Exhibit 1.1
NATIONAL CITY CORPORATION
(a Delaware corporation)
Senior Debt Securities
Subordinated Debt Securities
Preferred Stock
Depositary Shares Representing Preferred Stock
UNDERWRITING AGREEMENT
March 10, 2004
NATIONAL CITY CORPORATION
(a Delaware corporation)
Senior Debt Securities
Subordinated Debt Securities
Preferred Stock
Depositary Shares Representing Preferred Stock
UNDERWRITING AGREEMENT
March 10, 2004
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
National City Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time, either together or separately,
certain of its (i) senior debt securities (the "Senior Securities") and/or (ii)
subordinated debt securities (the "Subordinated Securities", and together with
the Senior Securities, the "Debt Securities"), and/or (iii) preferred stock,
without par value (the "Preferred Stock"), and/or (iv) depositary shares which
represent fractional interests in the Preferred Stock (the "Depositary Shares"),
in one or more offerings on terms determined at the time of sale and set forth
in a terms agreement in the form of Exhibit A hereto (the "Terms Agreement").
The Debt Securities and Preferred Stock may be convertible into the Company's
Common Stock, with par value of $4.00 per share (the "Common Stock"), as set
forth in the applicable Terms Agreement relating thereto.
The Senior Securities are to be issued under an Indenture to be dated
as of March 17, 2004 (as it may be amended or supplemented from time to time,
the "Senior Indenture"), between the Company and The Bank of New York ("BONY"),
as trustee (the "Senior Trustee"). The Subordinated Securities are to be issued
under an Indenture to dated as of March 17, 2004 (as it may be amended or
supplemented from time to time, the "Subordinated Indenture"), between the
Company and BONY, as trustee (the "Subordinated Trustee", and together with the
Senior Trustee, the "Trustees"). The Senior Indenture and the Subordinated
Indenture are collectively referred to herein as the "Indentures." The Senior
Securities and the Subordinated Securities may have varying designations,
maturities, rates and times of payment of interest, if any, selling prices,
redemption terms, if any, exchange terms, if any, conversion terms and other
specific terms as set forth in the applicable Terms Agreement relating thereto.
Each issue of Preferred Stock may vary as to the specific number of
shares, title, stated value and liquidation preference, issuance price, dividend
rate or rates (or method of calculation), dividend payment dates, redemption or
sinking fund requirements, conversion and exchange provisions and any other
variable terms as set forth in the applicable Terms Agreement relating to such
Preferred Stock. If the Preferred Stock is to be offered in the form of
Depositary Shares, the Preferred Stock will, when issued, be deposited by the
Company against delivery of depositary receipts (the "Depositary Receipts") to
be issued under a deposit agreement (the "Deposit Agreement"), to be entered
into among the Company, a depositary institution (the "Depositary") and the
holders from time to time of the Depositary Receipts issued thereunder. The
Depositary Receipts will evidence the Depositary Shares and each Depositary
Share will represent a fractional interest (as set forth in the applicable Terms
Agreement) in a Share of a particular series of Preferred Stock. The Preferred
Stock, together, if applicable, with the Depositary Shares are hereinafter
referred to as the "Shares."
The Debt Securities and Shares, to be issued and sold as specified in
the applicable Terms Agreement, shall collectively be referred to herein as the
"Offered Securities." As used herein, unless the context otherwise requires, the
term "Underwriters" shall mean the firm or firms specified as Underwriter or
Underwriters in the applicable Terms Agreement relating to the Offered
Securities and the term "you" shall mean the Underwriter or Underwriters, if no
underwriting syndicate is purchasing the Offered Securities, or the
representative or representatives of the Underwriters, if an underwriting
syndicate is purchasing the Offered Securities, as specified in the applicable
Terms Agreement.
Whenever the Company determines to make an offering of Offered
Securities, the Company will enter into a Terms Agreement providing for the sale
of the applicable Offered Securities to, and the purchase and offering thereof
by, the Underwriters. The Terms Agreement relating to the Offered Securities
shall specify whether Senior Securities, Subordinated Securities, Preferred
Stock or Depositary Shares are to be issued, the names of the Underwriters
participating in such offering (subject to substitution as provided in Section
10 hereof), the principal amount or number of Offered Securities which each such
Underwriter severally agrees to purchase, the price at which the Offered
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, the time and place of delivery and payment and other
specific terms. The Terms Agreement may take the form of an exchange of any
standard form of written telecommunication between you and the Company. Each
offering of Offered Securities will be governed by this Agreement, as
supplemented by the applicable Terms Agreement, and this Agreement and such
Terms Agreement shall inure to the benefit of and be binding upon the Company
and each Underwriter participating in the offering of such Offered Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-104080), including a prospectus, relating to the Offered Securities and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"). Such registration statement
has been declared effective by the Commission. As provided in Section 3(a), a
prospectus supplement reflecting the terms of the applicable Offered Securities,
the terms of the offering thereof and the other matters set forth therein will
be prepared and filed pursuant to Rule 424 under the 1933 Act in connection with
any offering of Offered Securities. Any such prospectus supplement, in the form
first filed after the date of the applicable Terms Agreement pursuant to Rule
424, is herein referred to as the "Prospectus Supplement." Such registration
2
statement, as amended at the date of the applicable Terms Agreement, including
the exhibits thereto and the documents incorporated by reference therein, is
herein called the "Registration Statement," and the basic prospectus included
therein relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement, is herein called the
"Prospectus," except that, if such basic prospectus is amended or supplemented
on or prior to the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to the basic prospectus
as so amended or supplemented and as supplemented by the Prospectus Supplement,
in either case including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations") (the "Rule 430A Information")
or Rule 434(d) of the 1933 Act Regulations (the "Rule 434 Information") and the
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by
reference therein; provided that, if the Company files a registration statement
with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the
"Rule 462(b) Registration Statement"), then, after such filing, all references
to "Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement; and provided further, that if the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, then all references to "Prospectus"
shall also be deemed to include the final or preliminary prospectus and the
applicable term sheet or abbreviated term sheet (the "Term Sheet"), as the case
may be, in the form first furnished to the Underwriters by the Company in
reliance upon Rule 434 of the 1933 Act Regulations, and all references in this
Agreement to the date of the Prospectus shall mean the date of the Term Sheet. A
"preliminary prospectus" shall be deemed to refer to any prospectus used before
the Registration Statement became effective and any prospectus that omitted, as
applicable, the Rule 430A Information, the Rule 434 Information or other
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was used
after such effectiveness and prior to the execution and delivery of the
applicable Terms Agreement. For purposes of this Agreement, all references to
the Registration Statement, Prospectus, Term Sheet or preliminary prospectus or
to any amendment or supplement to any of the foregoing shall be deemed to
include any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
Section 1. Representations and Warranties. (a) The Company represents and
warrants to each of the Underwriters as of the date hereof, as of the date of
each Terms Agreement and as of the Closing Time referred to in Section 2(b)
that:
(i) The Company meets the requirements for use of Form
S-3 under the 1933 Act. Each of the Registration
Statement, including any Rule 462(b) Registration
Statement, has become effective under the 1933 Act
and no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933
Act and no proceedings for that purpose have been
instituted or are pending or threatened by the
Commission, and any request on the part of the
Commission for additional information has been
complied with.
