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Exhibit 1.1
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NATIONAL CITY CORPORATION
(a Delaware corporation)
Senior Debt Securities and
Subordinated Debt Securities
UNDERWRITING AGREEMENT
Dated: April 28, 1999
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NATIONAL CITY CORPORATION
(a Delaware corporation)
Senior Debt Securities and
Subordinated Debt Securities
UNDERWRITING AGREEMENT
April 28, 1999
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
National City Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time, either together or separately,
certain of its senior debt securities (the "Senior Securities") and/or
subordinated debt securities (the "Subordinated Securities", and together with
the Senior Securities, the "Debt Securities"), in one or more offerings on terms
determined at the time of sale and set forth in a terms agreement in the form of
Exhibit A hereto (the "Terms Agreement").
The Senior Securities are to be issued under an Indenture to be dated
as of April 30, 1999 (as it may be amended or supplemented from time to time,
the "Senior Indenture"), between the Company and The Bank of New York ("BONY"),
as trustee (the "Senior Trustee"). The Subordinated Securities are to be issued
under an Indenture to dated as of April 30, 1999 (as it may be amended or
supplemented from time to time, the "Subordinated Indenture"), between the
Company and BONY, as trustee (the "Subordinated Trustee", and together with the
Senior Trustee, the "Trustees"). The Senior Indenture and the Subordinated
Indenture are collectively referred to herein as the "Indentures." The Senior
Securities and the Subordinated Securities may have varying designations,
maturities, rates and times of payment of interest, if any, selling prices,
redemption terms, if any, exchange terms, if any, and other specific terms as
set forth in the applicable Terms Agreement relating thereto.
As used herein, unless the context otherwise requires, the term
"Underwriters" shall mean the firm or firms specified as Underwriter or
Underwriters in the applicable Terms Agreement relating to the Debt Securities
and the term "you" shall mean the Underwriter or Underwriters, if no
underwriting syndicate is purchasing the Debt Securities, or the representative
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representatives of the Underwriters, if an underwriting syndicate is purchasing
the Debt Securities, as specified in the applicable Terms Agreement.
Whenever the Company determines to make an offering of Debt Securities,
the Company will enter into a Terms Agreement providing for the sale of the
applicable Debt Securities to, and the purchase and offering thereof by, the
Underwriters. The Terms Agreement relating to the Debt Securities shall specify
whether Senior Securities or Subordinated Securities are to be issued, the names
of the Underwriters participating in such offering (subject to substitution as
provided in Section 10 hereof), the principal amount of Debt Securities which
each such Underwriter severally agrees to purchase, the price at which the Debt
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, the time and place of delivery and payment and other
specific terms. The Terms Agreement may take the form of an exchange of any
standard form of written telecommunication between you and the Company. Each
offering of Debt Securities will be governed by this Agreement, as supplemented
by the applicable Terms Agreement, and this Agreement and such Terms Agreement
shall inure to the benefit of and be binding upon the Company and each
Underwriter participating in the offering of such Debt Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-71207), including a prospectus, relating to the Debt Securities and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"). Such registration statement
has been declared effective by the Commission. As provided in Section 3(a), a
prospectus supplement reflecting the terms of the applicable Debt Securities,
the terms of the offering thereof and the other matters set forth therein will
be prepared and filed pursuant to Rule 424 under the 1933 Act in connection with
any offering of Debt Securities. Any such prospectus supplement, in the form
first filed after the date of the applicable Terms Agreement pursuant to Rule
424, is herein referred to as the "Prospectus Supplement." Such registration
statement, as amended at the date of the applicable Terms Agreement, including
the exhibits thereto and the documents incorporated by reference therein, is
herein called the "Registration Statement," and the basic prospectus included
therein relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement, is herein called the
"Prospectus," except that, if such basic prospectus is amended or supplemented
on or prior to the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to the basic prospectus
as so amended or supplemented and as supplemented by the Prospectus Supplement,
in either case including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations") (the "Rule 430A Information")
or Rule 434(d) of the 1933 Act Regulations (the "Rule 434 Information") and the
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by
reference therein; provided that, if the Company files a registration statement
with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the
"Rule 462(b) Registration Statement"), then, after such filing, all references
to "Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement; and PROVIDED, FURTHER, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the
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Company in reliance upon Rule 434 of the 1933 Act Regulations, and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the Registration Statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the applicable Terms Agreement. For purposes of this Agreement,
all references to the Registration Statement, Prospectus, Term Sheet or
preliminary prospectus or to any amendment or supplement to any of the foregoing
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
Section 1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents and
warrants to each of the Underwriters as of the date hereof, as of the date of
each Terms Agreement and as of the Closing Time referred to in Section 2(b)
that:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act. Each of the Registration Statement, including any
