EXHIBIT 1
X.X. XXXXXX XXXXX CAPITAL X, XI, XII AND XIII AND EACH OTHER
STATUTORY BUSINESS TRUST FORMED BY THE COMPANY
UNDER THE LAWS OF DELAWARE FOR THE PURPOSE OF ISSUING
CAPITAL SECURITIES (COLLECTIVELY, THE "TRUSTS")
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH IN THE GUARANTEE BY
X.X. XXXXXX CHASE & CO.
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STANDARD PROVISIONS
August __, 2001
From time to time X.X. Xxxxxx Xxxxx Capital X, XI, XII and XIII and each
other statutory business trust formed by the Company under the laws of the state
of Delaware for the purpose of issuing capital securities (collectively, the
"Trusts"), and X.X. Xxxxxx Chase & Co., a Delaware corporation (the "Company"),
as depositor of each trust and as guarantor, may enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, pursuant to which,
and subject to the terms and conditions stated herein and therein, the Trust
identified in the applicable Pricing Agreement (such Trust being the "Designated
Trust" with respect to such Pricing Agreement) will propose to issue and sell to
the firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its preferred securities (the
"Securities") representing undivided beneficial interests in the assets of the
Designated Trust. The Securities specified in such Pricing Agreement are
referred to as the "Firm Designated Securities" with respect to such Pricing
Agreement. If specified in such Pricing Agreement, the Designated Trust may
grant the Underwriters the right to purchase at their election an additional
number of Securities, specified as provided in such Pricing Agreement as
provided in Section 3 hereof (the "Optional Designated Securities"). The Firm
Designated Securities and any Optional Designated Securities are collectively
called the "Designated Securities". The proceeds of the sale of the Designated
Securities to the public and of common securities of the Designated Trust (the
"Common Securities") to the Company concurrently with the sale of the Designated
Securities are to be invested in
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junior subordinated deferrable interest debentures of the Company (the
"Subordinated Debentures") identified in the Pricing Agreement with respect to
such Designated Securities (with respect to such Pricing Agreement, the
"Designated Subordinated Debentures"), to be issued pursuant to a junior
subordinated indenture dated as of December 1, 1996 (the "Indenture") between
the Company and The Bank of New York, as trustee (the "Debenture Trustee"). The
Designated Securities may be exchangeable into Designated Subordinated
Debentures, as specified in Schedule II to such Pricing Agreement. The
Designated Securities will be guaranteed by the Company to the extent set forth
in the Pricing Agreement with respect to such Designated Securities (the
"Designated Guarantee") (any such Designated Guarantee, the "Guarantee").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the amended and restated trust agreement identified in such Pricing
Agreement (with respect to such Pricing Agreement, the "Trust Agreement"). The
standard provisions set forth herein (these "Standard Provisions") may be
incorporated by reference in any such Pricing Agreement. The Pricing Agreement,
including these Standard Provisions incorporated therein by reference, is herein
sometimes referred to as this "Agreement".
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Designated Securities, for whom the firms designated
as representatives of the Underwriters of such Designated Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. These Standard
Provisions shall not be construed as an obligation of any Trust to sell any of
the Securities or as an obligation of any of the Underwriters to purchase any of
the Securities. The obligation of any Trust to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate number of the Firm Designated Securities, the maximum number of
Optional Designated Securities, if any, the initial public offering price of
such Firm and Optional Designated Securities or the manner of determining such
price, the terms of the Designated Securities, including the terms on which and
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terms of the securities into which the Designated Securities will be
exchangeable, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, the number of such Designated
Securities to be purchased by each Underwriter and the commission, if any,
payable to the Underwriters with respect thereto and shall set forth the date,
time and manner of delivery of such Firm and Optional Designated Securities, if
any, and payment therefor. The Pricing Agreement shall also specify (to the
extent not set forth in the registration statement and prospectus with respect
thereto) the terms of such Designated Securities. A Pricing Agreement shall be
in the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The standard provisions set forth herein will be incorporated by
reference in any Pricing Agreement. The obligations of the Underwriters under
this Agreement shall be several and not joint.
