EXHIBIT 1
MBNA Capital E
MBNA Capital F
MBNA Capital G
Preferred Securities
guaranteed to the extent set forth in the Guarantees by
MBNA Corporation
--------------------------------
Underwriting Agreement
November 21, 2002
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
From time to time MBNA Capital E, MBNA Capital F or MBNA Capital G, each
a statutory trust formed under the laws of the State of Delaware (each a
"Trust" and collectively, the "Trusts"), and MBNA Corporation, a Maryland
corporation (the "Company"), as depositor of each trust and as guarantor,
propose to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions
as the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, that the Trust identified in the applicable Pricing
Agreement (such Trust being the "Designated Trust" with respect to such
Pricing Agreement) issue and sell to the firms named in Schedule I to the
applicable Pricing Agreement (such firms constituting the "Underwriters" with
respect to such Pricing Agreement and the securities specified therein)
certain of its preferred securities (the "Securities") representing undivided
beneficial interests in the assets of the Designated Trust. The Securities
specified in Schedule II to such Pricing Agreement are referred to as the
"Firm Designated Securities" with respect to such Pricing Agreement. If
specified in such Pricing Agreement, the Designated Trust may grant to the
Underwriters the right to purchase at their election an additional number of
Securities, specified in such Pricing Agreement as provided in Section 3
hereof (the "Optional Designated Securities"). The Firm Designated Securities
and any Optional Designated Securities are collectively called the "Designated
Securities." The proceeds of the sale of the Designated Securities to the
public and of common securities of the Designated Trust (the "Common
Securities") to the Company concurrently with the sale of the Designated
Securities are to be invested in junior subordinated deferrable interest
debentures of the Company (the "Subordinated Debentures") identified in the
Pricing Agreement with respect to such Designated Securities (with respect to
such Pricing Agreement, the "Designated Subordinated Debentures"), to be
issued pursuant to a junior subordinated indenture to be dated as of December
18, 1996 (the "Indenture") between the Company and The Bank of New York, as
trustee. The Designated Securities may be exchangeable into Designated
Subordinated Debentures, as specified in Schedule II to such Pricing
Agreement. The Designated Securities will be guaranteed by the Company to the
extent set forth in the Pricing
Agreement with respect to such Designated Securities (the "Designated
Guarantee") (all such Designated Guarantees together, the "Guarantees").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the amended and restated trust agreement identified in such
Pricing Agreement (with respect to such Pricing Agreement, the "Trust
Agreement").
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated
Securities in the Pricing Agreement relating thereto will act as
representatives (the "Representatives"). The term "Representatives" also
refers to a single firm acting as sole representative of the Underwriters and
to Underwriters who act without any firm being designated as their
representative. This Underwriting Agreement shall not be construed as an
obligation of any Trust to sell any of the Securities or as an obligation of
any of the Underwriters to purchase any of the Securities. The obligation of
any Trust to issue and sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate number of the Firm
Designated Securities, the maximum number of Optional Designated Securities,
if any, the initial public offering price of such Firm and Optional Designated
Securities or the manner of determining such price, the terms of the
Designated Securities, including the terms on which and terms of the
securities into which the Designated Securities will be exchangeable, the
purchase price to the Underwriters of such Designated Securities, the names of
the Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters, the number of such Designated Securities
to be purchased by each Underwriter and the commission, if any, payable to the
Underwriters with respect thereto and shall set forth the date, time and
manner of delivery of such Firm and Optional Designated Securities, if any,
and payment therefor. The Pricing Agreement shall also specify (to the extent
not set forth in the registration statement and prospectus with respect
thereto) the terms of such Designated Securities. A Pricing Agreement shall be
in the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Designated Trust and the Company, jointly and severally, each
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File Nos. 333-45814,
000-00000-00, 000-00000-00 and 333-45814-04) (the "Initial Registration
Statement") in respect of the Securities, the Subordinated Debentures and
the Guarantees (including the Designated Securities, the Designated
Subordinated Debentures and the Designated Guarantees) has been filed
with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration statement,
but including all documents incorporated by reference in the prospectus
included therein, to the Representatives for
2
each of the other Underwriters has been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no
other document with respect to the Initial Registration Statement or
document incorporated by reference therein has heretofore been filed, or
transmitted for filing, with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) under the Act is hereinafter called a "Preliminary Prospectus");
the various parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including (i) the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of the
Initial Registration Statement at the time it was declared effective or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, (ii) all exhibits thereto and (iii) the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective but excluding Forms T-1, each as amended at
the time such part of the registration statement became effective, being
hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Securities, the Subordinated Debentures and
the Guarantees, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") to the date of such amendment or supplement, and
incorporated by reference in such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of
any Trust, if any, and the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or supplemented
shall be deemed to refer to the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in the form in which it
is filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents incorporated
by reference therein as of the date of such filings;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in
3
all material respects to the requirements of the Act or the Exchange Act,
as applicable, 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 required to be stated
therein or necessary to make the statements therein not misleading; and
any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Designated Trust or the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder, and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, 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; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Designated Trust or the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus as amended or supplemented,
except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (B) there have been no transactions entered
into by the Designated Trust, or by the Company or any of the Company's
subsidiaries, other than those in the ordinary course of business, that
are material with respect to the Designated Trust, or to the Company and
its subsidiaries considered as one enterprise, (C) except for regular
dividends, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock
and (D) there has been no material increase in the long-term debt of the
Company, except such increases as are listed in the Pricing Agreement
relating to the Designated Securities;
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Maryland, with power and
4
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(f) Each subsidiary of the Company that is a significant subsidiary,
as defined in Rule 405 of Regulation C under the Act (each, a
"Significant Subsidiary"), has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, except for MBNA America Bank, National
Association (the "Bank") and any other bank subsidiary that is a
Significant Subsidiary, each of which has been duly organized and is
validly existing as a bank under the laws of its jurisdiction of
organization, and each Significant Subsidiary has the power and authority
(corporate and other) to own its properties and to conduct its business
as described in the Prospectus as amended or supplemented;
(g) Each of the Company and each Significant Subsidiary has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to
require qualification;
(h) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(i) The Designated Trust has been duly created and is validly
existing as a statutory trust in good standing under the laws of the
State of Delaware, with power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus as
amended or supplemented; all the outstanding beneficial interests in the
Designated Trust have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the descriptions thereof
contained in the Prospectus as amended or supplemented;
(j) The Designated Securities have been duly and validly authorized,
and, when the Firm Designated Securities are issued and delivered
pursuant to this Agreement and the Pricing Agreement with respect to such
Designated Securities and, in the case of any Optional Designated
Securities, pursuant to Over-allotment Options (as defined in Section 3
hereof) with respect to such Securities, such Designated Securities will
be duly and validly issued and fully paid and non-assessable beneficial
interests in the Designated Trust entitled to the benefits provided by
the applicable Trust Agreement; the Designated Securities conform to the
description thereof contained in the Registration Statement, and the
Designated Securities will conform to the description thereof contained
in the Prospectus as amended or supplemented with respect to such
Designated Securities;
(k) The Common Securities of the Designated Trust have been duly
authorized and, when issued and delivered by the Designated Trust to the
Company against payment therefor as set forth in the Trust Agreement,
will be duly and validly issued and non-assessable beneficial interests
in the Designated Trust and will conform to the description thereof
contained in the Prospectus, as amended or supplemented;
5
(l) The Designated Guarantee, the Trust Agreement for the Designated
Trust, the Designated Subordinated Debentures and the Indenture (the
Designated Guarantee, such Trust Agreement, the Designated Subordinated
Debentures and the Indenture being collectively referred to as the
"Company Agreements") have each been duly authorized and when validly
executed and delivered by the Company and, in the case of the Guarantee,
by the Guarantee Trustee (as defined in the Guarantee) and, in the case
of the Trust Agreement, by the Trustees (as defined in the Trust
Agreement) and, in the case of the Indenture, by the Trustee named
therein (the "Debenture Trustee"), and, in the case of the Designated
Subordinated Debentures, when validly issued by the Company and duly
authenticated and delivered by the Debenture Trustee against payment
therefore as contemplated by the Company Agreements, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, equitable
principles (regardless of whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; the
Designated Subordinated Debentures are entitled to the benefits of the
Indenture; and the Company Agreements, which will be in substantially the
forms filed as exhibits to the Registration Statement, will conform to
the descriptions thereof in the Prospectus as amended or supplemented
with respect to the Designated Securities to which they relate;
(m) The issuance by the Company of the Guarantees and the
Subordinated Debentures; the compliance by the Company with all of the
provisions of this Agreement, any Pricing Agreement, any Over-allotment
Option, the Guarantees and the Subordinated Debentures; the execution,
delivery and performance by the Company of the Company Agreements; and
the consummation of the transactions contemplated herein and therein,
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company is a party or by which the Company is bound or to
which any of the material property or assets of the Company is subject,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any statute or
any order, rule or regulation of any court or governmental agency or body
(including, without limitation, the Board of Governors of the Federal
Reserve System, the Office of the Comptroller of the Currency and the
Federal Deposit Insurance Corporation) having jurisdiction over the
Company or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue of the
Guarantees or the Subordinated Debentures or the consummation by the
Company of the other transactions contemplated by this Agreement, any
Pricing Agreement or the Company Agreements, except such as have been or
will have been, prior to each Time of Delivery (as defined in Section 4
hereof), obtained under the Act or the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the issuance by the Company of the Guarantees and the Subordinated
Debentures;
(n) The issue and sale of the Designated Securities by the
Designated Trust; the compliance by the Designated Trust with all of the
provisions of this Agreement, any
6
Pricing Agreement, any Over-allotment Option and the Designated
Securities; the purchase of the Designated Subordinated Debentures by the
Designated Trust; the execution, delivery and performance by the
Designated Trust of the Trust Agreement and the consummation of the
transactions contemplated herein and therein, will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Trust is a party
or by which such Trust is bound or to which any of the material property
or assets of such Trust is subject, nor will such action result in any
violation of the provisions of the Trust Agreement or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over such Trust or any of its properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Designated Securities and the Common Securities by
such Trust, the purchase of the Subordinated Debentures by the such Trust
or the consummation by such Trust of the transactions contemplated by
this Agreement, the Pricing Agreement or any Over-allotment Option or the
Trust Agreement, except such as have been, or will have been, prior to
each Time of Delivery, obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(o) Other than as set forth in the Prospectus as amended or
supplemented, there are no legal or governmental proceedings pending to
which the Designated Trust, the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries
is the subject, which, if determined adversely to the Designated Trust,
the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity (or net assets, as the case may be) or
results of operations of the Designated Trust, or the Company and its
subsidiaries; and, to the best of the Designated Trust's and the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(p) Each of the Company, the Bank, and the Designated Trust is in
substantial compliance with, and conducts its business in substantial
conformity with, all applicable laws and governmental regulations; and
(q) Neither the Designated Trust nor the Company is or, after giving
effect to the offering and sale of the Securities, will be, an
"investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act").