Rule 462(b) Registration Statement, has become effective under the 1933
Act and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
(ii) As of the effective date of the Registration Statement
and any amendment thereto and as of the applicable filing date as to
any Prospectus Supplement and any amendment thereto, (A) the
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations, the Trust Indenture Act
of 1939, as amended (the "1939 Act"), and the rules and regulations of
the Commission under the 1939 Act (the "1939 Act Regulations");
(B) neither the Registration Statement nor any amendment or supplement
thereto contained or will contain an untrue statement of a material
fact or omitted or will omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and (C) neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will 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, except that
this representation and warranty does not apply to statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through you expressly for use in the Registration Statement or the
Prospectus. At the Closing Time, the applicable Indenture, if any, will
comply in all material respects with the requirements of the 1939 Act
and the 1939 Act Regulations.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to
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the Underwriters for use in connection with any offering hereunder was
substantively identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(iii) The documents incorporated by reference or deemed to be
incorporated in the Prospectus pursuant to Item 12 of Form S-3 under
the 1933 Act, at the time they were or hereafter are filed with the
Commission, complied in all material respects with the requirements of
the 1934 Act, and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, when read together and
with the other information in the Prospectus, as of the applicable
effective date of the Registration Statement and any amendment thereto,
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iv) The accountants who certified the financial statements
and supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(v) This Agreement has been duly authorized, executed and
delivered by the Company; and upon execution and delivery of each Terms
Agreement by the Company, such Terms Agreement shall have been duly
authorized, executed and delivered by the Company.
(vi) The financial statements incorporated by reference in the
Registration Statement present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as at the
dates indicated and the consolidated results of their operations and
cash flows for the periods specified; except as otherwise stated in the
Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis; and the supporting schedules included in
the Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
and summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement.
(vii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition (financial or otherwise), or in the earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries, considered as one
enterprise, and (C) except for regular quarterly dividends on the
Company's Common Stock, par value $4.00 per share (the "Common Stock"),
the Company's Preferred Stock, stated value $50 per share, and the
Company's repurchase of its Common Stock and Preferred Stock pursuant
to its publicly announced stock repurchase programs, there has been no
dividend or
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distribution of any kind declared, paid or made by the Company on any
class of its Capital Stock.
(ix) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement; the Company is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended
(the "Bank Holding Company Act"); and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not have a Material Adverse Effect.
(x) Each "significant subsidiary" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X) (a "Significant
Subsidiary") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not have a
Material Adverse Effect; except as otherwise stated in the Registration
Statement, all of the issued and outstanding capital stock of each such
Significant Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable (subject to the provisions of Section 55
of Title 12 of the United States Code in the case of Significant
Subsidiaries which are national banking associations) and, except for
director's qualifying shares, is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(xi) The Debt Securities conform in all material respects to
the summary descriptions thereof contained or incorporated by reference
in the Prospectus and such summary descriptions conform to the rights
set forth in the instruments defining the same.
(xii) The Debt Securities shall, on the date of the Terms
Agreement relating to such Debt Securities, be duly authorized for
issuance and sale pursuant to this Agreement and, when such Debt
Securities are duly executed, authenticated and delivered pursuant to
the provisions of this Agreement and the applicable Indenture against
payment of the consideration therefor in accordance with this Agreement
and the applicable Terms Agreement, such Debt Securities will be valid
and legally binding obligations of the Company enforceable in
accordance with their terms, except as enforceability thereof may be
limited by bankruptcy, reorganization, moratorium, fraudulent
conveyance, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and will be entitled to the benefits of
the applicable Indenture; and the Indentures conform in all material
respects to all statements relating
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thereto contained in the Prospectus.
(xiv) The applicable Indenture has been duly authorized by the
Company, will be substantially in the form filed as an exhibit to the
Registration Statement and, when duly executed and delivered by the
Company and the Trustee, will constitute a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except as enforceability thereof may be limited by bankruptcy,
reorganization, moratorium, fraudulent conveyance, insolvency or other
laws relating to or affecting enforcement of creditors' rights or by
general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the summary
descriptions of the applicable Indenture set forth in the Prospectus
conforms in all material respects to the provisions contained in the
applicable Indenture.
