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EXHIBIT 1
Draft of December 5, 1996
MBNA CAPITAL I
MBNA CAPITAL II
MBNA CAPITAL III
MBNA CAPITAL IV
MBNA CAPITAL V
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH IN THE GUARANTEES BY
MBNA CORPORATION
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Underwriting Agreement
December ___, 1996
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described.
Dear Sirs:
From time to time MBNA Capital I, MBNA Capital II, MBNA Capital III, MBNA
Capital IV or MBNA Capital V, each a statutory business trust formed under the
laws of the State of Delaware (each a "Trust" and collectively, the "Trusts"),
and MBNA Corporation, a Maryland corporation (the "Company"), as depositor of
each trust and as guarantor, propose to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine, and, subject
to the terms and conditions stated herein and therein, that the Trust
identified in the applicable Pricing Agreement (such Trust being the
"Designated Trust" with respect to such Pricing Agreement) issue and sell to
the firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its preferred securities (the
"Securities") representing undivided beneficial interests in the assets of the
Designated Trust. The Securities specified in Schedule II to such Pricing
Agreement are referred to as the "Firm Designated Securities" with respect to
such Pricing Agreement. If specified in such Pricing Agreement, the Designated
Trust may grant to the Underwriters the right to purchase at their election an
additional number of Securities, specified in such Pricing Agreement as
provided in Section 3 hereof (the "Optional Designated Securities"). The Firm
Designated Securities and any Optional Designated Securities are collectively
called the "Designated Securities." The proceeds of the sale of the Designated
Securities to the public and of common securities of the Designated Trust (the
"Common Securities") to the Company concurrently with the sale of the
Designated Securities are to be invested in junior subordinated deferrable
interest debentures of the Company
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(the "Subordinated Debentures") identified in the Pricing Agreement with
respect to such Designated Securities (with respect to such Pricing Agreement,
the "Designated Subordinated Debentures"), to be issued pursuant to a junior
subordinated indenture to be dated as of December [__], 1996 (the "Indenture")
between the Company and The Bank of New York, as trustee. The Designated
Securities may be exchangeable into Designated Subordinated Debentures, as
specified in Schedule II to such Pricing Agreement. The Designated Securities
will be guaranteed by the Company to the extent set forth in the Pricing
Agreement with respect to such Designated Securities (the "Designated
Guarantee") (all such Designated Guarantees together, the "Guarantees").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the amended and restated trust agreement identified in such Pricing
Agreement (with respect to such Pricing Agreement, the "Trust Agreement").
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated Securities
in the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of any Trust to sell any of
the Securities or as an obligation of any of the Underwriters to purchase any
of the Securities. The obligation of any Trust to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate number of the Firm Designated Securities, the maximum number of
Optional Designated Securities, if any, the initial public offering price of
such Firm and Optional Designated Securities or the manner of determining such
price, the terms of the Designated Securities, including the terms on which and
terms of the securities into which the Designated Securities will be
exchangeable, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, the number of such
Designated Securities to be purchased by each Underwriter and the commission,
if any, payable to the Underwriters with respect thereto and shall set forth
the date, time and manner of delivery of such Firm and Optional Designated
Securities, if any, and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
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2. The Designated Trust and the Company, jointly and severally, each
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333- ) (the
"Initial Registration Statement") in respect of the Securities, the
Subordinated Debentures and the Guarantees (including the Designated
Securities, the Designated Subordinated Debentures and the Designated
Guarantees) has been filed with the Securities and Exchange Commission
(the "Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus included therein, to the Representatives for
each of the other Underwriters has been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed, or
transmitted for filing, with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) under the Act is hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement and the rule 462(b)
Registration Statement, if any, including (i) the information contained in
the form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial Registration
Statement at the time it was declared effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, (ii) all exhibits thereto and (iii) the documents incorporated
by reference in the prospectus contained in the registration statement at
the time such part of the registration statement became effective but
excluding Forms T-1, each as amended at the time such part of the
registration statement became effective, being hereinafter collectively
called the "Registration Statement"; the prospectus relating to the
Securities, the Subordinated Debentures and the Guarantees, in the form in
which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter
called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the applicable
form under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or Prospectus shall be deemed to
refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of any
Trust, and the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that
is
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incorporated by reference in the Registration Statement; and any reference
to the Prospectus as amended or supplemented shall be deemed to refer to
the Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of
the date of such filings;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Designated
Trust or the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as
to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, 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; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Designated Trust or the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Designated Trust, or of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, (B) there have been no transactions entered into by
the Designated Trust, or by the Company or any of the Company's
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Designated Trust, or to the Company and
its subsidiaries considered as one enterprise, (C) except for regular
dividends, there has been no dividend or
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distribution of any kind declared, paid or made by the Company on any
class of its capital stock and (D) there has been no material increase in
the long-term debt of the Company, except such increases as are set forth
in the Prospectus;
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Maryland,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus;
(f) Each subsidiary of the Company which is a significant
subsidiary, as defined in Rule 405 of Regulation C of the regulations
promulgated under the 1933 Act (each, a "Significant Subsidiary") has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation except for
MBNA America Bank, National Association (the "Bank") and any other
national bank subsidiary, each of which has been duly organized and is
validly existing as a national bank under the laws of the United States,
with power and authority (corporate and other) to own its properties and
to conduct its business as described in the Prospectus;
(g) The Company and each Significant Subsidiary has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require
qualification;
