Exhibit 1(a)
M&T BANK CAPITAL TRUST __________
CAPITAL SECURITIES
GUARANTEED TO THE EXTENT SET FORTH IN THE
GUARANTEES BY M&T BANK CORPORATION
UNDERWRITING AGREEMENT
Dear Ladies and Gentlemen:
M&T Bank Capital Trust ____ (the "Trust"), a statutory trust organized
under the Delaware Statutory Trust Act (Chapter 38, Title 12, of the Delaware
Business Code, 12 Del. C. Section 3801 et seq.) (the "Delaware Act"), and M&T
Bank Corporation, a New York corporation (the "Corporation"), as depositor of
the Trust and as guarantor, propose, upon the terms and conditions set forth
herein to issue and sell _____% Capital Securities with an aggregate liquidation
amount equal to $________________ (the "Capital Securities") to the underwriters
named in Schedule 1 hereto (collectively, the "Underwriters"), for whom the
person(s) named in Schedule 2 hereto (the "Representative(s)") is acting as
representative.
The Capital Securities and Common Securities (as defined herein) are to
be issued pursuant to the terms of an Amended and Restated Trust Agreement dated
as of ____________, _______ (the "Trust Agreement"), among the Corporation
(together with the Trust, the "Offerors"), as depositor, and
____________________ ("Trust Company"), a banking corporation, as property
trustee ("Property Trustee") and _________________ ("Trust Delaware"), a
Delaware banking corporation, as Delaware trustee ("Delaware Trustee") and the
holders from time to time of undivided interests in the assets of the Trust.
The Capital Securities will be guaranteed by the Corporation on a
subordinated basis and subject to certain limitations with respect to
distributions and payments upon liquidation, redemption or otherwise (the
"Guarantee") pursuant to a Guarantee Agreement dated as of ________, _______
(the "Guarantee Agreement"), between the Corporation and the Trust Company, as
trustee (the "Guarantee Trustee"). The assets of the Trust will consist of
_____% Junior Subordinated Deferrable Interest Debentures, due ________, ______
(the "Subordinated Debentures") of the Corporation which will be issued under a
Junior Subordinated Indenture dated as of _______, ____ (the "Indenture"),
between the Corporation and the Trust Company, as trustee (the "Indenture
Trustee"). Under certain circumstances, the Subordinated Debentures will be
distributable to the holders of undivided beneficial interests in the assets of
the Trust.
The Corporation and the Trust have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
333-_______), including a basic prospectus, for the registration of the Capital
Securities under the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations thereunder (the "Securities Act Regulations"). The
Corporation and the Trust have prepared and filed such amendments thereto, if
any, and such amended preliminary prospectuses, if any, as may have been
required to the date hereof, and will file such additional amendments thereto
and such amended prospectuses as may hereafter be required. The registration
statement has been declared effective under the Securities Act by the
Commission. The registration statement as amended at the time it became
effective (including the Prospectus (as defined below) and the documents
incorporated by reference therein pursuant to the section therein entitled
"Where You Can Find More Information", all information deemed to be a part of
the registration statement at the time it became effective pursuant to Rule
430A(b) of the Securities Act Regulations), any post-effective amendment to such
registration statement which becomes effective prior to the Closing Date (as
defined below) and any registration statement filed pursuant to Rule 462(b)
under the Securities Act is hereinafter called the "Registration Statement." The
term "the Effective Date" shall mean each date that the Registration Statement
and any post effective amendment or amendments thereto became or become
effective. "Basic Prospectus" shall mean the prospectus referred to in the first
sentence of this paragraph above contained in the Registration Statement at the
Effective Date. "Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the Capital
Securities and the offering thereof and is used prior to filing of the Final
Prospectus. "Final Prospectus" shall mean the prospectus supplement relating to
the Capital Securities that is first filed pursuant to Rule 424(b) after the
date and time this Agreement is executed and delivered by the parties, together
with the Basic Prospectus or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Capital Securities,
including the Basic Prospectus, included in the Registration Statement at the
Effective Date.
The Corporation hereby agrees with the Underwriters as follows:
1. Representations and Warranties. Each of the Offerors
represents and warrants to the Underwriters that as of the date hereof and on
the Closing Date (as hereinafter defined):
(a) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date, the Final Prospectus will conform, in all
material respects with the requirements of the Securities Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), with respect to the
documents incorporated by reference, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the applicable rules and regulations under said
acts; the Trust Agreement, the Guarantee Agreement, and the Indenture conform in
all material respects with the requirements of the Trust Indenture Act, and the
applicable rules and regulations thereunder; the Registration Statement did not,
and any amendment thereto will not, in each case as of the Effective Date,
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made not misleading; and the Final
Prospectus and any amendment or supplement thereto will not, as of the
applicable filing date and at the Closing Date (as hereinafter defined), contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in the light of the
circumstances
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under which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to (i)
statements in or omissions from the Registration Statement or Final Prospectus
made in reliance upon and in conformity with information furnished to the Trust
or the Corporation by or on behalf of any Underwriter in writing expressly for
use in the Registration Statement or the Final Prospectus or (ii) that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of any trustee.
