1
Exhibit 1
Household Capital Trust IV
and
Household International, Inc.
8,000,000
Trust Preferred Securities
UNDERWRITING AGREEMENT
__________, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
[Names of Co-Managers]
As Representatives of the Underwriters
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Household Capital Trust IV (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 _______________, 1998,
between the Company and Wilmington Trust Company, 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
________, 1998, between the Company and the Guarantee Trustee, as trustee, and
will be used by the Trust to purchase the $____________ of _____% Junior
Subordinated Deferable
2
Interest Notes (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
____________, 1998 (the "Declaration"), among the Company, as Sponsor, Xxxx X.
Xxxxxxxxx and Xxxxxx X. Xxxxxx (the "Regular Trustees") and Wilmington Trust
Company, a Delaware banking corporation, as property trustee (the "Property
Trustee" and together with the Regular Trustees, 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 The First National Bank of Chicago, as trustee (the "Debt Trustee"), and a
supplement to the Base Indenture, dated as of __________, 1998 (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. 333-47181 and 333-47181-01) 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 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
-2-
3
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 _________, 1998,
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 ____________, 1998 (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.
-3-
4
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 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
-4-
5
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 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 Trust 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 Trust'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, grant
any option for
-5-
6
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 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
-6-
7
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, 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 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 material 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 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 Prospectus
and 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 material to the Company and
its subsidiaries
-7-
8
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 in 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
-8-
9
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 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
-9-
10
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 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
-10-
11
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 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
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 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
-11-
12
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 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
-12-
13
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 Xxxxxx Xxxxxxx & Co.
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
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,
-13-
14
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 Shares 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 Shares 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 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 Shares.
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 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.
-14-
15
(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) 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.
-15-
16
(v) 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.
This Agreement has been duly authorized, executed and
delivered by the Company.
(vii) 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.
(viii) 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.
(ix) 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 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.
(x) 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
-16-
17
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.
(xi) 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.
(xii) 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.
(xiii) The Declaration has been duly qualified under
the 1939 Act.
(xiv) 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 1939 Act.
(xv) The Indenture has been duly 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.
-17-
18
(xvi) 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 Exception; and the Junior Subordinated
Notes conform to the description thereof in the Prospectus.
(xvii) Neither the Company nor the Trust is an "investment
company" or a company "controlled" by an "investment company"
within the meaning of the 0000 Xxx.
(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:
(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; the Trust is duly qualified
and in good standing as a foreign company in any other jurisdiction
in which such qualification is necessary, except to the extent that
the 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.
(ii) The Declaration has been duly authorized, executed and
delivered by the Company and the Trustees and is 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 and (subject to the terms of
the Declaration) fully paid and non-assessable 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
-18-
19
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) The Common Securities, the Preferred Securities and the
Declaration conform in all material respects to all statements
relating thereto contained in the Prospectus.
(vi) 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.
(vii) This Agreement has been duly authorized,
executed and delivered by the Trust.
(viii) 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, 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 under (A) any contract, indenture,
mortgage, loan agreement, note, lease or any other agreement or
instrument known to such counsel to which the Trust is a party or by
which it may be bound or to which any of its properties may be
subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a material adverse
effect on the condition (financial or otherwise) or business affairs
of the Trust, (B) any existing applicable law, rule or regulation
(other than the securities or blue sky laws of the various states,
as to which such counsel need express no opinion) or (C) any
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 or any of its properties.
-19-
20
(3) The favorable opinion, dated as of Closing Time, of Morris,
Nichols, Arsht and Xxxxxxx, counsel for Wilmington Trust Company, 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:
(i) Wilmington Trust Company is a Delaware banking
corporation with trust powers, duly organized, validly existing and
in good standing under the laws of the State of Delaware 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 Articles of Organization 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 Delaware 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
-20-
21
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 Xxxxxxxx, Xxxxxx & Finger,
P.A., counsel for the Offerors, which shall be delivered in accordance
with Section 8(b)(1) 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.
(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
-21-
22
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 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
-22-
23
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 preliminary and supplemental
Blue Sky Memoranda and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering the Preferred
Securities; (v) the registration of the Securities under the Exchange Act and
the listing of the Securities on the New York Stock Exchange; (vi) the
registration or qualification of the 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 preliminary and supplemental Blue Sky Memoranda 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 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
-23-
24
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 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. Information Furnished by the Underwriters. The statements set forth
in the last paragraph on the cover page, the stabilization legend on the second
page, and the statements in the second paragraph under the caption
"Underwriting" in any preliminary prospectus and the Prospectus, constitute the
only information furnished by or on behalf of the Underwriters through you as
such information is referred to in Sections 6(b) and 7 hereof.
13. 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 Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Finance.
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.
-24-
25
14. 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.
-25-
26
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 IV
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.
Xxxxxx Xxxxxxx & Co. Incorporated
[Names of Co-Managers]
By: XXXXXX XXXXXXX & CO. INCORPORATED
By:
-----------------------------------
-26-
27
SCHEDULE I
HOUSEHOLD CAPITAL TRUST IV
% Trust Preferred Securities
----
Number of
Underwriter Preferred Securities
----------- --------------------
Xxxxxx Xxxxxxx & Co.
Incorporated.......
--------------------
Total....................
====================
-27-
