EXHIBIT 1.1
UNITED COMPANIES FINANCIAL CORPORATION
(a Louisiana corporation)
Securities
UNDERWRITING AGREEMENT - BASIC PROVISIONS
June 27, 1995
To: The Underwriters named
in the within mentioned
Terms Agreement
Dear Sirs:
United Companies Financial Corporation, a Louisiana
corporation (the "Company"), proposes to issue and sell from
time to
time its senior debt securities, subordinated debt securities,
convertible subordinated debt securities (collectively, the
"Debt
Securities") and its preferred stock, par value $2.00 per share
(the "Preferred Stock"; together with the Debt Securities, (the
"Registered Securities") in one or more offerings on terms
determined at the time of sale. If specified in a Terms
Agreement (as defined below), the Company proposes to grant to
the underwriters an option to purchase up to that amount of
Registered Securities specified in such Terms Agreement (herein
called the "Option Securities"). The Debt Securities will be
issued under either an indenture dated as of October 1, 1994,
(the "Senior Indenture"), between the Company and The First
National Bank of Chicago, as Trustee, or an indenture dated as
of
October 1, 1994, between the Company and State Street Bank and
Trust Company, as Trustee, (the "Subordinated Indenture", and
together with the Senior Indenture, the "Indentures"). Each
issue of Debt Securities may vary as to aggregate principal
amount, maturity date or dates, interest rate or rates and
timing
of payments thereof, redemption provisions, conversion or
exchange provisions and sinking fund requirements, if any,
covenants and any other variable terms which the Indentures
contemplate may be set forth in a supplemental indenture to the
Senior Indenture or Subordinated Indenture, as the case may be,
(each, a "Supplemental Indenture"). The Preferred Stock will be
issued in one or more series, which series may vary as to voting
rights, dividends, optional and mandatory redemption provisions,
liquidation preference and conversion or exchange provisions, if
any, and any other terms, with all such terms for any particular
series or issue of the Preferred Stock being determined at the
time of issue. The Registered Securities (together with the
Option Securities and any Debt Securities or shares of common
stock, par value $2.00 per share, of the Company (the "Common
Stock") issuable upon conversion or exchange of Registered
Securities (the "Underlying Securities")) involved in any such
offering are hereinafter referred to as the "Securities."
Whenever the Company determines to make an offering of
Securities, it will enter into an agreement substantially in the
form of Exhibit A(I) or Exhibit A(II) hereto (the "Terms
Agreement") providing for the sale of such Securities (the
"Offered Securities") to, and the purchase and offering thereof
by, the underwriter or underwriters named therein (the
"Underwriter" or "you", which terms shall include the
underwriter
or underwriters named therein whether acting alone in the sale
of
such Offered Securities or as members of an underwriting
syndicate). The Terms Agreement relating to each offering of
Securities may take the form of an exchange of any standard form
of written telecommunication and shall specify the principal
amount of Debt Securities or number of shares of Preferred Stock
to be issued and their terms, the name or names of the
Underwriters participating in such offering (subject to
substitution as provided in Section 10 hereof) and the principal
amount of Debt Securities or number of shares of Preferred Stock
which each severally agrees to purchase, the name or names of
the
Underwriters acting as manager or co-managers in connection with
such offerings, if any (the "Representatives", which term shall
include each Underwriter in the event that there shall be no
manager or co-manager), the price at which the Securities are to
be purchased by the Underwriters from the Company, the initial
public offering price, any delayed delivery arrangements, the
time and place of delivery and payment and such other applicable
information as is indicated in Exhibit A(I) or Exhibit A(II)
hereto as agreed upon by the Company and the Underwriters. This
Agreement, the applicable Terms Agreement, the Indentures and
the
applicable related Supplemental Indenture, if any, are
hereinafter referred to collectively as the "Operative
Documents."
Each offering of the Securities will be governed by
this Agreement, as supplemented by the applicable Terms
Agreement
and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon each Underwriter participating in
the offering of such Offered Securities.
The Company has prepared and filed with the Securities
and Exchange Commission (the "Commission") a registration
statement on Form S-3 (File No. 33-60367), including a
prospectus, relating to the Securities and the offering thereof
from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act") and has
filed
such pre-effective amendments thereto as may have been required
to the date hereof. Such registration statement, as so amended,
has been declared effective by the Commission, and the
Indentures, if applicable, have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement, as amended to the date such registration
statement has been declared effective, including any documents
incorporated by reference therein pursuant to Item 12 of Form
S-3
under the 1933 Act which were filed under the Securities
Exchange
Act of 1934, as amended (the "1934 Act") on or before the
effective date of the registration statement, is hereinafter
called the "Registration Statement, " and such prospectus, as
such prospectus is supplemented on or after the date of the
applicable Terms Agreement and prior to the related Closing
Time,
by any prospectus supplement relating to the Offered Securities,
including by any such prospectus supplement in the form first
filed or to be filed on or after the date of the related Terms
Agreement pursuant to Rule 424(b) under the 1933 Act, including
any documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act which were filed under the
1934
Act on or before the date of such prospectus supplement (any
such
prospectus supplement, including such incorporated documents, in
the form first filed on or after the date of the related Terms
Agreement pursuant to Rule 424(b) is hereinafter called the
"Prospectus Supplement"), is hereinafter called the
"Prospectus".
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included"
or "stated" in the Registration Statement or the Prospectus (and
all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other
information which is or is deemed to be incorporated by
reference
in the Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or
supplements, if any, to the Registration Statement, the
Prospectus or a Prospectus Supplement (and all other references
of like import) shall be deemed to mean and include the filing
of
any document under the 1934 Act after the effective date of the
Registration Statement or the issue date of the Prospectus or
Prospectus Supplement, as the case may be, and prior to the
related Closing Time which is deemed to be incorporated therein
pursuant to Item 12 of Form S-3 under the 1933 Act.
Capitalized terms used herein and not otherwise
defined
are used herein as defined in the applicable Indenture, if any,
(or, during the period of time following the date of this
Agreement and prior to the applicable Closing Time (as defined
in
Section 2(b) hereof), as defined in the form of applicable
Indenture, if any, last filed by the Company with the
Commission).
Section 1. Representations and Warranties. (a) The
Company represents and warrants at and as of the date hereof, as
of the date of the applicable Terms Agreement and as of the
Closing Time (as hereinafter defined) (in each case, the
"Representation Date") as follows:
(i) The Company meets the requirements for use of
Form S-3 under the 1933 Act. The Registration Statement,
at
the time it became effective, and the prospectus contained
therein, and any amendments thereof and supplements thereto
filed prior to the related Closing Time, conformed in all
material respects to the requirements of the 1933 Act and
the rules and regulations of the Commission thereunder; on
the date of the related Terms Agreement and as of the
related Closing Time, the Registration Statement and the
Prospectus relating to the Offered Securities, and any
amendments thereof and supplements thereto, will conform in
all material respects to the requirements of the 1933 Act
and the rules and regulations of the Commission thereunder;
the Registration Statement, at the time it became effective
(or, if an amendment to the Registration Statement or an
annual report on Form 10-K has been filed by the Company
with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time such amendment
became effective or as of the most recent such filing, as
the case may be), did not contain any untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading; the Prospectus, on the date of any
filing pursuant to Rule 424(b) and the Prospectus (as
supplemented) as of the related Closing Time, will not
include any untrue statement of a material fact or omit to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
are made, not misleading; provided, however, that the
representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in
writing by any of you expressly for use in the Registration
Statement or Prospectus or to that part of the Registration
Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1)
of either Trustee under the Indentures, if any.
(ii) The documents incorporated by reference in the
Registration Statement and Prospectus, at the time they
were
or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements
of the 1934 Act, and the rules and regulations of the
Commission thereunder.
(iii) Deloitte & Touche LLP or such other nationally
recognized independent public accountants who are reporting
upon the audited financial statements and schedules
included
or incorporated by reference in the Registration Statement
are independent public accountants as required by the 1933
Act.
(iv) This Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the
Company.
(v) (A) The consolidated financial statements and the
related notes of the Company included or incorporated by
reference in the (i) Registration Statement, including the
prospectus contained therein, at the time the Registration
Statement became effective and (ii) the Prospectus relating
to the Offered Securities as of the issue date of the
related Prospectus Supplement and the Prospectus (as
supplemented) as of the Closing Time for the related
Offered
Securities, present or will present, as the case may be,
fairly, in all material respects, the consolidated
financial
position of the Company and its consolidated subsidiaries,
considered as one enterprise, as of the respective dates
indicated and the consolidated results of operations and
cash flows and stockholders' equity and the other
information purported to be shown therein of the Company
and
its consolidated subsidiaries, considered as one
enterprise,
for the respective periods specified; (B) such financial
statements and related notes have been prepared in
conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods
involved (unless otherwise disclosed in a note); and (C)
the
financial statement schedules incorporated by reference in
the Registration Statement present fairly, in all material
respects, the information required to be stated therein.
(vi) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws
of
the State of Louisiana, has corporate power and authority
to
own its property and to conduct its business as described
in
the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
are not reasonably likely to, individually or in the
aggregate, have a material adverse effect on the condition
(financial or otherwise), properties, assets, business or
results of operations of the Company and its subsidiaries,
considered as one enterprise.
(vii) Each subsidiary of the Company has been duly
incorporated, and other than Foster Mortgage Corporation
("FMC"), is validly existing as a corporation in good
standing under the law of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in
the
Prospectus and is duly qualified to transact business and
is
in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing are not
reasonably likely to, individually or in the aggregate,
have
a material adverse effect on the condition (financial or
otherwise), properties, assets, business or results of
operations of the Company and its subsidiaries, considered
as one enterprise.
(viii) Except as otherwise disclosed in the Prospectus
and
other than the senior preferred stock of FMC, all of the
issued and outstanding capital stock of each subsidiary of
the Company has been duly authorized, is validly issued,
fully paid and non-assessable and is owned by the Company,
directly or through one or more subsidiaries of the
Company,
free and clear of any lien, mortgage, pledge, encumbrance,
claim or equity.
(ix) The Company has all of the requisite corporate
power and authority to execute, issue and deliver the
Securities and to incur and perform its obligations
provided
for therein; as of the date of applicable Terms Agreement,
the Debt Securities, if any, will have been duly authorized
by the Company and, when executed, issued and authenticated
in the manner provided for in the applicable Indenture and
related Supplemental Indenture, if any, and delivered as
provided for in this Agreement and the applicable Terms
Agreement, will have been duly executed, issued and
delivered by the Company and will constitute legal, valid
and binding obligations of the Company entitled to the
benefits of the applicable Indenture and enforceable
against
the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law)
and
an implied covenant of good faith and fair dealing; as of
the date of the applicable Terms Agreement, if any
Securities to be issued are convertible or exchangeable,
the
Underlying Securities issuable upon conversion or exchange
will be duly and validly authorized, will have been duly
reserved for issuance upon conversion or exchange of the
Securities, and when issued upon the conversion or exchange
of the Securities, will be duly and validly issued and, in
the case of Underlying Securities which are Common Stock,
fully paid and non-assessable; and the Securities conform
in
all material respects to the description thereof contained
in the Prospectus (as supplemented).
(x) The Company has all of the requisite corporate
power and authority to execute and deliver the Indentures,
if any, and to perform its obligations provided for
therein;
as of the date of the applicable Terms Agreement and as of
the Closing Time for the related Offered Securities, the
Company will have all requisite corporate power and
authority to execute and deliver the related Supplemental
Indenture and to perform its obligations provided for
therein; the Indentures, if any, have been duly authorized
by the Company, will be substantially in the forms
heretofore delivered to you and, when executed and
delivered
by the Company and assuming due execution and delivery by
the Trustees, will constitute legal, valid and binding
obligations of the Company, enforceable against the Company
in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency,
fraudulent
conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Indentures conform in
all material respects to the descriptions thereof contained
in the Prospectus (as supplemented) as of the date of the
applicable Terms Agreement, and as of the Closing Time for
the related Offered Securities, the related Supplemental
Indenture, if any, will have been duly authorized by the
Company and will constitute the legal, valid and binding
obligations of the Company, enforceable against the Company
in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
(xi) All of the outstanding shares of capital stock of
the Company have been duly authorized and are validly
issued, fully paid and non-assessable.
(xii) Except as disclosed in the Prospectus (as
supplemented), there are no holders of securities (debt or
equity) of the Company, or holders of rights (including
preemptive rights), warrants or options to obtain
securities
of the Company, who have the right to request the Company
to
register securities held by them under the 1933 Act.
