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EXHIBIT 1
UNDERWRITING AGREEMENT
March 30, 2000
Washington Mutual, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
We (the "REPRESENTATIVE") are acting on behalf of the underwriter
or underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "UNDERWRITERS"), and we understand that
Washington Mutual, Inc., a Washington corporation (the "COMPANY"), proposes to
issue and sell $500,000,000 aggregate principal amount of 8.25% Subordinated
Notes due April 1, 2010 (the "SECURITIES"). The Securities will be issued
pursuant to the provisions of the Subordinated Debt Securities Indenture dated
as of April 4, 2000 (as such Indenture shall be supplemented to the date hereof)
(the "INDENTURE") between the Company and Xxxxxx Trust and Savings Bank, as
trustee (the "TRUSTEE").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of
Securities set forth below opposite their names at a purchase price of 98.92900%
of the principal amount of Securities:
Principal Amount
Name of Underwriter of Securities
-------------------
------------
Xxxxxxx, Sachs & Co. $300,000,000
Xxxxxx Xxxxxxx & Co. Incorporated 100,000,000
------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 100,000,000
============
Total $500,000,000
============
The Underwriters will pay for the Securities upon delivery
thereof at the location identified below at 9:30 a.m. (New York time) on April
4, 2000, or at such other time or date, not later than seven full business days
thereafter, as shall be agreed upon by the Company and the Representatives. The
time and date of such payment and delivery are hereinafter referred to as the
"Closing Date."
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The Securities shall have the terms set forth in the Prospectus
dated February 25, 2000 and the Prospectus Supplement dated March 30, 2000,
including the following:
Representative(s) and address(es):
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notices pursuant to Section 9(c) of the Standard Provisions (as defined
herein) shall also be sent to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
World Financial Center, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Certain Terms of the Securities:
Title of Securities: 8.25% Subordinated Notes due
April 1, 2010
Aggregate Principal Amount
of Securities: $500,000,000
Maturity Date: April 1, 2010
Interest Rate: 8.25% per annum
Interest Payment Dates: April 1 and October 1,
commencing October 1, 2000
Record Dates: March 15 and September 15
Redemption Provisions: None
Repayment Provisions: None
Transfer Agent and Registrar: Xxxxxx Trust and Saving Bank
Closing Date and Location: April 4, 2000, at:
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Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Securities are to be offered to the public at the Initial Public Offering
Price specified below, and to dealers at prices which represent concessions not
in excess of the Dealer Concession set forth below, and the Underwriters may
allow and such dealers may reallow concessions not in excess of the Reallowance
concession set forth below:
Initial Public Offering Price: 99.57900%
of the
principal
amount of the
Securities.
Dealer Concession: 0.40000%
of the
principal
amount of the
Securities
Reallowance Concession:
0.25000% of
the principal
amount of the
Securities
The parties hereto acknowledge and agree that the Underwriters'
Information consists solely of the following information in any Preliminary
Prospectus and the Prospectus:
The second, fourth, fifth and sixth paragraphs and the second
sentence of the third paragraph under the heading "Underwriting" on page S-7 of
the Prospectus Supplement.
All provisions contained in the document entitled Washington
Mutual, Inc. Underwriting Agreement Standard Provisions (Debt Securities) dated
March 30, 2000 (the "STANDARD PROVISIONS"), are herein incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein, except that if
any term defined in such document is otherwise defined herein, the definition
set forth herein shall control.
This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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Please confirm that the foregoing is in accordance with your
understanding as of the date first set forth above by signing a counterpart
hereof as indicated below.
Very truly yours,
XXXXXXX, SACHS & CO.
Acting on behalf of
themselves and the several
Underwriters named herein
XXXXXXX, XXXXX & CO.
--------------------
WASHINGTON MUTUAL, INC.
By:
----------------------------
Name:
Title:
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WASHINGTON MUTUAL, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
March 30, 2000
From time to time, Washington Mutual, Inc., a Washington
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions hereof set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions hereof
incorporated therein by reference, is herein sometimes referred to as this
"Agreement". Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (file number 333-31144),
including a prospectus, relating to its debt securities and has filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit for
filing to, the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"). The registration
statement as amended at the date of the Underwriting Agreement, including
information, if any, deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act, is hereinafter
referred to as the "Registration Statement." The term "Basic Prospectus" means
the prospectus included in the Registration Statement. The term "Prospectus"
means the Basic Prospectus together with the Prospectus Supplement. The term
"Preliminary Prospectus" means a preliminary prospectus supplement specifically
relating to the Securities, together with the Basic Prospectus. As used herein,
the terms "Registration Statement," "Basic Prospectus," "Prospectus" and
"Preliminary Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include the filing of all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Underwriting Agreement by the Company with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"). If the
Company has filed an abbreviated registration statement to register additional
debt securities pursuant to Rule 462(b) under the Securities Act (the "Rule
462(b) Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. For purposes of this Agreement, "Effective Time" means
the date and time the Registration Statement became
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effective, and if later, the date of filing of the Company's most recent Annual
Report on Form 10-K.
1. Representations and Warranties. The Company represents and warrants to
and agrees with the several Underwriters on and as of the date of the
Underwriting Agreement and the Closing Date:
(a) The Registration Statement has become effective under the Securities
Act; no stop order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before or, to the
best knowledge of the Company, threatened by the Commission.
