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Exhibit 1
Household Capital Trust VI
and
Household International, Inc.
Trust Preferred Securities
UNDERWRITING AGREEMENT
_________, 2001
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X. X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
UBS Warburg LLC
As Representatives of the Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Xxxxxx-Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
Household Capital Trust VI (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Sections 3801
et seq.), proposes, upon the terms and conditions set forth herein, to issue and
sell 8,000,000 __% Trust Preferred Securities with an aggregate liquidation
amount equal to $200,000,000 (the "Preferred Securities") to the several
Underwriters named in Schedule I hereto (the "Underwriters").
The Preferred Securities will be guaranteed by Household
International, Inc., a Delaware corporation (the "Company"), with respect to
distributions and payments upon liquidation, redemption and otherwise (the
"Preferred Securities Guarantee") pursuant to the Preferred Securities Guarantee
Agreement (the "Preferred Securities Guarantee Agreement"), dated as of _______,
2001, between the Company and The Bank of New York, as trustee (the "Guarantee
Trustee"). The entire proceeds from the sale of the Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities"), as guaranteed by the Company,
to the extent set forth in the Prospectus, with respect to distributions and
payments upon liquidation and redemption (the "Common Securities Guarantee" and
together with the Preferred Securities Guarantee, the "Guarantees") pursuant to
the Common Securities Guarantee Agreement (the "Common Securities Guarantee
Agreement" and, together with the Preferred Securities Guarantee Agreement, the
"Guarantee Agreements"), dated as of ______, 2001, between the Company and the
Guarantee Trustee, as
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trustee, and will be used by the Trust to purchase the $_____________ of __%
Junior Subordinated Deferrable Interest Notes due ________, ____ (the "Junior
Subordinated Notes") issued by the Company. The Preferred Securities and the
Common Securities will be issued pursuant to the amended and restated
declaration of trust of the Trust, dated as of _______, 2001 (the
"Declaration"), among the Company, as Sponsor, Xxxxx Xxxxxx, Xxxxxxxx X. Xxxx,
Xx. and Xxxxxx X. Xxxxxx (the "Regular Trustees"), The Bank of New York, a New
York banking corporation, as property trustee (the "Property Trustee") and The
Bank of New York (Delaware), as Delaware trustee (the "Delaware Trustee" and
together with the Regular Trustees and the Property Trustee, the "Trustees"),
and the holders from time to time of undivided beneficial interests in the
assets of the Trust. The Junior Subordinated Notes will be issued pursuant to an
indenture, dated as of May 15, 1995 (the "Base Indenture"), between the Company
and Bank One, National Association (formerly known as The First National Bank of
Chicago), as trustee (the "Debt Trustee"), and a supplement to the Base
Indenture, dated as of _______, 2001 (the "Supplemental Indenture" and together
with the Base Indenture and any other amendments or supplements thereto, the
"Indenture"), between the Company and the Debt Trustee.
The Trust and the Company (together, the "Offerors") wish to confirm
as follows their agreement with you and the other several Underwriters on whose
behalf you are acting as representatives (the "Representatives") in connection
with the several purchases of the Preferred Securities by the Underwriters.
1. Registration Statement and Prospectus. The Offerors have filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (Nos. 333-53862 and 333-53862-01) and a related
preliminary prospectus for the registration under the Securities Act of 1933
(the "1933 Act") of (i) the Preferred Securities, (ii) the Preferred Securities
Guarantee, and (iii) the Junior Subordinated Notes to be issued and sold to the
Trust by the Company, have filed such amendments thereto, if any, and such
amended preliminary prospectuses as may have been required to the date hereof,
and will file such additional amendments thereto and such amended prospectuses
as may hereafter be required. Such registration statement (as amended) and the
prospectus constituting a part thereof (including, in each case, all documents
incorporated or deemed to be incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act and the information, if any, deemed to be part
thereof pursuant to Rule 430A(b) of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations")), as from time to time amended
or supplemented pursuant to the 1933 Act, the Securities Exchange Act of 1934,
as amended (the "1934 Act"), or otherwise, are hereinafter referred to as the
"Registration Statement" and the "Prospectus", respectively, except that, if any
revised prospectus shall be provided to the Underwriters by the Offerors for use
in connection with the offering of the Preferred Securities which differs from
the Prospectus on file at the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is required to be
filed by the Offerors pursuant to Rule 424(b) of the 1933 Act Regulations), the
term "Prospectus" shall refer to such revised prospectus from and after the time
it is first provided to the Underwriters for such use. All references in this
Agreement to financial statements and schedules and other information that is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information that
are or
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are deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under the 1934 Act that
is or is deemed to be incorporated by reference in the Registration Statement or
the Prospectus, as the case may be.