2. The Designated Trust and the Company, jointly and severally, each
represents and warrants to, and agrees with, each of the Underwriters that:
(a) a registration statement on Form S-3 (the "Initial Registration
Statement") in respect of the Securities, the Subordinated Debentures and
the Guarantee has been filed with the Securities and Exchange Commission
(the "Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus included therein, to the Representatives for
each of the other Underwriters has been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed, or transmitted
for filing, with the Commission (other than prospectuses filed pursuant to
Rule 424(b) of the rules and regulations of the Commission under the Act,
each in the form heretofore delivered to the Representatives); and no stop
order suspending the effectiveness of the Initial Registration Statement,
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any post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) under the Act is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement and
the Rule 462(b) Registration Statement, if any, including (i) the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of
the Initial Registration Statement at the time it was declared effective or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, (ii) all exhibits thereto and (iii) the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement
became effective but excluding Forms T-1, each as amended at the time such
part of the registration statement became effective, are hereinafter
collectively called the "Registration Statement"; the prospectus relating
to the Securities, the Subordinated Debentures and the Guarantee, in the
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of any
Trust, if any, and the Company filed pursuant to Section 13(a) or 15(d) of
the Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented in relation to the
applicable
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Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) the documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and, at the time of effectiveness or filing, as the
case may be, none of such documents 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; and any
further documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and, at the time of effectiveness or filing, as the
case may be, 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 not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Designated Trust or the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(c) the Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
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; provided, however, that this representation and
warranty shall not apply to any statements or
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omissions made in reliance upon and in conformity with information
furnished in writing to the Designated Trust or the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(d) the Designated Trust has been duly created and is validly existing
as a business trust in good standing under the laws of the State of
Delaware, with power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus; 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 power and authority
to own, lease and operate its properties and conduct its business as
described in the Prospectus;
(e) the Designated Guarantee, the Trust Agreement for the Designated
Trust, the Designated Subordinated Debentures and the Indenture (the
Designated Guarantee, such Trust Agreement, the Designated Subordinated
Debentures and the Indenture being collectively referred to as the "Company
Agreements") have each been duly authorized by the Company and when validly
executed and delivered by the Company and, in the case of the Guarantee, by
the Guarantee Trustee (as defined in the Guarantee), in the case of the
Trust Agreement, by the Trustees (as defined in the Trust Agreement) and,
in the case of the Indenture, by the Debenture Trustee, and, in the case of
the Designated Subordinated Debentures, when validly issued by the Company
and duly authenticated and delivered by the Debenture Trustee against
Payment therefore as contemplated by the Company Agreements, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (regardless of whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; the Trust
Agreement, the Indenture and the Designated Guarantee have each been duly
qualified under the Trust Indenture Act; the Designated Subordinated
Debentures are entitled to the benefits of the Indenture; and the Company
Agreements, which will be in substantially the form filed as exhibits to
the Registration Statement, will conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented with
respect to the Designated Securities to which they relate; and
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(f) the Pricing Agreement with respect to the Designated Securities
(incorporating these Standard Provisions) has been duly authorized,
executed and delivered by the Company and the Designated Trust.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of the Firm
Designated Securities, the several Underwriters propose to offer the Firm
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable to any
Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Overallotment Option") to purchase at their election
up to the number of Optional Designated Securities set forth in such Pricing
Agreement, on the terms set forth in the paragraph above, for the sole purpose
of covering over-allotments in the sale of the Firm Designated Securities. Any
such election to purchase Optional Designated Securities may be exercised by
written notice from the Representatives to the Designated Trust and the Company,
given within a period specified in the Pricing Agreement, setting forth the
aggregate number of Optional Designated Securities to be purchased and the date
on which such Optional Designated Securities are to be delivered, as determined
by the Representatives but in no event earlier than the First Time of Delivery
(as defined in Section 4 hereof) or, unless the Representatives, the Designated
Trust and the Company otherwise agree in writing, earlier than or later than the
respective number of business days after the date of such notice set forth in
such Pricing Agreement.
The number of Optional Designated Securities to be added to the number
of Firm Designated Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which the
Designated Trust and the Company have been advised by the Representatives have
been attributed to such Underwriter; provided that, if the Designated Trust and
the Company have not been so advised, the number of Optional Designated
Securities to be so added shall be, in each case, that proportion of Optional
Designated Securities which the number of Firm Designated Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Designated Securities (rounded as the Representatives
may determine to the nearest 100 securities). The total number of Designated
Securities to be purchased by all the
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Underwriters pursuant to such Pricing Agreement shall be the aggregate number of
Firm Designated Securities set forth in Schedule I to such Pricing Agreement
plus the aggregate number of Optional Designated Securities which the
Underwriters elect to purchase.
As compensation to the Underwriters of the Designated Securities for their
commitments hereunder and under the Pricing Agreement, and in view of the fact
that the proceeds of the sale of the Designated Securities will be used by the
Designated Trust to purchase the Designated Subordinated Debentures of the
Company, the Company agrees to pay at each Time of Delivery to the
Representatives, for the accounts of the several Underwriters, the amount set
forth in the Pricing Agreement per preferred security for the Designated
Securities to be delivered at each Time of Delivery.
