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EXHIBIT 1.2
GOLDEN WEST FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
FOR
[SUBORDINATED][SENIOR] DEBT SECURITIES
(_____________, 20__)
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GOLDEN WEST FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
FOR
[SENIOR][SUBORDINATE] DEBT SECURITIES
(_____________, 20__)
From time to time, Golden West Financial Corporation (the "Company")
may enter into one or more underwriting agreements that provide for the sale of
[senior][subordinate] debt securities to the underwriter or the several
underwriters, as the case may be, 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 sometimes referred to as
"this Agreement," and the underwriter or underwriters, as the case may be, named
therein are herein referred to as the "Underwriters"; provided that, if there is
only one such underwriter, these standard provisions shall be construed, mutatis
mutandis, to reflect the fact that there is only one such underwriter. Unless
otherwise defined herein, terms defined in the Underwriting Agreement are used
herein as therein defined.
1. Securities; Prospectus; Representations and Warranties.
(a) The Company proposes to issue and sell from time to time
[senior][subordinated] debt securities (the "Securities") to be issued pursuant
to the provisions of the [Senior][Subordinated] Indenture, dated as of
__________________, (the "Indenture"), between the Company and [Name of
Trustee], as trustee (the "Trustee"). The Securities may have varying
designations, maturities, rates and times of payment of interest, if any,
selling prices, redemption terms, if any, and other specific terms.
(b) A registration statement on Form S-3 has been prepared by the
Company in conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations of the Securities
and Exchange Commission (the "Commission") thereunder, has been filed with the
Commission and has become effective. 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 at the
time it became effective. The term "Preliminary Prospectus" means the Basic
Prospectus together with a preliminary prospectus supplement specifically
relating to the Offered Securities. The Company will file with the Commission a
prospectus supplement specifically relating to the Offered Securities (the
"Prospectus Supplement"), which together with the Basic Prospectus is referred
to as the "Prospectus." As used herein, the terms "Registration Statement",
"Basic Prospectus", "Prospectus" and "Preliminary Prospectus" shall include in
each case the material, if any, incorporated by reference therein and the terms
"amend", "amendment" and "supplement" with respect to the Registration
Statement, any Preliminary Prospectus, the Basic Prospectus or the Prospectus
shall be deemed to refer to and include the filing of any
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document under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), deemed to be incorporated therein by reference after the date of this
Agreement.
As used herein, the term "Incorporated Documents" means the documents
which at the time are incorporated by reference in any Preliminary Prospectus,
the Registration Statement, the Basic Prospectus, the Prospectus or any
amendment or supplement thereto. As used herein, the term "Rules and
Regulations" means the rules and regulations adopted by the Commission under
either the Securities Act or the Exchange Act, as applicable.
2. Terms of Public Offering. The Company is advised by the
Underwriters that the Underwriters propose to offer the Offered Securities in
the manner set forth in the applicable Prospectus.
3. Delivery and Payment. Payment for the Offered Securities shall be
made by wire transfer of immediately available funds to a bank account
designated by the Company, upon delivery to the Underwriters of the Offered
Securities registered in such names and in such denominations as the
Underwriters shall request in writing not less than two full business days prior
to the date of delivery. The time and date of such payment and delivery of the
Offered Securities are herein referred to as the "Closing Date."
4. Agreements of the Company. The Company agrees with the Underwriters
as follows:
(a) The Company will cause the Basic Prospectus as supplemented
by the Prospectus Supplement to be filed pursuant to the Rules and Regulations
and will, prior to the later of the Closing Date or the end of the period of
time referred to in Section 4(e), advise the Underwriters promptly and, if
requested by the Underwriters, will confirm such advice in writing (i) when any
amendment to the Registration Statement hereafter becomes effective, (ii) of any
request by the Commission for amendments or supplements to the Registration
Statement, the Basic Prospectus or Prospectus or for additional information with
respect thereto, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose and (iv) of the happening of any event which in
the judgment of the Company makes any statement made in the Registration
Statement, the Basic Prospectus or the Prospectus untrue in any material respect
or which requires the making of any additions to or changes in the Registration
Statement, the Basic Prospectus or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the withdrawal of such order
at the earliest possible time. The Company will prepare and file with the
Commission, promptly upon the Underwriters' request, any amendments or
supplements to the Registration Statement or Prospectus which the Underwriters
deem to be necessary or advisable.