(xv) Neither the Company nor any Significant Subsidiary is in
violation of its charter or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any material contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the Company or any of
its Significant Subsidiaries is a party or by which it or any of them
may be bound or to which any of the property or assets of the Company
or of any of its Significant Subsidiaries may be subject; and the
execution, delivery and performance of this Agreement, the applicable
Terms Agreement and the Indentures by the Company, the issuance and
delivery of the Debt Securities, the consummation by the Company of the
transactions contemplated in this Agreement, the applicable Terms
Agreement and in the Registration Statement, and compliance by the
Company with the terms of this Agreement, the applicable Terms
Agreement and the Indentures do not and will not conflict with or
constitute a breach of or default under, or result in the creation or
imposition of any material lien, charge or encumbrance upon any
material property or assets of the Company or any of its Significant
Subsidiaries pursuant to any material contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which
the Company or any of its Significant Subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property
or assets of the Company or any of its Significant Subsidiaries is
subject, nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any applicable law,
administrative regulation or administrative or court decree.
(xvi) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection
with the offering, issuance or sale of the Debt Securities hereunder or
the consummation of the transactions contemplated by this Agreement or
for the due execution, delivery or performance of the Indentures by the
Company, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations (which
requirements have been met) or state securities laws and except for the
qualification of the Indentures under the 1939 Act.
(xvii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting
the Company or any of its subsidiaries which is required to
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be disclosed in the Registration Statement (other than as disclosed
therein), or which might result in a Material Adverse Effect, or which
might materially and adversely affect the properties or assets of the
Company and its subsidiaries considered as one enterprise, or, which
might materially or adversely affect the consummation of this Agreement
or any Terms Agreement; all pending legal or governmental proceedings
to which the Company or any subsidiary is a party or of which any of
their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business of the Company or any subsidiary,
are considered in the aggregate, not material; and there are no
contracts or documents of the Company or any Significant Subsidiary
which are required to be filed or incorporated by reference as exhibits
to the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed or incorporated by reference.
(xix) The Company and its Significant Subsidiaries possess
such certificates, authorities or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies material to the
conduct of the business now operated by them, and neither the Company
nor any of its Significant Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly, or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or otherwise,
or the earnings or business affairs or which is reasonably likely to
affect the business prospects of the Company and its subsidiaries
considered as one enterprise.
(xx) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Debt Securities.
(a) Any certificate signed by any duly authorized officer of the
Company or any Significant Subsidiary and delivered to you or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
Section 2. PURCHASE AND SALE. The several commitments of the Underwriters to
purchase Debt Securities pursuant to any Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth.
(a) Payment of the purchase price for, and delivery of, any Debt
Securities to be purchased by the Underwriters pursuant to the applicable Terms
Agreement shall be made at the office of Xxxxx & Wood LLP, Xxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon
by you and the Company in the applicable Terms Agreement, at 9:00 A.M., New York
City time, on the third (fourth, if the pricing occurs after 4:30 P.M., New York
City time, on any given day) business day (unless postponed in accordance with
the provisions of Section 10) following the date of the applicable Terms
Agreement or at such other time as shall be agreed upon by you and the Company
(each such time and date being referred to as a "Closing Time"). Unless
otherwise specified in the applicable Terms Agreement, payment shall be made by
wire transfer in immediately available funds to the account so specified to the
Underwriters against delivery to you for the respective accounts of the
Underwriters of the Debt
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Securities to be purchased by them. Such Debt Securities or certificates for
such Debt Securities, as applicable, shall be in such denominations and
registered in such names as you may request in writing at least one full
business day prior to the applicable Closing Time. Such Debt Securities or
certificates, as applicable, will be made available for examination and
packaging by you not later than 10:00 A.M. on the business day prior to Closing
Time.
Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a)(i) If reasonably requested by you in connection with the offering
of the Debt Securities, the Company will prepare a preliminary prospectus
supplement containing such information concerning the Debt Securities as you and
the Company deem appropriate and (ii) promptly following the execution of each
Terms Agreement, the Company will prepare a Prospectus Supplement that complies
with the 1933 Act and the 1933 Act Regulations and that sets forth the number or
principal amount of Debt Securities covered thereby, the names of the
Underwriters participating in the offering and the principal amount of Debt
Securities which each severally has agreed to purchase, the name of each
Underwriter, if any, acting as representative in connection with the offering,
the price at which the Debt Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the selling concession and
reallowance, if any, and such other information concerning the Debt Securities
as you and the Company deem appropriate in connection with the offering of the
Debt Securities. The Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act
and will furnish to the Underwriters named therein as many copies of any
preliminary prospectus supplement, the Prospectus and the Prospectus Supplement
as you shall reasonably request. If the Company elects to rely on Rule 434 under
the 1933 Act Regulations, the Company will prepare an abbreviated term sheet
that complies with the requirements of Rule 434 under the 1933 Act Regulations
(a "Rule 434 Prospectus") and will provide the Underwriters with copies of the
form of Rule 434 Prospectus, in such number as the Underwriters may reasonably
request, and file or transmit for filing with the Commission the form of
Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations by the close of business
in New York on the business day immediately succeeding the date of the
applicable Terms Agreement.
(b) The Company will notify each of you immediately, and confirm the
notice in writing, (i) of the effectiveness of the Registration Statement and
any amendment thereto (including any post-effective amendment), (ii) of the
mailing or the delivery or XXXXX transmission to the Commission for filing of
any supplement to the Prospectus or any document to be filed pursuant to the
1934 Act, (iii) of the receipt of any comments from the Commission, (iv) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(c) The Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including any filing under
Rule 462(b)), any Term Sheet or any amendment, supplement or revision to the
Prospectus, whether pursuant to the 1934 Act, the 1933 Act or otherwise, and
will furnish you with copies of any such amendment or supplement
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or other document proposed to be filed a reasonable amount of time prior to such
proposed filing and will not file any such amendment or supplement or other
document or use any such prospectus to which you or counsel shall reasonably
object.
(e) The Company will deliver to you as many signed copies of the
registration statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) as you
may reasonably request and will also deliver to you a conformed copy of the
Registration Statement and of each amendment thereto for each of the
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be substantively identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(f) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Debt Securities any event shall
occur or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser or if it shall be necessary,
in the opinion of either such counsel, at any such time to amend or supplement
the Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, such amendment or supplement,
whether by documents pursuant to the 1934 Act or otherwise, as may be necessary
to correct such untrue statement or omission to make the Registration Statement
or the Prospectus comply with such requirements.
(g) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required to be
filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.
(h) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Debt Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as you may designate;
PROVIDED, HOWEVER, that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified and will
not be obligated to execute a general consent to service of process in any
state. In each jurisdiction in which the Debt Securities have been so qualified,
the Company will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for as long as may
be required for the distribution of the Debt Securities. The Company will
promptly advise you of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Debt Securities for sale
in any such state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(i) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a twelve month period beginning
not later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
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(j) If and to the extent specified in the applicable Terms Agreement,
the Company will use its best efforts to effect the listing of the Debt
Securities on the New York Stock Exchange by the Closing Time with respect to
the applicable Terms Agreement.
(k) For such period of time as is specified in the applicable Terms
Agreement, commencing on the date of such Terms Agreement, the Company will not,
without the prior written consent of the Underwriter, directly or indirectly,
sell, offer to sell, grant any option for the sale of, or otherwise dispose of,
any Debt Securities.
Section 4. PAYMENT OF EXPENSES. The Company will pay all expenses incident to
the performance of its obligations under this Agreement and any applicable Terms
Agreement, including (a) the printing and filing of the Registration Statement,
as originally filed and of each amendment thereto, (b) the reproduction and
delivery of this Agreement and each Terms Agreement, (c) the preparation,
issuance and delivery of the certificates for Debt Securities to the
Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Debt Securities under securities laws
in accordance with Section 3(g) hereof, including filing fees and fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and the Legal Investment
Survey (copies of which shall be furnished to the Company promptly after
preparation by such counsel), (f) the printing and delivery to the Underwriters
of copies of the Registration Statement and all amendments thereto, of each
preliminary prospectus, and of the Prospectus and any amendments or supplements
thereto, (g) the reproduction and delivery to the Underwriters of copies of the
Indentures, if applicable, and the Blue Sky Survey and any Legal Investment
Survey, (h) the fees of rating agencies, (i) the fees and expenses, if any,
incurred with respect to any filing with the National Association of Securities
Dealers, Inc. ("NASD"), and (j) the fees and expenses, if applicable, incurred
in connection with the listing of the Debt Securities.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 5 or Section 9(a)(i) or (iv) hereof, the Company shall
reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for such Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Debt Securities pursuant to any Terms
Agreement are subject to the accuracy of the representations and warranties of
the Company herein contained, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance by the Company of all of its covenants and other obligations
hereunder, and to the following further conditions:
(a) At the applicable Closing Time:
(i) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the 1933 Act. No
stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission. Any request on the part of
the Commission for additional information shall have been complied with
to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description of the
Debt Securities, the specific method of distribution and similar
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matters shall have been filed with the Commission in accordance with
Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required
post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of
Rule 430A), or, if the Company has elected to rely upon Rule 434 of the
1933 Act Regulations, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance with
Rule 424(b)(7);
(iii) The rating assigned by any nationally recognized
statistical rating organization to any debt securities of the Company
as of the date of the applicable Terms Agreement shall not have been
lowered since the execution of such Terms Agreement nor shall any such
rating organization have publicly announced that it has placed any debt
securities of the Company on what is commonly termed a "watch list" for
possible downgrading;
(iv) There shall not have come to the attention of such of
you as may be named in the applicable Terms Agreement any facts that
would cause such of you to believe that the Prospectus, together with
the applicable Prospectus Supplement, at the time it was required to be
delivered to a purchaser of the Debt Securities, contained an untrue
statement of a material fact or omitted 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.