2. Agreements to Sell and Purchase. The Trust hereby agrees, subject
to all the terms and conditions set forth herein, to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Offerors herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Trust, at a purchase price of $25.00 per Preferred
Security, plus accrued distributions, if any, from _______, 2001, to the Closing
Time (as hereinafter defined), the number of Preferred Securities set forth
opposite the name of such Underwriter in Schedule I hereto (or such number of
Preferred Securities increased as set forth in Section 10 hereof).
In consideration of such purchases at the Closing Time (as defined
below), the Company shall pay to the Underwriters as compensation (in
immediately available funds), at the Closing Time, $.____ per Preferred
Security, provided, however, that such compensation shall be $.__ per Preferred
Security sold to certain institutions. The Underwriters shall inform the Company
in writing at the Closing Time of the number of Preferred Securities so sold.
3. Terms of Public Offering. The Offerors have been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Preferred Securities as soon as the Underwriters deem advisable
after the Registration Statement has become effective, this Agreement has been
executed and delivered, and the Declaration, the Preferred Securities Guarantee
Agreement and the Indenture have been qualified under the Trust Indenture Act of
1939 (the "1939 Act").
4. Delivery of the Preferred Securities and Payment Therefor. Delivery
to the Underwriters of and payment for the Preferred Securities shall be made at
the offices of Household International, Inc., Prospect Heights, Illinois, at
9:00 A.M., Central Time, on _______, 2001 (the "Closing Time"). The place of
closing for the Preferred Securities and the Closing Time may be varied by
agreement between you and the Company.
The Preferred Securities shall be delivered to you for the accounts of
the several Underwriters against payment of the purchase price therefor in
immediately available funds and registered in the name of CEDE & Co., as nominee
for the Depository Trust Company. The Preferred Securities to be delivered to
the Underwriters shall be made available to you in New York City for inspection
and packaging not later than 9:30 A.M., Eastern Time, on the business day next
preceding the Closing Time.
5. Agreements of Offerors. The Offerors jointly and severally agree
with the several Underwriters as follows:
(a) The Offerors will notify the Representatives promptly, and
confirm the notice in writing, (i) of the effectiveness of the
Registration Statement and any amendment
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thereto (including any post-effective amendment), (ii) of the receipt
of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose. The Offerors will
make every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Offerors will give the Representatives notice of their
intention to file or prepare (i) any amendment to the Registration
Statement (including any post-effective amendment), (ii) any amendment
or supplement to the Prospectus (including any revised prospectus
which the Offerors propose for use by the Underwriters in connection
with the offering of the Preferred Securities which differs from the
prospectus on file at the Commission at the time the Registration
Statement becomes effective, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations), or (iii) any document that would as a result thereof be
incorporated by reference in the Prospectus whether pursuant to the
1933 Act, the 1934 Act or otherwise, will furnish the Representatives
with copies of any such amendment, supplement or other document within
a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such amendment, supplement or
other document or use any such prospectus to which the Representatives
or counsel for the Underwriters shall reasonably object. Subject to
the foregoing, the Offerors will file the Prospectus pursuant to Rule
424(b) and Rule 430A under the Act not later than the Commission's
close of business on the second business day following the execution
and delivery of this Agreement.
(c) The Offerors will deliver to the Representatives signed
copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated or deemed to be
incorporated by reference therein) as the Representatives may
reasonably request and will also deliver to the Representatives as
many conformed copies of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters.
(d) The Offerors will furnish to each Underwriter, from time to
time during the period when the Prospectus is required to be delivered
under the 1933 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request
for the purposes contemplated by the 1933 Act or the respective
applicable rules and regulations of the Commission thereunder.
(e) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Preferred
Securities, any event shall occur as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel
to the Company and the Trust, to amend or supplement the Prospectus in
order to make the
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Prospectus not misleading in the light of the circumstances existing
at the time it is to be delivered to a purchaser, or if it shall be
necessary at any such time, to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Offerors
will promptly prepare and file with the Commission, subject to
paragraph (b) above, such amendment or supplement as may be necessary
to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such
requirements; and the Offerors will furnish to the Underwriters a
reasonable number of copies of such amendment or supplement.
(f) The Offerors will endeavor, in cooperation with the
Underwriters, to qualify the Preferred Securities, the Preferred
Securities Guarantee and the Junior Subordinated Notes for offering
and sale under the applicable securities laws of such states and the
other jurisdictions of the United States as the Representatives may
designate; provided, however, that none of the Offerors shall be
obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified.
(g) The Company will make generally available to its security
holders as soon as practicable but not later than 45 days after the
close of the period covered thereby, an earnings statement of the
Company (in form complying with the provisions of Rule 158 of the 1933
Act Regulations) covering a twelve-month period beginning not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration
Statement.
(h) The Offerors will use best efforts to effect the listing of
the Preferred Securities (including the Preferred Securities Guarantee
with respect thereto) on the New York Stock Exchange; if the Preferred
Securities are exchanged for Junior Subordinated Notes, the Company
will use its best efforts to effect the listing of the Junior
Subordinated Notes on the exchange on which the Preferred Securities
were then listed.