As of the effective date of the Registration
Statement and any amendment thereto and as of the applicable
filing date as to any Prospectus Supplement and any amendment
thereto, (A) the Registration Statement and any amendments and
supplements thereto complied and will comply in all material
respects with the
3
requirements of the 1933 Act and the 1933 Act Regulations, the
Trust Indenture Act of 1939, as amended (the "1939 Act") , and
the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations") (B) neither the Registration
Statement nor any amendment or supplement thereto contained or
will contain an untrue statement of a material fact or omitted
or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and (C) neither the Prospectus nor any amendment
or supplement thereto included or will include an untrue
statement of a material fact or omitted or will omit to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, except that this representation and
warranty does not apply to statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter
through you expressly for use in the Registration Statement or
the Prospectus. At the Closing Time, the applicable Indenture,
if any, will comply in all material respects with the
requirements of the 1939 Act and the 1939 Act Regulations.
Each preliminary prospectus and the prospectus filed
as part of the Registration Statement as originally filed or
as part of any amendment thereto, or filed pursuant to Rule
424 under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and each preliminary
prospectus and the Prospectus delivered to the Underwriters
for use in connection with any offering hereunder was
substantively identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(ii) The documents incorporated by reference or deemed to
be incorporated in the Prospectus pursuant to Item 12
of Form S-3 under the 1933 Act, at the time they were
or hereafter are filed with the Commission, complied
in all material respects with the requirements of the
1934 Act, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations")
and, when read together and with the other
information in the Prospectus, as of the applicable
effective date of the Registration Statement and any
amendment thereto, did not and will not contain an
untrue statement of a material fact or omit to state
a material fact required to be stated therein or
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading.
(iii) The accountants who certified the financial
statements and supporting schedules included in the
Registration Statement are independent public
accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company; and upon execution and
delivery of each Terms Agreement by the Company, such
Terms Agreement shall have been duly authorized,
executed and delivered by the Company.
4
(v) The financial statements incorporated by reference in
the Registration Statement present fairly the
consolidated financial position of the Company and
its consolidated subsidiaries as at the dates
indicated and the consolidated results of their
operations and cash flows for the periods specified;
except as otherwise stated in the Registration
Statement, said financial statements have been
prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a
consistent basis; and the supporting schedules
included in the Registration Statement present fairly
in accordance with GAAP the information required to
be stated therein.
(vi) Since the respective dates as of which information is
given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the
condition (financial or otherwise), or in the
earnings, business affairs or business prospects of
the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the
Company or any of its subsidiaries, other than those
in the ordinary course of business, which are
material with respect to the Company and its
subsidiaries, considered as one enterprise, and (C)
except for regular quarterly dividends on the
Company's Common Stock, the Company's Preferred
Stock, and the Company's repurchase of its Common
Stock and Preferred Stock pursuant to its publicly
announced stock repurchase programs, there has been
no dividend or distribution of any kind declared,
paid or made by the Company on any class of its
Capital Stock.
(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the State of Delaware with corporate power
and authority to own, lease and operate its
properties and to conduct its business as described
in the Registration Statement; the Company is duly
registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended (the "Bank
Holding Company Act"); and the Company is duly
qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction
in which such qualification is required, whether by
reason of the ownership or leasing of property or the
conduct of business, except where the failure to so
qualify or be in good standing would not have a
Material Adverse Effect.
(viii) Each "significant subsidiary" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X) (a
"Significant Subsidiary") has been duly organized and
is validly existing as a corporation in good standing
under the laws of the jurisdiction of its
incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct
its business as described in the Registration
Statement and is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which such
qualification is required, whether by reason of the
ownership or leasing of property or the conduct of
business, except
5
where the failure to so qualify or be in good
standing would not have a Material Adverse Effect;
except as otherwise stated in the Registration
Statement, all of the issued and outstanding capital
stock of each such Significant Subsidiary has been
duly authorized and validly issued, is fully paid and
non-assessable (subject to the provisions of Section
55 of Title 12 of the United States Code in the case
of Significant Subsidiaries which are national
banking associations) and, except for director's
qualifying shares, is owned by the Company, directly
or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(ix) The Offered Securities conform in all material
respects to the summary descriptions thereof
contained or incorporated by reference in the
Prospectus and such summary descriptions conform to
the rights set forth in the instruments defining the
same.
(x) The authorized, issued and outstanding capital stock
of the Company set forth in the Prospectus in the
under each of "Description of Preferred Stock" and
"Description of Common Stock" (except for subsequent
issuances, if any, pursuant to reservations or
agreements referred to in the Prospectus) is accurate
as of the date indicated in such section; the shares
of issued and outstanding Common Stock have been duly
authorized and validly issued and are fully paid and
non-assessable; the Common Stock conforms in all
material respects to all statements relating thereto
contained in the Registration Statement.
(xi) If the Offered Securities include Preferred Stock,
such Preferred Stock shall, on the date of the Terms
Agreement relating to such Offered Securities, be
duly authorized and, when such Preferred Stock is
duly executed and delivered and issued and paid for
in accordance with this Agreement and the applicable
Terms Agreement, such Preferred Stock will have been
validly issued, fully paid and non-assessable; no
holder thereof will be subject to personal liability
by reason of being such a holder; such Preferred
Stock will not be subject to the preemptive rights of
any stockholder of the Company; and all corporate
action required to be taken for the authorization,
issue and sale of such Preferred Stock has been, or
at the Closing Time will be, validly and sufficiently
taken; and, if the Offered Securities include
Preferred Stock that is to be represented by
Depositary Shares, then, upon deposit by the Company
of such Preferred Stock with the Depositary pursuant
to the Deposit Agreement and the execution of the
Depositary of the Depositary Receipts evidencing the
Depositary Shares, such Depositary Shares shall
represent legal and valid interests in such Preferred
Stock; and, if the Offered Securities include
Preferred Stock that is convertible into Common Stock
("Convertible Preferred Stock"), then such Preferred
Stock shall be convertible into Common Stock in
accordance with its terms and the terms of a
Convertible Preferred Stock Prospectus Supplement.
