[THIS EXHIBIT 1(d) IS THE FORM OF UNDERWRITING AGREEMENT TO BE USED BY EACH OF
▇▇▇▇▇▇ BROTHERS HOLDINGS CAPITAL TRUST I, ▇▇▇▇▇▇ BROTHERS HOLDINGS CAPITAL TRUST
II AND ▇▇▇▇▇▇ BROTHERS HOLDINGS CAPITAL TRUST III IN CONNECTION WITH THEIR
ISSUANCE AND SALE OF PREFERRED SECURITIES]
EXHIBIT 1(d)
PREFERRED SECURITIES
▇▇▇▇▇▇ BROTHERS HOLDINGS CAPITAL TRUST __
UNDERWRITING AGREEMENT
New York, New York
Dated the date set forth
In Schedule I hereto
To the Representative(s)
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
▇▇▇▇▇▇ Brothers Holdings Capital Trust ____, a Delaware statutory
business trust (the "Trust"), proposes to issue and sell to you and the other
underwriters named in Schedule II hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives"), the aggregate liquidation
amount (the "Firm Securities") identified in Schedule I hereto of the Trust's
preferred securities (the "Preferred Securities") guaranteed (the "Guarantee";
together with the Preferred Securities, the "Securities") by the Company (as
defined herein) to the extent set forth in the Guarantee Agreement (the
"Guarantee Agreement") identified in such Schedule I, to be entered into between
the Company and the guarantee trustee (the "Guarantee Trustee") identified
therein. In addition, the Trust proposes to grant to the Underwriters an option
to purchase up to an additional aggregate liquidation amount of the Preferred
Securities identified in Schedule I hereto on the terms and for the purposes set
forth in Section 3 hereof (the "Option Securities"). The Firm Securities and the
Option Securities, if purchased, are hereinafter collectively called "Preferred
Securities". ▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation (the
"Company"), will be the owner of all of the beneficial ownership interests
represented by common securities (the "Common Securities") of the Trust.
Concurrently with the issuance of the Securities and the Company's purchase of
all of the Common Securities of the Trust, the Trust will invest the proceeds of
each in the Company's debt securities identified in Schedule I hereto (the
"Debentures"). The Debentures are to be issued under the indenture (the
"Indenture") identified in such Schedule I, between the Company and the
indenture trustee (the "Indenture Trustee") identified therein. If the firm or
firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives" shall
each be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to each Underwriter that:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Securities Act"), and
the rules and regulations promulgated thereunder (the "Rules"), and has
carefully prepared and filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the file number
of which is set forth in Schedule I hereto), which has become effective,
for the registration of the Securities under the Securities Act. The
registration statement, as amended at the date of this Agreement, meets
the requirements set forth in Rule 415(a)(1)(x) under the Securities Act
and complies in all other material respects with such rule. The Company
proposes to file with the Commission pursuant to Rule 424 under the
Securities Act ("Rule 424") a supplement to the form of prospectus
included in the registration statement relating to the initial offering of
the Securities and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with respect
to the Company to be set forth therein. The term "Registration Statement"
means the registration statement, as amended at the date of this
Agreement, including the exhibits thereto, financial statements, and all
documents incorporated therein by reference pursuant to Item 12 of Form
S-3 (the "Incorporated Documents"), and such prospectus as then amended,
including the Incorporated Documents, is hereinafter referred to as the
"Basic Prospectus"; and such supplemented form of prospectus, in the form
in which it shall be filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented), is hereinafter called
the "Final Prospectus". Any preliminary form of the Basic Prospectus which
has heretofore been filed pursuant to Rule 424 is hereinafter called the
"Interim Prospectus". Any reference herein to the Registration Statement,
the Basic Prospectus, any Interim Prospectus or the Final Prospectus shall
be deemed to refer to and include the Incorporated Documents which were
filed under the Securities Exchange Act of 1934 (the "Exchange Act"), on
or before the date of this Agreement or the issue date of the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus shall be deemed
to refer to and include the filing of any Incorporated Documents under the
Exchange Act after the date of this Agreement or the issue date of the
Basic Prospectus, any Interim Prospectus or the Final Prospectus, as the
case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed with the Commission pursuant to Rule 424, when, before either
Closing Date (hereinafter defined), any amendment to the Registration
Statement becomes effective, when, before either Closing Date, any
Incorporated Document is filed with the Commission, when any supplement to
the Final Prospectus is filed with the Commission and at each Closing
Date, the Registration Statement, the Final
3
Prospectus and any such amendment or supplement will comply in all
material respects with the applicable requirements of the Securities Act
and the Rules, and the Incorporated Documents will comply in all material
respects with the requirements of the Exchange Act or the Securities Act,
as applicable, and the rules and regulations adopted by the Commission
thereunder; on the date hereof and on each Closing Date, the Indenture
shall have been qualified under and will comply in all material respects
with the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"); on the date it became effective, the Registration Statement did
not, and, on the date that any post-effective amendment to the
Registration Statement becomes effective, the Registration Statement as
amended by such post-effective amendment did not or will not, as the case
may be, 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; on the date the Final Prospectus is
filed with the Commission pursuant to Rule 424 and on each Closing Date,
the Final Prospectus, as it may be amended or supplemented, will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading; and on said
dates, the Incorporated Documents will comply in all material respects
with the applicable provisions of the Exchange Act and rules and
regulations of the Commission thereunder, and, when read together with the
Final Prospectus, or the Final Prospectus as it may be then amended or
supplemented, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they are made, not misleading; PROVIDED THAT the foregoing representations
and warranties in this paragraph (b) shall not apply to statements or
omissions made in reliance upon and in conformity with written information
furnished to the Company by or through the Representatives on behalf of
any Underwriter specifically for use in connection with the preparation of
the Registration Statement or the Final Prospectus, as they may be amended
or supplemented, or to any statements in or omissions from the statements
of eligibility and qualification on Form T-1 of the Indenture Trustee, the
Property Trustee (the "Property Trustee") identified in Schedule I hereto
and the Guarantee Trustee under the Trust Indenture Act (the "Forms T-1").
(c) The Basic Prospectus and any Interim Prospectus, as of
their respective dates, complied in all material respects with the
requirements of the Securities Act and of the Rules and did not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
4
circumstances under which they were made, not misleading. The Commission
has not issued an order preventing or suspending the use of the Basic
Prospectus or any Interim Prospectus.
