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EXHIBIT 1
TERMS AGREEMENT
June 23, 1999
ARISTAR, INC.
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
We (the "Underwriters" and the "Representative") understand that
Aristar, Inc., a Delaware corporation (the "Company"), proposes to issue and
sell $250,000,000 aggregate principal amount of its 7-1/4% Senior Notes due June
15, 2006 (the "Underwritten Securities"). Subject to the terms and conditions
set forth herein or incorporated by reference herein, the Underwriters hereby
offer to purchase, severally and not jointly, the principal amount of
Underwritten Securities set forth opposite their respective names below at
98.772% of the principal amount thereof, together with accrued interest thereon,
if any, from June 28, 1999 to (but not including) the Delivery Date.
Principal
Underwriters Amount
------------ ------------
Credit Suisse First Boston Corporation ..................... $ 62,500,000
Bear, Xxxxxxx & Co. Inc. ................................... 62,500,000
Deutsche Bank Securities Inc. .............................. 62,500,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ......... 62,500,000
------------
Total ........................................ $250,000,000
============
The Underwritten Securities shall have the following terms:
Date of maturity: June 15, 2006
Interest rate: 7-1/4% per annum, payable semiannually
Initial public offering price: 99.397%, plus accrued interest, if any,
from June 28, 1999 to (but not including)
the Delivery Date
Interest payment dates: June 15th and December 15th, commencing
December 15, 1999
Redemption provisions: The Underwritten Securities are not
redeemable
Form: The Underwritten Securities are to be
issued in the form of one or more global
securities registered in the name of The
Depository Trust Company or its nominee
(the "Depositary"); delivery of the
Underwritten Securities at closing will be
made through the facilities of the
Depositary
Specified funds for payment
of purchase price: Wire transfer of immediately available
funds
Specified address for notices: Credit Suisse First Boston Corporation
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00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Transactions Advisory Group
Delivery Date: 11:00 A.M., New York City time, on June 28,
1999
Place of closing: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Underwriters hereby confirm that they have furnished to the
Company in writing the following information for inclusion in the Company's
Prospectus Supplement dated June 23, 1999 to the Company's Prospectus dated June
22, 1999 relating to the Underwritten Securities (the "Prospectus Supplement"):
(i) the table on page S-8 of the Prospectus Supplement, (ii) the second
paragraph below the table on page S-8 of the Prospectus Supplement concerning
the public offering price, concession and discount; (iii) the third and fourth
sentences of the fourth paragraph below the table on page S-8 of the Prospectus
Supplement; (iv) the sixth paragraph below the table on page S-8 of the
Prospectus Supplement concerning over-allotment, stabilizing transactions,
syndicate covering transactions and penalty bids; and (v) the fifth and sixth
sentences of the seventh paragraph below the table on page S-8 of the Prospectus
Supplement.
All of the provisions contained in the document entitled
"Aristar, Inc. -- Debt Securities -- Underwriting Agreement Basic Provisions"
and dated June 23, 1999 (the "Basic Provisions"), a copy of which you have
previously furnished to us, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein; provided,
however, that
(i) clause (e) of Paragraph 6 of such provisions shall
be deleted and shall be replaced in its entirety by the following: "(e)
Prior to filing with the Commission any (i) amendment or supplement to
the Registration Statement, (ii) Prospectus or any amendment or
supplement thereto or (iii) document incorporated by reference in any of
the foregoing or any amendment of or supplement to any such incorporated
document, to furnish a copy thereof to the Representatives and their
counsel and to provide the Representatives an opportunity to comment
thereon and will not effect such amendment or supplement without the
consent of Credit Suisse First Boston Corporation, which consent will
not be unreasonably withheld or delayed";
and (ii) subparagraph (iv) of clause (c) of Paragraph
9 of such provisions shall be deleted and and shall be replaced in its
entirety by the following: "(iv) The Underwritten Securities and the
Indenture conform in all material respects to the statements concerning
them contained on the cover page of the Prospectus and of the Basic
Prospectus and in the sections entitled ACertain Terms of the Notes@ in
the Prospectus and entitled ADescription of Debt Securities@ in the
Basic Prospectus."
Terms defined in such Underwriting Agreement Basic Provisions are
used herein as therein defined.
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Please accept this offer no later than 11:00 P.M., New York City
time, on June 23, 1999 by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us, or by sending us a written
acceptance in the following form:
"We hereby accept your offer, set forth in the Terms Agreement
dated June 23, 1999, to purchase the Underwritten Securities on the
terms set forth therein."
Very truly yours,
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, XXXXXXX & CO. INC.
DEUTSCHE BANK SECURITIES INC.
XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxx Xxxxxxxxx
_______________________________________
(Credit Suisse First Boston Corporation)
Name: Xxxx Xxxxxxxxx
Title: Director
Accepted:
ARISTAR, INC.