6
(xii) If the Offered Securities include Debt Securities,
such Debt Securities shall, on the date of the Terms
Agreement relating to such Debt Securities, be duly
authorized for issuance and sale pursuant to this
Agreement and, when such Debt Securities are duly
executed, authenticated and delivered pursuant to the
provisions of this Agreement and the applicable
Indenture against payment of the consideration
therefor in accordance with this Agreement and the
applicable Terms Agreement, such Debt Securities will
be valid and legally binding obligations of the
Company enforceable in accordance with their terms,
except as enforceability thereof may be limited by
bankruptcy, reorganization, moratorium, fraudulent
conveyance, insolvency or other laws relating to or
affecting enforcement of creditors' rights or by
general equity principles (regardless of whether such
enforceability is considered in a proceeding in
equity or at law) and will be entitled to the
benefits of the applicable Indenture; and the
Indentures conform in all material respects to all
statements relating thereto contained in the
Prospectus; and, if the Offered Securities include
Debt Securities that are convertible into Common
Stock ("Convertible Debt Securities"), then such Debt
Securities shall be convertible into Common Stock in
accordance with their terms and the terms of a
Convertible Debt Security Prospectus Supplement.
(xiii) If applicable, the shares of Common Stock issuable
upon conversion of any issue of Convertible Debt
Securities or Convertible Preferred Stock have been
duly and validly authorized and, prior to the
issuance of such issue, reserved for issuance upon
such conversion by all necessary corporate action and
such shares of Common Stock, when issued upon such
conversion, will be duly and validly issued and will
be fully paid and non-assessable, and the issuance of
such shares upon such conversion will not be subject
to preemptive rights.
(xiv) If the Offered Securities include Debt Securities,
the applicable Indenture has been duly authorized by
the Company, will be substantially in the form filed
as an exhibit to the Registration Statement and, when
duly executed and delivered by the Company and the
Trustee, will constitute a valid and binding
obligation of the Company, enforceable against the
Company in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent
conveyance or other laws relating to or affecting
enforcement of creditors' rights or by general equity
principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
and the summary descriptions of the applicable
Indenture set forth in the Prospectus conforms in all
material respects to the provisions contained in the
applicable Indenture.
(xv) If the Offered Securities include Depositary Shares,
the Deposit Agreement will have been duly authorized,
executed and delivered by the Company prior to the
issuance of the Offered Securities, and, when duly
executed and delivered by the Company and the
Depositary, will constitute a valid and binding
obligation of the Company enforceable in accordance
with its
7
terms, except as enforceability thereof may be
limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other laws
relating to or affecting creditors' rights generally
and by general equity principles (regardless of
whether such enforceability is considered in a
proceeding in equity or at law).
(xvi) If the Offered Securities include Depositary Shares,
upon execution and delivery thereof pursuant to the
terms of the Deposit Agreement, the persons in whose
names the Depositary Receipts are registered will be
entitled to the rights specified therein and in the
Deposit Agreement, except as enforceability of such
rights may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and
other laws relating to or affecting creditors' rights
generally and by general equity principles
(regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(xvii) Neither the Company nor any Significant Subsidiary is
in violation of its charter or in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan
agreement, note, lease or other agreement or
instrument to which the Company or any of its
Significant Subsidiaries is a party or by which it or
any of them may be bound or to which any of the
property or assets of the Company or of any of its
Significant Subsidiaries may be subject; and the
execution, delivery and performance of this
Agreement, the applicable Terms Agreement, the
Indentures and the Deposit Agreement by the Company,
the issuance and delivery of the Offered Securities,
the consummation by the Company of the transactions
contemplated in this Agreement, the applicable Terms
Agreement and in the Registration Statement, and
compliance by the Company with the terms of this
Agreement, the applicable Terms Agreement, Indentures
and the Deposit Agreement do not and will not
conflict with or constitute a breach of or default
under, or result in the creation or imposition of any
material lien, charge or encumbrance upon any
material property or assets of the Company or any of
its Significant Subsidiaries pursuant to any material
contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the
Company or any of its Significant Subsidiaries is a
party or by which it or any of them may be bound, or
to which any of the property or assets of the Company
or any of its Significant Subsidiaries is subject,
nor will such action result in any violation of the
provisions of the charter or by-laws of the Company
or any applicable law, administrative regulation or
administrative or court decree.
(xviii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree
of, any court or governmental authority or agency is
necessary or required for the performance by the
Company of its obligations hereunder, in connection
with the offering, issuance or sale of the Offered
Securities hereunder or the consummation of the
transactions contemplated by this Agreement or for
the due
8
execution, delivery or performance of the Indentures
or the Deposit Agreement by the Company, except such
as have been already obtained or as may be required
under the 1933 Act or the 1933 Act Regulations (which
requirements have been met) or state securities laws
and except for the qualification of the Indentures
under the 1939 Act.
(xix) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the
Company, threatened against or affecting the Company
or any of its subsidiaries which is required to be
disclosed in the Registration Statement (other than
as disclosed therein) , or which might result in a
Material Adverse Effect, or which might materially
and adversely affect the properties or assets of the
Company and its subsidiaries considered as one
enterprise, or, which might materially or adversely
affect the consummation of this Agreement or any
Terms Agreement; all pending legal or governmental
proceedings to which the Company or any subsidiary is
a party or of which any of their respective property
or assets is the subject which are not described in
the Registration Statement, including ordinary
routine litigation incidental to the business of the
Company or any subsidiary, are considered in the
aggregate, not material; and there are no contracts
or documents of the Company or any Significant
Subsidiary which are required to be filed or
incorporated by reference as exhibits to the
Registration Statement by the 1933 Act or by the 1933
Act Regulations which have not been so filed or
incorporated by reference.
(xx) The Company and its Significant Subsidiaries possess
such certificates, authorities or permits issued by
the appropriate state, federal or foreign regulatory
agencies or bodies material to the conduct of the
business now operated by them, and neither the
Company nor any of its Significant Subsidiaries has
received any notice of proceedings relating to the
revocation or modification of any such certificate,
authority or permit which, singly, or in the
aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely
affect the condition, financial or otherwise, or the
earnings or business affairs or which is reasonably
likely to affect the business prospects of the
Company and its subsidiaries considered as one
enterprise.
