EXHIBIT 1.2
PROVIDENT FINANCING TRUST I
guaranteed by
PROVIDENT COMPANIES, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(CAPITAL SECURITIES)
March 11, 1998
From time to time, Provident Financing Trust I, a statutory business
trust (the "Trust") created under the Delaware Business Trust Act, Del. Code
Ann. tit. 12 (S) 3801 et seq. (the "Delaware Act"), may enter into one or more
underwriting agreements that provide for the sale of designated securities to
the several underwriters named therein, which designated securities will be
guaranteed by Provident Companies, Inc., a Delaware corporation (the "Company,"
and, together with the Trust, the "Offerors"), and where the Company will act as
depositor of the Trust. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus relating to the
Capital Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the Offered
Securities together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. REPRESENTATIONS AND WARRANTIES. Each of the Offerors represents and
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warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the Registration Statement
and the Prospectus comply, and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder, (iii) the
Trust Agreement, the Guarantee Agreement and the Indenture comply, and, as
amended or supplemented, if applicable, will comply in all material
respects with the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the applicable rules and regulations of the Commission
thereunder, and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain 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 were
made, not misleading, except that the representations and warranties set
forth in this Section 1(b) do not apply to (A) statements or omissions in
the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein or (B) to that
part of the Registration Statement that constitutes the Statements of
Eligibility (Form T-1) under the Trust Indenture Act, of the respective
Trustees.
(c) The documents incorporated by reference in the Registration
Statement or Prospectus, when such documents became effective or were filed
with the Commission, as the case may be, under the Exchange Act, (i)
complied, and any documents so filed and incorporated by reference after
the date of this Agreement will, when they are filed with the Commission,
comply, in all material respects with the Securities Act and the Exchange
Act, as applicable, and the applicable rules and regulations of the
Commission thereunder, and (ii) did not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material
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fact required to be stated therein or necessary to make the statements
therein not misleading.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing 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 to enter
into and perform its obligations under each of the Operative Documents, as
applicable, and to hold the Common Securities issued by the Trust, and to
issue, deliver and perform its obligations under the Junior Subordinated
Debentures; 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 would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(e) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing 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 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 would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; and all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned by the Company either directly or
through another subsidiary of the Company, free and clear of all liens,
encumbrances, equities or claims.
(f) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware Act with the
power and authority to own its property and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under each of the Operative Documents, as applicable, and to issue, deliver
and perform its obligations under the Capital Securities. The Trust is not
a party to or otherwise bound by any material agreement other than those
described in the Prospectus. The Trust is and will, under current law, be
classified for United States federal income tax purposes as a grantor trust
and not as an association taxable as a corporation. The Trust does not
have any consolidated or unconsolidated subsidiaries. The Trust is and
will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles. The Trust is
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not required to be authorized to do business in any jurisdiction other than
the State of Delaware.
(g) This Agreement has been duly authorized, executed and delivered by
the Offerors.
(h) The Trust Agreement has been duly qualified under the Trust
Indenture Act and has been duly authorized and, as of the Closing Date,
will have been executed and delivered by the Company and each of the
Trustees and will be a valid and binding agreement of the Company and each
of the Trustees, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(i) The Guarantee Agreement and the Expenses Agreement have each been
duly authorized and, as of the Closing Date, will have been executed and
delivered by the Company and, in the case of the Expenses Agreement, by the
Trust, and each will be a valid and binding agreement of the Company and,
in the case of the Expenses Agreement, of the Trust, enforceable in
accordance with their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(j) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized and, as of the Closing Date, will have
been, executed and delivered by the Company and will be a valid and binding
agreement of the Company, enforceable in accordance with its terms except
as (i) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(k) The Capital Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Trust
Agreement and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, will be validly issued and,
subject to the terms of the Trust Agreement, fully paid and non-assessable
divided beneficial interests in the assets of the Trust and will conform in
all material respects to the description thereof contained in the
Prospectus. The issuance of the Capital Securities will not be subject to
preemptive or other similar rights.
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(l) The Common Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Trust Agreement
and delivered to and paid for by the Company in accordance with the terms
of the Prospectus, will be validly issued and, subject to the terms of the
Trust Agreement, fully paid undivided beneficial interests in the assets of
the Trust and will conform in all material respects to the description
thereof contained in the Prospectus. The issuance of the Common Securities
will not be subject to preemptive or other similar rights. At the Closing
all of the issued and outstanding Common Securities of the Trust will be
directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, claim, encumbrance or equitable right.