By: /s/ Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: Executive Vice President
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ARISTAR, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
June 23, 1999
The basic provisions set forth herein are intended to be
incorporated by reference in a terms agreement (a "Terms Agreement") of the type
referred to in Paragraph 2 hereof. With respect to any particular Terms
Agreement, the Terms Agreement, together with the provisions hereof incorporated
therein by reference, is herein referred to as this "Agreement". Terms defined
in the Terms Agreement are used herein as therein defined.
The Company may issue and sell from time to time series of its
debt securities registered under the registration statement referred to in
Paragraph 1(a) hereof (the "Securities"). The Securities may have varying
designations, denominations, interest rates and payment dates, maturities,
redemption provisions and selling prices, with all such terms for any particular
series of Securities (together with any other terms relating to such series) to
be determined and set forth in the Terms Agreement relating to the series.
1. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-80147)
with respect to the Securities has been prepared and filed by the Company in
conformity with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and has become
effective. The Indenture pursuant to which the Underwritten Securities will be
issued (the
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"Indenture") has been qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). As used in this Agreement, (i) "Preliminary
Prospectus" means each prospectus (including all documents incorporated therein
by reference) included in such registration statement, and amendments or
supplements thereof, before it became effective under the Act, including any
prospectus filed with the Commission pursuant to Rule 424(a) of the Rules and
Regulations; (ii) "Registration Statement" means such registration statement
when it became effective under the Act, and as from time to time amended or
supplemented thereafter at the time of effectiveness of such amendment or filing
of such supplement with the Commission (including all documents incorporated
therein by reference); (iii) "Basic Prospectus" means the prospectus (including
all documents incorporated therein by reference) included in the Registration
Statement; and (iv) "Prospectus" means the Basic Prospectus, together with any
amendments or supplements (including in each case all documents incorporated
therein by reference), as filed with, or transmitted by a means reasonably
calculated to result in filing with, the Commission pursuant to paragraph (b) of
Rule 424 of the Rules and Regulations. The Commission has not issued any order
preventing or suspending the use of the Prospectus.
(b) The Registration Statement did, as of the time it became
effective, and will, as of each filing of the Company's most recent annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the Prospectus did, as of its issue
date, comply as to form in all material respects with the Act, the Exchange Act,
the Trust Indenture Act, and the rules and regulations of the Commission under
such Acts; the Indenture, including any amendments and supplements thereto,
conforms, and will conform, in all material respects with the requirements of
the Trust Indenture Act and the rules and regulations of the Commission
thereunder; the Registration Statement did not, as of the time it became
effective, and will not, as of each filing of the Company's most recent annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act, 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; and
the Prospectus does not and will not as of the Delivery Date (as hereinafter
defined) contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representation or warranty as to information contained
in or omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein, or to any statements in or omissions from the statement of eligibility
and qualification on Form T-1 of the Trustee under the Trust Indenture Act.
(c) Neither the Company nor any of its majority-owned
subsidiaries (as defined in Rule 405 of the Rules and Regulations, and
hereinafter called "Subsidiaries") is in violation of its corporate charter or
by-laws or in default in the observance or performance of any agreement,
indenture or instrument, the effect of which violation or default would be
material to the Company and its Subsidiaries taken as a whole; the execution,
delivery and performance of this Agreement and the Indenture and compliance by
the Company with the provisions of the Underwritten Securities and the Indenture
have been duly authorized by all necessary corporate action and will not
conflict with, result in the creation or imposition of any
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lien, charge or encumbrance upon any of the assets of the Company or any of its
Subsidiaries pursuant to the terms of, or constitute a default in the observance
or performance of, any agreement, indenture or instrument, or result in a
violation of the corporate charter or by-laws of the Company or any of its
Subsidiaries or any order, statute, rule or regulation of any court or
governmental agency having jurisdiction over the Company, any of its
Subsidiaries or their respective properties, the effect of which conflict, lien,
charge, encumbrance, default or violation would be material to the Company and
its Subsidiaries taken as a whole; and except as required by the Act, the Trust
Indenture Act, the Exchange Act and applicable state securities laws, no
consent, authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and performance of
this Agreement or the Indenture.
(d) From the dates as of which information is given in the
Registration Statement and the Prospectus, and except as described therein, (i)
there has not been any material adverse change or any development involving a
prospective material adverse change in the financial condition or results of
operations of the Company and its Subsidiaries taken as a whole and (ii) there
has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock. There is no financial support
agreement between the Company and Washington Mutual, Inc. ("Washington Mutual")
or any affiliate thereof respecting the business relationship between the two
parties.
(e) To the best knowledge of the Company, each of Deloitte &
Touche LLP and Pricewaterhouse Coopers LLP, whose reports appear in the
Company's Annual Report on Form 10-K incorporated by reference in the
Prospectus, are independent public accountants as required by the Act and the
Rules and Regulations.