(xiii) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
except as otherwise stated therein or contemplated thereby
or in any amendment thereof or supplement thereto, there
has
not been (A) any material adverse change in the condition
(financial or otherwise), properties, assets, business or
results of operations of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the
ordinary course of business, (B) any transaction entered
into by the Company or any of its subsidiaries, other than
in the ordinary course of business, that is reasonably
likely to have a material adverse effect on the condition
(financial or otherwise), properties, assets, business or
results of operations of the Company and its subsidiaries,
considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the
Company on its capital stock, other than regular quarterly
dividends.
(xiv) Neither the Company nor any of its subsidiaries is
(A) in violation of its or any of their articles or
certificates of incorporation or by-laws or, other than
FMC,
in default (nor has an event occurred that with notice or
passage of time or both would constitute such a default) in
the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company
or its subsidiaries is subject or by which any of them or
any of their properties may be bound or affected, (B) other
than FMC, in violation of any existing applicable law,
ordinance, regulation, judgment, order or decree of any
government, governmental instrumentality, arbitrator or
court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their
properties or (C) other than FMC, in each case to the
knowledge of the Company, in violation of or has violated
any permit, certificate, license, order or other approval
or
authorization required in connection with the operation of
its business that, with respect to clause (A), (B) or (C)
of
this sentence, are not reasonably likely to (individually
or
in the aggregate) (1) adversely affect the legality,
validity or enforceability of this Agreement, the
applicable
Terms Agreement, or the applicable Indenture and related
Supplemental Indenture, if any, (2) have a material adverse
effect on the condition (financial or otherwise),
properties, assets, business or results of operations of
the
Company and its subsidiaries, considered as one enterprise,
or (3) impair the ability of the Company to fully perform
on
a timely basis any obligations that it has under this
Agreement, the applicable Terms Agreement, the applicable
Indenture or the related Supplemental Indenture, if any.
(xv) The issuance, sale and delivery of the Offered
Securities, the execution, delivery and performance of the
other Operative Documents, the compliance by the Company
with the terms therein and the consummation by the Company
of the transactions contemplated thereby and in the
Registration Statement do not and will not result in a
violation of any of the terms or provisions of the articles
or certificates of incorporation or by-laws of the Company
or any of its subsidiaries, and do not and will not
conflict
with, or result in a breach or violation of any of the
terms
or provisions of, or constitute a default under, (A) any
indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or
by which any of them or any of their properties or assets
is
bound, except for such conflicts, breaches, violations or
defaults that are not reasonably likely to have a material
adverse effect on the condition (financial or otherwise),
properties, assets, business or results of operations of
the
Company and its subsidiaries, considered as one enterprise,
or (B) any existing applicable law, rule, regulation,
judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or
any of their properties.
(xvi) No authorization, approval, consent or order of,
or
qualification with, any governmental body or agency is
required to be obtained or made by the Company for (A) the
due authorization, execution, delivery and performance by
the Company of each of the Operative Documents to which it
is or will be a party or (B) the valid authorization,
issuance, sale and delivery of the Offered Securities,
except such as may be required by the securities or blue
sky
laws of the various states in connection with the offer and
sale of the Securities.
(xvii) There is no action, suit, investigation or
proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending
or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries or any of
their properties that (A) is required to be disclosed in
the
Prospectus and is not so disclosed in the Prospectus (as
supplemented), (B) except as disclosed in the Prospectus
(as
supplemented), is reasonably likely to result in any
material adverse change in the condition (financial or
otherwise), properties, assets, business or results of
operations of the Company and its subsidiaries, considered
as one enterprise, (C) seeks to restrain, enjoin, prevent
the consummation of or otherwise challenge the issuance and
sale of the Securities or the execution and delivery of
this
Agreement, the applicable Terms Agreement or the applicable
Indenture or related Supplemental Indenture, if any, or any
of the transactions contemplated hereby or thereby or (D)
questions the legality or validity of any such transaction
or seeks to recover damages or obtain other relief in
connection with any such transaction, and, in each case to
the knowledge of the Company, there is no valid basis for
any such action, suit, investigation or proceeding except
as
otherwise disclosed in the Prospectus (as supplemented).
(xviii) There are no statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not
described or filed as required.
(xix) Each of the Company and its subsidiaries other
than
FMC has all necessary consents, authorizations, approvals,
orders, licenses, certificates and permits of and from, and
has made all declarations and filings with, all federal,
state, local and other governmental authorities, all
self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties
and
assets and to conduct its business in the manner described
in the Prospectus (as supplemented), except to the extent
that the failure to so obtain or file is not reasonably
likely to have a material adverse effect on the Company and
its subsidiaries, considered as one enterprise, and neither
the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or
modification of any such consent, authorization, approval,
order, license, certificate or permit which singly or in
the
aggregate, if the subject of any unfavorable decision,
ruling or finding, are reasonably likely to result in any
material adverse change in the condition (financial or
otherwise), properties, assets, business or results of
operations of the Company and its subsidiaries, considered
as one enterprise.
(xx) Each of the Company and its subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other proprietary or
confidential information, systems or procedures, whether
patented or unpatented), trademarks, service marks and
trade
names (collectively, "intellectual property") presently
employed by them in connection with the business now
operated by them, except where the failure to own or
possess
or have the ability to acquire any such intellectual
property is not reasonably likely to have a material
adverse
effect on the condition (financial or otherwise),
properties, assets, business or results of operations of
the
Company and its subsidiaries, considered as one enterprise,
and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with
asserted rights of others with respect to any of the
foregoing that, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, is
reasonably likely to result in any material adverse change
in the condition (financial or otherwise), properties,
assets, business or results of operations of the Company
and
its subsidiaries, considered as one enterprise.
(xxi) The Company has not taken and will not take,
directly or indirectly, any action designed to or that
might
be reasonably expected to, cause or result in stabilization
or manipulation of the price of the Securities.
(xxii) The Company is not an investment company within
the
meaning of the Investment Company Act of 1940, as amended.
(b) Any certificate signed by any officer of either
the Company or any of its subsidiaries and delivered to you or
to
your counsel at the Closing Time pursuant to this Agreement or
the applicable Terms Agreement or the transactions contemplated
hereby or thereby shall be deemed a representation and warranty
by the Company or such subsidiary of the Company, as the case
may
be, to each of you as to the matters covered thereby.
Section 2. Sale and Delivery to the Underwriters:
Closing. (a) Your several commitments to purchase Securities
pursuant to any Terms Agreement shall be deemed to have been
made
on the basis of the representations and warranties herein
contained, and shall be subject to the terms and conditions
herein set forth.
(b) Payment of the purchase price for, and delivery
of, any Securities to be purchased by you shall be made at the
place set forth in the applicable Terms Agreement or at such
other place as shall be agreed upon by the Company and you, on
the third full business day (unless postponed pursuant to
Section 10) following the date of the applicable Terms Agreement
or at such other time not more than ten full business days
thereafter as you and the Company shall determine (such date and
time of payment and delivery being herein called the "Closing
Time"). Payment shall be made to the Company by wire transfer
payable in same-day federal funds, less one day's interest at
the
federal funds rate, to an account specified by the Company in
the
applicable Terms Agreement or by certified or official bank
check
or checks in New York Clearing House funds payable to the order
of the Company, as specified in the applicable Terms Agreement,
against delivery of the Securities to the Representatives for
the
respective accounts of the Underwriters of the Securities to be
purchased by them.
(c) The Debt Securities shall be in such
denominations
($1,000 or an integral multiple thereof) and registered in such
names as the Representatives may request in writing at least two
full business days prior to the Closing Time. The Debt
Securities, which may be in temporary form, and the shares of
Preferred Stock will be made available in New York City for
examination and packaging by the Representatives not later than
10:00 A.M., New York City time, on the business day prior to the
Closing Time.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants herein contained, and
subject to the terms and conditions herein set forth, the
Company
grants an option to you to purchase, severally and not jointly,
up to that amount of the Option Securities, as shall be
specified
in the Terms Agreement, from the Company at the same price as
you
shall pay for the relevant Securities. Said option may be
exercised only to cover over-allotments in the sale of the
Securities by you and may be exercised in whole or in part at
any
time (not more than once) on or before the thirtieth day after
the date of the Terms Agreement upon written or telegraphic
notice by you to the Company setting forth the amount of the
Option Securities as to which you are exercising the option.
The
amount of Option Securities to be purchased by each Underwriter
shall be the same percentage of the total amount of the Option
Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Securities, as adjusted by you
in such manner as you deem advisable to avoid fractional
shares/units.
If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase Debt
Securities from the Company pursuant to delayed delivery
contracts ("Delayed Delivery Contracts") substantially in the
form of Exhibit B hereto, with such changes therein as the
Company may approve. As compensation for arranging Delayed
Delivery Contracts, the Company will pay to the Representatives
at Closing Time a fee equal to that percentage of the principal
amount of Debt Securities for which Delayed Delivery Contracts
are made at Closing Time as is specified in the applicable Terms
Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types which will be set forth in
the applicable Prospectus Supplement. At Closing Time the
Company will enter into Delayed Delivery Contracts (for not less
than the minimum principal amount of Debt Securities per Delayed
Delivery Contract specified in the applicable Terms Agreement)
with all purchasers proposed by you and previously approved by
the Company as provided below, but not for an aggregate
principal
amount of Debt Securities in excess of that specified in the
applicable Terms Agreement. You will not have any
responsibility
for the validity or performance of Delayed Delivery Contracts.
The Representatives will submit to the Company, at
least three business days prior to Closing Time, the names of
any
institutional investors with which it is proposed that the
Company will enter into Delayed Delivery Contracts and the
principal amount of Debt Securities to be purchased by each of
them and the Company will advise the Representatives, at least
two business days prior to Closing Time, of the names of the
institutions with which the making of Delayed Delivery Contracts
is approved by the Company and the principal amount of Debt
Securities to be covered by each such Delayed Delivery Contract.
The principal amount of Debt Securities agreed to be
purchased by the respective Underwriters pursuant to the
applicable Terms Agreement shall be reduced by the principal
amount of Debt Securities covered by Delayed Delivery Contracts,
as to each Underwriter as set forth in a written notice
delivered
by the Representatives to the Company; provided, however, that
the total principal amount of Debt Securities to be purchased by
all Underwriters shall be the total amount of Debt Securities
covered by the applicable Terms Agreement, less the principal
amount of Debt Securities covered by Delayed Delivery Contracts.
Section 3. Certain Covenants of the Company.
The Company covenants with each of you as follows:
(a) Immediately following the execution of each Terms
Agreement, the Company will prepare a Prospectus Supplement
setting forth the principal amount of Debt Securities or
the
number of shares of Preferred Stock covered thereby and
their terms not otherwise specified in the applicable
Indenture, if any, the names of the Underwriters and the
principal amount of Debt Securities or the number of shares
of Preferred Stock which each of them severally has agreed
to purchase, the price at which the Offered Securities are
to be purchased by you from the Company, the initial public
offering price, the selling concession and reallowance, if
any, any delayed delivery arrangements, and such other
information as the Representatives and the Company deem
appropriate in connection with the offering of the
Securities. The Company will promptly transmit copies of
the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 under the 1933 Act and will furnish to
each of you as many copies of the Prospectus and such
Prospectus Supplement as the Representatives shall
reasonably request.
(b) The Company has furnished or will furnish to you,
without charge, as many signed and conformed copies of the
Registration Statement and of each amendment thereto
(including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference
in
the Prospectus) and signed copies of all consents and
certificates of experts and, during the period mentioned in
paragraph (f) below, as many copies of the Prospectus and
any supplements and amendments thereto, in each case as
soon
as available, as you may reasonably request.
(c) From the date of a Terms Agreement, and for so
long as a Prospectus is required to be delivered in
connection with the sale of Offered Securities covered by
such Terms Agreement, the Company will give you notice of
its intention to file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus,
whether pursuant to the 1934 Act, the 1933 Act or
otherwise,
and will furnish you with copies of any such amendment or
supplement or other documents proposed to be filed a
reasonable time in advance of filing and will not file any
such amendment or supplement or use any such prospectus to
which you or your counsel reasonably shall object.