(d) The nationally recognized firm of independent public
accountants whose report appears in the Company's most recent Annual
Report on Form 10-K, which is incorporated by reference in the Final
Prospectus, are independent public accountants as required by the
Securities Act and the Rules.
(e) In the event that a report of a nationally recognized firm
of independent public accountants regarding historical financial
information with respect to any entity acquired by the Company is required
to be incorporated by reference in the Final Prospectus, such independent
public accountants were independent public accountants, as required by the
Securities Act and the Rules, during the period of their engagement to
examine the financial statements being reported on and at the date of
their report.
(f) The audited consolidated financial statements of the
Company in the Final Prospectus and the Registration Statement present
fairly on a consolidated basis the financial position, the results of
operations, changes in common stock and other stockholder's equity and
cash flows of the Company and its subsidiaries, as of the respective dates
and for the respective periods indicated, all in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved. The unaudited consolidated financial statements of
the Company, if any, included in the Final Prospectus and the Registration
Statement and the related notes are true, complete and correct, subject to
normally recurring changes resulting from year-end audit adjustments, and
have been prepared in accordance with the instructions to Form 10-Q.
(g) Except as described in or contemplated by the Registration
Statement and the Final Prospectus, there has not been any material
adverse change in or any adverse development which materially affects the
business, properties, financial condition or results of the Company or the
Company and its subsidiaries taken as whole, from the dates as of which
information is given in the Registration Statement and Final Prospectus.
(h) This Agreement has been duly and validly authorized,
executed and delivered by the Company; the Guarantee Agreement has been
duly and validly authorized by the Company and, when duly executed and
delivered by the proper officers of the Company (assuming due execution
and delivery by the Guarantee Trustee) will constitute a valid and legally
binding agreement of the Company enforceable
5
against the Company in accordance with its terms; the Indenture has been
duly and validly authorized, executed and delivered by the Company and
(assuming due execution and delivery by the Indenture Trustee) constitutes
a valid and legally binding agreement of the Company, enforceable against
the Company in accordance with its terms; and the Debentures have been
duly and validly authorized, and, when validly authenticated, issued and
delivered in accordance with the Indenture against payment of the purchase
price therefor as provided in this Agreement, will be validly issued and
outstanding obligations of the Company entitled to the benefits of the
Indenture; and the Debentures and the Guarantee, when issued and
delivered, will conform to the descriptions thereof contained in the Final
Prospectus.
(i) The Company does not have any subsidiaries having business
or properties that are material to the business and properties of the
Company and its subsidiaries taken as a whole with the exception of ▇▇▇▇▇▇
Brothers Inc. ("▇▇▇▇▇▇") and the possible exception of ▇▇▇▇▇▇ Commercial
Paper Inc. (the "Named Subsidiaries"). Neither the Company nor either of
the Named Subsidiaries is in violation of its corporate charter or by-laws
or in default under any agreement, indenture or instrument, the effect of
which violation or default would be material to the Company and its
subsidiaries taken as a whole. The execution, delivery and performance of
this Agreement, the Guarantee Agreement, the Indenture and the Debentures
by the Company, the purchase of the Common Securities by the Company from
the Trust, and the consummation by the Company of the transactions
contemplated hereby (the "Company Transactions") will not violate, result
in the creation or imposition of any material lien, charge or encumbrance
upon any of the assets of the Company or any of its subsidiaries pursuant
to the terms of, or constitute a default under, any material agreement,
indenture or instrument, or result in a violation of the corporate charter
or by-laws of the Company or any of its subsidiaries or any order, rule or
regulation of any court or governmental agency having jurisdiction over
the Company, the Named Subsidiaries or their property. Except as set forth
in the Final Prospectus or as required by the Securities Act, the Exchange
Act, the Trust Indenture Act and applicable state securities laws, no
consent, authorization or order of, or filing or registration with, any
court or governmental agency is required for the Company Transactions.
(j) The Company and the Named Subsidiaries have been duly
organized, are validly existing and in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and in good standing as foreign corporations and are fully
registered as a broker-dealer, broker, dealer or investment advisor, as
the case may be, in each jurisdiction in which their
6
respective ownership of property or the conduct of their respective
businesses requires such qualification or registration and in which the
failure to qualify or register would be reasonably likely, individually or
in the aggregate, to have a material adverse effect on the business,
condition or properties of the Company and its subsidiaries taken as a
whole. Each of the Company and its Named Subsidiaries holds all material
licenses, permits, and certificates from governmental authorities
necessary for the conduct of its business and owns, or possesses adequate
rights to use, all material rights necessary for the conduct of such
business and has not received any notice of conflict with the asserted
rights of others in respect thereof; and each of the Company and its Named
Subsidiaries has the corporate power and authority necessary to own or
hold its properties and to conduct the businesses in which it is engaged.
Except as may be disclosed in the Registration Statement and the Final
Prospectus, all outstanding shares of capital stock of the Named
Subsidiaries are owned by the Company, directly or indirectly through
subsidiaries, free and clear of any lien, pledge and encumbrance or any
claim of any third party and are duly authorized, validly issued and
outstanding, fully paid and non-assessable.
(k) Except as described in the Registration Statement and the
Final Prospectus, there is no material litigation or governmental
proceeding pending or, to the knowledge of the Company, threatened against
the Company or any of its subsidiaries which might reasonably be expected
to result in any material adverse change in the business, properties,
financial condition or results of operations of the Company and its
subsidiaries taken as a whole or which is required to be disclosed in the
Registration Statement and the Final Prospectus.