(f) (i) As of the Delivery Date, the Indenture will have been
duly executed and delivered and validly authorized by the Company and will
constitute the legally binding obligation of the Company enforceable in
accordance with its terms (except as enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other laws relating to or affecting creditors' rights generally, by general
equity principles or by an implied covenant of good faith and fair dealing),
(ii) the Underwritten Securities have been validly authorized for issuance and
sale pursuant to this Agreement and, upon execution, authentication, delivery
and payment therefor as provided in this Agreement and the Indenture, will be
validly issued and outstanding, and will constitute legally binding obligations
of the Company enforceable in accordance with their terms (except as enforcement
of the Underwritten Securities may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other laws relating to or
affecting creditors' rights generally, by general equity principles or by an
implied covenant of good faith and fair dealing) and entitled to the benefits of
the Indenture, and (iii) the Underwritten Securities and the Indenture conform
in all material respects to the descriptions thereof contained in the
Prospectus.
(g) The Company has been duly incorporated, is validly existing
and is in good standing under the laws of its jurisdiction of incorporation;
each of the Subsidiaries has been duly incorporated, is validly existing and is
in good standing under the laws of their respective jurisdictions of
incorporation (except where the failure to be so incorporated or to be
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in good standing would not have a material adverse effect on the Company and its
Subsidiaries taken as a whole); to the best knowledge of the Company, the
Company and each of its Subsidiaries are duly qualified to do business and in
good standing as foreign corporations in each jurisdiction in which their
respective ownership or leasing of property or the conduct of their respective
businesses requires such qualification, and have the corporate power and
authority necessary to own, lease and operate their respective properties and to
conduct the businesses in which they are engaged, except where the failure to so
qualify or to have such power and authority would not have a material adverse
effect on the Company and its Subsidiaries taken as a whole; and the capital
stock of each Subsidiary is owned by the Company, directly or through
Subsidiaries, free and clear of any mortgage, pledge, lien, claim or
encumbrance.
(h) Except as described in the Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its Subsidiaries which would
result in any material adverse change in the financial condition or results of
operations of the Company and its Subsidiaries taken as a whole or which is
required to be disclosed in the Registration Statement.
(i) The financial statements filed as part of the Registration
Statement or included or incorporated in any Preliminary Prospectus or the
Prospectus present, and will present as of the Delivery Date, fairly the
financial condition and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved; and the supporting schedules
included or incorporated in the Registration Statement present fairly the
information required to be stated therein.
(j) The documents incorporated by reference into any Preliminary
Prospectus or the Prospectus have been, and any documents subsequently
incorporated by reference will be, as of the applicable filing date, prepared by
the Company in conformity with the applicable requirements of the Act and the
Rules and Regulations and the Exchange Act and the rules and regulations of the
Commission thereunder; and such documents have been or will be as of the
Delivery Date timely filed as required thereby.
(k) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Act or by the Rules
and Regulations, or which were required to be filed as exhibits to any document
incorporated by reference in the Prospectus by the Exchange Act or the rules and
regulations of the Commission thereunder, which have not been filed as exhibits
to the Registration Statement or to such documents, or incorporated therein by
reference as permitted by the Rules and Regulations or the rules and regulations
of the Commission under the Exchange Act, as the case may be.
(l) All of the authorized, issued and outstanding capital stock
of the Company has been duly authorized and validly issued and is fully paid and
non-assessable and
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is owned, directly or indirectly, by Washington Mutual.
(m) The Company and each of its Subsidiaries have all licenses,
approvals and consents for the conduct of their respective businesses, the
failure of which to have would have a material adverse effect on the business of
the Company and the Subsidiaries taken as a whole.
2. The obligation of the Underwriters to purchase, and the
Company to sell, the Underwritten Securities is evidenced by a Terms Agreement
delivered at the time the Company determines to sell the Underwritten
Securities. The Terms Agreement specifies the firm or firms which will be
Underwriters, the principal amount of the Underwritten Securities to be
purchased by each Underwriter, the purchase price to be paid by the Underwriters
for the Underwritten Securities, the public offering price, if any, of the
Underwritten Securities, certain terms thereof and the Underwriters'
compensation therefor, any of the terms of the Underwritten Securities not
already specified in the Indenture (including, but not limited to, designations,
denominations, interest rate or rates (and method of calculation thereof) and
payment dates, maturity, redemption provisions and sinking fund requirements)
and the written information that has been furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion in
the Registration Statement or the Prospectus. The Terms Agreement also specifies
any details of the terms of the offering which should be reflected in a
post-effective amendment to the Registration Statement or the supplement to the
Prospectus relating to the offering of the Underwritten Securities.
3. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all the Underwritten Securities to be
purchased pursuant to this Agreement as hereinafter provided.
4. If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Underwritten Securities which the defaulting
Underwriter agreed but failed to purchase in the respective proportions which
the principal amount of Underwritten Securities set forth in the Terms Agreement
to be purchased by each remaining non-defaulting Underwriter set forth therein
bears to the aggregate principal amount of Underwritten Securities set forth
therein to be purchased by all the remaining non-defaulting Underwriters;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any Underwritten Securities if the aggregate principal
amount of Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase exceeds 9.09% of the total principal
amount of Underwritten Securities, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the principal amount of
Underwritten Securities set forth in the Terms Agreement to be purchased by it.