(d) From the date of a Terms Agreement, and for so
long as a Prospectus is required to be delivered in
connection with the sale of Offered Securities covered by
such Terms Agreement, the Company will notify you
immediately, and confirm the notice in writing, (i) of the
effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus
or
any document to be filed pursuant to the 1934 Act which
will
be incorporated by reference into the Registration
Statement
or Prospectus, (iii) of the receipt of any comments from
the
Commission with respect to the Registration Statement, the
Prospectus or any Prospectus Supplement, (iv) of any
request
by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus
or for additional information, and (v) of the issuance by
the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The
Company
will make every reasonable effort to prevent the issuance
of
any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(e) Between the date of any Terms Agreement and
termination of any trading restrictions specified in the
applicable Terms Agreement, if any, or Closing Time,
whichever is later, with respect to (i) the Debt Securities
covered thereby, the Company will not, without your prior
consent or as otherwise permitted by the Terms Agreement,
offer or sell, or enter into any agreement to sell, any
debt
securities of the Company with a maturity of more than one
year, including additional Debt Securities, (ii) the
Preferred Stock covered thereby, the Company will not,
without your prior consent or as otherwise permitted by the
Terms Agreement, offer or sell, or enter into any agreement
to sell, any shares of its preferred stock or any
securities
convertible into or exchangeable or exercisable for or any
right to purchase or acquire preferred stock and (iii) the
Underlying Securities covered thereby, the Company will
not,
without your prior consent or as otherwise permitted by the
Terms Agreement, offer or sell, or enter into any agreement
to sell, any securities of the same class as the Underlying
Securities or any securities convertible into or
exercisable
or exchangeable for or any right to purchase or acquire
Underlying Securities or securities of such class.
(f) The Company will comply to the best of its ability
with the 1933 Act, the 1934 Act and the 1939 Act and the
regulations thereunder so as to permit the completion of
the
distribution of the Securities as contemplated in this
Agreement, the applicable Terms Agreement and in the
Prospectus. If at any time when, in the opinion of your
counsel, the Prospectus is required by law to be delivered
in connection with sales of the Offered Securities by you
or
by a dealer, any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend
or
supplement the Prospectus to comply with law, the Company
shall forthwith prepare and furnish, at the Company's
expense, to each of you and to the dealers (whose names and
addresses you will furnish to the Company) to which Offered
Securities may have been sold by you and to any other
dealers upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus as so
amended or supplemented will comply with the law.
(g) The Company will endeavor to qualify the
Securities for offer and sale under the securities or blue
sky laws of such jurisdictions as you shall reasonably
request and to maintain such qualifications in effect for
as
long as may be required for the distribution of the
Securities; provided, however, that the Company shall not
be
obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not
otherwise so subject. The Company will file such
statements
and reports as may be required by the laws of each
jurisdiction in which the Securities have been qualified as
above provided.
(h) With respect to each sale of Offered Securities,
the Company will make generally available to its security
holders as soon as practicable but in any event not later
than 90 days after the close of the period covered thereby
a
consolidated earning statement for a twelve-month period
beginning after the effective date (as defined in Rule
158(c) under the 1933 Act) of the Registration Statement
relating to such Securities, but not later than the first
day of the Company's fiscal quarter next following such
effective date and that otherwise satisfies the provisions
of Section 11(a) of the 1933 Act and the regulations
thereunder.
(i) The Company will use the proceeds received from
the sale of the Offered Securities in the manner specified
in the Prospectus under the heading "Use of Proceeds."
(j) The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act, will file
promptly all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the 1934 Act
within the time periods required under the 1934 Act.
(k) For a period of five years after the applicable
Closing Time, the Company will furnish to each of you
copies
of all annual reports, quarterly reports and current
reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar forms as may be designated by the
Commission, and such other documents, reports and
information as shall be furnished by the Company to the
holders of the Securities or to security holders of its
respective publicly issued securities generally.
Section 4. Payment of Expenses. The Company will pay
and bear all costs and expenses incident to the performance of
its obligations under this Agreement and each related Terms
Agreement, including (a) the preparation, printing and filing of
the Registration Statement (including financial statements and
schedules and exhibits), as originally filed and as amended and
the Prospectus and any amendments or supplements thereto, and
the
cost of furnishing copies thereto to you, (b) the preparation,
printing and distribution of this Agreement (including each
related Terms Agreement), the Offered Securities, any related
Indentures, a survey of state securities or blue sky laws (the
"Blue Sky Survey"), (c) the delivery of the Offered Securities
to
you, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Offered Securities
under the applicable securities laws in accordance with Section
3(g) and any filing for review of the offering with the National
Association of Securities Dealers, Inc., if any, including
filing
fees and fees and disbursements of your counsel in connection
therewith and in connection with the Blue Sky Survey and any
legal investment survey, (f) any fees charged by rating agencies
for rating the Offered Securities, (g) the fees and expenses of
any Trustees, including the fees and disbursements of counsel
for
any Trustees, in connection with the related Indentures and the
Debt Securities, (h) any transfer agent's fees and (i) the
listing, if any, of the Securities on any securities exchange.
Subject to the provisions of the following paragraph, you agree
to pay, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and
expenses incident to the performance of your obligations under
this Agreement and the applicable Terms Agreement not payable by
the Company pursuant to the preceding sentence, including
without
limitation the fees and disbursements of your counsel.
If this Agreement is terminated by you in accordance
with the provisions of Section 5 or 9(a)(i), the Company shall
reimburse each of you up to an aggregate amount to be set forth
in the related Terms Agreement for all of your out-of-pocket
expenses, including the reasonable fees and disbursements of
your
counsel, upon receipt of itemized statements therefor.
Section 5. Conditions of Underwriters' Obligations.
The obligations of each of you to purchase and pay for the
Offered Securities pursuant to any related Terms Agreement are
subject to the accuracy of the representations and warranties of
the Company contained herein (including those contained in the
applicable Terms Agreement) or in certificates of any officer of
the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other
obligations
hereunder and to the following further conditions:
(a) At the applicable Closing Time, (i) no stop order
suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act and no
proceedings
for that purpose shall have been instituted and shall be
pending or, to your knowledge or the knowledge of the
Company, shall be contemplated by the Commission, and any
request on the part of the Commission for additional
information shall have been complied with to the
satisfaction of your counsel.
(b) At the applicable Closing Time, each of you shall
have received a signed opinion of Stroock & Stroock &
Lavan,
or such other outside counsel of recognized standing
reasonably acceptable to the Underwriters that may opine on
matters of New York law and federal securities law, counsel
for the Company, dated as of the applicable Closing Time,
in
form and substance satisfactory to your counsel, to the
effect that:
(i) The Indentures and the related Supplemental
Indenture(s), if any, described in the applicable
Terms
Agreement are the legally valid and binding agreements
of the Company, enforceable against the Company in
accordance with their terms except as enforcement
thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors'
rights generally, general equitable principles
(whether
considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing;
(ii) The Debt Securities, if any, covered by the
applicable Terms Agreement are in the form
contemplated
by the applicable Indenture and the related
Supplemental Indenture(s), and, when executed and
authenticated in accordance with the terms of the
applicable Indenture and delivered to and paid for by
you in accordance with the terms of this Agreement as
supplemented by the applicable Terms Agreement, will
be
legally valid and binding obligations of the Company,
enforceable against the Company in accordance with
their terms except as enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors'
rights
generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing;
(iii) The Indentures, if any, have been duly
qualified under the 1939 Act;
(iv) The Company is not an investment company
within the meaning of the Investment Company Act of
1940, as amended;
(v) The statements set forth in the Prospectus
under the caption "Description of Securities," insofar
as they constitute summaries of documents, are
accurate
in all material respects and the Indentures, if any,
and the Offered Securities covered by the applicable
Terms Agreement conform in all material respects to
the
descriptions thereof in the Prospectus;
(vi) The Registration Statement is effective
under
the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under
the
1933 Act and no proceedings therefor have been
initiated or threatened by the Commission; and any
required filing of the Prospectus pursuant to Rule
424(b) under the 1933 Act has been made in accordance
with Rule 424(b) under the 1933 Act; and
(vii) The Registration Statement (excluding the
documents incorporated therein by reference) and the
Prospectus comply as to form in all material respects
with the requirements for registration statements on
Form S-3 under the 1933 Act; it being understood,
however, that such counsel expresses no opinion with
respect to the financial statements, schedules and
other financial and statistical data included or
incorporated in the Registration Statement or the
Prospectus or with respect to the Statement as to the
Eligibility and Qualification of the Trustee on Form
T-1, if any. In passing upon the compliance as to
form
of the Registration Statement and the Prospectus, such
counsel has assumed that the statements made therein
are correct and complete.
In addition, such counsel has participated in
conferences with officers and other representatives of the
Company, representatives of the independent public
accountants for the Company, and the Representatives, at
which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although
such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement
and the Prospectus and have not been called on to make and
have not made any independent check or verification
thereof,
during the course of such participation (relying as to
materiality to a large extent upon the statements of
officers and other representatives of the Company), no
facts
came to such counsel's attention that caused such counsel
to
believe that the Registration Statement, at the time it
became effective, or if an amendment to the Registration
Statement or an annual report on Form 10-K has been filed
by
the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the
time such post-effective amendment became effective or as
of
the most recent filing, contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus (including
the documents incorporated by reference therein but giving
effect to Rule 412 under the 1933 Act), as of the date of
the most recent Prospectus Supplement or the Prospectus (as
supplemented) as of the applicable Closing Time, contained
an untrue statement of a material fact or omitted to state
a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; it being understood that such counsel expresses
no belief with respect to the financial statements and
notes
and schedules thereto and other financial, accounting, tax
and statistical data included in (or incorporated in) the
Registration Statement or the Prospectus or with respect to
the Statement of Eligibility and Qualification of the
Trustee on Form T-1, if any.
In rendering such opinion, Stroock & Stroock & Lavan
(or such other counsel) (i) may rely as to factual matters
upon certificates or written statements from officers or
other appropriate representatives of the Company or upon
certificates of public officials, (ii) may rely (to the
extent such counsel deems proper and specifies in their
opinion), as to matters involving the application of the
laws of the State of Louisiana, upon the opinion of
Kantrow,
Spaht, Weaver & Blizter (A Professional Law Corporation) or
such other outside counsel of recognized standing
reasonably
acceptable to the Underwriters, that may opine on matters
of
Louisiana law, and (iii) need not express any opinion with
regard to the laws of any jurisdiction other than the
federal law of the United States and the law of the State
of
New York. Further, such opinion may contain assumptions,
limitations, exceptions and restrictions which are
reasonably satisfactory to you and your counsel.
(c) At the applicable Closing Time, each of you shall
have received a signed opinion of Kantrow, Spaht, Weaver &
Blizter (A Professional Law Corporation), or such other
outside counsel of recognized standing reasonably
acceptable
to the Underwriters that may opine on matters of Louisiana
law, counsel for the Company, dated as of the applicable
Closing Time, in form and substance satisfactory to your
counsel, to the effect that:
(i) The Company has been duly incorporated and
is
validly existing and in good standing under the laws
of
the State of Louisiana, with corporate power and
authority to own its property and to conduct its
business as described in the Prospectus. The Company
is duly qualified as a foreign corporation in each of
the respective jurisdictions set forth on Exhibit A to
such opinion and officers of the Company have
submitted
to such counsel a certificate, a copy of which is
attached to such opinion as Exhibit B, stating that,
in
their opinion, such jurisdictions are the only
jurisdictions in which the conduct of its business or
its ownership or leasing of property requires such
qualification, except to the extent that the failure
to
be so qualified is not reasonably likely to have a
material adverse effect on the Company and its
subsidiaries considered as one enterprise;
(ii) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation
under the laws of the jurisdiction of its
incorporation, has the corporate power and authority
to
own its property and to conduct its business as
described in the Prospectus and is duly qualified as a
foreign corporation in each of the respective
jurisdictions set forth on Exhibit A to such opinion
and officers of such subsidiary have submitted to such
counsel a certificate, a copy of which is attached to
such opinion as Exhibit B, stating that, in their
opinion, such jurisdictions are the only jurisdictions
in which the conduct of its business or its ownership
or leasing of property requires such qualifications,
except to the extent that the failure to be so
qualified is not reasonably likely to have a material
adverse effect on the Company and its subsidiaries
considered as one enterprise; all of the issued and
outstanding capital stock of each subsidiary (other
than the senior preferred stock of FMC) has been duly
authorized and validly issued, is fully paid and
non-assessable and all of the issued and outstanding
capital stock of such subsidiaries (other than the
senior preferred stock of FMC), is owned of record by
the Company, directly or through subsidiaries, and is
free and clear of any pledge, lien, encumbrance, claim
or equity; UCLC is a corporation in good standing
under
the laws of the State of Louisiana; and UCLIC and
United General Title Insurance Company are each in
compliance with the laws of the State of Louisiana;
(iii) The Debt Securities, if any, described in
the
applicable Terms Agreement have been duly authorized
by
the Company;
(iv) The Company has the requisite corporate
power
and authority to execute, deliver and perform its
obligations under the Indentures and the related
Supplemental Indenture(s), if any. The Indentures, if
any, have been duly authorized, executed and delivered
by the Company;
(v) The Company has the requisite corporate
power
and authority to issue and deliver the Offered
Securities;
(vi) The Company has the requisite corporate
power
and authority to execute, deliver and perform its
obligations under this Agreement and the applicable
Terms Agreement. This Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any,
have been duly authorized, executed and delivered by
the Company;
(vii) Neither (A) the execution and delivery by
the
Company of each of the Operative Documents to be
executed and delivered by the Company at or prior to
the applicable Closing Time nor (B) the issuance and
sale of the Offered Securities by the Company pursuant
to this Agreement, the applicable Terms Agreement and
the Indentures and the related Supplemental
Indentures,
if any, will, as of the applicable Closing Time,
result
in the violation or breach by the Company of, or a
default under, (1) its articles of incorporation or
by-laws, (2) any federal or Louisiana statute, rule or
regulation applicable to the Company or any of its
subsidiaries (except that no opinion is expressed with
respect to blue sky or state securities laws), (3) any
agreement or other instrument known to such counsel
and
listed as an Exhibit to the Company's most recent
Annual Report on Form 10-K for the Company's most
recent fiscal year binding upon the Company or any of
its subsidiaries that is material to the Company and
its subsidiaries, considered as one enterprise, or (4)
any court or administrative orders, writs, judgments
or
decrees applicable to the Company and known to such
counsel;
(viii) To the best of such counsel's knowledge, no
consent, approval, authorization or order of, or
filing
with, any federal or Louisiana court or governmental
body or agency is required to be obtained or made by
the Company or any of its subsidiaries for the
execution and delivery by the Company of each of the
Operative Documents to be executed and delivered by
the
Company at or prior to the Closing Time and the
consummation of the issuance and sale of the Offered
Securities by the Company pursuant to this Agreement,
the applicable Terms Agreement and the Indentures and
the related Supplemental Indentures, if any, except
such as have been obtained or made under the 1933 Act
and such as may be required under state securities
laws
in connection with the purchase and distribution of
such Securities by you;
(ix) After due inquiry, such counsel has no
knowledge of any legal or governmental proceeding
pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries
is
subject that is required to be described in the
Registration Statement or the Prospectus and is not so
described therein; or of any statutes, regulations,
contracts or other documents that are required to be
described in the Registration Statement or the
Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed
as required;
(x) If any Offered Securities to be issued are
convertible or exchangeable, the related Underlying
Securities are duly and validly authorized, have been
duly reserved for issuance upon conversion or exchange
of the Offered Securities, and when issued upon the
conversion or exchange of the Offered Securities, will
be duly and validly issued and, in the case of such
Underlying Securities which are Common Stock, fully
paid and non-assessable;
(xi) If the Offered Securities are Preferred
Stock
or Debt Securities convertible or exchangeable into
Common Stock, such counsel shall opine that all of the
outstanding shares of capital stock of the Company
have
been duly authorized and are validly issued, fully
paid
and non-assessable, and except as disclosed in the
Prospectus none of the outstanding shares of capital
stock of the Company are subject to any preemptive or
similar rights; and
(xii) Each of the documents incorporated or deemed
to be incorporated by reference in the Registration
Statement, at the time it was filed with the
Commission, complied as to form in all material
respects with the requirements for such document under
the 1934 Act and the regulations thereunder.