(i) During a period of 30 days from the date of this Agreement,
neither the Trust nor the Company will, without the prior written
consent of the Representatives, directly or indirectly, sell, offer to
sell, contract to sell, grant any option for the sale of, or otherwise
dispose of, any Preferred Securities, any security convertible into or
exchangeable into or exercisable for Preferred Securities or the
Junior Subordinated Notes or any debt securities substantially similar
to the Junior Subordinated Notes or equity securities substantially
similar to the Preferred Securities (except for the Junior
Subordinated Notes and the Preferred Securities issued pursuant to
this Agreement).
6. Representations and Warranties of the Offerors. The Offers jointly
and severally represent and warrant to, and agree with, each Underwriter that:
(a) At the time the Registration Statement became or becomes
effective, the Registration Statement complied or will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rule and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), and
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will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, at the
date hereof (unless the term "Prospectus" refers to a prospectus that
has been provided to the Underwriters by the Trust for use in
connection with the offering of the Preferred Securities and that
differs from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective, in which case, at the time
it is first provided to the Underwriters for such use) and at Closing
Time referred to in Section 2 hereof, will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statement therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Offerors in writing by any Underwriter
through the Representatives expressly for use in the Registration
Statement or Prospectus.
(b) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement or Prospectus, at the time
they were or hereafter are filed with the Commission complied and will
comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission under the 1934 Act
(the "1934 Act Regulations"), and, when read together with the other
information in the Prospectus, at the time the Registration Statement
and any amendments thereto become effective and at the Closing Time,
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) To the best of the Company's knowledge, Xxxxxx Xxxxxxxx LLP,
the accountants who certified the financial statements and supporting
schedules included in the Registration Statement, are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(d) The financial statements included in the Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as at the dates
indicated and the results of their operations for the periods
specified; except as otherwise stated in the Registration Statement,
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis; and the supporting schedules included in the Registration
Statement present fairly the information required to be stated
therein.
(e) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus (exclusive of any
amendments or supplements after the date hereof), except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, financial
position or business affairs of the Company and its subsidiaries,
considered as one enterprise, or the Trust, whether or not arising in
the ordinary course of business, and (B) there have been no
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transactions entered into by the Trust or by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Trust or the Company and its
subsidiaries, considered as one enterprise.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, to enter into and perform its obligations under this
Agreement, the Declaration, the Indenture and each of the Guarantees
and to purchase, own, and hold the Common Securities issued by the
Trust; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which the character or location of its properties or the nature or the
conduct of its business requires such qualification, except for any
failures to be so qualified or in good standing which, taken as a
whole, are not materially adverse to the Company and its subsidiaries
considered as one enterprise.
(g) Each subsidiary of the Company which is a significant
subsidiary (a "Subsidiary") as defined in Rule 405 of the 1933 Act
Regulations, has been duly organized or incorporated and is validly
existing in good standing under the laws of the jurisdiction of its
incorporation, association or organization, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a
foreign entity to transact business and is in good standing in each
jurisdiction in which the character or location of its properties or
the nature or the conduct of its business requires such qualification,
except for any failures to be so qualified or in good standing which,
taken as a whole, are not materially adverse to the Company and its
subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable; and
the capital stock of each such Subsidiary owned by the Company,
directly or through subsidiaries, is owned free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(h) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus (except for subsequent
issuances, if any, pursuant to reservations, agreements, employee
benefit plans or the exercise of convertible securities referred to in
the Prospectus); and all of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable.
(i) The Trust has been duly created and is validly existing and
in good standing as a business trust under the Delaware Act with the
power and authority to own property and to conduct its business as
described in the Registration Statement and Prospectus and to enter
into and perform its obligations under this Agreement, the Preferred
Securities, the Common Securities and the Declaration; the Trust is
duly qualified to transact business as a foreign company and is in
good standing in any other jurisdiction in which such qualification is
necessary, except to the extent that the failure to so qualify or be
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good standing would not have a material adverse effect on the Trust;
the Trust is not a party to or otherwise bound by any agreement other
than those described in the Prospectus; the Trust is and will be
classified for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation; and the
Trust is and will be treated as a consolidated subsidiary of the
Company pursuant to generally accepted accounting principles.
(j) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Registration Statement
and Prospectus, will be validly issued and (subject to the terms of
the Declaration) fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will conform to all
statements relating thereto contained in the Prospectus; the issuance
of the Common Securities is not subject to preemptive or other similar
rights: and at the Closing Time all of the issued and outstanding
Common Securities of the Trust will be directly owned by the Company
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(k) This Agreement has been duly authorized, executed and
delivered by each of the Offerors.
