Exhibit 1.1
UNDERWRITING AGREEMENT
Dated: [ ] ___, 200__
NATIONAL CITY CORPORATION
(a Delaware corporation)
Senior Debt Securities
Subordinated Debt Securities
Preferred Stock
Depositary Shares Representing Preferred Stock
UNDERWRITING AGREEMENT
[ ], 200__
To the: [Underwiter[s] named in Exhibit A]
[Representative[s] of the Underwriters named in Exhibit A]
Ladies and Gentlemen:
National City Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time, either together or separately,
certain of its (i) senior debt securities (the "Senior Securities") and/or (ii)
subordinated debt securities (the "Subordinated Securities," and together with
the Senior Securities, the "Debt Securities"), and/or (iii) preferred stock (the
"Preferred Stock"), and/or (iv) depositary shares which represent fractional
interests in the Preferred Stock (the "Depositary Shares"), in one or more
offerings on terms determined at the time of sale and set forth in a terms
agreement in the form of Exhibit A hereto (the "Terms Agreement"). The Debt
Securities and Preferred Stock may be convertible into the Company's Common
Stock, with par value of $4.00 per share (the "Common Stock," and together with
the Preferred Stock, the "Capital Shares"), as set forth in the applicable
Terms Agreement relating thereto.
The Senior Securities are to be issued under an Indenture to be dated
as of [ ], 2003 (as it may be amended or supplemented from time to
time, the "Senior Indenture"), between the Company and The Bank of New York
("BONY"), as trustee (the "Senior Trustee"). The Subordinated Securities are to
be issued under an Indenture to dated as of [ ], 2003 (as it may be
amended or supplemented from time to time, the "Subordinated Indenture"),
between
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the Company and BONY, as trustee (the "Subordinated Trustee", and together with
the Senior Trustee, the "Trustees"). The Senior Indenture and the Subordinated
Indenture are collectively referred to herein as the "Indentures." The Senior
Securities and the Subordinated Securities may have varying designations,
maturities, rates and times of payment of interest, if any, selling prices,
redemption terms, if any, exchange terms, if any, conversion terms and other
specific terms as set forth in the applicable Terms Agreement relating thereto.
Each issue of Preferred Stock may vary as to the specific number of
shares, title, stated value and liquidation preference, issuance price, dividend
rate or rates (or method of calculation), dividend payment dates, redemption or
sinking fund requirements, conversion and exchange provisions and any other
variable terms as set forth in the applicable Terms Agreement relating to such
Preferred Stock. If the Preferred Stock is to be offered in the form of
Depositary Shares, the Preferred Stock will, when issued, be deposited by the
Company against delivery of depositary receipts (the "Depositary Receipts") to
be issued under a deposit agreement (the "Deposit Agreement"), to be entered
into among the Company, a depositary institution (the "Depositary") and the
holders from time to time of the Depositary Receipts issued thereunder. The
Depositary Receipts will evidence the Depositary Shares and each Depositary
Share will represent a fractional interest (as set forth in the applicable Terms
Agreement) in a Share of a particular series of Preferred Stock. The Preferred
Stock, together, if applicable, with the Depositary Shares are hereinafter
referred to as the "Shares".
The Debt Securities and Shares, to be issued and sold as specified in
the applicable Terms Agreement, shall collectively be referred to herein as the
"Offered Securities". As used herein, unless the context otherwise requires, the
term "Underwriters" shall mean the firm or firms specified as Underwriter or
Underwriters in the applicable Terms Agreement relating to the Offered
Securities and the term "you" shall mean the Underwriter or Underwriters, if no
underwriting syndicate is purchasing the Offered Securities, or the
representative or representatives of the Underwriters, if an underwriting
syndicate is purchasing the Offered Securities, as specified in the applicable
Terms Agreement.
Whenever the Company determines to make an offering of Offered
Securities, the Company will enter into a Terms Agreement providing for the sale
of the applicable Offered Securities to, and the purchase and offering thereof
by, the Underwriters. The Terms Agreement relating to the Offered Securities
shall specify whether Senior Securities, Subordinated Securities, Preferred
Stock or Depositary Shares are to be issued, the names of the Underwriters
participating in such offering (subject to substitution as provided in Section
10 hereof), the principal amount or number of Offered Securities which each such
Underwriter severally agrees to purchase, the price at which the Offered
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, the time and place of delivery and payment and other
specific terms. The Terms Agreement may take the form of an exchange of any
standard form of written telecommunication between you and the Company. Each
offering of Offered Securities will be governed by this Agreement, as
supplemented by the applicable Terms Agreement, and this Agreement and such
Terms Agreement shall inure to the benefit of and be binding upon the Company
and each Underwriter participating in the offering of such Offered Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-[ ]), including a prospectus, relating to the Offered Securities and the
offering thereof from time to time in
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accordance with Rule 415 under the Securities Act of 1933, as amended (the "1933
Act") . Such registration statement has been declared effective by the
Commission. As provided in Section 3(a), a prospectus supplement reflecting the
terms of the applicable Offered Securities, the terms of the offering thereof
and the other matters set forth therein will be prepared and filed pursuant to
Rule 424 under the 1933 Act in connection with any offering of Offered
Securities. Any such prospectus supplement, in the form first filed after the
date of the applicable Terms Agreement pursuant to Rule 424, is herein referred
to as the "Prospectus Supplement." Such registration statement, as amended at
the date of the applicable Terms Agreement, including the exhibits thereto and
the documents incorporated by reference therein, is herein called the
"Registration Statement," and the basic prospectus included therein relating to
all offerings of securities under the Registration Statement, as supplemented by
the Prospectus Supplement, is herein called the "Prospectus," except that, if
such basic prospectus is amended or supplemented on or prior to the date on
which the Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the basic prospectus as so amended or supplemented
and as supplemented by the Prospectus Supplement, in either case including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act and the rules and regulations of the Commission thereunder (the "1933
Act Regulations") (the "Rule 430A Information") or Rule 434(d) of the 1933 Act
Regulations (the "Rule 434 Information") and the documents filed by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act"), that are incorporated by reference therein; provided that, if
the Company files a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration Statement"),
then, after such filing, all references to "Registration Statement" shall also
be deemed to include the Rule 462(b) Registration Statement; and PROVIDED,
FURTHER, that if the Company elects to rely upon Rule 434 of the 1933 Act
Regulations, then all references to "Prospectus" shall also be deemed to include
the final or preliminary prospectus and the applicable term sheet or abbreviated
term sheet (the "Term Sheet") , as the case may be, in the form first furnished
to the Underwriters by the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references in this Agreement to the date of the Prospectus
shall mean the date of the Term Sheet. A "preliminary prospectus" shall be
deemed to refer to any prospectus used before the Registration Statement became
effective and any prospectus that omitted, as applicable, the Rule 430A
Information, the Rule 434 Information or other information to be included upon
pricing in a form of prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations, that was used after such effectiveness and
prior to the execution and delivery of the applicable Terms Agreement. For
purposes of this Agreement, all references to the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX")
Section 1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents and
warrants to each of the Underwriters as of the date hereof, as of the date of
each Terms Agreement and as of the Closing Time referred to in Section 2(b)
that:
(i) The Company meets the requirements for use of
Form S-3 under the 1933 Act. Each of the Registration
Statement, including any Rule 462(b) Registration Statement,
has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act and no proceedings for that
purpose have been instituted or
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are pending or threatened by the Commission, and any request
on the part of the Commission for additional information has
been complied with.