(l) The certificates delivered pursuant to paragraph (h) of
Section 7 hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the Securities
were on the dates on which they were delivered, or will be on the dates on
which they are to be delivered, in all material respects true and
complete.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE
COMPANY AND THE TRUST. The Company and the Trust, jointly and severally,
represent, warrant and agree that:
(a) The Trust has been duly created, is validly existing as a
statutory business trust and in good standing under the Business Trust Act
of the State of Delaware (the "Delaware Business Trust Act") with the
trust power and authority to own property and conduct its business as
described in the Registration Statement and the Final Prospectus, and has
conducted and will conduct no business
7
other than the transactions contemplated by this Agreement as described in
the Registration Statement and the Final Prospectus; the Trust is not and
will not be a party to or bound by any agreement or instrument other than
this Agreement, the Declaration of Trust of the Trust identified in
Schedule I hereto, among the Company, as Sponsor, and the regular trustees
identified in Schedule I hereto (the "Regular Trustees"), the Property
Trustee and the Delaware Trustee identified in Schedule I hereto (the
"Delaware Trustee" and, together with the Regular Trustees and the
Property Trustee, the "Trustees"), and the Amended and Restated
Declaration of Trust of the Trust (the "Declaration") identified in
Schedule I hereto, among the Company, as Sponsor, and the Trustees; the
Trust has no and will not have any liabilities or obligations other than
those arising out of the transactions contemplated by this Agreement, such
Declaration of Trust and the Declaration and described in the Final
Prospectus; and the Trust is not a party to or subject to any action, suit
or proceeding of any nature.
(b) The Declaration is duly and validly authorized and, when
duly executed and delivered by the Company, as Sponsor, and the Trustees,
and (assuming due authorization, execution and delivery of the Declaration
by the Property Trustee and the Delaware Trustee), will constitute a valid
and legally binding agreement of the Company and the Trust, and will
conform to the description thereof contained in the Final Prospectus.
(c) All of the outstanding beneficial ownership interests in
the Trust have been, and the Preferred Securities and the Common
Securities, upon issuance and delivery and payment therefor in the manner
described herein, will be, duly authorized, validly issued and
outstanding, fully paid and non-assessable and will conform to the
descriptions of the Preferred Securities and the Common Securities
contained in the Final Prospectus.
(d) This Agreement has been duly and validly authorized,
executed and delivered by the Trust.
(e) The execution, delivery and performance of this
Agreement, the Declaration, the Common Securities and the Preferred
Securities by the Trust, the purchase of the Debentures by the Trust from
the Company, the distribution of the Debentures upon the liquidation of
the Trust in the circumstances contemplated by the Declaration and
described in the Final Prospectus, and the consummation by the Trust of
the transactions contemplated hereby and by the Declaration (the "Trust
Transactions") will not result in a violation of any order, rule or
regulation of any court or governmental agency having jurisdiction over
the Trust or its property. Except as set forth in the Final Prospectus
8
or as required by the Securities Act, the Exchange Act, the Trust
Indenture Act and applicable state securities laws, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the Trust Transactions.
(f) The Trust is not required to be registered as an
"investment company" under the Investment Company Act of 1940, as
amended.
3. SALE AND PURCHASE OF THE PREFERRED SECURITIES.
(a) The Trust agrees to sell to each Underwriter, and each
Underwriter, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein stated, agrees to purchase from the Trust, at a purchase price
equal to 100% of the liquidation amount of the Preferred Securities, the
aggregate liquidation amount of Firm Securities set forth opposite the
name of such Underwriter in Schedule II hereto. The obligations of the
Underwriters under this Agreement are several and not joint.
(b) In addition, the Trust grants to the Underwriters an
option to purchase from the Trust, at a purchase price equal to 100% of
the liquidation amount of the Preferred Securities, up to an additional
aggregate liquidation amount of Option Securities indicated in Schedule I
hereto. Such option is granted solely for the purpose of covering
over-allotments in the sale of Firm Securities and is exercisable as
provided in Section 4 hereof. Option Securities shall be purchased
severally for the account of the Underwriters in proportion to the
liquidation amounts of Firm Securities set forth opposite the name of such
Underwriters in Schedule II hereto. The respective purchase obligations of
each Underwriter with respect to the Option Securities shall be adjusted
by the Representatives so that no Underwriter shall be obligated to
purchase Option Securities other than in a liquidation amount of $1,000 or
an integral multiple thereof.
(c) As compensation to the Underwriters, the Company shall, on
the First Closing Date and the Second Closing Date (as defined in Section
4 hereof) pay to the Representatives for the accounts of the several
Underwriters a commission equal to __% of the aggregate liquidation amount
of the Preferred Securities sold by the Trust on such Closing Date.
4. DELIVERY AND PAYMENT. (a) Delivery by the Trust of the Firm
Securities to the Representatives for the respective accounts of the several
Underwriters and payment by the Underwriters therefor by wire transfer in
federal (same day) funds to such account as the Company shall specify on behalf
of the Trust, shall take place at the office, on the date and at the
9
time specified in Schedule I hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
10 hereof (such date and time of delivery and payment for the Firm Securities
being herein called the "First Closing Date").
(b) The Firm Securities will be in the form of one or more global
Firm Securities registered in the name of Cede & Co., as nominee of the
Depository Trust Company ("DTC").
(c) At any time on or before the thirtieth day after the date
hereof, the option granted in Section 3 may be exercised by written notice being
given to the Trust by the Representatives. Such notice shall set forth the
aggregate liquidation amount of Option Securities as to which the option is
being exercised and the date and time, as determined by the Representatives,
when the Option Securities are to be delivered; PROVIDED, HOWEVER, that this
date and time shall not be earlier than the First Closing Date nor earlier than
the third business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. The date and time the Option Securities are
delivered are sometimes referred to as the "Second Closing Date" and the First
Closing Date and the Second Closing Date are sometimes referred to as a "Closing
Date".
(d) Delivery by the Trust of the Option Securities to the
Representatives for the respective accounts of the several Underwriters and
payment by the Underwriters therefor by wire transfer in federal (same day)
funds to such account as the Company will specify on behalf of the Trust, shall
take place at the office and at the time agreed to in advance by the
Underwriters and the Company, on the Second Closing Date, which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 10 hereof.
(e) The Option Securities will be in the form of one or more global
Option Securities registered in the name of Cede & Co., as nominee of DTC.
(f) On the First Closing Date and the Second Closing Date, the
Company shall pay, or cause to be paid, the commission payable on such Closing
Date to the Representatives for the accounts of the Underwriters under Section 3
by wire transfer in federal (same day) funds to such account as the
Representatives shall specify.