(b) The documents incorporated by reference in the Prospectus pursuant
to the section therein entitled "Where You Can Find More Information," at the
time they were filed with the Commission, complied in all material respects with
the requirements of the Securities Act and the Securities Act Regulations, and
did not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in the light of
the circumstances under which they were made, not misleading.
(c) Neither the Corporation nor the Trust is an open-end investment
company, unit investment trust or face-amount certificate company that is, or is
required to be, registered under Section 8 of the Investment Company Act of
1940, as amended (the "Investment Company Act"), nor is either a closed-end
investment company required to be registered but not registered thereunder.
(d) The Trust and the Corporation meet the requirements for the use of
Form S-3 under the Securities Act.
(e) No stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act and no proceedings therefor
have been initiated or threatened by the Commission.
(f) The Corporation is corporation duly organized and validly existing
and in good standing under the laws of the State of New York and is licensed,
registered or qualified to conduct the business in which it is engaged in each
jurisdiction in which the conduct of its business or its ownership or the
leasing of property requires such license, registration or qualification, except
where the failure to be so licensed, registered or qualified would not have a
material adverse effect on the Corporation and its subsidiaries, taken as a
whole.
(g) The Trust is a statutory trust organized under the Delaware Act
duly organized and validly existing and 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.
(h) The Capital Securities have been duly and validly authorized, and,
when issued and delivered pursuant to this Agreement, such Capital Securities
will be duly and validly issued and fully paid and non-assessable beneficial
interests in the Trust entitled to the benefits provided by the Trust Agreement,
which will be substantially in the form filed as an exhibit to the Registration
Statement; the Capital Securities conform in all material respects to the
description thereof contained in the Registration Statement and the Final
Prospectus.
(i) The common securities of the Trust (the "Common Securities") have
been duly authorized on behalf of the Trust by the Corporation, as depositor of
the Trust, and upon delivery
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by the Trust to the Corporation against payment therefor as set forth in the
Trust Agreement, will be duly and validly issued and non-assessable beneficial
interests in the Trust; the issuance of the Common Securities of the Trust is
not subject to preemptive or other similar rights; the Common Securities conform
in all material respects to the description thereof contained in the
Registration Statement and the Final Prospectus; and at the Time of Delivery (as
defined in Section 3), all of the issued and outstanding Common Securities of
the Trust will be directly owned by the Corporation free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(j) The Guarantee, the Trust Agreement, the Subordinated Debentures and
the Indenture (collectively referred to as the "Corporation Agreements") have
each been duly authorized and when validly executed and delivered by the
Corporation and, in the case of the Guarantee, by the Guarantee Trustee, in the
case of the Trust Agreement, by the Property Trustee and the Delaware Trustee
and, in the case of the Indenture, by the Indenture Trustee, and, in the case of
the Subordinated Debentures, when validly issued by the Corporation and duly
authenticated and delivered by the Indenture Trustee, will constitute valid and
legally binding obligations of the Corporation, enforceable in accordance with
their respective terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, the rights of
creditors of federally-insured depository institutions, the supervisory and
enforcement powers of applicable bank regulatory authorities and general equity
principles (whether considered as a proceeding at law or in equity); the Trust
Agreement, the Indenture and the Guarantee have each been duly qualified under
the Trust Indenture Act; the Subordinated Debentures are entitled to the
benefits of the Indenture; and the Corporation Agreements, which will each be in
substantially the form filed as an exhibit to the Registration Statement, will
conform in all material respects to the descriptions thereof in the Registration
Statement and the Final Prospectus.
(k) The issue and sale of the Capital Securities by the Trust, the
compliance by the Trust with all of the provisions of this Agreement, the
Capital Securities and the Trust Agreement, the purchase of the Subordinated
Debentures by the Trust, the execution, delivery and performance by the Trust of
the Trust Agreement and the consummation of the transactions contemplated herein
and therein will not violate any law, rule, regulation, order, judgment or
decree applicable to the Trust or conflict with or result in a breach of or
constitute a default under any agreement or instrument (including, but not
limited to, the Trust Agreement and any organizational documents of the Trust)
by which the Trust, or its property, is bound, except where such violation,
conflict or breach would not have a material adverse effect upon the financial
condition of the Trust.
(l) The issuance by the Corporation of the Guarantee and the
Subordinated Debentures, the compliance by the Corporation with all of the
provisions of this Agreement and the Corporation Agreements, the execution,
delivery and performance by the Corporation of this Agreement and the
Corporation Agreements, and the consummation of the transactions contemplated
herein and therein will not violate any law, rule, regulation, order, judgment
or decree applicable to the Corporation or conflict with or result in a breach
of or constitute a default under any agreement or instrument (including, but not
limited to, any charters or by-laws) by which the Corporation or its property is
bound, except where such violation, conflict or breach would not have a material
adverse effect upon the financial condition, business or results of operations
of the Corporation and its subsidiaries, taken as a whole.
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(m) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the issue and sale of the Capital Securities and the Common Securities by
the Trust, the purchase of the Subordinated Debentures by the Trust or the
consummation by the Trust of the transactions contemplated by this Agreement or
the Trust Agreement, except such as have been, or will have been, prior to the
Time of Delivery, obtained under the Securities 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.