(h) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(i) The Designated Trust has been duly created and is validly
existing as a business trust in good standing under the laws of the State
of Delaware, with power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus; all
the outstanding beneficial interests in the Designated Trust have been
duly and validly authorized and issued, are fully paid and non-assessable
and conform to the descriptions thereof contained in the Prospectus;
(j) The Designated Securities have been duly and validly authorized,
and, when the Firm Designated Securities are issued and delivered pursuant
to this Agreement and the Pricing Agreement with respect to such
Designated Securities and, in the case of any Optional Designated
Securities, pursuant to Over-allotment Options (as defined in Section 3
hereof) with respect to such Securities, such Designated Securities will
be duly and validly issued and fully paid and non-assessable beneficial
interests in the Designated Trust entitled to the benefits provided by the
applicable Trust Agreement, which will be substantially in the form filed
as an exhibit to the Registration Statement; the Designated Securities
conform to the description thereof contained in the Registration Statement
and the Designated Securities will conform to the description thereof
contained in the Prospectus as amended or supplemented with respect to
such Designated Securities;
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(k) The holders of the Designated Securities (the "Securityholders")
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware;
(l) The Common Securities of the Designated Trust have been duly
authorized on behalf of the Designated Trust by the Company, as depositor
of the Designated Trust, and upon delivery by the Designated Trust to the
Company against payment therefor as set forth in the Trust Agreement, will
be duly and validly issued and non-assessable beneficial interests in the
Designated Trust and will conform to the description thereof contained in
the Prospectus; the issuance of the Common Securities of the Designated
Trust is not subject to preemptive or other similar rights; and at each
Time of Delivery, all of the issued and outstanding Common Securities of
the Designated Trust will be directly owned by the Company free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity;
(m) The Designated Guarantee, the Trust Agreement for the Designated
Trust, the Designated Subordinated Debentures and the Indenture (the
Designated Guarantee, such Trust Agreement, the Designated Subordinated
Debentures and the Indenture being collectively referred to as the
"Company Agreements") have each been duly authorized and when validly
executed and delivered by the Company and, in the case of the Guarantee,
by the Guarantee Trustee (as defined in the Guarantee), in the case of the
Trust Agreement, by the Trustees (as defined in the Trust Agreement) and,
in the case of the Indenture, by the Trustee named therein (the
"Debenture"), and, in the case of the Designated Subordinated Debentures,
when validly issued by the Company and duly authenticated and delivered by
the Debenture Trustee, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
respective terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the Trust
Agreement, the Indenture and the Designated Guarantee have each been duly
qualified under the Trust Indenture Act; the Designated Subordinated
Debentures are entitled to the benefits of the Indenture; and the Company
Agreements, which will be in substantially the form filed as an exhibit to
the Registration Statement, will conform to the descriptions thereof in
the Prospectus as amended or supplemented with respect to the Designated
Securities to which they relate;
(n) The issuance by the Company of the Guarantees and the
Subordinated Debentures, the compliance by the Company with all of the
provisions of this Agreement, any Pricing Agreement and each
Over-allotment Option, if any, the Guarantees, the Subordinated
Debentures, the Trust Agreements and the Indenture, the execution,
delivery and performance by the Company of the Company Agreements, and the
consummation of the transactions contemplated herein and therein will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company is a party or by which the Company is bound or to which any of
the material property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body (including,
without limitation, the Board of Governors of the Federal Reserve System,
the Office of the Comptroller of the Currency and the Federal Deposit
Insurance Corporation) having jurisdiction over the Company or any of its
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properties; and no consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or body
is required for the issue of the Guarantees or the Subordinated Debentures
or the consummation by the Company of the other transactions contemplated
by this Agreement, any Pricing Agreement or the Company Agreements, except
such as have been or will have been, prior to each Time of Delivery,
obtained under the Act or the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
issuance by the Company of the Guarantees and the Subordinated Debentures;
(o) The issue and sale of the Designated Securities by the
Designated Trust, the compliance by the Designated Trust with all of the
provisions of this Agreement, any Pricing Agreement and each
Over-allotment Option, if any, the Designated Securities and the Trust
Agreement, the purchase of the Designated Subordinated Debentures by the
Designated Trust, the execution, delivery and performance by the
Designated Trust of the Trust Agreement and the consummation of the
transactions contemplated herein and therein will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Trust is a party
or by which such Trust is bound or to which any of the material property
or assets of such Trust is subject, nor will such action result in any
violation of the provisions of the Trust Agreement or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over such Trust or any of its properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Designated Securities and the Common Securities by
such Trust, the purchase of the Subordinated Debentures by the such Trust
or the consummation by such Trust of the transactions contemplated by this
Agreement, the Pricing Agreement or any Over-allotment Option or the Trust
Agreement, except such as have been, or will have been, prior to each Time
of Delivery (as defined in Section 4 hereof), obtained under the Act and
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(p) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Designated Trust, the
Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject, which, if
determined adversely to the Designated Trust, the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
stockholders' equity (or net assets, as the case may be) or results of
operations of the Designated Trust, or the Company and its subsidiaries;
and, to the best of the Designated Trust's and the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(q) The Designated Trust is not in violation of the Trust Agreement
for the Designated Trust or the Certificate of Trust for the Designated
Trust, or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties
may be bound;
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(r) Each of the Company, the Bank, and the Designated Trust is in
substantial compliance with, and conducts its business in substantial
conformity with, all applicable laws and governmental regulations;
(s) The statements set forth in (i) the Prospectus under the
captions "Description of Junior Subordinated Debentures", "Description of
Preferred Securities", "Description of Guarantees" and "Relationship Among
the Preferred Securities, the Corresponding Junior Subordinated
Debentures", and (ii) in the Prospectus as amended or supplemented under
the captions "Certain Terms of Series __ QUIPS" and "Certain Terms of
Series __ Subordinated Debentures", insofar as they constitute a summary
of the terms of the Securities, Subordinated Debentures, the Guarantees
and the Company Agreements (including the Designated Securities, the
Designated Subordinated Debentures and the Designated Guarantees); and
(t) Neither the Designated Trust nor the Company is or, after giving