5. OFFERING BY UNDERWRITERS. The Company and the Trust hereby
confirm that the Underwriters and dealers have been authorized to distribute or
cause to be distributed any Interim Prospectus and are authorized to distribute
the Final Prospectus (as from time to time amended or supplemented if the
Company
10
furnishes amendments or supplements thereto to the Underwriters). The
Representatives agree that, as soon as the Representatives believe the offering
of the Preferred Securities has been terminated, the Representatives will so
advise the Company and the Trust.
6. AGREEMENTS. Each of the Company and the Trust
agrees with the several Underwriters:
(a) To cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424 as required thereby and promptly to advise
the Representatives when (A) the Final Prospectus shall have been filed
with the Commission pursuant to Rule 424, (B) when any amendment to the
Registration Statement relating to the Securities shall have become
effective, (C) of any request by the Commission for any amendment of the
Registration Statement, the Final Prospectus, the Basic Prospectus or any
Interim Prospectus, or for any additional information, (D) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the qualification of the Declaration, the
Guarantee Agreement or the Indenture or the institution or threatening of
any proceedings for that purpose and (E) of the receipt by the Company or
the Trust of any notification with respect to the suspension of the
qualification of the Securities or the Debentures for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; after the date of this Agreement and prior to the termination of
the offering of these Preferred Securities, not to file any amendment of
the Registration Statement or amendment or supplement to the Final
Prospectus (except an amendment or supplement to the Final Prospectus that
is deemed to be incorporated by reference in the Final Prospectus pursuant
to Item 12 of Form S-3) without the consent of the Representatives and to
use its best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof; prior to
receipt of the advice to be given by the Representatives pursuant to
Section 5, not to file any document that would be deemed to be
incorporated by reference in the Final Prospectus pursuant to Item 12 of
Form S-3 without delivering to the Representatives a copy of the document
proposed to be so filed, such delivery to be made at least twenty-four
hours prior to such filing, and to consult with the Representatives as to
any comments which the Representatives make in a timely manner with
respect to the document so delivered.
(b) Subject to the last sentence of the immediately preceding
paragraph, if, at any time when a prospectus relating to the Securities is
required to be delivered under the Securities Act, any event occurs as a
result of which the Final Prospectus as then amended or supplemented would
11
include any 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, not misleading, or
if it shall be necessary at any time to amend or supplement the Final
Prospectus to comply with the Securities Act or the Rules, to promptly
prepare and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance and to use its best efforts to cause any amendment of the
Registration Statement containing an amended Final Prospectus to be made
effective as soon as possible.
(c) To deliver to the Representatives, without charge, (i)
signed copies of the Registration Statement relating to the Securities
and of any amendments thereto (including all exhibits filed with, or
incorporated by reference in, any such document) and (ii) as many
conformed copies of the Registration Statement and of any amendments
thereto which shall become effective on or before each Closing Date
(excluding exhibits) as the Representatives may reasonably request.
(d) During such period as a prospectus is required by law to
be delivered by an Underwriter or dealer, to deliver, without charge to
the Representatives and to Underwriters and dealers, at such office or
offices as the Representatives may designate, as many copies of the Basic
Prospectus, any Interim Prospectus and the Final Prospectus as the
Representatives may reasonably request.
(e) To make generally available to the Company's security
holders and to the Representatives as soon as practicable an earnings
statement (which need not be audited) of the Company and its subsidiaries,
covering a period of at least 12 months beginning after the date the Final
Prospectus is filed with the Commission pursuant to Rule 424, which will
satisfy the provisions of Section 11(a) of the Securities Act.
(f) To furnish such information, execute such instruments and
take such actions as may be required to qualify the Securities and the
Debentures for offering and sale under the laws of such jurisdictions as
the Representatives may designate and to maintain such qualifications in
effect so long as required for the distribution of the Preferred
Securities; PROVIDED, HOWEVER, that neither the Company nor the Trust
shall be required to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction where it is
not now so subject.
12
(g) So long as any Preferred Securities are outstanding, to
furnish or cause to be furnished to the Representatives copies of all
annual reports and current reports filed with the Commission on Forms
10-K, 10-Q and 8-K, or such other similar forms as may be designated by
the Commission.
(h) If the Company or the Trust has applied for the listing of
the Preferred Securities on the New York Stock Exchange Inc. (the "NYSE"),
to use its best efforts to cause such listing to be approved as soon as
possible.
(i) For a period beginning at the time of execution of this
Agreement and ending on the later of the business day following the First
Closing Date or following the date on which any price restrictions on the
sale of the Preferred Securities are terminated, without the prior consent
of the Representatives, not to offer, sell, contract to sell or otherwise
dispose of any preferred stock of the Company or any securities of any
business trust or other entity controlled by the Company substantially
similar to the Preferred Securities or any securities thereof convertible
into or exchangeable for or that represent the right to receive any such
securities.
(j) To use its best efforts to do and perform all things to be
done and performed hereunder prior to each Closing Date and to satisfy all
conditions precedent to the delivery of the Preferred Securities to be
purchased hereunder.
(k) To take such steps as shall be necessary to ensure that
neither the Company nor the Trust shall become subject to registration as
an "investment company" under the Investment Company Act of 1940, as
amended.
7. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of the Company and the Trust contained herein as of the date hereof and
each Closing Date, to the accuracy of any material statements made in any
certificates, opinions, affidavits, written statements or letters furnished to
the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel")
pursuant to this Section 7, to the performance by the Company and the Trust of
their respective obligations hereunder and to the following additional
conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 not later than 5:00 p.m., New York City
time, on the second business day following the date of this Agreement or
such later date and time as shall be consented to in writing by the
Representatives.
13
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, or suspending the qualification
of the Declaration, the Guarantee Agreement or the Indenture, shall be in
effect and no proceedings for such purpose shall be pending before or
threatened by the Commission and any requests for additional information
on the part of the Commission (to be included in the Registration
Statement or the Final Prospectus or otherwise) shall have been complied
with to the reasonable satisfaction of the Representatives.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been any change or decrease specified in the letter or letters
referred to in paragraphs (h) or (i) of this Section 7 which, in the
judgment of the Representatives, makes it impracticable or inadvisable to
proceed with the offering and delivery of the Preferred Securities as
contemplated by the Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representatives
the opinion of a Deputy General Counsel or the Chief Legal Officer for the
Company, dated the applicable Closing Date, to the effect that:
(i) The Company has been duly organized and is validly
existing and in good standing under the laws of the jurisdiction of
its incorporation with all requisite corporate power and authority
to own and operate its properties and to conduct its business as
described in the Final Prospectus.