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of the Firm Designated Securities, the several Underwriters propose to offer
the Firm Designated Securities for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented.
7
The Designated Trust may specify in the Pricing Agreement applicable to
any Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities set forth in such
Pricing Agreement, on the terms set forth in the paragraph above, for the sole
purpose of covering over-allotments in the sale of the Firm Designated
Securities. Any such election to purchase Optional Designated Securities may
be exercised only by written notice from the Representatives to the Designated
Trust and the Company, given within a period specified in the Pricing
Agreement, setting forth the aggregate number of Optional Designated
Securities to be purchased and the date on which such Optional Designated
Securities are to be delivered, as determined by the Representatives but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof)
or, unless the Representatives, the Designated Trust and the Company otherwise
agree in writing, earlier than or later than the respective number of business
days after the date of such notice set forth in such Pricing Agreement.
The number of Optional Designated Securities to be added to the number of
Firm Designated Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which the
Designated Trust and the Company have been advised by the Representatives have
been attributed to such Underwriter; provided that, if the Designated Trust
and the Company have not been so advised, the number of Optional Designated
Securities to be so added shall be, in each case, that proportion of Optional
Designated Securities which the number of Firm Designated Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Designated Securities (rounded as the Representatives
may determine to the nearest 100 securities). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm Designated Securities set
forth in Schedule I to such Pricing Agreement plus the aggregate number of
Optional Designated Securities which the Underwriters elect to purchase.
As compensation to the Underwriters of the Designated Securities for
their commitments hereunder and under the Pricing Agreement, and in view of
the fact that the proceeds of the sale of the Designated Securities will be
used by the Designated Trust to purchase the Designated Subordinated
Debentures of the Company, the Company agrees to pay at each Time of Delivery
to the Representatives, for the accounts of the several Underwriters, the
amount set forth in the Pricing Agreement per preferred security for the
Designated Securities to be delivered at such Time of Delivery.
4. Certificates for the Firm Designated Securities and the Optional
Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight hours' prior
notice to the Designated Trust and the Company, shall be delivered by or on
behalf of the Designated Trust to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of immediately available funds to an
account designated by the Designated Trust, (i) with respect to the Firm
Designated Securities, all in the manner and at the place and time and date
specified in such Pricing Agreement or at such other place and time and date
as the Representatives, the
8
Designated Trust and the Company may agree upon in writing, such time and date
being herein called the "First Time of Delivery" and (ii) with respect to the
Optional Designated Securities, if any, in the manner and at the time and date
specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Designated Securities, or at such other time and date as the Representatives,
the Designated Trust and the Company may agree upon in writing, such time and
date, if not the First Time of Delivery, herein called the "Second Time of
Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Designated Trust and the Company, jointly and severally, each
agrees with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to make
no further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to any Time of Delivery
for such Securities which shall be disapproved by the Representatives for
such Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after any
Time of Delivery for the Designated Securities and furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Designated Trust or the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery
of a prospectus is required in connection with the offering or sale of
the Designated Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, of the suspension of
the qualification of the Designated Securities, the Designated Guarantees
or the Designated Subordinated Debentures for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information with respect to the registration or sale of the
Securities; and, in the event of the issuance of any such stop order or
of any such order preventing or suspending the use of any prospectus
relating to the Securities or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities, the Designated Guarantees or the Designated Subordinated
Debentures for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such
laws so as
9
to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities, provided that in connection
therewith neither the Designated Trust nor the Company shall be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may
from time to time reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Designated Securities, the Designated Guarantees or the
Designated Subordinated Debentures and if at such time any event 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 during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any dealer
in securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) In the case of the Company, to make generally available to its
security holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the last Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of, except as provided
hereunder, any Securities, any other beneficial interests in the assets
of any Trust, or any preferred securities or any other securities of any
Trust or the Company, as the case may be, which are substantially similar
to such Designated Securities (including any guarantee of such
securities);
(f) In the case of the Company, to issue the Guarantee and the
Subordinated Debentures concurrently with the issue and sale of the
Securities as contemplated herein or in the Pricing Agreement;
(g) If required by the relevant Pricing Agreement, to use its best
efforts to list, subject to notice of issuance, the Designated Securities
on the New York Stock Exchange and, if the Company elects to terminate
the Designated Trust and to distribute the Designated Subordinated
Debentures to the holders of the Designated Securities in
10
liquidation of the Designated Trust, to use its best efforts to list the
Designated Subordinated Debentures, subject to notice of issuance, on the
New York Stock Exchange prior to such distribution; and
(h) If the Trust and the Company elect to rely upon Rule 462(b), the
Trust and the Company shall file a Rule 462(b) Registration Statement
with the Commission in compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the first business day following the date of
the Pricing Agreement, and the Trust and the Company shall at the time of
filing either pay to 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) under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities, the Guarantees and the
Subordinated Debentures under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements
thereto and the reasonable expenses of mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Company Agreement, any Blue Sky and Legal Investment Memoranda,
and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities, the Guarantees and the Subordinated
Debentures for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment survey(s); (iv) any fees
charged by securities rating services for rating the Securities and the