(b) At the applicable Closing Time you shall have received:
(1) The favorable opinion, dated as of the applicable Closing
Time, of Xxxxx X. Xxxxxxx, Senior Vice President, General Counsel and
Secretary of the Company, or such other counsel for the Company
satisfactory to such of you as may be named in the applicable Terms
Agreement, in form and substance satisfactory to such of you as may be
named in the applicable Terms Agreement to the effect that:
(i) The applicable Indenture has been duly and validly
authorized, executed and delivered by the Company and constitutes the
valid and binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, reorganization, moratorium, fraudulent conveyance,
insolvency or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles (regardless of
whether such enforceability is considered in a proceeding in equity or
at law).
(ii) The Debt Securities are in the form contemplated by the
applicable Indenture, and have been duly and validly authorized by all
necessary corporate action and, when executed and authenticated as
specified in the applicable Indenture and delivered against payment
pursuant to this Agreement, as supplemented by the applicable Terms
Agreement, will be valid and binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, reorganization, moratorium,
fraudulent conveyance, insolvency or other laws relating to or
affecting enforcement of creditors' rights or by general equity
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and except further as enforcement
thereof may be limited by requirements that a claim (or a foreign
currency judgment in respect of such claim) be converted into United
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States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law, and will be entitled to the benefits of the
applicable Indenture.
(iv) The Debt Securities and the Indenture conform in all
material respects to the descriptions thereof in the Prospectus and the
applicable Prospectus Supplement.
(v) The applicable Indenture is qualified under the 1939 Act.
(vi) This Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(vii) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434
Information, as applicable, the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or
issue dates (other than financial statements and supporting schedules
included therein or omitted therefrom, and the Trustee's Statement of
Eligibility on Form T-1 ("Form T-1") as to which such counsel need not
express an opinion) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
(viii) The information in the Prospectus under the caption
"United States Taxation" to the extent that such information
constitutes matters of law, summaries of legal matters, documents or
proceedings, or legal conclusions, has been reviewed by such counsel
and is correct in all material respects.
(ix) No authorization, approval, consent, order or decree of
any court or governmental authority or agency is required in connection
with the sale of the Debt Securities under this Agreement and the
applicable Terms Agreement other than as may be required under state
securities laws.
(x) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(xi) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement.
(xii) The Company is duly registered as a bank holding company
under the Bank Holding Company Act; to the best knowledge and
information of such counsel, after due investigation, the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify or be in good standing
would not have a Material Adverse Effect.
(xiii) Each Significant Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
continues to hold a valid certificate to do business as such and has
full power and authority to conduct business as such, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the
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Registration Statement and, to the best knowledge and information of
such counsel, after due investigation, is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not
have a Material Adverse Effect; and all of the issued and outstanding
capital stock of each such Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable
(subject to the provisions of Section 55 of Title 12 of the United
States Code in the case of Significant Subsidiaries which are national
banking associations) and, to the best knowledge and information of
such counsel, after due investigation, is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xv) The Registration Statement, including any Rule 462(b)
Registration Statement, is effective under the 1933 Act; any required
filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the
best knowledge and information of such counsel, after due
investigation, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission.