(b) The documents incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus (the "Exchange Act
Reports"), when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements in the Prospectus, in light of the circumstances under which
they were made, not misleading, and any further documents so filed and
incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder and
shall not contain an untrue statement of a material fact or omit to a state a
material fact necessary to make the statements in the Prospectus, in light of
the circumstances under which they were made, not misleading.
(c) At the Effective Time, the Registration Statement did, and when the
Prospectus is first filed in accordance with Rule 424(b) and on the Closing
Date, the Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Securities Act and the rules
and regulations of the Commission thereunder (the "Rules and Regulations") and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder; at the Effective Time, the
Registration Statement did not or will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; at the
Effective Time and on the Closing Date, the Indenture did or will conform in all
material respects with the applicable requirements of the Trust Indenture Act
and the rules and regulations of the Commission thereunder; and, the Prospectus
on the date of the Prospectus and on the Closing Date, (together with any
supplement thereto) did not and will not include any 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. The preceding sentence does not apply to (i) that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or
(ii) information contained in or omitted from the Registration Statement
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or the Prospectus (or any supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Underwriter specifically for use therein, which is set forth in the Underwriting
Agreement (the "Underwriters' Information").
(d) The Company and each of Washington Mutual Bank, Washington Mutual
Bank, FA, New American Capital, Inc. and Washington Mutual Finance Corporation
(each, a "Material Subsidiary" and collectively, the "Material Subsidiaries")
have been duly incorporated and are validly existing as corporations or
depository institutions in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to so qualify or
have such power or authority would not, singularly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company and its subsidiaries taken as a
whole (a "Material Adverse Effect").
(e) The Company has been duly registered as a savings and loan holding
company under the applicable provisions of the Home Owners' Loan Act; the
Company and each of its subsidiaries are in compliance in all material respects
with all laws administered by and regulations of the Federal Deposit Insurance
Corporation (the "FDIC"), the Office of Thrift Supervision and any other federal
or state bank regulatory authority (the "Bank Regulatory Authorities") with
jurisdiction over the Company or any of its subsidiaries, other than where such
failures to comply would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries is a party to any written agreement or
memorandum of understanding with, or a party to any commitment letter or similar
undertaking to, or is subject to any order or directive by, or is a recipient of
any extraordinary supervisory letter from, or has adopted any board resolutions
at the request of, any Bank Regulatory Authority which restricts materially the
conduct of its business, or in any manner relates to its capital adequacy, its
credit policies or its management, nor have any of them been advised by any Bank
Regulatory Authority that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any such order,
decree, agreement, memorandum of understanding, extraordinary supervisory
letter, commitment letter or similar submission, or any such board resolutions.
(f) The Company has an authorized capitalization as set forth in the
Prospectus. All of the outstanding shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company, free and
clear of any lien, charge, encumbrance, security interest, restriction upon
voting or transfer or any other claim of any third party.
(g) The Company has full right, power and authority to execute and
deliver this Agreement, the Indenture and the Securities (collectively, the
"Transaction Documents") and to perform its obligations hereunder and
thereunder; and all corporate action required to be taken
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for the due and proper authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions contemplated
thereby have been duly and validly taken.
(h) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding agreement of the
Company.
(i) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(j) The Securities have been duly authorized by the Company and, when
duly executed, authenticated, issued and delivered as provided in the Indenture
and paid for as provided herein, will be duly and validly issued and outstanding
and will constitute valid and binding obligations of the Company and will be
governed by the Indenture and enforceable against the Company in accordance with
their terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a proceeding in equity or at
law).
(k) Each Transaction Document conforms in all material respects to the
description thereof contained in the Prospectus.
(l) The execution, delivery and performance by the Company of each of
the Transaction Documents, the issuance, authentication, sale and delivery of
the Securities and compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction Documents will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will such actions result in any violation of the provisions of the charter or
by-laws of the Company or any of its subsidiaries or any statute or any
judgment, order, decree, rule or regulation of any court or arbitrator or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and no consent, approval,
authorization or order of, or filing or registration with, any such court or
arbitrator or governmental agency or body under any such statute, judgment,
order, decree, rule or regulation is required for the execution,
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delivery and performance by the Company of each of the Transaction Documents,
the issuance, authentication, sale and delivery of the Securities and compliance
by the Company with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents, except for such consents, approvals,
authorizations, filings, registrations or qualifications (i) which shall have
been obtained or made prior to the Closing Date and (ii) as may be required to
be obtained or made under the Exchange Act and applicable state securities laws
in connection with the purchase and distribution of the Securities by the
Underwriters. The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus.
(m) Deloitte & Touche LLP are independent certified public accountants
with respect to the Company and its subsidiaries as required by the Securities
Act and the Rules and Regulations. The historical financial statements
(including the related notes and supporting schedules) contained or incorporated
by reference in the Registration Statement and the Prospectus comply in all
material respects with the applicable requirements under the Securities Act and
the Exchange Act (except that certain supporting schedules are omitted); such
financial statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods covered
thereby and fairly present the financial position of the entities purported to
be covered thereby at the respective dates indicated and the results of their
operations and their cash flows for the respective periods indicated; and the
financial information contained or incorporated by reference in the Registration
Statement and the Prospectus under the headings "Summary Financial Data",
"Selected Financial Data", "Management's Discussion and Analysis of Results of
Operations and Financial Condition" and "Management - Executive Compensation"
are derived from the accounting records of the Company and its subsidiaries and
fairly present the information purported to be shown thereby. The other
historical financial and statistical information and data included or
incorporated by reference in the Prospectus are, in all material respects,
fairly presented.