(l) The Declaration has been duly authorized by the Company and,
at the Closing Time, will have been duly executed and delivered by the
Company and the Trustees, and assuming due authorization, execution
and delivery of the Declaration by the Property Trustee, the
Declaration will, at the Closing Time, be a valid and binding
obligation of the Company and the Regular Trustees, enforceable
against the Company and the Regular Trustees in accordance with its
terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors rights generally or by general principles of
equity (regardless of whether enforcement is considered in a
proceeding at law or in equity) (the "Bankruptcy Exceptions") and will
conform to all statements relating thereto in the Prospectus; and at
the Closing Time, the Declaration will have been duly qualified under
the 1939 Act.
(m) Each of the Guarantee Agreements has been duly authorized by
the Company and, when validly executed and delivered by the Company,
and, in the case of the Preferred Securities Guarantee Agreement,
assuming due authorization, execution and delivery of the Preferred
Securities Guarantee by the Guarantee Trustee, will constitute a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions, and each of the
Guarantees and the Guarantee Agreements will conform to all statements
relating thereto contained in the Prospectus; and the Preferred
Securities Guarantee Agreement, at the Closing Time, will have been
duly qualified under the 1939 Act.
(n) The Preferred Securities have been duly authorized by the
Declaration and, when issued and delivered pursuant to this Agreement
against payment of the
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consideration set forth herein, will be validly issued and (subject to
the terms of the Declaration) fully paid and non-assessable undivided
beneficial interests in the Trust, will be entitled to the benefits of
the Declaration and will conform to all statements relating thereto
contained in the Prospectus; the issuance of the Preferred Securities
is not subject to preemptive or other similar rights; and (subject to
the terms of the Declaration) holders of Preferred Securities will be
entitled to the same limitation of personal liability under Delaware
law as extended to stockholders of private corporations for profit.
(o) The Indenture has been duly authorized by the Company and,
when validly executed and delivered by the Company, will constitute a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions; the
Indenture will conform to all statements relating thereto contained in
the Prospectus; and at the Closing Time, the Indenture will have been
duly qualified under the 1939 Act.
(p) The Junior Subordinated Notes have been duly authorized by
the Company and, at the Closing Time, will have been duly executed by
the Company and, when authenticated in the manner provided for in the
Indenture and delivered against payment therefor as described in the
Prospectus, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms except to the extent that enforcement thereof may be limited by
the Bankruptcy Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform to all
statements relating thereto in the Prospectus.
(q) The Company's obligations under the Guarantees are
subordinate and junior in right of payment to all liabilities of the
Company and are pari passu with the preferred stock issued by the
Company.
(r) The Junior Subordinated Notes are subordinated and junior in
right of payment to all "senior indebtedness" (as defined in the
Indenture) of the Company.
(s) Each of the Regular Trustees of the Trust is an employee of
the Company and has been duly authorized by the Company to execute and
deliver the Declaration; the Declaration has been duly executed and
delivered by the Regular Trustees and is a valid and binding
obligation of each Regular Trustee, enforceable against such Regular
Trustee in accordance with its terms except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions.
(t) None of the Offerors is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(u) The execution, delivery and performance of this Agreement,
the Declaration, the Preferred Securities, the Common Securities, the
Indenture, the Junior Subordinated Notes, the Guarantee Agreements
and the Guarantees and the consummation of the transactions
contemplated herein and therein and compliance by the Offerors with
their
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respective obligations hereunder and thereunder have been duly
authorized by all necessary action (corporate or otherwise) on the
part of the Offerors and do not and will not result in any violation
of the charter or by-laws of the Company or any subsidiary, or the
Declaration or Certificate of Trust and do not and will not conflict
with, or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Trust, the Company or any Subsidiary under (A) any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Trust, the Company or any Subsidiary is a
party or by which it may be bound or to which any of its properties
may be subject (except for conflicts, breaches or defaults which would
not, individually or in the aggregate, be materially adverse to the
Trust or the Company and its subsidiaries considered as one
enterprise, or materially adverse to the transactions contemplated by
this Agreement), or (B) any existing applicable law, rule, regulation,
judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, or any regulatory body
or administrative agency or other governmental body having
jurisdiction over the Trust, the Company, or any Subsidiary or any of
their respective properties.
(v) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Trust or the Company, threatened, against or
affecting the Trust, the Company or any of its subsidiaries that is
required to be disclosed in the Prospectus, other than actions, suits
or proceedings which are not reasonably expected, individually or in
the aggregate, to have a material adverse effect on the condition,
financial or otherwise, of the Trust or the Company and its
subsidiaries considered as one enterprise, or on the earnings,
financial position or business affairs of the Trust or the Company and
its subsidiaries considered as one enterprise; and there are no
contracts or documents of the Company, any of its subsidiaries or the
Trust that are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations that have not
been so filed.
(w) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale of the Common Securities or the offering of the
Preferred Securities, the Junior Subordinated Notes or the Guarantees
hereunder, except such as may be required under the 1933 Act or the
1933 Act Regulations, the 1934 Act or the 1934 Act Regulations or
state or foreign securities laws and the qualification of the
Declaration, the Preferred Securities Guarantee Agreement and the
Indenture under the 1939 Act.