(b) The Company will furnish to counsel for the Underwriters,
without charge, the number of signed copies of the Registration Statement as
originally filed with the Commission and of each amendment thereto and of copies
of each Incorporated Document, including in each case all exhibits thereto,
which will allow each representative of the Underwriters as well as counsel for
the Underwriters to receive a complete set of documents, and
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will also furnish to each Underwriter, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto and all
Incorporated Documents, excluding exhibits.
(c) Prior to the end of the period of time referred to in Section
4(e), the Company will not file any amendment to the Registration Statement or
make any amendment or supplement to the Basic Prospectus or the Prospectus or
file any document which thereupon becomes an Incorporated Document of which the
Underwriters shall not previously have been advised, or to which the
Underwriters shall promptly after being so advised reasonably object in writing.
(d) Prior to the date of the Prospectus, the Company has
delivered or will deliver to each of the Underwriters, without charge, in such
quantities as they have or may hereafter reasonably request, copies of each form
of Preliminary Prospectus. The Company consents to the use, in accordance with
the provisions of the Rules and Regulations and with the securities or Blue Sky
laws of the jurisdictions in which the Offered Securities are offered by the
Underwriters and by dealers, of each Preliminary Prospectus so furnished by the
Company.
(e) From time to time, for such period as in the opinion of
counsel for the Underwriters the Prospectus is required by law to be delivered
in connection with sales by an Underwriter or dealer, the Company will deliver
to each of the Underwriters, without charge, as many copies of the Prospectus
(and of any amendments or supplements thereto) as they may reasonably request.
If during such period of time any event shall occur which, in the judgment of
the Company or in the opinion of counsel for the Underwriters, should be set
forth in the Prospectus in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is necessary
to amend or supplement the Prospectus or to file under the Exchange Act any
document which becomes an Incorporated Document to comply with the Rules and
Regulations, the Exchange Act or any other law, the Company will forthwith
prepare and file with the Commission an appropriate amendment or supplement or
document pursuant to the Exchange Act, and will furnish to each of the
Underwriters, without charge, a reasonable number of copies thereof, which the
Underwriters shall use thereafter. The Company consents to the use of the
Prospectus (and of any amendments or supplements thereto), in accordance with
the provisions of the Rules and Regulations and with the securities or Blue Sky
laws of the jurisdictions in which the Offered Securities are offered by the
Underwriters and by dealers to whom Offered Securities may be sold, both in
connection with the offering or sale of Offered Securities and for such period
of time thereafter as the Prospectus is required by law to be delivered in
connection therewith.
(f) The Company will cooperate with the Underwriters and counsel
for the Underwriters in connection with the registration or qualification of the
Offered Securities for offering and sale by the Underwriters and dealers under
the securities or Blue Sky laws of such jurisdictions as the Underwriters may
designate and to which the Company agrees and will file such consents to service
of process or other documents as may be necessary in order to effect such
registration or qualification and continue the same for so long as the
Underwriters may reasonably request; provided that in no event shall the Company
be obligated to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would
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subject it to the service of process in suits, other than those arising out of
the offering or sale of the Offered Securities, in any jurisdiction where it is
not now so subject.
(g) So long as any Offered Securities are outstanding, the
Company will furnish to the Underwriters, (i) as soon as available, a copy of
each report of the Company mailed to security holders or filed with the
Commission pursuant to the Exchange Act and (ii) from time to time such other
information concerning the Company as the Underwriters may reasonably request.