(m) The Junior Subordinated Debentures have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Company in accordance with
the terms of the Prospectus, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their
terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(n) The issuance and sale by the Trust of the Capital Securities and
the Common Securities and the execution and delivery by the Trust of, and
the performance by the Trust of its obligations under, the Operative
Documents do not and will not contravene any provision of applicable law,
the Trust Agreement or the certificate of trust of the Trust, or any
agreement or other instrument binding upon the Trust, that is material to
the Trust, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Trust, and no consent,
approval, authorization or order of, any governmental body or agency is
required for the performance by the Trust of its obligations under the
Operative Documents, Capital Securities or Common 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 Capital Securities and the
Common Securities.
(o) The execution and delivery by the Company and the Trust of, and
the performance by the Company and the Trust of their respective
obligations under, the Operative Documents, the Capital Securities and the
Junior Subordinated Debentures, as applicable, do not and will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or organizational documents of the
Trust, as applicable, or any
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agreement or other instrument binding upon the Company or any of its
subsidiaries or upon the Trust that is material to the Company and its
subsidiaries, taken as a whole, or to the Trust, as applicable or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary or the Trust, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
or the Trust of its respective obligations under the Operative Documents or
the Junior Subordinated Debentures, 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 Junior Subordinated Debentures.
(p) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Trust or the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus.
(q) There are no legal or governmental proceedings pending or
threatened to which the Trust or the Company or any of its subsidiaries is
a party or to which any of the properties of the Trust or the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that
are not described, filed or incorporated as required.
(r) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(s) Neither the Company nor the Trust is an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(t) The Trust and the Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under
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applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a material adverse
effect on the Trust or the Company and its subsidiaries, taken as a whole.
(u) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Trust or the Company and its subsidiaries, taken as a whole.
(v) The Trust and the Company have complied with all provisions of
Section 517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
2. OFFERING. The Company is advised by the Manager that the Underwriters
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propose to make a public offering of their respective portion of the Capital
Securities as soon after this Agreement has been entered into as in the
Manager's judgment is advisable. The terms of the public offering of the
Capital Securities are set forth in the Prospectus.
3. PURCHASE AND DELIVERY. Except as otherwise provided in this Section 3,
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payment for the Capital Securities shall be made to the Trust in Federal or
other immediately available funds at the time and place set forth in the
Underwriting Agreement, upon delivery to the Manager for the respective accounts
of the several Underwriters of the Capital Securities registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Capital Securities to the
Underwriters duly paid.
Delivery on the Closing Date of any Capital Securities that are in bearer
form shall be effected by delivery of a single temporary global debt security
without coupons evidencing the Capital Securities in the name of The Depository
Trust Company or its nominee.
4. CONDITIONS TO CLOSING. The several obligations of the Underwriters are
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subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
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(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's or
the Trust's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, or the Trust from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in the
judgment of the Manager, is material and adverse and that makes it, in
the judgment of the Manager, impracticable to market the Capital
Securities on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company and an Administrative Trustee of the Trust, to the effect set
forth in clause (a)(i) above and to the effect that the representations and
warranties of the Company and the Trust, as the case may be, contained in
this Agreement are true and correct as of the Closing Date and that each of
the Company and the Trust has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer and Administrative Trustee signing and delivering such
certificates may rely upon the best of his or her knowledge as to
proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Alston & Bird LLP, outside counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit A-1 hereto.
(d) The Underwriters shall have received on the Closing Date an
opinion of Alston & Bird LLP, special tax counsel for the Company, dated
the Closing Date, to the effect set forth in Exhibit A-2 hereto.
(e) The Underwriters shall have received on the Closing Date an
opinion of F. Dean Copeland, Executive Vice President and General Counsel
of the Company, dated the Closing Date, to the effect set forth in Exhibit
B hereto.
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(f) The Underwriters shall have received an opinion, dated the Closing
Date, of Seward & Kissel, counsel to the Property Trustee, to the effect
set forth in Exhibit C hereto.
(g) The Underwriters shall have received an opinion, dated the Closing
Date, of Morris, James, Hitchens & Williams, counsel to the and Delaware
Trustee, to the effect set forth in Exhibit D hereto.
(h) The Underwriters shall have received an opinion, dated the Closing
Date, of Richards, Layton & Finger, P.A., special Delaware counsel to the
Company and the Trust, to the effect set forth in Exhibit E hereto.
(i) The Underwriters shall have received on the Closing Date an
opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel for the
Underwriters, dated the Closing Date, to the effect set forth in Exhibit F
hereto.
(j) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters,
from Ernst & Young LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus; provided that the
letter delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
(k) Prior to the Closing Date, the Company shall have furnished to the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably request in connection with the offering of the
Capital Securities.
5. COVENANTS OF THE OFFERORS. In further consideration of the agreements
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of the Underwriters herein contained, the Offerors covenant with each
Underwriter as follows:
(a) To furnish the Manager, without charge, two signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request.
