EXHIBIT 1
THE FIRST AMERICAN FINANCIAL CORPORATION
---------------------------
$100,000,000
_____% Senior Debentures due 2028
UNDERWRITING AGREEMENT
March __, 1998
CHASE SECURITIES INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
c/o Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The First American Financial Corporation, a California corporation (the
"Company"), proposes to issue and sell $100,000,000 of its __% Senior Debentures
due 2028 (the "Senior Debentures"). The Senior Debentures are to be issued under
an Indenture to be dated as of March __, 1998 (the "Indenture") by and between
the Company and Wilmington Trust Company, as trustee (the "Trustee"), the form
of which has been filed as an exhibit to the Registration Statement (as defined
herein). This is to confirm the agreement concerning the purchase of the Senior
Debentures from the Company by Chase Securities Inc. (the "Representative") and
First Chicago Capital Markets, Inc. (together with the Representative, the
"Underwriters").
Section 1. Representations and Warranties. The Company represents and
warrants to and agrees with the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-________), including
a form of prospectus, relating to the Senior Debentures has been prepared
by the Company in conformity with the requirements of the Securities Act of
1933, as amended (the "Securities Act"), the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and has been filed by the Company with the Commission
(such registration statement, the "Initial Registration Statement"). The
Company may have filed one or more amendments thereto, including the
related Preliminary Prospectus (as defined herein), each of which has
previously been furnished to you. The Company will next file with the
Commission either (i) prior to effectiveness of such Initial Registration
Statement, a further amendment to such Initial Registration Statement
(including the form of final prospectus) or (ii) after effectiveness of
such Initial Registration Statement, (a) a second registration statement,
if any, increasing the size of the offering (a "Rule 462(b) Registration
Statement") prepared and filed in accordance with Rule 462(b) of the Rules
and Regulations, and/or (b) a final prospectus in accordance with Rules
430A and 424(b)(1) or (4). In the case of clause (ii) above, the Company
will have included in such Initial Registration Statement, as amended at
the Effective Time (as defined herein), all information (other than
information permitted to be omitted from the Initial Registration Statement
when it becomes effective pursuant to Rule 430A ("Rule 430A Information"))
required by the Securities Act and the Rules and Regulations to be included
in the final prospectus with respect to the Senior Debentures and the
offering thereof. As filed, such amendment and form of final prospectus, or
such final prospectus, shall contain all Rule 430A Information, together
with all other such required information with respect to the Senior
Debentures and the offering thereof, and, except to the extent the
Representative shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to the Underwriters prior to the
execution of this Agreement or, to the extent not completed at such time,
shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus) as the Company
has advised you, prior to the execution of this Agreement, will be included
or made therein. For purposes of this Agreement, "Effective Time" means (i)
with respect to the Initial Registration Statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto, if any was declared effective by the Commission and (ii)
with respect to the Rule 462(b) Registration Statement, the date and time
as of which such registration statement is filed with the Commission, and
"Effective Time" is the collective reference to the dates and times both
the Initial Registration Statement and the Rule 462(b) Registration
Statement became effective. "Preliminary Prospectus" means each prospectus
included in such registration statement, or amendments thereof, before such
registration statement becomes effective under the Securities Act, any
prospectus filed with the Commission by the Company pursuant to Rule
424(a), and the prospectus included in the Registration Statement at the
Effective Time that omits Rule 430A Information. "Registration Statement"
means both the Initial Registration Statement and any Rule 462(b)
Registration Statement at their respective Effective Times, including in
each case any documents incorporated by reference therein at such time and
all Rule 430A Information, if any, and the form of prospectus relating to
the Senior Debentures, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) or, if no such filing is required, as
included in the Registration Statement, is hereinafter referred to as the
"Prospectus." Reference made herein to any Preliminary Prospectus or to the
Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer and include any document filed under the Exchange Act after the
date of such Preliminary Prospectus or the Prospectus, as the case may be.
Reference to any amendment to the Registration Statement shall be deemed to
include any annual report of the Company filed with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act after the Effective Time that
is incorporated by reference in the Registration Statement. The Commission
has not issued any order preventing or suspending the use of any
Preliminary Prospectus. The documents incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Prospectus (the
"Exchange Act Reports"), when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and any
further documents so filed and incorporated by reference in the
Registration Statement and the Prospectus, when such documents are filed
with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder and shall not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(b) (i) At the Effective Time, the Registration Statement did or will,
the Prospectus, if not required to be filed pursuant to Rule 424(b), will,
or otherwise the Preliminary Prospectus did, (ii) when the Prospectus (and
any amendments or supplements thereto) is first filed (if required) in
accordance with Rule 424(b), such Prospectus (and any amendments or
supplements thereto) will, and (iii) on the Closing Date, the Prospectus
(and any amendments or supplements thereto) will, in the case of each of
clauses (i), (ii), and (iii), comply in all material respects with the
applicable requirements of the Securities Act and the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the respective rules
and regulations thereunder; at the Effective Time, the Registration
Statement did not or will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; at the
Effective Time and on the Closing Date, the Indenture did or will comply in
all material respects with the applicable requirements of the Trust
Indenture Act and the rules and regulations of the Commission thereunder;
and at the Effective Time, on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Preliminary Prospectus or the
Prospectus (together with any supplement thereto), as the case may be, did
not or will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
The preceding sentence does not apply to (x) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture Act or
(y) information contained in or omitted from the Registration Statement or
the Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company through
the Representative by or on behalf of the Underwriters specifically for use
therein (the "Underwriters' Information").
(c) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of California with the
power and authority to own, lease and operate its properties, to conduct
its business and to execute, deliver and perform its obligations under the
Indenture, the Senior Debentures and this Agreement (the "Transaction
Documents"). Each subsidiary of the Company that is listed on Schedule A
hereto (such subsidiaries collectively called the "Material Subsidiaries")
is a corporation duly incorporated or organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
organization with power and authority to own, lease and operate its
properties and conduct its business.
