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Exhibit 1.2
$[150,000,000]
% PREFERRED SECURITIES, SERIES I
FW PREFERRED CAPITAL TRUST I
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
UNDERWRITING AGREEMENT
New York, New York
Dated the date set forth in
Schedule I hereto
To the Representative(s)
named in the Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
FW Preferred Capital Trust I, a statutory business trust (the
"Trust") organized under the Business Trust Act of the State of Delaware
(Chapter 38, Title 12 of the Delaware Code, 12 Del. C. Sections 3801 et
seq.) (the "Delaware Business Trust Act") and Xxxxxx Xxxxxxx Corporation, a New
York corporation (the "Corporation" and, together with the Trust, the
"Offerors"), as sponsor of the Trust and as guarantor, subject to the terms and
conditions stated herein, confirm their agreement with you and each of the other
underwriters named in Schedule II hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives"), with respect to the issue and
sale by the Trust and the purchase by the Underwriters, acting severally and not
jointly, of the aggregate liquidation amount (the "Firm Securities") identified
in Schedule I hereto of the Trust's preferred securities (liquidation amount $25
per preferred security) (the "Preferred Securities") to be issued under an
Amended and Restated Declaration of Trust of the Trust (the "Declaration") among
the Corporation, as Sponsor, and the administrative trustees identified in
Schedule I hereto (the "Administrative Trustees"), Xxxxxx Trust and Savings
Bank, as property trustee (the "Property Trustee") and Wilmington Trust Company,
as Delaware Trustee (the "Delaware Trustee" and, together with the
Administrative Trustees and the Property Trustee, the "Trustees"). The Preferred
Securities will be fully and unconditionally guaranteed (the "Guarantee",
together with the Preferred Securities, the "Securities") by the Corporation to
the extent set forth in the Guarantee Agreement (the "Guarantee Agreement"),
between the Corporation and Xxxxxx Trust and Savings Bank, as guarantee trustee
(the "Guarantee Trustee"). In addition, the Trust proposes to grant to the
Underwriters an option to purchase up to an additional aggregate liquidation
amount of the Preferred Securities identified in Schedule I hereto on the terms
and for the purposes set forth in Section 3 hereof (the "Option Securities").
The Firm Securities and the Option Securities, if purchased, are hereinafter
collectively called "Preferred Securities". The Corporation will be the owner of
all of the beneficial ownership interests represented by common securities (the
"Common Securities", together with the Preferred Securities, the "Trust
Securities") of the Trust. Concurrently with the issuance of the Securities and
the Corporation's purchase of all of the Common Securities of the Trust, the
Trust will invest the proceeds of each in the Corporation's subordinated debt
securities identified in Schedule I hereto (the "Debentures"). The Debentures
are to be issued under the indenture (the "Base Indenture"), between the
Corporation and Xxxxxx Trust and Savings Bank, as indenture trustee (the
"Indenture Trustee"), as amended by a supplemental indenture, between the
Corporation and the Indenture Trustee, pertaining to the Debentures to be
purchased by the
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Trust. If the firm or firms listed in Schedule II hereto include only the firm
or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives" shall each be deemed to refer to such firm or firms.
1. Representations, Warranties and Agreements of the
Corporation and the Trust. The Offerors, jointly and severally, represent and
warrant to each Underwriter as of the date hereof and as of each Closing Date
(hereinafter defined), and agrees with each Underwriter, as follows:
(a) The Corporation meets the requirements for the
use of Form S-3 under the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations promulgated thereunder
(the "Rules and Regulations"), and has prepared and filed with the
Securities and Exchange Commission (the "Commission"), a registration
statement on Form S-3 (the file number of which is set forth in
Schedule I hereto), which has become effective, for the registration of
the Securities under the Securities Act. The registration statement, as
amended at the date of this Agreement, meets the requirements set forth
in Rule 415(a)(1)(x) under the Securities Act and complies in all other
material respects with such rule. The Corporation proposes to file with
the Commission pursuant to Rule 424 under the Securities Act ("Rule
424") a supplement to the form of prospectus included in the
registration statement relating to the initial offering of the
Securities and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with
respect to the Corporation to be set forth therein. The term
"Registration Statement" means the registration statement, as amended
at the date of this Agreement, including the exhibits thereto,
financial statements, and all documents incorporated therein by
reference pursuant to Item 12 of Form S-3 (the "Incorporated
Documents"), and such prospectus as then amended, including the
Incorporated Documents, is hereinafter referred to as the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented), is hereinafter
called the "Final Prospectus". Any preliminary form of the Basic
Prospectus which has heretofore been filed pursuant to Rule 424 is
hereinafter called the "Interim Prospectus". Any reference herein to
the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus shall be deemed to refer to and
include the Incorporated Documents which were filed under the
Securities Exchange Act of 1934 (the "Exchange Act"), on or before the
date of this Agreement or the issue date of the Basic Prospectus, any
Interim Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Interim Prospectus or the Final Prospectus shall be deemed to refer to
and include the filing of any Incorporated Documents under the Exchange
Act after the date of this Agreement or the issue date of the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, as the case
may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus
is first filed with the Commission pursuant to Rule 424, when, before
either Closing Date, any amendment to the Registration Statement
becomes effective, when, before either Closing Date, any Incorporated
Document is filed with the Commission, when any supplement to the Final
Prospectus is filed with the Commission and at each Closing Date, the
Registration Statement, the Final Prospectus and any such amendment or
supplement will comply in all material respects with the applicable
requirements of the Securities Act and the Rules and Regulations, and
the Incorporated Documents will comply in all material respects with
the requirements of the Exchange Act and the rules and regulations
adopted by the Commission thereunder or the Securities Act and the
Rules and Regulations, as applicable, on the date hereof and on each
Closing Date, each of the Declaration, the Guarantee Agreement and the
Indenture shall have been qualified under and did or will comply in all
material respects with the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the applicable rules and regulations
thereunder; on the date it became effective, the Registration Statement
did not, and, on the date that any post-effective amendment to the
Registration Statement becomes effective, the Registration Statement as
amended by such post-effective amendment did not or will not, as the
case may be, 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; on the date the Final
Prospectus is filed with the Commission
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pursuant to Rule 424 and on each Closing Date, the Final Prospectus, as
it may be amended or supplemented, will not include 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 are made, not misleading; and on said dates, the
Incorporated Documents will comply in all material respects with the
provisions of the Securities Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and, when
read together with the Final Prospectus, or the Final Prospectus as it
may be then amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading;
provided that the foregoing representations and warranties in this
paragraph (b) shall not apply to statements or omissions made in
reliance upon and in conformity with written information furnished to
the Corporation by or through the Representatives on behalf of any
Underwriter specifically for use in connection with the preparation of
the Registration Statement or the Final Prospectus, as they may be
amended or supplemented, or to any statements in or omissions from the
statements of eligibility and qualification on Form T-1 of the
Indenture Trustee, the Property Trustee and the Guarantee Trustee under
the Trust Indenture Act (the "Forms T-1").
(c) The Basic Prospectus and any Interim Prospectus,
as of their respective dates, complied in all material respects with
the requirements of the Securities Act and of the Rules and Regulations
and did not include any 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. The Commission has not issued an order preventing or
suspending the use of the Basic Prospectus or any Interim Prospectus.
(d) The Corporation and each of its significant
subsidiaries as such term is defined in Rule 405 of the Rules and
Regulations excluding clause (3) thereof and identified on Schedule III
hereto (each a "Significant Subsidiary") have been duly incorporated
and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification except where the failure to be so qualified
and in good standing would not have a material adverse effect on the
consolidated financial condition, shareholders' equity, results of
operations or business of the Corporation and its subsidiaries, taken
as a whole, and where so qualified have all corporate power and
authority necessary to own, lease or operate their respective
properties and to conduct the businesses in which they are engaged as
described in the Final Prospectus.
(e) The Corporation has an authorized capitalization
as set forth in the Final Prospectus, and all of the issued and
outstanding shares of capital stock of the Corporation have been duly
and validly authorized and issued, are fully paid and non-assessable
and conform in all material respects to the description thereof
contained in the Final Prospectus; and all of the issued and
outstanding shares of capital stock of each Significant Subsidiary have
been duly and validly authorized and issued and are fully paid and
non-assessable and (except for directors' qualifying shares and as set
forth in the Final Prospectus) are owned directly or indirectly by the
Corporation, free and clear of all liens, encumbrances, equities or
claims.