(x) The Company and the Subsidiaries and the Trust possess
adequate certificates, authorities or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies to
conduct the business now operated by them, and neither the Company nor
any of the Subsidiaries nor the Trust has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or
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finding would materially and adversely affect the condition, financial
or otherwise, or the earnings or business affairs of the Company and
its subsidiaries considered as one enterprise or of the Trust.
7. Indemnification and Contribution.
(a) Each of the Trust and the Company 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 1933 Act or Section 20 of the 1934 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 alleged 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 the Company 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, in the
light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through you 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 Preferred Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company 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
Preferred Securities to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to
such losses, claims, damages or liabilities, unless such failure is
the result of noncompliance by the Company with Section 6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Trust, the Company, its directors, its
officers who sign the Registration Statement, the trustees of the
Trust and each person, if any, who controls the Company within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934
Act to the same extent as the foregoing indemnity from the Trust and
the Company to such Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to
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paragraph (a) or (b) of this Section 7, 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated in the case of parties indemnified pursuant to paragraph
(a) of this Section 7, and by the Company, in the case of parties
indemnified pursuant to paragraph (b) of this Section 7. 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 second and third sentences of this paragraph, 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.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 7 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
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benefits received by the Trust and the Company on the one hand and the
Underwriters on the other hand from the offering of the Preferred
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 the Trust and the Company on the
one hand and of 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 the Trust and the
Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Preferred Securities shall be
deemed to be in the same respective proportions as the net proceeds
from the offering of the Preferred Securities (before deducting
expenses) received by the Trust 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, bear to the
aggregate public offering price of the Preferred Securities. The
relative fault of the Trust and the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Trust and the
Company or by the Underwriters and the parties, relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations
to contribute pursuant to this Section 7 are several in proportion to
the respective number of Preferred Securities they have purchased
hereunder, and not joint.
(e) The Trust, the Company and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) of this Section 7. 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 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Preferred 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 alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 7 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.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of
the Trust and the Company contained
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in this Agreement shall remain operative and 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 the Company, its
officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Preferred Securities.
8. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Preferred Securities hereunder are subject to
the following conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M. on the date hereof, or at such later time and
date as may be approved in writing by the Representatives; and at
Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. The
Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by
the 1933 Act Regulations and in accordance with Section 3(b) and prior
to Closing Time the Offerors shall have provided evidence satisfactory
to the Representatives of such timely filing.
(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxx
X. Xxxxxx, Vice President-Corporate Law and Assistant Secretary
of the Company, in form and substance satisfactory to counsel for
the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement and to
enter into and perform its obligations under this Agreement,
except where the failure to have such power and authority
would not be material to the Company and its subsidiaries
considered as one enterprise.
(iii) To the best of his knowledge and information, the
Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to so qualify or be in good standing would
not be material to the Company and its subsidiaries
considered as one enterprise.
(iv) To the best of his knowledge and information, the
Trust is duly qualified and in good standing as a foreign
entity in any jurisdiction in which such qualification is
necessary, except to the extent that the
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failure to so qualify or be in good standing would not have
a material adverse effect on the Trust; and the Trust is not
a party to or otherwise bound by any agreement other than
those described in the Prospectus.
(v) Each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration
Statement and, to the best of his knowledge and information,
is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in
which the character or location of its properties or the
nature or conduct of its business requires such
qualification, except where the failure to have such power
and authority or to so qualify or be in good standing would
not be material to the Company and its subsidiaries
considered as one enterprise; all of the issued and
outstanding capital stock of each Subsidiary has been duly
authorized and validly issued, is fully paid and
non-assessable and, to the best of his knowledge and
information, the capital stock of each such Subsidiary owned
by the Company, directly or through subsidiaries, is owned
free and clear of any perfected security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(vi) The Company has an authorized capitalization as
set forth in the Prospectus and all outstanding shares of
its common and preferred stock have been duly and validly
authorized and issued and are fully paid and nonassessable.
(vii) This Agreement has been duly authorized, executed
and delivered by the Company.
(viii) The Registration Statement is effective under
the 1933 Act and, and to the best of his knowledge and
information, no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933
Act or proceeding therefor initiated or threatened by the
Commission.