(ii) As of the effective date of the Registration
Statement and any amendment thereto and as of the applicable
filing date as to any Prospectus Supplement and any amendment
thereto, (A) the Registration Statement and any amendments and
supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933
Act Regulations, the Trust Indenture Act of 1939, as amended
(the "1939 Act") , and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") (B)
neither the Registration Statement nor any amendment or
supplement thereto contained or will contain an untrue
statement of a material fact or omitted or will omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading; and (C) neither
the Prospectus nor any amendment or supplement thereto
included or will include an untrue statement of a material
fact or omitted or will omit 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, except that this representation and warranty does
not apply to statements or omissions made in reliance upon and
in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through you
expressly for use in the Registration Statement or the
Prospectus. At the Closing Time, the applicable Indenture, if
any, will comply in all material respects with the
requirements of the 1939 Act and the 1939 Act Regulations.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied when so filed in all material respects
with the 1933 Act Regulations and each preliminary prospectus
and the Prospectus delivered to the Underwriters for use in
connection with any offering hereunder was substantively
identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(iii) The documents incorporated by reference or
deemed to be incorporated in the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, at the time they were or
hereafter are filed with the Commission, complied in all
material respects with the requirements of the 1934 Act, and
the rules and regulations of the Commission thereunder (the
"1934 Act Regulations") and, when read together and with the
other information in the Prospectus, as of the applicable
effective date of the Registration Statement and any amendment
thereto, did not 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 in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(iv) 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.
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(v) This Agreement has been duly authorized, executed
and delivered by the Company; and upon execution and delivery
of each Terms Agreement by the Company, such Terms Agreement
shall have been duly authorized, executed and delivered by the
Company.
(vi) The financial statements incorporated by
reference in the Registration Statement present fairly the
consolidated financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the
consolidated results of their operations and cash flows 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 ("GAAP") applied on a consistent basis; and the
supporting schedules included in the Registration Statement
present fairly in accordance with GAAP the information
required to be stated therein.
(vii) 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, business affairs or business
prospects of the Company and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary course
of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and
its subsidiaries, considered as one enterprise, and (C) except
for regular quarterly dividends on the Company's Common Stock,
[the Company's Preferred Stock, stated value $50 per share,]
and the Company's repurchase of its Common Stock [and
Preferred Stock] pursuant to its publicly announced stock
repurchase programs, there has been no dividend or
distribution of any kind declared, paid or made by the Company
on any class of its Capital Stock.
(viii) 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 Registration
Statement; the Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended
(the "Bank Holding Company Act"); and 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, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would
not have a Material Adverse Effect.
(ix) Each "significant subsidiary" of the Company (as
such term is defined in Rule 1-02 of Regulation S-X under the
1933 Act Regulations) (a "Significant Subsidiary") has been
duly organized 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 is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such
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qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would
not have a Material Adverse Effect; except as otherwise stated
in the Registration Statement, all of the issued and
outstanding capital stock of each such Significant Subsidiary
has been duly authorized and validly issued, is fully paid and
non-assessable (subject to the provisions of Section 55 of
Title 12 of the United States Code in the case of Significant
Subsidiaries which are national banking associations) and,
except for director's qualifying shares, is owned by the
Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(x) The Offered Securities conform in all material
respects to the summary descriptions thereof contained or
incorporated by reference in the Prospectus and such summary
descriptions conform to the rights set forth in the
instruments defining the same.
(xi) The authorized, issued and outstanding capital
stock of the Company set forth in the Prospectus in the
second paragraph under each of "Description of Preferred
Stock" and "Description of Common Stock" (except for
subsequent issuances, if any, pursuant to reservations or
agreements referred to in the Prospectus) is accurate as of
the date indicated in such section; the shares of issued and
outstanding Common Stock have been duly authorized and validly
issued and are fully paid and non-assessable; the Common Stock
conforms in all material respects to all statements relating
thereto contained in the Registration Statement.
(xii) If the Offered Securities include Preferred
Stock, such Preferred Stock shall, on the date of the Terms
Agreement relating to such Offered Securities, be duly
authorized and, when such Preferred Stock is duly executed and
delivered and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such Preferred
Stock will have been validly issued, fully paid and
non-assessable; no holder thereof will be subject to personal
liability by reason of being such a holder; such Preferred
Stock will not be subject to the preemptive rights of any
stockholder of the Company; and all corporate action required
to be taken for the authorization, issue and sale of such
Preferred Stock has been, or at the Closing Time will be,
validly and sufficiently taken; and, if the Offered Securities
include Preferred Stock that is to be represented by
Depositary Shares, then, upon deposit by the Company of such
Preferred Stock with the Depositary pursuant to the Deposit
Agreement and the execution of the Depositary of the
Depositary Receipts evidencing the Depositary Shares, such
Depositary Shares shall represent legal and valid interests in
such Preferred Stock; and, if the Offered Securities include
Preferred Stock that is convertible into Common Stock
("Convertible Preferred Stock"), then such Preferred Stock
shall be convertible into Common Stock in accordance with its
terms and the terms of a Convertible Preferred Stock
prospectus supplement (a "Convertible Prospectus Supplement").