If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Underwritten
Securities. If the remaining Underwriters or other underwriters satisfactory to
the Representatives do not elect to purchase the Underwritten Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company will continue to be liable
for
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the payment of expenses as set forth in Paragraphs 6(k) and 10 hereof.
Nothing contained in this Paragraph shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Underwritten Securities of a defaulting or withdrawing Underwriter, either the
Representatives of the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company of counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
5. Delivery of and payment for the Underwritten Securities shall
be made at the office of the Representatives at such address and time as may be
specified in the Terms Agreement. This date and time are sometimes referred to
as the "Delivery Date". On the Delivery Date the Company shall deliver the
Underwritten Securities to the Representatives through the facilities of The
Depository Trust Company, New York, New York, for the account of each
Underwriter against payment to the Company of the purchase price by wire
transfer of immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Upon delivery, the
Underwritten Securities shall be in definitive fully registered form and in such
denominations and registered in such names as the Representatives shall request
in writing not less than two full business days prior to the Delivery Date. For
the purpose of expediting the checking of the Underwritten Securities, the
Company shall make the Underwritten Securities available for inspection by the
Representatives in New York, New York (or such other place as may be specified
by the Representatives) not later then 2:00 P.M., New York City time, at least
one business day prior to the Delivery Date.
6. The Company covenants and agrees with the Representatives as
follows:
(a) To furnish promptly to the Representatives and to their
counsel a signed copy of the Registration Statement as originally filed and each
amendment thereto, and a copy of each Prospectus filed with the Commission,
including all supplements thereto and all documents incorporated therein by
reference and all consents and exhibits filed therewith;
(b) To deliver promptly to the Representatives such number of the
following documents as they may reasonably request: (i) conformed copies of the
Registration Statement (excluding exhibits other than the computation of the
ratio of earnings to fixed charges, the Indenture and this Agreement), (ii) each
Preliminary Prospectus, the Basic Prospectus and the Prospectus and any
supplement thereto and (iii) any documents incorporated by reference in the
Prospectus;
(c) If, during any period in which, in the opinion of counsel for
the Representatives, a prospectus relating to the Underwritten Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus would include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with the Act, to
immediately notify the Representatives and to promptly prepare and file (subject
to (e) below) with the
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Commission an amendment or supplement which will effect such compliance
(provided, however, that if such amendment or supplement of the Prospectus shall
be filed after the nine-month period commencing on the date hereof, the
Representatives shall pay the costs incurred in connection with the preparation
of such amendment or supplement);
(d) To timely file (subject to (e) below) with the Commission
during any period in which, in the opinion of counsel for the Representatives,
any Prospectus is required by law to be delivered in connection with sales of
the Underwritten Securities, all documents (and any amendments to previously
filed documents) required to be filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act;
(e) Prior to filing with the Commission any (i) amendment or
supplement to the Registration Statement, (ii) Prospectus or any amendment or
supplement thereto or (iii) document incorporated by reference in any of the
foregoing or any amendment of or supplement to any such incorporated document,
to furnish a copy thereof to the Representatives and their counsel and to
provide the Representatives an opportunity to comment thereon;
(f) To advise the Representatives immediately (i) when any
post-effective amendment to the Registration Statement relating to or covering
the Underwritten Securities becomes effective, (ii) of any request or proposed
request by the Commission for an amendment or supplement to the Registration
Statement, to the Prospectus, to any document incorporated by reference in any
of the foregoing or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any order directed to the Prospectus or any document incorporated
therein by reference or the initiation or threat of any stop order proceeding or
of any challenge to the accuracy or adequacy of any document incorporated by
reference in the Prospectus, (iv) of receipt by the Company of any notification
with respect to the suspension of the qualification of the Underwritten
Securities for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose and (v) of the happening of any event which makes
untrue any statement of a material fact made in the Registration Statement or
the Prospectus or which requires the making of a change in the Registration
Statement or the Prospectus in order to make any statement of a material fact
therein not misleading;
(g) If the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, to make every reasonable effort to
obtain the lifting of that order at the earliest possible time;
(h) To make generally available to its security holders and to
deliver to the Representatives, in each case as soon as practicable, an earnings
statement (in form complying with the provisions of Section 11(a) of the Act and
Rule 158 thereunder and which need not be certified by independent certified
public accountants unless required by the Act or the Rules and Regulations)
covering the period beginning not later than the first day of the fiscal quarter
next following each date which (i) under Section 11(a) of the Act and the Rules
and Regulations is an "effective date" (as defined in Rule 158) of the
Registration Statement for purposes of said Section 11(a), and (ii) is not later
than the Delivery Date;
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(i) For one year after the Delivery Date, to furnish to the
Representatives, promptly after the time the Company makes the same available to
others, copies of all public reports or releases and all reports and financial
statements furnished by the Company to any securities exchange pursuant to
requirements of or agreements with such exchange or to the Commission pursuant
to the Exchange Act or any rule or regulation of the Commission thereunder;