(ix) At the time the Registration Statement became
effective and at the Closing Time, the Registration
Statement (other than the financial statements and
supporting schedules and other financial or statistical data
included therein, as to which no opinion need be rendered)
complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(x) To the best of his knowledge and information, there
are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described
or referred to in the Registration
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Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
(xi) No authorization, approval, consent or order of
any court or governmental authority or agency is required in
connection with the offering, issuance or sale of the
Preferred Securities, the Preferred Securities Guarantee and
the Junior Subordinated Notes to the Underwriters, except
(a) such as may be required under the 1933 Act and the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations
or state securities laws and (b) the qualification of the
Declaration, the Preferred Securities Guarantee Agreement
and the Indenture under the 1939 Act; and, to the best of
his knowledge and information, the execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated herein and compliance by the
Company and the Trust with their obligations hereunder and
will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any of the Subsidiaries or the Trust pursuant to,
any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of the
Subsidiaries or the Trust is a party or by which it or any
of them may be bound, or to which any of the property or
assets of the Company or any of the Subsidiaries or the
Trust is subject (except for conflicts, breaches and
defaults which would not, individually or in the aggregate,
be materially adverse to the Company and its subsidiaries
taken as a whole or the Trust or materially adverse to the
transactions contemplated by this Agreement), nor will such
action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company, or
any applicable law, administrative regulation or
administrative or court decree.
(xii) Each document filed pursuant to the 1934 Act
(other than the financial statements and supporting
schedules and other financial or statistical data included
therein, as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference in
the Prospectus complied when so filed as to form in all
material respects with the 1934 Act and the 1934 Act
Regulations.
(xiii) To the best of his knowledge and information and
other than as disclosed in the Registration Statement, there
are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is the subject which individually or in the aggregate is
material, and, to the best of his knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
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(xiv) The Declaration has been duly qualified under the
1939 Act.
(xv) Each of the Guarantee Agreements has been duly
authorized, executed and delivered by the Company; the
Preferred Securities Guarantee Agreement, assuming it is
duly authorized, executed and delivered by the Guarantee
Trustee, constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with
its terms, except to the extent that enforcement thereof may
be limited by Bankruptcy Exceptions; and the Preferred
Securities Guarantee Agreement has been duly qualified under
the 0000 Xxx.
(xvi) To the best of his knowledge, all of the issued
and outstanding Common Securities of the Trust are directly
owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equitable right.
(xvii) The Indenture has been duly authorized, executed
and delivered by the Company and, assuming due
authorization, execution, and delivery thereof by the Debt
Trustee, is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be
limited by the Bankruptcy Exceptions; the Indenture has been
duly qualified under the 1939 Act; and the Indenture
conforms to the description thereof in the Prospectus.
(xviii) The Junior Subordinated Notes have been duly
authorized and executed by the Company and, when
authenticated by the Trustee in the manner provided in the
Indenture and delivered against payment therefor, will
constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be
limited by the Bankruptcy Exceptions; and the Junior
Subordinated Notes conform to the description thereof in the
Prospectus.
(xix) Neither the Company nor the Trust is an
"investment company" or a company "controlled" by an
"investment company" within the meaning of the 1940 Act.
(xx) The Common Securities, the Preferred Securities
and the Declaration conform in all material respects to all
statements relating thereto contained in the Prospectus.
(2) The favorable opinion of Xxxxxxxx, Xxxxxx & Finger,
P.A., Special Delaware counsel to the Offerors, in form and
substance satisfactory to counsel for the Underwriters, to the
effect that:
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(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Act; all filings required under the laws of the
State of Delaware with respect to the formation and valid
existence of the Trust as a business trust have been made;
the Trust has all necessary power and authority to own
property and to conduct its business as described in the
Registration Statement and the Prospectus and to enter into
and perform its obligations under this Agreement, the
Preferred Securities and the Common Securities.
(ii) The Declaration constitutes a valid and binding
obligation of the Company, enforceable against the Company
in accordance with its terms, except as enforcement thereof
may be limited by the Bankruptcy Exceptions.
(iii) The Common Securities have been duly authorized
by the Declaration and are validly issued beneficial
interests in the assets of the Trust, and the issuance of
the Common Securities is not subject to preemptive or other
similar rights.
(iv) The Preferred Securities have been duly authorized
by the Declaration and are validly issued and (subject to
the terms of the Declaration), when delivered to and paid
for by the Underwriters pursuant to this Agreement, will be
validly issued, fully paid and non-assessable beneficial
interests in the assets of the Trust; the holders of the
Preferred Securities will (subject to the terms of the
Declaration) be entitled to the same limitation of personal
liability under Delaware law as is extended to stockholders
of private corporations for profit; and the issuance of the
Preferred Securities is not subject to preemptive or other
similar rights.
(v) This Agreement has been duly authorized, executed
and delivered by the Trust.
(vi) The execution, delivery and performance of this
Agreement, the Declaration, the Preferred Securities and the
Common Securities; the consummation of the transactions
contemplated herein and therein; and the compliance by the
Trust with its obligations hereunder and thereunder do not
and will not result in any violation of the Declaration or
Certificate of Trust, or any applicable law, rule or
regulation of the State of Delaware.