(xxi) The Company has not taken and will not take, directly
or indirectly, any action designed to, or that might
be reasonably expected to, cause or result in
stabilization or manipulation of the price of the
Offered Securities.
(b) Any certificate signed by any duly authorized officer of the
Company or any Significant Subsidiary and delivered to you or
to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
Section 2. Purchase and Sale. (a) The several commitments of the Underwriters to
purchase Offered Securities pursuant to any Terms Agreement shall be deemed to
have been made
9
on the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
(a) Payment of the purchase price for, and delivery of, any
Offered Securities to be purchased by the Underwriters
pursuant to the applicable Terms Agreement shall be made at
the office of Sidley Xxxxxx Xxxxx & Xxxx, LLP, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by you and the Company in the applicable
Terms Agreement, at 9:00 A.M., New York City time, on the
third (fourth, if the pricing occurs after 4:30 P.M., New York
City time, on any given day) business day (unless postponed in
accordance with the provisions of Section 10) following the
date of the applicable Terms Agreement or at such other time
as shall be agreed upon by you and the Company (each such time
and date being referred to as a "Closing Time"). Unless
otherwise specified in the applicable Terms Agreement, payment
shall be made by wire transfer in immediately available funds
to the account so specified to the Underwriters against
delivery to you for the respective accounts of the
Underwriters of the Offered Securities to be purchased by
them. Such Offered Securities, certificates for such Offered
Securities or Depositary Receipts evidencing the Depositary
Shares, as applicable, shall be in such denominations and
registered in such names as you may request in writing at
least one full business day prior to the applicable Closing
Time. Such Offered Securities, certificates or Depositary
Receipts, as applicable, will be made available for
examination and packaging by you not later than 10:00 A.M. on
the business day prior to Closing Time.
Section 3. Certain Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) (i) If reasonably requested by you in connection with the
offering of the Offered Securities, the Company will prepare a
preliminary prospectus supplement containing such information
concerning the Offered Securities as you and the Company deem
appropriate and (ii) promptly following the execution of each
Terms Agreement, the Company will prepare a Prospectus
Supplement that complies with the 1933 Act and the 1933 Act
Regulations and that sets forth the number or principal amount
of Offered Securities covered thereby, the names of the
Underwriters participating in the offering and the number or
principal amount of Offered Securities which each severally
has agreed to purchase, the name of each Underwriter, if any,
acting as representative in connection with the offering, the
price at which the Offered Securities are to be purchased by
the Underwriters from the Company, the initial public offering
price, the selling concession and reallowance, if any, and
such other information concerning the Offered Securities as
you and the Company deem appropriate in connection with the
offering of the Offered Securities. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission
for filing pursuant to Rule 424 under the
10
1933 Act and will furnish to the Underwriters named therein as
many copies of any preliminary prospectus supplement, the
Prospectus and the Prospectus Supplement as you shall
reasonably request. If the Company elects to rely on Rule 434
under the 1933 Act Regulations, the Company will prepare an
abbreviated term sheet that complies with the requirements of
Rule 434 under the 1933 Act Regulations (a "Rule 434
Prospectus") and will provide the Underwriters with copies of
the form of Rule 434 Prospectus, in such number as the
Underwriters may reasonably request, and file or transmit for
filing with the Commission the form of Prospectus complying
with Rule 434(c) (2) of the 1933 Act Regulations in accordance
with Rule 424(b) of the 1933 Act Regulations by the close of
business in New York on the business day immediately
succeeding the date of the applicable Terms Agreement.
(b) The Company will notify each of you immediately, and confirm
the notice in writing, (i) of the effectiveness of the
Registration Statement and any amendment thereto (including
any post-effective amendment), (ii) of the mailing or the
delivery or XXXXX transmission to the Commission for filing of
any supplement to the Prospectus or any document to be filed
pursuant to the 1934 Act, (iii) of the receipt of any comments
from the Commission, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information,
and (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
(c) The Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including
any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to the Prospectus, whether
pursuant to the 1934 Act, the 1933 Act or otherwise, and will
furnish you with copies of any such amendment or supplement or
other document proposed to be filed a reasonable amount of
time prior to such proposed filing and will not file any such
amendment or supplement or other document or use any such
prospectus to which you or counsel shall reasonably object.
(d) The Company will deliver to you as many signed copies of the
registration statement as originally filed and of each
amendment thereto (including exhibits filed therewith or
incorporated by reference therein) as you may reasonably
request and will also deliver to you a conformed copy of the
Registration Statement and of each amendment thereto for each
of the Underwriters. The copies of the Registration Statement
and each amendment thereto furnished to the Underwriters will
be substantively identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(e) If at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered
Securities any event shall occur or condition exist as a
result of which it is necessary, in the opinion of counsel for
the Underwriters or counsel for the Company, to further amend
or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser or if it
shall be necessary, in the opinion of either such
11
counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with
the Commission, such amendment or supplement, whether by
documents pursuant to the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission to make
the Registration Statement or the Prospectus comply with such
requirements.
(f) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to
Section 13 or 14 of the 0000 Xxx.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Offered Securities and, if
applicable, the Common Stock to be issued upon conversion of
Convertible Debt Securities or Convertible Preferred Stock,
for offering and sale under the applicable securities laws of
such states and other jurisdictions as you may designate;
provided, however, that the Company shall not be obligated to
qualify as a foreign corporation in any jurisdiction in which
it is not so qualified and will not be obligated to execute a
general consent to service of process in any state. In each
jurisdiction in which the Offered Securities and, if
applicable, the Common Stock, have been so qualified, the
Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect for as long as may be required for the
distribution of the Offered Securities. The Company will
promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Offered Securities or, if applicable, the
Common Stock into which Convertible Debt Securities or
Convertible Preferred Stock are convertible, for sale in any
such state or jurisdiction or the initiating or threatening of
any proceeding for such purpose.
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days
after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158
of the 1933 Act Regulations) covering a twelve month period
beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in
said Rule 158) of the Registration Statement.
(i) If and to the extent specified in the applicable Terms
Agreement, the Company will use its best efforts to effect the
listing of the Offered Securities on the New York Stock
Exchange by the Closing Time with respect to the applicable
Terms Agreement.
