EXHIBIT 1
TERMS AGREEMENT
May 22, 2001
Washington Mutual Finance Corporation
c/o Washington Mutual, Inc.
0000 0xx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
We (the "Underwriters" and the "Representatives") understand
that Washington Mutual Finance Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell (i) $500,000,000 aggregate principal
amount of its 6.250% Senior Notes due May 15, 2006 and (ii) $500,000,000
aggregate principal amount of its 6.875% Senior Notes due May 15, 2011 (the
"Underwritten Securities"). Subject to the terms and conditions set forth herein
or incorporated by reference herein, the Underwriters hereby offer to purchase,
severally and not jointly, the principal amount of Underwritten Securities set
forth opposite their respective names below at, (i) for the 6.250% notes,
99.257% of the principal amount thereof, together with accrued interest thereon,
if any, from May 24, 2001 to (but not including) the Delivery Date and (ii) for
the 6.875% notes, 98.956% of the principal amount thereof, together with accrued
interest thereon, if any, from May 24, 2001 to (but not including) the Delivery
Date.
6.250% Fixed Rate Notes, due 2006
Principal
Underwriters Amount
Banc of America Securities LLC........................$200,000,000
X.X. Xxxxxx Securities Inc............................$200,000,000
Credit Suisse First Boston Corporation.................$30,000,000
Deutsche Banc Alex. Xxxxx..............................$30,000,000
Xxxxxxx, Sachs & Co....................................$30,000,000
Xxxxx Xxxxxxxx & Xxxxx.................................$10,000,000
Total........................................$500,000,000
The Underwritten Securities shall have the following terms:
Date of maturity: May 15, 2006
Interest rate: 6.250% per annum, payable semi-annually
Initial public offering price: 99.607%, plus accrued interest, if any, from May
24, 2001 to (but not including) the Delivery Date
Interest payment dates: November 15th and May 15th, commencing November
15, 2001
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6.875% Fixed Rate Notes, due 2011
Principal
Underwriters Amount
Banc of America Securities LLC........................$200,000,000
X.X. Xxxxxx Securities Inc............................$200,000,000
Credit Suisse First Boston Corporation.................$30,000,000
Deutsche Banc Alex. Xxxxx..............................$30,000,000
Xxxxxxx, Sachs & Co....................................$30,000,000
Xxxxx Xxxxxxxx & Xxxxx.................................$10,000,000
Total........................................$500,000,000
The Underwritten Securities shall have the following terms:
Date of maturity: May 15, 2011
Interest rate: 6.875% per annum, payable semi-annually
Initial public offering price: 99.406%, plus accrued interest, if any, from May
24, 2001 to (but not including) the Delivery Date
Interest payment dates: November 15th and May 15th, commencing November
15, 2001
Shared Provisions
Redemption provisions: The Underwritten Securities are not redeemable
Form: The Underwritten Securities are to be issued in
the form of one or more global securities
registered in the name of The Depository Trust
Company or its nominee (the "Depositary");
delivery of the Underwritten Securities at
closing will be made through the facilities of
the Depositary Specified funds for payment of
purchase price: Wire transfer of immediately
available funds
Specified address for notices: Banc of America Securities LLC
NY1-301-31-01
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Delivery Date: 11:00 a.m., New York City time, on May 24, 2001
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Place of closing: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Underwriters hereby confirm that they have furnished to
the Company in writing the following information for inclusion in the Company's
Prospectus Supplement dated May 22, 2001 to the Company's Prospectus dated May
22, 2001 relating to the Underwritten Securities (the "Prospectus Supplement"):
(i) the first sentence of the second paragraph below the table on page S-6 of
the Prospectus Supplement concerning concession, (ii) the second sentence of the
second paragraph below the table on page S-6 of the Prospectus Supplement
concerning discount and (iii) the sixth and seventh paragraphs below the table
on page S-6 of the Prospectus Supplement concerning over-allotment, stabilizing
transactions, syndicate covering transactions and penalty bids.
All of the provisions contained in the document entitled
"Washington Mutual Finance Corporation -- Debt Securities -- Underwriting
Agreement Basic Provisions" and dated June 23, 1999 (the "Basic Provisions"), a
copy of which you have previously furnished to us, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Terms
Agreement to the same extent as if such provisions had been set forth in full
herein; provided, however, that clause (e) of Paragraph 6 of such provisions
shall be deleted and shall be replaced in its entirety by the following: "(e)
Prior to filing with the Commission any (i) amendment or supplement to the
Registration Statement, (ii) Prospectus or any amendment or supplement thereto
or (iii) document incorporated by reference in any of the foregoing or any
amendment of or supplement to any such incorporated document, to furnish a copy
thereof to the Representatives and their counsel and to provide the
Representatives an opportunity to comment thereon and will not effect such
amendment or supplement without the consent of Banc of America Securities LLC,
which consent will not be unreasonably withheld or delayed."
Terms defined in such Underwriting Agreement Basic Provisions
are used herein as therein defined.
[Balance of Page Intentionally Blank]
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Please accept this offer no later than, 11:00 a.m. New York
City time, on May 24, 2001 by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us, or by sending us a
written acceptance in the following form:
"We hereby accept your offer, set forth in the Terms Agreement
dated May 22, 2001, to purchase the Underwritten Securities on the
terms set forth therein."