(3) The favorable opinion, dated as of Closing Time, of
Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for The Bank of New York, as
Property Trustee under the Declaration, and Guarantee Trustee
under the Preferred Securities Guarantee Agreement, in form and
substance satisfactory to counsel for the Underwriters, to the
effect that:
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(i) The Bank of New York is a New York banking
corporation with trust powers, duly organized, validly
existing and in good standing under the laws of the State of
New York with all necessary power and authority to execute
and deliver, and to carry out and perform its obligations
under the terms of the Declaration and the Preferred
Securities Guarantee Agreement.
(ii) The execution, delivery and performance by the
Property Trustee of the Declaration and the execution,
delivery and performance by the Guarantee Trustee of the
Preferred Securities Guarantee Agreement have been duly
authorized by all necessary corporate action on the part of
the Property Trustee and the Guarantee Trustee,
respectively. The Declaration and the Guarantee Agreements
have been duly executed and delivered by the Property
Trustee and the Guarantee Trustee, respectively, and
constitute the legal, valid and binding obligations of the
Property Trustee and the Guarantee Trustee, respectively,
enforceable against the Property Trustee and the Guarantee
Trustee, respectively, in accordance with their terms,
except as enforcement thereof may be limited by the
Bankruptcy Exceptions.
(iii) The execution, delivery and performance of the
Declaration and the Guarantee Agreements by the Property
Trustee and the Guarantee Trustee, respectively, does not
conflict with or constitute a breach of the Organization
Certificate or Bylaws of the Property Trustee and the
Guarantee Trustee, respectively.
(iv) No consent, approval or authorization of, or
registration with or notice to, any New York or federal
banking authority is required for the execution, delivery or
performance by the Property Trustee and the Guarantee
Trustee of the Declaration and the Guarantee Agreements.
(4) The favorable opinion, dated as of Closing Time, of
XxXxxxxxx, Will & Xxxxx, counsel for the Underwriters, in form
and substance satisfactory to the Underwriters with respect to
the legal existence of the Company, the Preferred Securities, the
Indenture, the Junior Subordinated Notes, the Preferred
Securities Guarantee Agreement, this Agreement, the Registration
Statement, the Prospectus and other related matters as the
Representatives may require.
In giving its opinion, XxXxxxxxx Will & Xxxxx may rely as to certain
matters of Delaware law upon the opinion of, counsel for the Offerors, which
shall be delivered in accordance with Section 8(b)(1) and (2) hereto.
(5) The favorable opinion of Sidley & Austin, special tax
counsel to the Company and the Trust, as to certain Federal tax
matters set forth in the Prospectus under "Certain Federal Income
Tax Consequences", in form and substance satisfactory to the
Representatives.
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(6) In giving their opinions required by subsections (b) (1)
and (b)(4), respectively, of this Section, Xx. Xxxxxx and
XxXxxxxxx, Will & Xxxxx shall each additionally state that
nothing has come to their attention that has caused them to
believe that the Registration Statement (except for financial
statements and schedules and other financial or statistical data
included or incorporated by reference, therein, as to which
counsel need make no statement), at the time it became effective
or at the Closing Time, 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 (except for financial
statements and schedules and other financial or statistical data
included or incorporated by reference therein, as to which
counsel need make no statement), at the date thereof or at
Closing Time, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(7) At Closing Time, there shall not have been, since the
date hereof or since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise,
or in the earnings or business affairs of the Trust or the
Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of a Vice
President of the Company and of the chief financial or chief
accounting officer of the Company and a certificate of a Trustee
of the Trust, and dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the
representations and warranties in Section 6 hereof are true and
correct with the same force and effect as though expressly made
at and as of Closing Time, (iii) the Trust and the Company have
complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to Closing Time,
and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been initiated or threatened by the Commission.
(8) At Closing Time, the Representatives shall have received
from Xxxxxx Xxxxxxxx LLP, a letter dated such date, in form and
substance satisfactory to the Representatives.
(9) At Closing Time, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the
issuance and sale of the Preferred Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Offerors, in connection with the
issuance and sale of the Preferred Securities as herein
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contemplated shall be satisfactory in form and substance to the
Representatives and XxXxxxxxx, Will & Xxxxx, counsel for the
Underwriters.
(10) At Closing Time, there shall not have occurred any
decrease in the ratings of any of the debt securities of the
Company or of the Preferred Securities by any "nationally
recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act).
(11) At Closing Time, the Preferred Securities shall have
been approved for listing on the New York Stock Exchange upon
notice of issuance.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Offerors at any time at
or prior to Closing Time, and such termination shall be without liability
of any party to any other party except as provided in Section 9 hereof.