(ii) The statements made in the Final Prospectus under
the captions "Description of Debentures", "The Trust", "Description
of Preferred Securities", "Description of Guarantee" and
"Relationship Among the Preferred Securities, the Debentures and
the Guarantee", insofar as such statements purport to constitute
summaries of the terms of the Preferred Securities, the
Debentures and the Guarantee, constitute accurate summaries of
the terms of the Preferred Securities, the Debentures and the
Guarantee in all material respects.
(iii) The Indenture has been duly authorized, executed
and delivered by the Company, has been duly qualified under the
Trust Indenture Act and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms; and the Debentures have been duly authorized, executed and
issued by the Company, and assuming due authentication by the
Indenture Trustee and upon payment and delivery in accordance with
this Agreement, will constitute
14
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture; and the Guarantee Agreement has been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Guarantee Trustee, will
constitute a legal, valid and binding obligation of the Company;
provided however, that the foregoing is subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and by an implied
covenant of good faith and fair dealing.
(iv) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement,
except for (1) such consents, approvals, authorizations or orders as
have been obtained under the Securities Act and such as may be
required under the Exchange Act and the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters, and (2) the qualification of the
Indenture, the Declaration and the Guarantee Agreement under the
Trust Indenture Act, which has been obtained.
(v) Such counsel does not know of any contracts or
other documents which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules which
have not been filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules.
(vi) To the best of such counsel's knowledge, neither
the Company nor either of its Named Subsidiaries is in violation of
its corporate charter or by-laws, or in default under any material
agreement, indenture or instrument known to such counsel, the effect
of which violation or default would be material to the Company and
its subsidiaries taken as a whole.
(vii) This Agreement and the Declaration have been duly
authorized, executed and delivered by the Company; the execution,
delivery and performance of this Agreement, the Declaration, the
Indenture and the Guarantee Agreement (collectively the "Transaction
Documents") by the Company and the Trust will not conflict with, or
result in the creation or imposition of any material lien, charge or
encumbrance upon any of the assets of the Company or its Named
Subsidiaries pursuant to the terms of, or constitute a default
15
under, any material agreement, indenture or instrument known to such
counsel and to which the Company or either of its Named Subsidiaries
is a party or is bound, or result in a violation of the corporate
charter or by-laws of the Company or either of its Named
Subsidiaries or any order, rule or regulation known to such counsel
of any court or governmental agency having jurisdiction over the
Company, its Named Subsidiaries or any of their respective
properties, the effect of which would be material to the Company and
its subsidiaries taken as a whole.
(viii) The Registration Statement has become effective under
the Securities Act, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose is pending or threatened by the Commission.
(ix) The Registration Statement, the Final Prospectus and each
amendment thereof or supplement thereto (except that no opinion need
be expressed as to the financial statements or other financial or
statistical data or the Forms T-1 included or incorporated by
reference therein) comply as to form in all material respects with
the requirements of the Securities Act and the Rules.
(x) If the Preferred Securities are to be listed on the
NYSE, authorization therefor has been given, subject to official
notice of issuance and evidence of satisfactory distribution, or the
Company has filed a preliminary listing application and all required
supporting documents with respect to the Preferred Securities with
the NYSE, and such counsel has no reason to believe that the
Preferred Securities will not be authorized for listing, subject to
official notice of issuance and evidence of satisfactory
distribution.
(xi) Each of the Named Subsidiaries is a duly organized and
validly existing corporation in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate power
and authority to own and operate its properties and to conduct its
business as described in the Final Prospectus. Each of the Company
and its Named Subsidiaries is duly qualified to do business as a
foreign corporation, is in good standing and is duly registered as a
broker-dealer, broker, dealer or investment advisor, as the case may
be, in each jurisdiction in which the nature of the business
conducted by it or in which the ownership or holding by lease of the
properties owned or held by it require
16
such qualification or registration and where the failure to so
qualify or register would have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(xii) All the outstanding shares of capital stock of the
Company's Named Subsidiaries have been duly and validly authorized
and issued and are fully paid and non-assessable and, except for
directors' qualifying shares, are owned by the Company or a
subsidiary of the Company free and clear of any claims, liens,
encumbrances and security interests.
(xiii) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company or
any of its subsidiaries which would affect the subject matter of
this Agreement or is required to be disclosed in the Final
Prospectus which is not disclosed and correctly summarized therein.
(xiv) To such counsel's knowledge, the Trust is not a party to
or otherwise bound by any agreement other than those described in
the Final Prospectus.
(xv) The Trust is not subject to registration as an
"investment company" under the Investment Company Act of 1940, as
amended.
Such opinion shall also contain a statement that although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Final Prospectus (except as to those matters
stated in paragraph (ii) of such opinion), such counsel has no reason to believe
that (i) the Registration Statement, as of its effective date, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or (ii) the Final Prospectus contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (except that no opinion need be expressed
as to the financial statements or other financial or statistical data or the
Forms T-1 included or incorporated by reference therein).
In rendering such opinion, such counsel may rely upon opinions of
local counsel satisfactory to the Representatives for matters not governed by
New York law and may rely as to matters of fact, to the extent he or she deems
proper, upon certificates or affidavits of officers of the Company, the
Trustees, the Guarantee Trustee or the Indenture Trustee and public officials.
Such counsel may rely on a certificate of the Indenture Trustee
17
and the Guarantee Trustee with respect to the execution of the Debentures and
the Guarantee, respectively, by the Company, the authentication of the
Debentures by the Indenture Trustee, and the execution of the Guarantee by the
Guarantee Trustee.
(e) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the
Company and the Trust, shall have furnished to the Representatives its
opinion, on certain matters of Delaware law relating to the validity of
the Preferred Securities, dated the applicable Closing Date, to the effect
that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Trust Act with
the business trust power and authority to own property and to
conduct its business as described in the Final Prospectus and to
enter into and perform its obligations under each of this Agreement,
the Preferred Securities, the Common Securities and the Declaration;
the Trust is a party to this Agreement and the Declaration and, to
such counsel's knowledge, the Trust is not a party to or otherwise
bound by any agreement other than those described in the Final
Prospectus.