(d) The Company and the Material Subsidiaries are duly qualified in or
licensed to transact business by, and are in good standing as foreign
corporations in, each jurisdiction in which they own or lease real
property, maintain an office or conduct their respective businesses and in
which the failure, individually or in the aggregate with all other failures
to be so licensed or qualified or to be in good standing, would reasonably
be expected to have a material adverse effect on the condition (financial
or otherwise), results of operations or business of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect").
(e) As of December 31, 1997, the Company had a duly authorized, issued
and outstanding capitalization as set forth in the Prospectus under the
caption "Capitalization".
(f) All of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and nonassessable. All of the outstanding shares of capital stock of each
Material Subsidiary (other than First American Title Guaranty Holding
Company, First American Home Buyers Protection Corporation and First
American Real Estate Solutions LLC) have been duly and validly authorized
and issued, are fully paid and nonassessable and are owned, directly or
indirectly, by the Company free and clear of any pledge, lien, security
interest, charge, claim, restriction on voting or transfer or encumbrance
of any kind, except that the transfer of ownership of the capital stock of
First American Title Insurance Company is subject to the prior approval of
the California Department of Insurance. The Company owns 80% of the issued
and outstanding shares of the capital stock of First American Title
Guaranty Holding Company ("FATGHC"). The Company owns 79% of the issued and
outstanding shares of the capital stock of First American Home Buyers
Protection Corporation ("FAHBPC"). The Company owns 80% of the membership
interests in First American Real Estate Solutions LLC ("FARESLLC"). The
outstanding shares of the capital stock of FATGHC and FAHBPC that are owned
by the Company have been duly and validly authorized and issued, are fully
paid and are nonassessable, and are owned, indirectly, by the Company free
and clear of any pledge, lien, security interest, charge, claim,
restriction on voting or transfer or encumbrance of any kind, except that
the holders of the minority interests in FATGHC and FAHBPC have the right
to "put" their minority interests to First American Title Insurance Company
in 1998 and have advised the Company that they intend to do so. All of the
Company's capital contributions required by FARESLLC's operating agreement
have been made and no future capital contributions are required of the
Company or any of its Subsidiaries. Under certain circumstances, the
holders of the minority membership interests in FARESLLC have the right to
"put" their minority interests to the Company and the Company has the right
to "call" such minority interests.
(g) The Company has full right, power and authority to execute and
deliver the Transaction Documents and to perform its obligations
thereunder; and all action required to be taken by the Company for the due
and proper authorization, execution and delivery of the Transaction
Documents and the consummation of the transactions contemplated thereby
have been duly and validly taken.
(h) This Agreement has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law) (the
"Enforceability Exceptions").
(i) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company in
accordance with its terms, and assuming due authorization, execution and
delivery thereof by the Indenture Trustee, will constitute a legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
the Enforceability Exceptions.
(j) The Senior Debentures have been duly authorized by the Company
and, when duly executed, authenticated, issued and delivered as provided in
the Indenture, and the Company Order, dated as of the Closing Date, will be
duly and validly issued and outstanding and will constitute valid and
legally binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by the Enforceability
Exceptions.
(k) The Transaction Documents conform in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus.
(l) Price Waterhouse LLP, who is reporting upon the financial
statements incorporated by reference in the Prospectus, are and were
independent public accountants as required by the Securities Act and the
Rules and Regulations during the periods covered by the financial
statements which are incorporated by reference in the Registration
Statement and the Prospectus.
(m) The consolidated financial statements of the Company incorporated
by reference in the Registration Statement and the Prospectus fairly
present in all material respects the financial condition of the Company and
its consolidated subsidiaries as of the respective dates indicated and the
consolidated results of operations and changes in shareholders' equity of
the Company and its consolidated subsidiaries for the periods specified.
The consolidated financial statements of the Company incorporated by
reference in the Registration Statement and the Prospectus have been
prepared in all material respects in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved (except as indicated in the notes thereto), and the
supporting schedules, if any, incorporated by reference in the Registration
Statement and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The summary historical
consolidated financial data of the Company included in the Registration
Statement and the Prospectus fairly present in all material respects the
information shown therein and have been compiled on a basis consistent with
that of the consolidated audited financial statements of the Company
incorporated by reference in the Registration Statement and the Prospectus.
(n) The execution, delivery and performance by the Company of the
Transaction Documents, the issuance, authentication, sale and delivery of
the Senior Debentures and compliance by the Company with the terms thereof
and hereof and the consummation of the transactions contemplated thereby
and hereby will not conflict with or result in a breach or violation of any
of the material terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries or
pursuant to, any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such actions result
in any violation of the provisions of the charter or by-laws of the Company
or any of its Material Subsidiaries, or any statute or any judgment, order,
decree, rule or regulation of any court or arbitrator or governmental
agency or body having jurisdiction over the Company or any of its Material
Subsidiaries or any of their properties or assets; and no consent,
approval, authorization or order of, or filing or registration with, any
such court or arbitrator or governmental agency or body under any such
statute, judgment, order, decree, rule or regulation is required for the
execution, delivery and performance by the Company of the Transaction
Documents, the issuance, authentication, sale and delivery of the Senior
Debentures and compliance by the Company with the terms thereof and hereof
and the consummation of the transactions contemplated thereby and hereby
except for (i) the registration of the Senior Debentures under the
Securities Act, (ii) the qualification of the Indenture under the Trust
Indenture Act, (iii) such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act
and applicable state securities laws in connection with the purchase and
distribution of the Senior Debentures by the Underwriters and (iv) such
consents, approvals, authorizations, orders, filings, registrations or
qualifications which shall have been obtained or made prior to the Closing
Date.