(xiii) If the Offered Securities include Debt
Securities, such Debt Securities shall, on the date of the
Terms Agreement relating to such Debt Securities, be duly
authorized for issuance and sale pursuant to this Agreement
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and, when such Debt Securities are duly executed,
authenticated and delivered pursuant to the provisions of this
Agreement and the applicable Indenture against payment of the
consideration therefor in accordance with this Agreement and
the applicable Terms Agreement, such Debt Securities will be
valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance,
or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles (regardless
of whether such enforceability is considered in a proceeding
in equity or at law) and will be entitled to the benefits of
the applicable Indenture; and the Indentures conform in all
material respects to all statements relating thereto contained
in the Prospectus; and, if the Offered Securities include Debt
Securities that are convertible into Common Stock
("Convertible Debt Securities"), then such Debt Securities
shall be convertible into Common Stock in accordance with
their terms and the terms of a Convertible Prospectus
Supplement.
(xiv) If applicable, the shares of Common Stock
issuable upon conversion of any issue of Convertible Debt
Securities or Convertible Preferred Stock have been duly and
validly authorized and, prior to the issuance of such issue,
reserved for issuance upon such conversion by all necessary
corporate action and such shares of Common Stock, when issued
upon such conversion, will be duly and validly issued and will
be fully paid and non-assessable, and the issuance of such
shares upon such conversion will not be subject to preemptive
rights.
(xv) If the Offered Securities include Debt
Securities, the applicable Indenture has been duly authorized
by the Company, will be substantially in the form filed as an
exhibit to the Registration Statement and, when duly executed
and delivered by the Company and the Trustee, will constitute
a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles (regardless
of whether such enforceability is considered in a proceeding
in equity or at law); and the summary descriptions of the
applicable Indenture set forth in the Prospectus conforms in
all material respects to the provisions contained in the
applicable Indenture.
(xvi) If the Offered Securities include Depositary
Shares, the Deposit Agreement will have been duly authorized,
executed and delivered by the Company prior to the issuance of
the Offered Securities, and, when duly executed and delivered
by the Company and the Depositary, will constitute a valid and
binding obligation of the Company enforceable in accordance
with its terms, except as enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other laws relating to or affecting
creditors' rights generally and by general equity principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
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(xvii) If the Offered Securities include Depositary
Shares, upon execution and delivery thereof pursuant to the
terms of the Deposit Agreement, the persons in whose names the
Depositary Receipts are registered will be entitled to the
rights specified therein and in the Deposit Agreement, except
as enforceability of such rights may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
and other laws relating to or affecting creditors' rights
generally and by general equity principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(xviii) Neither the Company nor any Significant
Subsidiary is in violation of its charter or in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any material
contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or any of
its Significant Subsidiaries 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 of any of its Significant Subsidiaries may
be subject; and the execution, delivery and performance of
this Agreement, the applicable Terms Agreement, the Indentures
and the Deposit Agreement by the Company, the issuance and
delivery of the Offered Securities, the consummation by the
Company of the transactions contemplated in this Agreement,
the applicable Terms Agreement and in the Registration
Statement, and compliance by the Company with the terms of
this Agreement, the applicable Terms Agreement, Indentures and
the Deposit Agreement do not and will not conflict with or
constitute a breach of or default under, or result in the
creation or imposition of any material lien, charge or
encumbrance upon any material property or assets of the
Company or any of its Significant Subsidiaries pursuant to any
material contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the Company or
any of its Significant Subsidiaries 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 its Significant
Subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the
Company or any applicable law, administrative regulation or
administrative or court decree.
(xix) No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency is necessary
or required for the performance by the Company of its
obligations hereunder, in connection with the offering,
issuance or sale of the Offered Securities hereunder or the
consummation of the transactions contemplated by this
Agreement or for the due execution, delivery or performance of
the Indentures or the Deposit Agreement by the Company, except
such as have been already obtained or as may be required under
the 1933 Act or the 1933 Act Regulations (which requirements
have been met) or state securities laws and except for the
qualification of the Indentures under the 1939 Act.
(xx) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the
Registration Statement
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(other than as disclosed therein), or which might result in a
Material Adverse Effect, or which might materially and
adversely affect the properties or assets of the Company and
its subsidiaries considered as one enterprise, or, which might
materially or adversely affect the consummation of this
Agreement or any Terms Agreement; all pending legal or
governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in
the Registration Statement, including ordinary routine
litigation incidental to the business of the Company or any
subsidiary, are considered in the aggregate, not material; and
there are no contracts or documents of the Company or any
Significant Subsidiary which are required to be filed or
incorporated by reference as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which
have not been so filed or incorporated by reference.
(xxi) The Company and its Significant Subsidiaries
possess such certificates, authorities or permits issued by
the appropriate state, federal or foreign regulatory agencies
or bodies material to the conduct of the business now operated
by them, and neither the Company nor any of its Significant
Subsidiaries 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 or which is
reasonably likely to affect the business prospects of the
Company and its subsidiaries considered as one enterprise.
(xxii) The Company has not taken and will not take,
directly or indirectly, any action designed to, or that might
be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Offered Securities.
(b) Any certificate signed by any duly authorized officer of
the Company or any Significant Subsidiary and delivered to you or to
counsel for the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered
thereby.
Section 2. PURCHASE AND SALE. The several commitments of the Underwriters to
purchase Offered Securities pursuant to any Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth.
(a) Payment of the purchase price for, and delivery of, any
Offered Securities to be purchased by the Underwriters pursuant to the
applicable Terms Agreement shall be made at the office of Sidley Xxxxxx
Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as shall be agreed upon by you and the Company in the
applicable Terms Agreement, at 9:00 A.M., New York City time, on the
third (fourth, if the pricing occurs after 4:30 P.M., New York City
time, on any given day) business day (unless postponed in accordance
with the provisions of Section 10) following the date of the applicable
Terms Agreement or at such other time as shall be agreed upon by you
and the Company (each such time and date being referred to as a
"Closing Time"). Unless otherwise specified in the applicable Terms
Agreement, payment shall be made by wire transfer in
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immediately available funds to the account so specified to the
Underwriters against delivery to you for the respective accounts of the
Underwriters of the Offered Securities to be purchased by them. Such
Offered Securities, certificates for such Offered Securities or
Depositary Receipts evidencing the Depositary Shares, as applicable,
shall be in such denominations and registered in such names as you may
request in writing at least one full business day prior to the
applicable Closing Time. Such Offered Securities, certificates or
Depositary Receipts, as applicable, will be made available for
examination and packaging by you not later than 10:00 A.M. on the
business day prior to Closing Time.
Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) (i) If reasonably requested by you in connection with the
offering of the Offered Securities, the Company will prepare a
preliminary prospectus supplement containing such information
concerning the Offered Securities as you and the Company deem
appropriate and (ii) promptly following the execution of each Terms
Agreement, the Company will prepare a Prospectus Supplement that
complies with the 1933 Act and the 1933 Act Regulations and that sets
forth the number or principal amount of Offered Securities covered
thereby, the names of the Underwriters participating in the offering
and the number or principal amount of Offered Securities which each
severally has agreed to purchase, the name of each Underwriter, if any,
acting as representative in connection with the offering, the price at
which the Offered Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the selling
concession and reallowance, if any, and such other information
concerning the Offered Securities as you and the Company deem
appropriate in connection with the offering of the Offered Securities.
The Company will promptly transmit copies of the Prospectus Supplement
to the Commission for filing pursuant to Rule 424 under the 1933 Act
and will furnish to the Underwriters named therein as many copies of
any preliminary prospectus supplement, the Prospectus and the
Prospectus Supplement as you shall reasonably request. If the Company
elects to rely on Rule 434 under the 1933 Act Regulations, the Company
will prepare an abbreviated term sheet that complies with the
requirements of Rule 434 under the 1933 Act Regulations (a "Rule 434
Prospectus") and will provide the Underwriters with copies of the form
of Rule 434 Prospectus, in such number as the Underwriters may
reasonably request, and file or transmit for filing with the Commission
the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act
Regulations in accordance with Rule 424(b) of the 1933 Act Regulations
by the close of business in New York City on the business day
immediately succeeding the date of the applicable Terms Agreement.
(b) The Company will notify each of you immediately, 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 mailing or the delivery or XXXXX
transmission to the Commission for filing of any supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act, (iii)
of the receipt of any comments from the Commission, (iv) 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 (v) 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 Company 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.
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(c) The Company will give you notice of its intention to file
or prepare any amendment to the Registration Statement (including any
filing under Rule 462(b)), any Term Sheet or any amendment, supplement
or revision to the Prospectus, whether pursuant to the 1934 Act, the
1933 Act or otherwise, and will furnish you with copies of any such
amendment or supplement or other document proposed to be filed a
reasonable amount of time prior to such proposed filing and will not
file any such amendment or supplement or other document or use any such
prospectus to which you or counsel shall reasonably object.
(d) The Company will deliver to you as many signed copies of
the registration statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein) as you may reasonably request and will also deliver
to you a conformed copy of the Registration Statement and of each
amendment thereto for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be substantively identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(e) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Offered Securities
any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel
for the Company, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser or if it shall be
necessary, in the opinion of either such counsel, at any such time to
amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, such amendment or supplement, whether by documents pursuant
to the 1934 Act or otherwise, as may be necessary to correct such
untrue statement or omission to make the Registration Statement or the
Prospectus comply with such requirements.
(f) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 0000 Xxx.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Offered Securities and, if applicable, the
Common Stock to be issued upon conversion of Convertible Debt
Securities or Convertible Preferred Stock, for offering and sale under
the applicable securities laws of such states and other jurisdictions
as you may designate; PROVIDED, HOWEVER, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified and will not be obligated to execute a
general consent to service of process in any state. In each
jurisdiction in which the Offered Securities and, if applicable, the
Common Stock, have been so qualified, the Company will file such
statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for as long as
may be required for the distribution of the Offered Securities. The
Company will promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Offered Securities or, if applicable, the Common Stock into which
Convertible Debt
11
Securities or Convertible Preferred Stock are convertible, for sale in
any such state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (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.
(i) If and to the extent specified in the applicable Terms
Agreement, the Company will use its best efforts to effect the listing
of the Offered Securities on the New York Stock Exchange by the Closing
Time with respect to the applicable Terms Agreement.
(j) For such period of time as is specified in the applicable
Terms Agreement, commencing on the date of such Terms Agreement, the
Company will not, without the prior written consent of the Underwriter,
directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any Offered Securities or, if such
Terms Agreement relates to Convertible Debt Securities or Convertible
Preferred Stock, any Common Stock or any security convertible into
Common Stock (except for Common Stock issued pursuant to reservations
or agreements or any employee stock option plan, stock ownership plan
or dividend reinvestment plan).
Section 4. PAYMENT OF EXPENSES. The Company will pay all expenses incident to
the performance of its obligations under this Agreement and any applicable Terms
Agreement, including (a) the printing and filing of the Registration Statement,
as originally filed and of each amendment thereto, (b) the reproduction and
delivery of this Agreement and each Terms Agreement, (c) the preparation,
issuance and delivery of the certificates for Offered Securities to the
Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Offered Securities under securities
laws in accordance with Section 3(g) hereof, including filing fees and fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and the Legal Investment
Survey (copies of which shall be furnished to the Company promptly after
preparation by such counsel), (f) the printing and delivery to the Underwriters
of copies of the Registration Statement and all amendments thereto, of each
preliminary prospectus, and of the Prospectus and any amendments or supplements
thereto, (g) the reproduction and delivery to the Underwriters of copies of the
Indentures, if applicable, and the Blue Sky Survey and any Legal Investment
Survey, (h) the fees of rating agencies, (i) the fees and expenses, if any,
incurred with respect to any filing with the National Association of Securities
Dealers, Inc. ("NASD"), and (j) the fees and expenses, if applicable, incurred
in connection with the listing of the Offered Securities and the Common Stock
issuable upon conversion of any Convertible Debt Securities or Convertible
Preferred Stock.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 5 or Section 9(a) (i) or (iv) hereof, the Company shall
reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for such Underwriters.