(j) To endeavor, in cooperation with the Representatives, to
qualify the Underwritten Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Representatives may reasonably designate, and to maintain such
qualifications in effect for as long as may be reasonably required for the
distribution of the Underwritten Securities. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Underwritten Securities have been qualified as above provided;
(k) To pay (i) the costs incident to the authorization, issuance,
sale and delivery of the Underwritten Securities and any taxes payable in that
connection, (ii) the costs incident to the preparation, printing and filing
under the Act of the Registration Statement and any amendments, supplements and
exhibits thereto, (iii) the costs incident to the preparation, printing and
filing of any document and any amendments and exhibits thereto required to be
filed by the Company under the Exchange Act, (iv) the costs of distributing the
Registration Statement, as originally filed, and each amendment and
post-effective amendment thereof (including exhibits), any Preliminary
Prospectus, the Basic Prospectus, the Prospectus, any supplement or amendment to
the Prospectus and any documents incorporated by reference in any of the
foregoing documents, (v) the costs of distributing the terms of the agreement
relating to the organization of the underwriting syndicate to the Underwriters
by mail, telex or other means of communication, (vi) the costs of typing this
Agreement, (vii) the costs and fees in connection with the listing of the
Securities on any securities exchange, (viii) the costs of any filings with the
National Association of Securities Dealers, Inc., (ix) the fees and
disbursements of counsel to the Company, (x) the fees paid to rating agencies in
connection with the rating of the Securities, including the Underwritten
Securities, (xi) the fees and expenses of qualifying the Securities, including
the Underwritten Securities, under the securities laws of the several
jurisdictions as provided in this Paragraph, and of preparing and printing a
Blue Sky Memorandum and a memorandum concerning the legality of the Securities,
including the Underwritten Securities, as an investment (including fees and
expenses of counsel to the Representatives in connection therewith), and (xii)
all other costs and expenses incident to the performance of the Company's
obligations under this Agreement; provided, that, except as provided in this
Paragraph and in Paragraph 10 hereof, the Underwriters shall pay their own costs
and expenses, including the fees and expenses of their counsel, any transfer
taxes on the Underwritten Securities which they may sell and the expenses of
advertising any offering of the Underwritten Securities made by the
Underwriters; and
(l) During the period beginning on the date of the Terms
Agreement and continuing to the Delivery Date, without the prior consent of the
Representatives, not to offer or sell, or enter into any agreement to sell, any
debt securities of the Company other than borrowings under the Company's
revolving credit agreements and lines of credit, the private placement of
securities, borrowings from Washington Mutual or any affiliate thereof and
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issuances in the ordinary course of business of the Company's commercial paper.
7. (a) The Company shall indemnify and hold harmless each
Underwriter, each other person, if any, who is participating with the
Underwriters in the distribution of the Underwritten Securities who is an
"underwriter" within the meaning of Section 2(11) of the Act with respect to the
distribution of the Underwritten Securities (the "Participants") and each
person, if any, who controls any Underwriter or any Participant within the
meaning of Section 15 of the Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which such
Underwriter or such Participant or controlling person may become subject, under
the Act, the Exchange Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or arises out of, or is 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
shall reimburse each Underwriter, each Participant and each controlling person
for any legal and other expenses reasonably incurred, as incurred, by such
Underwriter or such Participant or controlling person in investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action, provided, however, (i) that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company through the Representatives by
or on behalf of any Underwriter specifically for inclusion therein; and (ii)
that with respect to any Preliminary Prospectus or Prospectus, the foregoing
indemnification shall not inure to the benefit of any Underwriter, any
Participant or any person controlling that Underwriter or Participant on account
of any loss, claim, damage, liability or action arising from the purchase of
Securities by any person from that Underwriter or Participant, if that
Underwriter or Participant in fact failed to send or give a copy of the
Prospectus (excluding documents incorporated by reference) provided by the
Company in accordance with Paragraph 6(b) hereof (as such Prospectus may then be
amended or supplemented, in each case exclusive of the documents incorporated
therein by reference) to that person within the time required by the Act;
provided, however, that subparagraph (ii) above shall not apply (X) where such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in such Preliminary Prospectus or
Prospectus and such untrue statement, alleged untrue statement, omission or
alleged omission, was not corrected in the Prospectus (or the amendment or
supplement thereto) or (Y) where the failure to deliver such Prospectus (or the
amendment or supplement thereto) resulted from noncompliance by the Company with
Paragraph 6(b) hereof. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter, any
Participant or controlling person.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration
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Statement and any person who controls the Company within the meaning of Section
15 of the Act from and against any loss, claim, damage or liability, joint or
several, and any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Act, the
Exchange Act or federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or arises out of, or is 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, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through the Representatives by or
on behalf of that Underwriter specifically for inclusion therein, and shall
reimburse the Company or any such director, officer or controlling person for
any legal and other expenses reasonably incurred, as incurred, by the Company or
any such director, officer or controlling person in investigating or defending
or preparing to defend against any such loss, claim, damage, liability of
action. The foregoing indemnity agreement is in addition to any liability which