(o) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, as amended or supplemented,
except as may be otherwise stated therein (i) there has been no material
adverse change or any development involving a prospective material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs, management or business prospects of the Company, whether
or not arising in the ordinary course of business, (ii) the Company has not
incurred any material liability or obligation, direct or contingent, other
than in the ordinary course of business, (iii) the Company has not entered
into any material transaction other than in the ordinary course of business
and (iv) except for the issuance of [57,105] shares of the Company's common
stock pursuant to its stock bonus plans, there has not been any change in
the capital stock or long-term debt of the Company, or any dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock. There are no contracts or other documents which are
required by the Securities Act or by the Rules and Regulations to be
described in the Prospectus or filed as exhibits to the Registration
Statement which have not been so described or filed.
(p) There is no legal or governmental proceeding pending to which the
Company or any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject which,
singularly or in the aggregate, if determined adversely to the Company or
any of its subsidiaries, could reasonably be expected to have a Material
Adverse Effect; and to the best knowledge of the Company, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(q) No action has been taken and no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental agency or body
which prevents the issuance of the Senior Debentures or suspends the sale
of the Senior Debentures in any jurisdiction; no injunction, restraining
order or order of any nature by any federal or state court of competent
jurisdiction has been issued with respect to the Company or any of its
subsidiaries which would prevent or suspend the issuance or sale of the
Senior Debentures or the use of the Preliminary Prospectus or the
Prospectus in any jurisdiction; no action, suit or proceeding is pending
against or, to the best knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries before any court or
arbitrator or any governmental agency, body or official, domestic or
foreign, which could reasonably be expected to interfere with or adversely
affect the issuance of the Senior Debentures or in any manner draw into
question the validity or enforceability of or any action taken or to be
taken pursuant thereto; and the Company has complied with any and all
requests by any securities authority in any jurisdiction for additional
information to be included in the Preliminary Prospectus and the
Prospectus.
(r) Neither the Company nor any of its Material Subsidiaries is (i) in
violation of its charter or by-laws, (ii) in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance
of any material term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which it is a party or by which it is bound or
to which any of its property or assets is subject or (iii) in violation in
any material respect of any law, ordinance, governmental rule, regulation
or court decree to which it or its property or assets may be subject.
(s) The Company and each of its subsidiaries holds such licenses,
certificates, consents, orders, approvals, permits and other authorizations
from governmental authorities (including, without limitation, insurance
licenses from the insurance regulatory agencies of the various states where
it conducts business ("Insurance Licenses")) which are necessary to own or
lease, as the case may be, and to operate their respective properties and
to carry on their respective business as presently conducted, except for
such licenses, certificates, consents, orders, approvals, permits or other
authorizations the failure to hold which could not reasonably be expected
to have a Material Adverse Effect; the Company and each of its subsidiaries
has fulfilled and performed all obligations necessary to maintain such
licenses, certificates, consents, orders, approvals, permits and other
authorizations (including, without limitation, the Insurance Licenses),
except where the failure to so fulfill or perform such obligations could
not reasonably be expected to have a Material Adverse Effect. There is no
pending, or to the best knowledge of the Company threatened, action, suit,
proceeding or investigation (and, to the best knowledge of the Company, no
facts exist which the Company believes could reasonably be the basis for
any such action, suit, proceeding or investigation) that may reasonably be
expected to lead to the revocation, termination or suspension of any such
license, certificate, consent, order, approval, permit or other
authorization (including, without limitation, the Insurance Licenses),
except where such revocation, termination or suspension could not
reasonably be expected to have a Material Adverse Effect; and no insurance
regulatory agency or body has issued any order or decree restricting or
prohibiting the payment of dividends by the Company's insurance company
subsidiaries to the Company.
(t) All ceded reinsurance and retrocessional agreements to which the
Company's insurance company subsidiaries are a party are in full force and
effect. Neither the Company nor any of such subsidiaries has received any
notice from any of the other parties to such agreements that such other
party intends not to perform in any material respect such agreement and
none of the Company and such subsidiaries has any reason to believe that
any of the other parties to such agreements will be unable to perform such
agreements, except to the extent that (i) the Company or such subsidiary
has established appropriate reserves on its financial statements or (ii)
such nonperformance could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect; and each of the Company
and its insurance company subsidiaries is entitled to give effect in its
underwriting results in its most recently filed statutory financial
statements in conformity with the insurance department of the state of
domicile of each such subsidiary in effect at such time of preparation for
reinsurance ceded pursuant to such agreements.
(u) The Company is not, and is not directly or indirectly controlled
by, or acting on behalf of any person which is, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(v) Other than pursuant to this Agreement or as disclosed in the
Prospectus under the caption "Underwriting", there are no contracts,
agreements or understandings between the Company and any person that give
rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment.
(w) Except as described in the Registration Statement and the
Prospectus and except for common share piggyback registration rights
granted to ▇▇▇▇ ▇. ▇▇▇▇ in respect of the 137,143 shares of the Company's
common stock received by him as partial consideration for the sale of
Nationwide Field Services-▇▇▇▇ Associates, Inc. to the Company, there are
no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the Registration Company
Statement.
Section 2. Purchase by the Underwriters. On the basis of the
representations, warranties and agreements herein contained, and subject to the
terms and conditions herein set forth, the Company agrees to issue and sell to
each Underwriter, severally and not jointly, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the aggregate principal
amount of Senior Debentures set forth opposite the name of such Underwriter on
Schedule I hereto at a purchase price equal to ____% of the principal amount
thereof, plus accrued and unpaid interest, if any, from the date of issuance.
The Company shall not be obligated to deliver any of the Senior Debentures
except upon payment for all the Senior Debentures to be purchased as provided
herein. The Company acknowledges and agrees that each Underwriter may sell
Senior Debentures to any of its affiliates and that any such affiliate may sell
Senior Debentures purchased by it to an Underwriter.