Very truly yours,
BANC OF AMERICA SECURITIES LLC
X.X. XXXXXX SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANC ALEX. XXXXX
XXXXXXX SACHS
XXXXX XXXXXXXX & XXXXX
By: BANC OF AMERICA SECURITIES LLC
By: ________________________________
Name:
Title:
By: X.X. XXXXXX SECURITIES INC.
By: ________________________________
Name:
Title:
Accepted:
WASHINGTON MUTUAL FINANCE CORPORATION
By: ____________________________________
Name:
Title:
EXHIBIT 1
WASHINGTON MUTUAL FINANCE CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
May 22, 2001
The basic provisions set forth herein are intended to be
incorporated by reference in a terms agreement (a "Terms Agreement") of the type
referred to in Paragraph 2 hereof. With respect to any particular Terms
Agreement, the Terms Agreement, together with the provisions hereof incorporated
therein by reference, is herein referred to as this "Agreement". Terms defined
in the Terms Agreement are used herein as therein defined.
The Company may issue and sell from time to time series of its
debt securities registered under the registration statement referred to in
Paragraph 1(a) hereof (the "Securities"). The Securities may have varying
designations, denominations, interest rates and payment dates, maturities,
redemption provisions and selling prices, with all such terms for any particular
series of Securities (together with any other terms relating to such series) to
be determined and set forth in the Terms Agreement relating to the series.
1. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-56596) with
respect to the Securities has been prepared and filed by the Company in
conformity with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and has become
effective. The Indenture pursuant to which the Underwritten Securities will be
issued (the "Indenture") has been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). As used in this Agreement, (i)
"Preliminary Prospectus" means each prospectus (including all documents
incorporated therein by reference) included in such registration statement, and
amendments or supplements thereof, before it became effective under the Act,
including any prospectus filed with the Commission pursuant to Rule 424(a) of
the Rules and Regulations; (ii) "Registration Statement" means such registration
statement when it became effective under the Act, and as from time to time
amended or supplemented thereafter at the time of effectiveness of such
amendment or filing of such supplement with the Commission (including all
documents incorporated therein by reference); (iii) "Basic Prospectus" means the
prospectus (including all documents incorporated therein by reference) included
in the Registration Statement; and (iv) "Prospectus" means the Basic Prospectus,
together with any amendments or supplements (including in each case all
documents incorporated therein by reference), as filed with, or transmitted by a
means reasonably calculated to result in filing with, the Commission pursuant to
paragraph (b) of Rule 424 of the Rules and Regulations. The Commission has not
issued any order preventing or suspending the use of the Prospectus.
(b) The Registration Statement did, as of the time it became effective,
and will, as of each filing of the Company's most recent annual report pursuant
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to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the Prospectus did, as of its issue date, comply as to
form in all material respects with the Act, the Exchange Act, the Trust
Indenture Act, and the rules and regulations of the Commission under such Acts;
the Indenture, including any amendments and supplements thereto, conforms, and
will conform, in all material respects with the requirements of the Trust
Indenture Act and the rules and regulations of the Commission thereunder; the
Registration Statement did not, as of the time it became effective, and will
not, as of each filing of the Company's most recent annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the Prospectus does
not and will not as of the Delivery Date (as hereinafter defined) contain an
untrue statement of a material fact or omit 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; provided, however, that the Company makes
no representation or warranty as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Company through the Representatives by or
on behalf of any Underwriter specifically for inclusion therein, or to any
statements in or omissions from the statement of eligibility and qualification
on Form T-1 of the Trustee under the Trust Indenture Act.
(c) Neither the Company nor any of its majority-owned subsidiaries (as
defined in Rule 405 of the Rules and Regulations, and hereinafter called
"Subsidiaries") is in violation of its corporate charter or by-laws or in
default in the observance or performance of any agreement, indenture or
instrument, the effect of which violation or default would be material to the
Company and its Subsidiaries taken as a whole; the execution, delivery and
performance of this Agreement and the Indenture and compliance by the Company
with the provisions of the Underwritten Securities and the Indenture have been
duly authorized by all necessary corporate action and will not conflict with,
result in the creation or imposition of any lien, charge or encumbrance upon any
of the assets of the Company or any of its Subsidiaries pursuant to the terms
of, or constitute a default in the observance or performance of, any agreement,
indenture or instrument, or result in a violation of the corporate charter or
by-laws of the Company or any of its Subsidiaries or any order, statute, rule or
regulation of any court or governmental agency having jurisdiction over the
Company, any of its Subsidiaries or their respective properties, the effect of
which conflict, lien, charge, encumbrance, default or violation would be
material to the Company and its Subsidiaries taken as a whole; and except as
required by the Act, the Trust Indenture Act, the Exchange Act and applicable
state securities laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement or the Indenture.
(d) From the dates as of which information is given in the Registration
Statement and the Prospectus, and except as described therein, (i) there has not
been any material adverse change or any development involving a prospective
material adverse change in the financial condition or results of operations of
the Company and its Subsidiaries taken as a whole and (ii) there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock. There is no financial support agreement between
the Company and Washington Mutual, Inc. ("Washington Mutual") or any affiliate
thereof respecting the business relationship between the two parties.
