EXHIBIT 1.1
EXECUTION COPY
UNDERWRITING AGREEMENT
(CAPITAL SECURITIES)
February 11, 1999
UnionBanCal Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
We (the "MANAGERS") are acting on behalf of the underwriters (including
ourselves) named below (such underwriters being herein called the
"UNDERWRITERS"), and we understand that UnionBanCal Finance Trust I ("FINANCE
TRUST I"), a statutory business trust created under the Delaware Business
Trust Act, proposes to issue and sell 14,000,000 UnionBanCal Finance Trust I
73/8% Capital Securities (the "OFFERED CAPITAL SECURITIES").
It is understood that substantially contemporaneously with the closing
of the sale of the Offered Capital Securities to the Underwriters
contemplated hereby, (i) Finance Trust I, its trustees (the "FINANCE
TRUSTEES") and UnionBanCal Corporation ("UNBC") shall enter into an Amended
and Restated Declaration of Trust in substantially the form of the Form of
the Amended and Restated Declaration of Trust attached as Exhibit 4.10 to the
Registration Statement referred to below (the "DECLARATION OF TRUST"),
pursuant to which Finance Trust I shall (x) issue and sell the Offered
Capital Securities to the Underwriters pursuant hereto and (y) issue 432,990
shares of its Common Securities (the "COMMON SECURITIES" and, together with
the Offered Capital Securities, the "TRUST SECURITIES") to UNBC, in each case
with such rights and obligations as shall be set forth in such Declaration of
Trust, (ii) UNBC and The First National Bank of Chicago, as Trustee, acting
pursuant to an Indenture dated as of February 19, 1999 shall provide for the
issuance of $360,824,750 principal amount of UNBC's 7-3/8% Junior Subordinated
Deferrable Interest Debentures due 2029 (the "JUNIOR SUBORDINATED
DEBENTURES"), (iii) UNBC shall sell such Junior Subordinated Debentures to
Finance Trust I and Finance Trust I shall purchase such Junior Subordinated
Debentures with proceeds of the sale of the Offered Capital Securities to the
Underwriters contemplated hereby and of the Common Securities to UNBC and
(iv) UNBC and The First National Bank of Chicago, as Guarantee Trustee, shall
enter into a Preferred Securities Guarantee Agreement in substantially the
form of the Form of the Preferred Securities Guarantee Agreement attached as
Exhibit 4.16 to the Registration Statement referred to below (the
"GUARANTEE") for the benefit of holders from time to time of the Offered
Capital Securities.
Subject to the terms and conditions set forth or incorporated by
reference herein, Finance Trust I hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Offered
Capital Securities set forth below opposite their names at a purchase price
of $25 per Offered Capital Security (the "PURCHASE PRICE"); PROVIDED, that
UNBC shall pay to the Underwriters' compensation equal to $0.7875 per Offered
Capital Security (except for sales of 10,000 or more Offered Capital
Securities to a single purchaser for which the Underwriters' compensation
will be $0.50 per Offered Capital Security):
Number of
Offered Capital Securities
Underwriter To Be Purchased
----------- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated 2,143,400
Xxxxxxx Xxxxx Barney Inc. 2,143,400
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 2,143,400
PaineWebber Incorporated 2,143,400
Prudential Securities Incorporated 2,143,400
ABN AMRO Incorporated 98,000
BT Alex. Xxxxx Incorporated 98,000
CIBC Xxxxxxxxxxx Corp. 98,000
Credit Suisse First Boston Corporation 98,000
X.X. Xxxxxxx & Sons, Inc. 98,000
Xxx-Xxxx, Xxxxxx Inc. 98,000
Xxxxx, Xxxxxxxx & Xxxxx, Inc. 98,000
Xxxxxx Brothers Inc. 98,000
X.X. Xxxxxx Securities Inc. 98,000
Xxxx, Xxxx & Co. 98,000
Xxxxxxxx & Co. Inc. 98,000
XX Xxxxx Securities Corporation 98,000
Xxx Xxxxxx & Company 98,000
Advest, Inc. 49,000
Xxxxxx X. Xxxxx & Co. Incorporated 49,000
Xxxxxx X. Xxxx & Company 49,000
Xxxxxxx Xxxxx & Company, L.L.C. 49,000
X.X. Xxxxxxxx & Co. 49,000
Craigie Incorporated 49,000
Xxxxxxx, Xxxxxx & Co. 49,000
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Number of
Offered Capital Securities
Underwriter To Be Purchased
----------- ---------------
X.X. Xxxxxxxx & Co. Incorporated 49,000
Xxxx Xxxxxxxx Xxxxxxx 49,000
Xxxxxxxxx & Company LLC 49,000
Xxxxxxxxxx & Co. Inc. 49,000
Xxxxxx, Xxxxx Xxxxx, Incorporated 49,000
Fidelity Capital Markets, A Division of 49,000
National Financial Services Corporation