(n) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject which, singularly or in
the aggregate, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a Material Adverse Effect;
and to the best knowledge of the Company, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(o) No action has been taken and no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental agency or body which
prevents the issuance of the Securities or suspends the sale of the Securities
in any jurisdiction; no injunction, restraining order or order of any nature by
any federal or state court of competent jurisdiction has been issued with
respect to the Company or any of its subsidiaries which would prevent or suspend
the issuance or sale of the Securities or the use of the Preliminary Prospectus
or the Prospectus in any jurisdiction; no action, suit or proceeding is pending
against or, to the best knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries before any court or arbitrator
or any governmental agency, body or official, domestic or foreign, which could
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reasonably be expected to interfere with or adversely affect the issuance of the
Securities or in any manner draw into question the validity or enforceability of
any of the Transaction Documents or any action taken or to be taken pursuant
thereto; and the Company has complied with any and all requests by any
securities authority in any jurisdiction for additional information to be
included in the Preliminary Prospectus and the Prospectus.
(p) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(q) There are no contracts or other documents which are required under
the Securities Act or the Rules and Regulations to be described in the
Prospectus or filed as exhibits to the Registration Statement and which have not
been so described or filed.
(r) Neither the Company nor any of its Material Subsidiaries is (i) in
violation of its articles of incorporation, charter or by-laws, (ii) in default
in any material respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other material agreement
or instrument to which it is a party or by which it is bound or to which any of
its property or assets is subject or (iii) in violation in any material respect
of any law, ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject, except in the case of (ii) and (iii)
for such defaults or violations which would not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(s) The Company and each of its subsidiaries possess all material
licenses, certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate federal, state or foreign
regulatory agencies or bodies which are necessary or desirable for the ownership
of their respective properties or the conduct of their respective businesses as
described in the Prospectus, except where the failure to possess or make the
same would not, singularly or in the aggregate, have a Material Adverse Effect,
and neither the Company nor any of its subsidiaries has received notification of
any revocation or modification of any such license, certificate, authorization
or permit or has any reason to believe that any such license, certificate,
authorization or permit will not be renewed in the ordinary course.
(t) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained or
incorporated by reference in the Registration Statement has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good
faith.
(u) Since the date as of which information is given in the Prospectus,
except as otherwise stated therein, (i) there has been no material adverse
change or any development involving a prospective material adverse change in the
condition, financial or otherwise, or in the
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earnings, business affairs, management or business prospects of the Company and
its subsidiaries taken as a whole, whether or not arising in the ordinary course
of business, (ii) the Company has not incurred any material liability or
obligation, direct or contingent, other than in the ordinary course of business,
(iii) the Company has not entered into any material transaction other than in
the ordinary course of business and (iv) there has not been any change in the
capital stock or long-term debt of the Company, or any dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital
stock.
(v) Neither the Company nor any of its subsidiaries is (i) an
"investment company" or a company "controlled by" an investment company within
the meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the rules and regulations of the Commission thereunder or
(ii) a "holding company" or a "subsidiary company" of a holding company or an
"affiliate" thereof within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
(w) The Company and each of its subsidiaries have insurance covering
their respective properties, operations, personnel and businesses, which
insurance is in amounts and insures against such losses and risks as are
adequate to protect the Company and its subsidiaries and their respective
businesses. Neither the Company nor any of its subsidiaries has received notice
from any insurer or agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to continue such
insurance.
(x) None of the proceeds of the sale of the Securities will be used,
directly or indirectly, for the purpose of purchasing or carrying any margin
security, for the purpose of reducing or retiring any indebtedness which was
originally incurred to purchase or carry any margin security or for any other
purpose which might cause any of the Securities to be considered a "purpose
credit" within the meanings of Regulation U of the Federal Reserve Board.
2. Purchase of the Securities. (a) On the basis of the representations,
warranties and agreements contained herein, and subject to the terms and
conditions set forth herein and in the Underwriting Agreement, the Company
agrees to issue and sell to each of the Underwriters, severally and not jointly,
and each of the Underwriters, severally and not jointly, agrees to purchase from
the Company, the principal amount of Securities set forth opposite the name of
such Underwriter in the Underwriting Agreement at the purchase price set forth
in the Underwriting Agreement.
(b) The Company shall not be obligated to deliver any of the Securities
except upon payment for all of the Securities to be purchased as provided
herein. The Company acknowledges and agrees that the Underwriters may sell
Securities to any affiliate of an Underwriter and that any such affiliate may
sell Securities purchased by it to an Underwriter.
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3. Delivery of and Payment for the Securities. (a) Delivery of and
payment for the Securities shall be made on the Closing Date at the time and
place set forth in the Underwriting Agreement.
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire transfer in immediately
available funds or by such other means as the parties hereto shall agree prior
to the Closing Date, against delivery to the Underwriters of the certificates
evidencing the Securities. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligations of the Underwriters hereunder. Upon delivery, the Securities
shall be in global form, registered in such names and in such denominations as
the Representatives on behalf of the Underwriters shall have requested in
writing not less than one full business day prior to the Closing Date. The
Company agrees to make one or more global certificates evidencing the Securities
available for inspection by the Representatives on behalf of the Underwriters in
New York, New York at least 24 hours prior to the Closing Date.