effect to the offering and sale of the Securities, will be, 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 (the
"Investment Company Act");
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of the Firm Designated Securities, the several Underwriters propose to offer
the Firm Designated Securities for sale upon the terms and conditions set forth
in the Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable to
any Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities set forth in such
Pricing Agreement, on the terms set forth in the paragraph above, for the sole
purpose of covering over-allotments in the sale of the Firm Designated
Securities. Any such election to purchase Optional Designated Securities may
be exercised only by written notice from the Representatives to the Designated
Trust and the Company, given within a period specified in the Pricing
Agreement, setting forth the aggregate number of Optional Designated Securities
to be purchased and the date on which such Optional Designated Securities are
to be delivered, as determined by the Representatives but in no event earlier
than the First Time of Delivery (as defined in Section 4 hereof) or, unless the
Representatives, the Designated Trust and the Company otherwise agree in
writing, earlier than or later than the respective number of business days
after the date of such notice set forth in such Pricing Agreement.
The number of Optional Designated Securities to be added to the number of
Firm Designated Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which the
Designated Trust and the Company have been advised by the Representatives have
been attributed to such Underwriter; provided that, if the Designated Trust and
the Company have not been so advised, the number of Optional Designated
Securities to be so added shall be, in each case, that proportion of Optional
Designated Securities which the number of Firm Designated Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Designated Securities (rounded as the Representatives
may determine to the nearest 100 securities). The total number of Designated
Securities to be purchased by all
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the Underwriters pursuant to such Pricing Agreement shall be the aggregate
number of Firm Designated Securities set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Designated Securities which the
Underwriters elect to purchase.
As compensation to the Underwriters of the Designated Securities for their
commitments hereunder and under the Pricing Agreement, and in view of the fact
that the proceeds of the sale of the Designated Securities will be used by the
Designated Trust to purchase the Designated Subordinated Debentures of the
Company, the Company agrees to pay at each Time of Delivery to Xxxxxxx, Xxxxx &
Co., for the accounts of the several Underwriters, the amount set forth in the
Pricing Agreement per preferred security for the Designated Securities to be
delivered at such Time of Delivery.
4. Certificates for the Firm Designated Securities and the Optional
Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice
to the Designated Trust and the Company, shall be delivered by or on behalf of
the Designated Trust to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of Federal (same day) Funds to an
account designated by the Designated Trust, (i) with respect to the Firm
Designated Securities, all in the manner and at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives, the Designated Trust and the Company may agree upon in
writing, such time and date being herein called the "First Time of Delivery"
and (ii) with respect to the Optional Designated Securities, if any, in the
manner and at the time and date specified by the Representatives in the written
notice given by the Representatives of the Underwriters' election to purchase
such Optional Designated Securities, or at such other time and date as the
Representatives, the Designated Trust and the Company may agree upon in
writing, such time and date, if not the First Time of Delivery, herein called
the "Second Time of Delivery". Each such time and date for delivery is herein
called a "Time of Delivery".
5. The Designated Trust and the Company, jointly and severally, each
agrees with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating
to such Securities and prior to any Time of Delivery for such Securities
which shall be disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after any Time of Delivery
for the Designated Securities and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Designated Trust or the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is
required in
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connection with the offering or sale of the Designated Securities, and
during such same period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed with
the Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating to
the Securities, of the suspension of the qualification of the Designated
Securities, the Designated Guarantees or the Designated Subordinated
Debentures for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information with respect to the
registration or sale of the Securities; and, in the event of the issuance
of any such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities, the Designated Guarantees or the Designated Subordinated
Debentures for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of such Designated Securities, provided that in connection therewith
neither the Designated Trust nor the Company shall be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Designated Securities, the Designated Guarantees or the Designated
Subordinated Debentures and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) In the case of the Company, to make generally available to its
security holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company Rule 158);
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(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the [earlier] of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Designated Trust and the Company
by the Representatives and (ii) the last Time of Delivery for such
Designated Securities, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any Securities, any other
beneficial interests in the assets of any Trust, or any preferred
securities or any other securities of any Trust or the Company, as the
case may be, which are substantially similar to such Designated Securities
(including any guarantee of such securities) or any securities that are
convertible into or exchangeable for, or that represent the right to
receive securities, preferred securities or any such substantially similar
securities of either any Trust or the Company without the prior written
consent of the Representatives;
(f) In the case of the Company, to issue the Guarantee and the
Subordinated Debentures concurrently with the issue and sale of the
Securities as contemplated herein or in the Pricing Agreement;
(g) To use its best efforts to list, subject to notice of issuance,
the Designated Securities on the New York Stock Exchange and, if the
Company elects to terminate the Designated Trust and to distribute the
Designated Subordinated Debentures to the holders of the Designated
Securities in liquidation of the Designated Trust, to use its best efforts
to list the Designated Subordinated Debentures, subject to notice of
issuance, on the New York Stock Exchange prior to such distribution; and
(h) If the Trust and the Company elect to rely upon Rule 462(b), the
Trust and the Company shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement, and the Trust and the Company
shall at the time of filing either pay to the Commission the filing fee
for the rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the
Act.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities, the Guarantees and the
Subordinated Debentures under the Act and all other expenses in connection with
the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the Underwriters
and dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Company Agreement, any
Blue Sky and Legal Investment Memoranda, and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities, the Guarantees
and the Subordinated Debentures for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements
of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment survey(s); (iv) any fees
charged by securities rating services for rating the Securities and the
Subordinated Debentures; (v) any filing fees incident to any required reviews
by the National Association of Securities Dealers, Inc. of the terms of the
sale of the Securities and the issuance of the Guarantees and the Subordinated
Debentures; (vi) the cost of preparing
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certificates for the Securities and the Subordinated Debentures; (vii) the cost
and charges of any transfer agent or registrar or dividend disbursing agent;
(viii) the fees and expenses of any Trustee, Debenture Trustee and Guarantee
Trustee, and any agent of any trustee and the fees and disbursements of counsel
for any trustee in connection with any Trust Agreement, Indenture, Guarantee
and the Securities; (ix) the cost of qualifying the Securities with The
Depository Trust Company; (x) any fees and expenses in connection with listing
the Securities and the Subordinated Debentures and the cost of registering the
Securities under Section 12 of the Exchange Act; and (xi) all other costs and
expenses incident to the performance of its obligations hereunder and under any
Over-allotment Options which are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, and Section 8 and Section 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust and
the Company in or incorporated by reference in the Pricing Agreement relating
to such Designated Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the Designated
Trust and the Company shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Securities shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; if the Trust and the Company have elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission;
and all requests for additional information on the part of the Commission
shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, or other counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions,
dated each Time of Delivery for such Designated Securities, with respect
to the incorporation of the Company and the formation of the Designated
Trust, the validity of the Designated Securities, the Designated
Subordinated Debentures, the Designated Guarantee, the Registration
Statement, the Prospectus as amended or supplemented, as well as such
other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Xxxx X. Xxxxxxxx, Executive Vice President and General Counsel
of the Company [and counsel the Designated Trust], or other counsel for
the Designated Trust and the Company satisfactory to the Representatives
shall have furnished to the Representatives their written
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opinions, dated each Time of Delivery for such Designated Securities,
respectively, in form and substance satisfactory to the Representatives,
to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus as amended or supplemented;
(ii) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, except for the Bank and
any other national bank subsidiary, which has been duly organized and
is validly existing under the laws of the United States, with power
and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that he believes that both you and he
are justified in relying upon such opinions and certificates);
(iii) The Company and each subsidiary has been duly qualified
as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require
qualification, or is subject to no material liability or disability
by reason of failure to be so qualified in any such jurisdiction
(such counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect of matters
of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such
opinions and certificates);
(iv) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented, and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable; the
Designated Securities have been duly authorized by the Company as
depositor on behalf of the Designated Trust, are duly and validly
issued and non-assessable beneficial interests in the Designated
Trust and are entitled to the benefits provided by the Trust
Agreement; and the Designated Securities conform to the description
of the Securities contained in the Prospectus as amended or
supplemented;
(v) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries; to the best of such counsel's
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knowledge, there are no legal or governmental proceedings pending to
which the Designated Trust is a party or of which any property of the
Designated Trust is the subject; and to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Designated Trust and the Company;
(vii) The issuance by the Company of the Designated Guarantee and
the Designated Subordinated Debentures, the compliance by the Company
with all of the provisions of this Agreement and the Pricing
Agreement with respect to the Designated Securities and the Company
Agreements, the execution, delivery and performance by the Company of
the Company Agreements and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject; nor
will such actions result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any statute
or any order, rule or regulation known to such counsel of any court
or governmental agency or body (including, without limitation, the
Board of Governors of the Federal Reserve System, the Office of the
Comptroller of the Currency and the Federal Deposit Insurance
Corporation) having jurisdiction over the Designated Trust, the
Company or any of their properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated Securities
being delivered at such Time of Delivery or the issuance of the
Designated Guarantee and the Designated Subordinated Debentures or
the consummation by the Designated Trust or the Company of the
transactions contemplated by this Agreement or such Pricing Agreement
and the Company Agreements, except such as have been obtained under
the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the
Underwriters or the issuance of the Designated Guarantee and
Designated Subordinated Debentures by the Company;
(ix) The Designated Trust is not in violation of its Trust
Agreement or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it
or any of its properties may be bound;
(x) The statements set forth (i) in the Prospectus under the
captions "Description of Junior Subordinated Debentures",
"Description of Preferred Securities", "Description of Guarantees"
and "Relationship Among the Preferred Securities, the Corresponding
Junior Subordinated Debentures", and (ii) in the Prospectus as
amended or supplemented under the captions "Certain Terms of Series
__ QUIPS" and "Certain Terms of Series __ Subordinated Debentures",
insofar as they constitute a summary of the terms of the
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Securities, Subordinated Debentures, the Guarantees and the Company
Agreements (including the Designated Securities, the Designated
Subordinated Debentures and the Designated Guarantees);
(xi) The Designated Subordinated Debentures are in the
form prescribed in or pursuant to the Indenture, have been duly and
validly authorized by the Company by all necessary corporate action
and, when completed, executed and authenticated as specified in or
pursuant to the Indenture and issued and delivered, will be valid and
binding obligations of the Company, enforceable in accordance with
their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
affecting creditors' rights and to general equity principles; and the
Designated Subordinated Debentures conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(xii) The Company Agreements have each been duly authorized,
executed and delivered by the parties thereto and constitute valid
and legally binding instruments, enforceable in accordance with their
respective terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Company Agreements conform to the descriptions
thereof in the Prospectus as amended or supplemented; and the
Indenture, the Designated Guarantee and the Designated Trust
Agreement have been duly qualified under the Trust Indenture Act;
(xiii) The Designated Trust is not an "investment company" or
an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act;