Fifth Third/The Ohio Company 49,000
First Albany Corporation 49,000
First Union Capital Markets Corp. 49,000
Fleet Securities, Inc. 49,000
Gibraltar Securities Co. 49,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. 49,000
Interstate/Xxxxxxx Lane Corporation 49,000
Xxxxxx Xxxxxxxxxx Xxxxx Inc. 49,000
Xxxxxxxxxxx, Pettis, Smith, Polian Inc. 49,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 49,000
McDonald Investments Inc., A Keycorp Company 49,000
Mesirow Financial, Inc. 49,000
Xxxxxx Xxxxxx & Company, Inc. 49,000
Olde Discount Corporation 49,000
Pershing, A Division of Xxxxxxxxx, 49,000
Lufkin & Xxxxxxxx
Xxxxx Jaffray Inc. 49,000
Xxxxxxx Xxxxx & Associates, Inc. 49,000
The Xxxxxxxx-Xxxxxxxx Company, LLC 49,000
Xxxxx Capital Markets, A Division of First Chicago 49,000
Xxxxxxx Xxxxxx & Co., Inc. 49,000
Xxxxx & Xxxxxxxxxxxx, Inc. 49,000
Southwest Securities, Inc. 49,000
Sterne, Agee & Xxxxx, Inc. 49,000
Xxxxxx, Xxxxxxxx & Company, Incorporated 49,000
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Number of
Offered Capital Securities
Underwriter To Be Purchased
----------- ---------------
Sutro & Co. Incorporated 49,000
TD Securities (USA) Inc. 49,000
Xxxxxx Xxxxxxx Incorporated 49,000
Wedbush Xxxxxx Securities 49,000
-----------------
Total . . . . . . . . . . . . . . . . . 14,000,000
=================
The Underwriters will pay for the Offered Capital Securities upon
delivery thereof at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. (New York time) on February
19, 1999, or at such other time, not later than 5:00 p.m. (New York time) on
February 19, 1999, as shall be designated by us. The time and date of such
payment and delivery are hereinafter referred to as the "CLOSING DATE".
The Offered Capital Securities shall have the terms set forth in the
Prospectus dated February 10, 1999 and the Prospectus Supplement dated
February 11, 1999, including the following:
TERMS OF OFFERED CAPITAL SECURITIES
Designation of the Capital Securities: UnionBanCal Finance Trust I 7-3/8%
Capital Securities
Issuer of Offered Capital Securities: UnionBanCal Finance Trust I
Aggregate Number of Capital Securities: 14,000,000
Price to Public: $25 per Capital Security
Purchase Price: $25 per Capital Security
Underwriters' Compensation per Capital $0.7875 per Capital Security (except
Security: for sales of 10,000 or more Capital
Securities to a single purchaser for
which the Underwriters' compensation
will be $.50 per Offered Capital
Security)
Selling Concession: $0.50 per Capital Security
Reallowance: $0.40 per Capital Security
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Closing Date: February 19, 1999
Form: Book-entry
Other Terms:
Maturity Date: May 15, 2029, subject to acceleration
under certain circumstances to a date
no earlier than May 15, 2014
Liquidation Amount: $25 per Capital Security
Distributions: 7-3/8% per annum
Distribution Payment Dates: February 15, May 15, August 15 and
November 15 of each year, commencing
on May 15, 1999
Redemption: Redeemable prior to maturity at the
option of UNBC (i) on or after
February 19, 2004, in whole at any
time or in part from time to time and
(ii) prior to February 19, 2004 in
whole (but not in part) at any time
within 90 days following the
occurrence and continuation of a Tax
Event, an Investment Company Event or
a Regulatory Capital Event, in each
case, at par
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the document
entitled Underwriting Agreement Standard Provisions dated February 11, 1999
(the "STANDARD PROVISIONS") relating to the Capital Securities of Finance
Trust I (fully and unconditionally guaranteed by UNBC, based on its
obligations under a guarantee, a trust declaration and an indenture), a copy
of which is attached hereto, are herein incorporated by reference in their
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, except that
(i) if any term defined in such document is otherwise defined herein, the
definition set forth herein shall control, (ii) all references in such
document to a type of security that is not an Offered Capital Security or a
related Junior Subordinated Debenture shall not be deemed to be a part of
this Agreement and (iii) all references in such document to a type of
agreement that has not been entered into in connection with the transactions
contemplated hereby shall not be deemed to be a part of this Agreement.