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(e) To the best knowledge of the Company, Deloitte & Touche LLP, whose
reports appear in the Company's Annual Report on Form 10-K incorporated by
reference in the Prospectus, are independent public accountants as required by
the Act and the Rules and Regulations.
(f) (i) As of the Delivery Date, the Indenture will have been duly
executed and delivered and validly authorized by the Company and will constitute
the legally binding obligation of the Company enforceable in accordance with its
terms (except as enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other laws relating to or
affecting creditors' rights generally, by general equity principles or by an
implied covenant of good faith and fair dealing), (ii) the Underwritten
Securities have been validly authorized for issuance and sale pursuant to this
Agreement and, upon execution, authentication, delivery and payment therefor as
provided in this Agreement and the Indenture, will be validly issued and
outstanding, and will constitute legally binding obligations of the Company
enforceable in accordance with their terms (except as enforcement of the
Underwritten Securities may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws relating to or affecting
creditors' rights generally, by general equity principles or by an implied
covenant of good faith and fair dealing) and entitled to the benefits of the
Indenture, and (iii) the Underwritten Securities and the Indenture conform in
all material respects to the descriptions thereof contained in the Prospectus.
(g) The Company has been duly incorporated, is validly existing and is
in good standing under the laws of its jurisdiction of incorporation; each of
the Subsidiaries has been duly incorporated, is validly existing and is in good
standing under the laws of their respective jurisdictions of incorporation
(except where the failure to be so incorporated or to be in good standing would
not have a material adverse effect on the Company and its Subsidiaries taken as
a whole); to the best knowledge of the Company, the Company and each of its
Subsidiaries are duly qualified to do business and in good standing as foreign
corporations in each jurisdiction in which their respective ownership or leasing
of property or the conduct of their respective businesses requires such
qualification, and have the corporate power and authority necessary to own,
lease and operate their respective properties and to conduct the businesses in
which they are engaged, except where the failure to so qualify or to have such
power and authority would not have a material adverse effect on the Company and
its Subsidiaries taken as a whole; and the capital stock of each Subsidiary is
owned by the Company, directly or through Subsidiaries, free and clear of any
mortgage, pledge, lien, claim or encumbrance.
(h) Except as described in the Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its Subsidiaries which would
result in any material adverse change in the financial condition or results of
operations of the Company and its Subsidiaries taken as a whole or which is
required to be disclosed in the Registration Statement.
(i) The financial statements filed as part of the Registration
Statement or included or incorporated in any Preliminary Prospectus or the
Prospectus present, and will present as of the Delivery Date, fairly the
financial condition and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated, and have been
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prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved; and the supporting schedules
included or incorporated in the Registration Statement present fairly the
information required to be stated therein.
(j) The documents incorporated by reference into any Preliminary
Prospectus or the Prospectus have been, and any documents subsequently
incorporated by reference will be, as of the applicable filing date, prepared by
the Company in conformity with the applicable requirements of the Act and the
Rules and Regulations and the Exchange Act and the rules and regulations of the
Commission thereunder; and such documents have been or will be as of the
Delivery Date timely filed as required thereby.
(k) There are no contracts or other documents which are required to be
filed as exhibits to the Registration Statement by the Act or by the Rules and
Regulations, or which were required to be filed as exhibits to any document
incorporated by reference in the Prospectus by the Exchange Act or the rules and
regulations of the Commission thereunder, which have not been filed as exhibits
to the Registration Statement or to such documents, or incorporated therein by
reference as permitted by the Rules and Regulations or the rules and regulations
of the Commission under the Exchange Act, as the case may be.
(l) All of the authorized, issued and outstanding capital stock of the
Company has been duly authorized and validly issued and is fully paid and
non-assessable and is owned, directly or indirectly, by Washington Mutual.
(m) The Company and each of its Subsidiaries have all licenses,
approvals and consents for the conduct of their respective businesses, the
failure of which to have would have a material adverse effect on the business of
the Company and the Subsidiaries taken as a whole.
2. The obligation of the Underwriters to purchase, and the Company to
sell, the Underwritten Securities is evidenced by a Terms Agreement delivered at
the time the Company determines to sell the Underwritten Securities. The Terms
Agreement specifies the firm or firms which will be Underwriters, the principal
amount of the Underwritten Securities to be purchased by each Underwriter, the
purchase price to be paid by the Underwriters for the Underwritten Securities,
the public offering price, if any, of the Underwritten Securities, certain terms
thereof and the Underwriters' compensation therefor, any of the terms of the
Underwritten Securities not already specified in the Indenture (including, but
not limited to, designations, denominations, interest rate or rates (and method
of calculation thereof) and payment dates, maturity, redemption provisions and
sinking fund requirements) and the written information that has been furnished
to the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion in the Registration Statement or the Prospectus. The
Terms Agreement also specifies any details of the terms of the offering which
should be reflected in a post-effective amendment to the Registration Statement
or the supplement to the Prospectus relating to the offering of the Underwritten
Securities.
3. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all the Underwritten Securities to be
purchased pursuant to this Agreement as hereinafter provided.