(h) The Company will pay all costs and expenses incidental to the
performance by it of its obligations hereunder, including (i) the preparation,
printing and filing of the Registration Statement and all amendments thereto
(including the exhibits thereto), each Basic Prospectus, Preliminary Prospectus,
Prospectus and any amendments and supplements thereto, the Indenture, this
Agreement and any Agreement Among Underwriters, (ii) the preparation, printing,
authentication, issuance and delivery of the Offered Securities, (iii) the
registration or qualification of the Offered Securities for offer and sale under
securities or Blue Sky laws as provided in Section 4(f) and the determination of
the eligibility of the Offered Securities for investment under the laws of such
jurisdiction as the Underwriters may designate, including fees and disbursements
of counsel, (iv) the fees and expenses of the Company's accountants and the fees
and expenses of counsel for the Company, (v) the furnishing to the Underwriters
and dealers of such copies of the Registration Statement, the Basic Prospectus,
the Prospectus, each Preliminary Prospectus, the Incorporated Documents and all
amendments or supplements to the Registration Statement and the Prospectus as
may be requested for use in connection with the offering and sale of the Offered
Securities, (vi) the printing of any Power of Attorney, Underwriters' letters or
Underwriters' Questionnaire, and any preliminary or supplemental Blue Sky Survey
and Legal Investment Memorandum, (vii) the fees of investment rating agencies,
(viii) the listing on any stock exchange of the Offered Securities and the
registration of the Offered Securities under the Exchange Act, (ix) the fees of
the Trustee and its counsel, and (x) the costs and charges of any transfer agent
or registrar.
(i) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than if terminated pursuant to Section 8), or if
this Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Company to comply with the terms or fulfill any of
the conditions of this Agreement, the Company agrees to reimburse the
Underwriters for all out-of-pocket expenses (including fees and expenses of
counsel) reasonably incurred by them in connection herewith but shall not be
responsible for loss of anticipated profits.
(j) The Company will apply the net proceeds of the sale of the
Offered Securities as set forth in the Prospectus.
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5. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) Each Incorporated Document complied when filed with the
Commission in all material respects with the requirements of the Exchange Act.
The Registration Statement, at the time it became effective, and any amendments
thereto filed prior to the date hereof, complied in all material respects with
the requirements of the Securities Act and the Rules and Regulations and did 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; the Registration Statement, the Basic Prospectus and the Prospectus,
and any amendments or supplements thereto comply and will comply in all respects
with the requirements of the Securities Act and the Rules and Regulations; the
Indenture complies in all respects with the requirements of the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"); and, as of the date of this
Agreement, the date of any further amendment to the Registration Statement or
supplement to the Prospectus and at the Closing Date, no such document includes
or will include any untrue statement of a material fact or omits or will omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading; except that this representation and warranty does not
apply to statements in or omissions from the Registration Statement, the Basic
Prospectus or the Prospectus (or any amendments or supplements thereto) made in
reliance upon written information furnished to the Company by or on behalf of
any Underwriter expressly for use in connection therewith;
(b) The Offered Securities have been duly and validly authorized
and, when issued and delivered against payment therefor in accordance with the
terms hereof, will be entitled to the benefits of the Indenture, will conform to
the description thereof in the Prospectus and will be legal, valid and binding
obligations of the Company enforceable in accordance with their terms, and the
Indenture has been duly and validly authorized, executed and delivered by the
Company and is a legal, valid and binding obligation of the Company enforceable
in accordance with its terms, in each case except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws affecting enforcement of
creditors' rights or by the application of usual equitable principles when
equitable remedies are sought;
(c) The Company is duly registered as a savings and loan holding
company under Section 10 of the Home Owners' Loan Act of 1933, as amended; the
Company is duly organized, validly existing and in good standing under the laws
of the State of Delaware and holds all licenses and is duly registered or
qualified to conduct the business in which it is engaged in each jurisdiction
where the conduct of its business or the location of its properties requires
such licenses, registration or qualification, except for such jurisdictions
where the failure to hold such licenses or to so register or qualify will not
have a material adverse effect on the business of the Company and its
subsidiaries taken as a whole. The Company owns all the issued and outstanding
stock of World Savings and Loan Association, a Federal Savings and Loan