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Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX BARNEY INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
Acting severally on behalf of themselves and the
several Underwriters named in the third paragraph
hereof.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxx X. Xxxxxxxxxx III
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx III
Title: Vice President
Accepted:
UNIONBANCAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
and Controller
UNIONBANCAL FINANCE TRUST I
By: /s/ Xxxx X. XxXxxxxx, Xx.
----------------------------
Name: Xxxx X. XxXxxxxx, Xx.
Title: Regular Trustee
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UNIONBANCAL FINANCE TRUST I
CAPITAL SECURITIES
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
FEBRUARY 11, 1999
UnionBanCal Corporation, a California corporation ("UNBC"), may,
together with UnionBanCal Finance Trust I, a statutory business trust created
under the Delaware Business Trust Act ("FINANCE TRUST I"), enter into an
underwriting agreement that provides for the sale of designated securities to
the several underwriters named therein. The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement
(an "UNDERWRITING AGREEMENT"). The Underwriting Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
UNBC proposes to cause Finance Trust I to issue its 7-3/8% Capital
Securities ("CAPITAL SECURITIES") guaranteed by UNBC to the extent described
in the Prospectus (as defined below) with respect to distributions and
amounts payable upon liquidation or redemption pursuant to a Preferred
Securities Guarantee Agreement to be dated as of the date of the Underwriting
Agreement executed and delivered by UNBC and The First National Bank of
Chicago, as trustee (the "GUARANTEE TRUSTEE"), for the benefit of the holders
from time to time of the Capital Securities (the "GUARANTEE").
If Finance Trust I issues Capital Securities, it will use the proceeds
from the sale of the Capital Securities and the sale of Common Securities (as
defined below) to purchase from UNBC an aggregate principal amount of its
7-3/8% Junior Subordinated Deferrable Interest Debentures due 2029 (the
"JUNIOR SUBORDINATED DEBENTURES") equal to the aggregate liquidation amount
of the Capital Securities and Common Securities issued by Finance Trust I
pursuant to a Debenture Purchase Agreement to be dated as of the date of the
Underwriting Agreement (the "DEBENTURE PURCHASE AGREEMENT"). The Junior
Subordinated Debentures will be issued under an Indenture to be dated as of
February 19, 1999 between UNBC and The First National Bank of Chicago, as
trustee (the "INDENTURE TRUSTEE") (as amended and supplemented from time to
time, the "INDENTURE"). With respect to the issuance of Capital Securities
by Finance Trust I, UNBC will also be the holder of one hundred percent of
the common securities representing undivided beneficial interests in the
assets of Finance Trust I (the "COMMON SECURITIES" and, together with the
Capital Securities, the "TRUST SECURITIES"), which shall be issued pursuant
to a Subscription Agreement to be dated as of the date of the Underwriting
Agreement (the "SUBSCRIPTION AGREEMENT").
Finance Trust I has been created under Delaware law pursuant to the
filing of a Certificate of Trust (the "CERTIFICATE OF TRUST") with the
Secretary of State of the State of Delaware, and will be governed by an
Amended and Restated Declaration of Trust (the "DECLARATION OF TRUST") among
UNBC, as sponsor, The First National Bank of Chicago, as Property Trustee
(the "PROPERTY TRUSTEe"), First Chicago Delaware Inc., as Delaware Trustee
(the "DELAWARE TRUSTEE"), and three individuals who have been selected by
UNBC, as sponsor. UNBC, as sponsor, has appointed the Property Trustee, the
Delaware Trustee and three individuals who are officers of or affiliated with
UNBC to act as administrators with respect to Finance Trust I (the "REGULAR
TRUSTEES" and, together with the Property Trustee and the Delaware Trustee,
the "FINANCE TRUSTEES"). The First National Bank of Chicago, as Property
Trustee, will act as Indenture Trustee for the purposes of the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT").
