KPMG LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
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(G) RATINGS. At Closing Time, the Underwritten Securities shall
have a rating of _____ accorded by any "nationally recognized statistical rating
organization," as defined by the Commission for purposes of Rule 436(g)(2) of
the 1933 Act Regulations, and the Representative shall have confirmed such
rating with the rating organization.
(H) ADDITIONAL DOCUMENTS. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Representative and counsel for the Underwriters.
SECTION 6. INDEMNIFICATION.
(A) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Rule 430A Information deemed to be a part thereof or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
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provided, however, that (A) this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representative expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information deemed to be a part thereof or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and (B) the foregoing
indemnity with respect to any untrue statement or alleged untrue statement
contained in or any omission or alleged omission from any preliminary prospectus
shall not inure to the benefit of any Underwriter (or any person controlling
such Underwriter) from whom the person asserting any such loss, liability,
claim, damage or expense purchased any Underwritten Securities if and to the
extent that the Company shall sustain the burden of proving, and a determination
shall have been made by a court of competent jurisdiction by final and
nonappealable judgment, that (i) the untrue statement or alleged untrue
statement or omission or alleged omission contained in the preliminary
prospectus was corrected in the Prospectus; (ii) such person was not sent or
given a copy of the Prospectus (excluding documents incorporated by reference)
at or prior to the written confirmation of the sale of such Underwritten
Securities to such person; and (iii) the Company had previously complied with
Section 3(d) of this Agreement.
(B) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its 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 subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information deemed
to be a part thereof or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representative expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(C) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent the
indemnifying party is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In case any such
action shall be brought against any 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 (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, in
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each case at such indemnifying party's expense, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. Notwithstanding the foregoing, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel (and local counsel) if (i) the named
parties in the action include both the indemnifying party and the indemnified
party and the representation of both parties by the same counsel would present
such counsel with a conflict of interest, (ii) the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded based on the advice of counsel
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) if the indemnifying party has elected to assume the
defense of such action and 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 to the indemnifying
party of the institution of such action; provided, however, that, subject to
Section 7 below, if the indemnified party is not ultimately determined to be
entitled to indemnification hereunder, all such fees, costs and expenses paid by
the indemnifying party shall be reimbursed by the indemnified party to the
indemnifying party, or (iv) the indemnifying party shall have authorized the
indemnified party to employ separate counsel at the expense of the indemnifying
party. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any necessary local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(D) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If an
indemnified party is entitled to have fees and expenses of counsel reimbursed
pursuant to Section 6(c) and shall have requested an indemnifying party to
reimburse the indemnified party for such fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, which request shall be in writing
and set forth reasonable detail regarding such fees and expenses, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party describing in reasonable detail a good faith basis for
concluding that the unpaid balance is unreasonable, in each case prior to the
date of such settlement.
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SECTION 7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Underwritten
Securities pursuant to this Underwriting Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and of
the Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to this Underwriting Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of such Underwritten Securities (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of such Underwritten Securities as set forth on
such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
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No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, 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. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the aggregate principal amount of Underwritten Securities set
forth opposite their respective names in Schedule I to this Underwriting
Agreement and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Underwriting Agreement or in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of and payment for the Underwritten Securities.
SECTION 9. TERMINATION.
(A) UNDERWRITING AGREEMENT. If any condition specified in Section
5 of this Underwriting Agreement shall not have been fulfilled when and as
required to be fulfilled, this Underwriting Agreement may be terminated by the
Representative by notice to the Company at any time at or prior to the Closing
Time. This Underwriting Agreement also may be terminated for any reason at any
time by the Company or by the Representative upon the giving of 10 days' prior
written notice of such termination to the other party hereto.
(B) TERMINATION; GENERAL. The Representative may terminate this
Underwriting Agreement, by notice to the Company, at any time at or prior to the
Closing Time, if (i) there has been, since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) there has
occurred, since the execution of this Underwriting Agreement, any material
adverse change in the financial markets in the United States or in the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or there has occurred any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
to make it, in the judgment of the Representative, impracticable to market the
Underwritten Securities or to enforce contracts for the sale of the Underwritten
Securities, or (iii) trading in the common stock of the Company has been
suspended or materially limited
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or if trading generally on the New York Stock Exchange or the American
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or (iv) a banking moratorium has been declared by federal, New York,
North Carolina or Georgia authorities or (v) there is any downgrading in the
rating accorded the Underwritten Securities 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 or if any such rating organization
shall have publicly announced that it has placed any of such Underwritten
Securities on what is commonly termed a "watch list" for possible downgrading.