4. Certificates for the Firm Designated Securities and the Optional
Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Designated Trust and the Company, shall be delivered by or on behalf of the
Designated Trust to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer of Federal (same day) Funds to an account designated
by the Designated Trust, (i) with respect to the Firm Designated Securities, all
in the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives, the
Designated Trust and the Company may agree upon in writing, such time and date
being herein called the "First Time of Delivery" and (ii) with respect to the
Optional Designated Securities, if any, in the manner and at the time and date
specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Designated Securities, or at such other time and date as the Representatives,
the Designated Trust and the Company may agree upon in writing, such time and
date, if not the First Time of Delivery, herein called the "Second Time of
Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Designated Trust and the Company, jointly and severally, agree with
each of the Underwriters of any Designated Securities:
(a) to prepare the Prospectus as amended and supplemented in relation
to such Designated Securities in a form approved by the Representatives and
to file
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such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the Designated
Securities or, if applicable, such earlier time as may be required by Rule
424(b); before amending or supplementing the Registration Statement or
Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to any Time of Delivery for
such Securities, to furnish to the Representatives a copy of each such
proposed amendment or supplement (other than an amendment by reason of
filing a report under the Exchange Act that is incorporated by reference in
the Registration Statement and does not relate specifically to the
Designated Securities) and not to file any such proposed amendment or
supplement to which the Representatives reasonably object; to advise the
Representatives promptly of any such amendment or supplement after any Time
of Delivery for the Designated Securities and furnish the Representatives
with copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Designated Trust or
the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Designated
Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any such
amendment to the Registration Statement has been filed or becomes effective
or any such supplement to the Prospectus or any amended Prospectus has been
filed with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any prospectus
relating to the Designated Securities or the Designated Subordinated
Debentures, of the suspension of the qualification of the Designated
Securities or the Designated Subordinated Debentures for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating
to the Securities or suspending any such qualification, promptly to use its
best efforts to obtain the withdrawal of such order;
(b) promptly from time to time to take such action as the
Representatives may reasonably request to
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qualify such Designated Securities or the Designated Subordinated
Debentures for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of such Designated Securities, provided that in connection therewith
neither the Designated Trust nor the Company shall be required to qualify
as a foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of the Pricing Agreement, or such later date
as shall be agreed, for such Designated Securities and from time to time,
to furnish the Underwriters with copies of the Prospectus in New York City
as amended or supplemented in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of the Designated Securities
or the Designated Subordinated Debentures and if at such time any event
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an 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 when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies
as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance. The expense of
complying with the requirements of this Section 5(c) shall be borne (i)
during the period of nine months after the date of the Pricing Agreement,
by the Company, and (ii) after expiration of such nine-month period, by
those Underwriters on whose behalf the Representatives may request copies
of the Prospectus or of an amendment or amendments of or a supplement or
supplements to the Prospectus;
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(d) in the case of the Company, to make generally available to its
security holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) during the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Designated Trust and the Company by the
Representatives and (ii) the last Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any Securities, any other beneficial
interests in the assets of any Trust, or any preferred securities or any
other securities of any Trust or the Company, as the case may be, that are
substantially similar to such Designated Securities (including any
guarantee of such securities) or any securities that are convertible into
or exchangeable for, or that represent the right to receive securities,
preferred securities or any such substantially similar securities of either
any Trust or the Company without the prior written consent of the
Representatives;
(f) in the case of the Company, to issue the Guarantee concurrently
with the issue and sale of the Securities as contemplated herein or in the
Pricing Agreement;
(g) if the Pricing Agreement provides that a condition precedent to
issuance of the Designated Securities at the Time of Delivery is that the
Designated Securities shall have been duly listed subject to notice of
issuance on the New York Stock Exchange, to use its best efforts to list,
subject to notice of issuance, the Designated Securities on the New York
Stock Exchange and, if the Company elects to terminate the Designated Trust
and to distribute the Designated Subordinated Debentures to the holders of
the Designated Securities in liquidation of the Designated Trust, to use
its best efforts to list the Designated Subordinated Debentures, subject to
notice of issuance, on the New York Stock Exchange prior to such
distribution; and
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(h) if the Trust and the Company elect to rely upon Rule 462(b), the
Trust and the Company shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) by 10:00 a.m., Washington,
D.C. time, on the first New York Business Day following the date of the
Pricing Agreement, and the Trust and the Company shall at the time of
filing either pay to the Commission the filing fee for the rule 462(b)