12
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Offered Securities pursuant to any
Terms Agreement are subject to the accuracy of the representations and
warranties of the Company herein contained, to the accuracy of the statements of
the Company's officers made in any certificate furnished pursuant to the
provisions hereof, to the performance by the Company of all of its covenants and
other obligations hereunder, and to the following further conditions:
(a) At the applicable Closing Time:
(i) The Registration Statement, including any Rule
462(b) Registration Statement, has become effective under the
1933 Act. 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. Any request on the part of the Commission for
additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description
of the Offered Securities, the specific method of distribution
and similar matters shall have been filed with the Commission
in accordance with Rule 424(b) (1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing
such information shall have been filed and declared effective
in accordance with the requirements of Rule 430A), or, if the
Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance with
Rule 424 (b)(7);
(ii) The rating assigned by any nationally recognized
statistical rating organization to any debt securities or
preferred stock of the Company as of the date of the
applicable Terms Agreement shall not have been lowered since
the execution of such Terms Agreement nor shall any such
rating organization have publicly announced that it has placed
any debt securities or preferred stock of the Company on what
is commonly termed a "watch list" for possible downgrading;
and
(iii) There shall not have come to the attention of
such of you as may be named in the applicable Terms Agreement
any facts that would cause such of you to believe that the
Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to a
purchaser of the Offered Securities, contained an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(b) At the applicable Closing Time you shall have received:
(i) The favorable opinion, dated as of the applicable
Closing Time, of Xxxxx X. Xxxxxxx, Executive Vice President,
General Counsel and Secretary of the Company, or such other
counsel for the Company satisfactory to such of you as may be
named in the applicable Terms Agreement, in form and substance
satisfactory to such of you as may be named in the applicable
Terms Agreement to the effect that:
13
(A) If the Offered Securities include Debt
Securities, the applicable Indenture has
been duly and validly authorized, executed
and delivered by the Company and constitutes
the valid and binding agreement of the
Company, enforceable in accordance with its
terms, except as enforcement thereof may be
limited by bankruptcy, reorganization,
moratorium, fraudulent conveyance,
insolvency or other laws relating to or
affecting enforcement of creditors' rights
or by general equity principles (regardless
of whether such enforceability is considered
in a proceeding in equity or at law);
(B) If the Offered Securities include Debt
Securities, such Debt Securities are in the
form contemplated by the applicable
Indenture, and have been duly and validly
authorized by all necessary corporate action
and, when executed and authenticated as
specified in the applicable Indenture and
delivered against payment pursuant to this
Agreement, as supplemented by the applicable
Terms Agreement, will be valid and binding
obligations of the Company enforceable in
accordance with their terms, except as
enforcement thereof may be limited by
bankruptcy, reorganization, moratorium,
fraudulent conveyance, insolvency or other
laws relating to or affecting enforcement of
creditors' rights or by general equity
principles (regardless of whether such
enforceability is considered in a proceeding
in equity or at law), and except further as
enforcement thereof may be limited by
requirements that a claim (or a foreign
currency judgment in respect of such claim)
be converted into United States dollars at a
rate of exchange prevailing on a date
determined pursuant to applicable law, and
will be entitled to the benefits of the
applicable Indenture;
(C) If the Offered Securities include Preferred
Stock, such shares of Preferred Stock have
been duly and validly authorized by all
necessary corporate action, and when
executed and delivered and issued and paid
for in accordance with this agreement, as
supplemented by the applicable Terms
Agreement, will be validly issued, fully
paid and non-assessable and the issuance of
such shares of Preferred Stock will not be
subject to preemptive rights;
(D) The Offered Securities and, if applicable,
the Indenture, the Common Stock and the
Deposit Agreement conform in all material
respects to the descriptions thereof in the
Prospectus and the applicable Prospectus
Supplement;
(E) If the Offered Securities include Debt
Securities, the applicable Indenture is
qualified under the 1939 Act;
(F) If the Offered Securities include
Convertible Debt Securities or Convertible
Preferred Stock, the shares of Common Stock
issuable upon conversion of such Convertible
Debt Securities or Convertible Preferred
Stock have been duly authorized and reserved
for issuance upon such conversion by all
necessary corporate action and such shares,
when issued upon such conversion will be
duly and validly issued and will be fully
paid and non-assessable, and the issuance of
such shares upon such conversion will not be
subject to preemptive rights;
14
(G) If the Offered Securities include Depositary
Shares, the applicable Deposit Agreement has
been duly and validly authorized, executed
and delivered by the Company and constitutes
the valid and binding agreement of the
Company, enforceable in accordance with its
terms, except as enforcement thereof may be
limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent
conveyance or other laws relating to or
affecting enforcement of creditors' rights
or by general equity principles (regardless
of whether such enforceability is considered
in a proceeding in equity or at law);
(H) If the Offered Securities include Depositary
Shares, such Depositary Shares are in the
form contemplated by the applicable Deposit
Agreement, and have been duly and validly
authorized by all necessary corporate action
and, when executed and authenticated as
specified in the applicable Deposit
Agreement and delivered against payment
pursuant to this Agreement, as supplemented
by the applicable Terms Agreement, will be
valid and binding obligations of the Company
enforceable in accordance with their terms,
except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other
laws relating to or affecting enforcement of
creditors' rights or by general equity
principles (regardless of whether such
enforceability is considered in a proceeding
in equity or at law), and except further as
enforcement thereof may be limited by
requirements that a claim (or a foreign
currency judgment in respect of such claim)
be converted into United States dollars at a
rate of exchange prevailing on a date
determined pursuant to applicable law, and
will be entitled to the benefits of the
applicable Deposit Agreement;
(I) This Agreement and the applicable Terms
Agreement have been duly authorized,
executed and delivered by the Company;
(J) The Registration Statement, including any
Rule 462(b) Registration Statement, the Rule
430A Information and the Rule 434
Information, as applicable, the Prospectus,
excluding the documents incorporated by
reference therein, and each amendment or
supplement to the Registration Statement and
Prospectus, excluding the documents
incorporated by reference therein, as of
their respective effective or issue dates
(other than financial statements and
supporting schedules included therein or
omitted therefrom, and the Trustee's
Statement of Eligibility on Form T-l ("Form
T-l") as to which such counsel need not
express an opinion) complied as to form in
all material respects with the requirements
of the 1933 Act and the 1933 Act
Regulations;
(K) No authorization, approval, consent, order
or decree of any court or governmental
authority or agency is required in
connection with
15
the sale of the Offered Securities under
this Agreement and the applicable Terms
Agreement other than as may be required