(xvi) Each document filed pursuant to the 1934 Act (other than
the financial statements and supporting schedules included therein or
omitted therefrom, as to which such counsel need express no opinion)
and incorporated by reference in the Prospectus complied when so filed
as to form in all material respects with the 1934 Act and the rules and
regulations thereunder.
(xvii) To the best knowledge and information of such counsel,
after due investigation, there are no legal or governmental proceedings
pending or threatened which are required to be disclosed in the
Registration Statement, other than those disclosed therein, and all
pending legal or governmental proceedings to which the Company or any
subsidiary of the Company is a party or to which any of their property
or assets is subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business of the Company or any such subsidiary, are not material.
(xviii) The information in the Prospectus under the captions
"Description of Debt Securities," "Senior Securities" and "Subordinated
Securities" and, with respect to the Prospectus Supplement relating to
the Debt Securities, any further description with respect to such Debt
Securities and, to the extent that such information constitutes matters
of law, summaries of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(xix) To the best knowledge and information of such counsel,
after due investigation, there are no material contracts, indentures,
deposit agreements, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described
or referred to therein or filed or incorporated by reference as
exhibits thereto, the descriptions thereof or references thereto are
correct, and no material default exists in the due performance or
observance of any material obligation, agreement, covenant or
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condition contained in any contract, indenture, deposit agreement,
mortgage, loan agreement, note, lease or other instrument so described,
referred to, or filed or incorporated by reference.
(xxi) To the best knowledge and information of such counsel,
after due investigation, the execution and delivery of this Agreement,
the applicable Terms Agreement and the Indenture by the Company and the
consummation by the Company of the transactions contemplated herein and
therein, do not and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its Significant Subsidiaries pursuant to, any material contract,
indenture, deposit agreement, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any applicable law, or of any judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any Significant Subsidiary or
any of its properties.
(2) The favorable opinion of Xxxxx & Wood LLP, counsel for the
Underwriters, with respect to the matters set forth in (i)-(iv)
inclusive and (vi), (ix), (x) and (xiii) of subsection (b)(1) of this
Section.
(3) In giving their opinions required by subsections (b)(1)
and (b)(2), respectively, of this Section, Xxxxx X. Xxxxxxx, Esq. and
Xxxxx & Wood LLP shall each additionally state that nothing has come to
their attention that would lead them to believe that the Registration
Statement (except for financial statements and schedules and other
financial data included or incorporated by reference therein or omitted
therefrom and the Form T-1, as to which such counsel need make no
statement) at the time it became effective, or if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed
by the Company with the Commission subsequent to the effectiveness of
the Registration Statement, then at the time of the most recent such
filing, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as
amended or supplemented at the date of the applicable Terms Agreement
and at Closing Time, contains an untrue statement of material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) At the applicable Closing Time there shall not have been, since the
date of the applicable Terms Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, or in the earnings or business affairs
or which is reasonably likely to affect the business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and you shall have received a certificate of the
Chairman or the President or the Deputy Chairman or an Executive or Senior Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of such Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
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warranties of the Company contained in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of such
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be complied with or satisfied at or prior to such
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
(e) At the time of the execution of this Agreement and at the
applicable Closing Time, you shall have received from Ernst & Young LLP a letter
dated such date, in form and substance satisfactory to you, to the effect that
(i) they are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
applicable published rules and regulations thereunder; (ii) in their opinion the
consolidated financial statements and supporting schedules audited by them and
included or incorporated by reference in the Registration Statement comply as to
form in all material respects with the applicable accounting requirements of the
1933 Act and the related published rules and regulations with respect to
registration statement Form S-3 and the 1934 Act and the 1934 Act Regulations;
(iii) based upon limited procedures set forth in detail in such letter, nothing
has come to their attention which causes them to believe that (A) the unaudited
financial statements and supporting schedules of the Company and its
subsidiaries included in the Registration Statement and Prospectus do not comply
as to form in all material respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations or are not fairly presented in
conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements included
in the Registration Statement, (B) at a specified date not more than three days
prior to the date of such letter, there has been any change in the capital stock
of the Company or any increase in the consolidated long term debt of the Company
and its subsidiaries or any decrease in the total earning assets or total assets
of the Company and its subsidiaries, in each case as compared with the amounts
shown in the most recent balance sheet included in the Registration Statement
or, during the period from a specified date not more than three days prior to
the date of such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in net interest income, net interest
income after provision for loan loss, non-interest income, net income or net
income per share of the Company and its subsidiaries as compared on the
corresponding period in the preceding year except in all instances for changes,
increases or decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur; and (iv) in addition to the examination
referred to in their opinions and the limited procedures referred to in clause
(iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included in the Registration Statement and
Prospectus and which are specified by you and have found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its subsidiaries
identified in such letter.