Registration Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that it
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities, the Guarantee and the Subordinated Debentures
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, any
Pricing Agreement, any Company Agreement, the Securities and the Subordinated
Debentures, any Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities, the Guarantee and the Subordinated
Debentures for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey(s); (iv) any fees charged by securities rating services for
rating the Securities and the Subordinated Debentures; (v) any filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, any required reviews by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities and the issuance of the
Guarantee and the Subordinated Debentures; (vi) the cost of preparing the
Securities and the Subordinated Debentures; (vii) the fees and expenses of any
Trustee, Debenture Trustee and Guarantee Trustee, and any agent of any trustee
and the fees and disbursements of counsel for any trustee in connection with any
Trust Agreement, Indenture, Guarantee and the Securities; (viii) the cost of
qualifying the Designated Securities with The Depository Trust Company; (ix) any
fees and expenses in connection with listing the Designated Securities and the
Designated Subordinated Debentures and the cost of registering the Securities
under Section 12 of
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the Exchange Act; and (x) all other costs and expenses incident to the
performance of its obligations hereunder and under any Over-allotment Options
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust and
the Company in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the Designated Trust
and the Company shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) the Prospectus as amended or supplemented in relation to such
Designated Securities shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; if the Trust and the Company have elected to rely upon Rule 462(b),
the Rule 462(b) Registration Statement shall have become effective by 10:00
a.m., Washington, D.C. time, on the first New York Business Day following
the date of such Pricing Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated each Time of Delivery for
such Designated Securities, with respect to the incorporation of the
Company and the formation of the Designated Trust, the validity of the
Designated Securities, the Designated Subordinated Debentures, the
Designated Guarantee, the Registration Statement, the Prospectus as amended
or supplemented, as well as such
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other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) counsel for the Designated Trust and the Company satisfactory to
the Representatives shall have furnished to the Representatives their
written opinions, dated each Time of Delivery for such Designated
Securities, respectively, in form and substance satisfactory to the
Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, and The Chase Manhattan Bank (the "Bank") has been duly
incorporated and is validly existing as a banking corporation in good
standing under the laws of the State of New York, in each case with
full corporate power and authority to conduct its business as described
in the Prospectus as amended or supplemented;
(ii) the Pricing Agreement with respect to the Designated Securities
has been duly authorized, executed and delivered by the Company;
(iii) the execution, delivery and performance by the Company of this
Agreement and the Company Agreements and the issue and sale of the
Designated Debentures and Designated Securities will not result in any
violation of the provisions of the Company's Certificate of
Incorporation or By-Laws or breach or result in a default under
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company is a
party or by which the Company is bound or to which any of the property
or assets of the Company is subject, nor will such actions by the
Company violate any Federal or New York statute or the Delaware
General Corporation Law or any order known to such counsel issued
pursuant to any federal or New York statute or the Delaware General
Corporation Law by any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
15
(iv) no consent, approval, authorization, order, registration or
qualification of or with any New York State or Federal governmental
agency or body or any Delaware governmental agency or body acting
pursuant to the Delaware General Corporation Law or, to such counsel's
knowledge, any federal or New York court or any Delaware court acting
pursuant to the Delaware General Corporation Law is required for the
issue and sale of the Designated Securities being delivered at such
Time of Delivery or the issuance of the Designated Guarantee and the
Designated Subordinated Debentures, except such as have been obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Designated Securities by the Underwriters or
the issuance of the Designated Guarantee and Designated Subordinated
Debentures by the Company;
(v) the statements set forth (i) in the Prospectus under the
captions "Description of Junior Subordinated Debentures", "Description
of Preferred Securities" and "Description of Guarantee" and (ii) in the
Prospectus as amended or supplemented under the captions "Certain Terms
of Series _ Capital Securities", "Certain Terms of Series _
Subordinated Debentures" and "Certain Terms of Series _ Guarantee", or
similar applicable provisions, insofar as they purport to constitute
summaries of certain terms of the Designated Securities and the Company
Agreements, in each case constitute accurate summaries of the terms of
the Company Agreements and of such securities, as set forth in the
Company Agreements, in all material respects;
(vi) the Designated Subordinated Debentures are in the form
prescribed in or pursuant to the Indenture, have been duly and validly
authorized by the Company by all necessary corporate action and, when
completed, executed and authenticated as specified in or pursuant to
the Indenture and issued and delivered against payment therefor as
specified in the Company Agreements, will be valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, to general equitable
16
principles (whether considered in a proceeding in equity or at law) and
by an implied covenant of good faith and fair dealing;
(vii) the Indenture, the Designated Guarantee and the Trust
Agreement for the Designated Trust have each been duly authorized,
executed and delivered by the Company and, assuming that such
documents are the valid and legally binding obligation of the
Debenture Trustee (in the case of the Indenture) and of the Guarantee