Association (the "World SLA"), World Savings Bank, SSB ("World SSB"), and World
Savings Bank, FSB, a Federal Savings Bank ("World FSB");
(d) Deloitte & Touche LLP, the accountants who certified the
financial statements constituting a part of the Prospectus, are, with respect to
the Company and its
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subsidiaries, independent certified public accountants as required by the
Securities Act and the Rules and Regulations;
(e) The consolidated financial statements included or
incorporated by reference in the Prospectus present fairly the financial
position of the Company and its subsidiaries as of the dates indicated and the
results of their operations for the periods specified; and said financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved and present
fairly the information required to be stated therein;
(f) Since the respective dates as of which information is given
in the Prospectus, except as otherwise stated therein or contemplated thereby,
(A) there has been no material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one enterprise or
in the earnings, or business affairs of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and (B) there have been no material transactions entered into by the
Company or any of its subsidiaries other than those in the ordinary course of
business;
(g) Each Significant Subsidiary (as hereinafter defined), if any,
of the Company has been duly incorporated and is validly existing under the laws
of its respective jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and to conduct its respective
business and holds all licenses and is duly registered or qualified to conduct
the business in which it is engaged in each jurisdiction in which the conduct of
its business or the location of its properties requires such licenses,
registration or qualification, except for those jurisdictions where the failure
to so register or qualify will not have a material adverse effect on the
business of the Company and its subsidiaries taken as a whole. As of the date of
the Underwriting Agreement the Company does not have any Significant
Subsidiaries other than Atlas Advisers, Inc. and Atlas Securities, Inc. For
purposes of this Agreement, a "Significant Subsidiary" shall have the same
meaning as set forth in Rule 405 promulgated under the Securities Act but shall
not include World SLA, World SSB or World FSB;
(h) All of the issued and outstanding shares of the capital stock
of World SLA, World SSB, World FSB and of each of the Significant Subsidiaries,
if any, have been duly authorized and validly issued, are fully paid and
non-assessable and are owned, directly or indirectly, by the Company free and
clear of all liens, encumbrances, equities and claims except as indicated in the
Prospectus and except for directors' qualifying shares;
(i) Neither the Company nor any subsidiary of the Company is in
violation of its certificate of incorporation or charter or bylaws or in default
in any material respect in the performance of any obligation, agreement or
condition contained in any bond, debenture or note or any other evidence of
indebtedness or in any indenture or loan agreement of the Company or any such
subsidiary; the execution and delivery hereof, the fulfillment of the terms
herein set forth and the consummation of the transactions herein contemplated
will not conflict with or constitute a breach of, or default under, the
certificate of incorporation or the bylaws of the Company or equivalent
documents of any subsidiary, or any indenture, agreement or undertaking to which
the Company or any subsidiary is a party or by which the Company or any
subsidiary is bound, which is material to the Company and its subsidiaries taken
as a whole,
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or any law, administrative regulation or court decree applicable to the Company
or any subsidiary, the effect of which would be material to the Company and its
subsidiaries taken as a whole;
(j) All consents and approvals of any court, governmental
official, commission, board or other administrative or regulatory body required
for the execution and delivery by the Company of this Agreement and the
Indenture and the issuance by the Company of the Offered Securities as
contemplated herein and in the Prospectus and the performance by the Company of
the terms of the Offered Securities, this Agreement and the Indenture have been,
or will have been by the Closing Date, obtained and will be in full force and
effect as of the applicable Closing Date;
(k) Except as set forth in the Prospectus, there is no action,
suit, investigation or proceeding before or by any court or governmental agency
or body, domestic or foreign, now pending, or to the knowledge of the Company
threatened, against the Company or any of its subsidiaries, which will, in the
opinion of the Company, result in any material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the business prospects of the Company and its subsidiaries
considered as one enterprise, or which will materially and adversely affect the
consummation of this Agreement;
(l) This Agreement has been duly authorized, executed and
delivered by the Company;
(m) Neither the Company nor any subsidiary is in violation of any
law, ordinance, governmental rule or regulation or court decree to which it may
be subject which violation would have a material adverse effect on the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the business prospects of the Company and
its subsidiaries considered as one enterprise;
(n) The conditions for the use of Form S-3, set forth in the