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4. If any Underwriter defaults in the performance of its obligations
under this Agreement, the remaining non-defaulting Underwriters shall be
obligated to purchase the Underwritten Securities which the defaulting
Underwriter agreed but failed to purchase in the respective proportions which
the principal amount of Underwritten Securities set forth in the Terms Agreement
to be purchased by each remaining non-defaulting Underwriter set forth therein
bears to the aggregate principal amount of Underwritten Securities set forth
therein to be purchased by all the remaining non-defaulting Underwriters;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any Underwritten Securities if the aggregate principal
amount of Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase exceeds 9.09% of the total principal
amount of Underwritten Securities, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the principal amount of
Underwritten Securities set forth in the Terms Agreement to be purchased by it.
If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Underwritten
Securities. If the remaining Underwriters or other underwriters satisfactory to
the Representatives do not elect to purchase the Underwritten Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company will continue to be liable
for the payment of expenses as set forth in Paragraphs 6(k) and 10 hereof.
Nothing contained in this Paragraph shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Underwritten Securities of a defaulting or withdrawing Underwriter, either the
Representatives of the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company of counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
5. Delivery of and payment for the Underwritten Securities shall be
made at the office of the Representatives at such address and time as may be
specified in the Terms Agreement. This date and time are sometimes referred to
as the "Delivery Date". On the Delivery Date the Company shall deliver the
Underwritten Securities to the Representatives through the facilities of The
Depository Trust Company, New York, New York, for the account of each
Underwriter against payment to the Company of the purchase price by wire
transfer of immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Upon delivery, the
Underwritten Securities shall be in definitive fully registered form and in such
denominations and registered in such names as the Representatives shall request
in writing not less than two full business days prior to the Delivery Date. For
the purpose of expediting the checking of the Underwritten Securities, the
Company shall make the Underwritten Securities available for inspection by the
Representatives in New York, New York (or such other place as may be specified
by the Representatives) not later then 2:00 P.M., New York City time, at least
one business day prior to the Delivery Date.
6. The Company covenants and agrees with the Representatives as
follows:
6
(a) To furnish promptly to the Representatives and to their counsel a
signed copy of the Registration Statement as originally filed and each amendment
thereto, and a copy of each Prospectus filed with the Commission, including all
supplements thereto and all documents incorporated therein by reference and all
consents and exhibits filed therewith;
(b) To deliver promptly to the Representatives such number of the
following documents as they may reasonably request: (i) conformed copies of the
Registration Statement (excluding exhibits other than the computation of the
ratio of earnings to fixed charges, the Indenture and this Agreement), (ii) each
Preliminary Prospectus, the Basic Prospectus and the Prospectus and any
supplement thereto and (iii) any documents incorporated by reference in the
Prospectus;
(c) If, during any period in which, in the opinion of counsel for the
Representatives, a prospectus relating to the Underwritten Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus would include an untrue statement of a material fact or omit 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, or if it
is necessary at any time to amend the Prospectus to comply with the Act, to
immediately notify the Representatives and to promptly prepare and file (subject
to (e) below) with the Commission an amendment or supplement which will effect
such compliance (provided, however, that if such amendment or supplement of the
Prospectus shall be filed after the nine-month period commencing on the date
hereof, the Representatives shall pay the costs incurred in connection with the
preparation of such amendment or supplement);
(d) To timely file (subject to (e) below) with the Commission during
any period in which, in the opinion of counsel for the Representatives, any
Prospectus is required by law to be delivered in connection with sales of the
Underwritten Securities, all documents (and any amendments to previously filed
documents) required to be filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act;
(e) Prior to filing with the Commission any (i) amendment or supplement
to the Registration Statement, (ii) Prospectus or any amendment or supplement
thereto or (iii) document incorporated by reference in any of the foregoing or
any amendment of or supplement to any such incorporated document, to furnish a
copy thereof to the Representatives and their counsel and to provide the
Representatives an opportunity to comment thereon and will not effect such
amendment or supplement without the consent of a majority in interest of the
several Underwriters, which consent will not be unreasonably withheld or
delayed;
(f) To advise the Representatives immediately (i) when any
post-effective amendment to the Registration Statement relating to or covering
the Underwritten Securities becomes effective, (ii) of any request or proposed
request by the Commission for an amendment or supplement to the Registration
Statement, to the Prospectus, to any document incorporated by reference in any
of the foregoing or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any order directed to the Prospectus or any document incorporated
therein by reference or the initiation or threat of any stop order proceeding or
of any challenge to the accuracy or adequacy of any document incorporated by
reference in the Prospectus, (iv) of receipt by the Company of any notification
with respect to the suspension of the qualification of the Underwritten
7
Securities for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose and (v) of the happening of any event which makes
untrue any statement of a material fact made in the Registration Statement or
the Prospectus or which requires the making of a change in the Registration
Statement or the Prospectus in order to make any statement of a material fact
therein not misleading;
(g) If the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, to make every reasonable effort to
obtain the lifting of that order at the earliest possible time;
(h) To make generally available to its security holders and to deliver
to the Representatives, in each case as soon as practicable, an earnings
statement (in form complying with the provisions of Section 11(a) of the Act and
Rule 158 thereunder and which need not be certified by independent certified
public accountants unless required by the Act or the Rules and Regulations)
covering the period beginning not later than the first day of the fiscal quarter
next following each date which (i) under Section 11(a) of the Act and the Rules
and Regulations is an "effective date" (as defined in Rule 158) of the
Registration Statement for purposes of said Section 11(a), and (ii) is not later
than the Delivery Date;
(i) For one year after the Delivery Date, to furnish to the
Representatives, promptly after the time the Company makes the same available to
others, copies of all public reports or releases and all reports and financial
statements furnished by the Company to any securities exchange pursuant to
requirements of or agreements with such exchange or to the Commission pursuant
to the Exchange Act or any rule or regulation of the Commission thereunder;
(j) To endeavor, in cooperation with the Representatives, to qualify
the Underwritten Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Representatives may reasonably designate, and to maintain such
qualifications in effect for as long as may be reasonably required for the