(f) This Agreement has been duly and validly
authorized, executed and delivered by the Corporation; the Guarantee
Agreement has been duly and validly authorized by the Corporation and,
when duly executed and delivered by the proper officers of the
Corporation (assuming due execution and delivery by the Guarantee
Trustee) will constitute a valid and legally binding agreement of the
Corporation enforceable against the Corporation in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law) or
an implied covenant of good faith and fair dealing; the Indenture has
been duly and validly authorized, executed
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and delivered by the Corporation and (assuming due execution and
delivery by the Indenture Trustee) constitutes a valid and legally
binding agreement of the Corporation, enforceable against the
Corporation in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally and general equitable principles (whether considered
in a proceeding in equity or at law) or an implied covenant of good
faith and fair dealing; and the Debentures have been duly and validly
authorized, and, when validly authenticated, issued and delivered in
accordance with the Indenture against payment of the purchase price
therefor as provided in this Agreement, will be validly issued and
outstanding obligations of the Corporation entitled to the benefits of
the Indenture and enforceable against the Corporation in accordance
with their terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, and other similar
laws now or hereafter in effect relating to creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) or an implied covenant of good faith
and fair dealing; the Indenture conforms in all material respects to
the description thereof contained in the Final Prospectus; and the
Debentures and the Guarantee, when issued and delivered, will conform
in all material respects to the descriptions thereof contained in the
Final Prospectus.
(g) The execution, delivery and performance of this
Agreement, the Guarantee Agreement, the Indenture and the Debentures by
the Corporation and the Trust, as applicable, the purchase of the
Common Securities by the Corporation from the Trust, and the
consummation by the Corporation and the Trust of the transactions
contemplated hereby and thereby (the "Transactions"), and the issuance
and delivery of the Securities and the Debentures will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under any indenture, lien,
charge or encumbrance upon any property or mortgage, deed of trust,
loan agreement, or other agreement or instrument to which the
Corporation, the Trust or any of its Significant Subsidiaries is a
party or by which it or any of them is bound or to which any of the
property or assets of the Corporation, the Trust or any of its
Significant Subsidiaries is subject except for such conflicts,
breaches, violations or defaults which would not have a material
adverse effect on the consolidated financial condition, shareholders'
equity, results of operations or business of the Corporation and its
subsidiaries taken as a whole or as to the Trust separately, nor will
such action result in any violation of the provisions of the charter or
by-laws of the Corporation or any of its Significant Subsidiaries or
the Certificate of Trust (as defined herein) or the Declaration of the
Trust, or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Corporation,
the Trust or any of its Significant Subsidiaries or any of their
material properties or assets. Except as set forth in the Final
Prospectus or as required by the Securities Act, the Exchange Act, the
Trust Indenture Act and applicable state securities laws, no consent,
approval, authorization or order of, or filing, registration or
qualification of or with, any court or governmental agency or body is
required for the Transactions.
(h) Except as described or incorporated by reference
in the Registration Statement or the Final Prospectus, there are no
agreements or understandings between the Corporation and any person,
granting such person the right to require the Corporation to file a
registration statement under the Securities Act with respect to any
securities of the Corporation owned or to be owned by such person or to
require the Corporation to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Corporation under the Securities Act.
(i) Neither the Corporation nor any of its
subsidiaries has sustained, since the date of the latest financial
statements included or incorporated by reference in the Final
Prospectus, any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Final Prospectus; and, since such date, there has not been any change
in the capital stock or long-term debt of the Corporation or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs,
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management, financial condition, shareholders' equity or results of
operations of the Corporation and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Final Prospectus.
(j) Coopers & Xxxxxxx L.L.P., who has certified the
financial statements of the Corporation, whose report appears in the
Final Prospectus or are incorporated by reference therein, and has
delivered the initial letters referred to in Section 8(i) hereof, are
independent public accountants as required by the Securities Act and
the Rules and Regulations.
(k) The consolidated financial statements (including
the related notes and supporting schedules) filed as part of the
Registration Statement or included or incorporated by reference in the
Final Prospectus present in all material respects 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 United States generally accepted accounting
principles, applied on a consistent basis throughout the periods
involved, except as otherwise expressly set forth therein.
(l) Except as described in the Registration Statement
and the Final Prospectus, there are no legal or governmental
proceedings pending to which the Corporation, the Trust or any of its
Significant Subsidiaries is a party or of which any material property
or assets of the Corporation, the Trust or any of its Significant
Subsidiaries is the subject which is required to be disclosed in the
Registration Statement, the Final Prospectus or the Incorporated
Documents or which would have a material adverse effect on the
consolidated financial condition, shareholders' equity, results of
operations or business of the Corporation and its subsidiaries, taken
as a whole, or the transactions contemplated by this Agreement; and to
the Corporation's knowledge, no such proceedings are threatened by
governmental authorities or threatened by others.
(m) There are no contracts or other documents which
are required to be described in the Prospectus or filed as exhibits to
the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Final Prospectus or
filed as exhibits to the Registration Statement or incorporated therein
by reference under the Rules and Regulations.
(n) None of the Corporation, the Trust, or any of its
Significant Subsidiaries is (i) in violation of its respective charter
or by-laws, or the Certificate of Trust or the Declaration, as
applicable, (ii) in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement or other agreement to which the
Corporation, the Trust or any of its Significant Subsidiaries is a
party or by which it or any of them is or may be bound or to which any
of the properties or assets of the Corporation or any of its
subsidiaries is subject, except for such default which would not have a
material adverse effect on the consolidated financial condition,
shareholders' equity, results of operations or business of the
Corporation and its subsidiaries taken as a whole or (iii) in violation
in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which the Corporation or any of its
subsidiaries or any of their property or assets may be subject or has
failed to obtain any material license, permit, certificate, franchise
or other governmental authorization or permit necessary to the
ownership of its or their property or to the conduct of its or their
business, except for such violation or failure which would not have a
material adverse effect on the condition (financial or otherwise),
shareholders' equity, results of operations or business of the
Corporation and its subsidiaries taken as a whole.
(o) Neither the Corporation nor, to the Corporation's
knowledge, any of its subsidiaries, any director, officer, agent,
employee or other person associated with or acting on behalf of the
Corporation or any of its subsidiaries, has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any
provision of
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the Foreign Corrupt Practices Act of 1977, except for such violations
which would not have a material adverse effect on the consolidated
financial condition, shareholders' equity, results of operations or
business of the Corporation and its subsidiaries taken as a whole.
(p) Neither the Corporation nor any subsidiary is an
"investment company" or an entity "controlled" by an "investment
company" within the meaning of such terms under the Investment Company
Act of 1940 (the "Investment Act") and the rules and regulations of the
Commission thereunder.
(q) With the exception of Standard & Poor's Ratings
Service ("S&P") placing the Corporation on creditwatch with negative
outlook, neither the BBB nor Baa3 senior debt rating assigned
to the Corporation by S&P and by Xxxxx'x Investor Services, Inc.,
respectively, has been lowered or, to the Corporation's knowledge,
threatened to be lowered by either such rating agency nor, to the
Corporation's knowledge, has it been placed under surveillance or
review by either such rating agency.
(r) Except as described in the Registration Statement
and except as would not, singly or in the aggregate, reasonably be
expected to result in an impact on the Corporation required to be
disclosed in the Registration Statement, (A) to the knowledge of the
Corporation after reasonable investigation, neither the Corporation nor
the Trust is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Corporation and the Trust have all permits,
authorization and approvals required under any applicable Environmental
Laws and are in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigation or proceedings relating to any
Environmental Law against the Corporation or the Trust and (D) to the
knowledge of the Corporation after reasonable investigation, there are
no events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency,
against or affecting the Corporation or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(s) Any certificate signed by any officer of the
Corporation or the Trust and delivered to the Underwriters or to
counsel for the Underwriters pursuant to this Agreement shall be deemed
a representation and warranty by the Corporation or the Trust,
respectively, to each Underwriter as to the matters covered thereby.