(ii) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Final
Prospectus, will be validly issued and (subject to the terms of the
Declaration) fully paid undivided beneficial ownership interests in
the assets of the Trust (such counsel may note that the holders of
Common Securities will be subject to the withholding provisions of
Section 10.4 of the Declaration, will be required to make payment or
provide indemnity or security as set forth in the Declaration and
will be liable for the debts and obligations of the Trust to the
extent provided in Section 9.1(b) of the Declaration); under the
Delaware Trust Act and the Declaration the issuance of the Common
Securities is not subject to preemptive or other similar rights.
(iii) The Preferred Securities have been duly authorized by
the Declaration and, when issued and delivered against payment of
the consideration as set forth in this Agreement, the Preferred
Securities will be validly issued and (subject to the terms of the
Declaration) fully paid and non-assessable undivided beneficial
ownership interests in the Trust, the holders of the Preferred
Securities will be entitled to the benefits of the Declaration
(subject to the limitations set forth in clause (v) below) and will
be entitled to the same limitation of personal liability
18
under Delaware law as extended to stockholders of private
corporations for profit (such counsel may note that the holders of
Preferred Securities will be subject to the withholding provisions
of Section 10.4 of the Declaration and will be required to make
payment or provide indemnity or security as set forth in the
Declaration).
(iv) All necessary trust action has been taken to duly
authorize the execution and delivery by the Trust of this Agreement.
(v) Assuming the Declaration has been duly authorized by the
Company and has been duly executed and delivered by the Company and
the Regular Trustees, and assuming due authorization, execution and
delivery of the Declaration by the Property Trustee and the Delaware
Trustee, the Declaration constitutes a valid and binding obligation
of the Company and the Regular Trustees, enforceable against the
Company and the Regular Trustees in accordance with its terms;
provided however, that the foregoing is subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and by an implied
covenant of good faith and fair dealing.
(vi) The issuance and sale by the Trust of the Preferred
Securities, the purchase by the Trust of the Debentures, the
execution, delivery and performance by the Trust of this Agreement,
the consummation by the Trust of the transactions contemplated by
this Agreement and compliance by the Trust with its obligations
thereunder will not violate (i) any of the provisions of the
Certificate of Trust or the Declaration or (ii) any applicable
Delaware law or administrative regulation.
(vii) Assuming that the Trust derives no income from or
connected with services provided within the State of Delaware and
has no assets, activities (other than having a Delaware Trustee as
required by the Delaware Trust Act and the filing of documents with
the Secretary of State of Delaware) or employees in the State of
Delaware, no filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any
Delaware court or Delaware governmental authority or agency (other
that as may be required under the securities or blue sky laws of the
State of Delaware, as to which such counsel need express no opinion)
is necessary or required in connection with the due authorization,
execution and
19
delivery of this Agreement or the offering, issuance, sale or
delivery of the Preferred Securities.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the law of the State of Delaware.
(f) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special tax counsel to the
Company and the Trust, shall have furnished to the Representatives its opinion,
dated the applicable Closing Date, to the effect that:
(i) The Trust will be characterized as a grantor trust
for United States federal income tax purposes and not as an
association taxable as a corporation; and
(ii) Subject to the qualifications set forth in the opinion
and the Final Prospectus, the statements made in the Final
Prospectus under the caption "Certain United States Federal Income
Tax Consequences" insofar as they purport to constitute summaries of
matters of United States federal tax law and regulations or legal
conclusions with respect thereto, constitute accurate summaries of
the matters described therein in all material respects.
(g) The Representatives shall have received from the
Underwriters' Counsel such opinion or opinions, dated the applicable Closing
Date, with respect to the issuance and sale of the Preferred Securities, the
Guarantee, the Debentures, the Registration Statement, the Final Prospectus and
other related matters as the Representatives may reasonably require, and the
Company and the Trust shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Managing
Director or Vice President and its Chief Financial Officer or its Treasurer,
dated the applicable Closing Date, to the effect that, to the best of their
knowledge after due inquiry:
(i) The representations and warranties of the Company in
this Agreement are true and correct in all material respects on and
as of such Closing Date with the same effect as if made on such
Closing Date, and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no
20
proceedings for that purpose have been instituted or threatened.
(iii) (x) The Registration Statement does not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, (y) the Final Prospectus does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (z) since the effective
date of the Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented prospectus
which has not been so set forth.
(i) The Trust shall have furnished to the Representatives a
certificate of its Regular Trustees, dated the applicable Closing Date, to the
effect that, to the best of their knowledge after due inquiry:
(i) The representations and warranties of the Trust in
this Agreement are true and correct in all material respects on and
as of such Closing Date with the same effect as if made on such
Closing Date, and the Trust has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
(iii) (x) The Registration Statement does not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, (y) the Final Prospectus does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (z) since the effective
date of the Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented prospectus
which has not been so set forth.
(j) At each Closing Date, a nationally recognized firm of
independent public accountants shall have furnished to the
21
Representatives a letter, dated the day of such Closing Date, in form and
substance satisfactory to the Representatives, which states in effect that:
(i) In their opinion, any consolidated financial statements of
the Company and its subsidiaries, and the supporting schedules,
included in the Registration Statement and the Final Prospectus and
audited by them comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder.
(ii) On the basis of a reading of the unaudited consolidated
financial statements of the Company and its subsidiaries, if any,
included in the Registration Statement and the Final Prospectus and
of the latest unaudited consolidated financial statements made
available by the Company and ▇▇▇▇▇▇, carrying out certain specified
procedures (but not an audit in accordance with generally accepted
auditing standards), a reading of the minutes of the meetings of the
directors of the Company, and inquiries of certain officials of the
Company and its subsidiaries, who have responsibility for financial
and accounting matters of the Company and its subsidiaries, as to
transactions and events subsequent to the date of the most recent
audited consolidated financial statements included in the
Registration Statement and the Final Prospectus, nothing came to
their attention that caused them to believe that:
(A) any material modifications should be made to the
unaudited consolidated financial statements of the Company and
its subsidiaries, if any, included in the Registration
Statement and the Final Prospectus and not covered by their
letter delivered pursuant to paragraph (i) of this Section 7,
for them to be in conformity with generally accepted
accounting principles; and such financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the
published instructions, rules and regulations thereunder.