UNBC and Finance Trust I have filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement including a prospectus
relating to the Capital Securities and the Guarantee (collectively, the
"SECURITIES") and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "PROSPECTUS SUPPLEMENT") pursuant to Rule 424
under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
specifically relating to the Securities offered pursuant to this Agreement
(the "OFFERED CAPITAL SECURITIES" and the "OFFERED GUARANTEE" and,
collectively, the "OFFERED SECURITIES"). The term Registration Statement
means the registration statement as amended to the date of this Agreement.
The term Basic Prospectus means the prospectus included in the Registration
Statement. The term Prospectus means the Basic Prospectus together with the
Prospectus Supplement. The term preliminary prospectus means a preliminary
prospectus supplement specifically relating to the Offered Securities,
together with the Basic Prospectus. As used herein, the terms "BASIC
PROSPECTUS", "PROSPECTUS" and "PRELIMINARY PROSPECTUS" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"SUPPLEMENT", "AMENDMENT" and "AMEND" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by UNBC with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
1. REPRESENTATIONS AND WARRANTIES. Each of Finance Trust I and UNBC,
jointly and severally, represents and warrants to and agrees with each of the
Underwriters as of the date of the Underwriting Agreement:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before or, to the knowledge of
UNBC, threatened by the Commission.
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(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable, will
not contain any 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, (iii) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will
comply, when so filed, in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder and (iv)
the Prospectus, as of its date, did not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set
forth in this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information concerning
any Underwriter furnished to UNBC in writing by such Underwriter through the
Managers expressly for use therein or (B) to those parts of the Registration
Statement that constitute the Statements of Eligibility (Form T-1) under the
Trust Indenture Act of the trustees referred to in the Registration
Statement.
(c) UNBC has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of California, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus; all of the issued shares of capital
stock of each subsidiary of UNBC have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or
indirectly by UNBC, free and clear of all liens, encumbrances, equities or
claims;
(d) Union Bank of California, N.A. ("UBOC") has been duly organized, is
validly existing as an association in good standing under the laws of the
jurisdiction of its organization, has the power and authority to own its
property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a Material
Adverse Effect.
(e) Finance Trust I has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, is a
"grantor trust" for United States federal income tax purposes, has the power
and authority to conduct its business as presently conducted and as described
in the Prospectus and is not required to be authorized to do business in any
other jurisdiction.
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(f) This Agreement has been duly authorized, executed and delivered
by each of Finance Trust I and UNBC.
(g) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized by UNBC and, upon execution and delivery thereof
by UNBC (and assuming due authorization, execution and delivery by the
Indenture Trustee), will, as of the Closing Date, be a valid and binding
agreement of UNBC, enforceable against UNBC in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is subject
to general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(h) The Junior Subordinated Debentures have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture, and delivered to and paid for by Finance Trust I in accordance
with the terms of the Debenture Purchase Agreement, will be entitled to the
benefits of the Indenture, and will be valid and legally binding obligations
of UNBC, enforceable against UNBC in accordance with their terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law and except as rights to
indemnification and contribution may be limited under applicable law.
(i) The Guarantee has been qualified under the Trust Indenture Act
and has been duly authorized by UNBC and, upon execution and delivery thereof
by UNBC (and assuming due authorization, execution and delivery by the
Guarantee Trustee), will, as of the Closing Date, be a valid and binding
agreement of UNBC, enforceable against UNBC in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is subject
to general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law and except as rights to
indemnification and contribution may be limited under applicable law.
(j) The Declaration of Trust has been qualified under the Trust
Indenture Act and has been duly authorized by UNBC and, upon execution and
delivery thereof by UNBC (and assuming due authorization, execution and
delivery thereof by each party thereto other than UNBC), will, as of the
Closing Date, be a valid and binding agreement of UNBC, enforceable against
UNBC in accordance with its terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights
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generally and (ii) is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law
and except as rights to indemnification and contribution may be limited under
applicable law.