any Underwriter may otherwise have to the Company or any of its directors,
officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this
Paragraph of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Paragraph, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Paragraph except to the extent that it has been prejudiced in any material
respect by such failure or from any liability which it may have otherwise. If
any such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein, and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Paragraph 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, any
indemnified party shall have the right to employ separate counsel in any such
claim or action and to participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such claim or action and
employ counsel reasonably satisfactory to the indemnified party, in which case,
if such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such claim
or action on behalf of such indemnified party, it being understood, however,
that the
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indemnifying party shall not, in connection with any one such claim or action or
separate but substantially similar or related claims or actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to local counsel) at any time for all such indemnified
parties, which firm shall be designated in writing by the Representatives, if
the indemnified parties under this Paragraph consist of any Underwriter, any
Participant or any of their respective controlling persons, or by the Company,
if the indemnified parties under this Paragraph consist of the Company or any of
its directors, officers or controlling persons. The indemnifying party shall not
be liable for any settlement of any such claim or action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment in favor of the
plaintiff in any such claim or action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party (which consent shall
not be unreasonably withheld), effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding and (ii) does not include a statement as to, or an admission of,
fault, culpability, or a failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Paragraph shall
for any reason be unavailable to an indemnified party under Paragraph 7(a) or
7(b) hereof in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters and the Participants on the other from the offering of
the Underwritten 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 Company on the one hand and the Underwriters and
the Participants on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters and the
Participants on the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Underwritten Securities (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the Underwriters
and the Participants with respect to such offering in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
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Underwriters agree that it would not be just and equitable if contributions
pursuant to this Paragraph 7(d) were to be determined by pro rata allocation or
by any other method of allocation (even if the Underwriters and the Participants
were treated as one entity for such purpose) which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Paragraph 7(d) shall be
deemed to include, for purposes of this Paragraph 7(d), any legal or other
expenses reasonably incurred by each indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Paragraph 7(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Underwritten Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission of alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(i) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Paragraph 7(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The agreements contained in this Paragraph and the
representations, warranties and agreements of the Company contained elsewhere in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall survive the delivery of and payment for the
Underwritten Securities and shall remain operative and in full force and effect,
regardless of the termination of this Agreement or any investigation made on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company.
8. The obligations of the Underwriters under this Agreement may
be terminated by the Representatives, in their absolute discretion, by notice
given to and received by the Company prior to the delivery of and payment for
the Underwritten Securities, if, during the period beginning on the date of the
Terms Agreement to and including the Delivery Date, (a) trading in securities
generally on the New York Stock Exchange is suspended or minimum prices are
established on that Exchange or trading in any securities of the Company have
been suspended by any exchange or by the Commission, or (b) a banking moratorium
is declared by either Federal or New York State authorities, or (c) there is an
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 is to make it, in the judgment of a majority in interest of the
several Underwriters, impracticable or inadvisable to proceed with the public
offering or delivery of the Underwritten Securities, or (d) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of a
majority in interest of the several Underwriters, impracticable or inadvisable
to proceed with the public offering or delivery of the Underwritten Securities,
or (e) the rating of any of the Company=s debt securities shall have been
lowered by either Xxxxx=s Investors Services, Inc. or Standard & Poor=s or
either of such rating agencies shall have publicly announced that it has placed
any of the Company=s debt securities on what is commonly termed a Awatch list@
for possible downgrading, or (f) there shall have occurred no
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material adverse change and no development involving a prospective material
adverse change in the financial condition or results of operations of the
Company and its Subsidiaries, taken as a whole, as to make it, in the judgment
of a majority in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the Underwritten
Securities.
9. The respective obligations of the Underwriters under this
Agreement with respect to the Underwritten Securities are subject to the
accuracy, on the date of the Terms Agreement and on the Delivery Date, of the
representations and warranties of the Company contained herein, to the accuracy
of the statements of the Company's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance and observance by the
Company of all covenants and agreements contained herein, and to each of the
following additional terms and conditions applicable to the Underwritten
Securities:
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission, nor any order directed to any document incorporated by reference in
any Prospectus shall have been initiated or threatened by the Commission.