Subordinated Debentures; (v) any filing fees incident to any required reviews
by the National Association of Securities Dealers, Inc. of the terms of the
sale of the Securities and the issuance of the Guarantees and the Subordinated
Debentures; (vi) the cost of preparing certificates for the Securities and the
Subordinated Debentures; (vii) the cost and charges of any transfer agent or
registrar or dividend disbursing agent; (viii) the fees and expenses of any
Trustee, Debenture Trustee and Guarantee Trustee, and any agent of any trustee
and the fees and disbursements of counsel for any trustee in connection with
any Trust Agreement, Indenture, Guarantee and the Securities; (ix) the cost of
qualifying the Securities with The Depository Trust Company; (x) any fees and
expenses in connection with listing the Securities and the Subordinated
Debentures and the cost of registering the Securities under Section 12 of the
Exchange Act; and (xi) all other reasonable costs and expenses incident to the
performance of its obligations hereunder and under any Over-allotment Options
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Section 8
and Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of
11
the Designated Trust and the Company in or incorporated by reference in the
Pricing Agreement relating to such Designated Securities are, at and as of
each Time of Delivery for such Designated Securities, true and correct, the
condition that the Designated Trust and the Company shall have performed all
of their respective obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Securities shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; if the Trust and the Company have elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the first
business day following the date of the Pricing Agreement; 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 all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated each Time of Delivery for
such Designated Securities, with respect to the incorporation of the
Company and the formation of the Designated Trust, the validity of the
Designated Securities, the Designated Subordinated Debentures, the
Designated Guarantee, the Registration Statement, the Prospectus as
amended or supplemented, as well as such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Xxxx X. Xxxxxxxx, Corporate Counsel of the Company or other
counsel for the Company satisfactory to the Representatives shall have
furnished to the Representatives their written opinions, dated each Time
of Delivery for such Designated Securities, respectively, in form and
substance satisfactory to the Representatives, 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
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus as amended or supplemented;
(ii) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, except
for the Bank and any other national bank subsidiary, which has been
duly organized and is validly existing under the laws of the United
States, and each Significant Subsidiary has the power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus as amended or supplemented (such
counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local
12
counsel and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that such
counsel shall state that he believes that both the Representatives
and such counsel are justified in relying upon such opinions and
certificates);
(iii) The Company and each Significant Subsidiary has been duly
qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to
require qualification, or is subject to no material liability or
disability by reason of failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the Company or
its subsidiaries, provided that such counsel shall state that they
believe that both the Representatives and such counsel are justified
in relying upon such opinions and certificates);
(iv) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented, and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(v) To such counsel's knowledge and other than as set forth in
the Prospectus as amended or supplemented, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries, or the Designated Trust, is a party or of which any
property of the Company or any of its subsidiaries , or the
Designated Trust, is the subject which, if determined adversely to
the Company or any of its subsidiaries, or the Designated Trust, as
the case may be, would individually or in the aggregate have a
material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, or the property of the Designated Trust, as the case
may be, and to such counsel's knowledge no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(vi) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(vii) The issuance by the Company of the Designated Guarantee
and the Designated Subordinated Debentures, the compliance by the
Company with all of the provisions of this Agreement and the Pricing
Agreement with respect to the Designated Securities, the execution,
delivery and performance by the Company of the Company Agreements
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to
which the Company is a party or by which the Company is
13
bound or to which any of the property or assets of the Company is
subject; nor will such actions result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body (including,
without limitation, the Board of Governors of the Federal Reserve
System, the Office of the Comptroller of the Currency and the
Federal Deposit Insurance Corporation) having jurisdiction over the
Company or any of its properties;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated Securities
being delivered at such Time of Delivery or the issuance of the
Designated Guarantee and the Designated Subordinated Debentures or
the consummation by the Designated Trust or the Company of the
transactions contemplated by this Agreement or such Pricing
Agreement and the Company Agreements, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Designated
Securities by the Underwriters or the issuance of the Designated
Guarantee and Designated Subordinated Debentures by the Company; and
(ix) Although such counsel has not independently verified and
does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement
or the Prospectus as amended or supplemented, such counsel has no
reason to believe that, as of the date of the filing of the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, the Registration Statement or any further
amendment thereto made by the Designated Trust or the Company prior
to such Time of Delivery (other than the financial statements and
related schedules and other financial and statistical data therein
and the Form T-1 Statements of Eligibility and Qualification of the
Trustees, as to which such counsel need express no opinion)
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, as of its date, the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Designated Trust or the Company prior
to such Time of Delivery (other than the financial statements and
related schedules and other financial and statistical data therein
and the Form T-1 Statements of Eligibility and Qualification of the
Trustees, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the
Designated Trust or the Company prior to such Time of Delivery
(other than the financial statements and related schedules and other
financial and statistical data therein and the Form T-1 Statements
of Eligibility and
14
Qualification of the Trustees, as to which such counsel need express
no opinion) contains an 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; and such counsel does not know of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended
or supplemented that are not filed or incorporated by reference or
described as required.
In giving such opinion, such counsel may rely as to all matters governed
by the laws of the State of New York, on the opinion delivered pursuant to
Section 7(d) hereof by Xxxxxxx Xxxxxxx & Xxxxxxxx.