distribution of the Underwritten Securities. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Underwritten Securities have been qualified as above provided;
(k) To pay (i) the costs incident to the authorization, issuance, sale
and delivery of the Underwritten Securities and any taxes payable in that
connection, (ii) the costs incident to the preparation, printing and filing
under the Act of the Registration Statement and any amendments, supplements and
exhibits thereto, (iii) the costs incident to the preparation, printing and
filing of any document and any amendments and exhibits thereto required to be
filed by the Company under the Exchange Act, (iv) the costs of distributing the
Registration Statement, as originally filed, and each amendment and
post-effective amendment thereof (including exhibits), any Preliminary
Prospectus, the Basic Prospectus, the Prospectus, any supplement or amendment to
the Prospectus and any documents incorporated by reference in any of the
foregoing documents, (v) the costs of distributing the terms of the agreement
relating to the organization of the underwriting syndicate to the Underwriters
by mail, telex or other means of communication, (vi) the costs of typing this
Agreement, (vii) the costs and fees in connection with the listing of the
Securities on any securities exchange, (viii) the costs of any filings with the
8
National Association of Securities Dealers, Inc., (ix) the fees and
disbursements of counsel to the Company, (x) the fees paid to rating agencies in
connection with the rating of the Securities, including the Underwritten
Securities, (xi) the fees and expenses of qualifying the Securities, including
the Underwritten Securities, under the securities laws of the several
jurisdictions as provided in this Paragraph, and of preparing and printing a
Blue Sky Memorandum and a memorandum concerning the legality of the Securities,
including the Underwritten Securities, as an investment (including fees and
expenses of counsel to the Representatives in connection therewith), and (xii)
all other costs and expenses incident to the performance of the Company's
obligations under this Agreement; provided, that, except as provided in this
Paragraph and in Paragraph 10 hereof, the Underwriters shall pay their own costs
and expenses, including the fees and expenses of their counsel, any transfer
taxes on the Underwritten Securities which they may sell and the expenses of
advertising any offering of the Underwritten Securities made by the
Underwriters; and
(l) During the period beginning on the date of the Terms Agreement and
continuing to the Delivery Date, without the prior consent of the
Representatives, not to offer or sell, or enter into any agreement to sell, any
debt securities of the Company other than borrowings under the Company's
revolving credit agreements and lines of credit, the private placement of
securities, borrowings from Washington Mutual or any affiliate thereof and
issuances in the ordinary course of business of the Company's commercial paper.
7. (a) The Company shall indemnify and hold harmless each Underwriter,
each other person, if any, who is participating with the Underwriters in the
distribution of the Underwritten Securities who is an "underwriter" within the
meaning of Section 2(11) of the Act with respect to the distribution of the
Underwritten Securities (the "Participants") and each person, if any, who
controls any Underwriter or any Participant within the meaning of Section 15 of
the Act from and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which such Underwriter or such Participant
or controlling person may become subject, under the Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or arises out of, or is based upon, the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse each
Underwriter, each Participant and each controlling person for any legal and
other expenses reasonably incurred, as incurred, by such Underwriter or such
Participant or controlling person in investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action, provided,
however, (i) that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein; and (ii) that with respect to
any Preliminary Prospectus or Prospectus, the foregoing indemnification shall
not inure to the benefit of any Underwriter, any Participant or any person
controlling that Underwriter or Participant on account of any loss, claim,
damage, liability or action arising from the purchase of Securities by any
person from that Underwriter or Participant, if that Underwriter or Participant
9
in fact failed to send or give a copy of the Prospectus (excluding documents
incorporated by reference) provided by the Company in accordance with Paragraph
6(b) hereof (as such Prospectus may then be amended or supplemented, in each
case exclusive of the documents incorporated therein by reference) to that
person within the time required by the Act; provided, however, that subparagraph
(ii) above shall not apply (X) where such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact in such Preliminary Prospectus or Prospectus and such untrue statement,
alleged untrue statement, omission or alleged omission, was not corrected in the
Prospectus (or the amendment or supplement thereto) or (Y) where the failure to
deliver such Prospectus (or the amendment or supplement thereto) resulted from
noncompliance by the Company with Paragraph 6(b) hereof. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to any Underwriter, any Participant or controlling person.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and any person who controls the Company within
the meaning of Section 15 of the Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which the
Company or any such director, officer or controlling person may become subject,
under the Act, the Exchange Act or federal or state statutory law or regulation,
at common law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or arises out of, or is based upon,
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of that Underwriter specifically for inclusion
therein, and shall reimburse the Company or any such director, officer or
controlling person for any legal and other expenses reasonably incurred, as
incurred, by the Company or any such director, officer or controlling person in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability of action. The foregoing indemnity agreement is in addition to
any liability which any Underwriter may otherwise have to the Company or any of
its directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this Paragraph
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Paragraph, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Paragraph except to
the extent that it has been prejudiced in any material respect by such failure
or from any liability which it may have otherwise. If any such claim or action
shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
10
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Paragraph 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, any
indemnified party shall have the right to employ separate counsel in any such
claim or action and to participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such claim or action and
employ counsel reasonably satisfactory to the indemnified party, in which case,
if such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such claim
or action on behalf of such indemnified party, it being understood, however,
that the indemnifying party shall not, in connection with any one such claim or
action or separate but substantially similar or related claims or actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to local counsel) at any time for all such indemnified
parties, which firm shall be designated in writing by the Representatives, if
the indemnified parties under this Paragraph consist of any Underwriter, any
Participant or any of their respective controlling persons, or by the Company,
if the indemnified parties under this Paragraph consist of the Company or any of
its directors, officers or controlling persons. The indemnifying party shall not
be liable for any settlement of any such claim or action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment in favor of the
plaintiff in any such claim or action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party (which consent shall
not be unreasonably withheld), effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding 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 an indemnified party.