General Instructions thereto, have been satisfied;
(o) World SLA is a capital stock federal savings association,
World SSB is a capital stock Texas chartered savings bank and World FSB is a
capital stock federal savings bank; each of World SLA, World SSB and World FSB
is duly organized, validly existing and in good standing under the laws of the
United States and holds all licenses and is duly registered or qualified to
conduct the business in which it is engaged in each jurisdiction where the
conduct of its business or the location of its properties requires such
licenses, registration or qualification, except for such jurisdictions where the
failure to hold such licenses or to so register or qualify will not have a
material adverse effect on the business of World SLA and its subsidiaries taken
as a whole, World FSB and its subsidiaries taken as a whole or World SSB and its
subsidiaries taken as a whole, as applicable; and
(p) The Company does not have any "Interested Stockholders" as
defined in Article Eighth, Section 3 of its Certificate of Incorporation.
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6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, controlling any Underwriter (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act),
against any and all losses, claims, damages, liabilities and reasonable expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus or the Prospectus, or in any
amendment or supplement thereto or in any blue sky application (if used within
the period referred to in Section 4(e)), or arising out of or based upon 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, liabilities or expenses arise
out of or are based upon any untrue statement or omission, or allegation
thereof, which has been made therein or omitted therefrom in reliance upon and
in conformity with information furnished in writing to the Company by or on
behalf of any Underwriter expressly for use therein; provided, that the
foregoing agreement, insofar as it relates to any Preliminary Prospectus, or the
Prospectus as amended or supplemented, shall not inure to the benefit of any
Underwriter from whom the person asserting any losses, claims, damages or
liabilities purchased the Offered Securities which are the subject thereof (or
to the benefit of any person controlling such Underwriter), if (a) a copy of the
Prospectus (excluding Incorporated Documents) was not sent or given to such
person prior to or together with written confirmation of the sale of such
Offered Securities to such person and such Prospectus corrected any such untrue
statement or omission of a material fact contained in any Preliminary Prospectus
or (b) the Prospectus has been amended or supplemented or further amended or
supplemented, as the case may be, prior to the time any version thereof was sent
or given to such person prior to or together with written confirmation of the
sale of such Offered Securities to such person and such Prospectus as then
amended or supplemented or further amended or supplemented, as the case may be,
corrected any such untrue statement or omission of a material fact contained in
any Preliminary Prospectus or the Prospectus as theretofore amended or
supplemented and a copy of such Prospectus (excluding Incorporated Documents) as
then amended or supplemented or further amended or supplemented, as the case may
be, was not sent or given to such person prior to or together with written
confirmation of the sale of such Offered Securities to such person.
(b) If any action or claim shall be brought or asserted against
any Underwriter or any person so controlling an Underwriter in respect of which
indemnity may be sought from the Company, such Underwriter or controlling person
shall promptly notify the Company in writing, and the Company shall assume the
defense thereof, including the employment of counsel and the payment of all
expenses. Any Underwriter or any such controlling person shall have the right to
employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Underwriter or such controlling person unless (a) the employment thereof
has been specifically authorized by the Company in writing, (b) the Company has
failed to assume the defense and employ counsel or (c) the named parties to any
such action (including any impleaded parties) include both such Underwriter or
such controlling person and the Company and such Underwriter or such controlling
person shall have been advised by such counsel that the representation of such
indemnified party and the indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct due to actual
or potential
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differing interests between them (in which case, if such Underwriter or
controlling person notifies the Company in writing that it elects to employ
separate counsel at the expense of the Company, the Company shall not have the
right to assume the defense of such action on behalf of such Underwriter or such
controlling person, it being understood, however, that the Company shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such Underwriters
and controlling persons, which firm shall be designated in writing by the
Underwriters). The Company shall not be liable for any settlement of any such
action effected without its written consent, but if settled with the written
consent of the Company, or if there be a final judgment for the plaintiff in any
such action, the Company agrees to indemnify and hold harmless any Underwriter
and any such controlling person from and against any loss or liability by reason
of such settlement or judgment.