4. Further Agreements of the Company. The Company agrees with each of
the several Underwriters:
(a) (i) to prepare the 462(b) Registration Statement, if necessary, in a
form approved by the Underwriters and to file such 462(b) Registration Statement
with the Commission in compliance with Rule 462(b) of the Rules and Regulations
by 10:00 a.m. New York City time on the business day following the date of
determination of the public offering price and, at the time of filing, either to
pay the Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) of the Rules and Regulations and (ii) to file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b) within the time period
prescribed by such rule and to provide evidence satisfactory to the Underwriters
of such timely filing;
(b) to file promptly all reports and any definitive proxy or information
statement required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a Prospectus is required in
connection with the offering of the Securities;
(c) prior to filing with the Commission any (i) amendment to the
Registration Statement (including any Rule 462(b) Registration Statement) or
supplement to the Prospectus, (ii) any document incorporated by reference in the
Prospectus or (iii) any Prospectus pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the Representatives and counsel for
the Underwriters, and not to file any such document to which the Representatives
shall reasonably object after having been given reasonable notice of the
proposed filing thereof unless the Company is required by law to make such
filing;
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(d) to advise the Underwriters promptly of the receipt of any comments
from the Commission and of the effectiveness of the Registration Statement (in
each case if the Effective Time is subsequent to the execution and delivery of
this Agreement) and of any amendment or supplement to the Registration Statement
or the Prospectus, or of any request by the Commission therefor, and 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; to
advise the Underwriters promptly of any order preventing or suspending the use
of any prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction and of
the initiation or threatening of any proceeding for any such purpose; and to use
its best efforts to prevent the issuance of any stop order or of any such order
preventing or suspending the use of any prospectus relating to the Securities or
suspending any such qualification and, if any such stop order or order or
suspension is issued, to obtain the lifting thereof at the earliest possible
time;
(e) to furnish promptly to each of the Underwriters and counsel for the
Underwriters a copy of the Registration Statement as originally filed with the
Commission, and each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith; and to deliver promptly without charge to
the Underwriters such number of the following documents as the Underwriters may
from time to time reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement, the Indenture and the
computation of the ratio of earnings to fixed charges), (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented Prospectus and (iii)
each document incorporated by reference in the Prospectus (excluding exhibits
thereto);
(f) if the delivery of a prospectus is required at any time in
connection with the sale of the Securities and if at such time any events shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or if for any other reason it shall be necessary
or advisable at such time to amend or supplement the Prospectus in order to
comply with the Securities Act or the Exchange Act or with a request from the
Commission, to notify the Underwriters immediately thereof, and to promptly
prepare and, subject to Section 4(c) hereof, file with the Commission an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance;
(g) as soon as practicable to make generally available to the Company's
security holders and to deliver to the Underwriters an earning statement of the
Company and its subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
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(h) for so long as the Securities are outstanding, to furnish to the
Underwriters copies of any annual reports, quarterly reports and current reports
filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar forms as may be designated by the Commission, and such other
documents, reports and information as shall be furnished by the Company to the
Trustee or to the holders of the Securities pursuant to the Indenture or the
Exchange Act or any rule or regulation of the Commission thereunder;
(i) to promptly take from time to time such actions as the Underwriters
may reasonably request to qualify the Securities for offering and sale under the
securities or Blue Sky laws of such jurisdictions as the Underwriters may
designate and to continue such qualifications in effect for so long as required
for the resale of the Securities; and to arrange for the determination of the
eligibility for investment of the Securities under the laws of such
jurisdictions as the Underwriters may reasonably request; provided that the
Company and its subsidiaries shall not be obligated to qualify as foreign
corporations in any jurisdiction in which they are not so qualified or to file a
general consent to service of process in any jurisdiction;
(j) for a period ending on the Closing Date, not to offer for sale,
sell, contract to sell or otherwise dispose of, directly or indirectly, or file
a registration statement for, or announce any offer, sale, contract for sale of
or other disposition of any debt securities with maturity in excess of 9 months,
issued or guaranteed by the Company or any of its subsidiaries (other than the
Securities) without the prior written consent of the Representatives on behalf
of the Underwriters;
(k) in connection with the offering of the Securities, until the
Representatives on behalf of the Underwriters shall have notified the Company of
the completion of the distribution of the Securities, not to, and to cause its
affiliated purchasers (as defined in Regulation M under the Exchange Act) not
to, either alone or with one or more other persons, bid for or purchase, for any
account in which it or any of its affiliated purchasers has a beneficial
interest, any Securities, or attempt to induce any person to purchase any
Securities; and not to, and to cause its affiliated purchasers not to, make bids
or purchase for the purpose of creating actual, or apparent, active trading in
or of raising the price of the Securities; and
(l) to apply the net proceeds from the sale of the Securities as set
forth in the Prospectus under the heading "Use of Proceeds".
5. Conditions of Underwriters' Obligations. The respective obligations
of the several Underwriters hereunder are subject to the accuracy, on and as of
the date of the Underwriting Agreement and the Closing Date, of the
representations and warranties of the Company contained herein, to the accuracy
of the statements of the Company and its officers made in any certificates
delivered pursuant hereto, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
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(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 4(a) of this Agreement, and, if applicable, the Rule
462(b) Registration Statement shall have become effective by 10:00 a.m. New York
City time on the business day following the date of the Underwriting Agreement.
Prior to the Closing Date, no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with to the reasonable satisfaction of the Underwriters.