(C) LIABILITIES. If this Underwriting Agreement is terminated
pursuant to this Section 9, such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof, and provided
further that Sections 1, 6, 7 and 8 shall survive such termination and remain in
full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail at the Closing Time to
purchase the Underwritten Securities which it or they are obligated to purchase
under this Underwriting Agreement (the "Defaulted Securities"), then the
Representative shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representative shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the
case may be, of Defaulted Securities does not exceed 10% of the number
or aggregate principal amount, as the case may be, of Underwritten
Securities to be purchased on such date pursuant to this Underwriting
Agreement, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under this
Underwriting Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the
case may be, of Defaulted Securities exceeds 10% of the number or
aggregate principal amount, as the case may be, of Underwritten
Securities to be purchased on such date pursuant to this Underwriting
Agreement, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the
Underwritten Securities, and if such non-defaulting Underwriters do not
purchase all the Underwritten Securities, this Underwriting Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter or on the part of the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in Section 4
and the indemnification and contribution provisions in Sections 6 and 7
hereof.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
19
<PAGE> 23
In the event of any such default which does not result in a termination
of this Underwriting Agreement either the Representative or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to the
address of the Representative as set forth above; notices to the Company shall
be directed to the Company at One Arsenal Place, Suite 301, 901 Front Avenue,
Columbus, Georgia 30901, attention of General Counsel.
SECTION 12. PARTIES.
This Underwriting Agreement shall inure to the benefit of and be
binding upon the Company and each of the Underwriters and their respective
successors. Nothing expressed or mentioned in this Underwriting Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Underwriting Agreement or any provision
herein contained. This Underwriting Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME.
THIS UNDERWRITING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS TO BE
PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO
NEW YORK CITY TIME.
SECTION 14. EFFECT OF HEADINGS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
20
<PAGE> 24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement between the Representative and the Company in accordance with its
terms.
Very truly yours,
SYNOVUS FINANCIAL CORP.
By:
------------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
GOLDMAN, SACHS & CO.
THE ROBINSON-HUMPHREY COMPANY, LLC
SALOMON SMITH BARNEY INC.
By:
BANC OF AMERICA SECURITIES LLC
As Representative of the several Underwriters
---------------------------------------------
Authorized Signatory
<PAGE> 25
Schedule I
<TABLE>
<CAPTION>
Principal
Amount
of
Underwritten
Underwriters Securities
------------ ------------
<S> <C>
Banc of America Securities LLC...................................................... $
Goldman, Sachs & Co.................................................................
The Robinson-Humphrey Company, LLC..................................................
Salomon Smith Barney Inc............................................................
------------
Total...................................................................... $200,000,000
============
</TABLE>
Sch I-1
<PAGE> 26
Schedule II
Subsidiary Name
---------------
Columbus Bank and Trust Company
Total System Services, Inc.
Athens First Bank & Trust Company
Bank of North Georgia
First Commercial Bank of Birmingham
National Bank of South Carolina
Sch II-1
<PAGE> 27
EXHIBIT A
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) Each of the Company and the Subsidiaries set forth on Schedule
II is a corporation or banking corporation, as the case may be, validly
existing in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Prospectus and with
respect to the Company, to enter into and perform its obligations under the
Underwriting Agreement, and each of them is duly qualified to do business as a
foreign corporation in good standing in each jurisdiction in which the ownership
or leasing of its properties or conduct of its business requires such
qualification except to the extent that the failure to be so qualified or be in
good standing would not have a Material Adverse Effect. The Company is duly
registered as a bank holding company under the Bank Holding Company Act of 1956,
as amended. Except as otherwise stated in the Prospectus, all of the issued and
outstanding capital stock of each Subsidiary set forth on Schedule II has been
duly authorized and validly issued and is, fully paid and non-assessable and is
owned of record by the Company, directly or indirectly through Subsidiaries,
[free and clear to such counsel's knowledge of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.]
(2) The execution, delivery and performance of the Underwriting
Agreement and the Indenture and the consummation of the transactions
contemplated thereby (including the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use of Proceeds" in the
Prospectus), do not and will not (a) result in any violation of the articles of
incorporation or bylaws of the Company or any of its Subsidiaries, (b) conflict
with, constitute a breach of or a default or Repayment Event under, or result in
the creation or imposition of any lien, charge or encumbrance upon any assets or
property of the Company or any of its Subsidiaries pursuant to any Agreements or
Instruments, except for conflicts, breaches, defaults, Repayment Events, liens,
charges or encumbrances that do not have a Material Adverse Effect, or (c)
violate any existing law, rule or regulation applicable to the Company or any
judgment, order, writ, injunction or decree known to such counsel of any
governmental authority or court having jurisdiction over the Company except in
each case for violations that do not have a Material Adverse Effect.