(d) If the indemnification provided for in this Paragraph shall for any
reason be unavailable to an indemnified party under Paragraph 7(a) or 7(b)
hereof in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters and the Participants on the other from the offering of
the Underwritten Securities, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
11
also the relative fault of the Company on the one hand and the Underwriters and
the Participants on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters and the
Participants on the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Underwritten Securities (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the Underwriters
and the Participants with respect to such offering in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the 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 the Underwriters, the intent of the
parties and their relative 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 contributions pursuant to this
Paragraph 7(d) were to be determined by pro rata allocation or by any other
method of allocation (even if the Underwriters and the Participants were treated
as one entity for such purpose) which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Paragraph 7(d) shall be deemed to include,
for purposes of this Paragraph 7(d), any legal or other expenses reasonably
incurred by each indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Paragraph 7(d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Underwritten 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 paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission of alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(i) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Paragraph 7(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The agreements contained in this Paragraph and the representations,
warranties and agreements of the Company contained elsewhere in this Agreement,
or contained in certificates of officers of the Company submitted pursuant
hereto, shall survive the delivery of and payment for the Underwritten
Securities and shall remain operative and in full force and effect, regardless
of the termination of this Agreement or any investigation made on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company.
8. The obligations of the Underwriters under this Agreement may be
terminated by the Representatives, in their absolute discretion, by notice given
to and received by the Company prior to the delivery of and payment for the
Underwritten Securities, if, during the period beginning on the date of the
Terms Agreement to and including the Delivery Date, (a) trading in securities
generally on the New York Stock Exchange is suspended or minimum prices are
established on that Exchange or trading in any securities of the Company have
been suspended by any exchange or by the Commission, or (b) a banking moratorium
is declared by either Federal or New York State authorities, or (c) there is an
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war if the effect of
12
any such event is to make it, in the judgment of a majority in interest of the
several Underwriters, impracticable or inadvisable to proceed with the public
offering or delivery of the Underwritten Securities, or (d) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of a
majority in interest of the several Underwriters, impracticable or inadvisable
to proceed with the public offering or delivery of the Underwritten Securities,
or (e) the rating of any of the Company's debt securities shall have been
lowered by either Xxxxx'x Investors Services, Inc. or Standard & Poor's or
either of such rating agencies shall have publicly announced that it has placed
any of the Company's debt securities on what is commonly termed a "watch list"
for possible downgrading, or (f) there shall have occurred no material adverse
change and no development involving a prospective material adverse change in the
financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole, as to make it, in the judgment of a majority in
interest of the several Underwriters, impracticable or inadvisable to proceed
with the public offering or delivery of the Underwritten Securities.
9. The respective obligations of the Underwriters under this Agreement
with respect to the Underwritten Securities are subject to the accuracy, on the
date of the Terms Agreement and on the Delivery Date, of the representations and
warranties of the Company contained herein, to the accuracy of the statements of
the Company's officers made in any certificate furnished pursuant to the
provisions hereof, to the performance and observance by the Company of all
covenants and agreements contained herein, and to each of the following
additional terms and conditions applicable to the Underwritten Securities:
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission, nor any order directed to any document incorporated by reference in
any Prospectus shall have been initiated or threatened by the Commission.