Section 3. Delivery of and Payment for the Senior Debentures. (a) Payment
of the purchase price for, and delivery of certificates for, the Senior
Debentures shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M., New York City time,
on __________, 1998 or such later date and time not more than seven full
business days thereafter as shall be agreed upon by the Representative and the
Company (such date and time of payment and delivery being herein called the
"Closing Date").
(b) On the Closing Date, payment of the purchase price for the Senior
Debentures shall be made to the Company by wire or book-entry transfer of
same-day funds to such account or accounts as the Company shall specify prior to
the Closing Date or by such other means as the parties hereto shall agree prior
to the Closing Date against delivery to the Representative for the account of
each Underwriter through the book-entry facilities of The Depository Trust
Company ("DTC") of the certificates evidencing the Senior Debentures. Time shall
be of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligations of the Underwriters
hereunder. Upon delivery, the Senior Debentures will be represented by a
permanent global certificate registered in the name of Cede & Co., as nominee
for DTC. The Company agrees to make the global certificate evidencing the Senior
Debentures available for inspection by the Representative in New York, New York,
at least 24 hours prior to the Closing Date.
(c) It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Senior Debentures that it has agreed to
purchase. You may (but shall not be obligated to) make payment of the purchase
price for the Senior Debentures to be purchased by any Underwriter whose funds
shall not have been received by the Closing Date, but such payment shall not
relieve such Underwriter from its obligations hereunder.
Section 4. Further Agreements of the Company. The Company agrees with each
of the Underwriters as follows:
(a) That, if the Effective Time is prior to the execution and delivery
of this Agreement, to prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representative and to file such Rule
462(b) Registration Statement with the Commission on the date hereof, to
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) of Rule 424(b) (or, if applicable and if consented to by
the Representative, subparagraph (4) of Rule 424(b)) within the time period
prescribed by such rule, and provide evidence satisfactory to the
Representative of such timely filing;
(b) To file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a Prospectus is required in connection with the offering of the
Senior Debentures;
(c) Prior to filing with the Commission any (i) Preliminary
Prospectus, (ii) amendment to the Registration Statement or supplement to
the Prospectus, (iii) any document incorporated by reference in the
Prospectus or (iv) any Prospectus pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the Representative and counsel
for the Underwriters, and not to file any such document to which the
Representative shall reasonably object after having been given reasonable
notice of the proposed filing thereof unless the Company is required by law
to make such filing.
(d) To advise the Representative promptly of the receipt of any
comments from the Commission and of the effectiveness of the Registration
Statement (in each case if the Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplement to the Registration Statement or the Prospectus, or of any
request by the Commission therefor, and of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose; to advise
the Representative promptly of any order preventing or suspending the use
of any prospectus relating to the Senior Debentures, of the suspension of
the qualification of the Senior Debentures for offering or sale in any
jurisdiction, and of the initiation or threatening of any proceeding for
any such purpose; and to use its best efforts to prevent the issuance of
any stop order or of any such order preventing or suspending the use of any
prospectus relating to the Senior Debentures or suspending any such
qualification and, if any such stop order or order of suspension is issued,
to obtain the lifting thereof at the earliest possible time;
(e) To furnish promptly to the Representative and counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with the Commission and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith; and to
deliver promptly without charge to the Underwriters such number of the
following documents as the Underwriters from time to time may reasonably
request: (i) conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement, the Indenture and the
computation of the ratio of earnings to fixed charges), (ii) each
Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus and (iii) any document incorporated by reference in the
Prospectus (excluding exhibits thereto);
(f) If the delivery of a prospectus is required at any time in
connection with the sale of the Senior Debentures and if at such time any
events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or if for any other
reason it shall be necessary at such time to amend or supplement the
Prospectus in order to comply with the Securities Act or the Exchange Act,
then to notify the Representative immediately thereof, and promptly to
prepare and, subject to Section 4(c) hereof, file with the Commission an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance;
(g) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the reasonable judgment of the Company or the
Representative, be required by the Securities Act or requested by the
Commission or advisable in connection with the distribution of the Senior
Debentures;
(h) As soon as practicable to make generally available to the
Company's security holders and to deliver to the Representative an earning
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including Rule 158);
(i) For so long as any of the Senior Debentures are outstanding, to
furnish to the Underwriters copies of any annual reports, quarterly reports
and current reports filed by the Company with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and all such other documents, reports and information as shall
be furnished by the Company to the Trustee or to the holders of the Senior
Debentures pursuant to the Indenture or the Exchange Act or any rule or
regulation of the Commission thereunder;
(j) Promptly, from time to time, to take such action as the
Representative may reasonably request to qualify the Senior Debentures for
offering and sale under the securities laws of such jurisdictions as the
Representative may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Senior Debentures;
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation in any jurisdiction in which they are not
so qualified or to file a general consent to service of process in any
jurisdiction;
(k) The Company shall apply the net proceeds of its sale of the Senior
Debentures as set forth in the Prospectus;
(l) In connection with the offering of the Senior Debentures, until
the Representative on behalf of the Underwriters shall have notified the
Company of the completion of the distribution of the Senior Debentures, not
to, and to cause its affiliated persons (as defined in Regulation M under
the Exchange Act) not to, either alone or with other persons, bid for or
purchase, for any account in which it or any of its affiliated persons has
a beneficial interest, any Senior Debentures, or attempt to induce any
person to purchase Senior Debentures; and not to, and to cause its
affiliated purchasers not to, make bids or purchase for the purpose of
creating actual, or apparent, active trading in or of raising the price of
the Senior Debentures;
(m) For a period of 30 days from the date of the Prospectus, not to
offer for sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any offering
of, any debt securities (or securities convertible into debt securities) of
the Company (other than the Senior Debentures in connection herewith)
without the prior written consent of the Representative;
(n) In connection with the offering of the Senior Debentures, the
Company agrees to make its officers, trustees, independent accountants and
legal counsel reasonably available upon request by the Underwriters;
(o) The Company will do and perform all things required to be done and
performed by it under this Agreement that are within its control prior to
or after the Closing Date, and to use its reasonable best efforts to
satisfy all conditions precedent on its part to the delivery of the Senior
Debentures; and
(p) Not to, for so long as the Senior Debentures are outstanding, be
or become, or be or become owned by, an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act, and to not
be or become, or be or become owned by, a closed-end investment company
required to be registered, but not registered thereunder.