Trustee (in the case of the Guarantee) constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their respective terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, to general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing; and the Indenture, the Designated Guarantee and the
Designated Trust Agreement have been duly qualified under the Trust
Indenture Act;
(viii) the Designated Trust is not an "investment company", as such
term is defined in the Investment Company Act of 1940, as amended;
17
(ix) although they have not independently verified and do not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in subsection
(v) of this Section 7(c), (A) they are of the opinion that the
Registration Statement and the Prospectus as amended or supplemented,
and any further amendments and supplements thereto made by the
Designated Trust or the Company prior to such Time of Delivery (other
than the financial statements and related schedules and other financial
and statistical data therein and the Form T-1 Statements of Eligibility
and Qualification of the Trustees, as to which such counsel need
express no opinion), complied as to form in all material respects with
the requirements of the Act and the Trust Indenture Act and the rules
and regulations thereunder; and (B) they have no reason to believe
that, the Registration Statement, as of its effective date (including
the documents incorporated by reference therein on file with the
Commission on such effective date), contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading or that the Prospectus (including the documents incorporated
by reference therein) contained as of its issue date or contains as of
the Time of Delivery any untrue statement of a material fact or omitted
to state as of its issue date or omits to state as of the Time of
Delivery any material facts necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that in each case such counsel expresses no
belief with respect to the financial statements or other financial or
statistical date contained or incorporated by reference in the
Registration Statement, the Prospectus or the documents incorporated by
reference therein; and they do not know of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus as amended or supplemented or required to be described
in the Registration Statement or the Prospectus as amended or
supplemented which
18
are not filed or incorporated by reference or described as required;
(d) special Delaware Counsel to the Designated Trust and the Company
satisfactory to the Representatives, shall have furnished to you, the
Company and the Designated Trust their written opinion, dated the
respective Time of Delivery, in form and substance satisfactory to you, to
the effect that:
(i) the Designated Trust has been duly created and 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 Designated Trust as a business trust have been made;
(ii) under the Delaware Business Trust Act and the Trust Agreement,
the Designated Trust has the power and authority to own property and
conduct its business, all as described in the Prospectus;
(iii) the Trust Agreement constitutes a valid and legally binding
obligation of the Company and the Trustees, enforceable against the
Company and the Trustees, in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(iv) under the Delaware Business Trust Act and the Trust Agreement,
the Designated Trust has the power and authority to (a) execute and
deliver, and to perform its obligations under this Agreement and the
Pricing Agreement and (b) issue and perform its obligations under the
Designated Securities and the Common Securities of the Designated
Trust;
(v) under the Delaware Business Trust Act and the Trust Agreement,
the execution and delivery by the Designated Trust of this Agreement
and the Pricing Agreement, and the performance by the Designated Trust
of its obligations thereunder and thereunder, have been duly authorized
by all necessary action on the part of the Designated Trust;
19
(vi) the Designated Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and nonassessable
beneficial interests in the Designated Trust and are entitled to the
benefits provided by the Trust Agreement; the holders of the Designated
Securities (the "Securityholders"), as beneficial owners of the
Designated Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware;
provided that such counsel may note that the Securityholders may be
obligated, pursuant to the Trust Agreement, to (a) provide indemnity
and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of securities certificates
and the issuance of replacement securities certificates and (b) provide
security and indemnity in connection with requests of or directions to
the Property Trustee (as defined in the Trust Agreement) to exercise
its rights and remedies under the Trust Agreement;
(vii) the Common Securities of the Designated Trust have been duly
authorized by the Trust Agreement and are validly issued and represent
beneficial interests in the Designated Trust;
(viii) under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Securities and the Common
Securities of the Designated Trust is not subject to preemptive rights;
(ix) the issuance and sale by the Designated Trust of Designated
Securities and the Common Securities of the Designated Trust, the
execution, delivery and performance by the Designated Trust of this
Agreement and the Pricing Agreement, the consummation by the Designated
Trust of the transactions contemplated thereby and compliance by the
Designated Trust with its obligations thereunder will not violate (a)
any of the provisions of the Certificate of Trust of the Designated
Trust or the Trust Agreement, or (b) any applicable Delaware law or
administrative regulation;
(x) assuming that the Designated Trust derives no income from or
connected with services
20
provided within the State of Delaware and has no assets, activities
(other than maintaining the Delaware Trustee and the filing of
documents with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, no authorization, approval, consent
or order of any Delaware court or governmental authority or agency is
required to be obtained by the Designated Trust solely in connection
with the issuance and sale of the Designated Securities and the Common
Securities of the Designated Trust (in rendering the opinion expressed
in this paragraph (x), such counsel need express no opinion concerning
the securities laws of the State of Delaware); and
(xi) assuming that the Designated Trust derives income from or
connected with services provided within the State of Delaware and has
no assets, activities (other than maintaining the Delaware Trustee and
the filing of documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware, the Securityholders
(other than those holders of the 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 Designated Trust, and the Designated Trust will
not be liable for any income tax imposed by the State of Delaware.