2. Representations, Warranties and Agreements of the Trust.
The Offerors, jointly and severally, represent and warrant to each Underwriter
as of the date hereof and as of the Closing Date, and agree with each
Underwriter, as follows:
(a) The Trust has been duly created, is validly
existing as a statutory business trust and in good standing under the
Delaware Business Trust Act and, under the Delaware Business Trust Act
and the Declaration, the Trust has the power and authority to (A)
execute and deliver, and to perform its obligations under this
Agreement and the Declaration, (B) issue and sell the Trust Securities
and (C) own property and conduct its business as described in the
Registration Statement and the Final Prospectus, and has conducted and
will conduct no business other than the transactions contemplated by
this Agreement as described in the Registration Statement and the Final
Prospectus. All filings required under the laws of the State of
Delaware
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with respect to the creation and valid existence of the Trust as a
business trust have been made. The Trust is not and will not be a party
to or bound by any agreement or instrument other than this Agreement,
the Certificate of Trust identified on Schedule I hereto (the
"Certificate of Trust") and the Declaration; the Trust has no and will
not have any liabilities or obligations other than those arising out of
the transactions contemplated by this Agreement, such Certificate of
Trust and the Declaration and described in the Final Prospectus; and
the Trust is not a party to or subject to any action, suit or
proceeding of any nature. The Trust will be characterized as a "grantor
trust" and not as an association taxable as a corporation for United
States federal income tax purposes.
(b) The Declaration is duly and validly authorized
and duly qualified under the Trust Indenture Act and, when duly
executed and delivered by the Corporation, as Sponsor, and the
Trustees, and (assuming due authorization, execution and delivery of
the Declaration by the Property Trustee and the Delaware Trustee), will
constitute a valid and legally binding agreement of the Corporation and
the Trust, enforceable against the Corporation and the Trust in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, and
other similar laws now or hereafter in effect relating to creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) or an implied covenant of good faith
and fair dealing and will conform to the description thereof contained
in the Final Prospectus.
(c) All of the outstanding beneficial ownership
interests in the assets of the Trust have been, and the Trust
Securities, upon issuance and delivery and payment therefor in the
manner described herein, will be, duly authorized, validly issued and
outstanding, fully paid and non-assessable, and subject to the terms of
the Declaration, the holders of the Trust Securities will be entitled
to the benefits of the Declaration subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and by an implied covenant of good
faith and fair dealing; and will be entitled to the same limitation of
personal liability under Delaware law as extended to stockholders of
private corporations for profit and will conform to the description of
the Trust Securities contained in the Final Prospectus. The Trust
Securities are the only interests authorized to be issued by Trust. The
issuance of the Trust Securities is not subject to preemptive or other
similar rights; and at the Closing Date, all of the issued and
outstanding Common Securities of the Trust will be directly owned by
Corporation free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(d) This Agreement has been duly and validly
authorized, executed and delivered by the Trust.
(e) The execution, delivery and performance of this
Agreement, the Declaration, the Trust Securities by the Trust, the
purchase of the Debentures by the Trust from the Corporation, the
distribution of the Debentures upon the liquidation of the Trust in the
circumstances contemplated by the Declaration and described in the
Final Prospectus, and the consummation by the Trust of the transactions
contemplated hereby and by the Declaration (the "Trust Transactions")
will not result in a violation of any order, rule or regulation of any
court or governmental agency having jurisdiction over the Trust or its
property. Except as set forth in the Final Prospectus or as required by
the Securities Act, the Exchange Act, the Trust Indenture 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 Trust Transactions.
(f) The Trust is not regulated or required to be
registered as an "investment company" under the Investment Act.
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3. Sale and Purchase of the Securities.
(a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the
Trust agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Trust, at a purchase
price equal to 100% of the liquidation amount of the Preferred
Securities, the aggregate liquidation amount of Firm Securities set
forth opposite the name of such Underwriter in Schedule II hereto, plus
such additional number of Firm Securities which such Underwriter may
become obligated to purchase pursuant to Section 8 hereof.
(b) In addition, the Trust grants to the Underwriters
an option to purchase from the Trust, at a purchase price equal to 100%
of the liquidation amount of the Preferred Securities, up to an
additional aggregate liquidation amount of Option Securities indicated
in Schedule I hereto. Such option is granted solely for the purpose of
covering over-allotments in the sale of Firm Securities and is
exercisable as provided in Section 4 hereof. Option Securities shall be
purchased severally for the account of the Underwriters in proportion
to the liquidation amounts of Firm Securities set forth opposite the
name of such Underwriters in Schedule II hereto. The respective
purchase obligations of each Underwriter with respect to the Option
Securities shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Securities other than
in a liquidation amount of $1,000 or an integral multiple thereof.
(c) As compensation to the Underwriters, the
Corporation shall, on the First Closing Date and the Second Closing
Date (as defined in Section 4 hereof) pay to the Representatives for
the accounts of the several Underwriters a commission equal to
[2.6125]% of the aggregate liquidation amount of the Preferred
Securities sold by the Trust on such Closing Date.
4. Delivery and Payment.
(a) Delivery by the Trust of the Firm Securities to
the Representatives for the respective accounts of the several
Underwriters and payment by the Underwriters therefor by wire transfer
in federal (same day) funds to such account as the Corporation shall
specify on behalf of the Trust, shall take place at the office, on the
date and at the time specified in Schedule I hereto, which date and
time may be postponed by agreement between the Representatives and the
Corporation or as provided in Section 10 hereof (such date and time of
delivery and payment for the Firm Securities being herein called the
"First Closing Date").
(b) The Firm Securities will be in the form of one or
more global Firm Securities registered in the name of Cede & Co., as
nominee of the Depository Trust Company ("DTC").
(c) At any time on or before the thirtieth day after
the date hereof, the option granted in Section 3 may be exercised by
written notice being given to the Trust by the Representatives. Such
notice shall set forth the aggregate liquidation amount of Option
Securities as to which the option is being exercised and the date and
time, as determined by the Representatives, when the Option Securities
are to be delivered; provided, however, that this date and time shall
not be earlier than the First Closing Date nor earlier than the third
business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which
the option shall have been exercised. The date and time the Option
Securities are delivered are sometimes referred to as the "Second
Closing Date" and the First Closing Date and the Second Closing Date
are sometimes referred to as a "Closing Date".
(d) Delivery by the Trust of the Option Securities to
the Representatives for the respective accounts of the several
Underwriters and payment by the Underwriters therefor by wire transfer
in federal (same day) funds to such account as the Corporation will
specify on behalf of the Trust, shall take place at the office and at
the time agreed to in advance by the Underwriters and the Corporation,
on the
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Second Closing Date, which date and time may be postponed by agreement
between the Representatives and the Corporation or as provided in
Section 10 hereof.
(e) The Option Securities will be in the form of one
or more global Option Securities registered in the name of Cede & Co.,
as nominee of DTC.
(f) On the First Closing Date and the Second Closing
Date, the Corporation shall pay, or cause to be paid, the commission
payable on such Closing Date to the Representatives for the accounts of
the Underwriters under Section 3 by wire transfer in federal (same day)
funds to such account as the Representatives shall specify.
5. Offering by Underwriters. The Corporation and the Trust
hereby confirm that the Underwriters and dealers have been authorized to
distribute or cause to be distributed any Interim Prospectus and are authorized
to distribute the Final Prospectus (as from time to time amended or supplemented
if the Corporation furnishes amendments or supplements thereto to the
Underwriters). The Representatives agree that, as soon as the Representatives
believe the offering of the Preferred Securities has been terminated, the
Representatives will so advise the Corporation and the Trust.
6. Agreements. Each of the Corporation and the Trust, jointly
and severally, agrees with the several Underwriters:
(a) To cause the Final Prospectus to be filed with
the Commission pursuant to Rule 424 as required thereby and promptly to
advise the Representatives when (A) the Final Prospectus shall have
been filed with the Commission pursuant to Rule 424, (B) any amendment
to the Registration Statement relating to the Securities shall have
become effective, (C) the Commission makes a request for any amendment
of the Registration Statement, the Final Prospectus, the Basic
Prospectus or any Interim Prospectus, or for any additional
information, (D) the Commission issues any stop order suspending the
effectiveness of the Registration Statement or the qualification of the
Declaration, the Guarantee Agreement or the Indenture or the
institution or threatening of any proceedings for that purpose and (E)
the Corporation or the Trust receives any notification with respect to
the suspension of the qualification of the Securities or the Debentures
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; after the date of this Agreement and prior
to the termination of the offering of these Preferred Securities, not
to file any amendment of the Registration Statement or amendment or
supplement to the Final Prospectus (except an amendment or supplement
to the Final Prospectus that is deemed to be incorporated by reference
in the Final Prospectus pursuant to Item 12 of Form S-3) without the
consent of the Representatives and to use its best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof; prior to receipt of the advice to
be given by the Representatives pursuant to Section 5, not to file any
document that would be deemed to be incorporated by reference in the
Final Prospectus pursuant to Item 12 of Form S-3 without delivering to
the Representatives a copy of the document proposed to be so filed,
such delivery to be made at least twenty-four hours prior to such
filing, and to consult with the Representatives as to any comments
which the Representatives make in a timely manner with respect to the
document so delivered.