Section 5. Conditions of Underwriters' Obligations. The respective
obligations of the several Underwriters hereunder are subject to the accuracy,
on and as of the date hereof and the Closing Date, of the representations and
warranties of the Company contained herein, to the accuracy of the statements of
the Company and its officers made in any certificates delivered pursuant hereto,
to the performance by the Company of its obligations hereunder, and to each of
the following additional terms and conditions:
(a) If the Effective Time is not prior to the execution and delivery
of this Agreement, then the Registration Statement shall have become
effective and the Indenture shall have been qualified under the Trust
Indenture Act, and the Representative shall have received notice thereof,
not later than (i) 6:00 P.M. New York City time, on the date of
determination of the public offering price, if such determination occurred
at or prior to 3:00 P.M., New York City time, on such date or (ii) 12:00
Noon, New York City time, on the business day following the day on which
the offering price was determined if such determination occurred after 3:00
P.M., New York City time, on such date. If the Effective Time is prior to
the execution and delivery of this Agreement, then the Prospectus shall
have been timely filed with the Commission in accordance with Section of
this Agreement. Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with to the reasonable
satisfaction of the Representative.
(b) The Prospectus (and any amendments or supplements thereto) shall
have been printed and copies distributed to the Underwriters as promptly as
practicable on or following the date of this Agreement or at such other
date and time as to which the Underwriters may agree.
(c) None of the Underwriters shall have discovered and disclosed to
the Company on or prior to the Closing Date that the Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact
which, in the opinion of counsel for the Underwriters, is material or omits
to state any fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(d) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of the Transaction Documents, the
Registration Statement and the Prospectus, and all other legal matters
relating thereto and the transactions contemplated thereby, shall be
satisfactory in all material respects to the Underwriters, and the Company
shall have furnished to the Underwriters and their counsel all documents
and information that the Underwriters or their counsel may reasonably
request to enable them to pass upon such matters.
(e) White & Case LLP shall have furnished to the Underwriters their
written opinion, as counsel to the Company, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably satisfactory
to the Underwriters substantially to the effect set forth in Annex A
hereto.
(f) ▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have furnished to the Underwriters his
written opinion, as General Counsel to the Company, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, substantially in the form of Annex B
hereto.
(g) The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Underwriters may
reasonably require, and the Company shall have furnished to such counsel
such documents and information as the Underwriters or their counsel
reasonably request for the purpose of enabling them to pass upon such
matters.
(h) The Company shall have furnished to the Underwriters a letter (the
"Initial Letter") of Price Waterhouse LLP, addressed to the Underwriters
and dated the date hereof, in form and substance satisfactory to the
Underwriters, substantially to the effect set forth in Annex C hereto.
(i) The Company shall have furnished to the Underwriters a letter (the
"BringDown Letter") of Price Waterhouse LLP, addressed to the Underwriters
and dated the Closing Date (i) confirming that they are independent public
accountants with respect to the Company and its subsidiaries within the
meaning of the Securities Act, (ii) stating, as of the date of the
Bring-Down Letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
business days prior to the date of the Bring-Down Letter), that the
conclusions and findings of such accountants with respect to the financial
information and other matters covered by the Initial Letter are accurate
and (iii) confirming in all material respects the conclusions and findings
set forth in the Initial Letter.
(j) The Company shall have furnished to the Underwriters a
certificate, dated the Closing Date, of its president and its chief
financial officer stating that (A) such officers have carefully examined
the Registration Statement and the Prospectus, (B) in their opinion, the
Registration Statement, as of the Effective Time, did not, and the
Prospectus as of its date and as of the Closing Date, did not and does not,
include 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 since the Effective Time, no event has occurred
which should have been set forth in a supplement or amendment to the
Registration Statement or the Prospectus so that the Registration Statement
and the Prospectus (as so amended or supplemented) would not include any
untrue statement of a material fact and would not omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading and since the Effective Time no event has
occurred which should have been set forth in an amendment or supplement to
the Registration Statement or the Prospectus and (C) as of the Closing
Date, the representations and warranties of the Company in this Agreement
are true and correct in all material respects, the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder on or prior to the Closing Date, no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the
best knowledge of such person, are contemplated by the Commission and
subsequent to the date of the most recent financial statements contained or
incorporated by reference in the Registration Statement and the Prospectus,
there has been no material adverse change in the financial position or
results of operation of the Company or any of its subsidiaries, or any
change, or any development including a prospective change, in or affecting
the condition (financial or otherwise), results of operations or business
of the Company and its subsidiaries taken as a whole, except as set forth
in the Prospectus.
(k) The Indenture shall have been duly executed and delivered by the
Company and the Trustee and the Senior Debentures shall have been duly
executed and delivered by the Company and duly authenticated by the
Trustee.
(l) If any event shall have occurred that requires the Company under
Section 4(e) to prepare an amendment or supplement to the Prospectus, such
amendment or supplement shall have been prepared, the Underwriters shall
have consented to its use, and copies thereof shall have been delivered to
the Underwriters reasonably in advance of the Closing Date.
(m) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment or supplement thereto) and the
Prospectus (exclusive of any amendment or supplement thereto), there shall
not have been any change in the capital stock or long-term debt or any
change, or any development involving a prospective change, in or affecting
the condition (financial or otherwise), results of operations or business
or prospects of the Company and its subsidiaries taken as a whole, the
effect of which, in any such case described above, is, in the judgment of
the Representative, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Senior Debentures
on the terms and in the manner contemplated by this Agreement and in the
Prospectus (exclusive of any amendment or supplement thereto).