(xiv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and he has no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, 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, in the case of other documents which were filed under the Act or
the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading; and
(xv) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Designated Trust or the Company prior to such Time of Delivery
(other than the financial statements and related schedules therein,
as to which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and the
rules and regulations thereunder; he has no reason to believe that,
as of its effective date, the Registration
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Statement or any further amendment thereto made by the Designated
Trust or the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) 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, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by
the Designated Trust or the Company prior to such Time of Delivery
(other than the financial statements and related schedules therein,
as to which such counsel need express no opinion) 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 in which they were made, not misleading or that, as of
such Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Designated Trust or the Company prior
to such Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading;
and he does not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required;
(d) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Designated Trust and
the Company, shall have furnished to the Representatives their written
opinions, dated each Time of Delivery for such Designated Securities,
respectively, in form and substance satisfactory to the Representatives,
to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Maryland;
(ii) The Pricing Agreement with respect to the Designated
Securities has been duly authorized, executed and delivered by the
Company;
(iii) The statements set forth (i) in the Prospectus under the
captions "Description of Junior Subordinated Debentures",
"Description of Preferred Securities", "Description of Guarantees"
and "Relationship Among the Preferred Securities, the Corresponding
Junior Subordinated Debentures and the Guarantees", and (ii) in the
Prospectus as amended or supplemented under the captions "Certain
Terms of Series __ Capital Securities", "Certain Terms of Series __
Subordinated Debentures" and "Certain Terms of Series __ Guarantee",
insofar as they purport to constitute summaries of certain terms of
the Designated Securities and the Company Agreements, in each case
constitute accurate summaries of the Company Agreements and of the
terms of such securities, as set forth in the Company Agreements, in
all material respects;
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(iv) The Designated Subordinated Debentures are in the form
prescribed in or pursuant to the Indenture, have been duly and
validly authorized by the Company by all necessary corporate action
and, when completed, executed and authenticated as specified in or
pursuant to the Indenture and issued and delivered against payment
therefore as specified in the Company Agreements, will be valid and
binding obligations of the Company, enforceable in accordance with
their terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, to general
equitable principles (whether considered in a proceeding in equity or
at law) and by an implied covenant of good faith and fair dealing;
(v) The Indenture, the Designated Guarantee and the Trust
Agreement for the Designated Trust have each been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Debenture Trustee (in
the case of the Indenture), by the Guarantee Trustee (in the case of
the Guarantee) and by the Trustees (in the case of the Trust
Agreement) constitute valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, to 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
Indenture, the Designated Guarantee and the Designated Trust
Agreement have been duly qualified under the Trust Indenture Act;
(vi) The Designated Trust is not 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;
(vii) The Registration Statement and the Prospectus as amended or
supplemented, and any further amendments and supplements thereto made
by the Designated Trust or the Company prior to such Time of Delivery
(other than the financial statements and related schedules and other
financial and statistical data therein and the Form T-1 Statements of
Eligibility and Qualification of the Trustees, as to which such
counsel need express no opinion), comply as to form in all material
respects with requirements of the Act and the Trust Indenture Act and
the rules and regulations thereunder; although they have not
independently verified and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred
to in the opinion in subsection (iii) of this Section 7(c), they have
no reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Designated
Trust or the Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial and
statistical data therein and the Form T-1 Statements of Eligibility
and Qualification of the Trustees, as to
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which such counsel need express no opinion) 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, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement
thereto made by the Designated Trust or the Company prior to such
Time of Delivery (other than the financial statements and related
schedules and other financial and statistical data therein and the
Form T-1 Statements of Eligibility and Qualification of the Trustees,
as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as
of such Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Designated Trust or the Company prior
to such Time of Delivery (other than the financial statements and
related schedules and other financial and statistical data therein
and the Form T-1 Statements of Eligibility and Qualification of the
Trustees, as to which such counsel need express no opinion) contains
an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and they do
not know of any contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or required
to be incorporated by reference into the Prospectus as amended or
supplemented or required to be the described in the Registration
Statement or the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required;
(e) Special Delaware Counsel to the Designated Trust and the Company
satisfactory to the Representatives, shall have furnished to you, the
Company and the Designated Trust their written opinion, dated the
respective Time of Delivery, in form and substance satisfactory to you, to
the effect that
(i) The Designated Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence of
the Designated Trust as a business trust have been made;
(ii) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to own
property and conduct its business, all as described in the
Prospectus;
(iii) The Trust Agreement constitutes a valid and legally binding
obligation of the Company and the Trustees, enforceable against the
Company and the Trustees in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(iv) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to (a)
execute and deliver, and to perform its obligations under, this
Agreement and the Pricing Agreement and (b) issue and perform its
obligations under the Designated Securities and the Common Securities
of the Designated Trust;
(v) Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Designated Trust of this
Agreement and the Pricing Agreement, and the performance by the
Designated Trust of its obligations thereunder and thereunder, have
been duly authorized by all necessary action on the part of the
Designated Trust;
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(vi) The Designated Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and non-assessable
beneficial interests in the Designated Trust and are entitled to the
benefits provided by the Trust Agreement; the Securityholders, as
beneficial owners of the Designated Trust, will be entitled to the
same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware; provided that such counsel
may note that the Securityholders may be obligated, pursuant to the
Trust Agreement, to (a) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising from