under state securities laws;
(L) The Company has been duly incorporated and
is validly existing as a corporation in good
standing under the laws of the State of
Delaware;
(M) 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;
(N) The Company is duly registered as a bank
holding company under the Bank Holding
Company Act; to the best knowledge and
information of such counsel, after due
investigation, 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
have a Material Adverse Effect;
(O) The authorized, issued and outstanding
capital stock of the Company is as set forth
in the Prospectus in the [first] paragraph
under each of "Description of Preferred
Stock" and "Description of Common Stock"
(except for subsequent issuances, if any,
pursuant to reservations or agreements) and
the shares of issued and outstanding Common
Stock have been duly authorized and validly
issued and are fully paid and nonassessable;
and the Common Stock of the Company conforms
to all statements relating thereto contained
in the Registration Statement;
(P) Each Significant Subsidiary of the Company
has been duly incorporated and is validly
existing as a corporation in good standing
under the laws of the jurisdiction of its
incorporation, continues to hold a valid
certificate to do business as such and has
full power and authority to conduct business
as such, 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
knowledge and information of such counsel,
after due investigation, is duly qualified
as a foreign corporation to transact
business and is in good standing in each
jurisdiction in which such qualification is
required, whether by reason of the ownership
or leasing of property or the conduct of
business, except where the failure to so
qualify or be in good standing would not
have a Material Adverse Effect; and all of
the issued and outstanding capital stock of
each such Significant Subsidiary has been
duly authorized and validly issued, is fully
paid and non-assessable (subject to the
provisions of Section 55 of Title 12 of the
United States Code in the case of
Significant Subsidiaries which are national
banking associations) and, to the best
knowledge and
16
information of such counsel, after due
investigation, is owned by the Company,
directly or through subsidiaries, free and
clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity;
(Q) The Registration Statement, including any
Rule 462(b) Registration Statement, is
effective under the 1933 Act; any required
filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and
within the time period required by Rule 424
(b); and, to the best knowledge and
information of such counsel, after due
investigation, no stop order suspending the
effectiveness of the Registration Statement
has been issued under the 1933 Act or
proceedings therefor initiated or threatened
by the Commission;
(R) Each document filed pursuant to the 1934 Act
(other than the financial statements and
supporting schedules included therein or
omitted therefrom, as to which such counsel
need express no opinion) and incorporated by
reference in the Prospectus complied when so
filed as to form in all material respects
with the 1934 Act and the rules and
regulations thereunder;
(S) To the best knowledge and information of
such counsel, after due investigation, there
are no legal or governmental proceedings
pending or threatened which are required to
be disclosed in the Registration Statement,
other than those disclosed therein, and all
pending legal or governmental proceedings to
which the Company or any subsidiary of the
Company is a party or to which any of their
property or assets is subject which are not
described in the Registration Statement,
including ordinary routine litigation
incidental to the business of the Company or
any such subsidiary, are not material;
(T) The information in the Prospectus under the
captions "Description of Debt Securities,"
"Senior Securities", "Subordinated
Securities", "Description of Preferred
Stock", "Description of Depositary Shares"
and "Description of Common Stock" and, with
respect to the Prospectus Supplement
relating to the Offered Securities, any
further description with respect to such
Offered Securities and, to the extent that
such information constitutes matters of law,
summaries of legal matters, documents or
proceedings, or legal conclusions, has been
reviewed by such counsel and is correct in
all material respects;
(U) To the best knowledge and information of
such counsel, after due investigation, there
are no material contracts, indentures,
deposit agreements, 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
17
reference as exhibits thereto, the
descriptions thereof or references thereto
are correct, and no material default exists
in the due performance or observance of any
material obligation, agreement, covenant or
condition contained in any contract,
indenture, deposit agreement, mortgage, loan
agreement, note, lease or other instrument
so described, referred to, or filed or
incorporated by reference;
(V) To the best knowledge and information of
such counsel, after due investigation, the
execution and delivery of this Agreement and
the applicable Terms Agreement (and, if
applicable, the Indenture and Deposit
Agreement) by the Company and the
consummation by the Company of the
transactions contemplated herein and
therein, do not 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
its Significant Subsidiaries pursuant to,
any material contract, indenture, deposit
agreement, mortgage, loan agreement, note,
lease or other instrument to which the
Company or any of its Significant
Subsidiaries 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 its Significant Subsidiaries is subject,
nor will such action result in any violation
of the provisions of the charter or by-laws
of the Company or any applicable law, or of
any judgment, order or decree of any
government, governmental instrumentality or
court, domestic or foreign, having
jurisdiction over the Company or any
Significant Subsidiary or any of its
properties;
(W) If applicable, the Depositary Receipts
issued under and in accordance with the
provisions of the Deposit Agreement to
evidence the Depositary Shares will be
validly issued and will entitle the holders
thereof to the rights specified therein and
in the Deposit Agreement.
(ii) The favorable opinion of Sidley Xxxxxx Xxxxx &
Wood LLP, counsel for the Underwriters, with respect to the
matters set forth in [ ] inclusive and [ ] of subsection (b)
(i) of this Section; and
(iii) In giving their opinions required by
subsections (b) (i) and (b) (ii), respectively, of this
Section, the Company's counsel and Sidley Xxxxxx Xxxxx & Xxxx
LLP shall each additionally state that nothing has come to
their attention that would lead them to believe that the
Registration Statement (except for financial statements and
schedules and other financial data included or incorporated by
reference therein or omitted therefrom and the Form T-l, as to
which such counsel need make no statement) at the time it
became effective, or if an amendment to the Registration
Statement or an Annual Report on Form 10-K has been filed by
the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time
of the most recent
18
such filing, 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, as amended or supplemented
at the date of the applicable Terms Agreement and at Closing
Time, contains an untrue statement of material fact or omits
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.
(c) At the applicable Closing Time there shall not have been,
since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs or which is
reasonably likely to affect the business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, and you shall have received a
certificate of the Chairman or the President or the Deputy Chairman or
an Executive or Senior Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of such
Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties of the Company
contained in Section 1 hereof are true and correct with the same force
and effect as though expressly made at and as of such Closing Time,
(iii) the Company has complied with all agreements and satisfied all
conditions on its part to be complied with or satisfied at or prior to
such 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.