(b) The Prospectus (and any amendments or supplements thereto) shall
have been printed and copies distributed to the Underwriters as promptly as
practicable on or following the date of the Underwriting Agreement or at such
other date and time as to which the Underwriters may agree.
(c) None of the Underwriters shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which, in the opinion
of counsel for the Underwriters, is material or omits to state any 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.
(d) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of the Transaction Documents and the
Prospectus, and all other legal matters relating to the Transaction Documents
and the transactions contemplated thereby, shall be satisfactory in all material
respects to the Underwriters, and the Company shall have furnished to the
Underwriters all documents and information that they or their counsel may
reasonably request to enable them to pass upon such matters.
(e) Xxxxxx Xxxxxx White & XxXxxxxxx shall have furnished to the
Underwriters their written opinion, as counsel to the Company, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, substantially to the effect set forth in Annex
A hereto.
(f) The Underwriters shall have received from Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Underwriters may reasonably
require, and the Company shall have furnished to such counsel such documents and
information as they request for the purpose of enabling them to pass upon such
matters.
(g) The Company shall have furnished to the Underwriters a letter (the
"Initial Letter") of Deloitte & Touche LLP, addressed to the Underwriters and
dated the date of the Underwriting Agreement, in form and substance satisfactory
to the Underwriters, substantially to the effect set forth in Annex B hereto.
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(h) The Company shall have furnished to the Underwriters a letter (the
"Bring-Down Letter") of Deloitte & Touche LLP, addressed to the Underwriters and
dated the Closing Date (i) confirming that they are independent accountants with
respect to the Company and its subsidiaries as required by the Securities Act
and the Rules and Regulations, (ii) stating, as of the date of the Bring-Down
Letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than three business days prior to the date of
the Bring-Down Letter), that the conclusions and findings of such accountants
with respect to the financial information and other matters covered by the
Initial Letter are accurate and (iii) confirming in all material respects the
conclusions and findings set forth in the Initial Letter.
(i) The Company shall have furnished to the Underwriters a certificate,
dated the Closing Date, of its chief executive officer or any executive vice
president and its chief financial officer stating that (A) such officers have
carefully examined the Registration Statement and the Prospectus, (B) in their
opinion, the Registration Statement, including the documents incorporated
therein by reference, as of the Effective Time, did not include any untrue
statement of a material fact and did not omit to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, and the Prospectus, including the documents incorporated therein by
reference, as of the date of the Prospectus and as of the Closing Date, did not
and does not include any untrue statement of a material fact and did not and
does not 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) as of the Closing Date, the representations and warranties
of the Company in this Agreement are true and correct in all material respects,
the Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder on or prior to the Closing Date, no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the best
of such officer's knowledge, are contemplated by the Commission, and subsequent
to the date of the most recent financial statements contained in the Prospectus,
there has been no material adverse change in the financial position or results
of operations of the Company or any of its subsidiaries, or any change, or any
development involving a prospective material adverse change, in or affecting the
condition (financial or otherwise), results of operations or business of the
Company and its subsidiaries taken as a whole, except as set forth in the
Prospectus.
(j) The Indenture and any applicable supplement thereto shall have been
duly executed and delivered by the Company and the Trustee, and the Securities
shall have been duly executed and delivered by the Company and duly
authenticated by the Trustee.
(k) If any event shall have occurred on or prior to the Closing Date
that requires the Company under Section 4(f) to prepare an amendment or
supplement to the Prospectus, such amendment or supplement shall have been
prepared, the Underwriters shall have been given a
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reasonable opportunity to comment thereon as provided in Section 4(c) hereof,
and copies thereof shall have been delivered to the Underwriters reasonably in
advance of the Closing Date.
(l) Subsequent to the execution and delivery of the Underwriting
Agreement or, if earlier, the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereto) and the Prospectus
(exclusive of any supplement thereto), there shall not have been any change in
the capital stock or long-term debt or any change, or any development involving
a prospective change, in or affecting the condition (financial or otherwise),
results of operations, business or prospects of the Company and its subsidiaries
taken as a whole, the effect of which, in any such case described above, is, in
the judgment of the Representatives on behalf of the Underwriters, so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering of the Securities on the terms and in the manner contemplated by
this Agreement and the Prospectus (exclusive of any supplement thereto).
(m) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency or
body which would, as of the Closing Date, prevent the issuance or sale of the
Securities; and no injunction, restraining order or order of any other nature by
any federal or state court of competent jurisdiction shall have been issued as
of the Closing Date which would prevent the issuance or sale of the Securities.
(n) Subsequent to the execution and delivery of the Underwriting
Agreement (i) no downgrading shall have occurred in the rating accorded the
Securities or any of the Company's other debt securities by any "nationally
recognized statistical rating organization", as such term is defined by the
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations and (ii)
no such organization shall have publicly announced that it has under
surveillance or review (other than an announcement with positive implications of
a possible upgrading), its rating of the Securities or any of the Company's
other debt securities.
(o) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or limited, or minimum prices
shall have been established on any such exchange or market by the Commission, by
any such exchange or by any other regulatory body or governmental authority
having jurisdiction, or trading in any securities of the Company on any exchange
or in the over-the-counter market shall have been suspended or (ii) any
moratorium on commercial banking activities shall have been declared by federal
or New York state authorities or (iii) an outbreak or escalation of hostilities
or a declaration by the United States of a national emergency or war or (iv) 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) the effect of which, in the case of this clause
(iv), is, in the judgment of the Representatives on behalf of the Underwriters,
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the sale or the delivery of the
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Securities on the terms and in the manner contemplated by this Agreement and in
the Prospectus (exclusive of any supplement thereto).