transfers or exchanges of Securities certificates and the issuance of
replacement Securities certificates and (b) provide security and
indemnity in connection with requests of or directions to the
Property Trustee (as defined in the Trust Agreement) to exercise its
rights and remedies under the Trust Agreement;
(vii) The Common Securities of the Designated Trust have been
duly authorized by the Trust Agreement and are validly issued and
represent beneficial interests in the Designated Trust;
(viii) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Securities and the Common
Securities of the Designated Trust is not subject to preemptive
rights;
(ix) The issuance and sale by the Designated Trust of Designated
Securities and the Common Securities of the Designated Trust, the
execution, delivery and performance by the Designated Trust of this
Agreement and the Pricing Agreement, the consummation by the
Designated Trust of the transactions contemplated thereby and
compliance by the Designated Trust with its obligations thereunder
will not violate (a) any of the provisions of the Certificate of
Trust of the Designated Trust or the Trust Agreement, or (b) any
applicable Delaware law or administrative regulation;
(x) Assuming that the Designated Trust derives no income from
or connected with services provided within the State of Delaware and
has no assets, activities (other than maintaining the Delaware
Trustee and the filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of Delaware, no
authorization, approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by the
Designated Trust solely in connection with the issuance and sale of
the Designated Securities and the Common Securities of the Designated
Trust. (In rendering the opinion expressed in this paragraph (x),
such counsel need express no opinion concerning the securities laws
of the State of Delaware.); and
(xi) Assuming that the Designated Trust derives no income from
or connected with services provided within the State of Delaware and
has no assets, activities (other than maintaining the Delaware
Trustee and the filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of Delaware, the
Securityholders (other than those holders of the Securities who
reside or are domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of Delaware solely as
a result
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of their participation in the Designated Trust, and the Designated
Trust will not be liable for any income tax imposed by the State of
Delaware.
(f) Tax counsel for the Designated Trust and the Company
satisfactory to the Representatives shall have furnished to you their
written opinion, dated the respective Time of Delivery, in form and
substance satisfactory to you, to the effect that such firm confirms its
opinion set forth in the Prospectus under the caption "Certain Federal
Income Tax Consequences";
(g) On the date of the Pricing Agreement for such Designated
Securities and at each Time of Delivery for such Designated Securities,
the independent accountants of the Company who have audited the
consolidated financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement shall
have furnished to the Representatives a letter, dated the effective date
of the Registration Statement or the date of the most recent report filed
with the Commission containing consolidated financial statements and
incorporated by reference in the Registration Statement, if the date of
such report is later than such effective date, and a letter dated such
Time of Delivery, respectively, to the effect set forth in Annex II
hereto, and with respect to such letter dated such Time of Delivery, as to
such other matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives;
(h) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there shall have been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Designated Trust or the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (B) there shall have been no transactions
entered into by the Designated Trust or the Company or any of the
Company's subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Designated Trust or the
Company and its subsidiaries considered as one enterprise, (C) except for
regular dividends, there shall have been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital
stock and (D) there shall have been no material increase in the long-term
debt of the Company, except such increases as are listed in the Pricing
Agreement relating to such Securities, the effect of which, in any such
case described in Clause (A), (B), (C), or (D), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Underwriters' Securities on the terms and in the manner contemplated in
the Prospectus;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded 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) under the Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities or preferred stock;
20
21
(j) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities; or (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in
this Clause (iii) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Firm Designated Securities or Optional Designated
Securities or both on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(k) The Designated Securities at each Time of Delivery shall have
been duly listed subject to notice of issuance on the New York Stock
Exchange;
(l) No order shall have been issued by any Federal or state bank or
securities regulatory authority in respect of the offering of the
Designated Securities which would interfere with the offering of the
Designated Securities and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company, shall be contemplated by
any such authority; and
(m) The Designated Trust and the Company shall have furnished or
caused to be furnished to the Representatives at each Time of Delivery for
the Designated Securities certificates of officers of the Designated Trust
and the Company satisfactory to the Representatives as to the accuracy of
the representations and warranties of the Designated Trust and the Company
herein at and as of such Time of Delivery, as to the performance by the
Designated Trust and the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to matters set forth in
subsections (a), (c), (d) and (l) of this Section and as to such other
matters as the Representatives may reasonably request.
8. (a) The Designated Trust and the Company, jointly and severally,
will indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any reasonable legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that neither
the Designated Trust nor the Company shall be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Designated Trust and the Company by any
21
22
Underwriter of Designated Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Designated
Trust and the Company against any losses, claims, damages or liabilities to
which the Designated Trust may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to the Designated
Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Designated Trust and the Company by such Underwriter through
the Representatives expressly for use therein; and will reimburse the
Designated Trust and the Company for any legal or other expenses reasonably
incurred by the Designated Trust in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify such
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Designated Trust and the Company on the one hand and the
Underwriters of the Designated Securities on the other from the offering of the
Designated Securities to which such loss, claim, damage or liability (or action
in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by
22
23
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Designated Trust and the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Designated
Trust and the Company on the one hand and such Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Designated Trust and the
Company bear to the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Designated Trust and the Company on the
one hand or such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Designated Trust, the Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include 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 subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to such Securities and not joint.