(n) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or
sale of the Senior Debentures; and no injunction, restraining order or
order of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance or sale of the Senior Debentures.
(o) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Senior
Debentures or any of the Company's debt securities or preferred stock by
any "nationally recognized statistical rating organization", as such term
is defined by the Commission for purposes of Rule 436(g)(2) of the Rules
and Regulations and (ii) no such organization shall have publicly announced
that it has under surveillance or review (other than an announcement with
positive implications of a possible upgrading), its rating of the Senior
Debentures or any of the Company's debt securities or preferred stock.
(p) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or
the over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on any such exchange or market
by the Commission, by any such exchange or by any other regulatory body or
governmental authority having jurisdiction, or trading in any securities of
the Company on any exchange or in the over-the-counter market shall have
been suspended or (ii) any moratorium on commercial banking activities
shall have been declared by federal or New York State authorities or (iii)
an outbreak or escalation of hostilities or a declaration by the United
States of a national emergency or war or (iv) a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) the effect of which, in the case of this clause (iv), is, in
the judgment of the Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the sale or the delivery of
the Senior Debentures on the terms and in the manner contemplated by this
Agreement and in the Prospectus (exclusive of any amendment or supplement
thereto).
6. Effectiveness and Termination. This Agreement shall become effective
upon the later of when (i) the Underwriters and the Company shall have received
notification of the effectiveness of the Registration Statement or (ii) the
execution of this Agreement. The obligations of the Underwriters hereunder may
be terminated by the Underwriters, in their absolute discretion, by notice given
to and received by the Company prior to delivery of and payment for the Senior
Debentures, if, prior to that time, any of the events described in Section 5(m),
(n), (o) or (p) shall have occurred and be continuing.
7. Defaulting Underwriters. (a) If, on the Closing Date, any Underwriter
defaults in the performance of its obligations under this Agreement, the
non-defaulting Underwriters may make arrangements for the purchase of the Senior
Debentures which such defaulting Underwriter agreed but failed to purchase by
other persons satisfactory to the Company and the non-defaulting Underwriters,
but if no such arrangements are made within 36 hours after such default, this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters, or the Company, except that the Company will continue to be liable
for the payment of expenses of the non-defaulting Underwriters to the extent set
forth in Sections 8 and 12 hereof and except that the provisions of Sections 9
and 10 hereof as they relate to non-defaulting Underwriters shall not terminate
and shall remain in effect. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context otherwise
requires, any party not listed in Schedule 1 hereto that, pursuant to this
Section 7, purchases Senior Debentures which a defaulting Underwriter agreed but
failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default. If other persons are obligated or agree to
purchase the Senior Debentures of a defaulting Underwriter, either the
non-defaulting Underwriters or the Company may postpone the Closing Date for up
to seven full business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be necessary in
the Registration Statement, the Prospectus or in any other document or
arrangement, and the Company agrees to file promptly any amendment or supplement
to the Registration Statement or the Prospectus that effects any such changes.
8. Reimbursement of Underwriters' Expenses. If (a) this Agreement shall
have been terminated pursuant to Section 7, (b) the Company shall fail to tender
any of the Senior Debentures for delivery to the Underwriters for any reason
permitted under this Agreement or (c) the Underwriters shall decline to purchase
the Senior Debentures for any reason permitted under this Agreement, the Company
shall reimburse the Underwriters for such out-of-pocket expenses (including
reasonable fees and disbursements of counsel) as shall have been reasonably
incurred by the Underwriters in connection with this Agreement and the proposed
purchase and resale of the Senior Debentures. If this Agreement is terminated
pursuant to Section 7 by reason of the default of one or more of the
Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account of such expenses.
9. Indemnification. (a) The Company shall indemnify and hold harmless each
Underwriter, its affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 9(a) and Section 10 as an
Underwriter), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, without limitation, any
loss, claim, damage, liability or action relating to purchases and sales of the
Senior Debentures), to which that Underwriter may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and shall reimburse
each Underwriter promptly upon demand for any legal or other expenses reasonably
incurred by that Underwriter in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with any Underwriters' Information; and provided, further, that with
respect to any such untrue statement in or omission from any Preliminary
Prospectus, the indemnity agreement contained in this Section 9(a) shall not
inure to the benefit of any such Underwriter to the extent that the sale to the
person asserting any such loss, claim, damage, liability or action was an
initial resale by such Underwriter and any such loss, claim, damage, liability
or action of or with respect to such Underwriter results from the fact that both
(A) to the extent required by applicable law, a copy of the Prospectus was not
sent or given to such person at or prior to the written confirmation of the sale
of such Senior Debentures to such person and (B) the untrue statement in or
omission from such Preliminary Prospectus was corrected in the Prospectus
unless, in either case, such failure to deliver the Prospectus was a result of
non-compliance by the Company with the provision of Section 4(e).
(b) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company, its officers who sign the Registration Statement, its
directors, and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act (collectively referred to for purposes
of this Section 9(b) and Section 10 as the Company), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company may become subject, whether commenced or threatened, under
the Securities Act, the Exchange Act, any other federal or state statutory law
or regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with any Underwriters' Information provided
by such Underwriter and shall reimburse the Company promptly upon demand for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party pursuant to Section 9(a) or 9(b), notify the indemnifying party in writing
of the claim or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 9 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 9. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 9(a) and 9(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding and contains no findings of fault or culpability or failure
to act by or on behalf of the indemnified party.
The obligations of the Company and the Underwriters in this Section 9 and
in Section 10 are in addition to any other liability that the Company or the
Underwriters, as the case may be, may otherwise have, including in respect of
any breaches of representations, warranties and agreements made herein by any
such party.