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(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Capital Securities, to furnish to the
Manager a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the public offering
of the Capital Securities as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist 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, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses the Manager will
furnish to the Company) to which the Capital Securities may have been sold
by the Manager on behalf of the Underwriters 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 amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Capital Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to maintain such qualification for as long as
the Manager shall reasonably request.
(e) To make generally available to the Company's security holders and
to the Manager as soon as practicable an earning statement covering a
twelve-month period beginning on the first day of the first full fiscal
quarter after the date of this Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder. If such fiscal quarter is
the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of
the period covered thereby and in all other cases shall be made available
not later than 45 days after the close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or
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otherwise dispose of any Capital Securities, any other beneficial interest
in the assets of the Trust, or any other securities of the Trust or any
other similar trust affiliated with the Guarantor which are substantially
similar to the Capital Securities, or any securities convertible into or
exchangeable for the Capital Securities, without the prior written consent
of the Manager.
(g) To use its reasonable efforts to permit the Capital Securities
and, if distributed to the holders of Capital Securities directly, the
Junior Subordinated Debentures to be eligible for clearing through The
Depository Trust Company.
(h) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Offerors' counsel and accountants, the Trustees and any counsel in
connection with the preparation, registration issuance and delivery of the
Capital Securities under the Securities Act and all other fees or expenses
in connection with the preparation and filing of the Registration Statement
and the Prospectus and all amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers,
in the quantities hereinabove specified; (ii) the preparation, issuance and
delivery of the Capital Securities; (iii) the fees, disbursements and
expenses of the Offerors' counsel, the Trustees and any counsel in
connection with the preparation of the Operative Documents and other
documents related to the preparation, registration, issuance and delivery
of the Capital Securities; (iv) the qualification of the Capital Securities
under state securities or Blue Sky laws in accordance with the provisions
of Section 6(d), including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with
the preparation of any Blue Sky Memoranda; (v) the printing and delivery to
the Underwriters of copies of any Blue Sky Memoranda; (vi) any fees charged
by rating agencies for the rating of the Capital Securities; (vii) all
filing fees, reasonable fees and disbursements of counsel to the
Underwriters incurred with respect to any filing with the National
Association of Securities Dealers, Inc. made in connection with the Capital
Securities; (viii) the costs and charges of any transfer agent, registrar
or depositary; (ix) any expenses incurred by the Offerors in connection
with a "road show" presentation to potential investors; and (x) all other
costs and expenses incident to the performance of the obligations of the
Offerors hereunder for which provision is not otherwise made in this
Section 5. It is understood, however, that except as provided in this
Section 5,
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Section 6 entitled "Indemnity and Contribution," and the last paragraph of
Section 8 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes
payable on resale of any of the Capital Securities by them and any
advertising expenses connected with any offers they may make.
6. INDEMNIFICATION AND CONTRIBUTION.
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(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal
or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Offerors, their respective directors, and officers
who sign the Registration Statement and each person, if any, who controls
either of the Offerors within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Offerors to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through the Manager expressly for
use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either paragraph (a) or (b) of this Section 6, such
person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request
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of the indemnified party, shall retain counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for all such indemnified parties and that all such fees and expenses shall
be reimbursed as they are incurred. Such firm shall be designated in
writing by the Manager, in the case of parties indemnified pursuant to
paragraph (a) above, and by the Offerors, in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement. 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.
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(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on
the one hand and the Underwriters on the other hand from the offering of
the Capital Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Offerors on the one hand and
of the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Offerors on the one hand and the Underwriters on the other
hand in connection with the offering of the Capital Securities shall be
deemed to be in the same respective proportions as the net proceeds from
the offering of the Capital Securities (before deducting expenses) received
by the Offerors and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Capital Securities. The relative fault of the Offerors on the
one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Offerors or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant
to this Section 6 are several in proportion to the respective principal
amounts of Capital Securities they have purchased hereunder, and not joint.
(e) The Offerors and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 6 were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) of
this Section 6. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to
14
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Capital
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of the
Offerors contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of either of the Offerors,
any of their respective officers or directors or any person controlling
either of the Offerors and (iii) acceptance of and payment for any of the
Capital Securities.