(e) The obligations of the Designated Trust and the Company under this
Section 8 shall be in addition to any liability which the Designated Trust and
the Company may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of any Underwriter and to each person,
if any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Designated Trust and the Company and to each person, if any, who controls the
Designated Trust and the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Designated Securities or Optional Designated Securities which it has
agreed to purchase under the Pricing Agreement relating to such Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Securities on the terms contained
23
24
herein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Firm Designated
Securities or Optional Designated Securities, as the case may be, then the
Designated Trust shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the
Designated Trust that they have so arranged for the purchase of such
Securities, or the Designated Trust notifies the Representatives that it has so
arranged for the purchase of such Securities, the Representatives or the
Designated Trust shall have the right to postpone a Time of Delivery for such
Securities for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Designated Trust agrees to file promptly any amendments
or supplements to the Registration Statement or the Prospectus which in the
opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Designated Securities or Optional Designated Securities, as the case may
be, of a defaulting Underwriter or Underwriters by the Representatives and the
Designated Trust as provided in subsection (a) above, the aggregate number of
such Securities which remains unpurchased does not exceed one-eleventh of the
aggregate number of the Firm Designated Securities or Optional Designated
Securities, as the case may be, to be purchased at the respective Time of
Delivery, then the Designated Trust shall have the right to require each
non-defaulting Underwriter to purchase the number of Firm Designated Securities
or Optional Designated Securities, as the case may be, which such Underwriter
agreed to purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Firm Designated Securities
or Optional Designated Securities, as the case may be, which such Underwriter
agreed to purchase under such Pricing Agreement) of the Firm Designated
Securities or Optional Designated Securities, as the case may be, of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Designated Securities or Optional Designated Securities, as the case may
be, of a defaulting Underwriter or Underwriters by the Representatives and the
Designated Trust as provided in subsection (a) above, the aggregate number of
Firm Designated Securities or Optional Designated Securities, as the case may
be, which remains unpurchased exceeds one-eleventh of the aggregate number of
the Firm Designated Securities or Optional Designated Securities, as the case
may be, to be purchased at the respective Time of Delivery, as referred to in
subsection (b) above, or if the Designated Trust shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Designated Securities or the Over-allotment
Option relating to such Optional Designated Securities, as the case may be,
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Designated Trust or the Company, except for the expenses to
be borne by the Designated Trust and the Company and the Underwriters as
provided in Section 6 hereof and the
24
25
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Designated Trust or the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Designated Trust or the Company, or any officer or
director or controlling person of the Designated Trust or the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, neither the Designated Trust nor the Company
shall then be under any liability to any Underwriter with respect to the Firm
Designated Securities or Optional Designated Securities with respect to which
such Pricing Agreement shall have been terminated except as provided in Section
6 and Section 8 hereof; but, if for any other reason, Designated Securities are
not delivered by or on behalf of the Designated Trust or the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Designated Trust or the Company
shall then be under no further liability to any Underwriter with respect to
such Designated Securities except as provided in Section 6 and Section 8
hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Designated Trust or the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of
the Designated Trust or the Company, respectively, set forth in the
Registration Statement, Attention: Chief Financial Officer; provided, however,
that any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the
Designated Trust and the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, each Designated Trust, the
Company and, to the extent provided in Section 8 and Section 10 hereof, the
officers and directors of each Designated Trust, the Company and each person
who controls any Designated Trust or the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall
25
26
acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each
of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
26
27
If the foregoing is in accordance with your understanding, please sign and
return to us [six] counterparts hereof.
Very truly yours,
MBNA Corporation MBNA Capital III
By: MBNA Corporation
as Depositor
By: By:
------------------------- ------------------------
Name: Name:
Title: Title:
MBNA Capital I MBNA Capital IV
By: MBNA Corporation By: MBNA Corporation
as Depositor as Depositor
By: By:
------------------------- ------------------------
Name: Name:
Title: Title:
MBNA Capital II MBNA Capital V
By: MBNA Corporation BY: MBNA Corporation
as Depositor as Depositor
By: By:
------------------------- ------------------------
Name: Name:
Title: Title:
Accepted on behalf of ourselves and the other Underwriters listed in
Schedule I to the Pricing Agreement:
Xxxxxxx, Xxxxx & Co.
[Name(s) of Co-Representative(s)]
By:
-------------------------
(Xxxxxxx, Sachs & Co.)
27
28
ANNEX I
PRICING AGREEMENT
Xxxxxxx, Xxxxx & Co.,
[Name(s) of Co-Representative(s),]
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Date: ___________
Ladies and Gentlemen:
MBNA Capital I, a statutory business trust formed under the laws of the
State of Delaware (the "Designated Trust") and MBNA Corporation, a Maryland
corporation (the "Company"), propose, subject to the terms and conditions
stated herein and in the Underwriting Agreement, dated December ___, 1996 (the
"Underwriting Agreement"), between the Designated Trust, MBNA Capital II, MBNA
Capital III, MBNA Capital IV, MBNA Capital V and the Company on the one hand
and Xxxxxxx, Xxxxx & Co., [name(s) of Co-Representative(s)], on the other hand,
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities" consisting of Firm Designated Securities and any Optional
Designated Securities the Underwriters may elect to purchase). The principal
asset of the Trust consists of debt securities of the Company (the
"Subordinated Debentures"), as specified in Schedule II to this Agreement. The
Designated Securities will be guaranteed by the Company to the extent set forth
in this Agreement with respect to such Designated Securities (the "Guarantee").