(n) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the issue of the Guarantee or the Subordinated Debentures or the
consummation by the Corporation of the other transactions contemplated by this
Agreement or the Corporation Agreements, except such as have been or will have
been, prior to the Time of Delivery, obtained under the Securities 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.
(o) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus and in any documents deemed to
be incorporated by reference in the Registration Statement pursuant to Item
12(b) of Form S-3, except as otherwise stated therein, there has not been any
material adverse change in the financial condition, business or results of
operations of the Corporation and its subsidiaries, taken as a whole.
(p) Other than as set forth or contemplated in the Registration
Statement and the Final Prospectus, there are no legal or governmental
proceedings pending to which the Corporation is a party or of which any property
of the Corporation is the subject that could reasonably be expected,
individually or in the aggregate, to have a material adverse effect on the
financial position, business or results of operations of the Corporation and its
subsidiaries, taken as a whole; and, to the best of the Corporation's knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
2. Offering. The Representative has advised the Corporation that
the Underwriters will make an offering of the Capital Securities purchased by
such Underwriters hereunder on the terms and conditions set forth in the
Registration Statement AS SOON AS PRACTICABLE AFTER THIS AGREEMENT IS ENTERED
INTO.
3. Purchase and Delivery; Commission. The Trust hereby agrees to
sell to the Underwriters and each Underwriter, severally and not jointly, upon
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees to purchase from the Trust the
aggregate liquidation amount of Capital Securities set forth opposite such
Underwriter's name on Schedule 1 hereto.
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Capital Securities
will be used by the Trust to purchase the Subordinated Debentures of the
Corporation, the Corporation hereby agrees to pay at the Time of Delivery to the
Representative, for the accounts of the several Underwriters, an
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amount equal to $____ per Capital Security for the Capital Securities to be
delivered at the Time of Delivery.
Except as set forth in the next paragraph, the Capital Securities to be
purchased by each Underwriter hereunder will be represented by one or more
definitive global Capital Securities in book entry form which will be deposited
by or on behalf of the Trust with The Depository Trust Company ("DTC") or its
designated custodian. The Trust will deliver the Capital Securities to the
Representative, for the account of each Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by certified or
official bank check or checks or fedwire, payable to the order of the Trust in
Federal (same day) funds, by causing DTC to credit the Capital Securities to the
account of the Representative at DTC. The Trust will cause the certificates
representing the Capital Securities to be made available to the Representative
for checking at least 24 hours prior to the Time of Delivery at the office of
DTC or its designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be at the offices of _________, at 9:30 a.m, New
York time, on __________, _____ (the "Closing Date") or such other time and date
as the Representative, the Corporation and the Trust may agree upon in writing.
Such time and date are herein called the "Time of Delivery".
Such Capital Securities, if any, as the Representative may request upon
at least 48 hours' prior notice to the Trust (such request to include the
authorized denominations and the names in which they are to be registered),
shall be delivered in definitive certificated form, by and on behalf of the
Trust to the Representative for the account of certain of the Underwriters,
against payment by or on behalf of such Underwriter of the purchase price
therefor by fedwire, payable to the order of the Trust in Federal (same day)
funds. The Trust will cause the certificates representing the Capital Securities
to be made available for checking and packaging at least 24 hours prior to the
Time of Delivery in New York, New York.
4. Conditions to Closing. The several obligations of the
Underwriters to purchase and pay for the Capital Securities will be subject to
the following conditions:
(a) If filing of the Final Prospectus is required pursuant to Rule
424(b) of the Securities Act Regulations, the Final Prospectus shall have been
timely filed with the Commission in accordance with Rule 424(b) of the
Securities Act Regulations; and at the Closing Date, no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued under the Securities Act or proceedings therefor initiated or
threatened by the Commission.
(b) The Underwriters shall have received, on the Closing Date, a
certificate signed by the Chairman of the Board, the President, a Vice Chairman
of the Board or any Executive or Senior Vice President and the principal
financial or accounting officer of the Corporation, dated the Closing Date, to
the effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Corporation
in this Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Corporation has complied in all material respects with all
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the agreements and satisfied in all material respects all the conditions on its
part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the Corporation's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the financial condition,
business or results of operations of the Corporation and its subsidiaries taken
as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(c) Subsequent to the date hereof or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any amendment thereof), there
shall not have been any change, or any development involving a prospective
change, in or affecting the business or properties of the Corporation and its
subsidiaries the effect of which is, in the reasonable judgment of the
Underwriters, so material and adverse as to make it impractical or inadvisable
to proceed with the offering or the delivery of the Capital Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof)
and the Final Prospectus (exclusive of any amendment thereof).
(d) The Underwriters shall have received an opinion, dated the Closing
Date, of special counsel to the Corporation, substantially in the form attached
hereto as Exhibit A. In rendering such opinion, counsel may state that they are
passing only on matters of New York and United States Federal law. In rendering
such opinion, counsel may rely upon an opinion or opinions, each dated the
Closing Date, of other counsel retained by them or the Corporation as to laws of
any jurisdiction other than the United States or the State of New York, provided
that (i) such reliance is expressly authorized by each opinion so relied upon
and a copy of each such opinion is delivered to the Underwriters, and (ii)
counsel shall state in their opinion that they and the Underwriters are
justified in relying thereon. Insofar as such opinions involve factual matters,
such counsel may rely, to the extent such counsel deems proper, upon
certificates of officers of the Corporation, its subsidiaries and the Trust and
certificates of public officials.