7. TERMINATION. This Agreement shall be subject to termination by notice
-----------
given by the Manager to the Company, if (a) after the execution and delivery of
the Underwriting Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, and the
National Association of Securities Dealers, Inc. (ii) trading of any securities
of the Company shall have been suspended on any exchange or in any over-the-
counter market, (iii) a general moratorium on commercial banking activities in
New York shall have been declared by either Federal or New York State
authorities or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of the Manager, is material and adverse and (b) in the case of
any of the events specified in clauses (a)(i) through (iv), such event, singly
or together with any other such event, makes it, in the judgment of the Manager,
impracticable to market the Capital Securities on the terms and in the manner
contemplated in the Prospectus.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or more of
-----------------------
the Underwriters shall fail or refuse to purchase Capital Securities that it has
or they have agreed to purchase on
15
such date, and the aggregate number of Capital Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Capital Securities to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions that the number of Capital Securities set forth opposite their
respective names in the Underwriting Agreement bears to the aggregate number of
Capital Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Capital Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
--------
that in no event shall the number of Capital Securities that any Underwriter has
agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 8 by an amount in excess of one-ninth of such number of Capital
Securities without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Capital
Securities and the aggregate number of Capital Securities with respect to which
such default occurs is more than one-tenth of the aggregate number of Capital
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Capital Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either the Manager or the Company shall have the right to postpone the
Closing Date but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company or the Trust to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company or the Trust shall be unable to perform their
respective obligations under this Agreement, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering of the Capital
Securities.
9. COUNTERPARTS. This Agreement may be signed in three or more
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
16
10. APPLICABLE LAW. This Agreement shall be governed by and construed in
--------------
accordance with the internal laws of the State of New York.
11. HEADINGS. The headings of the sections of this Agreement have been
--------
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
PROVIDENT FINANCING TRUST I
By:______________________
Name:
Title:
PROVIDENT COMPANIES, INC.
By:______________________
Name:
Title:
Accepted as of the date hereof
MORGAN STANLEY & CO. INCORPORATED
BEAR STEARNS & CO. INCORPORATED
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON
DONALDSON LUFKIN & JENRETTE
SECURITIES CORPORATION
By: Morgan Stanley & Co. Incorporated
By:________________________
Name:
Title:
17
EXHIBIT A-1
Pursuant to Section 4(c) of the Agreement, Alston & Bird LLP, outside
counsel for the Company, shall provide to the Underwriters on the Closing Date
an opinion, dated the Closing Date, to the effect that:
1. the Company has been duly incorporated, is validly existing as a
corporation in good standing 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 to enter
into and perform its obligations under each of the Operative Documents, as
applicable, and to hold the Common Securities issued by the Trust, and to
issue, deliver and perform its obligations under the Junior Subordinated
Debentures and the Guarantee Agreement; 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 would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
2. the Agreement has been duly authorized, executed and delivered by
the Company;
3. the Trust Agreement has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and the Trustees and is a valid and binding agreement of the
Company and the Trustees, enforceable in accordance with its terms except
as (i) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability;
4. the Guarantee Agreement and the Expenses Agreement have been duly
authorized, executed and delivered by the Company and are each a valid and
binding agreement of the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
5. the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance
with its terms except as (i) the enforceability thereof may be
1
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
6. the Capital Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Trust
Agreement and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, will be validly issued and,
subject to the terms of the Trust Agreement, fully paid and non-assessable
divided beneficial interests in the assets of the Trust and will conform in
all material respects to the description thereof contained in the
Prospectus. The issuance of the Capital Securities will not be subject to
preemptive or other similar rights;
7. the Common Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Trust Agreement
and delivered to and paid for by the Company in accordance with the terms
of the Prospectus, will be validly issued and, subject to the terms of the
Trust Agreement, fully paid undivided beneficial interests in the assets of
the Trust and will conform in all material respects to the description
thereof contained in the Prospectus. The issuance of the Common Securities
will not be subject to preemptive or other similar rights;
8. the Junior Subordinated Debentures have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Company in accordance with
the terms of the Prospectus, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with its
terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability;
9. the execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Operative Documents, Capital
Securities and the Junior Subordinated Debentures, as applicable, do not
and will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or, to the best of such
counsel's knowledge, any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any subsidiary, and no
consent, approval,
2
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations
under the Operative Documents or the Junior Subordinated Debentures, 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 Junior Subordinated
Debentures;
10. the statements (A) in the Basic Prospectus under the captions
"Description of Debt Securities," "Description of Preferred Securities,"
"Description of Trust Guarantee" and "Plan of Distribution" and in the
Prospectus Supplement under the captions "The Company - Legal Proceedings,"
"Certain Terms of Capital Securities," "Certain Terms of Junior
Subordinated Debentures," "Description of Guarantee," and "Underwriters"
and (B) in the Registration Statement under Item 15, in each case insofar
as such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
11. after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Trust or the
Company or any of its subsidiaries is a party or to which any of the
properties of the Trust or the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described 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 or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required;
12. neither the Company nor the Trust is an "investment company" or
an entity "controlled" by an "investment company" as such terms are defined
in the Investment Company Act of 1940, as amended; and
13. such counsel (A) has no reason to believe that (except for
financial statements and schedules and other financial and statistical data
included therein, as to which such counsel need not express any belief, and
except for that part of the Registration Statement that constitutes the
Form T-1 heretofore referred to) each part of the Registration Statement,
when such part became effective, contained any untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
(B) is of the opinion that the Registration Statement and Prospectus
(except for financial statements and schedules and other financial and
statistical data included therein, as to which such counsel need not
express any opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (C) has no reason to believe that (except for financial
statements and schedules and other financial and statistical data
3
included therein as to which such counsel need not express any belief) the
Prospectus as of the date such opinion is delivered contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
4
EXHIBIT A-2
Pursuant to Section 4(d) of the Agreement, Alston & Bird LLP, special tax
counsel for the Company, shall provide to the Underwriters on the Closing Date
an opinion, dated the Closing Date, to the effect that:
1. the statements of law or legal conclusions and opinions set forth
under the section entitled "Certain Federal Income Tax Consequences" in the
Prospectus Supplement, subject to the assumptions and conditions described
therein.