In addition, such counsel has participated in
conferences with officers and other representatives of the
Company, representatives of the independent public
accountants for the Company, and the Representatives, at
which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although
such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement
and the Prospectus and have not been called on to make and
have not made any independent check or verification
thereof,
during the course of such participation (relying as to
materiality to a large extent upon the statements of
officers and other representatives of the Company), no
facts
came to such counsel's attention that caused such counsel
to
believe that the Registration Statement, at the time it
became effective, or if an amendment to the Registration
Statement or an annual report on Form 10-K has been filed
by
the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the
time such post-effective amendment became effective or as
of
the most recent filing, contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus (including
the documents incorporated by reference therein but giving
effect to Rule 412 under the 1933 Act), as of the date of
the most recent Prospectus Supplement or the Prospectus (as
supplemented) as of the applicable Closing Time, contained
an untrue statement of a material fact or omitted to state
a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; it being understood that such counsel expresses
no belief with respect to the financial statements and
notes
and schedules thereto and other financial, accounting, tax
and statistical data included in (or incorporated in) the
Registration Statement or the Prospectus or with respect to
the Statement of Eligibility and Qualification of the
Trustee on Form T-1, if any.
In rendering such opinion, Kantrow, Spaht, Weaver &
Blizter (A Professional Law Corporation) (or such other
counsel) (i) may rely as to factual matters upon
certificates or written statements from officers or other
appropriate representatives of the Company and its
subsidiaries and upon certificates of public officials and
(ii) need not express any opinion with respect to the laws
of any jurisdiction other than the federal law of the
United
States and the law of the State of Louisiana. Further,
such
opinion may contain assumptions, limitations, exceptions
and
restrictions which are reasonably satisfactory to you and
your counsel.
(d) At the Closing Time, each of you shall have
received the favorable opinion of Simpson Thacher &
Bartlett
as your counsel, dated as of the applicable Closing Time,
to
the effect that the opinions delivered pursuant to
Sections 5(b) and 5(c) appear on their face to be
appropriately responsive to the requirements of this
Agreement and the applicable Terms Agreement except,
specifying the same, to the extent waived by you, and with
respect to the Securities, this Agreement and the
applicable
Terms Agreement, the Indentures, if any, the Registration
Statement, the Prospectus, the incorporation and legal
existence of the Company and such other related matters as
you may reasonably require. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of
jurisdictions other than the federal law of the United
States, the law of the State of New York and the General
Corporation Law of the State of Delaware, upon the opinions
of counsel satisfactory to you. Such counsel may also
state
that, insofar as such opinion involves factual matters,
they
have relied, to the extent they deem proper, upon
certificates of officers or other appropriate
representatives of the Company and its subsidiaries and
certificates of public officials.
(e) At the applicable Closing Time, (i) the
Registration Statement and the Prospectus, as they may then
be amended or supplemented, shall contain all statements
that are required to be stated therein under the 1933 Act
and the regulations thereunder and in all material respects
shall conform to the requirements of the 1933 Act and the
regulations thereunder and the 1939 Act and the regulations
thereunder, and neither the Registration Statement nor the
Prospectus, as they may then be amended or supplemented,
shall contain an untrue statement of a material fact or
omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(ii) there shall not have been, since the respective dates
as of which information is given in the Prospectus (as
supplemented), any material adverse change, or any
development involving a prospective material adverse
change,
in the condition (financial or otherwise), properties,
assets, business or results of operations of the Company
and
its subsidiaries, considered as one enterprise, whether or
not arising in the ordinary course of business; (iii) no
action, suit or proceeding at law or in equity shall be
pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries that would
be
required to be set forth in the Prospectus other than as
set
forth therein or in any supplement thereto and no
proceedings shall be pending or, to the knowledge of the
Company, threatened against it or any of its subsidiaries
before or by any federal, state or other commission, board
or administrative agency wherein an unfavorable decision,
ruling or finding is reasonably likely to materially
adversely affect the condition (financial or otherwise),
properties, assets, business or results of operations of
the
Company and its subsidiaries, considered as one enterprise,
other than as set forth in the Prospectus or in any
supplement thereto; (iv) the Company shall have complied
with all agreements and satisfied all conditions on its
part
to be performed or satisfied at or prior to the applicable
Closing Time; and (v) the other representations and
warranties of the Company set forth in Section l(a) shall
be
accurate as though expressly made at and as of the
applicable Closing Time. At the applicable Closing Time,
each of you shall have received a certificate of the
President or a Vice President, and the Treasurer or
Assistant Treasurer, of the Company, dated as of the
applicable Closing Time, to such effect to such officer's
knowledge.
(f) At the time that a Terms Agreement is executed by
the Company, each of you shall have received from Deloitte
&
Touche LLP or such other nationally recognized independent
public accountants who are reporting on the audited
financial statements and schedules included or incorporated
by reference in the Registration Statement a letter dated
the date thereof and also at the applicable Closing Time a
letter dated the date thereof, in each case in form and
substance satisfactory to the Representatives, containing
statements and information of the type ordinarily included
in the accountant's "comfort letters" to underwriters with
respect to financial statements and certain financial
information contained in the Registration Statement and the
Prospectus.
(g) At the applicable Closing Time, your counsel
shall
have been furnished with all such documents (including any
consents under any agreements to which the Company is a
party), certificates and opinions as they may reasonably
request for the purpose of enabling them to pass upon the
issuance and sale of the Securities as contemplated in this
Agreement and the applicable Terms Agreement and the
matters
referred to in Section 5(d) and in order to evidence the
accuracy and completeness of any of the representations,
warranties or statements of the Company, the performance of
any of the covenants of the Company, or the fulfillment of
any of the conditions herein and in the applicable Terms
Agreement contained; and all proceedings taken by the
Company at or prior to the applicable Closing Time in
connection with the authorization, issuance and sale of the
Offered Securities, and by the Company at or prior to the
applicable Closing Time in connection with the
authorization
and delivery of any other Operative Documents, each as
contemplated in this Agreement and the applicable Terms
Agreement, shall be reasonably satisfactory in form and
substance to you and to your counsel.
(h) If the Offered Securities to be sold to you
pursuant to an applicable Terms Agreement are to be listed
on any securities exchange, such Securities shall have been
duly authorized for listing on such exchange on the date of
the applicable Terms Agreement, subject only to official
notice of issuance thereof and notice of a satisfactory
distribution of the Securities.
(i) On or after the date of the applicable Terms
Agreement (i) no downgrading shall have occurred in the
rating accorded any of the Company's debt securities or
preferred stock by any "nationally recognized statistical
rating organization" as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933
Act
and regulations thereunder and (ii) no such organization
shall have publicly announced that it has under
surveillance
or review, with possible negative implications, its rating
of the Company's debt securities or preferred stock.
(j) Each of the Indentures and the related
Supplemental Indentures, if any, shall have been executed
and delivered by all parties thereto on or prior to the
Closing Time, in each case in substantially the form last
filed by the Company with the Commission, and each such
instrument shall be in full force and effect at the Closing
Time.
If any of the conditions specified in this Section 5
shall not have been fulfilled when and as required by this
Agreement or the applicable Terms Agreement to be fulfilled,
this
Agreement and the applicable Terms Agreement may be terminated
by
you on notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in
Section 4. Notwithstanding any such termination, the provisions
of Sections 6 and 7 shall remain in effect.
Section 6. Indemnification. (a) The Company agrees
to
indemnify and hold harmless each of you and each person, if any,
who controls any of you within the meaning of Section 15 of the
1933 Act as follows:
(i) against any and all loss, liability, claim,
damage
and expense whatsoever, as incurred, arising out of an
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), including all documents incorporated or
deemed to be incorporated by reference in the Registration
Statement, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising
out
of an untrue statement or alleged untrue statement of a
material fact included in the Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such
settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever (including
fees and disbursements of counsel chosen by you (except to
the extent otherwise expressly provided in paragraph (c) of
this Section 6)) reasonably incurred in investigating,
preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever
based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that
any
such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that the Company's obligations under this
indemnity do not apply to any loss, liability, claim, damage or
expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in the
Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the
Company by any of you through the Representatives expressly for
use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto); and
provided further, that as to any related preliminary prospectus
or preliminary prospectus supplement this indemnity agreement
shall not inure to the benefit of any Underwriter on account of
any loss, claim, damage or liability (or action in respect
thereof) arising from the sale of Offered Securities to any
person by that Underwriter if that Underwriter failed to send or
give a copy of the Prospectus, as the same may be amended or
supplemented, to that person within the time required by the
1933
Act, and the untrue statement or alleged untrue statement of any
material fact or omission or alleged omission to state any
material fact in such preliminary prospectus or preliminary
prospectus supplement was corrected in the Prospectus, unless
such failure resulted from non-compliance by the Company with
Section 3(b). For purposes of the second proviso to the
immediately preceding sentence, the term Prospectus shall not be
deemed to include the documents incorporated by reference
therein, and no Underwriter shall be obligated to send or give
any supplement or amendment to any document incorporated by
reference in a preliminary prospectus, a preliminary prospectus
supplement or the Prospectus to any person other than a person
to
whom such Underwriter has delivered such incorporated documents
in response to a written request therefor.