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6. Termination. The obligations of the Underwriters hereunder may be
terminated by the Underwriters, in their absolute discretion, by notice given to
and received by the Company prior to delivery of and payment for the Securities
if, prior to that time, any of the events described in Section 5(l), (m), (n) or
(o) shall have occurred and be continuing.
7. Defaulting Underwriters. (a) If, on the Closing Date, any Underwriter
defaults in the performance of its obligations under this Agreement, the
non-defaulting Underwriters may make arrangements for the purchase of the
Securities which such defaulting Underwriter agreed but failed to purchase by
other persons satisfactory to the Company and the non-defaulting Underwriters,
but if no such arrangements are made within 36 hours after such default, this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters or the Company, except that the Company will continue to be liable
for the payment of expenses to the extent set forth in Sections 8 and 12 and
except that the provisions of Sections 9 and 10 shall not terminate and shall
remain in effect. As used in this Agreement, the term "Underwriters" includes,
for all purposes of this Agreement unless the context otherwise requires, any
party not listed in the Underwriting Agreement that, pursuant to this Section 7,
purchases Securities which a defaulting Underwriter agreed but failed to
purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default. If other persons are obligated or agree to
purchase the Securities of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for
the Company or counsel for the Underwriters may be necessary in the Registration
Statement and the Prospectus or in any other document or arrangement, and the
Company agrees to promptly prepare any amendment or supplement to the
Registration Statement and the Prospectus that effects any such changes.
8. Reimbursement of Underwriters' Expenses. If (a) this Agreement shall
have been terminated pursuant to Section 6, (b) the Company shall fail to tender
the Securities for delivery to the Underwriters for any reason permitted under
this Agreement or (c) the Underwriters shall decline to purchase the Securities
for any reason permitted under this Agreement, the Company shall reimburse the
Underwriters for such out-of-pocket expenses (including reasonable fees and
disbursements of counsel) as shall have been reasonably incurred by the
Underwriters in connection with this Agreement and the proposed public offering
and sale of the Securities, and upon demand the Company shall pay the full
amount thereof to the Underwriters. If this
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Agreement is terminated pursuant to Section 7 by reason of the default of one or
more of the Underwriters, the Company shall not be obligated to reimburse any
defaulting Underwriter on account of such expenses.
9. Indemnification. (a) The Company shall indemnify and hold harmless
each Underwriter, its affiliates, their respective officers, directors,
employees, Representatives and agents, and each person, if any, who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 9(a) and Section 10 as an
Underwriter), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, without limitation, any
loss, claim, damage, liability or action relating to purchases and sales of the
Securities), to which that Underwriter may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any 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, (i)
any untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and shall reimburse each
Underwriter promptly upon demand for any legal or other expenses reasonably
incurred by that Underwriter in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, 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, an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with any Underwriters' Information; and provided, further, that with
respect to any such untrue statement in or omission from any Preliminary
Prospectus, the indemnity agreement contained in this Section 9(a) shall not
inure to the benefit of any such Underwriter to the extent that the sale to the
person asserting any such loss, claim, damage, liability or action was an
initial resale by such Underwriter and any such loss, claim, damage, liability
or action of or with respect to such Underwriter results from the fact that both
(A) to the extent required by applicable law, a copy of the Prospectus
(excluding the documents incorporated by reference therein) was not sent or
given to such person at or prior to the written confirmation of the sale of such
Securities to such person and (B) the untrue statement in or omission from such
Preliminary Prospectus was corrected in the Prospectus unless, in either case,
such failure to deliver the Prospectus was a result of non-compliance by the
Company with Section 4(e).
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers who signed the Registration Statement,
directors, and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act (collectively referred to for purposes
of this Section 9(b) and Section 10 as the Company), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company may become subject, whether commenced or threatened, under
the
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Securities Act, the Exchange Act, any 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, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein 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, 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 any Underwriters' Information provided
by such Underwriter, and shall reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending or preparing to defend against or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section 9
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 pursuant to Section 9(a) or 9(b), 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 under this Section 9 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and, provided, further, 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 Section 9. 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
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 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, that an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
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reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 9(a) and 9(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
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 for the plaintiff in any such 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 includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
The obligations of the Company and the Underwriters in this
Section 9 and in Section 10 are in addition to any other liability that the
Company or the Underwriters, as the case may be, may otherwise have, including
in respect of any breaches of representations, warranties and agreements made
herein by any such party.