(e) tax counsel for the Designated Trust and the Company satisfactory
to the Representatives shall have furnished to you their written opinion,
dated the respective Time of Delivery, in form and substance satisfactory
to you, to the effect that such firm confirms its opinion set forth in the
Prospectus under the caption "Certain Federal Income Tax Consequences";
(f) on the date of the Pricing Agreement for such Designated Securities
at a time prior to the execution of the Pricing Agreement with respect to
the Designated Securities (if so provided in the Pricing Agreement) and at
each Time of Delivery for such Designated Securities, the independent
accountants of the Company who have certified the financial statements of
the Company and its subsidiaries included or incorporated by reference in
the Registration Statement shall have furnished to the Representatives a
letter, dated the date of the Pricing Agreement and a letter dated such
Time of Delivery, respectively, to the effect set forth in Annex II hereto,
and with respect to such letter dated such Time of Delivery, as to such
other matters
21
as the Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(g) since the respective dates as of which information is given in the
Prospectus as amended prior to the date of the Pricing Agreement relating
to the Designated Securities there shall not have been any change in the
capital stock or long-term debt of the Company or any change in or
affecting the general affairs, management, financial position,
stockholders' equity, results of operations or prospects of the Company and
its subsidiaries (taken as a whole), otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the date
of the Pricing Agreement relating to the Designated Securities, the effect
of which is in the reasonable judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus as amended relating to the
Designated Securities;
(h) (x) on or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock Exchange shall
have been suspended or materially limited, (ii) trading in the Common Stock
of the Company on the New York Stock Exchange shall have been suspended,
(iii) a general moratorium on commercial banking activities in New York
shall have been declared by Federal or New York authorities or (iv) there
shall have occurred any outbreak of hostilities or escalation thereof or
other calamity or crisis having an adverse effect on the financial markets
of the United States and (y) the occurrence or consequences of any one or
more of such events shall have, in the reasonable judgment of the
Representatives, made it impracticable to market the Firm Designated
Securities or Optional Designated Securities or both on the terms and in
the manner contemplated by the Prospectus as first amended or supplemented
relating to the Designated Securities.
(i) if so provided in the Pricing Agreement, the Designated Securities
at each Time of Delivery shall have been duly approved for listing subject
to notice of issuance on the New York Stock Exchange;
(j) the Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of the Pricing Agreement for
22
such Designated Securities, or such later date as shall be agreed; and
(k) the Designated Trust and the Company shall have furnished or caused
to be furnished to the Representatives at each Time of Delivery for the
Designated Securities certificates of officers of the Designated Trust and
the Company satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Designated Trust and the Company
herein at and as of such Time of Delivery, as to the performance by the
Designated Trust and the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (g) of this Section and as to such other matters as
the Representatives may reasonably request (in each case to the best of
such officer's knowledge after reasonable investigation).
8. (a) The Designated Trust and the Company, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities the use of which by the Underwriters has
been approved in writing by the Company, or any amendment 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 will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Designated Trust nor the Company
shall be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Designated Securities the use of which by the Underwriters has been approved
in writing by the Company, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the
23
Designated Trust and the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities; and provided further, that
with respect to any untrue statement or omission or alleged untrue statement or
omission made in any Preliminary Prospectus, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any Underwriter from
whom the person asserting such losses, claim, damages or liabilities purchased
the Designated Securities concerned (or to the benefit of any person controlling
such Underwriter), to the extent that any such loss, claim, damage or liability
of such Underwriter results from the fact that a copy of the Prospectus
(excluding the documents incorporated by reference therein) was not sent or
given to such person at or prior to the written confirmation of the sale of such
Designated Securities to such person, provided that the Company has delivered
the Prospectus (or amendment or supplement thereto) to the Underwriters in
requisite quantity on a timely basis to permit such delivery or sending in
compliance with Section 5(c) of this Agreement.
(b) Each Underwriter will indemnify and hold harmless the Designated Trust
and the Company against any losses, claims, damages or liabilities to which the
Designated Trust may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Securities the
use of which by the Underwriters has been approved in writing by the Company, or
any amendment 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, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities the use of which by the Underwriters has
been approved in writing by the Company, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Designated Trust and the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Designated Trust and the
Company for any legal or other expenses reasonably incurred
24
by the Designated Trust in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify such indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment includes
an unconditional release of the indemnified party from all liability arising out
of such action or claim.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Designated Trust and the Company on the one hand and the Underwriters of
the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim,
25
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Designated Trust and the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Designated Trust
and the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Designated Trust and the Company
bear to the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Designated Trust and the Company on the one hand or
such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Designated Trust, the Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (d)
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
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated 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 such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent
26
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated Securities
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Securities and not
joint.