(b) Subject to the last sentence of the immediately
preceding paragraph, if, at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act, any
event occurs as a result of which the Final Prospectus as then amended
or supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it shall be necessary at any time to
amend or supplement the Final Prospectus to comply with the Securities
Act or the Rules and Regulations, to promptly prepare and file with the
Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance and to
use its best
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efforts to cause any amendment of the Registration Statement containing
an amended Final Prospectus to be made effective as soon as possible.
(c) To deliver to the Representatives, without
charge, (i) signed copies of the Registration Statement relating to the
Securities and of any amendments thereto (including all exhibits filed
with, or incorporated by reference in, any such document) and (ii) as
many conformed copies of the Registration Statement and of any
amendments thereto which shall become effective on or before each
Closing Date (excluding exhibits) as the Representatives may reasonably
request.
(d) During such period as a prospectus is required by
law to be delivered by an Underwriter or dealer, to deliver, without
charge to the Representatives and to Underwriters and dealers, at such
office or offices as the Representatives may designate, as many copies
of the Basic Prospectus, any Interim Prospectus and the Final
Prospectus as the Representatives may reasonably request.
(e) To make generally available to the Corporation's
security holders and to the Representatives as soon as practicable an
earnings statement (which need not be audited) of the Corporation and
its subsidiaries, covering a period of at least 12 months beginning
after the date the Final Prospectus is filed with the Commission
pursuant to Rule 424, which will satisfy the provisions of Section
11(a) of the Securities Act.
(f) To furnish such information, execute such
instruments and take such actions as may be required to qualify the
Securities and the Debentures for offering and sale under the laws of
such jurisdictions as the Representatives may designate and to maintain
such qualifications in effect so long as required for the distribution
of the Preferred Securities; provided, however, that neither the
Corporation nor the Trust shall be required to qualify to do business
in any jurisdiction where it is not now so qualified or to take any
action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(g) So long as any Preferred Securities are
outstanding, to furnish or cause to be furnished to the Representatives
copies of all annual reports and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as
may be designated by the Commission.
(h) The Corporation or the Trust will use its
reasonable best efforts to cause the listing of the Preferred
Securities on the New York Stock Exchange Inc. (the "NYSE") to be
approved promptly.
(i) For a period beginning at the time of execution
of this Agreement and ending 30 days thereafter, neither the Trust nor
the Corporation will, without the prior written consent of the Xxxxxx
Brothers Inc., directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any Preferred
Securities or Debentures, any securities convertible or exchangeable
into, or exercisable for, Preferred Securities or Debentures, or any
debt securities substantially similar to Debentures or equity
securities substantially similar to Preferred Securities, other than
the Debentures and Preferred Securities described in Schedule I hereto.
(j) To take such commercially reasonable steps as
shall be necessary to ensure that neither the Corporation nor the Trust
shall become subject to registration as an "investment company" under
the Investment Act.
(k) To apply the net proceeds from the sale of the
Securities being sold by the Corporation as set forth in the Final
Prospectus.
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(l) To use its reasonable best efforts to do and
perform all things to be done and performed hereunder prior to each
Closing Date and to satisfy all conditions precedent to the delivery of
the Preferred Securities to be purchased hereunder.
7. Expenses.
(a) Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the
Corporation will pay all costs and expenses incident to the performance
of the obligations of the Corporation and the Trust hereunder,
including, without limiting the generality of the foregoing, all costs,
taxes and expenses incident to the issuance, sale and delivery of the
Preferred Securities to the Underwriters, all fees and expenses of the
Corporation's counsel and accountants, all costs and expenses incident
to the preparing, printing and filing of the Registration Statement
(including all exhibits thereto), any Interim Prospectus, the Basic
Prospectus, the Final Prospectus and any amendments thereof or
supplements thereto and the mailing or delivering copies thereof to the
Underwriters and the Declaration, the Guarantee Agreement and the
Indenture, and the rating of the Preferred Securities by one or more
rating agencies, all costs and expenses (including reasonable fees of
Underwriters' Counsel (as defined below) and their disbursements)
incurred in connection with blue sky qualifications, advising on the
legality of the Securities for investment, the fee for listing the
Preferred Securities on the NYSE, the fees and expenses of the Property
Trustee, the Guarantee Trustee and the Indenture Trustee, all costs and
expenses of the printing and distribution of all documents in
connection with such offering. Except as provided in this Section 7,
the Corporation will have no responsibility to the Underwriters for the
Underwriters' own costs and expenses, including the fees of
Underwriters' Counsel and any advertising expenses in connection with
any offer the Underwriters may make.
(b) If the sale of the Preferred Securities provided
for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 8 hereof (other than Section
8(n)) is not satisfied or because of any refusal, inability or failure
on the part of the Corporation or the Trust to perform any agreement
herein or comply with any provision hereof, the Corporation will,
subject to demand by the Representatives, reimburse the Underwriters
for all out-of-pocket expenses (including reasonable fees and
disbursements of Underwriters' Counsel (as defined)) that shall have
been incurred by them in connection with the proposed purchase and sale
of the Preferred Securities.
8. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for any Securities are subject to the
accuracy of the representations and warranties of the Corporation and the Trust
contained herein as of the date hereof and each Closing Date, to the accuracy of
any material statements made in any certificates, opinions, affidavits, written
statements or letters furnished to the Representatives or to Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP ("Underwriters' Counsel") pursuant to this Section 8,
to the performance by the Corporation and the Trust of their respective
obligations hereunder and to the following additional conditions:
(a) The Final Prospectus shall have been filed with
the Commission pursuant to Rule 424 not later than 5:00 P.M., New York
City time, on the second business day following the date of this
Agreement or such later date and time as shall be consented to in
writing by the Representatives.
(b) No order suspending the effectiveness of the
Registration Statement, as amended from time to time, or suspending the
qualification of the Declaration, the Guarantee Agreement or the
Indenture, shall be in effect and no proceedings for such purpose shall
be pending before or threatened by the Commission and any requests for
additional information on the part of the Commission (to be included in
the Registration Statement or the Final Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the
Representatives.
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(c) Xxxxxx X. X'Xxxxx, General Counsel to the
Corporation, shall have furnished to the Underwriters his opinion, as
general counsel to the Corporation, addressed to the Underwriters and
dated the Closing Date, in form and substance reasonably satisfactory
to counsel for the Underwriters to the effect that:
(i) The Corporation's Significant Subsidiaries
have been duly incorporated and are validly existing as
corporations in good standing under the laws of their
respective jurisdictions of incorporation; and each of the
Corporation and its Significant Subsidiaries is duly qualified
to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or
lease of property or the conduct of its respective business
requires such qualification and where the failure to be so
qualified and in good standing would have a material and
adverse effect on the consolidated financial condition,
shareholders' equity, results of operations or business of the
Corporation and its subsidiaries, taken as a whole, and where
so qualified have all corporate power and authority necessary
to own, lease or operate their respective properties and to
conduct the businesses in which they are engaged as described
or incorporated by reference in the Final Prospectus; the
Corporation holds all valid franchises, permits and other
rights adequate for the business of the Corporation in the
territories which it serves, and such franchises, permits and
other rights contain no unduly burdensome restrictions.
(ii) The holders of outstanding shares of
capital stock of the Corporation are not entitled to any
preemptive rights under the charter or by-laws of the
Corporation or the laws of the State of New York to subscribe
for the Preferred Securities or the Debentures.
(iii) The Corporation has an authorized
capitalization as set forth in the Final Prospectus, and all
of the issued and outstanding shares of capital stock of the
Corporation have been duly and validly authorized and issued,
are fully paid and non-assessable and conform in all material
respects to the description thereof contained in the Final
Prospectus; and all of the issued and outstanding shares of
capital stock of each Significant Subsidiary of the
Corporation have been duly and validly authorized and issued
and are fully paid and non-assessable and (except for
directors' qualifying shares) and, as set forth in the Final
Prospectus, are owned directly or indirectly by the
Corporation, free and clear of all liens, encumbrances,
equities or claims.