10. Contribution. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under Section
9(a) or 9(b), 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 on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or omissions that
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 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 Securities purchased under this
Agreement (before deducting expenses) received by or on behalf of the Company,
on the one hand, and the total underwriting discounts and commissions received
by the Underwriters with respect to the Securities purchased under this
Agreement, on the other, bear to the total gross proceeds from the sale of the
Securities under this Agreement, 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,
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among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to the
Company or information supplied by the Company on the one hand or to any
Underwriters' Information on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section 10
were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take 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 Section 10 shall be deemed to include, for purposes of this Section 10, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 10, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total underwriting discounts and commissions received by such
Underwriter with respect to the Securities purchased by it under this Agreement
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 or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities 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 Section 10 are several in proportion to their respective underwriting
commitments and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the Underwriters, the Company and their
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except as provided in Sections 9 and
10 with respect to affiliates, officers, directors, employees, representatives,
agents and controlling persons of the Company and the Underwriters. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 11, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
12. Expenses. The Company agrees with the Underwriters to pay (a) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Securities and any taxes payable in that connection; (b) the costs incident
to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
printing and distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), any Preliminary Prospectus, the Prospectus and any
amendment or supplement thereto, all as provided in this Agreement; (d) the
costs of printing, reproducing and distributing the Indenture, this Agreement
and any underwriting and selling group documents; (e) the filing fees incident
to securing any required review by the National Association of Securities
Dealers, Inc. of the terms of sale of the Securities; (f) the fees and expenses
of the Company's counsel and
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independent accountants; (g) the fees and expenses of preparing, printing and
distributing Blue Sky Memoranda (including related fees and expenses of counsel
to the Underwriters); (h) any fees charged by rating agencies for rating the
Securities; (i) all fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); and (j)
all other costs and expenses incident to the performance of the obligations of
the Company under this Agreement; provided that, except as provided in this
Section 12 and Section 8, the Underwriters shall pay their own costs and
expenses.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any of them or
any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or
telecopy transmission to the Representatives at the address set forth in the
Underwriting Agreement; or
(b) if to the Company, shall be delivered or sent by mail or telecopy
transmission to the address of the Company set forth in the Registration
Statement (telecopier no.: 206-461-5739).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by the Representatives.
15. Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 of the Rules and
Regulations.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
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18. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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ANNEX A
[Form of Opinion of Counsel for the Company]
Xxxxxx Xxxxxx White & XxXxxxxxx shall have furnished to the
Underwriters their written opinion, as counsel to the Company, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, substantially to the effect set forth below:
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of Washington, and has all
power and authority necessary to own or hold its properties and to
conduct the businesses in which it is engaged.
(ii) The Company has an authorized capitalization as set forth in
the Prospectus. All of the issued shares of capital stock of each
Material Subsidiary and (except for directors' qualifying shares) are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(iii) The Company has been duly registered as a savings and loan
holding company under the applicable provisions of the Home Owners' Loan
Act. To such counsel's knowledge, neither the Company nor any of its
Material Subsidiaries is a party to any written agreement or memorandum
of understanding with, or a party to any commitment letter or similar
undertaking to, or is subject to any order or directive by, or is a
recipient of any extraordinary supervisory letter from, or has adopted
any board resolutions at the request of, any Bank Regulatory Authority
which restricts materially the conduct of its business, or in any manner
relates to its capital adequacy, its credit policies or its management,
nor have any of them been advised by any Bank Regulatory Authority that
it is contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree,
agreement, memorandum of understanding, extraordinary supervisory
letter, commitment letter or similar submission, or any such board
resolutions.
(iv) The Company meets the requirements for the use of Form S-3
under the Securities Act. The Registration Statement was declared
effective under the Securities Act and the Indenture was qualified under
the Trust Indenture Act as of the date and time specified in such
opinion; the Prospectus was filed with the Commission pursuant to Rule
424(b)[(2)] of the Rules and Regulations within the time required by
such rule; and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to such counsel's knowledge,
no proceeding for that purpose is pending or threatened by the
Commission.
(v) The Registration Statement and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus made by the Company prior to the Closing Date (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form
21
26
in all material respects with the requirements of the Securities Act and
the Rules and Regulations; and the Exchange Act Reports (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion), when they were filed with the
Commission complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
(vi) The Indenture complies as to form in all material respects
with the requirements of the Trust Indenture Act and the rules and
regulations of the Commission thereunder.
(vii) The descriptions in the Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are accurate
in all material respects; the statements set forth under the heading
"Description of Debt Securities" in the Prospectus, insofar as such
statements purport to summarize certain provisions of the Securities and
the Indenture, provide a fair summary of such provisions; and, to such
counsel's knowledge, (A) there are no current or pending legal or
governmental actions, suits or proceedings which are required to be
described in the Prospectus by the Securities Act or the Rules and
Regulations and which have not been so described and (B) there are no
contracts and other documents which are required under the Securities
Act or the Rules and Regulations to be described in the Prospectus or
filed as exhibits to the Registration Statement and which have not been
so described or filed.
(viii) The Company has full right, power and authority to execute
and deliver each of the Transaction Documents and to perform its
obligations thereunder; and all corporate action required to be taken
for the due and proper authorization, execution and delivery of each of
the Transaction Documents and the consummation of the transactions
contemplated thereby have been duly and validly taken.
(ix) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(x) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
agreement of the Company enforceable against the Company in accordance
with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered
in a proceeding in equity or at law).
(xi) The Securities have been duly authorized and issued by the
Company and, assuming due authentication thereof by the Trustee and upon
payment and delivery in accordance with the Underwriting Agreement, will
be duly and validly issued and
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27
outstanding and will constitute valid and binding obligations of the
Company and governed by the Indenture, enforceable against the Company
in accordance with their terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(xii) Each Transaction Document conforms in all material respects
to the description thereof contained in the Prospectus.