(b) Each of you agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors,
each of their respective officers who signed the Registration
Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20
of
the 1934 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section
6(a),
as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in
the
Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the
Company by you through the Representatives expressly for use in
the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice
to
each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, enclosing a
copy of all papers served, but failure to so notify an
indemnifying party shall not relieve it from any liability that
it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own
expense in the defense of such action. If it so elects within a
reasonable time after receipt of such notice, an indemnifying
party, jointly with any other indemnifying parties receiving
such
notice, may assume the defense of such action with counsel
chosen
by it and approved by the indemnified parties who are defendants
in such action, provided that, if such indemnified party or
parties reasonably determine that there may be legal defenses
that are different from or in addition to those available to
such
indemnifying party or parties, then such indemnifying party or
parties shall not be entitled to assume such defense. If the
indemnifying party or parties are not entitled to assume the
defense of such action as a result of the proviso to the
preceding sentence, counsel for the indemnifying party or
parties
shall be entitled to conduct the defense of such indemnifying
party or parties and counsel for the indemnified party or
parties
shall be entitled to conduct the defense of such indemnified
party or parties. If an indemnifying party assumes the defense
of such action, the indemnifying parties shall not be liable for
any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event
shall the indemnifying party or parties be liable for the fees
and expenses of more than one counsel (in addition to any local
counsel) for all indemnified parties in connection with any one
action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
(d) No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the
subject matter of such proceeding. No indemnifying party shall
be liable for any settlement that an indemnified party may
effect
without the consent of the indemnifying party, which consent
shall not be unreasonably withheld.
Section 7. Contribution. In order to provide for
just
and equitable contribution in circumstances under which the
indemnity provided for in Section 6 is for any reason held to be
unenforceable by the indemnified parties although applicable in
accordance with its terms, the Company and each of you shall
contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity
incurred by the Company and one or more of you, in such
proportions as will reflect the relative benefits from the
offering of such Securities received by the Company on the one
hand and by you, on the other hand, provided that if the
Securities are offered by you at an initial public offering
price
set forth in a Prospectus Supplement, the relative benefits
shall
be deemed to be such that you shall be responsible for that
portion of the aggregate losses, liabilities, claims, damages
and
expenses represented by the percentage that the underwriting
commission appearing on the cover page of the Prospectus
Supplement bears to the initial public offering price appearing
thereon and the Company shall be responsible for the balance;
provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
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
any
of you within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as you, and each director
of
the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls
the
Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
Section 8. Representations, Warranties and Agreements
to Survive Delivery. The representations, warranties,
indemnities, agreements and other statements of the Company or
its officers set forth in or made pursuant to this Agreement
will
remain operative and in full force and effect regardless of any
termination of the applicable Terms Agreement (including this
Agreement as incorporated by reference therein), or any
investigation made by or on behalf of the Company or any of you
or any controlling person and will survive delivery of and
payment for the Securities.
Section 9. Termination of Agreement. (a) The
Representatives may terminate the applicable Terms Agreement
(including this Agreement, as incorporated by reference
therein),
immediately by notice to the Company, at any time at or prior to
the applicable Closing Time (i) if there has been, since the
respective dates as of which information is given in the
Prospectus, any material adverse change, or any development
involving a prospective material adverse change, in the
condition
(financial or otherwise), properties, assets, business or
results
of operations of the Company and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any new outbreak of
hostilities or escalation of existing hostilities or other
calamity or crisis the effect of which on the financial markets
of the United States is such as to make it, in your reasonable
judgment, impracticable to market the Securities or enforce
contracts for the sale of the Securities, or (iii) if trading in
any securities of the Company has been suspended by the
Commission, or if trading generally on either the New York Stock
Exchange or the American Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or
maximum
ranges for prices for securities have been required, by either
of
such exchanges or by order of the Commission or any other
governmental authority or (iv) if a general commercial banking
moratorium has been declared by either federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any
party to any other party, except to the extent provided in
Section 4 hereof. Notwithstanding any such termination, the
covenants set forth in Section 3 with respect to any offering of
Securities purchased from the Company pursuant to the applicable
Terms Agreement and the provisions of Sections 6 and 7 shall
remain in effect.
(c) This Agreement may also terminate pursuant to the
provisions of Sections 2, 5 and 10, with the effect stated in
such Sections.
Section 10. Default by One or More of the
Underwriters. If one or more of you shall fail at the
applicable
Closing Time to purchase the Securities that such Underwriter or
Underwriters are obligated to purchase pursuant to the
applicable
Terms Agreement (the "Defaulted Securities"), the
Representatives
shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters,
or any other substitute underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as
may
be agreed upon and upon the terms set forth in this Agreement;
if, however, you have not completed such arrangements within
such
24-hour period, then:
(a) if the aggregate amount of Defaulted Securities
does not exceed 10% of the aggregate amount of the
Securities to be purchased pursuant to such Terms
Agreement,
the non-defaulting Underwriters shall be obligated to
purchase the full amount thereof in the proportions that
their respective underwriting obligation proportions bear
to
the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate amount of Defaulted Securities
exceeds 10% of the aggregate amount of the Securities to be
purchased pursuant to such Terms Agreement, such Terms
Agreement (including this Agreement as incorporated by
reference therein) shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall
relieve any defaulting Underwriter from liability in respect of
its default.
In the event of any such default that does not result
in a termination of the applicable Terms Agreement, either the
Representatives or the Company shall have the right to postpone
the applicable Closing Time for a period not exceeding seven
days
in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or
arrangements.
Section 11. Notices. All notices and other
communications under this Agreement shall be in writing and
shall
be deemed to have been duly given if delivered, mailed or
transmitted by any standard form of telecommunication. Notices
to you shall be directed to you as provided in the applicable
Terms Agreement. Notices to the Company shall be directed to it
c/o United Companies Financial Corporation, 4041 Essen Lane,
Baton Rouge, Louisiana 70809, attention of Dale E. Redman, with
copies to Kantrow, Spaht, Weaver & Blitzer (A Professional Law
Corporation), attention of Lee C. Kantrow and Stroock & Stroock
&
Lavan, attention of Reed D. Auerbach.
Section 12. Parties. The applicable Terms Agreement
and this Agreement are made solely for the benefit of each of
you, the Company and, to the extent expressed, any person
controlling either the Company or any of you, and the directors
of the Company, the officers of the Company who have signed the
Registration Statement, and the executors, administrators,
successors and assigns of such persons and, subject to the
provisions of Section 10, no other person shall acquire or have
any right under or by virtue of the applicable Terms Agreement
or
this Agreement. The term "successors and assigns" shall not
include any purchaser, as such purchaser, from any of you of the
Securities. All of the obligations of each of you hereunder are
several and not joint.
Section 13. Governing Law and Time. This Agreement
and each Terms Agreement shall be governed by the law of the
State of New York without regard to the conflicts of law
principles thereof. Specified times of the day refer to New
York
City time.
Very truly yours,
UNITED COMPANIES
FINANCIAL CORPORATION
By: /s/ Dale E. Redman
Name: Dale E. Redman
Title: Executive Vice President
and Chief Financial
Officer
EXHIBIT
A(I)
UNITED COMPANIES FINANCIAL CORPORATION
(a Louisiana corporation)
$
Debt Securities
Terms Agreement
, 199
To: United Companies Financial Corporation
4041 Essen Lane
Baton Rouge, Louisiana 70809
Dear Sirs:
Reference is made to the United Companies Financial
Corporation Securities Underwriting Agreement-Basic Provisions
dated , 1994 (the "Underwriting Agreement"). This
Agreement is the Terms Agreement referred to in the Underwriting
Agreement. We offer to purchase, on and subject to the terms
and
conditions of the Underwriting Agreement, the following
securities ("Securities") on the following terms:
Title: __________ due ____________
Principal Amount to
be issued: $___________
Date of maturity: ____________
Interest rate: ____________%
Interest payment
dates: ____________ and ______________ of
each
year
Public offering
price: ________%, plus accrued interest
from _____________
Purchase Price: ________%, plus accrued interest
from ____________ (payable by [wire
transfer in same-day federal funds,
less
one day's interest at the federal
funds
rate] [certified or official bank
check
in New York Clearinghouse funds)]
Underwriting
Commission: _____%
Redemption
provisions: [Redeemable at the option of the
Company
in whole or in part on and after
_______
__, _______ at 100% of principal
amount
plus accrued interest to the date of
redemption.]
Conversion or
Exchange Provisions: _______________
Delayed Delivery
Contracts: _______________
Closing date and
location: _______________, 10:00 A.M.;
Simpson Thacher & Bartlett,
425 Lexington Avenue
New York, New York 10017
Additional
co-managers, if any: _______________
Additional
underwriters,
if any: _______________
Other terms: _______________
The Company represents and warrants to each of us that
the representations and warranties of the Company set forth in
Section 1 of the Underwriting Agreement are accurate as though
expressly made at and as of the date hereof. All of the
provisions contained in the Underwriting Agreement, a copy of
which is attached hereto as Annex A, are herein incorporated by
reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are
used herein as therein defined.
As contemplated by Section 2 of the Underwriting
Agreement, attached as Schedule A hereto is a completed list of
our respective underwriting commitments, which shall be a part
of
this Agreement and the Underwriting Agreement.
This Agreement shall be governed by the laws of the
State of New York without regard to the conflicts of law
principles thereof.
If the foregoing is in accordance with your
understanding of the agreement between the Underwriters and you,
please sign and return to the Underwriters a counterpart hereof,
whereupon this instrument along with all counterparts and
together with the Underwriting Agreement shall be a binding
agreement between the Underwriters and you in accordance with
its
terms and the terms of the Underwriting Agreement.
Very truly yours,
[ ]
By: ________________________
Confirmed and accepted as of
the date first above written:
UNITED COMPANIES
FINANCIAL CORPORATION
By: ________________________
Name:
Title:
EXHIBIT
A(II)
UNITED COMPANIES FINANCIAL CORPORATION
(a Louisiana corporation)
Equity Securities
Terms Agreement
, 199
To: United Companies Financial Corporation
4041 Essen Lane
Baton Rouge, Louisiana 70809
Dear Sirs:
Reference is made to the United Companies Financial
Corporation Securities Underwriting Agreement-Basic Provisions
dated , 1994 (the "Underwriting Agreement"). This
Agreement is the Terms Agreement referred to in the Underwriting
Agreement. We offer to purchase, on and subject to the terms
and
conditions of the Underwriting Agreement, the following
securities ("Securities") on the following terms:
Title: Preferred Stock, Series __
Number of Shares to
be issued: shares
Voting Rights:
Dividends: [cash] dividends of $ to $
per share payable quarterly in
arrears
on ________ __, ________ __,
________ __, and ________ __
Public offering
price: $ per share
Purchase Price: $ per share (payable by
[wire transfer in same-day federal
funds, less one day's interest at
the
federal funds rate] [certified or
official bank check in New York
Clearinghouse funds)]
Underwriting
Commission: _____%
Redemption
provisions:
Liquidation
Preference: $ per share plus
.
Conversion or
Exchange Provisions:
Over-Allotment
Option:
Closing date and
location: , 10:00 A.M.;
Simpson Thacher & Bartlett,
425 Lexington Avenue
New York, New York 10017
Additional
co-managers, if any:
Additional
underwriters,
if any:
Other Terms:
Name of Transfer
Agent and Registrar:
The Company represents and warrants to each of us that
the representations and warranties of the Company set forth in
Section 1 of the Underwriting Agreement are accurate as though
expressly made at and as of the date hereof. All of the
provisions contained in the Underwriting Agreement, a copy of
which is attached hereto as Annex A, are herein incorporated by
reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are
used herein as therein defined.
As contemplated by Section 2 of the Underwriting
Agreement, attached as Schedule A hereto is a completed list of
our respective underwriting commitments, which shall be a part
of
this Agreement and the Underwriting Agreement.
This Agreement shall be governed by the laws of the
State of New York without regard to the conflicts of law
principles thereof.
If the foregoing is in accordance with your
understanding of the agreement between the Underwriters and you,
please sign and return to the Underwriters a counterpart hereof,
whereupon this instrument along with all counterparts and
together with the Underwriting Agreement shall be a binding
agreement between the Underwriters and you in accordance with
its
terms and the terms of the Underwriting Agreement.
Very truly yours,
[ ]
By: ________________________
Confirmed and accepted as of
the date first above written:
UNITED COMPANIES
FINANCIAL CORPORATION
By: ________________________
Name:
Title:
SCHEDULE A
Principal Amount
of Debt Securities
to be Purchased/
Number of Shares of
Underwriter Preferred Stock
[ ]. . . . . . . . . . . .
[ ]. . . . . . . . . . . .
[ ]. . . . . . . . . . . .
________________________
Total. . . . . . . . . . ________________________
Exhibit
B
United Companies Financial Corporation
c/o [Manager's Address]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from United
Companies Financial Corporation (the "Company"), and the Company
agrees to sell to the undersigned, on ____________, 19__ (the
"Delivery Date"), $____________ principal amount of the
Company's
___% [Notes][Debentures] due ____________, 19__ (the
"Securities"), offered by the Company's Prospectus dated
____________, 19__, as supplemented by its Prospectus Supplement
dated ____________, 19__, receipt of which is hereby
acknowledged, at a purchase price of ___% of the principal
amount
thereof, plus accrued interest from ____________, 19__, to the
Delivery Date, and on the further terms and conditions set forth
in this contract.