(j) For such period of time as is specified in the applicable
Terms Agreement, commencing on the date of such Terms
Agreement, the Company will not, without the prior written
consent of the Underwriter, directly or indirectly, sell,
offer to sell, grant any option for the sale of, or otherwise
dispose of, any Offered Securities or, if such Terms Agreement
relates to Convertible Debt Securities or Convertible
Preferred Stock, any Common Stock or any security convertible
into Common Stock (except for Common Stock issued pursuant to
reservations or
12
agreements or any employee stock option plan, stock ownership
plan or dividend reinvestment plan).
Section 4. Payment of Expenses. The Company will pay all expenses incident to
the performance of its obligations under this Agreement and any applicable Terms
Agreement, including (a) the printing and filing of the Registration Statement,
as originally filed and of each amendment thereto, (b) the reproduction and
delivery of this Agreement and each Terms Agreement, (c) the preparation,
issuance and delivery of the certificates for Offered Securities to the
Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Offered Securities under securities
laws in accordance with Section 23(g) hereof, including filing fees and fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and the Legal Investment
Survey (copies of which shall be furnished to the Company promptly after
preparation by such counsel), (f) the printing and delivery to the Underwriters
of copies of the Registration Statement and all amendments thereto, of each
preliminary prospectus, and of the Prospectus and any amendments or supplements
thereto, (g) the reproduction and delivery to the Underwriters of copies of the
Indentures, if applicable, and the Blue Sky Survey and any Legal Investment
Survey, (h) the fees of rating agencies, (i) the fees and expenses, if any,
incurred with respect to any filing with the National Association of Securities
Dealers, Inc. ("NASD"), and (j) the fees and expenses, if applicable, incurred
in connection with the listing of the Offered Securities and the Common Stock
issuable upon conversion of any Convertible Debt Securities or Convertible
Preferred Stock.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 5 or Section 9(a) (i) or (iv) hereof, the Company shall
reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for such Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Offered Securities pursuant to any
Terms Agreement are subject to the accuracy of the representations and
warranties of the Company herein contained, to the accuracy of the statements of
the Company's officers made in any certificate furnished pursuant to the
provisions hereof, to the performance by the Company of all of its covenants and
other obligations hereunder, and to the following further conditions:
(a) At the applicable Closing Time:
(i) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under
the 1933 Act. No stop order suspending the
effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
Any request on the part of the Commission for
additional information shall have been complied with
to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing information
relating to the description of the Offered
Securities, the specific method of distribution and
similar matters shall have been filed with the
Commission in accordance with Rule 424(b) (1), (2),
(3), (4) or (5), as applicable (or any required
post-effective amendment providing
13
such information shall have been filed and declared
effective in accordance with the requirements of Rule
430A), or, if the Company has elected to rely upon
Rule 434 of the 1933 Act Regulations, a Term Sheet
including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424
(b)(7);
(ii) The rating assigned by any nationally recognized
statistical rating organization to any debt
securities or preferred stock of the Company as of
the date of the applicable Terms Agreement shall not
have been lowered since the execution of such Terms
Agreement nor shall any such rating organization have
publicly announced that it has placed any debt
securities or preferred stock of the Company on what
is commonly termed a "watch list" for possible
downgrading; and
(iii) There shall not have come to the attention of such of
you as may be named in the applicable Terms Agreement
any facts that would cause such of you to believe
that the Prospectus, together with the applicable
Prospectus Supplement, at the time it was required to
be delivered to a purchaser of the Offered
Securities, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were
made, not misleading.
(b) At the applicable Closing Time you shall have received:
(i) The favorable opinion, dated as of the applicable
Closing Time, of Xxxxx X. Xxxxxxx, Executive Vice
President, General Counsel and Secretary of the
Company, or such other counsel for the Company
satisfactory to such of you as may be named in the
applicable Terms Agreement, in form and substance
satisfactory to such of you as may be named in the
applicable Terms Agreement to the effect that:
(A) If the Offered Securities include Debt
Securities, the applicable Indenture has
been duly and validly authorized, executed
and delivered by the Company and constitutes
the valid and binding agreement of the
Company, enforceable in accordance with its
terms, except as enforcement thereof may be
limited by bankruptcy, reorganization,
moratorium, fraudulent conveyance,
insolvency or other laws relating to or
affecting enforcement of creditors' rights
or by general equity principles (regardless
of whether such enforceability is considered
in a proceeding in equity or at law);
(B) If the Offered Securities include Debt
Securities, such Debt Securities are in the
form contemplated by the applicable
Indenture, and have been duly and validly
authorized by all necessary corporate action
and, when executed and authenticated as
specified in the applicable Indenture and
delivered against payment pursuant to this
Agreement, as supplemented by the
14
applicable Terms Agreement, will be valid
and binding obligations of the Company
enforceable in accordance with their terms,
except as enforcement thereof may be limited
by bankruptcy, reorganization, moratorium,
fraudulent conveyance, insolvency or other
laws relating to or affecting enforcement of
creditors' rights or by general equity
principles (regardless of whether such
enforceability is considered in a proceeding
in equity or at law), and except further as
enforcement thereof may be limited by
requirements that a claim (or a foreign
currency judgment in respect of such claim)
be converted into United States dollars at a
rate of exchange prevailing on a date
determined pursuant to applicable law, and
will be entitled to the benefits of the
applicable Indenture;
(C) If the Offered Securities include Preferred
Stock, such shares of Preferred Stock have
been duly and validly authorized by all
necessary corporate action, and when
executed and delivered and issued and paid
for in accordance with this agreement, as
supplemented by the applicable Terms
Agreement, will be validly issued, fully
paid and non-assessable and the issuance of
such shares of Preferred Stock will not be
subject to preemptive rights;
(D) The Offered Securities and, if applicable,
the Indenture, the Common Stock and the
Deposit Agreement conform in all material
respects to the descriptions thereof in the
Prospectus and the applicable Prospectus
Supplement;
(E) If the Offered Securities include Debt
Securities, the applicable Indenture is
qualified under the 1939 Act;
(F) If the Offered Securities include
Convertible Debt Securities or Convertible
Preferred Stock, the shares of Common Stock
issuable upon conversion of such Convertible
Debt Securities or Convertible Preferred
Stock have been duly authorized and reserved
for issuance upon such conversion by all
necessary corporate action and such shares,
when issued upon such conversion will be
duly and validly issued and will be fully
paid and non-assessable, and the issuance of
such shares upon such conversion will not be
subject to preemptive rights;
(G) If the Offered Securities include Depositary
Shares, the applicable Deposit Agreement has
been duly and validly authorized, executed
and delivered by the Company and constitutes
the valid and binding agreement of the
Company, enforceable in accordance with its
terms, except as enforcement thereof may be
limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent
conveyance or other laws relating to or
affecting enforcement of creditors' rights
or by general equity principles (regardless
of
15
whether such enforceability is considered in
a proceeding in equity or at law);
(H) If the Offered Securities include Depositary
Shares, such Depositary Shares are in the
form contemplated by the applicable Deposit
Agreement, and have been duly and validly
authorized by all necessary corporate action
and, when executed and authenticated as
specified in the applicable Deposit
Agreement and delivered against payment
pursuant to this Agreement, as supplemented
by the applicable Terms Agreement, will be
valid and binding obligations of the Company
enforceable in accordance with their terms,
except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other
laws relating to or affecting enforcement of
creditors' rights or by general equity