(iv) To such counsel's knowledge, there are no
contracts or other documents which are required to be
described in the Final Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules
and Regulations which have not been described in the Final
Prospectus or filed as exhibits to the Registration Statement
or incorporated therein by reference under the Rules and
Regulations.
(v) The documents incorporated by reference in
the Final Prospectus (other than the financial statements and
related schedules therein, as to which such counsel need
express no opinion), when they were filed with the Commission
complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
of the Commission thereunder.
(vi) To such counsel's knowledge and except as
described in the Registration Statement, the Final Prospectus,
or any Incorporated Documents, there are no agreements or
understandings between the Corporation and any person granting
such person the right to require the Corporation to file a
registration statement under the Securities Act with respect
to any securities of the Corporation owned or to be owned by
such person or to
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require the Corporation to include such securities in the
securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other
registration statement filed by the Corporation under the
Securities Act.
(vii) To such counsel's knowledge, and other
than as set forth in the Registration Statement, the Final
Prospectus, or any Incorporated Documents, there are no legal
or governmental proceedings pending to which the Corporation
or any of its Significant Subsidiaries is a party or of which
any material property or assets of the Corporation or any of
its Significant Subsidiaries is the subject which, if
determined adversely to the Corporation or any of its
Significant Subsidiaries, would have a material adverse effect
on the consolidated financial condition, shareholders' equity,
results of operations, business or prospects of the
Corporation and its subsidiaries taken as a whole; and to such
counsel's knowledge, no such proceedings are threatened by
governmental authorities or threatened by others.
(viii) Neither the Corporation nor any of its
Significant Subsidiaries is in violation of its corporate
charter or by-laws or in default under any material agreement,
indenture, or instrument known to such counsel, the effect of
which violation or default would be material to the
Corporation and its subsidiaries taken as a whole. The
execution, delivery and performance of this Agreement, the
Declaration, the Indenture and the Guarantee Agreement
(collectively the "Transaction Documents") by the Corporation
and the Trust, as applicable, will not conflict with or result
in a breach or violation of any of the terms or provisions of,
or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement
known to such counsel to which the Corporation, the Trust or
any of the Significant Subsidiaries is a party or by which the
Corporation, the Trust or any of such Significant Subsidiaries
is bound or to which any of the property or assets of the
Corporation, the Trust or any of its Significant Subsidiaries
is subject except for such conflicts, breaches, violations or
defaults which would not have a material adverse effect on the
consolidated financial condition, shareholders' equity,
results of operations or business of the Corporation and its
subsidiaries taken as a whole nor will such actions result in
any violation of the provisions of any state or federal
statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having
jurisdiction over the Corporation, the Trust or any of its
Significant Subsidiaries or any of their material properties
or assets and the consummation of the transactions
contemplated hereby and thereby, will not result in any
violation of the provisions of the charter or by-laws of the
Corporation or any of its Significant Subsidiaries or any New
York State or U.S. federal statute or any order, rule or
regulations known to such counsel of any New York State or
U.S. federal court or governmental agency or body having
jurisdiction over the Corporation , its Significant
Subsidiaries or any of their respective properties.
(ix) To such counsel's knowledge, the Trust is
not a party to or otherwise bound by any agreement other than
those described in the Final Prospectus.
(d) White & Case LLP, special counsel to the
Corporation, shall have furnished to the Underwriters their opinion, as
counsel to the Corporation, addressed to the Underwriters and dated the
Closing Date, in form and substance reasonably satisfactory to counsel
for the Underwriters, to the effect that:
(i) The Corporation has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of New York.
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(ii) The Indenture has been duly and validly
authorized, executed and delivered by the Corporation, has
been duly qualified under the Trust Indenture Act and
constitutes a valid and legally binding obligation of the
Corporation enforceable against the Corporation in accordance
with its terms and the Indenture conforms in all material
respects to the description thereof contained in the Final
Prospectus; and the Debentures have been duly and validly
authorized by the Corporation, and when duly executed, issued
and delivered by the Corporation, and assuming due
authentication by the Indenture Trustee and upon payment and
delivery in accordance with this Agreement, will constitute
valid and legally binding obligations of the Corporation
entitled to the benefits of the Indenture and enforceable
against the Corporation in accordance with their terms and the
Debentures, when issued and delivered, conform in all material
respects to the description thereof contained in the Final
Prospectus; and the Guarantee Agreement has been duly and
validly authorized, executed and delivered by the Corporation
and, assuming due authorization, execution and delivery by the
Guarantee Trustee, will constitute a valid and legally binding
obligation of the Corporation enforceable against the
Corporation in accordance with its terms and the Guarantee
Agreement conforms in all material respects to the description
thereof contained in the Final Prospectus; provided, however,
that the foregoing is subject to the effects of effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, and other similar laws now or hereafter in effect
relating to creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) or an implied covenant of good faith and fair dealing.
(iii) This Agreement and the Declaration have
been duly authorized, executed and delivered by the
Corporation.
(iv) The Corporation is not an "investment
company" or an entity "controlled" by an "investment company"
within the meaning of such terms under the Investment Act and
the rules and regulations of the Commission thereunder.
(v) The Registration Statement was declared
effective under the Securities Act and the Indenture was
qualified under the Trust Indenture Act as of the date and
time specified in such opinion, the Final Prospectus was filed
with the Commission pursuant to subparagraph of Rule 424
specified in such opinion on the date specified therein and no
stop order suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or
threatened by the Commission.
(vi) The statements contained in the Final
Prospectus under the captions relating to the Securities and
the Debentures insofar as they purport to constitute summaries
of the terms of such securities, constitute accurate
descriptions thereof in all material respects.
(vii) Each of the Registration Statement, as
of the Effective Date, and the Final Prospectus, as of the
date it was filed with the Commission, and any further
amendments or supplements thereto made by the Corporation
prior to the applicable Closing Date (other than the financial
statements and related schedules therein and all other
financial and statistical data included or incorporated by
reference therein or omitted therefrom and other than the
Forms T-1, as to which such counsel need express no opinion)
appears on its face to comply as to form in all material
respects with the requirements of the Securities Act and the
Rules and Regulations; and the Indenture conforms in all
material respects to the requirements of the Trust Indenture
Act and the applicable rules and regulations thereunder;
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provided, however, that such counsel need express no opinion
as to any documents incorporated by reference to the
Registration Statement or the Final Prospectus.
(viii) The issue and sale of the Securities
being delivered on the Closing Date by the Corporation and the
compliance by the Corporation with all of the provisions of
this Agreement, the Indenture, the Guarantee Agreement, the
Declaration and the Debentures and the consummation of the
transactions contemplated hereby and thereby, will not result
in any violation of the provisions of the charter or by-laws
of the Corporation or any New York State or U.S. federal
statute or any order, rule or regulations known to such
counsel of any New York State or U.S. federal court or
governmental agency or body having jurisdiction over the
Corporation; and, except for the registration of the
Securities under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act, the Trust Indenture
Act and applicable state securities laws in connection with
the purchase and distribution of the Securities by the
Underwriters, no consent, approval, authorization or order of,
or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and
performance of this Agreement, the Guarantee Agreement, the
Indenture, the Declaration and the Debentures by the
Corporation and the consummation of the transactions
contemplated hereby and thereby.
In rendering the opinions required by subsections (c) and (d)
of this section, Xxxxxx X. X'Xxxxx and White & Case LLP, respectively,
may (i) state that their opinion is limited to matters governed by the
federal laws of the United States of America and the laws of the State
of New York and (ii) rely (to the extent such counsel deems proper and
specifies in their opinion), as to matters involving the application of
laws covered by supporting opinion upon the opinion of other counsel of
good standing, provided that such other counsel is reasonably
satisfactory to counsel for the Underwriters and furnishes a copy of
its opinion to the Underwriters. In addition, Xxxxxx X. X'Xxxxx, in
rendering the opinions required by clauses (i) and (ii) of Subsection
(c) with respect to Significant Subsidiaries, may rely on opinions
rendered by counsel employed by such Significant Subsidiaries.