(c) Each Underwriter agrees to indemnify and hold harmless the
Company, its directors and each of its officers who signed the Registration
Statement, and each person, if any, controlling the Company (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the
same extent as the foregoing indemnity from the Company to each Underwriter, but
only with respect to information relating to such Underwriter furnished to the
Company in writing by it, or on its behalf, expressly for use in the
Registration Statement, any Preliminary Prospectus or the Prospectus, or in any
amendment or supplement thereto. In case any action or claim shall be brought
against the Company, or its directors or any such officers or any such
controlling person in respect of which indemnity may be sought against any
Underwriter, such Underwriter shall have the rights and duties given to the
Company, and the Company and its directors or any such officers or any such
controlling person shall have the rights and duties given to the Underwriters by
the next preceding paragraph.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under Sections 6(a) or 6(c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses as follows:
(i) where the indemnification arises under Section 6(a)
hereof, in such proportions that the Underwriters are responsible for the same
proportion that the total commissions and underwriting discounts received by the
Underwriters from the sale of the Offered Securities to the date of such
liability bears to the total sales price received by the Company from the sale
of Offered Securities to the date of such liability; and
(ii) where the indemnification arises under Section 6(c)
hereof, in such proportions as to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the sale of the
Offered Securities and the relative fault of the Company on the one hand and the
Underwriters on the other, as well as any other relevant equitable
considerations.
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from
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any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 6(d), each person, if any, who controls an Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as an Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Company.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6(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. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities and
expenses referred to above 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 defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), 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 which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The Underwriters'
obligations to contribute pursuant to this Section 6(d) are several in
proportion to the respective principal amounts of the Offered Securities set
forth opposite their names in Schedule I to the Underwriting Agreement and not
joint.
(e) Without limiting the scope or intent of the preceding
paragraphs of this Section 6, the Company acknowledges that: (i) the information
contained in the Incorporated Documents has been supplied by the Company; (ii)
each Underwriter is purchasing the Offered Securities purchased by it pursuant
to this Agreement in reliance upon the Incorporated Documents; (iii) the prices
at which the Offered Securities are purchased by the Underwriters from the
Company and offered and sold by them to the public are affected by the
Incorporated Documents; and (iv) any losses, claims, damages, liabilities and
expenses incurred or suffered by any Underwriter, or any person controlling any
Underwriter, which arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission in the Incorporated Documents
will have been caused by such Underwriter's reliance upon the Incorporated
Documents.
(f) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any person, (ii) acceptance of
any Offered Securities and payment therefor hereunder and (iii) any termination
of this Agreement. A successor of any Underwriter or of the Company or its
directors and officers or of any controlling person of any Underwriter or the
Company, as the case may be, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 6.
7. Conditions of the Underwriters' Obligations. The several obligations
of the Underwriters to purchase the Offered Securities hereunder are subject to
the accuracy of the
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representations and warranties of the Company set forth herein on and as of the
Closing Date and to the following further conditions:
(a) That there shall not have occurred any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company or any of its subsidiaries, not contemplated by the
Prospectus which, in the Underwriters' reasonable opinion, is so material and
adverse as to make it impracticable to proceed with the public offering or the
delivery of the Offered Securities on the terms and in the manner contemplated
in the Prospectus.