(b) The General Counsel or an Assistant General Counsel of the
Company (or such other counsel as shall be satisfactory to the Underwriters)
shall have furnished to the Representatives his opinion addressed to the
Underwriters and dated the Delivery Date, in form and substance reasonably
satisfactory to the Representatives and their counsel, 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 Delaware;
(ii) The Company has the corporate power and authority
necessary to own, lease and operate its properties and conduct its
business as described in the Registration Statement;
(iii) To the best of his knowledge, the Company is duly
qualified to do business and in good standing as a foreign corporation
in each jurisdiction in which its conduct of business or its ownership
or leasing of properties requires such qualification and in which the
failure to be so qualified would have a material adverse effect on the
Company and its Subsidiaries taken as a whole;
(iv) All of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued and is fully paid
and non-assessable, and, except as described in the Registration
Statement, all of such capital stock is owned by the Company, directly
or through Subsidiaries, free and clear of any mortgage, pledge, lien,
claim or encumbrance;
(v) The authorized, issued and outstanding capital stock of
the Company is set forth in the Prospectus and the shares of the
Company's issued and
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outstanding common stock, $1.00 par value, set forth therein are owned,
directly or indirectly, by Washington Mutual;
(vi) Such counsel does not know of any material litigation or
any governmental proceeding pending or threatened against the Company or
any of its Subsidiaries required to be disclosed in the Prospectus which
is not disclosed;
(vii) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations, or which are
required to be filed by the Exchange Act or the rules and regulations of
the Commission thereunder as exhibits to any document incorporated by
reference in the Prospectus, which have not been filed as exhibits to
the Registration Statement or to such document, or incorporated therein
by reference as permitted by the Rules and Regulations or the rules and
regulations of the Commission under the Exchange Act, as the case may
be;
(viii) To the best of such counsel's knowledge, the Company is
not in violation of its corporate charter or by-laws, none of the
Subsidiaries are in violation of their corporate charters or by-laws,
and neither the Company nor any of the Subsidiaries are in default in
the observance or performance of any agreement, indenture or instrument,
the effect of which violation or default would be material to the
Company and the Subsidiaries taken as a whole; and
(ix) To the best of his knowledge, the execution, delivery and
performance of this Agreement and compliance by the Company with the
provisions of the Underwritten Securities and the Indenture will not
conflict with, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the Company or any of
the Subsidiaries pursuant to the terms of, or constitute a default in
the observance or performance of, any material agreement, indenture or
instrument, or result in a violation of the corporate charter or by-laws
of the Company or any of the Subsidiaries or any order, statute, rule or
regulation of any court or governmental agency having jurisdiction over
the Company, any of the Subsidiaries or their respective properties, the
effect of which conflict, lien, charge, encumbrance, default or
violation would be material to the Company and the Subsidiaries taken as
a whole; and no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance by the Company of this Agreement
except such as may be required by the Act, the Trust Indenture Act, the
Exchange Act and state securities laws.
(c) Xxxxxx Xxxxxx White & XxXxxxxxx, counsel to the Company,
shall have furnished to the Representatives their opinion addressed to the
Underwriters and dated the Delivery Date, in form and substance reasonably
satisfactory to the Representatives and their counsel, to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered by the Company;
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(ii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement
of the Company, enforceable in accordance with its terms, except as may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally, by general equity principles (regardless of
whether enforceability is considered in a proceeding in equity or at
law) and by an implied covenant of good faith and fair dealing;
(iii) The Underwritten Securities are in a form contemplated by
the Indenture and approved by the board of directors of the Company and
have been duly authorized by all necessary corporate action and, when
executed and authenticated as specified in the Indenture and delivered
against payment therefor in accordance with this Agreement, will be
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally, by general equity
principles (regardless of whether enforceability is considered in a
proceeding in equity or at law) and by an implied covenant of good faith
and fair dealing;
(iv) The Underwritten Securities and the Indenture conform in
all material respects to the statements concerning them in the
Registration Statement and the Prospectus;
(v) The Indenture is qualified under, and complies as to form
in all material respects with, the Trust Indenture Act;
(vi) The Registration Statement is effective under the Act; no
stop order suspending its effectiveness has been issued, and, to the
knowledge of such counsel, no proceeding for that purpose is pending or
threatened by the Commission; and no order directed to any document
incorporated by reference in the Prospectus has been issued by the
Commission;
(vii) The Registration Statement, as of the time it became
effective, and the Prospectus, as of its issue date (except that, in
each case, no opinion need be expressed as to the financial statements
and schedules and other financial data contained or incorporated by
reference therein), complied as to form in all material respects with
the requirements of the Act and the Trust Indenture Act and the rules
and regulations of the Commission under said Acts, and the documents
incorporated by reference in the Prospectus, when filed with the
Commission (except that no opinion need be expressed as to the financial
statements and schedules and other financial data contained or
incorporated by reference therein), complied as to form in all material
respects with the applicable requirements of the Exchange Act and the
rules and regulations of the Commission thereunder; and (except that no
opinion need be expressed as to the financial statements and schedules
and other financial data
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contained or incorporated by reference therein) nothing has come to the
attention of such counsel to lead them to believe that the Registration
Statement, as of the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of its date and as of
the Delivery Date, contained any 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, not misleading.
(d) All corporate proceedings and other legal matters incident to
the authorization, and validity of this Agreement, and the authorization, form
and validity of the Underwritten Securities, the Indenture, the Registration
Statement, the Prospectus and any supplement, amendment or incorporated
document, other then financial statements and other financial data, and all
other legal matters and transactions contemplated by this Agreement shall be
reasonably satisfactory in all material respects to Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Underwriters; the Company shall have furnished to such counsel
all documents and information that they may reasonably request to enable them to
pass upon such matters; and Xxxxxxx Xxxxxxx & Xxxxxxxx shall have furnished to
the Representatives on the Delivery Date such opinions with respect to such
matters as the Representatives may reasonably request.