principles (regardless of whether such
enforceability is considered in a proceeding
in equity or at law), and except further as
enforcement thereof may be limited by
requirements that a claim (or a foreign
currency judgment in respect of such claim)
be converted into United States dollars at a
rate of exchange prevailing on a date
determined pursuant to applicable law, and
will be entitled to the benefits of the
applicable Deposit Agreement;
(I) This Agreement and the applicable Terms
Agreement have been duly authorized,
executed and delivered by the Company;
(J) The Registration Statement, including any
Rule 462(b) Registration Statement, the Rule
430A Information and the Rule 434
Information, as applicable, the Prospectus,
excluding the documents incorporated by
reference therein, and each amendment or
supplement to the Registration Statement and
Prospectus, excluding the documents
incorporated by reference therein, as of
their respective effective or issue dates
(other than financial statements and
supporting schedules included therein or
omitted therefrom, and the Trustee's
Statement of Eligibility on Form T-l ("Form
T-l") as to which such counsel need not
express an opinion) complied as to form in
all material respects with the requirements
of the 1933 Act and the 1933 Act
Regulations;
(K) No authorization, approval, consent, order
or decree of any court or governmental
authority or agency is required in
connection with the sale of the Offered
Securities under this Agreement and the
applicable Terms Agreement other than as may
be required under state securities laws;
(L) The Company has been duly incorporated and
is validly existing as a corporation in good
standing under the laws of the State of
Delaware;
16
(M) The Company has corporate power and
authority to own, lease and operate its
properties and to conduct its business as
described in the Registration Statement;
(N) The Company is duly registered as a
financial holding company under the Bank
Holding Company Act; to the best knowledge
and information of such counsel, after due
investigation, the Company is duly qualified
as a foreign corporation to transact
business and is in good standing in each
jurisdiction in which such qualification is
required, except where the failure to so
qualify or be in good standing would not
have a Material Adverse Effect;
(O) The authorized, issued and outstanding
capital stock of the Company is as set forth
in the Prospectus under each of "Description
of Preferred Stock" and "Description of
Common Stock" (except for subsequent
issuances, if any, pursuant to reservations
or agreements) and the shares of issued and
outstanding Common Stock have been duly
authorized and validly issued and are fully
paid and nonassessable; and the Common Stock
of the Company conforms to all statements
relating thereto contained in the
Registration Statement;
(P) Each Significant Subsidiary of the Company
has been duly incorporated and is validly
existing as a corporation in good standing
under the laws of the jurisdiction of its
incorporation, continues to hold a valid
certificate to do business as such and has
full power and authority to conduct business
as such, has corporate power and authority
to own, lease and operate its properties and
to conduct its business as described in the
Registration Statement and, to the best
knowledge and information of such counsel,
after due investigation, is duly qualified
as a foreign corporation to transact
business and is in good standing in each
jurisdiction in which such qualification is
required, whether by reason of the ownership
or leasing of property or the conduct of
business, except where the failure to so
qualify or be in good standing would not
have a Material Adverse Effect; and all of
the issued and outstanding capital stock of
each such Significant Subsidiary has been
duly authorized and validly issued, is fully
paid and non-assessable (subject to the
provisions of Section 55 of Title 12 of the
United States Code in the case of
Significant Subsidiaries which are national
banking associations) and, to the best
knowledge and information of such counsel,
after due investigation, is owned by the
Company, directly or through subsidiaries,
free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim
or equity;
(Q) The Registration Statement, including any
Rule 462(b) Registration Statement, is
effective under the 1933 Act; any required
filing of the Prospectus pursuant to Rule
424(b) has been
17
made in the manner and within the time
period required by Rule 424 (b); and, to the
best knowledge and information of such
counsel, after due investigation, no stop
order suspending the effectiveness of the
Registration Statement has been issued under
the 1933 Act or proceedings therefor
initiated or threatened by the Commission;
(R) Each document filed pursuant to the 1934 Act
(other than the financial statements and
supporting schedules included therein or
omitted therefrom, as to which such counsel
need express no opinion) and incorporated by
reference in the Prospectus complied when so
filed as to form in all material respects
with the 1934 Act and the rules and
regulations thereunder;
(S) To the best knowledge and information of
such counsel, after due investigation, there
are no legal or governmental proceedings
pending or threatened which are required to
be disclosed in the Registration Statement,
other than those disclosed therein, and all
pending legal or governmental proceedings to
which the Company or any subsidiary of the
Company is a party or to which any of their
property or assets is subject which are not
described in the Registration Statement,
including ordinary routine litigation
incidental to the business of the Company or
any such subsidiary, are not material;
(T) The information in the Prospectus under the
captions "Description of Debt Securities,"
"Senior Securities", "Subordinated
Securities", "Description of Preferred
Stock" and "Description of Common Stock"
and, with respect to the Prospectus
Supplement relating to the Offered
Securities, any further description with
respect to such Offered Securities and, to
the extent that such information constitutes
matters of law, summaries of legal matters,
documents or proceedings, or legal
conclusions, has been reviewed by such
counsel and is correct in all material
respects;
(U) To the best knowledge and information of
such counsel, after due investigation, there
are no material contracts, indentures,
deposit agreements, notes, leases or other
instruments required to be described or
referred to in the Registration Statement or
to be filed as exhibits thereto other than
those described or referred to therein or
filed or incorporated by reference thereto,
the descriptions thereof or references
thereto are correct, and no material default
exists in the due performance or observance
of any material obligation, agreement,
covenant or condition contained in any
contract, indenture, deposit agreement,
mortgage, loan agreement, note, lease or
other instrument so described, referred to,
or filed or incorporated by reference;
18
(V) To the best knowledge and information of
such counsel, after due investigation, there
are no material contracts, indentures,
deposit agreements, mortgages, loan
agreements, notes, leases or other
instruments required to be described or
referred to in the Registration Statement or
to be filed as exhibits thereto other than
those described or referred to therein or
filed or incorporated by reference as
exhibits thereto, the descriptions thereof
or references thereto are correct, and no
material default exists in the due
performance or observance of any material
obligation, agreement, covenant or condition
contained in any contract, indenture,
deposit agreement, mortgage, loan agreement,
note, lease or other instrument so
described, referred to, or filed or
incorporated by reference;
(W) To the best knowledge and information of
such counsel, after due investigation, the
execution and delivery of this Agreement and
the applicable Terms Agreement (and, if
applicable, the Indenture and Deposit
Agreement) by the Company and the
consummation by the Company of the
transactions contemplated herein and
therein, do not and will not conflict with
or constitute a breach of, or default under,
or result in the creation or imposition of
any lien, charge or encumbrance upon any
property or assets of the Company or any of
its Significant Subsidiaries pursuant to,
any material contract, indenture, deposit
agreement, mortgage, loan agreement, note,
lease or other instrument to which the
Company or any of its Significant
Subsidiaries is a party or by which it or
any of them may be bound, or to which any of
the property or assets of the Company or any
of its Significant Subsidiaries is subject,
nor will such action result in any violation
of the provisions of the charter or by-laws
of the Company or any applicable law, or of
any judgment, order or decree of any
government, governmental instrumentality or
court, domestic or foreign, having
jurisdiction over the Company or any
Significant Subsidiary or any of its
properties;
(X) If applicable, the Depositary Receipts
issued under and in accordance with the
provisions of the Deposit Agreement to
evidence the Depositary Shares will be
validly issued and will entitle the holders
thereof to the rights specified therein and
in the Deposit Agreement.