10. Contribution. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under Section
9(a) or 9(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Senior Debentures or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Senior Debentures
purchased under this Agreement (before deducting expenses) received by or on
behalf of the Company, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the Senior Debentures
purchased under this Agreement, on the other, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to the Company or information supplied by the Company on
the one hand or to any Underwriters' Information on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 10 were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 10 shall be deemed to include, for
purposes of this Section 10, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending or
preparing to defend any such action or claim. Notwithstanding the provisions of
this Section 10, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total underwriting discounts and commissions
received by such Underwriter with respect to the Senior Debentures purchased by
it under this Agreement exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 10 are several in proportion to their respective
underwriting commitments and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the Underwriters, the Company and their
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except as provided in Sections 9 and
10 with respect to affiliates, officers, trustees, directors, employees,
representatives, agents and controlling persons of the Company and the
Underwriters. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 11, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein. The term "successors" shall not include a
purchaser of any of the Senior Debentures from any Underwriter merely because of
such purchase.
12. Expenses. The Company agrees with the Underwriters to pay (a) the costs
incident to the authorization, issuance, sale, preparation and delivery of the
Senior Debentures and any taxes payable in that connection; (b) the costs
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement, all Preliminary Prospectuses and the Prospectus and any
amendments and exhibits thereto (including the filing fees of the Commission);
(c) the costs of distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus, all as provided in this Agreement;
(d) the costs of printing, reproducing and distributing the Indenture, the
Senior Debentures and this Agreement and any other underwriting and selling
group documents by mail, telex or other means of communications; (e) the costs
incident to the preparation, printing and delivery of the certificates
evidencing the Senior Debentures, including stamp duties and transfer taxes, if
any, payable upon issuance of the Senior Debentures; (f) the fees and expenses
of the Company's counsel and independent accountants; (g) the fees and expenses
of qualifying the Senior Debentures under the securities laws of the several
jurisdictions as provided in Section 4(i) and of preparing, printing and
distributing Blue Sky Memoranda (including related reasonable fees and expenses
of counsel for the Underwriters); (h) any fees charged by rating agencies for
rating the Senior Debentures; (i) the fees and expenses of the Trustee and any
paying agent (including related fees and expenses of any counsel to such
parties); (j) the cost of qualifying the Senior Debentures with DTC and other
costs and expenses incident to the performance of the obligations of the Company
under this Agreement which are not otherwise specifically provided for in this
Section 12; provided, however, that except as provided in this Section 12 and
Section 8, the Underwriters shall pay their own costs and expenses.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Senior Debentures and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
if to the Underwriters, shall be delivered or sent by mail or telecopy
transmission to Chase Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ (telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇); or
if to the Company shall be delivered or sent by mail or telecopy
transmission to the address of the Company set forth in the Prospectus,
Attention: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ (telecopier no.: 714-836-1841);
provided that any notice to the Underwriters pursuant to Section 9(c) shall also
be delivered or sent by mail to the Representative at its address set forth on
the signature page hereof. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Company shall be entitled
to act and rely upon any request, consent, notice or agreement given or made on
behalf of the Underwriters by the Representative.
15. Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities Act.
16. Underwriters' Information. The parties hereto acknowledge and agree
that the Underwriters' Information consists solely of the following information
in the Preliminary Prospectus and the Prospectus: (i) the last paragraph on the
front cover page concerning the terms of the offering by the Underwriters; (ii)
the legend on the inside front cover page concerning stabilizing activities by
the Underwriters; and (iii) the statements concerning the Underwriters contained
in [the second sentence of the fifth paragraph and paragraph seven] under the
heading "Underwriting".
17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
19. Amendments. No amendment or waiver of any provision of this Agreement,
nor any consent or approval to any departure therefrom, shall in any event be
effective unless the same shall be in writing and signed by the parties hereto.
20. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement between the Company and the Underwriters in
accordance with its terms.
Very truly yours,
THE FIRST AMERICAN FINANCIAL
CORPORATION
By__________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
Accepted:
CHASE SECURITIES INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
By CHASE SECURITIES INC.
By____________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
Chase Securities Inc.
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
SCHEDULE 1
Principal Amount
Underwriters of Senior Debentures
------------ --------------------
Chase Securities Inc. $
First Chicago Capital Markets, Inc. $___________________
Total $100,000,000
SCHEDULE 2
Material Subsidiaries
---------------------
First American Trust Company
First American Title Insurance Company
First American Title Guaranty Holding Company
First American Home Buyers Protection Corporation
First American Title Insurance Company of New York
First American Flood Data Services, Inc.
First American Real Estate Information Services, Inc.
First American Real Estate Solutions LLC
ANNEX A
Form of White & Case LLC Opinion
White & Case shall have furnished to the Underwriters their written
opinion, as counsel to the Company, addressed to the Underwriters and dated the
Closing Date, in form and substance reasonably satisfactory to the Underwriters,
substantially to the effect set forth below:
(a) The Company has full right, power and authority to execute and
deliver each of the Transaction Documents and to perform its obligations
thereunder; and all corporate action required to be taken for the due and
proper authorization, execution and delivery of the Transaction Documents
and the consummation of the transactions contemplated thereby have been
duly and validly taken.
(b) This Agreement has been duly authorized, executed and delivered by
the Company.
(c) The Indenture has been duly authorized, executed and delivered by
the Company, and, assuming due authorization, execution and delivery
thereof by the Trustee, the Indenture constitutes a legal, valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to the Enforceability Exceptions.
(d) The Senior Debentures have been duly authorized, executed, issued
and delivered by the Company and, when the Senior Debentures have been duly
authenticated by the Trustee and paid for by the Underwriters, will
constitute legal, valid and binding obligations of the Company, entitled to
the benefits of the Indenture and enforceable against the Company in
accordance with their terms, subject to the Enforceability Exceptions.
(e) Each Transaction Document conforms in all material respects to the
description thereof contained in the Prospectus.
(f) The statements set forth in the Prospectus under the caption
"Description of Senior Debentures", insofar as they purport to describe the
provisions of the law and documents referred to therein are accurate.