(B) the unaudited capsule information of the Company and
its subsidiaries, if any, included in the Registration
Statement and the Final Prospectus does not agree with the
amounts set forth in the unaudited consolidated financial
statements of the Company from which it was derived or was not
determined on a basis substantially consistent with that of
the
22
corresponding financial information in the latest audited
financial statements of the Company included in the
Registration Statement and the Final Prospectus.
(C)(I) as of the latest date as of which the Company and
its subsidiaries have monthly financial statements, there was
any decrease in the capital stock, additional paid-in capital
or retained earnings, or increase in long-term indebtedness of
the Company and its subsidiaries, as compared with the amounts
shown in the most recent consolidated statement of financial
condition of the Company and its subsidiaries included in the
Registration Statement and the Final Prospectus, (II) with
respect to the period subsequent to the date of the most
recent financial statements included in the Registration
Statement and the Final Prospectus and extending through the
latest date as of which the Company and its subsidiaries have
monthly financial statements, there was a consolidated net
loss or (III) with respect to the amounts of net capital or
excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission
Rule 15c3-1 and shown in the most recent financial statement
of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5, there has
been any decrease in such amounts as compared with the amounts
shown in the most recent consolidated financial statements
included in the Registration Statement and the Final
Prospectus;
(D) as of a specified date not more than three business
days prior to the date of the letter, there was any decrease
in the capital stock or additional paid-in capital, or
increase in long-term indebtedness of the Company and its
subsidiaries as compared with the amounts shown in the most
recent consolidated statement of financial condition of the
Company and its subsidiaries included in the Registration
Statement and the Final Prospectus;
except in all instances for increases or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof, unless
said explanation is not deemed necessary by the Representatives.
(iii) If pro forma financial statements are included in the
Registration Statement or the Final Prospectus and are not covered
by their letter delivered pursuant to paragraph (i) of this Section
7, (x) they have read such pro forma financial statements,
23
(y) they have made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of the
Company as to the basis for their determination of the pro forma
adjustments and whether such pro forma financial statements comply
as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X and (z) they have
proved the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts; and as a result thereof,
nothing came to their attention that caused them to believe that
such pro forma financial statements do not so comply with Rule 11-02
of Regulation S-X and that such pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
those statements.
(iv) To the extent not covered by their letter delivered
pursuant to paragraph (i) of this Section 7, they have performed
certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is expressed in dollars, or percentages
derived from dollar amounts, and has been obtained from the general
accounting records of the Company) set forth in the Registration
Statement, as amended, and the Final Prospectus, as amended or
supplemented, and in Exhibit 12 to the Registration Statement,
including specified information, if any, included or incorporated
from the Company's Annual Report on Form 10-K incorporated therein
or specified information, if any, included or incorporated from any
of the Company's Quarterly Reports on Form 10-Q or its Current
Reports on Form 8-K incorporated therein, agrees with the accounting
records of the Company and its subsidiaries or computations made
therefrom, excluding any questions of legal interpretation.
(k) Subsequent to the execution of this Agreement, there
shall not have been any decrease in the ratings of any of the Company's debt
securities by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's
Corporation.
(l) Prior to each Closing Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives or Underwriters' Counsel may reasonably
request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates or opinions furnished to the Representatives or Underwriters'
Counsel pursuant to this Section 7 shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and to
24
Underwriters' Counsel, this Agreement and all obligations of the Underwriters
hereunder may be cancelled at, or at any time prior to, each Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing, or by telegraph confirmed in writing.
8. EXPENSES. (a) Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, the Company
will pay all costs and expenses incident to the performance of the obligations
of the Company and the Trust hereunder, including, without limiting the
generality of the foregoing, all costs, taxes and expenses incident to the
issuance, sale and delivery of the Preferred Securities to the Underwriters, all
fees and expenses of the Company's counsel and accountants, all costs and
expenses incident to the preparing, printing and filing of the Registration
Statement (including all exhibits thereto), any Interim Prospectus, the Basic
Prospectus, the Final Prospectus and any amendments thereof or supplements
thereto and the Declaration, the Guarantee Agreement and the Indenture, and the
rating of the Preferred Securities by one or more rating agencies, all costs and
expenses (including fees of Underwriters' Counsel and their disbursements)
incurred in connection with blue sky qualifications, advising on the legality of
the Securities for investment, the filing requirements, if any, of the National
Association of Securities Dealers, Inc. in connection with its review of
corporate financings, the fee for listing the Securities on the NYSE, the fees
and expenses of the Property Trustee, the Guarantee Trustee and the Indenture
Trustee and all costs and expenses of the printing and distribution of all
documents in connection with such offering. Except as provided in this Section
8, the Company will have no responsibility to the Underwriters for the
Underwriters' own costs and expenses, including the fees of Underwriters'
Counsel and any advertising expenses in connection with any offer the
Underwriters may make.
(b) If the sale of the Preferred Securities provided for
herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 7 hereof is not satisfied or because of any
refusal, inability or failure on the part of the Company or the Trust to perform
any agreement herein or comply with any provision hereof, the Company will,
subject to demand by the Representatives, reimburse the Underwriters for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Preferred Securities.
9. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person who controls such Underwriter
within the meaning of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other federal or
25
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as originally filed or in
any amendment thereof, or in any Interim Prospectus, the Basic Prospectus or the
Final Prospectus, or in any amendment thereof 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 agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company as herein stated by the Representatives on
behalf of any Underwriter specifically for use in connection with the
preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Interim Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Securities
which are the subject thereof if such person did not receive a copy of the Final
Prospectus at or prior to the confirmation of the sale of such Securities to
such person in any case where such delivery is required by the Securities Act
and the untrue statement or omission of a material fact contained in the Basic
Prospectus or any Interim Prospectus was corrected in the Final Prospectus,
unless such failure to deliver the Final Prospectus was a result of
noncompliance by the Company with Section 6(d) hereof. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, the Trust and each Trustee, and each person, if any, who
controls the Company or the Trust within the meaning of the Securities Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, the Basic Prospectus, any Interim Prospectus or the Final Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
26
misleading, in each case to the extent, but only to the extent, that the same
was made therein in reliance upon and in conformity with written information
furnished to the Company as herein stated by the Representatives on behalf of
such Underwriter specifically for use in the preparation thereof, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have. The statements set
forth in the last paragraph of the cover page and under the heading
"Underwriting" in the Final Prospectus constitute the only information furnished
to the Company in writing by or on behalf of the several Underwriters for
inclusion in the Registration Statement and the Final Prospectus, as the case
may be, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 9. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; PROVIDED, HOWEVER, if the defendants in any such action
include both the indemnified party and the indemnifying party and either (i) the
indemnifying party or parties and the indemnified party or parties mutually
agree or (ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, the indemnified party or parties shall have
the right to select separate counsel to assume such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
counsel in connection with the assumption of legal defenses in accordance with
the proviso to the next preceding sentence (it
27
being understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel, approved by the Representatives
in the case of subparagraph (a) representing the indemnified parties under
subparagraph (a), as the case may be, who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph (a) of
this Section 9 is due in accordance with its terms but is for any reason held by
a court to be unavailable from the Company on grounds of policy or other similar
grounds, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Company, the Trust and one or more of the Underwriters may be subject in
such proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discounts appearing on the
cover page of the Final Prospectus bear to the public offering prices appearing
thereon and the Company is responsible for the balance; PROVIDED, HOWEVER, that
(i) in no case shall any Underwriter (except as may be provided in any agreement
among underwriters) be responsible for any amount in excess of the underwriting
discounts applicable to the Preferred Securities purchased by such Underwriter
hereunder and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who controls an
Underwriter within the meaning of the Securities Act shall have the same rights
to contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Securities Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement each
director of the Company, the Trust and each Trustee shall have the same rights
to contribution as the Company, subject in each case to clauses (i) and (ii) of
this subparagraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this subparagraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this subparagraph (d).
28
10. DEFAULT BY AN UNDERWRITER. If, on either Closing Date, any
one or more Underwriters shall fail to purchase and pay for all of the Preferred
Securities agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective proportions
which the aggregate liquidation amount of Preferred Securities set forth
opposite their names in Schedule II hereto bear to the aggregate liquidation
amount of Firm Securities set opposite the names of the remaining Underwriters)
the Firm Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase on such Closing Date; PROVIDED, HOWEVER, that in the event
that the aggregate liquidation amount of Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
Closing Date shall exceed 10% of the aggregate liquidation amount of Preferred
Securities, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Preferred Securities,
and if such non-defaulting Underwriters do not purchase all the Preferred
Securities, this Agreement (or, with respect to the Second Closing Date, the
obligation of the Underwriters to purchase, and of the Company to sell, the
Option Securities) will terminate without liability to any non-defaulting
Underwriters or the Company or the Trust. In the event of a default by any
Underwriter as set forth in this Section 10, the applicable Closing Date shall
be postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration Statement
and the Final Prospectus or in any other documents or arrangements may be
effected. Nothing herein contained shall relieve any defaulting Underwriter of
its liability, if any, to the Company or the Trust and any non-defaulting
Underwriter for damages occasioned by its default hereunder.
11. TERMINATION. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice
given to the Company at or prior to delivery of and payment for all of the
Firm Securities, if, prior to such time (i) trading in securities generally
on the NYSE or the over-the-counter market shall have been suspended or
limited or minimum prices shall have been established on the NYSE or the
over-the-counter market, (ii) a banking moratorium shall have been declared
either by federal or New York State authorities, (iii) any new restriction
materially affecting the distribution of the Preferred Securities shall have
become effective; (iv) trading in any securities of the Company shall have
been suspended or halted by any national securities exchange, the National
Association of Securities Dealers, Inc. or the Commission, (v) the United
States becomes engaged in hostilities or there is an escalation in
hostilities involving the United States or there is a declaration of a
national emergency or war
29
by the United States, or (vi) there shall have been such a material adverse
change in national or international political, financial or economic
conditions, national or international equity markets or currency exchange
rates or controls as to make it, in the judgment of the Representatives,
inadvisable or impracticable to proceed with the payment for and delivery of
the Preferred Securities.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers (as such officers) or the Trust and of
the Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or the Company or the Trust or any of their respective officers,
directors or trustees or any controlling person within the meaning of the
Securities Act, and will survive delivery of the payment for the Preferred
Securities.
13. NOTICES. All communications hereunder will be in
writing, and, if sent to the Representatives will be mailed, delivered,
telegraphed or telexed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Trust or the Company, will be mailed,
delivered, telegraphed or telexed and confirmed to the Trust or the Company
at ▇▇▇▇▇▇ Brothers Holdings Inc., 3 World Financial Center, New York, New
York 10285, Attention: Chief Financial Officer.
14. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their successors and, to the extent
and only to the extent stated in Section 9 hereof, the officers and directors
and controlling persons referred to in Section 9 hereof, and except as provided
in Section 9 hereof, no person other than the parties hereto and their
respective successors will have any right or obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed by
and construed in accordance with the laws of the State of New York.
30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
▇▇▇▇▇▇ BROTHERS HOLDINGS CAPITAL TRUST __
By:
-----------------------------
Title: Regular Trustee
By:
-----------------------------
Title: Regular Trustee
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By:
-----------------------------
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇ BROTHERS INC.
By:
------------------------------
Title:
Acting on behalf of the
Representatives named in Schedule I
annexed hereto and the several
Underwriters named in Schedule II
annexed hereto.
SCHEDULE I
Date of Underwriting Agreement:
Registration Statement No. 333-
Representative and Address: ▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Declaration of Trust, Declaration, Title, Purchase Price and Description of
Preferred Securities:
Declaration of Trust:
Declaration:
Title:
Aggregate liquidation amount:
Price to public:
Purchase price:
Distribution rate:
Time of payment of
distributions:
Redemption
provisions:
Repayment:
Indenture, Title, Purchase Price and Description of Debentures:
Indenture:
Title:
Principal Amount:
Price to Trust:
Interest rate:
Time of payment of
interest:
Maturity:
Redemption
provisions:
Repayment:
Guarantee Agreement:
Commission payable by Company:
First Closing Date, Time and Location:
Date:
Time:
Location:
SCHEDULE II
LIQUIDATION
AMOUNT OF
SECURITIES
TO BE
UNDERWRITERS PURCHASED
▇▇▇▇▇▇ Brothers Inc. ........................................... $
Total..................................................... $
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