(ii) The favorable opinion of Sidley Xxxxxx Xxxxx & Xxxx
LLP, counsel for the Underwriters, with respect to
such matters as they may request; and
(iii) In giving their opinions required by subsections (b)
(i) and (b) (ii), respectively, of this Section,
Xxxxx X. Xxxxxxx or such other counsel chosen by the
Company and Sidley Xxxxxx Xxxxx & Xxxx LLP shall each
additionally state that nothing has come to their
attention that would lead them to believe that the
Registration Statement (except for financial
19
statements and schedules and other financial data
included or incorporated by reference therein or
omitted therefrom and the Form T-l, as to which such
counsel need make no statement) at the time it became
effective, or if an amendment to the Registration
Statement or an Annual Report on Form 10-K has been
filed by the Company with the Commission subsequent
to the effectiveness of the Registration Statement,
then at the time of the most recent such filing,
contained an untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as
amended or supplemented at the date of the applicable
Terms Agreement and at Closing Time, contains an
untrue statement of material fact or omits to state a
material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
(c) At the applicable Closing Time there shall not have been,
since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the
Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings or
business affairs or which is reasonably likely to affect the
business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, and you shall have received a
certificate of the Chairman or the President or the Deputy
Chairman or an Executive or Senior Vice President of the
Company and of the chief financial or chief accounting officer
of the Company, dated as of such Closing Time, to the effect
that (i) there has been no such material adverse change, (ii)
the representations and warranties of the Company contained in
Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of such Closing
Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be complied with or
satisfied at or prior to such Closing Time, and (iv) no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission.
(d) At the time of the execution of this Agreement and at the
applicable Closing Time, you shall have received from Ernst &
Young LLP a letter dated such date, in form and substance
satisfactory to you, to the effect that (i) they are
independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933
Act and the applicable published rules and regulations
thereunder; (ii) in their opinion the consolidated financial
statements and supporting schedules audited by them and
included or incorporated by reference in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the
related published rules and regulations with respect to
registration statement Form S-3 and the 1934 Act and the 1934
Act Regulations; (iii) based upon limited procedures set forth
in detail in such letter, nothing has come to their attention
which causes them to believe that (A) the unaudited financial
statements and supporting schedules of the Company and its
subsidiaries included in the Registration Statement and
Prospectus do not comply as to form in all material
20
respects with the applicable accounting requirements of the
1934 Act and the 1934 Act Regulations or are not fairly
presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with
that of the audited financial statements included in the
Registration Statement, (B) at a specified date not more than
three days prior to the date of such letter, there has been
any change in the capital stock of the Company or any increase
in the consolidated long term debt of the Company and its
subsidiaries or any decrease in the total earning assets or
total assets of the Company and its subsidiaries, in each case
as compared with the amounts shown in the most recent balance
sheet included in the Registration Statement or, during the
period from a specified date not more than three days prior to
the date of such letter, there were any decreases, as compared
with the corresponding period in the preceding year, in net
interest income, net interest income after provision for loan
loss, non-interest income, net income or net income per share
of the Company and its subsidiaries as compared on the
corresponding period in the preceding year except in all
instances for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have
occurred or may occur; and (iv) in addition to the examination
referred to in their opinions and the limited procedures
referred to in clause (iii) above, they have carried out
certain specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial
information which are included in the Registration Statement
and Prospectus and which are specified by you and have found
such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries identified in such
letter.
(e) At the applicable Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them
to pass upon the issuance and sale of the Offered Securities
as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the
representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by
the Company at or prior to the Closing Time in connection with
the authorization, issuance and sale of the Offered Securities
as herein contemplated shall be reasonably satisfactory in
form and substance to you and counsel for the Underwriters.
(f) If the NASD is required to pass upon the fairness and
reasonableness of the underwriting terms and arrangements, at
the applicable Closing Time, the NASD shall not have raised
any objection with respect to the fairness and reasonableness
of the underwriting terms and arrangements.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by such of you as may be named in such Terms Agreement by
notice to the Company at any time at or prior to the applicable Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof. Notwithstanding any such termination,
the provisions of Sections 6, 7 and 8 shall remain in effect.
21
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if
applicable, or the omission or alleged omission
therefrom of a material fact required to be stated
therein or necessary to make the statements therein
not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact
included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a
material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission; provided that (subject to
Section 6(c) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel
chosen by you), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not
paid under (i) or (ii) above; provided, however, that
this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance
upon and in conformity with written information
furnished to the Company by any Underwriter through
you expressly for use in the Registration Statement
(or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto);
provided further, that as to any preliminary
prospectus, this indemnity agreement shall not inure
to the benefit of any Underwriter or any person
controlling that Underwriter on account of any loss,
claim, damage, liability or action arising from the
sale of Debt Securities to any person by that
Underwriter if (i) that Underwriter failed to send or
give a copy of the Prospectus (excluding the
documents incorporated by reference therein), as the
same may be amended or
22
supplemented, to that person within the time required
by the Securities Act and (ii) the Company delivered
to that Underwriter a sufficient number of copies of
the Prospectus pursuant to Section 3 (a) (1) hereof,
and the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission to
state a material fact in such preliminary prospectus
was corrected in the Prospectus.