1
EXHIBIT B
Pursuant to Section 4(e) of the Agreement, F. Dean Copeland, Executive Vice
President and General Counsel of the Company, shall provide to the Underwriters
on the Closing Date an opinion, dated the Closing Date, to the effect that:
1. the Company has been duly incorporated, is validly existing as a
corporation in good standing 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 to enter
into and perform its obligations under each of the Operative Documents, as
applicable, and to hold the Common Securities issued by the Trust, to
issue, deliver and perform its obligations under the Junior Subordinated
Debentures and the Guarantee Agreement; 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 would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
2. each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing 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 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 would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; and all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned by the Company either directly or
through another subsidiary of the Company, free and clear of all liens,
encumbrances, equities or claims;
3. the Agreement has been duly authorized, executed and delivered by
the Company;
4. the execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Operative Documents, Capital
Securities and the Junior Subordinated Debentures, as applicable, do not
and will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company
1
and its subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under the Operative Documents
or the Junior Subordinated Debentures, 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 Junior Subordinated Debentures;
5. On the Closing Date all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, claim, encumbrance
or equitable right;
6. the statements (A) in the Basic Prospectus under the caption
"Business - Regulation" and in the Prospectus Supplement under the captions
"The Company - Regulation," (B) in "Item 3 - Legal Proceedings" of the
Company's most recent annual report on Form 10-K incorporated by reference
in the Prospectus and (C) in "Item 1 - Legal Proceedings" of Part II of the
Company's quarterly reports on Form 10-Q, if any, filed since such annual
report, insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
7. after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Trust or
Company or any of its subsidiaries is a party or to which any of the
properties of the Trust or the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described 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 or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required;
8. the Trust and the Company and its subsidiaries (A) are in
compliance with any and all applicable Environmental Laws, (B) have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and
(C) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the
2
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Trust and
the Company and its subsidiaries, taken as a whole; and
9. such counsel (A) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and schedules and other
financial and statistical data included therein, as to which such counsel
need not express any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (B) has no reason to believe that
(except for financial statements and schedules and other financial and
statistical data included therein, as to which such counsel need not
express any belief, and except for that part of the Registration Statement
that constitutes the Form T-1 heretofore referred to) each part of the
Registration Statement, when such part became effective, contained any
untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (C) is of the opinion that the Registration
Statement and Prospectus (except for financial statements and schedules and
other financial and statistical data included therein, as to which such
counsel need not express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (D) has no reason to believe that (except
for financial statements and schedules and other financial and statistical
data included therein as to which such counsel need not express any belief)
the Prospectus as of the date such opinion is delivered contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
3
EXHIBIT C
Pursuant to Section 4(f) of the Agreement, counsel to Property Trustee,
Guarantee Trustee and Indenture Trustee (collectively the "Trustee") shall
provide to the Underwriters on the Closing Date an opinion, dated the Closing
Date, to the effect that:
1. The Trustee is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the
State of New York.
3. The Indenture Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture, and has
taken all necessary corporate action to authorize the execution, delivery
and performance by it of the Indenture.
4. The Guarantee Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Guarantee Agreement,
and has taken all necessary corporate action to authorize the execution,
delivery and performance by it of the Guarantee Agreement.
5. The Property Trustee has the requisite power and authority to
execute and deliver the Trust Agreement, and has taken all necessary
corporate action to authorize the execution and delivery of the Trust
Agreement.
9. The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
10. The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
11. The Junior Subordinated Debentures delivered on the date hereof
have been duly authenticated by the Indenture Trustee in accordance with
the terms of the Indenture.