Each of the provisions of the Underwriting Agreement is incorporated herein by
reference in its 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; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that
each representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or warranty
as of the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth in Schedule II hereto.
An amendment to the Initial Registration Statement or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
29
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of Firm Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto and, (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Designated Securities, as provided below, the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust at the purchase price to the Underwriters set forth in Schedule II hereto
that portion of the number of Optional Designated Securities as to which such
election shall have been exercised.
The Designated Trust hereby grants to each of the Underwriters the right
to purchase at their election up to the number of Optional Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to in the paragraph above for the sole purpose of
covering over-allotments in the sale of the Firm Designated Securities. Any
such election to purchase Optional Designated Securities may be exercised by
written notice from the Representatives to the Designated Trust and the Company
given within a period of 30 calendar days after the date of this Pricing
Agreement, setting forth the aggregate number of Optional Designated Securities
to be purchased and the date on which such Optional Designated Securities are
to be delivered, as determined by the Representatives, but in no event earlier
than the First Time of Delivery or, unless the Representatives and the
Designated Trust otherwise agree in writing, no earlier than two or later than
ten business days after the date of such notice.
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30
If the foregoing is in accordance with your understanding, please sign and
return to us [ ] counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Designated Trust and the Company. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is or will
be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Designated Trust and
the Company for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
MBNA Corporation
By:
---------------------------
Name:
Title:
MBNA CAPITAL __
By: MBNA Corporation,
as Depositor
By:
---------------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
[Name(s) of Co-Representative(s)]
As Representatives of the Underwriters
Named in Schedule I hereto
By:
---------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
3
31
SCHEDULE I
MAXIMUM NUMBER
NUMBER OF OF OPTIONAL DESIGNATED
FIRM DESIGNATED SECURITIES WHICH
SECURITIES MAY BE
UNDERWRITER TO BE PURCHASED PURCHASED
----------- --------------- ---------
Xxxxxxx, Sachs & Co. . . . . . . . . . . . . . . . . . . . . .
[Name(s) of Co-Representative(s)] . . . . . . . . . . . . . . .
[Names of other Underwriters] . . . . . . . . . . . . . . . . .
Total
1
32
SCHEDULE II
DESIGNATED TRUST:
MBNA Capital __
TITLE OF DESIGNATED SECURITIES:
____% Cumulative Quarterly Income Preferred Securities, Series __
("QUIPS")
AGGREGATE PRINCIPAL AMOUNT:
Aggregate principal amount of Designated
Securities to be sold: $_____________
PRICE TO PUBLIC:
100% of the principal amount of the Designated Securities
PURCHASE PRICE BY UNDERWRITERS:
_______% of the principal amount of the Designated Securities
UNDERWRITERS' COMPENSATION:
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the
Designated Securities will be used by the Designated Trust to purchase
the Subordinated Debentures of the Company, the Company hereby agrees
to pay at each Time of Delivery to Xxxxxxx, Xxxxx & Co., for the
accounts of the several Underwriters, an amount equal to $__________
per preferred security for the Designated Securities to be delivered
at each Time of Delivery.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) Funds
ACCOUNTANTS' LETTER TO BE DELIVERED ON DATE OF PRICING AGREEMENT:
Yes.
TRUST AGREEMENT:
Amended and Restated Trust Agreement dated as of ________ __, ____,
between the Company and the Trustees named therein
2
33
INDENTURE:
Indenture dated as of ________ __, 199_, between the Company and
[Debenture Trustee], as Debenture Trustee and Supplemental Indenture
No. __ dated as of ________ __, ____, between the Company and the
Debenture Trustee (collectively the "Indenture")
GUARANTEE:
Guarantee Agreement dated as of ________ __, ____, between Company and
[Guarantee Trustee], as Guarantee Trustee
MATURITY:
________ __, ____
INTEREST RATE:
____%
INTEREST PAYMENT DATES:
March 31, June 30, September 30 and December 31
EXTENSION PERIOD:
[20 quarters]
REDEMPTION PROVISIONS:
[The redemption provisions set forth in Section 402 of the Trust
Agreement shall apply to the Designated Securities.]
SINKING FUND PROVISIONS:
[No sinking fund provisions.]
TIME OF DELIVERY:
10:00 a.m., New York City time
________ __, ____
CLOSING LOCATION:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
3
34
NAMES AND ADDRESSES OF REPRESENTATIVES:
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
4
35
ANNEX II
Pursuant to Section 7(f) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Designated Trust and the Company and its subsidiaries
within the meaning of the Act and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined
by them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been separately furnished to the representatives of the Underwriters
(the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
reports on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been
separately furnished to the Representatives; and on the basis of
specified procedures including inquiries of officials of the Company
who have responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item 6
of the Company's Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures
36
specified in such letter nothing came to their attention as a result
of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting
an examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations, or (ii)
any material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus or
included in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus, for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
2
37
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (vi) above, they
have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for
such Designated Securities.
3