(b) The General Counsel or an Assistant General Counsel of the Company
(or such other counsel as shall be satisfactory to the Underwriters) shall have
furnished to the Representatives his opinion addressed to the Underwriters and
dated the Delivery Date, in form and substance reasonably satisfactory to the
Representatives and their counsel, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware;
(ii) The Company has the corporate power and authority
necessary to own, lease and operate its properties and conduct its
business as described in the Registration Statement;
(iii) To the best of his knowledge, the Company is duly
qualified to do business and in good standing as a foreign corporation
in each jurisdiction in which its conduct of business or its ownership
or leasing of properties requires such qualification and in which the
failure to be so qualified would have a material adverse effect on the
Company and its Subsidiaries taken as a whole;
13
(iv) All of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued and is fully
paid and non-assessable, and, except as described in the Registration
Statement, all of such capital stock is owned by the Company, directly
or through Subsidiaries, free and clear of any mortgage, pledge, lien,
claim or encumbrance;
(v) The authorized, issued and outstanding capital stock of
the Company is set forth in the Prospectus and the shares of the
Company's issued and outstanding common stock, $1.00 par value, set
forth therein are owned, directly or indirectly, by Washington Mutual;
(vi) Such counsel does not know of any material litigation or
any governmental proceeding pending or threatened against the Company
or any of its Subsidiaries required to be disclosed in the Prospectus
which is not disclosed;
(vii) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations, or
which are required to be filed by the Exchange Act or the rules and
regulations of the Commission thereunder as exhibits to any document
incorporated by reference in the Prospectus, which have not been filed
as exhibits to the Registration Statement or to such document, or
incorporated therein by reference as permitted by the Rules and
Regulations or the rules and regulations of the Commission under the
Exchange Act, as the case may be;
(viii) To the best of such counsel's knowledge, the Company is
not in violation of its corporate charter or by-laws, none of the
Subsidiaries are in violation of their corporate charters or by-laws,
and neither the Company nor any of the Subsidiaries are in default in
the observance or performance of any agreement, indenture or
instrument, the effect of which violation or default would be material
to the Company and the Subsidiaries taken as a whole; and
(ix) To the best of his knowledge, the execution, delivery and
performance of this Agreement and compliance by the Company with the
provisions of the Underwritten Securities and the Indenture will not
conflict with, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the Company or any of
the Subsidiaries pursuant to the terms of, or constitute a default in
the observance or performance of, any material agreement, indenture or
instrument, or result in a violation of the corporate charter or
by-laws of the Company or any of the Subsidiaries or any order,
statute, rule or regulation of any court or governmental agency having
jurisdiction over the Company, any of the Subsidiaries or their
respective properties, the effect of which conflict, lien, charge,
encumbrance, default or violation would be material to the Company and
the Subsidiaries taken as a whole; and no consent, authorization or
order of, or filing or registration with, any court or governmental
agency is required for the execution, delivery and performance by the
Company of this Agreement except such as may be required by the Act,
the Trust Indenture Act, the Exchange Act and state securities laws.
14
(c) Xxxxxx Xxxxxx White & XxXxxxxxx, counsel to the Company, shall have
furnished to the Representatives their opinion addressed to the Underwriters and
dated the Delivery Date, in form and substance reasonably satisfactory to the
Representatives and their counsel, to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered by the Company;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement
of the Company, enforceable in accordance with its terms, except as may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally, by general equity principles (regardless
of whether enforceability is considered in a proceeding in equity or at
law) and by an implied covenant of good faith and fair dealing;
(iii) The Underwritten Securities are in a form contemplated
by the Indenture and approved by the board of directors of the Company
and have been duly authorized by all necessary corporate action and,
when executed and authenticated as specified in the Indenture and
delivered against payment therefor in accordance with this Agreement,
will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally, by general
equity principles (regardless of whether enforceability is considered
in a proceeding in equity or at law) and by an implied covenant of good
faith and fair dealing;
(iv) The Underwritten Securities and the Indenture conform in
all material respects to the statements concerning them in the
Registration Statement and the Prospectus;
(v) The Indenture is qualified under, and complies as to form
in all material respects with, the Trust Indenture Act;
(vi) The Registration Statement is effective under the Act; no
stop order suspending its effectiveness has been issued, and, to the
knowledge of such counsel, no proceeding for that purpose is pending or
threatened by the Commission; and no order directed to any document
incorporated by reference in the Prospectus has been issued by the
Commission;
(vii) The Registration Statement, as of the time it became
effective, and the Prospectus, as of its issue date (except that, in
each case, no opinion need be expressed as to the financial statements
and schedules and other financial data contained or incorporated by
reference therein), complied as to form in all material respects with
the requirements of the Act and the Trust Indenture Act and the rules
and regulations of the Commission under said Acts, and the documents
incorporated by reference in the Prospectus, when filed with the
15
Commission (except that no opinion need be expressed as to the
financial statements and schedules and other financial data contained
or incorporated by reference therein), complied as to form in all
material respects with the applicable requirements of the Exchange Act
and the rules and regulations of the Commission thereunder; and (except
that no opinion need be expressed as to the financial statements and
schedules and other financial data contained or incorporated by
reference therein) nothing has come to the attention of such counsel to
lead them to believe that the Registration Statement, as of the time it
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of its date and as of the Delivery Date, contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) All corporate proceedings and other legal matters incident to the
authorization, and validity of this Agreement, and the authorization, form and
validity of the Underwritten Securities, the Indenture, the Registration
Statement, the Prospectus and any supplement, amendment or incorporated
document, other then financial statements and other financial data, and all
other legal matters and transactions contemplated by this Agreement shall be
reasonably satisfactory in all material respects to Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Underwriters; the Company shall have furnished to such counsel
all documents and information that they may reasonably request to enable them to
pass upon such matters; and Xxxxxxx Xxxxxxx & Xxxxxxxx shall have furnished to
the Representatives on the Delivery Date such opinions with respect to such
matters as the Representatives may reasonably request.