(f) At the applicable Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Debt Securities as herein contemplated and related proceedings, or in order
to evidence the accuracy and completeness of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company at or prior to the Closing Time in
connection with the authorization, issuance and sale of the Debt Securities as
herein contemplated shall be reasonably satisfactory
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in form and substance to you and counsel for the Underwriters.
(h) If the NASD is required to pass upon the fairness and
reasonableness of the underwriting terms and arrangements, at the applicable
Closing Time, the NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by such of you as may be named in such Terms Agreement by
notice to the Company at any time at or prior to the applicable Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof. Notwithstanding any such termination,
the provisions of Sections 6, 7 and 8 shall remain in effect.
Section 6. INDEMNIFICATION. (1) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration
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Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); PROVIDED FURTHER, that as
to any preliminary prospectus, this indemnity agreement shall not inure to the
benefit of any Underwriter or any person controlling that Underwriter on account
of any loss, claim, damage, liability or action arising from the sale of Debt
Securities to any person by that Underwriter if (i) that Underwriter failed to
send or give a copy of the Prospectus (excluding the documents incorporated by
reference therein), as the same may be amended or supplemented, to that person
within the time required by the Securities Act and (ii) the Company delivered to
that Underwriter a sufficient number of copies of the Prospectus pursuant to
Section 3(a)(1) hereof, and the untrue statement or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact in such
preliminary prospectus was corrected in the Prospectus.
(1)(2) Insofar as this indemnity agreement may permit
indemnification for liabilities under the 1933 Act of any person who is
a partner of an Underwriter or who controls an underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and
who, at the date of this Agreement, is a director or officer of the
Company or controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, such indemnity agreement is
subject to the undertaking of the Company in the Registration Statement
under Item 17 thereof.
(i) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a)(1) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(j) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement.
In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; PROVIDED, HOWEVER, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants (including any impleaded
parties) in any such action include both the
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indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties at the expense of the indemnifying party or parties. After notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof and approval by such indemnified party of counsel appointed
to defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 6 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence or (ii) the indemnifying party has
authorized in writing the employment of counsel for the indemnified party at the
expense of the indemnifying party.
In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim 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 any indemnified party.
(k) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(1)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Section 7. CONTRIBUTION. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other
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hand from the offering of the Debt Securities pursuant to this Agreement or (ii)
if the allocation provided by clause (i) 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 of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Debt
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Debt
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the Debt Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such 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 by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company 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 (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Debt Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
Section 9. For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the
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Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the principal amount of Debt Securities set forth
opposite their respective names in the applicable Terms Agreement and not joint.
Section 11. REPRESENTATIONS WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement or any
Terms Agreement or contained in certificates of executive officers of the
Company submitted pursuant thereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person, or by or on behalf of the Company, and shall survive
delivery of the Debt Securities to the Underwriters.
Section 12. TERMINATION OF AGREEMENT.
(a) This Agreement may be terminated for any reason at any time by
either the Company or you upon the giving of 30 days' written notice of such
termination to the other party hereto. Such of you as may be named in any Terms
Agreement may also terminate such Terms Agreement, immediately upon notice to
the Company, at any time at or prior to the applicable Closing Time (i) if there
shall have been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business or (ii) if there shall have occurred any material
adverse change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the reasonable judgment of such of you
as are named in such Terms Agreement, impracticable to market the Debt
Securities or to enforce contracts for the sale of the Debt Securities, or (iii)
if trading in any securities of the Company shall have been suspended by the
Commission or a national securities exchange, or if trading generally on either
the American Stock Exchange or the New York Stock Exchange or in the NASDAQ
National Market shall have been suspended or materially limited, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, by either of said exchanges or by order
of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal, New York, Ohio, Pennsylvania,
Indiana, Michigan or Illinois authorities, or (iv) if the rating assigned by any
nationally recognized statistical rating organization to any debt securities of
the Company as of the time any applicable Terms Agreement was entered into shall
have been lowered since that time or if any such rating organization shall have
publicly announced that it has placed any debt securities of the Company on what
is commonly termed a "watch list" for possible downgrading. In the event of any
such termination, (x) the covenants set forth in Section 3 with respect to any
offering of the Debt Securities shall remain in effect so long as any
Underwriter owns any such Debt Securities purchased from the Company pursuant to
the applicable Terms Agreement and (y) the covenant set forth in Section 3(h),
the provisions of Section 4, the indemnity agreement set forth in Section 6, the
contribution provisions set forth in Section 7 and the provisions of Sections 8
and 13 shall remain in effect.