(k) The Offered Capital Securities have been duly authorized by the
Declaration of Trust and, when executed and authenticated in accordance with
the provisions of the Declaration of Trust and delivered to and paid for by
the Underwriters in accordance with the terms of this Agreement, will be
validly issued and (subject to the terms of the Declaration of Trust) fully
paid and non-assessable undivided beneficial interests in the assets of
Finance Trust I, and the issuance of such Offered Capital Securities will not
be subject to any preemptive or similar rights. Holders of the Offered
Capital Securities will be entitled to the same limitation of personal
liability as that extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware. The
Common Securities have been duly authorized by the Declaration of Trust and,
when issued and executed in accordance with the provisions of the Declaration
of Trust and delivered to UNBC against payment therefor as set forth in the
Subscription Agreement, will be validly issued undivided beneficial interests
in the assets of Finance Trust I, and the issuance of such Common Securities
will not be subject to any preemptive rights.
(l) The execution and delivery by UNBC of, and the performance by UNBC
of its obligations under, this Agreement, the Indenture, the Declaration of
Trust, the Guarantee and the Junior Subordinated Debentures, will not
contravene any provision of applicable law, the Declaration of Trust or the
articles of incorporation or bylaws of UNBC or, except for violations that
individually or in the aggregate would not result in a Material Adverse
Effect, any agreement or other instrument binding upon UNBC or any of its
subsidiaries that is material to UNBC and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency or court
having jurisdiction over UNBC or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by UNBC of its obligations under this
Agreement, the Indenture, the Declaration of Trust, the Guarantee and the
Junior Subordinated Debentures, (i) except such as have been obtained or may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities or (ii) except
to the extent that the failure to so obtain would not individually or in the
aggregate have a Material Adverse Effect;
(m) The execution and delivery by Finance Trust I of, and the
performance by Finance Trust I of its obligations under, this Agreement will
not contravene any provision of applicable law or the Declaration of Trust
or, except for violations that individually or in the aggregate would not
result in a Material Adverse Effect, any agreement or other instrument
binding upon Finance Trust I that is material to Finance Trust I, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction
5
over Finance Trust I, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by Finance Trust I of its obligations under this Agreement, (i)
except such as have been obtained or may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale of
the Offered Securities or (ii) except to the extent that the failure to so
obtain would not individually or in the aggregate have a Material Adverse
Effect;
(n) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations
of Finance Trust I or UNBC and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto effected subsequent to the date of the Underwriting Agreement).
(o) Each preliminary 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 Securities Act, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(p) Each of Finance Trust I and UNBC is not, and after giving effect to
the offering and sale of the Offered Capital Securities and the application
of the proceeds thereof as described in the Prospectus, will not be an
"investment company" as such term is defined under the Investment Company Act
of 1940, as amended.
(q) There are no legal or governmental proceedings pending or, to the
knowledge of UNBC, threatened to which Finance Trust I or UNBC or any of its
subsidiaries is a party or to which any of the properties of Finance Trust I
or UNBC or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described, or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the Prospectus
or to be filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
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(r) UNBC and its subsidiaries (i) are in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"),(ii) have received all permits, licenses or other approvals required
of them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of any
such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a Material
Adverse Effect.
(s) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which would,
singly or in the aggregate, have a Material Adverse Effect.
(t) UNBC and each of its subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective
businesses, and neither UNBC nor any such subsidiary has received any notice
of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would result in a
material adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of UNBC and its subsidiaries, taken as a
whole, except as described in or contemplated by the Prospectus.
(u) UNBC has reviewed its operations and that of its subsidiaries to
evaluate the extent to which the business or operations of UNBC or any of its
subsidiaries will be affected by the "Year 2000 Problem" (that is, any
significant risk that UNBC's computer hardware or software applications and
those of its subsidiaries will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as in the
case of dates or times periods occurring prior to January 1, 2000); as a
result of such review, UNBC has no reason to believe, and does not believe,
that (i) there are any issues related to UNBC's preparedness to address the
Year 2000 Problem that are of a character required to be described or
referred to in the Registration Statement or the Prospectus which have not
been accurately described in the Registration Statement or the Prospectus and
(ii) the Year 2000 Problem will have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business or operations
of UNBC and its subsidiaries, taken as a whole, or result in any material
loss or interference with the business or operations of UNBC and it
subsidiaries, taken as a whole.