(e) (i) Neither the Company nor any of the Subsidiaries shall be in
default (nor shall an event have occurred which, with notice or lapse of time,
or both, would constitute a default) under any provision of any instrument
relating to any outstanding indebtedness of the Company or any of the
Subsidiaries (except where such default would not have a material adverse effect
on the Company and its Subsidiaries taken as a whole) and (ii) no material
amount of the assets of the Company or of the Company and its Subsidiaries taken
as a whole shall have been pledged or mortgaged, except as referred to in the
Registration Statement and Prospectus, as amended or supplemented.
(f) The Company shall have furnished to the Representatives on the
Delivery Date a certificate, dated the Delivery Date, of its President, its
Chief Financial Officer or its Treasurer to the effect that to the best of his
or her knowledge and after reasonable investigation:
(i) The representations, warranties and agreements of the
Company in Paragraph 1 hereof are true and correct as of the Delivery
Date; the Company has complied with all its agreements contained herein
and satisfied all conditions on its part to be performed and satisfied
at or prior to the date of such certificate (except that no certificate
need be given in respect of the conditions set forth in Paragraphs 9(d)
and 9(g) hereof); and the conditions set forth in Paragraph 9(a) hereof
which are to be fulfilled at or prior to the date of such certificate
have been fulfilled; and
16
(ii) He has reviewed the Registration Statement and the
Prospectus and, in his opinion, (A) the Registration Statement, as of
the time it became effective, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (B)
the Prospectus, as of its date and as of the Delivery Date, does not
contain an untrue statement of a material fact or 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,
and (C) since the time the Registration Statement became effective
there has not occurred any event required to be set forth in an amended
or supplemented prospectus which has not been so set forth.
(g) The Company shall have furnished to the Representatives on the
Delivery Date a letter in form and substance reasonably satisfactory to the
Representatives in all respects from Deloitte & Touche LLP, addressed to the
Underwriters and dated as of the Delivery Date, of the type described in the
American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 72 and covering such specified financial statement items and
procedures as the Representatives may reasonably request.
(h) No order suspending the sale of the Underwritten Securities in any
jurisdiction material to the distribution of the Underwritten Securities as
contemplated hereby and designated by the Representatives pursuant to Paragraph
6(j) hereof shall have been issued or in existence, and no proceeding for that
purpose shall have been instituted or, to the knowledge of the Underwriters or
the Company, shall be contemplated.
(i) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Delivery Date that the Registration Statement, the Prospectus
and any amendments or supplements thereto, taken as a whole, contain an untrue
statement of a fact which, in the opinion of counsel to the Representatives, is
material and omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(j) During the period from the date of the Terms Agreement to and
including the Delivery Date, there shall have occurred no material adverse
change and no development involving a prospective material adverse change in the
financial condition or results of operations of the Company and its Subsidiaries
taken as a whole.
10. If the Company shall fail to tender the Underwritten Securities for
delivery to the Underwriters for any reason permitted under this Agreement, or
if the Underwriters shall decline to purchase the Underwritten Securities for
any reason permitted under this Agreement, the Company shall reimburse the
Underwriters for the reasonable fees and expenses of their counsel and for such
other reasonable out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of Underwritten
Securities, and upon demand the Company shall pay the full amount thereof to the
Representatives. If this Agreement is terminated pursuant to Paragraph 4 hereof
by reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter on account of those expenses.
17
11. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement on behalf of the Representatives. Any notice by the
Company to the Underwriters shall be sufficient if given in writing or by
facsimile addressed to the Representatives at such address and time as may be
specified in the Terms Agreement, and any notice by the Underwriters to the
Company shall be sufficient if given in writing or by facsimile addressed to the
Company at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, Attention of ,
with a copy to the same address, Attention: Executive Vice President and General
Counsel.
12. This Agreement shall be binding upon each Underwriter, the Company, and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (a) the indemnity
agreement of the Company contained in Paragraph 7 hereof shall also be deemed to
be for the benefit of any Participant and the person or persons, if any, who
control any Underwriter or Participant within the meaning of Section 15 of the
Act, and (b) the indemnity agreement of the Underwriters contained in Paragraph
7 hereof shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement and any
person who controls the Company within the meaning of Section 15 of the Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Paragraph, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
13. For purposes of this Agreement, "business day" means any day on
which the New York Stock Exchange is open for trading.
14. All representations, warranties, indemnities, and agreements of the
Company contained in this Agreement, or contained in certificates of officers
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of the termination of this Agreement or any investigation made by or
on behalf of the Underwriters or any person controlling the Underwriters or by
or on behalf of the Company, and shall survive each delivery of and payment for
any of the Underwritten Securities.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York. The Terms Agreement may be executed in
one of more counterparts, and if executed in more than one counterpart the
executed counterparts shall together constitute a single instrument.