(d) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company, shall have
furnished to the Representatives their written opinions, dated each Time
of Delivery for such Designated Securities, respectively, in form and
substance satisfactory to the Representatives, 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 Maryland;
(ii) The Pricing Agreement with respect to the Designated
Securities has been duly authorized, executed and delivered by the
Company;
(iii) The statements set forth (i) in the Prospectus under the
captions "Description of Junior Subordinated Debt Securities",
"Description of Trust Preferred Securities", "Description of Trust
Preferred Securities Guarantees" and "Relationship Among the Trust
Preferred Securities, the Junior Subordinated Debt Securities and
the Guarantees", and (ii) in the Prospectus as amended or
supplemented under the captions "Description of the Preferred
Securities" and "Description of the Debentures", insofar as they
purport to constitute summaries of certain terms of the Designated
Securities and the Company Agreements, in each case constitute
accurate summaries of the Company Agreements and of the terms of
such securities, as set forth in the Company Agreements, in all
material respects;
(iv) The Designated Subordinated Debentures are in the form
prescribed in or pursuant to the Indenture, have been duly and
validly authorized by the Company by all necessary corporate action
and, when completed, executed and authenticated as specified in or
pursuant to the Indenture and issued and delivered against payment
therefore as specified in the Company Agreements, will be valid and
legally binding obligations of the Company, enforceable in
accordance with their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, to general equitable principles (whether
15
considered in a proceeding in equity or at law) and by an implied
covenant of good faith and fair dealing;
(v) The Indenture, the Designated Guarantee and the Trust
Agreement for the Designated Trust have each been duly authorized,
executed and delivered by the Company and, assuming that the
Indenture is the valid and legally binding obligation of the
Debenture Trustee and the Designated Guarantee is the valid and
legally binding obligation of the Guarantee Trustee, the Indenture
and the Designated Guarantee constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, to general
equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing;
and the Indenture, the Designated Guarantee and the Designated Trust
Agreement have been duly qualified under the Trust Indenture Act;
(vi) The Designated Trust is not an "investment company" within
the meaning of and subject to regulation under the Investment
Company Act of 1940, as amended; and
(vii) The Registration Statement and the Prospectus as amended
or supplemented, and any further amendments and supplements thereto
made by the Designated Trust or the Company prior to such Time of
Delivery (other than the financial statements and related schedules
and other financial and statistical data therein and the Form T-1
Statements of Eligibility and Qualification of the Trustees, as to
which such counsel need express no opinion), comply as to form in
all material respects with requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; although
they have not independently verified and do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in
subsection (iii) of this Section 7(d), they have no reason to
believe that, as of its effective date, the Registration Statement
or any further amendment thereto made by the Designated Trust or the
Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial and statistical
data therein and the Form T-1 Statements of Eligibility and
Qualification of the Trustees, as to which such counsel need express
no opinion) 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, as
of its date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Designated Trust
or the Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial and
statistical data therein and the Form T-1 Statements of Eligibility
and Qualification of the Trustees, as to which such counsel need
express no opinion) contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements
therein, in the light of the
16
circumstances under which they were made, not misleading or that, as
of such Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Designated Trust or the Company prior
to such Time of Delivery (other than the financial statements and
related schedules and other financial and statistical data therein
and the Form T-1 Statements of Eligibility and Qualification of the
Trustees, as to which such counsel need express no opinion) contains
an 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; and such
counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented that are not filed or incorporated by reference or
described as required.
In giving such opinion, such counsel may rely as to all matters governed
by the laws of the State of Maryland, on the opinion delivered pursuant to
Section 7(c) hereof by Xxxx X. Xxxxxxxx.
(e) Special Delaware Counsel to the Designated Trust and the Company
satisfactory to the Representatives, shall have furnished to the
Representatives, the Company and the Designated Trust their written
opinion, dated the respective Time of Delivery, in form and substance
satisfactory to the Representatives, to the effect that
(i) The Designated Trust has been duly created and is validly
existing in good standing as a statutory trust under the Delaware
Statutory Trust Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence
of the Designated Trust as a statutory trust have been made;
(ii) Under the Delaware Statutory Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to own
property and conduct its business, all as described in the
Prospectus as amended or supplemented;
(iii) The Trust Agreement constitutes a valid and legally
binding obligation of the Company and the Trustees, enforceable
against the Company and the Trustees in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(iv) Under the Delaware Statutory Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to (a)
execute and deliver, and to perform its obligations under, this
Agreement and the Pricing Agreement and (b) issue and perform its
obligations under the Designated Securities and the Common
Securities of the Designated Trust;
17
(v) Under the Delaware Statutory Trust Act and the Trust
Agreement, the execution and delivery by the Designated Trust of
this Agreement and the Pricing Agreement, and the performance by the
Designated Trust of its obligations thereunder and thereunder, have
been duly authorized by all necessary action on the part of the
Designated Trust;
(vi) The Designated Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and non-assessable
beneficial interests in the Designated Trust and are entitled to the
benefits provided by the Trust Agreement; the holders of the
Securities, as beneficial owners of the Designated Trust, will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware; provided that such
counsel may note that the holders of the Securities may be
obligated, pursuant to the Trust Agreement, to (a) provide indemnity
and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of Securities
certificates and the issuance of replacement Securities certificates
and (b) provide security and indemnity in connection with requests
of or directions to the Property Trustee (as defined in the Trust
Agreement) to exercise its rights and remedies under the Trust
Agreement;
(vii) The Common Securities of the Designated Trust have been
duly authorized by the Trust Agreement and are validly issued and
represent beneficial interests in the Designated Trust;
(viii) Under the Delaware Statutory Trust Act and the Trust
Agreement, the issuance of the Designated Securities and the
issuance of the Common Securities of the Designated Trust are not
subject to preemptive rights;
(ix) The issuance and sale by the Designated Trust of