(e) The Underwriters shall have received an opinion, dated the Closing
Date, of the Corporation's General Counsel, substantially in the form attached
hereto as Exhibit B. In rendering such opinion, such counsel may state that he
is passing only on matters of New York and United States Federal law. Insofar as
such opinions involve factual matters, such counsel may rely, to the extent such
counsel deems proper, upon certificates of officers of the Corporation, its
subsidiaries and the Trust, and certificates of public officials.
(f) The Underwriters shall have received an opinion, dated the Closing
Date, of counsel to the Trust Company and Trust Delaware, substantially in the
form attached hereto as Exhibit C.
(g) The Underwriters shall have received an opinion, dated the Closing
Date, of counsel to the Underwriters as to such matters as the Underwriters
shall reasonably request. In rendering
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such opinion, counsel may rely upon an opinion or opinions, each dated the
Closing Date, of other counsel retained by them or the Corporation as to laws of
any jurisdiction other than the United States or the State of New York, provided
that (i) such reliance is expressly authorized by each opinion so relied upon
and a copy of each such opinion is delivered to the Underwriters, and (ii)
counsel shall state in their opinion that they believe that they and the
Underwriters are justified in relying thereon. Insofar as such opinions involve
factual matters, such counsel may rely, to the extent such counsel deems proper,
upon certificates of officers of the Corporation, its subsidiaries and the Trust
and certificates of public officials.
(h) The Underwriters shall have received an opinion, dated the Closing
Date, of special Delaware counsel to the Corporation and the Trust,
substantially to the effect and in the form attached hereto as Exhibit D.
(i) The Capital Securities shall have received a rating from each of
two "nationally recognized statistical rating agencies" (as that term is defined
by the Commission for the purposes of Rule 436(g)(2) under the Securities Act),
each such rating to be not less than the rating set forth in the Final
Prospectus.
(j) At the date hereof and at the Closing Date, the Underwriters shall
have received letters, dated respectively as of the date hereof and as of the
Closing Date, in form and substance reasonably satisfactory to them, from the
Corporation's independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information, including the financial information contained or incorporated by
reference in the Registration Statement as identified by the Representative.
Such letters shall also confirm that, with respect to the Corporation, they are
independent accountants within the meaning of the published rules and
regulations of the American Institute of Certified Public Accountants.
(k) Prior to the Closing Date, the Corporation shall have furnished to
the Underwriters such further information, certificates and documents as the
Underwriters may reasonably request in connection with the offering of the
Capital Securities.
(l) No downgrading in the rating accorded the Capital Securities or any
other debt securities of the Corporation by any "nationally recognized
statistical rating organization" shall have occurred, or any public announcement
that any such organization has under surveillance or review their ratings of the
Capital Securities or any other debt securities of the Corporation (other than
an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating), and if, in any such
case, the effect thereof in the reasonable judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the purchase of the Capital
Securities.
5. Covenants of the Offerors. In further consideration of the
agreements of the Underwriters herein contained, the Offerors covenant as
follows:
(a) The Trust and the Corporation will prepare the Final Prospectus in
a form approved by the Underwriters and will file such Final Prospectus with the
Commission pursuant to the applicable subparagraph of Rule 424(b) within the
time period prescribed. The Trust and the Corporation will notify the
Underwriters immediately, and confirm the notice in writing, (i) if
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not effective at the time of execution of this Agreement, of the effectiveness
of the Registration Statement and any amendment thereto (including any
post-effective amendment), and of the filing of the Final Prospectus pursuant to
Rule 424(b), (ii) of any request by the Commission for any amendment to the
Registration Statement, or any amendment or supplement to the Final Prospectus
or for additional information, and (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement of the
suspension of the qualification of the securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for such
purpose. The Trust and the Corporation will make every reasonable effort to
prevent the issuance of any stop order or of any order suspending any such
qualification and, if any such order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) The Trust and the Corporation will deliver to the Underwriters such
number of conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including documents incorporated by reference into
the Final Prospectus and exhibits thereto) as such Underwriters may reasonably
request and copies of each Preliminary Final Prospectus, the Final Prospectus
and any amendment or supplement to such Final Prospectus.
(c) The Trust and the Corporation will furnish to the Underwriters,
from time to time during the period when the Final Prospectus is required to be
delivered under the Securities Act, such number of copies of the Final
Prospectus (as amended or supplemented, if applicable) as they may reasonably
request for the purposes contemplated by the Securities Act or the Securities
Act Regulations.
(d) The Trust and the Corporation will deliver to the Underwriters
notice of their intention to prepare or file any amendment to the Registration
Statement relating to the Capital Securities (including any post-effective
amendment) or any amendment or supplement to the Final Prospectus (other than
documents deemed to be incorporated by reference into the Final Prospectus)
which the Trust and the Corporation propose for use by the Underwriters in
connection with the offering of the Capital Securities and which differs from
the prospectus on file at the Commission at the time the Registration Statement
becomes effective, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) of the Securities Act Regulations, will furnish
the Underwriters and counsel for the Underwriters with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Underwriters or counsel for
the Underwriters shall reasonably object.