Xxxxxx X. X'Xxxxx shall have furnished to the Underwriters a
written statement addressed to the Underwriters and dated the Closing
Date, in form and substance satisfactory to the Underwriters, to the
effect that he has acted as counsel to the Corporation on a regular
basis and in connection with previous financing transactions. In
addition, each of Xxxxxx X. X'Xxxxx and White & Case LLP shall also
have furnished to the Underwriters written statements, addressed to the
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that such counsel has
acted as counsel to the Corporation in connection with the preparation
of the Registration Statement, and based on the foregoing, such counsel
does not believe that (A) the Registration Statement (other than the
financial statements and related schedules and all other financial and
statistical data included or incorporated by reference therein or
omitted therefrom, and other than the Forms T-1, as to which such
counsel shall express no opinion or belief), as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final
Prospectus (other than the financial statements and related schedules
and all other financial and statistical data included or incorporated
by reference therein or omitted therefrom, and other than the Forms
T-1, as to which such counsel shall express no opinion or belief), as
of its date and the applicable Closing Date, contains any untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (B) any document incorporated by reference in the Final
Prospectus (other than the financial statements and related schedules
and all other financial and statistical data included or incorporated
by reference therein or omitted therefrom, and other than the Forms
T-1, as to which such counsel shall express no opinion or belief)
contained an untrue statement of a material fact or omitted to state
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a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
The foregoing opinion and statement may be qualified by statements to
the effect that (i) such counsel does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Final Prospectus except for the
statements made in the Final Prospectus under the captions relating to
the designated Trust Securities, the Guarantee and the Debentures and,
if applicable, "Certain Federal Income Tax Consequences", insofar as
such statements relate to such securities and concern legal matters and
(ii) as to facts necessary to the determination of materiality, such
counsel is relying upon the opinions of officers and other
representatives of the Corporation.
(e) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware
counsel for the Corporation and the Trust, shall have furnished to the
Representatives its opinion, on certain matters of Delaware law
relating to the validity of the Preferred Securities, dated the
applicable Closing Date, to the effect that:
(i) The Trust has been duly created, is
validly existing in good standing as a business trust under
the Delaware Business Trust Act and all filings required under
the laws of the State of Delaware with respect to the creation
and valid existence of the Trust as a business trust have been
made.
(ii) Under the Delaware Business Trust Act
and the Declaration, the Trust has the requisite trust power
and authority to own property and conduct its business, all as
described in the Registration Statement and the Final
Prospectus.
(iii) The Declaration constitutes a valid
and binding obligation of the Corporation and the Trustees,
enforceable against the Corporation and the Trustees in
accordance with its terms, and the terms of the Preferred
Securities as set forth in the Declaration, to the extent they
are obligations of the Trust, are valid and binding
obligations of the Trust in accordance with the Declaration;
provided however, that the foregoing is subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and by an implied covenant of good faith and fair
dealing; and conforms to the description thereof contained in
the Final Prospectus.
(iv) Under the Delaware Business Trust Act
and the Declaration, the Trust has the requisite trust power
and authority to (i) execute, deliver and to perform its
obligations under, and to consummate the transactions
contemplated by this Agreement and (ii) issue and perform its
obligations under the Preferred Securities and the Common
Securities.
(v) Under the Delaware Business Trust Act
and the Declaration, the execution and delivery by the Trust
of this Agreement, and the performance by the Trust of its
obligations hereunder, have been duly authorized by the
requisite trust action on the part of the Trust.
(vi) This Agreement has been duly executed
and delivered by the Trust.
(vii) The Preferred Securities have been
duly authorized by the Declaration and, when issued in
accordance with the Declaration and delivered in accordance
with this Agreement will be, duly and validly issued and
(subject to the
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qualifications set forth in this paragraph (vii), fully paid
and non-assessable beneficial ownership interests in the
assets of the Trust, the holders of the Preferred Securities
will be entitled to the benefits of the Declaration. The
holders of the Preferred Securities will be entitled to the
same limitation of personal liability as extended to
stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware
(such counsel may note that the holders of Preferred
Securities may obligated, pursuant to the Declaration, to (i)
provide indemnity or security in connection with and pay taxes
or governmental charges arising from transfers or exchanges of
certificates representing the Preferred Securities and the
issuance of replacement certificates representing Preferred
Securities and (ii) provide security and indemnity in
connection with requests of or directions to the Property
Trustee to exercise its rights and remedies under the
Declaration.
(viii) The Common Securities have been duly
authorized by the Declaration and are validly issued and
represent beneficial interests in the assets of the Trust.
(ix) Under the Delaware Business Trust Act
and the Declaration, the issuance of the Preferred Securities
is not subject to preemptive or other similar rights.
(x) The issuance and sale by the Trust of
the Trust Securities, the purchase by the Trust of the
Debentures, the execution, delivery and performance by the
Trust of this Agreement, the consummation by the Trust of the
transactions contemplated by this Agreement and by the
Declaration and compliance by the Trust with its obligations
hereunder and under the Declaration and the Preferred
Securities will not violate (i) any of the provisions of the
Certificate of Trust or the Declaration or (ii) any applicable
Delaware law, rule or regulation.
(xi) No filing with, or authorization,
approval, consent, license, order, registration, qualification
or decree of, any Delaware court or Delaware governmental
authority or agency (other that as may be required under the
securities or blue sky laws of the State of Delaware, as to
which such counsel need express no opinion) is necessary or
required in connection with the due authorization, execution
and delivery of this Agreement or the offering, issuance, sale
or delivery of the Trust Securities.
(xii) The holders of the Trust Securities
(other than those holders of the Trust Securities who reside
or are domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of Delaware
solely as a result of their participation in the Trust, and
the Trust will not be liable for any income tax imposed by the
State of Delaware.
In rendering such opinion, such counsel may state that its
opinion is limited to matters governed by the law of the State of Delaware.
(f) White & Case LLP, special tax counsel to the
Corporation and the Trust, shall have furnished to the Representatives
its opinion, dated the applicable Closing Date, to the effect that:
(i) The Trust will not be taxable as a
corporation for United States federal income tax purposes; and
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(ii) Subject to the qualifications set forth
in the opinion and the Final Prospectus, the statements made
in the Final Prospectus under the caption "Certain United
States Federal Income Tax Consequences" insofar as they
purport to constitute summaries of matters of United States
federal income tax law and regulations or legal conclusions
with respect thereto, constitute accurate summaries of the
matters described therein in all material respects.
(g) The Underwriters shall have received from
Underwriters' Counsel, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Securities, the
Guarantee, the Debentures, the Registration Statement, the Final
Prospectus and other related matters as the Underwriters may reasonably
require, and the Corporation and the Trust shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(h) At the Closing Date, Underwriters' Counsel 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 Securities as contemplated herein and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein and therein contained.
(i) At the Closing Date, the Underwriters shall have
received from Coopers & Xxxxxxx L.L.P., dated the Closing Date, in form
and substance satisfactory to the Underwriters, addressed to the
Underwriters, which states in effect that:
(i) In their opinion, any consolidated
financial statements of the Corporation and its subsidiaries,
and the supporting schedules, included in the Registration
Statement and the Final Prospectus and audited by them comply
as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange
Act and the related published rules and regulations
thereunder.
(ii) On the basis of a reading of the
unaudited consolidated financial statements of the Corporation
and its subsidiaries, if any, included in the Registration
Statement and the Final Prospectus and of the latest unaudited
consolidated financial statements made available by the
Corporation and its subsidiaries carrying out certain
specified procedures (but not an audit in accordance with
generally accepted auditing standards), a reading of the
minutes of the meetings of the directors of the Corporation,
and inquiries of certain officials of the Corporation and its
subsidiaries, who have responsibility for financial and
accounting matters of the Corporation and its subsidiaries, as
to transactions and events subsequent to the date of the most
recent audited consolidated financial statements included in
the Registration Statement and the Final Prospectus, nothing
came to their attention that caused them to believe that:
(A) any material modifications
should be made to the unaudited consolidated
financial statements of the Corporation and its
subsidiaries, if any, included in the Registration
Statement and the Final Prospectus and not covered by
their letter delivered pursuant to paragraph (j) of
this Section 8, for them to be in conformity with
generally accepted accounting principles; and such
financial statements do not comply as to form in all
material respects with the applicable accounting
requirements of the Securities Act and the published
instructions, rules and regulations thereunder.