Payment for the Securities which the undersigned has
agreed to purchase on the Delivery Date shall be made to the
Company or its order by certified or official bank check in
New York Clearing House funds, at the office of the
Underwriters,
on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned in definitive form
and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic
communication
addressed to the Company not less than five full business days
prior to the Delivery Date.
The obligations of the undersigned to take delivery of
and make payment for Securities on the Delivery Date shall be
subject only to the conditions that (1) the purchase of
Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction
to
which the undersigned is subject and (2) the Company, on or
before ____________, 19__, shall have sold to the Underwriters
of
the Securities (the "Underwriters") such principal amount of the
Securities as is to be sold to them pursuant to the Terms
Agreement dated ____________, 19__ between the Company and the
Underwriters. The obligation of the undersigned to take
delivery
of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payment
for
Securities pursuant to other contracts similar to this contract.
The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the
undersigned is subject and which govern such investment.
Promptly after completion of the sale to the
Underwriters, the Company will mail or deliver to the
undersigned
at its address set forth below notice to such effect,
accompanied
by a copy of the opinion of counsel for the Company delivered to
the Underwriters in connection therewith.
By the execution hereof, the undersigned represents
and
warrants to the Company that all necessary corporate action for
the due execution and delivery of this contract and the payment
for and purchase of the Securities has been taken by it and no
further authorization or approval of any governmental or other
regulatory authority is required for such execution, delivery,
payment or purchase, and that, upon acceptance hereof by the
Company and mailing or delivery of a copy as provided below,
this
contract will constitute a valid and binding agreement of the
undersigned in accordance with its terms.
This contract will inure to the benefit of and be
binding upon the parties hereto and their respective successors,
but will not be assignable by either party hereto without the
written consent of the other.
It is understood that the Company will not accept
Delayed Delivery Contracts for an aggregate principal amount of
Securities in excess of $____________ and that the acceptance of
any delayed Delivery Contract is in the Company's sole
discretion
and, without limiting the foregoing, need not be on a
first-come,
first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of
acceptance on a copy hereof and mail or deliver a signed copy
hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the
undersigned when such copy is mailed or delivered.
This Agreement shall be governed by the laws of the
State of New York without regard to the conflicts of law
principles thereof.
Yours very truly,
______________________________
(Name of Purchaser)
By____________________________
(Title)
______________________________
______________________________
(Address)
Accepted as of the date
first above written.
United Companies
Financial Corporation
By________________________
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of
the Purchaser with whom details of delivery on the Delivery Date
may be discussed is as follows: (Please print.)
Telephone No.
Name (Including Area Code)
EXHIBIT
1.2
UNITED COMPANIES FINANCIAL CORPORATION
(a Louisiana corporation)
$100,000,000
Debt Securities
Terms Agreement
July 20, 1995
To: United Companies Financial Corporation
4041 Essen Lane
Baton Rouge, Louisiana 70809
Dear Sirs:
Reference is made to the United Companies Financial
Corporation Securities Underwriting Agreement-Basic Provisions
dated June 27, 1995 (the "Underwriting Agreement"). This
Agreement is the Terms Agreement referred to in the Underwriting
Agreement. We offer to purchase, on and subject to the terms
and
conditions of the Underwriting Agreement, the following
securities ("Securities") on the following terms:
Title: 7% Senior Notes due July 15, 1998
Principal Amount to
be issued: $100,000,000
Date of maturity: July 15, 1998
Interest rate: 7%
Interest payment
dates: January 15 and July 15 of each year.
Public offering
price: 100.00%, plus accrued interest, if
any,
from July 25, 1995.
Purchase Price: 99.50%, plus accrued interest, if
any,
from July 25, 1995 (payable by wire
transfer in same-day federal funds
to an
account or accounts to be specified
by
the Company).
Underwriting
Commission: .50%
Redemption
provisions: The Notes are not redeemable prior
to
maturity.
Indenture
Provisions: As described in the Indenture dated
as
of October 1, 1994, between the
Company
and The First National Bank of
Chicago,
as Trustee, as supplemented by the
Second Supplemental Indenture, dated
as
of July 25, 1995.
Conversion or
Exchange Provisions: None.
Delayed Delivery
Contracts: None.
Closing date and
location: July 25, 1995, 9:00 A.M.;
Simpson Thacher & Bartlett,
425 Lexington Avenue
New York, New York 10017
Additional
co-manager: Merrill Lynch & Co.
Notices to
Underwriters: Notices to the Underwriters shall be
directed to:
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Attention of Robert C. Smith,
with copy to:
Simpson Thacher & Bartlett,
Attention of Peter J. Gordon
Option Securities: None.
Other terms: The Company will reimburse the
Underwriters up to an aggregate
amount
of $100,000, pursuant to Section 4
of
the Underwriting Agreement, if the
Underwriting Agreement is terminated
in
accordance with the provisions of
Section 5 or 9(a)(i) thereto.
The Company represents and warrants to each of us that
the representations and warranties of the Company set forth in
Section 1 of the Underwriting Agreement are accurate as though
expressly made at and as of the date hereof. All of the
provisions contained in the Underwriting Agreement, a copy of
which is attached hereto as Annex A, are herein incorporated by
reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are
used herein as therein defined.
As contemplated by Section 2 of the Underwriting
Agreement, attached as Schedule A hereto is a completed list of
our respective underwriting commitments, which shall be a part
of
this Agreement and the Underwriting Agreement.
This Agreement shall be governed by the laws of the
State of New York without regard to the conflicts of law
principles thereof.
If the foregoing is in accordance with your
understanding of the agreement between the Underwriters and you,
please sign and return to the Underwriters a counterpart hereof,
whereupon this instrument along with all counterparts and
together with the Underwriting Agreement shall be a binding
agreement between the Underwriters and you in accordance with
its
terms and the terms of the Underwriting Agreement.
Very truly yours,
SALOMON BROTHERS INC (for itself as
Underwriter and as Representative of the
Underwriters)
By: /s/ Robert C. Smith
Robert C. Smith
Managing Director
Confirmed and accepted as of
the date first above written:
UNITED COMPANIES
FINANCIAL CORPORATION
By: /s/ Dale E. Redman
Dale E. Redman
Executive Vice President
and Chief Financial Officer
SCHEDULE A
Principal Amount
of Debt
Securities
Underwriter to be Purchased
Salomon Brothers Inc . . . . . . . . . . . $ 50,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . . . 50,000,000
Total $100,000,000
EXHIBIT
4.11
SECOND SUPPLEMENTAL INDENTURE
(Senior Debt Securities)
SECOND SUPPLEMENTAL INDENTURE dated as of July 25,
1995
(the "Second Supplemental Indenture"), to the Indenture, dated
as
of October 1, 1994 (the "Indenture"), between UNITED COMPANIES
FINANCIAL CORPORATION, a Louisiana corporation (hereinafter
called the "Company"), having its principal executive office at
4041 Essen Lane, Baton Rouge, Louisiana 70809, and THE FIRST
NATIONAL BANK OF CHICAGO, a national banking association
(hereinafter called the "Trustee"), having its Corporate Trust
Office at One First National Plaza, Suite 0126, Chicago,
Illinois
60670-0126.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution
and delivery of the Indenture to provide for the issuance from
time to time of its unsecured debentures, notes, bonds or other
evidences of indebtedness (hereinafter called the "Debt
Securities") to be issued in one or more series, as in the
Indenture provided;
WHEREAS, the Company desires and has requested the
Trustee to join it in the execution and delivery of this Second
Supplemental Indenture in order to establish and provide for the
issuance by the Company of a series of Debt Securities
designated
as its 7% Senior Notes due July 15, 1998 in the aggregate
principal amount of $100,000,000, a specimen copy of which is
attached hereto as Exhibit A (the "Notes"), on the terms set
forth herein;
WHEREAS, Section 11.01 of the Indenture provides that
a
supplemental indenture may be entered into by the Company and
the
Trustee without the consent of any holder of any Debt Securities
to, inter alia, establish the terms of any Debt Securities as
permitted by Sections 2.01 and 3.01 of the Indenture, provided
certain conditions are met;
WHEREAS, the conditions set forth in the Indenture for
the execution and delivery of this Second Supplemental Indenture
have been complied with; and
WHEREAS, all things necessary to make this Second
Supplemental Indenture a valid agreement of the Company and the
Trustee, in accordance with its terms, and a valid amendment of,
and supplement to, the Indenture have been done;
NOW THEREFORE:
There is hereby established a series (as that term is
used in Section 3.01 of the Indenture) of Debt Securities to be
issued under the Indenture, which series of Debt Securities
shall
have the terms set forth herein and in the Notes, and in
consideration of the premises and the purchase and acceptance of
the Notes by the holders thereof, the Company mutually covenants
and agrees with the Trustee, for the equal and proportionate
benefit of all holders of the Notes, that the Indenture is
supplemented and amended, to the extent and for the purposes
expressed herein, as follows:
ARTICLE ONE
Scope of This Second
Supplemental Indenture
Section 1.1. Changes, etc. Applicable Only to the
Notes. The changes, modifications and supplements to the
Indenture effected by this Second Supplemental Indenture in
Sections 2.1 through 2.6 hereof shall be applicable only with
respect to, and govern the terms of, the Notes, which shall be
limited in aggregate principal amount to $100,000,000, except as
provided in Section 3.01(2) of the Indenture, and shall not
apply
to any other Debt Securities which may be issued under the
Indenture unless a supplemental indenture with respect to such
other Debt Securities specifically incorporates such changes,
modifications and supplements.
ARTICLE TWO
Amendments to the Indenture
Section 2.1. Amendments to Section 1.01. Section 1.01
of the Indenture is hereby amended by adding the following
definitions in their proper alphabetical order:
"Consolidated Fixed Charge Coverage Ratio" of the
Company means, for the twelve-month period ended as of the
last day of the most recent fiscal quarter, the ratio of
(a)
the sum of consolidated net income, consolidated interest
expense and consolidated income tax expense deducted in
computing consolidated net income (loss), in each case for
such period, of the Company and its consolidated
Subsidiaries on a consolidated basis, to (b) the sum of
consolidated interest expense for such period and cash
dividends paid on any preferred stock of the Company during
such period, all determined in accordance with generally
accepted accounting principles.
"Moody's" means Moody's Investors Service, Inc. and
its
successors in interest.
"Notes" means $100,000,000 aggregate principal amount
of the Company's 7% Senior Notes due July 15, 1998.
"Rating Agencies" means Moody's and S&P.
"S&P" means Standard & Poor's Ratings Group, a
division
of The McGraw-Hill Companies, Inc., and its successors in
interest.
Section 2.2. Amendment to Article Ten. Article Ten of
the Indenture is hereby amended by deleting the words
"Intentionally Omitted" and inserting instead "Consolidation,
Merger, Conveyance, Transfer or Lease" and adding the following
Sections 10.01 and 10.02:
"Section 10.01. Company May Consolidate, etc.,
Only on Certain Terms.
The Company shall not consolidate with or merge
into any other corporation or convey, transfer or lease all
or substantially all of its assets as an entirety to any
Person, unless:
(1) the corporation formed by such consolidation
or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, all or
substantially all of the assets of the Company as an
entirety (the "successor corporation") shall be a
corporation organized and existing under the laws of the
United States or any State or the District of Columbia and
shall expressly assume, by an indenture supplemental
hereto,
executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the
Notes and the performance of every covenant of this
Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of
Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each
stating
that such consolidation, merger, conveyance, transfer or
lease and such supplemental indenture comply with this
Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
For purposes of this Section 10.01, assets of the
Company which did not account for at least 50% of the
consolidated net income of the Company for its most recent
fiscal year ending prior to the consummation of such
transactions shall not in any event be deemed to be all or
substantially all of the assets of the Company.
Section 10.02. Successor Corporation Substituted.
Upon any consolidation with or merger into any
other corporation, or any conveyance, transfer or lease of
all or substantially all of the assets of the Company as an
entirety in accordance with Section 10.01, the successor
corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under
this Indenture, as supplemented, with the same effect as if
such successor corporation had been named as the Company
herein, and thereafter the predecessor corporation shall be
relieved of all obligations and covenants under this
Indenture, as supplemented, and the Notes."
Section 2.3. Amendments to Sections 12.07 and 12.08.
Sections 12.07 and 12.08 of the Indenture are hereby amended by
deleting the words "Intentionally Omitted" and inserting instead
the following new Sections 12.07 and 12.08:
"Section 12.07. Limitation Upon Mortgages and Liens.