(e) If, during such period after the Closing Date and prior to the date
on which the distribution of Capital Securities by the Underwriters is
completed, any event shall occur as a result of which it is necessary, in the
opinion of the Offerors' counsel, to amend or supplement the Final Prospectus
(as then amended or supplemented) in order to ensure that the Final Prospectus
does not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or it is necessary to
amend or supplement the Final Prospectus to comply with law, the Trust and the
Corporation will forthwith prepare and furnish, at the Corporation's own
expense, to the Underwriters, either amendments or supplements to the Final
Prospectus so that the statements in the Final Prospectus as so amended or
supplemented will not, in the light
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of the circumstances under which they were made, be misleading or so that the
Final Prospectus will comply with law, as the case may be.
(f) The Trust and the Corporation, during the period when the Final
Prospectus is required to be delivered under the Securities Act, will file
promptly all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act subsequent to the time the Registration
Statement becomes effective.
(g) The Trust and the Corporation will endeavor to qualify the Capital
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any Underwriter shall reasonably request and to pay all
reasonable expenses (including reasonable fees and disbursements of counsel) in
connection with such qualification and the printing of any memoranda concerning
the aforesaid qualification; provided, however, that neither Offeror shall be
required to qualify to do business in any jurisdiction where it is not now
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction where they are not now subject.
(h) During the period beginning on the date hereof and continuing to
and including the Closing Date, the Trust and the Corporation will not offer,
sell, contract to sell or otherwise dispose of (other than in an offering made
exclusively outside the United States) any securities of the Corporation or the
Trust substantially similar to the Capital Securities or any securities
convertible into or exchangeable for the Capital Securities without the prior
written consent of the Underwriters.
(i) During the period when the Capital Securities are outstanding, the
Corporation will not be or become an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
(j) The Corporation will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
18 months after the effective date of the Registration Statement, an earnings
statement or statements of the Corporation (which need not be audited) which
shall satisfy the requirements of Section 11(a) of the Securities Act and Rule
158 of the Securities Act Regulations and will advise you in writing when such
statement has been so made available.
6. Expenses. The Corporation covenants and agrees with the
Underwriters that the Corporation will, whether or not any sale of the Capital
Securities is consummated, pay or cause to be paid the following: (i) costs of
preparation and printing (including reasonable word processing and duplication
costs) of the Registration Statement and the Final Prospectus, and all
amendments and supplements thereto, (ii) all expenses (including reasonable fees
and disbursements of counsel to the Corporation and the Trust) payable pursuant
to Section 5(g) of this Agreement, (iii) all costs and expenses incurred in
connection with the preparation, issuance and delivery of the Capital
Securities, (iv) the fees and disbursements of the Corporation's accountants,
(v) all costs and expenses incurred in the preparation and the printing
(including word processing and duplication costs) of the Capital Securities, the
Indenture, the Guarantee Agreement, the Trust Agreement and all other documents
relating to the issuance, purchase and
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initial resale of the Capital Securities, (vi) the costs of assigning a rating
or ratings to the Capital Securities and (vii) all other costs and expenses
incident to the performance by the Corporation of its obligations hereunder
which are not otherwise specifically provided in this Section. The Underwriters
shall be responsible for all of their own expenses, including the fees of the
Underwriters' counsel, any taxes on resales of the Capital Securities by the
Underwriters and any advertising expenses connected with any offers they make.
7. Indemnification and Contribution
(a) Each of the Corporation and the Trust jointly and severally agrees
to indemnify and hold harmless each Underwriter and each person, if any, who
controls each such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus, the Final
Prospectus or any amendment or supplement thereto, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that (i) the
Corporation and the Trust shall not be liable in any such case insofar as such
losses, claims, damages or liabilities arise out of or are based upon (x) any
such untrue statement or omission made therein upon in reliance upon and in
conformity with information furnished in writing to the Corporation by the
Underwriters expressly for use therein or (y) that part of the Registration
Statement constituting the "Statement of Eligibility and Qualification" (Form
T-1) of any trustee under the Trust Indenture Act, and (ii) the foregoing
indemnity agreement with respect to the Basic Prospectus, any Preliminary Final
Prospectus, the Final Prospectus or any amendment or supplement thereto shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Capital Securities, or any
person controlling such Underwriter, if a copy of the Final Prospectus (as then
amended or supplemented if the Corporation shall have furnished any amendments
or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of the Capital Securities to such persons, to the extent that the Final
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability. This indemnity agreement shall be
in addition to any liability that the Corporation or Trust may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Corporation, the Trust, any authorized representative of
the Corporation or the Trust and any person controlling the Corporation or the
Trust, to the same extent as the foregoing indemnity from the Corporation and
the Trust to the Underwriters, but only with reference to information furnished
in writing by such Underwriter expressly for use in the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus, the Final Prospectus or
any amendments or supplements thereto. The Corporation and the Trust each
acknowledge that the statements set forth in _______________ of the Basic
Prospectus, any Preliminary Final Prospectus, or the Final Prospectus constitute
the only information furnished in writing by or on behalf of the Underwriters
for use in the Registration Statement, and the Representative confirms that such
statements are correct. This indemnity agreement shall be in addition to any
liability that any Underwriter may otherwise have.