(e) The obligations of the Designated Trust and the Company under this
Section 8 shall be in addition to any liability which the Designated Trust and
the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
trustee of the Designated Trust and to each officer who signed the Registration
Statement and director of the Company and to each person, if any, who controls
the Designated Trust and the Company within the meaning of the Act.
9. If, at the Time of Delivery, any one or more of the Underwriters shall
fail or refuse to purchase Designated Securities that it has or they have agreed
to purchase hereunder on such date, and the aggregate amount of Designated
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate amount of the
Designated Securities to be purchased on such date, the other Underwriters shall
be obligated severally in the proportions that the amount of Designated
Securities set forth opposite their respective names in the Pricing Agreement
bears to the aggregate amount of Designated Securities set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions as
the Representatives may specify, to purchase the Designated Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the amount of Designated
Securities that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such amount of Designated Securities without the written consent of
such Underwriter. If, at the Time of Delivery, any Underwriter or Underwriters
shall fail or refuse to purchase Designated Securities and the aggregate amount
of Designated Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of Designated Securities to be purchased on
such date, and arrangements satisfactory to the Representatives and the Company
for the purchase of such Designated Securities are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either the
Representatives or
27
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Designated Trust or the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Designated Trust or the Company, or any officer or director
or controlling person of the Designated Trust or the Company, and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, neither the Designated Trust nor the Company shall
then be under any liability to any Underwriter with respect to the Firm
Designated Securities or Optional Designated Securities with respect to which
such Pricing Agreement shall have been terminated except as provided in Sections
6 and 8 hereof; but, if for any other reason, Designated Securities are not
delivered by or on behalf of the Designated Trust or the Company as provided
herein, the Company will reimburse the Underwriters through the Representatives
for all out-of-pocket expenses approved in writing by the Representatives,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of such
Designated Securities, but the Designated Trust or the Company shall then be
under no further liability to any Underwriter with respect to such
28
Designated Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Designated Trust or the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Designated Trust or the Company, respectively, set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Designated Trust and the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. Each Pricing Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, each Designated Trust, the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of each
Designated Trust, the Company and each person who controls any Designated Trust
or the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of any such Pricing Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. Each Pricing Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
29
16. Each Pricing Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
ANNEX 1
Pricing Agreement
-----------------
[Name(s) of Co-Representative(s),]
As Representatives of the several
Underwriters named in Schedule I hereto,
x/x [Xxxxxxx xx Xxxx Xxxxxxx),
_____________,
Xxx Xxxx, Xxx Xxxx 10___.
Date: __________
Ladies and Gentlemen:
X.X. Xxxxxx Xxxxx Capital _, a statutory business trust formed under the
laws of the State of Delaware (the "Designated Trust") and X.X. Xxxxxx Chase &
Co., a _________ corporation (the "Company"), propose, subject to the terms and
conditions stated herein and in the Standard Provisions, dated _______ __, ____
attached hereto (the "Standard Provisions"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities" consisting of Firm
Designated Securities and any Optional Designated Securities the Underwriters
may elect to purchase). The principal asset of the Designated Trust consists of
debt securities of the Company (the "Subordinated Debentures"), as specified in
Schedule II to this Agreement. The Designated Securities will be guaranteed by
the Company to the extent set forth in this Agreement with respect to such
Designated Securities (the "Guarantee"). Each of the provisions of the Standard
Provisions is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein; and each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the
date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Standard Provisions shall be
deemed to be a representation or warranty as of the date of the Standard
Provisions in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Standard Provisions so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Standard Provisions are used herein as
therein defined. The Representatives designated to act on behalf of the
2
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Standard Provisions and the address of
the Representatives referred to in such Section 12 are set forth in Schedule II
hereto.
An amendment to the Initial Registration Statement or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the Standard
Provisions incorporated herein by reference, (a) the Designated Trust agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Designated Trust, at the time
and place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the number of Firm Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto and, (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional
Designated Securities, as provided below, the Designated Trust agrees to issue
and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Designated Trust at the purchase
price to the Underwriters set forth in Schedule II hereto that portion of the
number of Optional Designated Securities as to which such election shall have
been exercised.