(3) To the knowledge of such counsel, (a) there are no legal or
governmental proceedings pending or threatened to which the Company or any of
its Subsidiaries is a party or to which any of the properties or assets of the
Company or any of its Subsidiaries is subject that are required to be described
in the Prospectus that are not so described and (b) there is no contract or
other document required to be disclosed in the Prospectus, or to be filed as an
exhibit to the Registration Statement, which is not described or filed as
required.
(4) The authorized, issued and outstanding shares of capital stock
of the Company as of September 30, 2000 are as set forth in the column entitled
"Actual" under the caption "Capitalization" in the Prospectus.
A-1
<PAGE> 28
(5) The statements in the Prospectus under the caption "Certain
Regulatory Considerations", insofar as such statements constitute a summary of
the legal matters referred to therein, fairly present the information required
to be described with respect to such legal matters and fairly summarize in all
material respects such legal matters.
(6) Each document incorporated by reference in the Registration
Statement and the Prospectus (in each case other than the financial statements
and notes thereto, the financial statement schedules and the Form T-1 included
or incorporated by reference therein), when it was filed with the Commission,
complied as to form in all material respects with the requirements of the 1934
Act and the 1934 Regulations.
A-2
<PAGE> 29
EXHIBIT B
FORM OF OPINION OF KING & SPALDING
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) Each of the Company, Columbus Bank and Trust Company and Total
System Services, Inc. is a corporation or banking corporation validly existing
in good standing under the laws of the State of Georgia. The Company has the
corporate power and authority to enter into and perform its obligations under
the Underwriting Agreement.
(2) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(3) The Underwritten Securities have been duly authorized by the
Company and, when executed, authenticated, issued and delivered in accordance
with the provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement, will
constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject, as to enforcement
of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, general equitable principles and the
discretion of the courts in granting equitable remedies; and the Underwritten
Securities will be entitled to the benefits of the Indenture. The Global Note
(as defined in the Indenture) representing the Underwritten Securities will in
all material respects be in the form contemplated by the Indenture.
(4) The Indenture has been duly authorized, executed and delivered
by the Company and, assuming that the Trustee has satisfied all legal
requirements that are applicable to it to the extent necessary to make the
Indenture enforceable against it, the Indenture constitutes a legal, valid and
binding instrument of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement of remedies, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally, general equitable principles and the discretion of the courts
in granting equitable remedies; and the Indenture has been duly qualified under
the 1939 Act.
(5) The Underwritten Securities and the Indenture conform in all
material respects to the descriptions thereof in the Prospectus.
(6) The statements in the Prospectus under the caption
"Description of the Senior Notes", and in the Registration Statement under Item
15, insofar as such statements constitute summaries of the documents (or
provisions thereof) or statutes (or provisions thereof) referred to therein,
fairly present the information required to be described with respect to such
documents (or provisions thereof) or statutes (or provisions thereof) and fairly
summarize in all material respects such documents (or provisions thereof) or
statutes (or provisions thereof).
(7) The execution, delivery and performance of the Underwriting
Agreement and the Indenture and the consummation of the transactions
contemplated thereby (including the use of
B-1
<PAGE> 30
proceeds from the sale of the Underwritten Securities as described under the
caption "Use of Proceeds" in the Prospectus), do not and will not violate any
existing federal, New York or Georgia law, rule or regulation applicable to the
Company except in the case for violations that do not have a Material Adverse
Effect.
(8) To our knowledge, there are no legal or governmental
proceedings, inquiry or investigation pending or threatened to which the Company
or any of its Subsidiaries is a party or to which the assets or properties of
the Company or any of its Subsidiaries is subject that would have a Material
Adverse Effect or materially and adversely affect consummation of the
transactions contemplated by the Underwriting Agreement.
(9) The Registration Statement has become effective under the 1933
Act and the Prospectus has been filed pursuant to Rule 424(b) under the 1933 Act
within the time period required by Rule 424(b). To our knowledge, no stop order
suspending the effectiveness of the Registration Statement or any part thereof
has been issued and no proceedings for that purpose have been instituted or are
pending under the 1933 Act.
(10) The Registration Statement, as of its effective date, and the
Prospectus, as of its issue date and at the Closing Time, complied as to form in
all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations (in each case other than the financial statements and notes thereto,
the financial statement schedules, the other financial and statistical data and
the Form T-1 included or incorporated by reference therein and provided further
that such counsel shall express no opinion as to whether the incorporated
documents comply as to form with the 1933 Act and the 1933 Act Regulations).