(d) At the time of the execution of this Agreement and at the
applicable Closing Time, you shall have received from Ernst & Young LLP
a letter dated such date, in form and substance satisfactory to you, to
the effect that (i) they are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of
the 1933 Act and the applicable published rules and regulations
thereunder; (ii) in their opinion the consolidated financial statements
and supporting schedules audited by them and included or incorporated
by reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the related published rules and regulations with respect
to registration statement Form S-3 and the 1934 Act and the 1934 Act
Regulations; (iii) based upon limited procedures set forth in detail in
such letter, nothing has come to their attention which causes them to
believe that (A) the unaudited financial statements and supporting
schedules of the Company and its subsidiaries included in the
Registration Statement and Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
1934 Act and the 1934 Act Regulations or are not fairly presented in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited financial
statements included in the Registration Statement, (B) at a specified
date not more than three days prior to the date of such letter, there
has been any change in the capital stock of the Company or any increase
in the consolidated long term debt of the Company and its subsidiaries
or any decrease in the total earning assets or total assets of the
Company and its subsidiaries, in each case as compared with the amounts
shown in the most recent balance sheet included in the Registration
Statement or, during the period from a specified date not more than
three days prior to the date of such letter, there were any decreases,
as compared with the corresponding period in the preceding year, in net
interest income, net interest
19
income after provision for loan loss, non-interest income, net income
or net income per share of the Company and its subsidiaries as compared
on the corresponding period in the preceding year except in all
instances for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and
(iv) in addition to the examination referred to in their opinions and
the limited procedures referred to in clause (iii) above, they have
carried out certain specified procedures, not constituting an audit,
with respect to certain amounts, percentages and financial information
which are included in the Registration Statement and Prospectus and
which are specified by you and have found such amounts, percentages and
financial information to be in agreement with the relevant accounting,
financial and other records of the Company and its subsidiaries
identified in such letter.
(e) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions
as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Offered Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company at or prior to the Closing Time in
connection with the authorization, issuance and sale of the Offered
Securities as herein contemplated shall be reasonably satisfactory in
form and substance to you and counsel for the Underwriters.
(f) If the NASD is required to pass upon the fairness and
reasonableness of the underwriting terms and arrangements, at the
applicable Closing Time, the NASD shall not have raised any objection
with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by such of you as may be named in such Terms Agreement by
notice to the Company at any time at or prior to the applicable Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof. Notwithstanding any such termination,
the provisions of Sections 6, 7 and 8 shall remain in effect.
Section 6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged
20
omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject
to Section 6(d) below) any such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by you), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above; PROVIDED,
HOWEVER, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company
by any Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), including
the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto); PROVIDED FURTHER,
that as to any preliminary prospectus, this indemnity
agreement shall not inure to the benefit of any Underwriter or
any person controlling that Underwriter on account of any
loss, claim, damage, liability or action arising from the sale
of Debt Securities to any person by that Underwriter if (i)
that Underwriter failed to send or give a copy of the
Prospectus (excluding the documents incorporated by reference
therein), as the same may be amended or supplemented, to that
person within the time required by the Securities Act and (ii)
the Company delivered to that Underwriter a sufficient number
of copies of the Prospectus pursuant to Section 3 (a) (1)
hereof, and the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission to state a
material fact in such preliminary prospectus was corrected in
the Prospectus.
(b) Insofar as this indemnity agreement may permit
indemnification for liabilities under the 1933 Act of any person who is
a partner of an Underwriter or who controls an underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and
who, at the date of this Agreement, is a director or officer of the
Company or controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, such indemnity agreement is
subject to the undertaking of the Company in the Registration Statement
under Item 17 thereof.
(i) Each Underwriter severally agrees to indemnify
and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of
Section
21
15 of the 1933 Act or Section 20 of the 1934 Act against any
and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information
furnished to the Company by such Underwriter through you
expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto)
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement.
(d) In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party;
PROVIDED, HOWEVER, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the defendants
(including any impleaded parties) in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have been advised by counsel that there may be one or more legal
defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying
party, or (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after receipt by the
indemnifying party of notice of the institution of such action, then,
in each such case, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right
to select separate counsel to defend such action on behalf of such
indemnified party or parties at the expense of the indemnifying party
or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and
approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified
party under this Section 6 for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i)
the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence or
(ii) the indemnifying party has authorized in writing the employment of
counsel for the indemnified party at the expense of the indemnifying
party.
(e) In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
22
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or
Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(i) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(e) effected without its
written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii)
such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the
date of such settlement.
Section 7. CONTRIBUTION. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Offered
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) 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 Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Debt
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the Offered Securities as set forth
on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
23
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
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 which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
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 Debt Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any 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.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Offered Securities set forth opposite
their respective names in the applicable Terms Agreement and not joint.
Section 8. REPRESENTATIONS WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement or any
Terms Agreement or contained in certificates of executive officers of the
Company submitted pursuant thereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person, or by or on behalf of the Company, and shall survive
delivery of the Offered Securities to the Underwriters.
Section 9. TERMINATION OF AGREEMENT.