11
(c) In case any proceeding (including any governmental investigation)
shall be threatened or instituted involving any person in respect of which
indemnity may be sought pursuant to paragraph (a) or (b) of this Section 7, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing (but the
omission to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party other than under this
Section 7) and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and pay the reasonable fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and the representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees and expenses of more than one separate firm for all such
indemnified parties. In the case of parties indemnified pursuant to paragraph
(a) of this Section 7, such separate firm shall be designated in writing by the
Representative. In the case of parties indemnified pursuant to paragraph (b) of
this Section 7, such separate firm shall be designated in writing by the
Corporation. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Corporation and the Trust on the one hand and the Underwriters on the
other from the offering of the Capital Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Corporation and the
Trust on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Corporation and the Trust on the one hand and
the Underwriters on the other in connection with the offering of such Capital
Securities shall be deemed to be in the same proportion as the total net
proceeds (before deducting expenses) from the offering of such Capital
Securities received by the Corporation bear to the total discounts and
commissions received by such Underwriter in respect thereof. The relative fault
of the Corporation and the Trust on the one hand and of the Underwriters on the
other 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
12
Corporation and the Trust or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statements or omissions.
(e) The Corporation, the Trust and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the considerations referred to in paragraph (d) of this
Section 7. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) of this
Section 7 shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.
(f) The indemnity and contribution agreements contained in this Section
7 and the representations and warranties of the Corporation, the Trust and the
Underwriters in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of a Underwriter or any person controlling
such Underwriter, or by or on behalf of the Trust or the Corporation, its
directors or officers, any authorized representative of the Corporation or the
Trust or any person controlling the Corporation or the Trust, and (iii)
acceptance of and payment for any of the Capital Securities.
8. Termination.
(a) This Agreement shall be subject to termination in the absolute
discretion of the Representative, by notice to the Corporation, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, or settlement in the trading of
securities through The Depository Trust Company[, Euroclear Bank S.A./N.V. or
Clearstream Banking, S.A.] shall have been materially disrupted, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iii) there shall have
occurred any material outbreak or escalation of hostilities or other calamity or
crisis, including without limitation an act of terrorism, the effect of which on
the financial markets of the United States is such as to make it, in the
reasonable judgment of the Representative, impracticable to market the Capital
Securities or to enforce contracts for the resale of Capital Securities.
(b) The Corporation may terminate this Agreement upon written notice to
the Representative at any time at or prior to the Closing Date if the
Corporation shall receive the reasonable opinion of its special tax counsel,
following consultation with the Representative and its counsel, that there is
more than an insubstantial risk that interest payable by the Corporation on the
Subordinated Debentures will not be deductible by the Corporation for federal
income tax purposes as a result of action taken on any federal legislative tax
proposal. If this Agreement is terminated pursuant to this Section 8(b), such
termination shall be without liability of any party to any other party and each
party shall bear its own out-of-pocket expenses, except as provided in Section
7.
9. Pro Rata Purchase in Certain Events. If on the Closing Date
any one or more of the Underwriters shall fail or refuse to purchase Capital
Securities that it or they have agreed to
13
purchase hereunder and the aggregate liquidation amount of Capital Securities
that such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate liquidation amount of
Capital Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions which the aggregate liquidation amount of
Capital Securities set forth opposite their names in Schedule 1 to this
Agreement bears to the aggregate liquidation amount of Capital Securities set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Representative may specify, to purchase the Capital
Securities that such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Capital Securities and the
aggregate liquidation amount of Capital Securities with respect to which such
default occurs is more than one-tenth of the aggregate liquidation amount of
Capital Securities to be purchased on such date, and arrangements satisfactory
to the Representative and the Corporation for the purchase of such Capital
Securities are not made within 36 hours after such default, this Agreement shall
thereupon terminate without liability on the part of any non-defaulting
Underwriters or of the Corporation or the Trust. In any such case either the
Representative or the Corporation shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement or in any other documents or
arrangements may be effected. An action taken under this Section 9 shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. Reimbursement upon Termination in Certain Circumstances. If
this Agreement shall be terminated by the Underwriters or any of them, because
of any failure or refusal on the part of the Corporation to comply in any
material respect with the terms or to fulfill in any material respect any of the
conditions of this Agreement, or if for any reason the Corporation shall be
unable to perform in any material respect its obligations under this Agreement,
the Corporation shall reimburse the Underwriters or such Underwriters as have so
terminated the Agreement, with respect to themselves, severally, for all
reasonable out-of-pocket expenses reasonably incurred by such Underwriters in
connection with the offering of the Capital Securities. In no event shall the
Corporation be liable to the Underwriters for loss of anticipated profits from
the transactions contemplated by this Agreement.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
14
Please confirm that the foregoing correctly sets forth the agreement
among the Trust, the Corporation and the several Underwriters by having an
authorized officer sign a copy of this Agreement in the space set forth below
and by returning the signed copy to us.