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Section 13. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters participating in an offering of Debt Securities shall fail at the
applicable Closing Time to purchase the Debt Securities which it or they are
obligated to purchase hereunder and under the applicable Terms Agreement (the
"Defaulted Securities"), then such of you as are named therein shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
nondefaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, during such 24 hours you shall
not have completed such arrangements for the purchase of all the Defaulted
Securities, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Debt Securities to be purchased
pursuant to such Terms Agreement, the nondefaulting Underwriters named in such
Terms Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations bear to the
underwriting obligations of all nondefaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of Debt Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without liability on
the part of any nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default by any Underwriter or Underwriters as
set forth in this Section, either you or the Company shall have the right to
postpone the applicable Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Section 14. NOTICES. All notices and other communications under this Agreement
and any Terms Agreement shall be in writing and shall be deemed to have been
duly given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to you at World
Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or in respect of any
Terms Agreement, to such other person and place as may be specified therein;
notices to the Company shall be directed to it at National City Corporation,
0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, attention of Xxxxxx X.
Xxxxxxxxxx, Senior Vice President and Treasurer.
Section 15. PARTIES. This Agreement shall inure to the benefit of and be binding
upon you and the Company and any Underwriter who becomes a party to a Terms
Agreement, and their respective successors. Nothing expressed or mentioned in
this Agreement or a Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than the parties hereto and thereto and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling
persons and officers and
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directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of the Debt Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 17. GOVERNING LAW AND TIME. This Agreement and each Terms Agreement
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said State.
Specified times of day refer to New York City time.
Section 18. EFFECT OF HEADINGS. The Article and Section headings herein are for
convenience only and shall not effect the construction hereof.
Section 19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
____________________________
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
Very truly yours,
NATIONAL CITY CORPORATION
By /s/ Xxxxxx Xxxxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Senior Vice President and
Treasurer
Confirmed and accepted as of
the date first above written:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ X. Xxxxxxx Xxxxxx
Name: X. Xxxxxxx Xxxxxx
Title: Director
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Exhibit A
NATIONAL CITY CORPORATION
[Title of Securities]
TERMS AGREEMENT
---------------
Dated: , 199__
To: National City Corporation
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Re: Underwriting Agreement dated , 199_.
Dear Sirs:
We (the "Representative[s]") understand that National City Corporation, a
Delaware corporation (the "Company"), proposes to issue and sell $__________
aggregate principal amount of its [senior debt securities] [and] [subordinated
debt securities] (the "Debt Securities"). This Agreement is the Terms Agreement
referred to in the underwriting agreement dated _______________, 199__ (the
"Underwriting Agreement"). Subject to the terms and conditions set forth herein
or incorporated by reference herein, the Underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
amounts of Debt Securities set forth below.
Name of Principal Amount of
Underwriter Debt
Securities
----------
____________________
Total $___________________
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DEBT SECURITIES
Title of Debt Securities:
Principal amount to be issued: $
Senior or Subordinated:
Currency:
Current ratings:
Interest rate or formula: %
Interest payment dates:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Initial public offering price: % of the principal amount, plus accrued
interest, if any, [or amortized original issue discount, if any,] from
, 19 .
Purchase price: % of the principal amount, plus accrued interest, if any, [or
amortized original issue discount, if any,] from , 19
(payable in next day funds).
Listing requirement: [None] [NYSE]
Closing date and location:
Additional representations, if any:
Lock-up provisions:
Other terms and conditions:
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Each Underwriter severally agrees, subject to the terms and provisions
of the above referenced Underwriting Agreement, which is incorporated herein in
its entirety and made a part hereof, to purchase the principal amount of Debt
Securities set forth opposite its name.
This Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed in said State.
If the foregoing is in accordance with your understanding of the
agreement between you and the Company, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all counterparts and
together with the Underwriting Agreement, shall be a binding agreement between
the Underwriters named herein and the Company in accordance with its terms and
the terms of the Underwriting Agreement.
Very truly yours,
[Representative[s]]
By__________________________________________
Acting on behalf of themselves and the other
named Underwriters
Confirmed and accepted as of
the date first above written:
NATIONAL CITY CORPORATION
By:__________________________
Name and Title:
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