(b) That (i) no stop order suspending the effectiveness of the
Registration Statement or any amendment or supplement thereto shall have been
issued and no proceedings for that purpose shall have been taken or, to the
knowledge of the Company, shall be contemplated by the Commission at or prior to
the Closing Date, (ii) there shall not have been any material change in the
capital stock or long-term debt of the Company from that set forth in or
contemplated by the Prospectus, (iii) there shall not have been any material
adverse change, financial or otherwise, in the condition or results of
operations of the Company and its subsidiaries taken as a whole from that set
forth in the Prospectus and (iv) neither the Company nor any subsidiary shall
have any liabilities or obligations, direct or contingent, material to the
Company and its subsidiaries taken as a whole, other than those reflected in or
contemplated by the Prospectus; and that the Underwriters shall have received on
the Closing Date a certificate, dated the Closing Date, and signed by the
President and either the Chief Financial Officer or the Treasurer of the Company
to the effect set forth in this Section 7(b) and in Section 7(f) and as to the
accuracy of the representations and warranties of the Company contained herein
on and as of the Closing Date.
(c) That the Underwriters shall have received on the Closing Date
an opinion dated the Closing Date, satisfactory to the Underwriters and counsel
for the Underwriters, of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, to the following
effect:
(i) The Company is duly organized and validly existing as
a corporation in good standing under the laws of the State of Delaware and has
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and Prospectus;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction of the United States in which it is
required to be so qualified and in which it owns or leases substantial
properties or transacts a material amount of its business and as to which the
failure to so qualify would have a material adverse effect on the Company and
its subsidiaries taken as a whole; and the Company is a savings and loan holding
company registered under Section 10 of the Home Owners' Loan Act of 1933, as
amended.
(ii) World SLA is a federally chartered savings
association, World SSB is a Texas chartered savings bank and World FSB is a
federally chartered savings bank; each of World SLA, World SSB and World FSB is
duly organized in stock form and, to the best of our knowledge and information,
is validly existing in good standing under the federal laws of the United States
or the laws of the state of Texas and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
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Registration Statement and Prospectus; each of World SLA and World FSB is a
member in good standing of the Federal Home Loan Bank of San Francisco and World
SSB is a member in good standing of the Federal Home Loan Bank of Dallas; the
deposit accounts in World SLA are insured by the Savings Association Insurance
Fund of the Federal Deposit Insurance Corporation (the "FDIC"), the deposit
accounts in World SSB and the deposit accounts in World FSB are insured by the
Bank Insurance Fund of the FDIC, in each case to the full extent provided by the
National Housing Act, as amended, and the rules and regulations of the FDIC
thereunder; and the Company directly owns all of the capital stock of World SLA,
World SSB and World FSB to our knowledge free and clear of any mortgages,
pledges, liens or encumbrances.
(iii) This Agreement has been duly authorized by all
necessary corporate action on the part of the Company and has been duly executed
and delivered by the Company.
(iv) The Indenture has been duly authorized by all
necessary corporate action on the part of the Company, has been duly executed
and delivered by the Company, has been duly qualified under the Trust Indenture
Act and (assuming due authorization, execution and delivery of the Indenture by
the Trustee) constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
(v) The Offered Securities have been duly authorized for
issuance and sale pursuant to this Agreement by all necessary corporate action
on the part of the Company and, when authenticated and delivered by the Trustee
and paid for pursuant to the terms of this Agreement, will be entitled to the
benefits of the Indenture and will constitute valid and binding obligations of
the Company enforceable in accordance with their terms.
(vi) The statements in the Prospectus under the captions
"Description of Debt Securities," insofar as such statements purport to
summarize the provisions of the Indenture or the Offered Securities, are correct
in all material respects.
(vii) No consent, authorization or order of any
governmental authority is required on the part of the Company for the execution
and delivery of this Agreement or for the issuance and sale of the Offered
Securities by the Company pursuant to the terms of this Agreement or the
Indenture other than such as have been obtained under the Securities Act and the
Trust Indenture Act, and except as may be required by any state securities or
blue sky laws, with respect to which such firm may express no opinion.
(viii) The Registration Statement has been declared
effective under the Securities Act and, to their knowledge, no order suspending
the effectiveness of the Registration Statement has been issued under the
Securities Act and no proceedings for that purpose have been initiated or
threatened by the Commission.