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2. PUBLIC OFFERING. Finance Trust I and UNBC are advised by the
Managers that the Underwriters propose to make a public offering of their
respective portions of the Offered Securities as soon after this Agreement
has been entered into as in the Managers' judgment is advisable. The terms
of the public offering of the Offered Securities are set forth in the
Prospectus.
3. PURCHASE AND DELIVERY. Except as otherwise provided in this
Section 3, payment for the Offered Securities shall be made to Finance Trust
I or UNBC, as applicable, in immediately available funds at the time and
place set forth in the Underwriting Agreement, upon delivery to the Managers
for the respective accounts of the several Underwriters of the Offered
Securities registered in such names and in such denominations or amounts, as
the case may be, as the Managers shall request in writing not less than one
full business day prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Offered Securities to the
Underwriters duly paid.
4. CONDITIONS TO CLOSING. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of UNBC's securities by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act; PROVIDED
that this Section 4(a)(i) shall not apply to any downgrading or intended
or potential downgrading by Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc. ("STANDARD & POOR'S"), solely as a
result of (A) any changes in the methodology by which Standard & Poor's
accords ratings to capital securities so that such capital securities are
treated more like debt securities or (B) any decrease in the amount of
"equity credit" that Standard & Poor's attributes to capital securities
generally;
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of UNBC and its subsidiaries,
taken as a whole, or, with respect to an offering of Capital Securities,
Finance Trust I, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto effected subsequent to the execution
and delivery of the Underwriting Agreement), that, in the judgment of the
Managers, is material and adverse and that makes it, in the judgment of
the Managers, impracticable to market the
8
Offered Securities on the terms and in the manner contemplated in the
Prospectus; and
(iii) the Managers shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of UNBC, or any other person authorized by the Board of Directors of UNBC
to execute any such written statement (an "EXECUTIVE OFFICER"), and a
certificate, dated the Closing Date and signed by a Regular Trustee of
Finance Trust I,
(A) to the effect set forth in Section 4(a)(i) hereof (in
the case of the certificate signed by an Executive Officer of
UNBC); and
(B) to the effect that the representations and warranties
of UNBC and Finance Trust I contained in this Agreement are true
and correct as of the Closing Date and that each of UNBC and
Finance Trust I, as applicable, has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
The Executive Officer or Regular Trustee signing and delivering such
certificate may rely upon the best of his or her knowledge as to
proceedings threatened.
(b) The Managers shall have received on the Closing Date an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to UNBC and Finance
Trust I, dated the Closing Date, to the effect set forth in Exhibit A.
(c) The Underwriters shall have received on the Closing Date an opinion
of Xxxx X. XxXxxxxx, Xx., Executive Vice President and General Counsel of
UNBC, dated the Closing Date, to the effect set forth in Exhibit B.
(d) The Managers shall have received on the Closing Date an opinion of
Xxxxx Xxxx & Xxxxxxxx, special counsel for the Underwriters, dated the
Closing Date, with respect to the validity of the Indenture, the Junior
Subordinated Debentures and the Guarantee and such other matters as the
Underwriters may reasonably request.
With respect to Sections 4(b) and 4(c) hereof, Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP and Xxxxx Xxxx & Xxxxxxxx, respectively, may state that
their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus (but not including
documents incorporated therein by reference) and review and discussion of the
contents thereof (including documents incorporated therein by reference), but
are without independent check or verification, except as specified.
9
With respect to Section 4(b) hereof, Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP may rely, with respect to factual matters and to the extent such
counsel deems appropriate, upon the representations of UNBC contained herein
and in other documents and instruments.
With respect to Sections 4(b)(xiv) through (xxii) hereof, Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP may note that holders of Trust Securities may be
obligated, pursuant to the Declaration of Trust, to (i) provide indemnity and
security in connection with and pay taxes or other governmental charges
arising from transfers of certificates for Trust Securities and the issuance
of replacement certificates for Trust Securities, (ii) provide security and
indemnity in connection with requests of or directions to the Property
Trustee to exercise its rights and remedies under the Declaration of Trust
and (iii) undertake as a party litigant to pay costs in any suit for the
enforcement of any right or remedy under the Declaration of Trust or against
the Property Trustee, to the extent provided in the Declaration of Trust.
The opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP described in
Section 4(b) hereof shall be rendered to the Underwriters at the request of
UNBC and shall so state therein.
(e) The Managers shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Managers,
from Deloitte & Touche LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Prospectus.
5. COVENANTS OF UNBC AND FINANCE TRUST I. In further consideration of
the agreements of the Underwriters contained herein, each of UNBC and Finance
Trust I covenants as follows:
(a) To furnish the Managers, without charge, ten conformed copies of
the Registration Statement (including exhibits and, upon request, documents
incorporated therein by reference) and for delivery to each other Underwriter
a conformed copy of the Registration Statement (without exhibits thereto but,
upon request, including documents incorporated therein by reference) and,
during the period mentioned in Section 5(c) hereof, as many copies of the
Prospectus and any supplements and amendments thereto or to the Registration
Statement as the Managers may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the Managers
a copy of each such proposed amendment or supplement and not to file any such
proposed
10
amendment or supplement to which the Managers reasonably objects promptly
after reasonable notice thereof.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters
(which counsel shall be reasonably acceptable to UNBC; PROVIDED that Xxxxx
Xxxx & Xxxxxxxx shall be acceptable to UNBC), the Prospectus is required by
law to be delivered in connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing when the Prospectus is delivered
to a purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at its
own expense, to the Underwriters and to the dealers (whose names and
addresses the Managers will furnish to UNBC and Finance Trust I) to which
Offered Securities may have been sold by the Managers on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus, so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law and to cause
such amendments or supplements to be filed promptly with the Commission.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions in the United
States as the Managers shall reasonably request; PROVIDED that in connection
therewith, neither UNBC nor Finance Trust I shall be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction.
(e) To make generally available to UNBC's security holders and to the
Managers as soon as practicable an earning statement covering a twelve-month
period beginning on the first day of the first full fiscal quarter after the
date of the Underwriting Agreement, which earning statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder. If such fiscal quarter is the last
fiscal quarter of UNBC's fiscal year, such earning statement shall be made
available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of UNBC or
any securities with characteristics similar to those of the Capital
Securities (other than (i) the Offered Securities, (ii) the Junior
Subordinated Debentures, (iii) the Common Securities and (ii) commercial
paper
11
issued in the ordinary course of business), without the prior written consent
of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Managers.
(g) Whether or not any sale of Offered Securities is consummated, to
pay or cause to be paid all expenses incident to the performance of the
obligations of UNBC and Finance Trust I under this Agreement, including: (i)
the preparation and filing of the Registration Statement and the Prospectus
and all amendments and supplements thereto, (ii) the preparation, issuance
and delivery of the Offered Securities, (iii) the fees and disbursements of
UNBC's counsel and accountants, of Finance Trust I's counsel and of the
Finance Trustees and their counsel, (iv) the qualification of the Capital
Securities and the Guarantee under securities or Blue Sky laws in accordance
with the provisions of Section 5(d) hereof, including filing fees and the
fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the printing or producing and delivery of
any Blue Sky or Legal Investment memoranda, (v) the printing and delivery to
the Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of the Prospectus and
any amendments or supplements thereto, (vi) any fees charged by rating
agencies for the rating of the Offered Securities and (vii) all costs and
expenses, if any, incident to listing the Capital Securities on the New York
Stock Exchange.
6. INDEMNIFICATION AND CONTRIBUTION. Each of UNBC and Finance Trust
I, jointly and severally, agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or allegedly untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if UNBC shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
allegedly untrue statement or omission based upon information relating to any
Underwriter furnished to UNBC and Finance Trust I in writing by such
Underwriter through the Managers expressly for use therein; PROVIDED,
HOWEVER, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Offered Securities, or any person controlling such Underwriter, if
a copy of the Prospectus (as then amended or supplemented if UNBC or Finance
Trust I shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required
by law so to have been delivered, at or prior to the written confirmation of
the sale of the Offered Securities to
12
such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability, unless
such failure is the result of non-compliance by UNBC with Section 5(a)
hereof.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless Finance Trust I, the Finance Trustees, UNBC, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls Finance Trust I or UNBC within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from UNBC and Finance Trust I to each Underwriter,
but only with reference to information relating to such Underwriter furnished
to UNBC or Finance Trust I by such Underwriter in writing through the Managers
expressly for use in the Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Managers, in the case of parties indemnified
pursuant to the second preceding paragraph, and by UNBC and Finance Trust I,
in the case of parties indemnified pursuant to the first preceding paragraph.