(xiii) The execution, delivery and performance by the Company of
each of the Transaction Documents, the issuance, authentication, sale
and delivery of the Securities and compliance by the Company with the
terms thereof and the consummation of the transactions contemplated by
the Transaction Documents will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its Material Subsidiaries pursuant to any document listed as an
exhibit to the Company's Exchange Act Reports, nor will such actions
result in any violation of the provisions of the charter or by-laws of
the Company or any of its Material Subsidiaries or any statute or, to
such counsel's knowledge, any judgment, order, decree, rule or
regulation of any court or arbitrator or governmental agency or body
having jurisdiction over the Company or any of its Material Subsidiaries
or any of their properties or assets; and no consent, approval,
authorization or order of, or filing or registration with, any such
court or arbitrator or governmental agency or body under any such
statute, judgment, order, decree, rule or regulation is required for the
execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance, authentication, sale and delivery
of the Securities and compliance by the Company with the terms thereof
and the consummation of the transactions contemplated by the Transaction
Documents, except for such consents, approvals, authorizations, filings,
registrations or qualifications (i) which shall have been obtained or
made prior to the Closing Date and (ii) as may be required to be
obtained or made under the Exchange Act and applicable state securities
laws in connection with the purchase and distribution of the Securities
by the Underwriters.
(xiv) To the knowledge of such counsel, there are no pending
actions or suits or judicial, arbitral, rule making, administrative or
other proceedings to which the Company or any of its subsidiaries is a
party or of which any property or assets of the Company or any of its
subsidiaries is the subject which questions the validity or
enforceability of any of the Transaction documents or any action taken
or to be taken pursuant thereto; and to the knowledge of such counsel,
no such proceeding are threatened or contemplated by governmental
authorities or threatened by others.
(xv) Neither the Company nor any of its Material Subsidiaries is
(A) in violation of its charter or by-laws, (B) to such counsel's
knowledge, in default in any material respect,
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28
and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any document listed as an
exhibit to an Exchange Act Report, or (C) to such counsel's knowledge,
in violation in any material respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets
may be subject.
(xvi) Neither the Company nor any of its Material Subsidiaries is
(A) an "investment company" or a company "controlled by" an investment
company within the meaning of the Investment Company Act and the rules
and regulations of the Commission thereunder, without taking account of
any exemption under the Investment Company Act arising out of the number
of holders of the Company's securities or (B) a "holding company" or a
"subsidiary company" of a holding company or an "affiliate" thereof
within the meaning of the Public Utility Holding Company Act of 1935, as
amended; and
(xvii) Neither the consummation of the transactions contemplated
by this Agreement nor the sale, issuance, execution or delivery of the
Securities will violate Regulation U of the Federal Reserve Board.
Such counsel shall also state that they have participated in
conferences with representatives of the Company and with representatives of its
independent accountants and counsel at which conferences the contents of the
Registration Statement and the Prospectus and any amendment and supplement
thereto and related matters were discussed and, although such counsel assume no
responsibility for the accuracy, completeness or fairness of the Registration
Statement, the Prospectus and any amendment or supplement thereto (except as
expressly provided above), nothing has come to the attention of such counsel to
cause such counsel to believe that the Registration Statement (or any
post-effective amendment thereto), including any Exchange Act Reports
incorporated by reference therein, at the time of its effective date, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any amendment or supplement thereto,
including any Exchange Act Reports incorporated by reference therein, as of its
date and the Closing Date contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading (other
than the financial statements and other financial and statistical information
contained therein, as to which such counsel need express no belief).
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials which are furnished to the
Underwriters.
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ANNEX B
[Form of Initial Comfort Letter]
The Company shall have furnished to the Underwriters a letter of
Deloitte & Touche LLP, addressed to the Underwriters and dated the date of
delivery thereof (which, if the Effective Time is prior to the execution and
delivery of the Underwriting Agreement, shall be on or prior to the date of the
Underwriting Agreement or, if the Effective Time is subsequent to the execution
and delivery of the Underwriting Agreement, shall be prior to the filing of the
amendment or post-effective amendment to the Registration Statement to be filed
shortly prior to the Effective Time), in form and substance satisfactory to the
Underwriters, substantially to the effect set forth below:
(i) they are independent certified public accountants with
respect to the Company as required by the Securities Act and the Rules
and Regulation and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission;
(ii) in their opinion, the audited financial statements included
or incorporated by reference in the Registration Statement and the
Prospectus and reported on by them comply in form in all material
respects with the accounting requirements of the Securities Act, the
Exchange Act and the related published rules and regulations of the
Commission thereunder (except that certain supporting schedules are
omitted);
(iii) based upon the procedures detailed in such letter with
respect to the period subsequent to the date of the last available
balance sheet, including reading of minutes and inquiries of certain
officials of the Company who have responsibility for financial and
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accounting matters, nothing has come to their attention that causes them
to believe that (A) at a specified date not more than three business
days prior to the date of such letter, there was any increase in other
borrowings or any decrease in stockholders' equity or the combined
balance of cash and, cash equivalents, trading securities, and available
for sale securities of the Company as compared with the amounts shown in
the December 31, 1999 audited balance sheet included in the Registration
Statement and the Prospectus or (B) for the period from December 31,
1999 to a specified date not more than three business 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
income or the combined balance of income before income taxes and total
interest expense, except in all instances for changes, increases or
decreases that the Prospectus discloses have occurred or which are set
forth in such letter, in which case the letter shall be accompanied by
an explanation by the Company as to the significance thereof unless said
explanation is not deemed necessary by the Underwriters;
(iv) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company) set forth or incorporated by
reference in the Registration Statement and the Prospectus agrees with
the accounting records of the Company, excluding any questions of legal
interpretation
B-2