(ix) The Registration Statement and the Prospectus and
any amendment or supplement thereto (in each case including all documents
incorporated by reference therein), as of their respective effective dates or
issue dates, as the case may be, complied as to form in all material respects
with the requirements of the Securities Act, the
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Exchange Act and the Rules and Regulations, as the case may be (it being
understood that they have not been requested to and shall not be required to
give any opinion or make any comment with respect to the financial statements,
schedules and other financial and statistical information contained therein, or
the Statement of Eligibility and Qualification of the Trustee); the conditions
for use of Form S-3 set forth in the General Instructions thereto have been
satisfied; while they have not independently verified the accuracy, completeness
or fairness of the information contained therein (except as described in
Paragraph (vi) above), nothing has come to their attention to cause them to
believe that the Registration Statement or any amendment thereto at the time it
became effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto, as of the date first provided to the Underwriters for use in
the offering of the Offered Securities or on the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (except for the
financial statements, schedules and other financial and statistical data
contained in or incorporated by reference in the Registration Statement or the
Prospectus or the Statement of Eligibility and Qualification of the Trustee, as
to which they may express no comment).
(x) The execution and delivery of this Agreement and the
Indenture and the sale of the Offered Securities by the Company pursuant to the
terms of this Agreement will not result in any violation of the provisions of
the certificate of incorporation or bylaws of the Company or any law, or, to
their knowledge, any administrative regulation or administrative or court
decree, the effect of which violation would be material to the Company and its
subsidiaries taken as a whole and, to their knowledge, will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries, pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
or any of its subsidiaries is a party or by which any of them may be bound or to
which any of the property or assets of the Company or its subsidiaries is
subject, the effect of which would be material to the Company and its
subsidiaries taken as a whole.
(xi) To their knowledge, there are no contracts or
documents required to be summarized or described in the Prospectus (or required
to be filed under the Exchange Act if upon such filing they would be
incorporated by reference therein) or to be filed as exhibits to the
Registration Statement which are not so summarized, described or filed, nor, to
their knowledge, is there any pending or threatened litigation or governmental
proceeding required to be described in the Prospectus which is not described as
required.
(d) That the Underwriters shall have received on and as of the
Closing Date a favorable opinion of counsel to the Underwriters covering such
matters as they may request.
(e) That the Underwriters shall have received a letter dated the
Closing Date of Deloitte & Touche LLP, independent public accountants, in form
reasonably satisfactory to the Underwriters.
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(f) That the Company shall not have failed on or prior to the
Closing Date to have performed or complied with any of the agreements herein
contained and required to be performed or complied with by it on or prior to the
Closing Date.
8. Termination of Agreement. In the event that on or prior to the
Closing Date, (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
by Federal, New York or California State authorities or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is such
as to make it, in the judgment of the Underwriters, impracticable to market the
Offered Securities, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or any time prior to, the Closing Date in the
absolute discretion of the Underwriters, without liability on the part of any
Underwriter to the Company.
Any notice under this Section 8 may be given by telegraph or telephone
but shall be subsequently confirmed by letter.
9. Miscellaneous. Except as otherwise provided in Section 8 hereof,
notice given pursuant to any of the provisions of this Agreement shall be in
writing and shall be delivered (a) to the Company, at the office of the Company,
0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, Attention: President, or (b) to
the Underwriters at the address furnished to the Company in writing for the
purpose of communications hereunder.
The Agreement herein set forth has been and is made solely for the
benefit of the Underwriters, the Company and of the controlling persons,
directors and officers referred to in Section 6 hereof and their respective
successors and assigns or personal representatives, and no other person shall
acquire or have any right under or by virtue of this Agreement. The terms
"successor" or "successors and assigns" as used in this Agreement shall not
include a purchaser of any of the Offered Securities from any of the
Underwriters in his or its status as such purchaser.
END OF STANDARD PROVISIONS
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