(b) Insofar as this indemnity agreement may permit indemnification
for liabilities under the 1933 Act of any person who is a
partner of an Underwriter or who controls an underwriter
within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act and who, at the date of this Agreement, is a
director or officer of the Company or controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, such indemnity agreement is subject to the
undertaking of the Company in the Registration Statement under
Item 17 thereof.
(i) Each Underwriter severally agrees to indemnify and
hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and
each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the
indemnity contained in subsection (a) (i) of this
Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or
any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written
information furnished to the Company by such
Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(ii) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party
of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder
to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it
from any liability which it may have otherwise than
on account of this indemnity agreement.
In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided,
however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the
defendants (including any impleaded parties) in any such
action include both the indemnified party and the indemnifying
party and the
23
indemnified party shall have been advised by counsel that
there may be one or more legal defenses available to it and/or
other indemnified parties that are different from or
additional to those available to the indemnifying party, or
(iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after receipt
by the indemnifying party of notice of the institution of such
action, then, in each such case, the indemnifying party shall
not have the right to direct the defense of such action on
behalf of such indemnified party or parties and such
indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such
indemnified party or parties at the expense of the
indemnifying party or parties. After notice from the
indemnifying party to such indemnified party of its election
so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action,
the indemnifying party will not be liable to such indemnified
party under this Section 6 for any legal or other expenses,
other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to
the immediately preceding sentence or (ii) the indemnifying
party has authorized in writing the employment of counsel for
the indemnified party at the expense of the indemnifying
party.
In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or
separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7
hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise
or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any
indemnified party.
(c) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, such indemnifying party agrees that
it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior
to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of
such settlement.
24
Section 7. Contribution. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Offered
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Offered
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the Offered Securities as set forth
on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Debt Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
25
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Offered Securities set forth opposite
their respective names in the applicable Terms Agreement and not joint.
Section 8. Representations and Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
any Terms Agreement or contained in certificates of executive officers of the
Company submitted pursuant thereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person, or by or on behalf of the Company, and shall survive
delivery of the Offered Securities to the Underwriters.
Section 9. Termination of Agreement.
(a) This Agreement may be terminated for any reason at any time by
either the Company or you upon the giving of 30 days' written
notice of such termination to the other party hereto. Such of
you as may be named in any Terms Agreement may also terminate
such Terms Agreement, immediately upon notice to the Company,
at any time at or prior to the applicable Closing Time (i) if
there shall have been, since the date of such Terms Agreement
or since the respective dates as of which information is given
in the Registration Statement, any material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business or (ii) if there
shall have occurred any material adverse change in the
financial markets in the United States or any outbreak or
escalation of hostilities or other national or international
calamity or crisis or any change or development involving a
prospective change in national or international political,
financial or economic conditions, in each case the effect of
which is such as to make it, in the reasonable judgment of
such of you as are named in such Terms Agreement,
impracticable to market the Offered Securities or to enforce
contracts for the sale of the Offered Securities, or (iii) if
trading in any securities of the Company shall have been
suspended by the Commission or a national securities exchange,
or if trading generally on either the American Stock Exchange
or the New York Stock Exchange or in the NASDAQ National
Market shall have been suspended or materially limited, or
minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been
required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a
banking moratorium has been declared by either
26
Federal, New York, Ohio, Pennsylvania, Indiana, Michigan,
Kentucky or Illinois authorities, or (iv) if the rating
assigned by any nationally recognized statistical rating
organization to any debt securities or preferred stock of the
Company as of the time any applicable Terms Agreement was
entered into shall have been lowered since that time or if any
such rating organization shall have publicly announced that it
has placed any debt securities or preferred stock of the
Company on what is commonly termed a "watch list" for possible
downgrading. In the event of any such termination, (x) the
covenants set forth in Section 3 with respect to any offering
of the Offered Securities shall remain in effect so long as
any Underwriter owns any such Offered Securities purchased
from the Company pursuant to the applicable Terms Agreement
and (y) the covenant set forth in Section 3 (h), the
provisions of Section 4, the indemnity agreement set forth in
Section 6, the contribution provisions set forth in Section 7
and the provisions of Sections 8 and 13 shall remain in effect
upon termination of this agreement.
Section 10. Default by One of More of the Underwriters. If one or more of the
Underwriters participating in an offering of Offered Securities shall fail at
the applicable Closing Time to purchase the Offered Securities which it or they
are obligated to purchase hereunder and under the applicable Terms Agreement
(the "Defaulted Securities"), then such of you as are named therein shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the nondefaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, during such 24 hours you
shall not have completed such arrangements for the purchase of all the Defaulted
Securities, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of Offered
Securities to be purchased pursuant to such Terms Agreement,
the nondefaulting Underwriters named in such Terms Agreement
shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations
bear to the underwriting obligations of all nondefaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of Offered Securities to be
purchased pursuant to such Terms Agreement, the applicable
Terms Agreement shall terminate without liability on the part
of any nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default by any Underwriter or Underwriters as
set forth in this Section, either you or the Company shall have the right to
postpone the applicable Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Section 11. Notices. All notices and other communications under this Agreement
and any Terms Agreement shall be in writing and shall be deemed to have been
duly given if
27
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed to you at Xxxxxx Brothers Inc.,
Attn: Debt Capital Markets, Financial Institutions Group, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, with a copy to the General Counsel at the same
address, or in respect of any Terms Agreement, to such other person and place as
may be specified therein; notices to the Company shall be directed to it at
National City Corporation, 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000,
attention of Xxxxxx X. Xxxxxxxxxx, Senior Vice President and Treasurer.
Section 12. Parties. This Agreement shall inure to the benefit of and be binding
upon you and the Company and any Underwriter who becomes a party to a Terms
Agreement, and their respective successors. Nothing expressed or mentioned in
this Agreement or a Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than the parties hereto and thereto and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of the
Offered Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and each Terms Agreement
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said State.
Specified times of day refer to New York City time.
Section 14. Effect of Headings. The Article and Section headings herein are for
convenience only and shall not effect the construction hereof.
Section 15. Counterparts. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
Very truly yours,
NATIONAL CITY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Treasurer
Confirmed and accepted as of the date first above written:
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
29