1
EXHIBIT D
Pursuant to Section 4(g) of the Agreement, Morris, James, Hitchens &
Williams, counsel to the Delaware Trustee shall provide to the Underwriters on
the Closing Date an opinion, dated the Closing Date, to the effect that:
1. The Delaware Trustee is duly incorporated and is validly existing
in good standing as a banking corporation with trust powers under the laws
of the State of Delaware.
2. The Delaware Trustee has the requisite power and authority to
execute and deliver the Trust Agreement, and has taken all necessary
corporate action to authorize the execution and delivery of the Trust
Agreement.
3. The Trust has been duly created, is validly existing as a
statutory business trust in good standing under the Delaware Act with the
power and authority to own its property and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under each of the Operative Documents, as applicable, and to issue, deliver
and perform its obligations under the Capital Securities. The Trust is not
a party to or otherwise bound by any material agreement other than those
described in the Prospectus. The Trust is and will, under current law, be
classified for United States federal income tax purposes as a grantor trust
and not as an association taxable as a corporation. The Trust does not
have any consolidated or unconsolidated subsidiaries. The Trust is and
will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles. The Trust is not required to be
authorized to do business in any jurisdiction other than the State of
Delaware.
4. The Trust Agreement has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and the Trustees and is a valid and binding agreement of the
Company and the Trustees, enforceable in accordance with its terms except
as (i) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
5. The Expenses Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of
1
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
2
EXHIBIT E
Pursuant to Section 4(h) of the Agreement, Richards, Layton & Finger, P.A.,
special Delaware counsel to the Company and the Trust shall provide to the
Underwriters on the Closing Date an opinion, dated the Closing Date, to the
effect that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act and, under the Delaware
Act and the Trust Agreement, has the trust power and authority to conduct
its business, all as described in the Basic Prospectus and the Prospectus
Supplement.
2. The Trust Agreement is a legal, valid and binding agreement of the
Company and the Trustees, and is enforceable against the Company and the
Trustees, in accordance with its terms.
3. Under the Trust Agreement and the Delaware Act, the execution and
delivery of the Operative Documents by the Trust, and the performance by
the Trust of its obligations thereunder, have been duly authorized by all
necessary trust action on the part of the Trust.
4. The Capital Securities have been duly authorized by the Trust
Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, will be fully paid and nonassessable
undivided beneficial interests in the assets of the Trust. The holders of
the Capital Security, as beneficial owners of the Trust, will be entitled
to the same limitation of personal liability extended to stockholders of
private corporation for profit organized under the General Corporation Law
of the State of Delaware. We note that the holders of the Capital Security
may be obligated, pursuant to the Trust Agreement, to (i) provide indemnity
and security in connection with and pay taxes or governmental charges
arising from transfers of Capital Securities Certificates and the issuance
of replacement Capital Securities Certificates, (ii) provide security and
indemnity in connection with requests of or directions to the Property
Trustee to exercise its rights and powers under the Trust Agreement, and
(iii) undertakes as a party litigant to pay costs in any suit for the
enforcement of any right or remedy under the Trust Agreement or against the
Property Trustee, to the extent provided in the Trust Agreement.
5. The Common Securities have been duly authorized by the Trust
Agreement and are duly and validly issued undivided beneficial interests in
the assets of the Trust.
1
6. Under the Trust Agreement and the Delaware Act, the issuance of
the Common Securities is not subject to preemptive rights.
7. The statements in the Basic Prospectus under the captions "The
Provident Trust," "Description of Debt Securities," "Description of
Preferred Securities" and "Description of Trust Guarantee" and the
statements in the Prospectus Supplement under the captions "Certain Terms
of Capital Securities," "Certain Terms of Junior Subordinated Debentures"
and "Description of Guarantee," insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the matters
referred to therein.
8. The issuance and sale by the Trust of the Common Securities, the
execution, delivery and performance by the Trust of the Operative
Documents, the consummation by the Trust of the transactions contemplated
therein and the compliance by the Trust with its obligations thereunder do
not violate (A) the Certificate or the Trust Agreement, (B) any applicable
Delaware law or Delaware administrative regulation, (C) any agreement or
other instrument binding upon the Trust, that is material to the Trust, (D)
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Trust, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the performance by the Trust of its obligations under the
Operative Documents, Capital Securities, Common Securities or Junior
Subordinated Debentures, 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 Capital Securities, Common Securities and Junior Subordinated
Debentures.
9. After due inquiry, limited to, and solely to the extent disclosed
on the Closing Date, the court dockets for active cases of the Court of
Chancery of the State of Delaware in and for New Castle County, Delaware,
of the Superior Court of the State of Delaware in and for Delaware, we do
not know of any legal or governmental proceeding pending against the Trust.
10. No authorization, approval, consent or order of any Delaware
court or Delaware governmental authority or Delaware agency is required to
be obtained by the Trust solely in connection with the issuance and sale of
the Trust Securities.