Designated Securities and the Common Securities of the Designated
Trust, the execution, delivery and performance by the Designated
Trust of this Agreement and the Pricing Agreement, the consummation
by the Designated Trust of the transactions contemplated thereby and
compliance by the Designated Trust with its obligations thereunder
will not violate (a) any of the provisions of the Certificate of
Trust of the Designated Trust (including any amendments thereto) or
the Trust Agreement, or (b) any applicable Delaware law or
administrative regulation;
(x) Assuming that the Designated Trust derives no income from
or connected with services provided within the State of Delaware and
has no assets, activities (other than maintaining the Delaware
Trustee and the filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of Delaware, no
authorization, approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by the
Designated Trust solely in connection with the issuance and sale of
the Designated Securities and the Common Securities of the
Designated Trust. (In
18
rendering the opinion expressed in this paragraph (x), such counsel
need express no opinion concerning the securities laws of the State
of Delaware.); and
(xi) Assuming that the Designated Trust derives no income from
or connected with services provided within the State of Delaware and
has no assets, activities (other than maintaining the Delaware
Trustee and the filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of Delaware, the
holders of the Securities (other than those holders of the
Securities who reside or are domiciled in the State of Delaware)
will have no liability for income taxes imposed by the State of
Delaware solely as a result of their participation in the Designated
Trust, and the Designated Trust will not be liable for any income
tax imposed by the State of Delaware.
(f) Tax counsel for the Designated Trust and the Company
satisfactory to the Representatives shall have furnished to the
Representatives their written opinion, dated the respective Time of
Delivery, in form and substance satisfactory to the Representatives, to
the effect that such firm confirms its opinion set forth in the
Prospectus as amended or supplemented under the caption "United States
Federal Income Tax Consequences";
(g) At each Time of Delivery for such Designated Securities, the
independent accountants of the Company who have audited the consolidated
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated such Time of Delivery,
to the effect set forth in Annex II hereto and as to such other matters
as the Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(h) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus as amended or supplemented,
except as otherwise stated therein, (A) there shall have been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (B) there shall have been no transactions
entered into by the Designated Trust or the Company or any of the
Company's subsidiaries, other than those in the ordinary course of
business, that are material with respect to the Designated Trust or the
Company and its subsidiaries considered as one enterprise, (C) except for
regular dividends, there shall have been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock and (D) there shall have been no material increase in the
long-term debt of the Company, except such increases as are listed in the
Pricing Agreement relating to such Securities, the effect of which, in
any such case described in Clause (A), (B), (C), or (D), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Underwriters' Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
19
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g) under the Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities or preferred stock, other than
any such surveillance or review in effect on or prior to the date hereof;
(j) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a general moratorium on
commercial banking activities in New York declared by either Federal or
New York State authorities; or (iii) any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or
war, or other calamity or crisis the effect of which on financial markets
is such as to make it, in the sole judgment of the Representative,
impractical or inadvisable to proceed with the offering or delivery of
the Designated Securities on the terms and in the manner contemplated in
the Prospectus as amended or supplemented;
(k) If required by the relevant Pricing Agreement, the Designated
Securities at each Time of Delivery shall have been duly listed subject
to notice of issuance on the New York Stock Exchange;
(l) No order shall have been issued by any Federal or state bank or
securities regulatory authority in respect of the offering of the
Designated Securities which would interfere with the offering of the
Designated Securities and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company, shall be contemplated by
any such authority; and
(m) The Designated Trust and the Company shall have furnished or
caused to be furnished to the Representatives at each Time of Delivery
for the Designated Securities certificates of officers of the Designated
Trust and the Company satisfactory to the Representatives as to the
accuracy of the representations and warranties of the Designated Trust
and the Company herein at and as of such Time of Delivery, as to the
performance by the Designated Trust and the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to matters set forth in subsections (a), (h) and (l) of this
Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Designated Trust and the Company, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Designated
20
Securities, or any amendment or supplement thereto, or arise out of or are
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 will reimburse each Underwriter for any reasonable legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Designated Trust nor the Company
shall be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Designated Trust and the Company by any Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Designated
Trust and the Company against any losses, claims, damages or liabilities to
which the Designated Trust or the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Designated Securities, or any amendment or supplement thereto, or arise
out of or are 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating to the Designated
Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Designated Trust and the
Company by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Designated Trust and the Company for any legal
or other expenses reasonably incurred by the Designated Trust or the Company
in connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify such
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying
21
party shall not be liable to such indemnified party under such subsection for
any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Designated Trust and the Company on the one hand and the
Underwriters of the Designated Securities on the other from the offering of
the Designated Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if
the indemnified party fails to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Designated Trust and the Company on the one hand and the Underwriters of the
Designated Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Designated Trust and the
Company on the one hand and such Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Designated Trust and the Company bear to
the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Designated Trust and the Company on the one hand
or such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Designated Trust, the Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the other provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the applicable Designated Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of
the Underwriters of Designated Securities in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations with
respect to such Securities and not joint.