Very truly yours,
M&T BANK CORPORATION
By: ____________________________
Name: __________________________
Title: _________________________
M&T BANK CAPITAL TRUST _________
By: M&T BANK CORPORATION, on behalf of M&T Bank Capital Trust _________
By: ____________________________
Name: __________________________
Title: _________________________
Accepted by:
[REPRESENTATIVE],
as representative of the several
Underwriters named in Schedule 1 hereto
By: ____________________________
Name: __________________________
Title: _________________________
15
SCHEDULE 1
UNDERWRITER AMOUNT
----------- ------
$
TOTAL $
16
SCHEDULE 2
REPRESENTATIVE(S)
17
EXHIBIT A
The opinion of special counsel to the Corporation to be delivered pursuant to
Section 4(d) of the Underwriting Agreement shall be substantially to the effect
that:
1. The Underwriting Agreement has been duly authorized, executed and delivered
by the Corporation.
2. The Trust Agreement has been duly authorized, executed and delivered by the
Corporation, and is a valid and binding obligation of the Corporation.
3. The Guarantee Agreement has been duly authorized, executed and delivered by
the Corporation and is a valid and binding obligation of the Corporation
enforceable against the Corporation in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, the rights of creditors of
federally-insured depository institutions, the supervisory and enforcement
powers of applicable bank regulatory authorities and general equity principles
(whether considered as a proceeding at law or in equity) and an implied covenant
of good faith and fair dealing.
4. The Indenture has been duly authorized, executed and delivered by the
Corporation, has been duly qualified under the Trust Indenture Act, and is a
valid and binding agreement of the Corporation, enforceable against the
Corporation in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights, the rights of creditors of federally-insured
depository institutions, the supervisory and enforcement powers of applicable
bank regulatory authorities and general equity principles (whether considered as
a proceeding at law or in equity) and an implied covenant of good faith and fair
dealing.
5. The Subordinated Debentures have been duly authorized, executed and delivered
by the Corporation and when duly authenticated in accordance with the Indenture
and delivered and paid for in accordance with the Underwriting Agreement, will
be valid and binding obligations of the Corporation, entitled to the benefits of
the Indenture and enforceable against the Corporation in accordance with their
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights, the rights of
creditors of federally-insured depository institutions, the supervisory and
enforcement powers of applicable bank regulatory authorities and general equity
principles (whether considered as a proceeding at law or in equity) and an
implied covenant of good faith and fair dealing.
6. The Trust is not an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in Investment Company Act of
1940, as amended.
7. The statements set forth in the Final Prospectus under the captions "Capital
Securities and Related Instruments," "Junior Subordinated Debentures,"
"Guarantees" and "Relationship
18
Among the Capital Securities and the Related Instruments" insofar as they
purport to describe the provisions of the laws and documents referred to
therein, fairly summarize the matters described therein.
8. The Registration Statement was declared effective under the Securities Act as
of the date and time specified in such opinion and, to the best of such
counsel's knowledge and information without independent investigation, no stop
order suspending the effectiveness of the Registration Statement has been issued
under the Securities Act and no proceedings therefor have been initiated or
threatened by the Commission.
9. The statements of law or legal conclusions and opinions set forth in the
Final Prospectus under the caption "Certain United States Federal Income Tax
Consequences," subject to the assumptions and conditions described therein,
accurately reflect our opinion in all material respects.
19
EXHIBIT B
The opinion of its General Counsel to be delivered by the Corporation pursuant
to Section 4(e) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Corporation is validly organized and presently subsisting under the laws
of the State of New York, with requisite corporate power and authority to own
its properties and conduct its business as described in the Final Prospectus,
except for such power and authority the absence of which would not have a
material adverse effect on the Corporation on a consolidated basis, and the
Corporation is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended.
2. Manufacturers and Traders Trust Company ("M&T Bank") has been duly organized
as a banking corporation under the laws of the State of New York and is existing
in good standing under the laws of the State of New York, with corporate power
and authority to conduct its business as described in the Final Prospectus.
3. No consent, approval, authorization or order of any court or governmental
agency, authority, or body is required for the consummation by the Corporation
of the transactions contemplated by the Underwriting Agreement, except those
that have been obtained; it being understood that I express no opinion as to the
securities or Blue Sky laws of any jurisdiction.
4. The issuance and sale of the Capital Securities and the Subordinated
Debentures and the execution, delivery and performance by the Corporation and
the Trust of the Underwriting Agreement, the Indenture, the Guarantee Agreement
and the Trust Agreement will not violate the Certificate of Incorporation or
Bylaws of the Corporation, as amended to date, or any material agreement or
other instrument known to him to which the Corporation or the Trust is a party
or any material order or regulation known to him to be applicable to the
Corporation or the Trust of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Corporation or the
Trust.
5. To the best of my knowledge, there is no pending or threatened action, suit
or proceeding before any court or governmental agency, authority or body or any
arbitrator involving the Corporation or any of its subsidiaries of a character
required to be disclosed in the Registration Statement which is not adequately
disclosed in the Registration Statement and the Final Prospectus, and there is
no franchise, contract or other document of a character required to be described
in the Registration Statement or the Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the statements
included or incorporated in the Registration Statement and the Final Prospectus
describing any legal proceedings or material contracts or agreements relating to
the Corporation fairly summarize such matters.