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the third sentence of this paragraph
and the
13
indemnifying party is not disputing in good faith the reasonableness of such
fees and expenses of counsel, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
To the extent the indemnification provided for in the first or second
paragraph in this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by UNBC and Finance
Trust I on the one hand and the Underwriters on the other hand from the
offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of UNBC and Finance Trust I on the one
hand and the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by UNBC and Finance Trust I on the one hand and the Underwriters on
the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by UNBC and Finance Trust I and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus Supplement, bear to the aggregate public
offering price of the Offered Securities. The relative fault of UNBC and
Finance Trust I on the one hand and of the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue
or allegedly untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by UNBC and
Finance Trust I or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
UNBC, Finance Trust I and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other
14
method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, 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 Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue
or allegedly untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
respective obligations to contribute pursuant to this Section 6 are several
in proportion to the respective amounts of Offered Securities purchased by
each of such Underwriters and not joint. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
7. TERMINATION. This Agreement shall be subject to termination by
notice given by the Managers to UNBC, if (a) after the execution and delivery
of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the
case may be, any of the New York Stock Exchange, the American Stock Exchange,
the National Association of Securities Dealers, Inc., the Chicago Board of
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of UNBC or Finance Trust I shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have
been declared by either Federal or New York State authorities, or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change
in financial markets or any calamity or crisis that, in the judgment of the
Managers, is material and adverse and (b) in the case of any of the events
specified in clauses (i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Managers,
impracticable to market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date or the Option
Closing Date, as the case may be, any one or more of the Underwriters shall
fail or refuse to purchase Offered Securities that it has or they have agreed
to purchase hereunder on such date, and the aggregate number of Offered
Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
number of the Offered Securities to be purchased on such date, the other
15
Underwriters shall be obligated severally in the proportions that the number
of Offered Capital Securities set forth opposite their respective names
herein bears to the aggregate number of Offered Capital Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as we may specify, to purchase the Offered Capital Securities
which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; PROVIDED that in no event shall the number
of Offered Capital Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 8 by an
amount in excess of one-ninth of such number of Offered Capital Securities
without the written consent of such Underwriter. If, on the Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Offered
Capital Securities and the aggregate number of Offered Capital Securities
with respect to which such default occurs is more than one-tenth of the
aggregate number of Offered Capital Securities to be purchased, and
arrangements satisfactory to us and UNBC for the purchase of such Offered
Capital 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 UNBC. In any such case that does not result in termination,
either we or UNBC 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. If, on the Option Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Additional
Capital Securities and the aggregate number of Additional Capital Securities
with respect to which such default occurs is more than one-tenth of the
aggregate number of Additional Capital Securities to be purchased, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Additional Capital Securities or (ii)
purchase not less than the number of Additional Capital Securities that such
non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. 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 UNBC or Finance Trust
I to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason UNBC or Finance Trust I shall be unable to
perform its obligations under this Agreement, UNBC and Finance Trust I
jointly and severally agree to 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 of the Offered Securities,
but UNBC and Finance Trust I shall then be under no further liability to any
Underwriter except as provided in Sections 5(g) and 6 hereof.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of
16
Finance Trust I, the Regular Trustees, UNBC, its officers and the
Underwriters set forth in this Agreement will remain in full force and
effect, regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of UNBC, its officers or
directors or any person controlling UNBC or on behalf of Finance Trust I, the
Finance Trustees or any person controlling Finance Trust I and (iii)
acceptance of and payment for any of the Offered Securities.
10. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, Finance Trustees and controlling persons referred to in
Section 7 hereof, and no other person will have any right or obligation
hereunder.
11. COUNTERPARTS. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
17