The Company will not at any time directly or
indirectly create or assume, otherwise than in favor of the
Company or a Wholly-Owned Subsidiary, any mortgage, pledge
or other lien or encumbrance upon any stock of any
Subsidiary directly owned by the Company, any indebtedness
of any Subsidiary to the Company or any other property of
the Company or any interest it may have therein, whether
now
owned or hereafter acquired, without making effective
provision (and the Company covenants that in such case it
will make or cause to be made, effective provision) whereby
the Notes shall be secured by such mortgage, pledge, lien
or
encumbrance equally and ratably with any and all other
obligations and indebtedness thereby secured, so long as
any
such other obligations and indebtedness shall be so secured
provided, however, that the foregoing covenant shall not be
applicable to the following:
(a) (i) any mortgage, pledge or other lien or
encumbrance on any such asset hereafter acquired or
constructed by the Company, or on which property so
constructed is located, and created prior to,
contemporaneously with or within 180 days after, such
acquisition or construction, or the commencement of
commercial operation, of such asset to secure or
provide for the payment of any part of the purchase or
construction price of such asset, or (ii) the
acquisition by the Company of such asset subject to
any
mortgage, pledge, or other lien or encumbrance upon
such asset existing at the time of acquisition
thereof,
whether or not assumed by the Company; provided that,
in the case of clauses (i) and (ii) of this Section
12.07(a), the lien of any such mortgage, pledge or
other lien does not spread to an asset owned by the
Company prior to such acquisition or construction or
to
another asset thereafter acquired or constructed other
than fixed improvements on such acquired or
constructed
property;
(b) any mortgage, pledge or other lien or
encumbrance created for the sole purpose of extending,
renewing or refunding any mortgage, pledge, lien or
encumbrance permitted by subsection (a) of this
Section
12.07; provided, however, that the principal amount of
indebtedness secured thereby shall not exceed the
principal amount of indebtedness so secured at the
time
of such extension, renewal or refunding and that such
extension, renewal or refunding mortgage, pledge, lien
or encumbrance shall be limited to all or any part of
the same asset that secured the mortgage, pledge or
other lien or encumbrance extended, renewed or
refunded, or to another asset of the Company not
subject to the limitations of this Section 12.07;
(c) liens for taxes or assessments or
governmental charges or levies not then due and
delinquent or the validity of which is being contested
in good faith, and against which an adequate reserve
has been established; liens on any such asset created
in connection with pledges or deposits to secure
public
or statutory obligations or to secure performance in
connection with bids or contracts; materialmen's,
mechanics', carrier's, workmen's, repairmen's or other
like liens; or liens on any such asset created in
connection with deposits to obtain the release of such
liens; liens on any such asset created in connection
with deposits to secure surety, stay, appeal or
customs
bonds; liens created by or resulting from any
litigation or legal proceeding which is currently
being
contested in good faith by appropriate proceedings;
leases and liens, rights of reverter and other
possessory rights of the lessor thereunder; zoning
restrictions, easements, rights-of-way or other
restrictions on the use of real property or minor
irregularities in the title thereto; and any other
liens and encumbrances similar to those described in
this subsection, the existence of which does not, in
the opinion of the Company, materially impair the use
by the Company of the affected asset in the operation
of the business of the Company, or the value of such
asset for the purposes of such business;
(d) any mortgage, pledge or other lien or
encumbrance created after the date of this Indenture
on
any asset leased to or purchased by the Company after
that date and securing, directly or indirectly,
obligations issued by a State, a territory or a
possession of the United States, or any political
subdivision of any of the foregoing, or the District
of
Columbia, to finance the cost of acquisition or cost
of
construction of such asset, provided that the interest
paid on such obligations is entitled to be excluded
from gross income of the recipient pursuant to Section
103(a)(1) of the Code (or any successor to such
provision) as in effect at the time of the issuance of
such obligations;
(e) any mortgage, pledge or other lien or
encumbrance on any asset now owned or hereafter
acquired or constructed by the Company, or on which an
asset so owned, acquired or constructed is located, to
secure or provide for the payment of any part of the
construction price or cost of improvements of such
asset, and created prior to, contemporaneously with or
within 180 days after, such construction or
improvement; and
(f) any mortgage, pledge or other lien or
encumbrance not otherwise permitted under this Section
12.07; provided, the aggregate amount of indebtedness
outstanding at any time secured by all such mortgages,
pledges, liens or encumbrances does not exceed the
greater of $25,000,000 or 10% of the consolidated
stockholders' equity of the Company.
Section 12.08. Maintenance of Net Worth.
The consolidated stockholders' equity of the
Company at the end of any fiscal quarter shall not be less
than $100,000,000 (without giving effect to any adjustment
to consolidated stockholders' equity for such fiscal
quarter
pursuant to Financial Accounting Standards Board Statement
of Financial Accounting Standards No. 115); provided that
if
the foregoing covenant is not satisfied for a fiscal
quarter
as a result, in whole or in part, of a change in generally
accepted accounting principles which was implemented by the
Company during such fiscal quarter, the Company shall not
be
in default of the foregoing covenant unless and until such
covenant is not satisfied as of the last day of the fourth
fiscal quarter following the fiscal quarter in which the
change in generally accepted accounting principles was
implemented by the Company; and provided further that this
Section 12.08 shall cease to be effective from and after
the
first date on which the Notes are rated BBB- or higher by
S&P and Baa3 or higher by Moody's or such other comparable
ratings as such Rating Agencies shall designate at any time
in the future."
Section 2.4. Amendment to Section 12.09. The current
Section 12.09 of the Indenture is hereby renumbered to become
Section 12.10 of the Indenture and the following Section 12.09
is
hereby inserted immediately following Section 12.08:
"Section 12.09. Maintenance of a Consolidated
Fixed Charge Coverage Ratio.
The Company shall maintain a Consolidated Fixed
Charge Coverage Ratio for the Company of at least 1.75:1.0;
provided that if the foregoing covenant is not satisfied
for
a period as a result, in whole or in part, of a change in
generally accepted accounting principles which was
implemented by the Company during the last fiscal quarter
of
such period, the Company shall not be in default of the
foregoing covenant unless and until such covenant is not
satisfied at the end of the twelve-month period ended as of
the last day of the fourth fiscal quarter following the
fiscal quarter in which the change in generally accepted
accounting principles was implemented by the Company; and
provided further that this Section 12.09 shall cease to be
effective from and after the first date on which the Notes
are rated BBB- or higher by S&P and Baa3 or higher by
Moody's or such other comparable ratings as such Rating
Agencies shall designate at any time in the future."
Section 2.5. Ranking. The Notes will be senior
unsecured obligations of the Company, ranking pari passu with
all
existing and future senior indebtedness (including, without
limitation, the indebtedness of the Company represented by the
notes and debentures referred to in Section 6.08 (c)(1) of the
Indenture) of the Company and senior to all existing and future
subordinated indebtedness of the Company.
Section 2.6. Terms of the Notes. In accordance
with Section 3.01 of the Indenture, the Notes are subject to the
terms set forth in this Second Supplemental Indenture including
without limitation Exhibit A hereto, the terms of which are
hereby incorporated in their entirety by reference. In addition
to the other terms of the Notes which are set forth elsewhere in
this Second Supplemental Indenture and Exhibit A hereto, the
Notes are subject to all of the provisions of the Indenture
including, without limitation, the Company's legal defeasance
option and covenant defeasance option pursuant to Section 15.02
of the Indenture. For purposes of Section 15.02 of the
Indenture, the restrictive covenants referred to therein shall
include the covenants set forth in Article Two of this Second
Supplemental Indenture.
ARTICLE THREE
Miscellaneous
Section 3.1. Defined Terms. Unless otherwise provided
in this Second Supplemental Indenture, all defined terms used in
this Second Supplemental Indenture shall have the meanings
assigned to them in the Indenture.
Section 3.2. Conflict of Any Provision of Indenture
with Trust Indenture Act of 1939. If and to the extent that any
provision of this Second Supplemental Indenture limits,
qualifies
or conflicts with another provision included in this Second
Supplemental Indenture or in the Indenture which is required to
be included herein or therein by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, as amended, such
required provision shall control.
Section 3.3. New York Law to Govern. THIS SECOND
SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE DEEMED TO BE
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW
YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES OF SAID STATE.
Section 3.4. Counterparts. This Second Supplemental
Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 3.5. Effect of Headings. The Article and
Section headings herein are for convenience only and shall not
affect the construction hereof.
Section 3.6. Severability of Provisions. In case any
provision in this Second Supplemental Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall
not
in any way be affected or impaired thereby.
Section 3.7. Successors and Assigns. All covenants
and agreements in this Second Supplemental Indenture by the
parties hereto shall bind their respective successors and
assigns
and inure to the benefit of their respective successors and
assigns, whether so expressed or not.
Section 3.8. Benefit of Supplemental Indenture.
Nothing in this Second Supplemental Indenture, express or
implied, shall give to any Person, other than the parties
hereto,
any Security Registrar, any Paying Agent and their successors
hereunder, and the Holders of the Notes, any benefit or any
legal
or equitable right, remedy or claim under this Second
Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused
this
Second Supplemental Indenture to be duly executed, all as of the
day and year first above written.
UNITED COMPANIES FINANCIAL CORPORATION
By: /s/ Dale E. Redman
Name: Dale E. Redman
Title: Executive Vice President &
Chief Financial Officer
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ Barbara G. Grosse
Name: Barbara G. Grosse
Title: Assistant Vice President
and Assistant Secretary
EXHIBIT
A
[FORM OF FACE OF NOTE]
UNITED COMPANIES FINANCIAL CORPORATION
7% Senior Notes due July 15, 1998
REGISTERED
REGISTERED
No. R-___
CUSIP 909870 AB 3
If this Note is registered in the name of The
Depository Trust Company (the "Depositary") (55 Water
Street, New York, New York) or its nominee, this Note
may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of
such successor Depositary, unless and until this Note
is exchanged in whole or in part for Notes in
definitive form. Unless this certificate is presented
by an authorized representative of the Depositary to
the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other
name
as requested by an authorized representative of the
Depositary (and any payment is made to Cede & Co. or
to
such other entity as is requested by an authorized
representative of the Depositary), ANY TRANSFER,
PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY
PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co. has an interest herein.
UNITED COMPANIES FINANCIAL CORPORATION, a corporation
duly organized and validly existing under the laws of the State
of Louisiana (herein called the "Company", which term includes
any successor corporation under the Indenture, as defined on the
reverse side hereof), for value received hereby promises to pay
to CEDE & CO., or registered assigns, the principal sum of
$ ( ) on July 15, 1998 in
such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public
and private debts, and to pay interest, semi-annually on January
15 and July 15 of each year, commencing January 15, 1996, on
said
principal sum in like coin or currency, at the rate per annum
specified in the title of this Note, from the January 15 or July
15, as the case may be, next preceding the date of this Note to
which interest has been paid or duly provided for, unless the
date hereof is a date to which interest has been paid or duly
provided for, in which case from the date of this Note, or
unless
no interest has been paid or duly provided for on the Notes, in
which case from July 25, 1995, until payment of said principal
sum has been made or duly provided for. Notwithstanding the
foregoing, if the date hereof is after any January 1 or July 1,
as the case may be, and before the following January 15 or July
15, this Note shall bear interest from such January 15 or July
15. The interest so payable on January 15 or July 15 will be
paid to the Person in whose name this Note is registered at the
close of business on the Regular Record Date, which shall be the
January 1 or July 1 (whether or not a Business Day) next
preceding such January 15 or July 15, provided that any such
interest not punctually paid or duly provided for shall be
payable as provided in the Indenture.
Payment of the principal of, and premium, if any, on,
this Note will be made in immediately available funds upon
surrender of the Notes at the Corporate Trust Office of the
Trustee. Interest will be paid by check mailed to the address
of
the Person entitled thereto as it appears in the Security
Register on the applicable Regular Record Date or, at the option
of the Company, by wire transfer to an account maintained by
such
Person with a bank located in the United States.
THIS NOTE SHALL BE DEEMED A CONTRACT UNDER THE LAWS OF
THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED
IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to herein by manual
signature, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated: July 25, 1995
TRUSTEE'S CERTIFICATE OF UNITED COMPANIES
FINANCIAL
AUTHENTICATION CORPORATION
This is one of the series of
Debt Securities issued under
the within mentioned
Indenture.
By__________________________
Title:
THE FIRST NATIONAL BANK OF
CHICAGO
As Trustee Attest
By___________________________
By__________________________
Title: Title:
[REVERSE SIDE OF NOTE]
UNITED COMPANIES FINANCIAL CORPORATION
7% Senior Notes Due July 15, 1998
This Note is one of a duly authorized issue of Debt
Securities of the Company designated as its 7% Senior Notes due
July 15, 1998 (herein called the "Notes"), limited in aggregate
principal amount to $100,000,000, issued and to be issued under
an Indenture dated as of October 1, 1994, as amended and
supplemented by the First Supplemental Indenture dated as of
November 2, 1994, and the Second Supplemental Indenture dated as
of July 25, 1995 (herein called the "Indenture"), between the
Company and The First National Bank of Chicago, as trustee
(herein called the "Trustee," which term includes any successor
Trustee under the Indenture), to which Indenture reference is
hereby made for a statement of the respective rights of the
Company, the Trustee and the Holders of the Notes, and the terms
upon which the Notes are, and are to be, authenticated and
delivered.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may be
registered on the Security Register relating to the Notes, upon
surrender of this Note for registration of transfer at the
office
or agency of the Company maintained for such purpose, and
thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount with like terms and
conditions, will be issued to the designated transferee.