(B) the unaudited capsule
information of the Corporation and its subsidiaries,
if any, included in the Registration Statement and
the Final Prospectus does not
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agree with the amounts set forth in the unaudited
consolidated financial statements of the Corporation
from which it was derived or was not determined on a
basis substantially consistent with that of the
corresponding financial information in the latest
audited financial statements of the Corporation
included in the Registration Statement and the Final
Prospectus.
(C)(I) as of the latest date as of
which the Corporation and its subsidiaries have
monthly financial statements, there was any decrease
in the capital stock, additional paid-in capital or
retained earnings, or increase in long-term
indebtedness of the Corporation and its subsidiaries,
as compared with the amounts shown in the most recent
consolidated statement of financial condition of the
Corporation and its subsidiaries included in the
Registration Statement and the Final Prospectus, (II)
with respect to the period subsequent to the date of
the most recent financial statements included in the
Registration Statement and the Final Prospectus and
extending through the latest date as of which the
Corporation and its subsidiaries have monthly
financial statements, there was a consolidated net
loss or (III) with respect to the amounts of net
capital or excess net capital of the Corporation and
its subsidiaries determined pursuant to Commission
Rule 15c3-1 and shown in the most recent financial
statement of the Corporation and its subsidiaries
filed pursuant to Commission Rule 17a-5, there has
been any decrease in such amounts as compared with
the amounts shown in the most recent consolidated
financial statements included in the Registration
Statement and the Final Prospectus; and
(D) as of a specified date not more
than three business days prior to the date of the
letter, there was any decrease in the capital stock
or additional paid-in capital, or increase in
long-term indebtedness of the Corporation and its
subsidiaries as compared with the amounts shown in
the most recent consolidated statement of financial
condition of the Corporation and its subsidiaries
included in the Registration Statement and the Final
Prospectus;
except in all instances for increases or decreases set forth
in such letter, in which case the letter shall be accompanied
by an explanation by the Corporation as to the significance
thereof, unless said explanation is not deemed necessary by
the Representatives.
(iii) If pro forma financial statements are
included in the Registration Statement or the Final Prospectus
and are not covered by their letter delivered pursuant to
paragraph (i) of this Section 8, (x) they have read such pro
forma financial statements, (y) they have made inquiries of
certain officials of the Corporation who have responsibility
for financial and accounting matters of the Corporation as to
the basis for their determination of the pro forma adjustments
and whether such pro forma financial statements comply as to
form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X and (z) they have
proved the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts; and as a result
thereof, nothing came to their attention that caused them to
believe that such pro forma financial statements do not so
comply with Rule 11-02 of Regulation S-X and that such pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements.
(iv) To the extent not covered by their
letter delivered pursuant to paragraph (i) of this Section 8,
they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is
expressed in dollars, or percentages derived from dollar
amounts, and has been obtained from the general accounting
records of the Corporation) set forth in
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the Registration Statement, as amended, and the Final
Prospectus, as amended or supplemented, and in Exhibit 12 to
the Registration Statement, including specified information,
if any, included or incorporated from the Corporation's Annual
Report on Form 10-K incorporated therein or specified
information, if any, included or incorporated from any of the
Corporation's Quarterly Reports on Form 10-Q or its Current
Reports on Form 8-K incorporated therein, agrees with the
accounting records of the Corporation and its subsidiaries or
computations made therefrom, excluding any questions of legal
interpretation.
(j) At the Closing Date, there shall not have been,
since the date hereof or since the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, any material adverse change in the consolidated financial
condition, stockholders' equity, results of operations or business of
the Corporation and its subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business, and the Corporation shall
have furnished to the Underwriters a certificate, dated the Closing
Date of its Chairman of the Board, its President or a Vice President of
the Corporation, on the one hand, and its chief financial officer or
its Treasurer, on the other hand, stating that:
(i) The representations and warranties of
the Corporation in this Agreement are true and correct in all
material respects on and as of such Closing Date with the same
effect as if made on such Closing Date, and the Corporation
has complied with all the agreements contained in this
Agreement and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date;
(ii) They have carefully examined the
Registration Statement and the Final Prospectus and in their
opinion (A) as of the Effective Date, the Registration
Statement and Final Prospectus did not include any untrue
statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to
make the statements therein, (in the case of the Final
Prospectus, in light of the circumstances in which they were
made) not misleading, and (B) since the Effective Date no
event has occurred which should have been set forth or
incorporated by reference in a supplement or amendment to the
Registration Statement or the Final Prospectus which has not
been so set forth; and
(iii) no stop order suspending the
effectiveness of the Registration Statement has been issued
and, to the knowledge of the Corporation, no proceedings for
that purpose have been initiated or threatened by the
Commission.
(k) The Trust shall have furnished to the
Representatives a certificate of its Administrative Trustees, dated the
applicable Closing Date, to the effect that, to the best of their
knowledge after due inquiry:
(i) The representations and warranties of
the Trust in this Agreement are true and correct in all
material respects on and as of such Closing Date with the same
effect as if made on such Closing Date, and the Trust has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to such Closing Date.
(ii) No stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened.
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(iii) (x) The Registration Statement does
not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (y)
the Final Prospectus does not contain any 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, and (z) since the effective date of
the Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(l) (i) Neither the Corporation nor any of its
Significant Subsidiaries shall have sustained since the respective
dates as of which information is given in the Registration Statement or
the Final Prospectus or in any document incorporated by reference
therein any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth, contemplated or
incorporated by reference in the Final Prospectus or in any of the
documents incorporated by reference therein, or (ii) since such date
there shall not have been any change in the capital stock or long-term
debt of the Corporation or any of its Significant Subsidiaries except
as set forth in the letters described in paragraphs (i) or (j) of this
Section 8, or any material change in the financial condition,
shareholders' equity or results of operations of the Corporation and
its subsidiaries taken as a whole, otherwise than as set forth or
contemplated or incorporated by reference in the Final Prospectus or in
any of the documents incorporated by reference therein, the effect of
which, in any such case described in clause (i) or (ii), is, in the
reasonable judgment of the majority in interest of the Underwriters, so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities
being delivered on such Closing Date on the terms and in the manner
contemplated in the Final Prospectus.
(m) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, (i) no downgrading shall have
occurred in the rating accorded the Corporation's securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Corporation's
securities.
(n) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the NYSE, the American Stock
Exchange, the NASDAQ National Market or in the over-the-counter market,
or trading in any securities of the Corporation on any exchange or in
the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a general banking
moratorium shall have been declared by federal or New York state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of a
national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic or
financial conditions (or such a material adverse change in
international conditions the effect of which on the financial markets
in the United States shall be such) as to make it in each case, in the
reasonable judgment of a majority in interest of the several
Underwriters, impracticable or inadvisable to proceed with the public
offering or delivery of the Securities being delivered on such Closing
Date on the terms and in the manner contemplated in the Prospectus.
Prior to each Closing Date, the Corporation shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives or Underwriters' Counsel may reasonably
request.
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All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in substance reasonably satisfactory to
counsel for the Underwriters. The Corporation may rely on any waiver of such
conditions given by the Underwriters or Underwriters' counsel as if given by the
Underwriters.
If any of the conditions specified in this Section 8 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates or opinions furnished to the Representatives or Underwriters'
Counsel pursuant to this Section 8 shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and to
Underwriters' Counsel, this Agreement and all obligations of the Underwriters
hereunder may be cancelled at, or at any time prior to, each Closing Date by the
Representatives. Notice of such cancellation shall be given to the Corporation
in writing, or by telegraph confirmed in writing.
9. Indemnification and Contribution.
(a) Each of the Corporation and the Trust, jointly
and severally, agrees to indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter, and
each person who controls such Underwriter within the meaning of the
Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, as originally filed or in any amendment thereof, or in any
Interim Prospectus, the Basic Prospectus or the Final Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading (and in the case of any Prospectus, in light of
the circumstances under which they were made), and agrees to reimburse
each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that (i)
the Corporation will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Corporation as herein stated
by the Representatives on behalf of any Underwriter specifically for
use in connection with the preparation thereof, and (ii) such indemnity
with respect to the Basic Prospectus or any Interim Prospectus shall
not inure to the benefit of any Underwriter (or any person controlling
such Underwriter) from whom the person asserting any such loss, claim,
damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Final Prospectus
at or prior to the confirmation of the sale of such Securities to such
person in any case where such delivery is required by the Securities
Act and the untrue statement or omission of a material fact contained
in the Basic Prospectus or any Interim Prospectus was corrected in the
Final Prospectus, unless such failure to deliver the Final Prospectus
was a result of noncompliance by the Corporation with Section 6(d)
hereof. This indemnity agreement will be in addition to any liability
which the Corporation may otherwise have.