22
(e) The obligations of the Designated Trust and the Company under this
Section 8 shall be in addition to any liability which the Designated Trust and
the Company may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of any Underwriter and to each
person, if any, who controls any Underwriter within the meaning of the Act;
and the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Designated Trust and the Company and to each person, if any,
who controls the Designated Trust and the Company within the meaning of the
Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Designated Securities or Optional Designated Securities which it has
agreed to purchase under the Pricing Agreement relating to such Securities,
the Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Firm Designated
Securities or Optional Designated Securities, as the case may be, then the
Designated Trust shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the
Designated Trust that they have so arranged for the purchase of such
Securities, or the Designated Trust notifies the Representatives that it has
so arranged for the purchase of such Securities, the Representatives or the
Designated Trust shall have the right to postpone a Time of Delivery for such
Securities for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement
or the Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Designated Trust agrees to file promptly any amendments
or supplements to the Registration Statement or the Prospectus which in the
opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Designated Securities or Optional Designated Securities, as the case may
be, of a defaulting Underwriter or Underwriters by the Representatives and the
Designated Trust as provided in subsection (a) above, the aggregate number of
such Securities that remain unpurchased does not exceed one-eleventh of the
aggregate number of the Firm Designated Securities or Optional Designated
Securities, as the case may be, to be purchased at the respective Time of
Delivery, then the Designated Trust shall have the right to require each
non-defaulting Underwriter to purchase the number of Firm Designated
Securities or Optional Designated Securities, as the case may be, that such
Underwriter agreed to purchase under the Pricing Agreement relating to such
Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Firm
Designated Securities or Optional Designated Securities, as the case may be,
that such Underwriter agreed to purchase under such Pricing Agreement) of the
Firm Designated Securities or Optional Designated Securities, as the case may
be, of such defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
23
(c) If, after giving effect to any arrangements for the purchase of the
Firm Designated Securities or Optional Designated Securities, as the case may
be, of a defaulting Underwriter or Underwriters by the Representatives and the
Designated Trust as provided in subsection (a) above, the aggregate number of
Firm Designated Securities or Optional Designated Securities, as the case may
be, which remains unpurchased exceeds one-eleventh of the aggregate number of
the Firm Designated Securities or Optional Designated Securities, as the case
may be, to be purchased at the respective Time of Delivery, as referred to in
subsection (b) above, or if the Designated Trust shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Designated Securities or the Over-allotment
Option relating to such Optional Designated Securities, as the case may be,
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Designated Trust or the Company, except for the expenses to
be borne by the Designated Trust and the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Designated Trust or the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Designated Trust or the Company, or any officer or
director or controlling person of the Designated Trust or the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, neither the Designated Trust nor the Company
shall then be under any liability to any Underwriter with respect to the Firm
Designated Securities or Optional Designated Securities with respect to which
such Pricing Agreement shall have been terminated except as provided in
Section 6 and Section 8 hereof; but, if for any other reason, Designated
Securities are not delivered by or on behalf of the Designated Trust or the
Company as provided herein, the Company will reimburse the Underwriters
through the Representatives for all reasonable out-of-pocket expenses approved
in writing by the Representatives, including reasonable fees and disbursements
of counsel, reasonably incurred by the Underwriters in making preparations for
the purchase, sale and delivery of such Designated Securities, but the
Designated Trust or the Company shall then be under no further liability to
any Underwriter with respect to such Designated Securities except as provided
in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by
such Representatives jointly or by such of the Representatives, if any, as may
be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address
24
of the Representatives as set forth in the Pricing Agreement; and if to the
Designated Trust or the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Designated Trust or the Company,
respectively, set forth in the Registration Statement, Attention: Chief
Financial Officer; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Designated Trust and the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, each Designated Trust, the
Company and, to the extent provided in Section 8 and Section 10 hereof, the
officers and directors of each Designated Trust, the Company and each person
who controls any Designated Trust or the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Designated
Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence with respect to each Pricing Agreement.
As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each
of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
26
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof.
Very truly yours,
MBNA Corporation MBNA Capital E
By: MBNA Corporation
as Depositor
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxx
----------------------------- -------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx
Title: Vice President and Title: Vice President and
Assistant Treasurer Assistant Treasurer
MBNA Capital F MBNA Capital G
By: MBNA Corporation By: MBNA Corporation
as Depositor as Depositor
By: By:
----------------------------- --------------------------------
Name: Name:
Title: Title:
Accepted on behalf of ourselves and the other Underwriters listed in Schedule
I to the Pricing Agreement:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By: Xxxxxxx Xxxxx & Co.
(Authorized Attorney)
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
26
ANNEX I
Pricing Agreement
[Name(s) of Co-Representative(s),]
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o _______________________________
___________________________________
___________________________________
Date: ____________
Ladies and Gentlemen:
MBNA Capital __, a statutory trust formed under the laws of the State of
Delaware (the "Designated Trust") and MBNA Corporation, a Maryland corporation
(the "Company"), propose, subject to the terms and conditions stated herein
and in the Underwriting Agreement, dated _______ __, ____ (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities" [consisting of Firm Designated Securities and any
Optional Designated Securities the Underwriters may elect to purchase]). The
principal asset of the Trust consists of debt securities of the Company (the
"Subordinated Debentures"), as specified in Schedule II to this Agreement. The
Designated Securities will be guaranteed by the Company to the extent set
forth in this Agreement with respect to such Designated Securities (the
"Guarantee"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its 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; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which refers
to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed
to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in
relation to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer
to you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated
to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth in Schedule II hereto.