The Notes are issuable only as registered Notes
without
Coupons in the denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture, and subject to certain
limitations therein set forth, the Notes are exchangeable for a
like aggregate principal amount of Notes with like terms and
conditions of different authorized denominations, as requested
by
the Holder surrendering the same.
Except as otherwise provided in the Indenture, no
service charge will be made for any such registration of
transfer
or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith.
Prior to due presentment for registration of transfer
of this Note, the Company, the Trustee and any agent of the
Company or the Trustee may treat the person in whose name this
Note is registered as the owner hereof for the purpose of
receiving payment as herein provided and for all other purposes,
whether or not this Note be overdue, and neither the Company,
the
Trustee nor any such agent shall be affected by notice to the
contrary.
If an Event of Default shall occur with respect to the
Notes, the principal of all the Notes, plus accrued and unpaid
interest, may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture contains provisions permitting the
Company and the Trustee, with the written consent of the Holders
of not less than a majority in principal amount of the
Outstanding Debt Securities of each series affected by such
supplemental indenture, voting separately, to enter into
supplemental indentures for the purpose of adding any provisions
to or changing in any manner or eliminating any of the
provisions
of the Indenture or of modifying in any manner the rights of the
Holders under the Indenture of such Debt Securities, or Coupons,
if any; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding
Debt
Security of each such series affected thereby, (i) change the
Stated Maturity of the principal of, or installment of interest,
if any, on, any Debt Security, or reduce the principal amount
thereof, or the interest thereon or any premium payable upon
redemption thereof, or change the Stated Maturity of or reduce
the amount of any payment to be made regarding any Coupon, or
change the Currency or Currencies of the payment of principal of
(and premium, if any) or interest on such Debt Security is
denominated or payable, or reduce the amount of the principal of
a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity, or adversely affect
the right of repayment or repurchase, if any, at the option of
the Holder, or reduce the amount of, or postpone the date fixed
for, any payment under any sinking fund, or impair the right to
institute suit for the enforcement of any payment on or after
the
Stated Maturity thereof, or (ii) reduce the percentage in
principal amount of Outstanding Debt Securities of any series,
the Holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions
permitting the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of any series, on
behalf of the Holders of all the Debt Securities of any such
series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults or Event
of
Default under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive
and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Note at the times,
place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the
principal of or the interest on this Note, or any part thereof,
or of indebtedness represented hereby, or upon any obligation,
covenant or agreement of the Indenture or any indenture
supplemental thereto, against any incorporator, or against any
stockholder, officer or director, as such, past, present or
future, of the Company or any predecessor or successor
corporation, either directly or indirectly through the Company,
or any such predecessor or successor corporation whether by
virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that the Indenture or any
indenture supplemental thereto and this Note are solely
corporate
obligations, and that no personal liability whatsoever shall
attach to, or be incurred by, any such incorporator,
stockholder,
officer or director, past, present or future, of the Company or
any predecessor or successor corporation, either directly or
indirectly through the Company or any such predecessor or
successor corporation, because of the indebtedness authorized
under the Indenture or under or by reason of any of the
obligations, covenants, promises or agreements contained in the
Indenture or in this Note or to be implied therefrom or
herefrom;
and that any such personal liability, by the acceptance hereof
and as part of the consideration for the issue hereof, is
expressly waived and released.
All terms used in this Note which are defined in this
Note shall have the meanings assigned to them in the Indenture.
The following abbreviations, when used in the
inscription on the face of the within Note, shall be construed
as
though they were written out in full according to applicable
laws
and regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entirety
JT TEN -- as joint tenants with right of
survivorship
and not as tenants in common
UNIF GIFT
MIN ACT -- _______________ Custodian
_________________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_________________________
(State)
Additional abbreviations may also be used though not
in
the above list.
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
+-------------------------------------+
| |
| |
| |
+-------------------------------------+
(Name and Address of Assignee, including zip code)
the within Note, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney
to transfer said Note on the books of the Company, with full
power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the face of the
within Note in every particular, without alteration or
enlargement or any change whatever and must be guaranteed.
EXHIBIT
4.12
UNITED COMPANIES FINANCIAL CORPORATION
7% Senior Notes due July 15, 1998
REGISTERED
REGISTERED
No. R-1
CUSIP 909870 AB 3
If this Note is registered in the name of The
Depository Trust Company (the "Depositary") (55 Water
Street, New York, New York) or its nominee, this Note
may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of
such successor Depositary, unless and until this Note
is exchanged in whole or in part for Notes in
definitive form. Unless this certificate is presented
by an authorized representative of the Depositary to
the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other
name
as requested by an authorized representative of the
Depositary (and any payment is made to Cede & Co. or
to
such other entity as is requested by an authorized
representative of the Depositary), ANY TRANSFER,
PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY
PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co. has an interest herein.
UNITED COMPANIES FINANCIAL CORPORATION, a corporation
duly organized and validly existing under the laws of the State
of Louisiana (herein called the "Company", which term includes
any successor corporation under the Indenture, as defined on the
reverse side hereof), for value received hereby promises to pay
to CEDE & CO., or registered assigns, the principal sum of
$ ( ) on July 15, 1998 in
such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public
and private debts, and to pay interest, semi-annually on January
15 and July 15 of each year, commencing January 15, 1996, on
said
principal sum in like coin or currency, at the rate per annum
specified in the title of this Note, from the January 15 or July
15, as the case may be, next preceding the date of this Note to
which interest has been paid or duly provided for, unless the
date hereof is a date to which interest has been paid or duly
provided for, in which case from the date of this Note, or
unless
no interest has been paid or duly provided for on the Notes, in
which case from July 25, 1995, until payment of said principal
sum has been made or duly provided for. Notwithstanding the
foregoing, if the date hereof is after any January 1 or July 1,
as the case may be, and before the following January 15 or July
15, this Note shall bear interest from such January 15 or July
15. The interest so payable on January 15 or July 15 will be
paid to the Person in whose name this Note is registered at the
close of business on the Regular Record Date, which shall be the
January 1 or July 1 (whether or not a Business Day) next
preceding such January 15 or July 15, provided that any such
interest not punctually paid or duly provided for shall be
payable as provided in the Indenture.
Payment of the principal of, and premium, if any, on,
this Note will be made in immediately available funds upon
surrender of the Notes at the Corporate Trust Office of the
Trustee. Interest will be paid by check mailed to the address
of
the Person entitled thereto as it appears in the Security
Register on the applicable Regular Record Date or, at the option
of the Company, by wire transfer to an account maintained by
such
Person with a bank located in the United States.
THIS NOTE SHALL BE DEEMED A CONTRACT UNDER THE LAWS OF
THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED
IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to herein by manual
signature, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated: July 25, 1995
TRUSTEE'S CERTIFICATE OF UNITED STATES FINANCIAL
AUTHENTICATION CORPORATION
This is one of the series of
Debt Securities issued under
the within mentioned
Indenture.
By /s/ Dale E. Redman
Title: Executive Vice
President and Chief
Financial Officer
THE FIRST NATIONAL BANK OF
CHICAGO
As Trustee Attest
By /s/ Suzanne Mauer By /s/ Sherry E. Anderson
Title: Trust Officer Title: Senior Vice
President
and Secretary
UNITED COMPANIES FINANCIAL CORPORATION
7% Senior Notes Due July 15, 1998
This Note is one of a duly authorized issue of Debt
Securities of the Company designated as its 7% Senior Notes due
July 15, 1998 (herein called the "Notes"), limited in aggregate
principal amount to $100,000,000, issued and to be issued under
an Indenture dated as of October 1, 1994, as amended and
supplemented by the First Supplemental Indenture dated as of
November 2, 1994, and the Second Supplemental Indenture dated as
of July 25, 1995 (herein called the "Indenture"), between the
Company and The First National Bank of Chicago, as trustee
(herein called the "Trustee," which term includes any successor
Trustee under the Indenture), to which Indenture reference is
hereby made for a statement of the respective rights of the
Company, the Trustee and the Holders of the Notes, and the terms
upon which the Notes are, and are to be, authenticated and
delivered.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may be
registered on the Security Register relating to the Notes, upon
surrender of this Note for registration of transfer at the
office
or agency of the Company maintained for such purpose, and
thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount with like terms and
conditions, will be issued to the designated transferee.
The Notes are issuable only as registered Notes
without
Coupons in the denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture, and subject to certain
limitations therein set forth, the Notes are exchangeable for a
like aggregate principal amount of Notes with like terms and
conditions of different authorized denominations, as requested
by
the Holder surrendering the same.
Except as otherwise provided in the Indenture, no
service charge will be made for any such registration of
transfer
or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith.
Prior to due presentment for registration of transfer
of this Note, the Company, the Trustee and any agent of the
Company or the Trustee may treat the person in whose name this
Note is registered as the owner hereof for the purpose of
receiving payment as herein provided and for all other purposes,
whether or not this Note be overdue, and neither the Company,
the
Trustee nor any such agent shall be affected by notice to the
contrary.
If an Event of Default shall occur with respect to the
Notes, the principal of all the Notes, plus accrued and unpaid
interest, may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture contains provisions permitting the
Company and the Trustee, with the written consent of the Holders
of not less than a majority in principal amount of the
Outstanding Debt Securities of each series affected by such
supplemental indenture, voting separately, to enter into
supplemental indentures for the purpose of adding any provisions
to or changing in any manner or eliminating any of the
provisions
of the Indenture or of modifying in any manner the rights of the
Holders under the Indenture of such Debt Securities, or Coupons,
if any; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding
Debt
Security of each such series affected thereby, (i) change the
Stated Maturity of the principal of, or installment of interest,
if any, on, any Debt Security, or reduce the principal amount
thereof, or the interest thereon or any premium payable upon
redemption thereof, or change the Stated Maturity of or reduce
the amount of any payment to be made regarding any Coupon, or
change the Currency or Currencies of the payment of principal of
(and premium, if any) or interest on such Debt Security is
denominated or payable, or reduce the amount of the principal of
a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity, or adversely affect
the right of repayment or repurchase, if any, at the option of
the Holder, or reduce the amount of, or postpone the date fixed
for, any payment under any sinking fund, or impair the right to
institute suit for the enforcement of any payment on or after
the
Stated Maturity thereof, or (ii) reduce the percentage in
principal amount of Outstanding Debt Securities of any series,
the Holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions
permitting the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of any series, on
behalf of the Holders of all the Debt Securities of any such
series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults or Event
of
Default under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive
and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Note at the times,
place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the
principal of or the interest on this Note, or any part thereof,
or of indebtedness represented hereby, or upon any obligation,
covenant or agreement of the Indenture or any indenture
supplemental thereto, against any incorporator, or against any
stockholder, officer or director, as such, past, present or
future, of the Company or any predecessor or successor
corporation, either directly or indirectly through the Company,
or any such predecessor or successor corporation whether by
virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that the Indenture or any
indenture supplemental thereto and this Note are solely
corporate
obligations, and that no personal liability whatsoever shall
attach to, or be incurred by, any such incorporator,
stockholder,
officer or director, past, present or future, of the Company or
any predecessor or successor corporation, either directly or
indirectly through the Company or any such predecessor or
successor corporation, because of the indebtedness authorized
under the Indenture or under or by reason of any of the
obligations, covenants, promises or agreements contained in the
Indenture or in this Note or to be implied therefrom or
herefrom;
and that any such personal liability, by the acceptance hereof
and as part of the consideration for the issue hereof, is
expressly waived and released.
All terms used in this Note which are defined in this
Note shall have the meanings assigned to them in the Indenture.
The following abbreviations, when used in the
inscription on the face of the within Note, shall be construed
as
though they were written out in full according to applicable
laws
and regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entirety
JT TEN -- as joint tenants with right of
survivorship
and not as tenants in common
UNIF GIFT
MIN ACT -- _______________ Custodian
_________________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_________________________
(State)
Additional abbreviations may also be used though not
in
the above list.
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
+-------------------------------------+
| |
| |
| |
+-------------------------------------+
(Name and Address of Assignee, including zip code)
the within Note, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney
to transfer said Note on the books of the Company, with full
power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the face of the
within Note in every particular, without alteration or
enlargement or any change whatever and must be guaranteed.