11. The holders of the Capital Security (other than those holders of
Capital Securities who reside or are
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domiciled in the State of Delaware) will have no liability for income taxes
imposed by the State of Delaware solely as a result of their participation
in the Trust, and the Trust will not be liable for any income tax imposed
by the State of Delaware.
12. The Trust is not a party to or otherwise bound by any material
agreement other than those described in the Prospectus. The Trust is not
required to be authorized to do business in any jurisdiction other than the
State of Delaware.
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Exhibit F
Pursuant to Section 4(i) of the Agreement, LeBoeuf, Lamb, Greene & MacRae,
L.L.P., counsel to the Underwriters, shall provide to the Underwriters on the
Closing Date an opinion, dated the Closing Date, to the effect that:
1. this Agreement has been duly authorized, executed and delivered by
the Offerors;
2. the Trust Agreement has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and the Trustees and is a valid and binding agreement of the
Company and the Trustees, enforceable in accordance with its terms subject
to (a) bankruptcy, insolvency, fraudulent transfer, reorganization,
rehabilitation, moratorium or other similar laws affecting creditors'
rights generally and (b) general principles of equity;
3. each of the Guarantee Agreement and the Expenses Agreement has
been duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable in accordance with its
terms subject to (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, rehabilitation, moratorium or other similar laws affecting
creditors' rights generally and (b) general principles of equity;
4. the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance
with its terms subject to (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, rehabilitation, moratorium or other similar laws affecting
creditors' rights generally and (b) general principles of equity;
5. the Capital Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Trust
Agreement and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, will be validly issued and,
subject to the terms of the Trust Agreement, fully paid and non-assessable
divided beneficial interests in the assets of the Trust and will conform in
all material respects to the description thereof contained in the
Prospectus;
6. the Common Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Trust Agreement
and delivered to and paid for by the Company in accordance with the terms
of the Prospectus, will be validly issued and, subject to the terms
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of the Trust Agreement, fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will conform in all material
respects to the description thereof contained in the Prospectus;
7. the Junior Subordinated Debentures have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Trust in accordance with the
terms of the Prospectus, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws affecting creditors' rights generally and (ii) rights of
acceleration, if any, and the availability of equitable remedies may be
limited by equitable principles of general applicability;
8. the statements in the Prospectus under the captions "Description
of Debt Securities," "Description of Preferred Securities," "Description of
Trust Guarantee" and "Plan of Distribution" and in the Prospectus
Supplement under the captions "Certain Terms of Capital Securities,"
"Certain Terms of Junior Subordinated Debentures," "Description of
Guarantee," and "Underwriters" insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly summarize such matters; and
(v) the Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical data included
or incorporated by reference therein, as to which such counsel need not
express any opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
Nothing has come to the attention of such Counsel (A) that would lead
it to believe that (except for financial statements and schedules and other
financial and statistical data included or incorporated by reference
therein, as to which such counsel need not express any belief and except
for that part of the Registration Statement that constitutes the Form T-1
heretofore referred to) the Registration Statement, at the time it became
effective, 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 (B) would lead it to believe that
(except for financial statements and schedules and other financial and
statistical data included or incorporated by reference therein as to which
such counsel need not express any belief) the Prospectus as of the date
such opinion is delivered contains any untrue
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statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
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UNDERWRITING AGREEMENT
March 11, 1998
Provident Financing Trust I
c/o Provident Companies, Inc.
1 Fountain Square
Chattanooga, TN 37402
Provident Companies, Inc.
1 Fountain Square
Chattanooga, TN 37402
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Provident
Financing Trust I, a statutory business trust (the "Trust") created under the
Delaware Business Trust Act, Del. Code Ann. tit. 12 (S) 3801 et seq. (the
"Delaware Act"), and Provident Companies, Inc., a Delaware corporation (the
"Company," and, together with the Trust, the "Offerors"), as depositor of the
Trust and as guarantor, propose, upon the terms and conditions set forth herein,
to issue and sell 7.405% Capital Securities with an aggregate liquidation amount
equal to $250,000,000 (the "Capital Securities").
The entire proceeds from the sale of the Capital Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
the Trust's common securities (the "Common Securities"), and will be used by the
Trust to purchase an equivalent amount of the Junior Subordinated Debentures
(defined below).