An amendment to the Initial Registration Statement or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
I-1
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Designated Trust, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the number of Firm Designated
Securities set forth opposite the name of such Underwriter in Schedule I
hereto and, (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Designated Securities, as provided
below, the Designated Trust agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Designated Trust at the purchase price to the
Underwriters set forth in Schedule II hereto that portion of the number of
Optional Designated Securities as to which such election shall have been
exercised.
The Designated Trust hereby grants to each of the Underwriters the right
to purchase at their election up to the number of Optional Designated
Securities set forth opposite the name of such Underwriter in Schedule I
hereto on the terms referred to in the paragraph above for the sole purpose of
covering over-allotments in the sale of the Firm Designated Securities. Any
such election to purchase Optional Designated Securities may be exercised by
written notice from the Representatives to the Designated Trust and the
Company given within a period of 30 calendar days after the date of this
Pricing Agreement, setting forth the aggregate number of Optional Designated
Securities to be purchased and the date on which such Optional Designated
Securities are to be delivered, as determined by the Representatives, but in
no event earlier than the First Time of Delivery or, unless the
Representatives and the Designated Trust otherwise agree in writing, no
earlier than two or later than ten business days after the date of such
notice.
I-2
If the foregoing is in accordance with your understanding, please sign
and return to us [___] counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Designated Trust and the Company. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is or
will be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Designated Trust and
the Company for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
MBNA Corporation
By:
--------------------------------
Name:
Title:
MBNA Capital ___
By: MBNA Corporation,
as Depositor
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Co-Representative(s)]
As Representatives of the Underwriters
Named in Schedule I hereto
By:
--------------------------------
Name:
Title:
I-3
SCHEDULE I
Number of Firm Maximum Number of
Designated Optional Designated
Securities to be Securities Which
Underwriter Purchased May be Purchased
-----------
[Names of Underwriters]......................
Total
I-4
SCHEDULE II
Designated Trust:
MBNA Capital __
Title of Designated Securities:
____% Capital Securities, Series __
(Liquidation Amount $__________ per Preferred Security)
Aggregate principal amount:
Aggregate Liquidation Amount of Designated
Securities to be sold: $_____________
Price to Public:
$_____ per each of the Designated Securities
Purchase Price by Underwriters:
$_____ per each of the Designated Securities
Underwriters' Compensation:
As compensation to the Underwriters for their commitments hereunder, and
in view of the fact that the proceeds of the sale of the Designated
Securities will be used by the Designated Trust to purchase the
Subordinated Debentures of the Company, the Company hereby agrees to pay
at each Time of Delivery to the Representatives, for the accounts of the
several Underwriters, an amount equal to $__________ per preferred
security for the Designated Securities to be delivered at each Time of
Delivery.
Specified funds for payment of purchase price:
Immediately available funds
Accountants' Letter to be delivered on date of Pricing Agreement:
Yes.
Trust Agreement:
Amended and Restated Trust Agreement dated as of ________ __, ____,
between the Company and the Trustees named therein
I-5
Indenture:
Indenture dated as of ________ __, 199_, between the Company and
[Debenture Trustee], as Debenture Trustee and Supplemental Indenture No.
__ dated as of ________ __, ____, between the Company and the Debenture
Trustee (collectively the "Indenture")
Guarantee:
Guarantee Agreement dated as of ________ __, ____, between Company and
[Guarantee Trustee], as Guarantee Trustee
Title of Subordinated Debentures:
Maturity:
________ __, ____
Interest Rate:
____%
Interest Payment Dates:
Extension Period:
Redemption Provisions:
[As set forth in the attached pages of the prospectus supplement dated
__________]
Sinking Fund Provisions:
[No sinking fund provisions.]
Listing:
[Required] [Not Required]
Time of Delivery:
I-6
10:00 a.m., New York City time
________ __, ____
Closing Location:
Names and addresses of Representatives:
I-7
ANNEX II
Pursuant to Section 7(g) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, prospective financial statements and/or pro forma financial
information examined) by them and included or incorporated by reference
in the Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the Act
or the Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies
of which have been furnished to the representatives of the Underwriters
(the "Representatives");
(iii) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with
the corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for such five fiscal years
which were included or incorporated by reference in the Company's Annual
Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows included
or incorporated by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act as it applies to Form 10-Q and the related published rules and regulations
thereunder or are not in conformity with generally accepted accounting
principles applied on a
II-1
basis substantially consistent with the basis for the audited consolidated
statements of income, consolidated balance sheets and consolidated statements
of cash flows included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the corresponding amounts in
the audited consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement data
and balance sheet items included in the Prospectus and referred to in Clause
(B) were not determined on a basis substantially consistent with the basis for
the audited financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements of
the Act and the published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of the date of the most recently available monthly unaudited
consolidated financial statements, there have been any changes in the
consolidated capital stock (other than issuances of capital stock upon
exercise of options which were outstanding on the date of the latest balance
sheet included or incorporated by reference in the Prospectus) or any increase
in the consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or net assets or other items
reasonably specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with amounts shown
in the latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts of consolidated
net income or other items reasonably specified by the Representatives, or any
increases in any items reasonably specified by the Representatives, in each
case as compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Representatives, except
in each case for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
II-2
(G) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the
general accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference) or in Part
II of, or in exhibits and schedules to, the Registration Statement specified
by the Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for
such Designated Securities.