9. Expenses. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it and
by the Trust of its and the Trust's respective and joint obligations hereunder:
(i) the preparation, printing (or reproduction), and filing with the Commission
of the Registration Statement (including financial statements and exhibits
thereto), each preliminary prospectus, the Prospectus, each amendment or
supplement to any of them, this Agreement, the Declaration, the Preferred
Securities Guarantee, the Indenture and the Statement of Eligibility and
Qualification of each of the Property Trustee, the Guarantee Trustee and the
Debt Trustee; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, each preliminary prospectus, the
Prospectus, the documents incorporated therein by reference, and all amendments
or supplements to any of them, as may be reasonably requested for use in
connection with the offering and sale of the Preferred Securities; (iii) the
preparation, printing (or reproduction), execution and delivery of the
Declaration, the Preferred Securities Guarantee and the Indenture and the
preparation, printing, authentication, issuance and delivery of the Preferred
Securities, including any stamp taxes in connection with the original issuance
of the Preferred Securities; (iv) the printing (or reproduction) and delivery of
this Agreement, the Blue Sky Memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering the
Preferred Securities; (v) the registration of the Preferred Securities under the
Exchange Act and the listing of the Securities on the New York Stock Exchange;
(vi) the registration or qualification of the Preferred Securities for offer and
sale under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing (or
reproduction), and delivery of the Blue Sky Memorandum and such registration and
qualification); (vii) the filing fees and the fees and expenses of counsel for
the Underwriters in connection with any filing required to be made with the
National Association of Securities Dealers, Inc.; (viii) the fees and expenses
of the Property Trustee, the Guarantee Trustee and the Debt Trustee; (ix) the
fees and expenses associated with obtaining ratings for the Preferred Securities
and the Junior Subordinated Notes from nationally recognized
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statistical rating organizations; and (x) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Offerors.
10. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the registration statement or a post-effective amendment thereto to be
declared effective before the offering of the Preferred Securities may commence,
when notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such time as
this Agreement shall have become effective, it may be terminated by the Company
or the Trust, by notifying you, or by you, as Representatives of the several
Underwriters, by notifying the Offerors.
If any one or more of the Underwriters shall fail or refuse to
purchase Preferred Securities which it or they are obligated to purchase
hereunder, and the aggregate number of Preferred Securities which such
defaulting Underwriter or Underwriters are obligated but fail or refuse to
purchase is not more than one-tenth of the aggregate number of the Preferred
Securities, each non-defaulting Underwriter shall be obligated, severally, in
the proportion which the number of Preferred Securities set forth opposite its
name in Schedule I hereto bears to the aggregate number of Preferred Securities
set forth opposite the names of all non-defaulting Underwrites, to purchase the
Preferred Securities which such defaulting Underwriter or Underwriters are
obligated, but failed or refused, to purchase. If any Underwriter or
Underwriters shall fail or refuse to purchase Preferred Securities and the
aggregate number of Preferred Securities with respect to which such default
occurs is more than one-tenth of the aggregate number of the Preferred
Securities and arrangements satisfactory to you and the Offerors for the
purchase of such Preferred Securities by one or more non-defaulting Underwriters
or other party or parties approved by you and the Offerors are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Offerors. In any such case
which does not result in termination of this Agreement, either you or the
Offerors shall have the right to postpone the Closing Time, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Offerors,
purchases Preferred Securities which a defaulting Underwriter is obligated, but
fail or refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination. This Agreement shall be subject to termination by
notice given by you to the Offerors, if (a) after the execution and delivery of
this Agreement and prior to the Closing Time (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, either of the
New York Stock Exchange or the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of the Company shall have been suspended on any
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exchange, (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
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (iv), such
event, singly or together with any other such event, makes it, in your judgment,
impracticable to market the Preferred Securities on the terms and in the manner
contemplated in the Prospectus.
12. Miscellaneous. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Offerors, to the Company, or to the
Trust, care of the Company, at the office of the Company at the address
specified in the Prospectus, Attention: Secretary; or (ii) if to you, as
Representatives of the several Underwriters, care of Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Trust, the Company, the Company's directors and
officers, the Trustees, and the other controlling persons referred to in Section
7 hereof and their respective successors and assigns, to the extent provided
herein, and no other person shall acquire or have any right under or by virtue
of this Agreement. Neither the term "successor" nor the term "successors and
assigns" as used in this Agreement shall include a purchaser from any
Underwriter of any of the Preferred Securities in his status as such purchaser.
13. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement
among the Trust, the Company and the several Underwriters.
Very truly yours,
HOUSEHOLD CAPITAL TRUST VI
By:
------------------------------------------
as Regular Trustee
By:
------------------------------------------
as Regular Trustee
By:
------------------------------------------
as Regular Trustee
HOUSEHOLD INTERNATIONAL, INC.
By:
------------------------------------------
Name:
Title:
Confirmed as of the date first above mentioned on
behalf of themselves and the other several
Underwriters named in Schedule I hereto.
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx Xxxxxx, Xxxxxx & Xxxxx Incorporated
X. X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
UBS Warburg LLC
As Representatives of the Underwriters
By: Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:
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SCHEDULE I
HOUSEHOLD CAPITAL TRUST VI
__% Preferred Securities
Number of
Underwriter Preferred Securities
----------- --------------------
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated.......................
X. X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
UBS Warburg LLC
Total....................................... 8,000,000
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