(11) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the issuance,
sale and delivery of the Underwritten Securities by the Company or for the
consummation by the Company of the transactions contemplated by the Underwriting
Agreement, except such as have been obtained under the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the rules and regulations of the Commission under
the 1939 Act and such as may be required under state securities laws.
In addition, such counsel shall state that nothing has come to their
attention that causes them to believe that (i) the Registration Statement or any
post-effective amendment thereto (other than the financial statements and notes
thereto, the financial statement schedules, the other financial and statistical
data and the Form T-1 included or incorporated by reference therein, as to which
such counsel shall express no belief), at the time such Registration Statement
or any post-effective amendment thereto became effective, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
(ii) that the Prospectus (other than the financial statements and notes thereto,
the financial statement schedules, the other financial and statistical data and
the Form T-1 included or incorporated by reference therein, as to which we
express no belief), on the date of such Prospectus and as of the Closing Time,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
B-2
<PAGE> 31
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
B-3
<PAGE> 32
ANNEX I
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)
(i) We are independent public accountants with respect to the
Company within the meaning of the 1933 Act and the applicable published 1933 Act
Regulations.
(ii) In our opinion, the audited financial statements and the
related financial statement schedules included or incorporated by reference in
the Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
published rules and regulations thereunder.
(iii) On the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a reading
of the unaudited interim consolidated financial statements of the Company for
the quarters and three, six and nine month periods ended March 31, 2000, June
30, 2000 and September 30, 2000, respectively, included or incorporated by
reference in the Registration Statement and the Prospectus (the "interim
financials"), a reading of the latest available unaudited interim consolidated
financial statements of the Company, a reading of the minutes of all meetings of
the shareholders and directors of the Company and its Subsidiaries and the and
Committees of the Company's Board of Directors and any Subsidiary committees
since _________________, inquiries of certain officials of the Company and its
Subsidiaries responsible for financial and accounting matters, a review of
interim financial information in accordance with standards established by the
American Institute of Certified Public Accountants in Statement on Auditing
Standards No. 71, Interim Financial Information ("SAS 71"), with respect to the
interim financials, and such other inquiries and procedures as may be specified
in such letter, nothing came to our attention that caused us to believe that:
(A) the interim financials included or incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
applicable to unaudited interim financial statements included or
incorporated by reference in registration statements or any material
modifications should be made to the interim financials included or
incorporated by reference in the Registration Statement and the
Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) at _________, 2000 and at a specified date not more
than five days prior to the date of the Underwriting Agreement, there
was any change in the capital stock of the Company and its Subsidiaries
or any decrease in the total assets or shareholders investment of the
Company and its Subsidiaries or any increase in the notes and bonds
payable and total liabilities of the Company and its Subsidiaries, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Registration Statement and
the Prospectus, except in each case for changes, decreases or increases
that the Registration Statement and the Prospectus disclose have
occurred or may occur; or
Annex I-1
<PAGE> 33
(C) for the period from _________, 2000 to _________,
2000 and for the period from _________, 2000 to a specified date not
more than five days prior to the date of the Underwriting Agreement,
there was any decrease in consolidated total revenues, operating
income, or net income, in each case as compared with the comparable
period in the preceding year, except in each case for any decreases
that the Registration Statement and the Prospectus disclose have
occurred or may occur.
(iv) Based upon the procedures set forth in clause (iii) above and
a reading of the Selected Financial Data included in the Registration Statement
and the Prospectus and a reading of the financial statements from which such
data were derived, nothing came to our attention that caused us to believe that
the Selected Financial Data included or incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the disclosure requirements of Item 301 of Regulation S-K
of the 1933 Act, that the amounts included in the Selected Financial Data are
not in agreement with the corresponding amounts in the audited consolidated
financial statements for the respective periods or that the financial statements
not included or incorporated by reference in the Registration Statement and the
Prospectus from which certain of such data were derived are not in conformity
with generally accepted accounting principles.
(v) We have compared the information in the Registration Statement
and the Prospectus under selected captions with the disclosure requirements of
Regulation S-K of the 1933 Act and on the basis of limited procedures specified
herein, nothing came to our attention that caused us to believe that this
information does not comply as to form in all material respects with the
disclosure requirements of Items 302, 402 and 503(d), respectively, of
Regulation S-K.
(vi) In addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information appearing or incorporated by reference in the Registration Statement
and the Prospectus, which are specified herein, and have compared certain of
such items with, and have found such items to be in agreement with, the
accounting and financial records of the Company.
Annex I-2