The Designated Trust hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto on the
terms referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Designated Securities. Any such election
to purchase Optional Designated Securities may be exercised by written notice
from the Representatives to the Designated Trust and the Company given within a
period of 30 calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Designated Securities to be purchased and
the date on which such Optional Designated Securities are to be delivered, as
determined by the Representatives, but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Designated Trust otherwise
agree in writing, no earlier than two or later than ten business days after the
date of such notice.
If the foregoing is in accordance with your understanding, please sign and
return to us [ ] counterparts
3
hereof, and upon acceptance hereof by you, on behalf of each of the
Underwriters, this letter and such acceptance hereof, including the provisions
of the Standard Provisions incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Designated Trust and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Designated Trust and the Company for examination, upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
Very truly yours,
X.X. XXXXXX XXXXX & CO.
by
-------------------------
Name:
Title:
X.X. XXXXXX CHASE CAPITAL __
By: X.X. Xxxxxx Xxxxx & Co.,
as Depositor
by
-------------------------
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Co-Representative(s)]
As Representatives of the Underwriters
Named in Schedule I hereto
By:
------------------------------
On behalf of each of the Underwriters
SCHEDULE I
MAXIMUM NUMBER
NUMBER OF OF OPTIONAL
UNDERWRITER FIRM DESIGNATED SECURITIES DESIGNATED SECURITIES WHICH
TO BE PURCHASED MAY BE
PURCHASED
SCHEDULE II
DESIGNATED TRUST:
-----------------
X.X. Xxxxxx Chase Capital __
TITLE OF DESIGNATED SECURITIES:
-------------------------------
AGGREGATE PRINCIPAL AMOUNT:
---------------------------
Aggregate principal amount of Designated
Securities to be sold: $______________
PRICE TO PUBLIC:
----------------
100% of the principal amount of the Designated Securities
PURCHASE PRICE BY UNDERWRITERS:
-------------------------------
________% of the principal amount of the Designated Securities
UNDERWRITERS' COMPENSATION:
---------------------------
As compensation to the Underwriters for their commitments hereunder, and in
view of the fact that the proceeds of the sale of the Designated Securities
will be used by the Designated Trust to purchase the Subordinated
Debentures of the Company, the Company hereby agrees to pay at each Time of
Delivery to [Name of Lead Manager], for the accounts of the several
Underwriters, an amount equal to $_____________ per preferred security for
the Designated Securities to be delivered at each Time of Delivery.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
----------------------------------------------
Federal (same day) Funds
ACCOUNTANTS' LETTER TO BE DELIVERED ON DATE OF PRICING AGREEMENT:
-----------------------------------------------------------------
TRUST AGREEMENT:
----------------
Amended and Restated Trust Agreement dated as of ________ __, ____, between
the Company and the Trustees named therein
2
INDENTURE:
----------
Indenture dated as of _________ __, ____, between the Company and
[Debenture Trustee], as Debenture Trustee and Supplemental Indenture No.__
dated as of __________ __, ____, between the Company and the Debenture
Trustee (collectively the "Indenture")
TITLE OF SUBORDINATED DEBENTURES:
---------------------------------
[ ]% Junior Subordinated Deferrable Interest Debentures, Series _
GUARANTEE:
----------
Guarantee Agreement dated as of __________ __, ____, between Company and
[Guarantee Trustee], as Guarantee Trustee
MATURITY:
---------
______________, ________
INTEREST RATE:
--------------
___%
INTEREST PAYMENT DATES:
-----------------------
EXTENSION PERIOD:
-----------------
REDEMPTION PROVISIONS:
----------------------
[The redemption provisions set forth in Section 402 of the Trust Agreement
shall apply to the Designated Securities.]
SINKING FUND PROVISIONS:
------------------------
[No sinking fund provisions.]
TIME OF DELIVERY:
-----------------
10:00 a.m., New York City time
______________, ______
CLOSING LOCATION:
-----------------
3
NAMES AND ADDRESSES OF REPRESENTATIVES:
---------------------------------------
ANNEX II
Pursuant to Section 7(d) of the Standard Provisions, the accountants shall
furnish letters to the Underwriters to the effect that:
(i) they are independent certified public accountants with respect
to the Designated Trust and the Company and its subsidiaries within the
meaning of the Act and the applicable published rules and regulations
thereunder;
(ii) in their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been separately furnished to the representatives of the Underwriters
(the "Representatives");
(iii) they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
reports on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been separately
furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to
in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable
2
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(iv) the unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) they have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi) on the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
3
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made to
the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus or included in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus, for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in clause (B) were not determined on
a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been
4
properly applied to the historical amounts in the compilation of
those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated
net current assets or stockholders' equity or other items specified
by the Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(vii) in addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives
5
which are derived from the general accounting records of the Company
and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Standard Provisions as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