20
Such counsel shall further state that nothing has come to his attention that has
caused him to believe that the Registration Statement, at the time it became
effective (except for the financial statements and schedules and other financial
or statistical data contained or incorporated therein, as to which he need
express no belief), contained any untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or that the Final Prospectus (except for the financial
statements and schedules and other financial or statistical data contained or
incorporated therein, as to which he need express no belief), contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
21
EXHIBIT C
The opinion of counsel to the Trust Company and Trust Delaware to be delivered
pursuant to Section 4(f) of the Underwriting Agreement shall be substantially to
the effect that:
1. The Trust Company is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of New York.
2. Trust Delaware is duly incorporated and is validly existing in good standing
as a banking corporation with trust powers under the laws of the State of
Delaware.
3. The Indenture Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Indenture, and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of the Indenture.
4. The Guarantee Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Guarantee Agreement, and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of the Guarantee Agreement.
5. The Property Trustee has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
6. The Delaware Trustee has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
7. Each of the Indenture and the Guarantee Agreement has been duly executed and
delivered by the Indenture Trustee and the Guarantee Trustee, respectively, and
constitutes a legal, valid and binding obligation of the Indenture Trustee and
the Guarantee Trustee, respectively, enforceable against the Indenture Trustee
and the Guarantee Trustee, respectively in accordance with its respective terms,
except that certain payment obligations may be enforceable solely against the
assets of the Trust and except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent
conveyance and transfer or other similar laws applicable to Delaware or New York
banking corporations, as the case may be, affecting the enforcement of
creditors' rights generally, and by general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
8. The Trust Agreement has been duly executed and delivered by the Property
Trustee, and constitutes a legal, valid and binding obligation of the Property
Trustee.
9. The Subordinated Debentures delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
22
EXHIBIT D
The opinion of special Delaware counsel to the Corporation and the Trust to be
delivered pursuant to Section 4(h) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Trust has been duly created and is validly existing in good standing as a
statutory trust under the Delaware Statutory Trust Act (Chapter 38, Title 12, of
the Delaware Business Code, 12 Del. C. Section 3801 et seq.) (the "Delaware
Act"), with the statutory trust power and authority to own its property and to
conduct its business as described in the Registration Statement and to execute
and deliver, and to perform its obligations under, the Underwriting Agreement,
and issue and perform its obligations under the Capital Securities and the
Common Securities.
2. The Capital Securities have been duly authorized for issuance by the Trust
Agreement and, when issued and delivered in accordance with the terms of the
Trust Agreement, against payment of the consideration as set forth in the
Underwriting Agreement, the Capital Securities will be validly issued and
(subject to the terms of the Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the assets of the Trust. The Holders of the
Capital Securities will be entitled to the benefits of the Trust Agreement
(subject to the limitations set forth in Paragraph 5 below) and will be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the Delaware General Corporation Law;
provided that we express no opinion as to any Holder of a Capital Security that
is, was, or becomes a named Trustee of the Trust. We note that the Holders of
Capital Securities will be required to make payment or provide indemnity or
security as set forth in the Trust Agreement.
3. The Common Securities have been duly authorized for issuance by the Trust
Agreement and, when issued and delivered by the Trust to the Corporation against
payment therefor in accordance with the terms of the Trust Agreement and as
described in the Registration Statement, will be validly issued and (subject to
the terms of the Trust Agreement) fully paid and non-assessable undivided
beneficial interests in the assets of the Trust. We note that the Holders of
Common Securities will be liable for the debts and obligations of the Trust to
the extent provided in the Trust Agreement and will be required to make payment
or provide indemnity or security as set forth in the Trust Agreement.
4. Under the Delaware Act and the Trust Agreement, the issuance of the Capital
Securities and the Common Securities is not subject to preemptive or other
similar rights.
5. All necessary trust action has been taken to duly authorize the execution,
delivery and performance by the Trust of the Underwriting Agreement.
6. The Trust Agreement constitutes a valid and binding obligation of the
Corporation and the Delaware Trustee, enforceable against the Corporation and
the Delaware Trustee in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency, receivership,
liquidation, fraudulent conveyance, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and
remedies, (ii) general principles of equity (regardless of whether considered
and applied in a proceeding in
23
equity or at law) and (iii) considerations of public policy and the effect of
applicable law relating to fiduciary duties.
7. The issuance and sale by the Trust of the Capital Securities and the Common
Securities, the purchase by the Trust of the Subordinated Debentures, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the compliance by the Trust with its obligations
thereunder will not violate (i) any of the provisions of the Certificate of
Trust or the Trust Agreement or (ii) any applicable Delaware law or
administrative regulation.
8. Assuming that the Trust derives no income from or connected with services
provided within the State of Delaware and has no assets, activities (other than
having a Delaware Trustee as required by the Delaware Act and the filing of
documents with the Secretary of State of the State of Delaware) or employees in
the State of Delaware, no filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any Delaware court or
Delaware governmental authority or agency (other than as may be required under
the securities or blue sky laws of the State of Delaware as to which we express
no opinion) is required to be obtained by the Trust in connection with the
issuance and sale or delivery of the Capital Securities.
24