The Capital Securities and Common Securities are to be issued pursuant to
the terms of an Amended and Restated Declaration of Trust dated as of March 11,
1998 (the "Trust Agreement"), among the Company, as depositor, The Chase
Manhattan Bank, a New York banking corporation, as property trustee, ("Property
Trustee"), First Union Trust Company, National Association, a bank organized
under the laws of the United States, as Delaware trustee (the "Delaware
Trustee"), Susan N. Roth and Ralph A. Rogers, Jr., as administrative trustees
(the "Administrative Trustees," and, collectively with the Property Trustee and
the Delaware Trustee, the "Trustees") and the several
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holders from time to time of undivided interests in the assets of the Trust. The
Trust and the Company shall enter into an Agreement as to Expenses and
Liabilities, dated as of March 11, 1998 (the "Expenses Agreement"), pursuant to
which the Company shall pay, under certain circumstances, the Obligations (as
defined in the Expenses Agreement) of the Trust. The Capital Securities will be
guaranteed by the Company on a subordinated basis and subject to certain
limitations with respect to distributions and payments upon liquidation,
redemption or otherwise pursuant to the Provident Guarantee Agreement dated as
of March 11, 1998 (the "Guarantee Agreement"), between the Company and The Chase
Manhattan Bank, as guarantee trustee (the "Guarantee Trustee"). The assets of
the Trust will consist of 7 1/4% Junior Subordinated Deferrable Interest
Debentures, Series A, due March 1, 2038 (the "Junior Subordinated Debentures"),
of the Company which will be issued under a Subordinated Debt Indenture dated as
of March 11, 1998 (the "Indenture"), between the Company and The Chase Manhattan
Bank, as trustee (the "Indenture Trustee"). Under certain circumstances, the
Junior Subordinated Debentures will be distributable to the holders of undivided
beneficial interests in the assets of the Trust. The Indenture, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement and this Agreement may
be referred to herein collectively as the "Operative Documents."
Subject to the terms and conditions set forth or incorporated by
reference herein, the Trust hereby agrees to sell to the several Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from the
Trust the respective principal amounts of Capital Securities set forth below
opposite its name at a purchase price of 7.405% of the principal amount of
Capital Securities, plus accrued interest, if any, from March 16, 1998 to the
date of payment and delivery.
Number of Capital
Name Securities
---- ----------
Morgan Stanley & Co. Incorporated 60,000,000
Bear Stearns & Co. Incorporated 60,000,000
Chase Securities Inc. 60,000,000
Credit Suisse First Boston 60,000,000
Donaldson Lufkin & Jenrette
Securities Corporation 60,000,000
-----------
Total............................... 300,000,000
The Underwriters will pay for the Capital Securities upon delivery
thereof at the offices of LeBoeuf, Lamb, Greene & MacRae, L.L.P. at 125 West
55th Street, New York, New York 10019 at 10:00 a.m. (New York time) on March 16,
1998, or at such other time, not later than 5:00 p.m. (New York time) on March
16, 1998, as shall be designated by the Manager. The time and date of such
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payment and delivery are hereinafter referred to as the "Closing Date."
The Capital Securities shall have the terms set forth in the
Prospectus dated May 22, 1997 and the Prospectus Supplement dated March 11,
1998, including the following:
Terms of Capital Securities
Maturity Date: March 1, 2038
Interest Rate: 7.405%
Redemption Provisions: The Capital Securities will be subject to
mandatory redemption in whole, but not in
part, (i) at the Stated Maturity (as defined
in the Prospectus) upon repayment of the
Junior Subordinated Debentures or (ii) at
any time within 90 days following the
occurrence and continuation of a Tax Event
or Investment Company Event (each as defined
in the Prospectus), in each case at the
applicable redemption price.
Distribution Dates: March 15 and September 15 of each year,
commencing September 15, 1998.
Form and Denomination: The Capital Securities will be issued in the
form of global securities in the aggregate
principal amount of $300,000,000.
Price to Public: $1,000 per share
Gross Spread: $10 per share
Dealer Concession: $6.00 per share
Reallowance Concession: $2.50 per share
All provisions contained in the document entitled Provident Financing
Trust I guaranteed by Provident Companies, Inc. Underwriting Agreement Standard
Provisions (Capital Securities) dated March 11, 1998, a copy of which is
attached hereto, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same
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extent as if such provisions had been set forth in full herein, except that (i)
if any term defined in such document is otherwise defined herein, the definition
set forth herein shall control, (ii) all references in such document to a type
of security that is not an Capital Security shall not be deemed to be a part of
this Agreement and (iii) all references in such document to a type of agreement
that has not been entered into in connection with the transactions contemplated
hereby shall not be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
BEAR STEARNS & CO. INCORPORATED
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON
DONALDSON LUFKIN & JENRETTE
SECURITIES CORPORATION
By: Morgan Stanley & Co. Incorporated
By:________________________
Name:
Title:
Accepted as of the date hereof:
PROVIDENT FINANCING TRUST I
By:______________________
Name:
Title:
PROVIDENT COMPANIES, INC.
By:______________________
Name:
Title:
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