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Corporation, each of its directors, each of its
officers and employees, the Trust and each Trustee, and each person, if
any, who controls the Corporation or the Trust within the meaning of
the Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, the Basic Prospectus, any Interim Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or the alleged
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omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that the same was made
therein in reliance upon and in conformity with written information
furnished to the Corporation as herein stated by the Representatives on
behalf of such Underwriter specifically for use in the preparation
thereof, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have. The statements set forth in
the last paragraph of the cover page and under the heading
"Underwriting" in the Final Prospectus constitute the only information
furnished to the Corporation in writing by or on behalf of the several
Underwriters for inclusion in the Registration Statement and the Final
Prospectus, as the case may be, and you, as the Representatives,
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party
under this Section 9 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 9, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
under this Section 9. 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 it wishes, jointly with any
other similarly notified indemnifying party, and to the extent that it
may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party; provided, however, if the defendants in any
such action include both the indemnified party and the indemnifying
party and either (i) the indemnifying party or parties and the
indemnified party or parties mutually agree or (ii) representation of
both the indemnifying party or parties and the indemnified party or
parties by the same counsel is inappropriate under applicable standards
of professional conduct due to actual or potential differing interests
between them (such determination to be made in the reasonable judgment
of the indemnifying party and its counsel), the indemnified party or
parties shall have the right to select separate counsel reasonably
satisfactory to the indemnifying party to assume such legal defenses
and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
counsel in connection with the assumption of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a) representing the
indemnified parties under subparagraph (a), as the case may be, who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice
of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but
if settled with the consent of the indemnifying party or if there be a
final judgment for the plaintiff in any such 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.
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(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for
in subparagraph (a) or (b) of this Section 9 is due in accordance with
its terms but is for any reason held by a court to be unavailable from
the Corporation on grounds of policy or other similar grounds, the
Corporation and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) to which the Corporation, the Trust and one or more of
the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discounts appearing on the cover page
of the Final Prospectus bear to the public offering prices appearing
thereon and the Corporation is responsible for the balance; provided,
however, that (i) in no case shall any Underwriter (except as may be
provided in any agreement among underwriters) be responsible for any
amount in excess of the amount by which the total price of the
Preferred Securities underwritten by it and distributed to the public
was 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 or alleged omission and
(ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each director,
officer, employee or agent of an Underwriter and each person who
controls an Underwriter within the meaning of the Securities Act shall
have the same rights to contribution as such Underwriter, and each
person who controls the Corporation within the meaning of either the
Securities Act or the Exchange Act, each officer or employee of the
Corporation, each director of the Corporation, the Trust and each
Trustee shall have the same rights to contribution as the Corporation,
subject in each case to clauses (i) and (ii) of this subparagraph (d).
Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against
another party or parties under this subparagraph (d), notify such party
or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties
from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this subparagraph (d).
(e) The Underwriters severally confirm and the
Corporation acknowledges that the statements with respect to the public
offering of the Preferred Securities by the Underwriters set forth on
the [____________] are correct and constitute the only information
concerning such Underwriters furnished in writing to the Corporation by
or on behalf of the Underwriters specifically for inclusion in the
Registration Statement and the Prospectus.
10. Defaulting Underwriters. If, on either Closing Date, any
one or more Underwriters shall fail to purchase and pay for all of the Preferred
Securities agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective proportions
which the aggregate liquidation amount of Preferred Securities set forth
opposite their names in Schedule II hereto bear to the aggregate liquidation
amount of Firm Securities set opposite the names of the remaining Underwriters)
the Firm Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase on such Closing Date; provided, however, that in the event
that the aggregate liquidation amount of Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
Closing Date shall exceed 10% of the aggregate liquidation amount of Preferred
Securities, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Preferred Securities,
and if such non-defaulting Underwriters do not purchase all the Preferred
Securities, this Agreement (or, with respect to the Second Closing Date, the
obligation of the Underwriters to purchase, and of the Corporation to sell, the
Option Securities) will terminate without liability to any non-defaulting
Underwriters or the Corporation or the Trust. In the event of a default by any
Underwriter as set forth in this Section 10, the applicable Closing Date shall
be postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration Statement
and the Final Prospectus or in any other documents or arrangements may be
effected. Nothing herein
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contained shall relieve any defaulting Underwriter of its liability, if any, to
the Corporation or the Trust and any non-defaulting Underwriter for damages
occasioned by its default hereunder.
11. Termination. The obligations of the Underwriters hereunder
may be terminated by the Underwriters which have agreed to purchase in the
aggregate 50% or more of the aggregate amount of Preferred Securities by notice
given to and received by the Company prior to delivery of and payment for the
Preferred Securities if, prior to that time, any of the events described in
Sections 8(l), (m) and (n) shall have occurred or if the Underwriters shall
decline to purchase the Preferred Securities as permitted by Section 10.
12. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission c/x Xxxxxx Brothers Inc.,
Three World Financial Center, New York, New York 10285, Attention:
Syndicate Department (Fax: (000) 000-0000); and
(b) if to the Corporation or Trust, shall be
delivered or sent by mail, telex or facsimile transmission to the
address of the Corporation set forth in the Registration Statement,
Attention: General Counsel; (Fax: (000) 000-0000). Any such statements,
requests, notices or agreements shall take effect at the time of
receipt thereof. The Corporation shall be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of
the Underwriters by Xxxxxx Brothers Inc.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their successors and, to the extent
and only to the extent stated in Section 9 hereof, the officers and directors
and controlling persons referred to in Section 9 hereof, and except as provided
in Section 9 hereof, no person other than the parties hereto and their
respective successors will have any right or obligation hereunder.
14. Representations and Indemnities to Survive Delivery. The
respective agreements, representations, warranties, indemnities and other
statements of the Corporation or its officers (as such officers) or the Trust
and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of any Underwriter, the Corporation or the Trust or any of their
respective officers, directors or trustees or any controlling person within the
meaning of the Securities Act, and will survive delivery of the payment for the
Preferred Securities.
15. Definition of the Term "Business Day". For purposes of
this Agreement, a "business day" means any day on which the NYSE, Inc. is open
for trading.
16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Trust, the Corporation and the several Underwriters.
Very truly yours,
FW PREFERRED CAPITAL TRUST I
By:____________________________
Title: Administrative Trustee
XXXXXX XXXXXXX CORPORATION
By:____________________________
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXX BROTHERS INC.
By:___________________________
Title:
Acting on behalf of the Representatives named in Schedule I annexed hereto and
the several Underwriters named in Schedule II
annexed hereto.
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SCHEDULE I
Date of Underwriting Agreement:
Registration Statement Nos. 333-52369
333-52369 -01
333-52369 -02
Representatives and Address: Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Certificate of Trust, Declaration, Title, Purchase Price and
Description of Preferred Securities:
Certificate of Trust:
Declaration:
Title:
Aggregate liquidation amount:
Price to public:
Purchase price:
Distribution rate:
Time of payment of distributions:
Redemption provisions:
Repayment:
Indenture, Title, Purchase Price and Description of Debentures:
Indenture:
Title:
Principal Amount:
Price to Trust:
Interest rate:
Time of payment of interest:
Maturity:
Redemption provisions:
Repayment:
Guarantee Agreement:
Commission payable by Corporation:
First Closing Date, Time and Location:
Date:
Time:
Location :
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SCHEDULE II
Underwriters Liquidation Amount of Securities To Be Purchased
------------ ------------------------------------------------
Xxxxxx Brothers Inc........................................ $
Bear, Xxxxxxx & Co. Inc. . ................................
PaineWebber Incorporated...................................
Prudential Securities Incorporated. .......................
XX Xxxxx Securities Corporation. .......................
First Union Capital Markets................................
Total............................................. $
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SCHEDULE III
SIGNIFICANT SUBSIDIARIES
I. U.S. Domiciled Significant Subsidiaries:
Xxxxxx Xxxxxxx Energy Corporation
II. Foreign Significant Subsidiaries:
Xxxxxx Xxxxxxx Limited
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