(e) (i) Neither the Company nor any of the Subsidiaries shall be
in default (nor shall an event have occurred which, with notice or lapse of
time, or both, would constitute a default) under any provision of any instrument
relating to any outstanding indebtedness of the Company or any of the
Subsidiaries (except where such default would not have a material adverse effect
on the Company and its Subsidiaries taken as a whole) and (ii) no material
amount of the assets of the Company or of the Company and its Subsidiaries taken
as a whole shall have been pledged or mortgaged, except as referred to in the
Registration Statement and Prospectus, as amended or supplemented.
(f) The Company shall have furnished to the Representatives on
the Delivery Date a certificate, dated the Delivery Date, of its President, its
Chief Financial Officer or its Treasurer to the effect that to the best of his
or her knowledge and after reasonable investigation:
(i) The representations, warranties and agreements of the
Company in Paragraph 1 hereof are true and correct as of the Delivery
Date; the Company has complied with all its agreements contained herein
and satisfied all conditions on its part to be performed and satisfied
at or prior to the date of such certificate (except that no certificate
need be given in respect of the conditions set forth in Paragraphs 9(d)
and 9(g) hereof); and the conditions set forth in Paragraph 9(a) hereof
which are to be fulfilled at or prior to the date of such certificate
have been fulfilled; and
(ii) He has reviewed the Registration Statement and the
Prospectus and, in his opinion, (A) the Registration Statement, as of
the time it became effective, did 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, (B)
the Prospectus, as of its date and as of the Delivery Date, does not
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contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
and (C) since the time the Registration Statement became effective there
has not occurred any event required to be set forth in an amended or
supplemented prospectus which has not been so set forth.
(g) The Company shall have furnished to the Representatives on
the Delivery Date a letter in form and substance reasonably satisfactory to the
Representatives in all respects from each of Deloitte & Touche LLP and
Pricewaterhouse Coopers LLP, addressed to the Underwriters and dated as of the
Delivery Date, of the type described in the American Institute of Certified
Public Accountants' Statement on Auditing Standards No. 72 and covering such
specified financial statement items and procedures as the Representatives may
reasonably request.
(h) No order suspending the sale of the Underwritten Securities
in any jurisdiction material to the distribution of the Underwritten Securities
as contemplated hereby and designated by the Representatives pursuant to
Paragraph 6(j) hereof shall have been issued or in existence, and no proceeding
for that purpose shall have been instituted or, to the knowledge of the
Underwriters or the Company, shall be contemplated.
(i) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration Statement, the
Prospectus and any amendments or supplements thereto, taken as a whole, contain
an untrue statement of a fact which, in the opinion of counsel to the
Representatives, is material and omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
10. If the Company shall fail to tender the Underwritten
Securities for delivery to the Underwriters for any reason permitted under this
Agreement, or if the Underwriters shall decline to purchase the Underwritten
Securities for any reason permitted under this Agreement, the Company shall
reimburse the Underwriters for the reasonable fees and expenses of their counsel
and for such other reasonable out-of-pocket expenses as shall have been incurred
by them in connection with this Agreement and the proposed purchase of
Underwritten Securities, and upon demand the Company shall pay the full amount
thereof to the Representatives. If this Agreement is terminated pursuant to
Paragraph 4 hereof by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
11. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement on behalf of the Representatives. Any
notice by the Company to the Underwriters shall be sufficient if given in
writing or by facsimile addressed to the Representatives at such address and
time as may be specified in the Terms Agreement, and any notice by the
Underwriters to the Company shall be sufficient if given in writing or by
facsimile addressed to the Company at 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxxxx 00000, Attention of Xx. Xxxxxxxx X Xxxxxxx, with a copy to the same
address, Attention: Executive Vice President and General Counsel.
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12. This Agreement shall be binding upon each Underwriter, the
Company, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(a) the indemnity agreement of the Company contained in Paragraph 7 hereof shall
also be deemed to be for the benefit of any Participant and the person or
persons, if any, who control any Underwriter or Participant within the meaning
of Section 15 of the Act, and (b) the indemnity agreement of the Underwriters
contained in Paragraph 7 hereof shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person who controls the Company within the
meaning of Section 15 of the Act. Nothing in this Agreement is intended or shall
be construed to give any person, other than the persons referred to in this
Paragraph, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
13. For purposes of this Agreement, "business day" means any day
on which the New York Stock Exchange is open for trading.
14. All representations, warranties, indemnities, and agreements
of the Company contained in this Agreement, or contained in certificates of
officers submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of the termination of this Agreement or any investigation
made by or on behalf of the Underwriters or any person controlling the
Underwriters or by or on behalf of the Company, and shall survive each delivery
of and payment for any of the Underwritten Securities.
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. The Terms Agreement may be
executed in one of more counterparts, and if executed in more than one
counterpart the executed counterparts shall together constitute a single
instrument.