(a) This Agreement may be terminated for any reason at any
time by either the Company or you upon the giving of 30 days' written
notice of such termination to the other party hereto. Such of you as
may be named in any Terms Agreement may also terminate such Terms
Agreement, immediately upon notice to the Company, at any time at or
prior to the applicable Closing Time (i) if there shall have been,
since the date of such Terms Agreement or since the respective dates as
of which information is given in the Registration
24
Statement, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business or (ii) if
there shall have occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case
the effect of which is such as to make it, in the reasonable judgment
of such of you as are named in such Terms Agreement, impracticable to
market the Offered Securities or to enforce contracts for the sale of
the Offered Securities, or (iii) if trading in any securities of the
Company shall have been suspended by the Commission or a national
securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange or in the NASDAQ National
Market shall have been suspended or materially limited, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, by either of said
exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either
Federal, New York, Ohio, Pennsylvania, Indiana, Michigan, Kentucky or
Illinois authorities, as the case may be, or there shall have occurred
a material disruption in commercial banking or securities settlement or
clearing services in the United States, or (iv) if the rating assigned
by any nationally recognized statistical rating organization to any
debt securities or preferred stock of the Company as of the time any
applicable Terms Agreement was entered into shall have been lowered
since that time or if any such rating organization shall have publicly
announced that it has placed any debt securities or preferred stock of
the Company on what is commonly termed a "watch list" for possible
downgrading. In the event of any such termination, (x) the covenants
set forth in Section 3 with respect to any offering of the Offered
Securities shall remain in effect so long as any Underwriter owns any
such Offered Securities purchased from the Company pursuant to the
applicable Terms Agreement and (y) the covenant set forth in Section 3
(h), the provisions of Section 4, the indemnity agreement set forth in
Section 6, the contribution provisions set forth in Section 7 and the
provisions of Sections 8 and 13 shall remain in effect upon termination
of this Agreement.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters participating in an offering of Offered Securities shall fail at
the applicable Closing Time to purchase the Offered Securities which it or they
are obligated to purchase hereunder and under the applicable Terms Agreement
(the "Defaulted Securities"), then such of you as are named therein shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the nondefaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, during such 24 hours you
shall not have completed such arrangements for the purchase of all the Defaulted
Securities, then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of Offered
Securities to be purchased pursuant to such Terms Agreement, the
nondefaulting Underwriters named in such Terms Agreement shall be
obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations bear to the underwriting
obligations of all nondefaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of Offered Securities to be purchased
pursuant to such Terms Agreement, the
25
applicable Terms Agreement shall terminate without liability on the
part of any nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default by any Underwriter or Underwriters as
set forth in this Section, either you or the Company shall have the right to
postpone the applicable Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Section 11. NOTICES. All notices and other communications under this Agreement
and any Terms Agreement shall be in writing and shall be deemed to have been
duly given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to you at [ ],
or in respect of any Terms Agreement, to such other person and place as may be
specified therein; notices to the Company shall be directed to it at National
City Corporation, 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, attention
of Xxxxxx X. Xxxxxxxxxx, Senior Vice President and Treasurer.
Section 12. PARTIES. This Agreement shall inure to the benefit of and be binding
upon you and the Company and any Underwriter who becomes a party to a Terms
Agreement, and their respective successors. Nothing expressed or mentioned in
this Agreement or a Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than the parties hereto and thereto and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of the
Offered Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
Section 13. GOVERNING LAW AND TIME. This Agreement and each Terms Agreement
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said State.
Specified times of day refer to New York City time.
Section 14. EFFECT OF HEADINGS. The Article and Section headings herein are for
convenience only and shall not effect the construction hereof.
Section 15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
26
Very truly yours,
NATIONAL CITY CORPORATION
By: _______________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
By:______________________________
Name:
Title:
27
Exhibit A
NATIONAL CITY CORPORATION
[Title of Securities]
TERMS AGREEMENT
Dated: , 200_
To: National City Corporation
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Re: Underwriting Agreement dated , 200_.
Dear Sirs:
We (the "Representative[s] ") understand that National City Corporation, a
Delaware corporation (the "Company"), proposes to issue and sell [$_________
aggregate principal amount] of its [senior [convertible] debt securities] [and]
[subordinated [convertible] debt securities] (the "Debt Securities") [and]
[_______ shares of its [convertible] preferred stock (the "Preferred Stock")]
and [______ depositary shares (the "Depositary Shares") each representing _____
of a share of ______ preferred stock]. This Agreement is the Terms Agreement
referred to in the underwriting agreement dated ________________ , 200_ (the
"Underwriting Agreement") . Subject to the terms and conditions set forth herein
or incorporated by reference herein, the Underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
amounts of [[Debt Securities] [and] [Preferred Stock] [Depositary Shares]] set
forth below.
Principal Amount of Debt Principal Amount of Preferred
Name of Underwriter Securities Stock
------------------- ---------- -----
============ ===========
Total $___________ $__________
28
DEBT SECURITIES
Title of Debt Securities:
Principal amount to be issued: $
Senior or Subordinated:
Currency:
Current ratings:
Interest rate or formula:
Interest payment dates:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Initial public offering price: % of the principal amount, plus accrued
interest, if any, [or amortized original issue discount, if any,]
from, 20__.
Purchase price: % of the principal amount, plus accrued interest, if any,
[or amortized original issue discount, if any,] from ,__________20__
(payable in same day funds).
Listing requirement: [None] [NYSE]
Convertible:
Conversion Provisions:
Closing date and location:
Additional representations, if any:
Lock-up provisions:
Defeasance provisions:
Form of Securities: [Book-Entry only]
Other terms and conditions:
29
Preferred Stock
Title of Preferred Stock:
Principal Amount to be issued: $
Currency:
Annual cash dividend rate: % Payable:
Liquidation preference per Share:
Initial public offering price: %, plus accrued interest or
amortized original issue discount, if any, from
________________, 200_
Purchase Price: % plus accrued interest or amortized
original issue discount, if any, from ________________, 200_
(payable in same day funds).
Listing Requirement: [None] [NYSE]
Convertible:
Initial Conversion price: $______ per share of [Common Stock]
Other conversion provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
30
Depositary Shares
Title of Depositary Shares:
Principal amount to be issued: $
Currency:
Fractional amount of Preferred Stock represented by each Depositary Share:
Initial public offering price per Depositary Share: % of the principal
amount, plus accrued interest [or amortized original issue discount],
if any, from ______________, 200_.
Purchase price per Depositary Share:
(amount equal to the initial public offering price set forth above,
less $___________ per Depositary Share).
Annual cash dividend amount: $ Payable:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
31
Each Underwriter severally agrees, subject to the terms and provisions
of the above referenced Underwriting Agreement, which is incorporated herein in
its entirety and made a part hereof, to purchase the [principal amount] [number
of shares] of Offered Securities set forth opposite its name.
This Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed in said State.
If the foregoing is in accordance with your understanding of the
agreement between you and the Company, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all counterparts and
together with the Underwriting Agreement, shall be a binding agreement between
the Underwriters named herein and the Company in accordance with its terms and
the terms of the Underwriting Agreement.
Very truly yours,
[Representative [s]]
By:__________________________________
Acting on behalf of themselves and the other
named Underwriters
Confirmed and accepted as of
the date first above written:
NATIONAL CITY CORPORATION
By:____________________________
Name:
Title:
32