(g) Neither the Company nor any of its subsidiaries is an "investment
company" or a company "controlled by" an investment company within the
meaning of the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder, without taking account of any
exemption under the Investment Company Act of 1940, as amended, arising out
of the number of holders of the Company's securities.
(h) The Registration Statement was declared effective under the
Securities Act and the rules and regulations of the Commission thereunder
and the Indenture was qualified under the Trust Indenture Act at
[__________] on [__________], 1998; the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on [__________], 1998; and no stop
order suspending the effectiveness of the Registration Statement has been
issued and, to the best of such counsel's knowledge, no proceeding for that
purpose is pending or threatened by the Commission;
(i) The Registration Statement, as of the Effective Date, and the
Prospectus (including any amendments or supplements thereto), as of its
date(s) and as of the Closing Date, complied as to form in all material
respects with the requirements of the Securities Act and the Rules and
Regulations and the Indenture complies as to form in all material respects
with the Trust Indenture Act and the rules and regulations of the
Commission thereunder, and the Exchange Act Reports complied as to form
when filed in all material respects with the requirements of the Exchange
Act and the rules and regulations of the Commission thereunder (in the case
of the Registration Statement, the Prospectus and the Exchange Act Reports,
other than the financial statements and related schedules and the other
financial and statistical information contained therein, as to which such
counsel need express no opinion).
In addition, such counsel shall state that, although they have not
undertaken, except as otherwise indicated in their opinion, to determine
independently, and do not assume any responsibility for the accuracy or
completeness of the statements in the Registration Statement and the
Prospectus (other than as set forth in paragraphs (e) and (f) above), as
counsel for the Company, they reviewed the documents incorporated by
reference therein (the "Exchange Act Documents"), participated in the
preparation of the Registration Statement and the Prospectus and in
discussions with representatives of the Company and its independent public
accountants and advised the Company as to the requirements of the
Securities Act and the applicable rules and regulations thereunder. Such
counsel shall also state that they reviewed certificates of certain
officers of the Company and the letter from the Company's independent
accountants. Such counsel shall state that nothing that came to their
attention that has caused them to believe that any part of the Registration
Statement (including the Exchange Act Documents) as of the 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 that the Prospectus as amended or
supplemented (including the Exchange Act Documents) as of its date(s) and
as of the Closing Date contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel
need not express an opinion with respect to the financial statements and
notes and schedules thereto or any other statistical or financial data
included therein).
ANNEX B
[Form of Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇]
▇▇▇▇▇ ▇. ▇▇▇▇▇, shall have furnished to the Underwriters his written
opinion, as general counsel to the Company, addressed to the Underwriters and
dated the Closing Date, in form and substance reasonably satisfactory to the
Underwriters, substantially to the effect set forth below:
(a) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of California;
and the Company and each of its Material Subsidiaries is duly qualified or
licensed to do business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership or lease of property, maintenance
of an office or the conduct of its businesses requires such qualification,
and has all power and authority necessary to own or hold its properties and
to conduct the businesses in which it is engaged (except where the failure
to so qualify or be licensed or have such power or authority would not,
singularly or in the aggregate, have a Material Adverse Effect).
(b) The Company has an authorized capitalization as set forth in the
Prospectus.
(c) All of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and were not issued in violation of the preemptive
rights of any other stockholder of the Company; and all of the issued and
outstanding shares of capital stock of each of the Company's Material
Subsidiaries (other than First American Title Guaranty Holding Company,
First American Home Buyers Protection Corporation and First American Real
Estate Solutions LLC) are owned of record by the Company or one or more of
its subsidiaries, and all such shares of such capital stock are duly and
validly issued, fully paid and non-assessable, except that the transfer of
ownership of the capital stock of First America Title Insurance Company is
subject to the prior approval of the California Department of Insurance.
The Company owns 80% of the issued and outstanding shares of the capital
stock of First American Title Guaranty Holding Company ("FATGHC"). The
Company owns 79% of the issued and outstanding shares of the capital stock
of First American Home Buyers Protection Corporation ("FAHBPC"). The
Company owns 80% of the membership interests in First American Real Estate
Solutions LLC ("FARESLLC"). The outstanding shares of the capital stock of
FATGHC and FAHBPC that are owned by the Company have been duly and validly
authorized and issued, are fully paid and are nonassessable, and are owned,
indirectly, by the Company free and clear of any pledge, lien, security
interest, charge, claim, restriction on voting or transfer or encumbrance
of any kind, except that the holders of the minority interests in FATGHC
and FAHBPC have the right to "put" their minority interests to First
American Title Insurance Company in 1998 and have advised the Company that
they intend to do so. All of the Company's capital contributions required
by FARESLLC's operating agreement have been made and no future capital
contributions are required of the Company or any of its Subsidiaries. Under
certain circumstances, the holders of the minority membership interests in
FARESLLC have the right to "put" their minority interests to the Company
and the Company has the right to "call" such minority interests.
(d) The execution, delivery and performance by the Company of the
Transaction Documents, the issuance, authentication, sale and delivery of
the Senior Debentures and compliance by the Company with the material terms
thereof and the consummation of the transactions contemplated thereby will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company or any of its subsidiaries or
by which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions of
the charter or by-laws of the Company or any of its Material Subsidiaries
or any statute or any judgment, order, decree, rule or regulation of any
court or arbitrator or governmental agency or body having jurisdiction over
the Company or any of its Material Subsidiaries or any of their properties
or assets; and no consent, approval, authorization or order of, or filing
or registration with, any such court or arbitrator or governmental agency
or body under any such statute, judgment, order, decree, rule or regulation
is required for the execution, delivery and performance by the Company of
the Indenture, the Senior Debentures and this Agreement, the issuance,
authentication, sale and delivery of the Senior Debentures and compliance
by the Company with the terms thereof and the consummation of the
transactions contemplated thereby, except for (i) the registration of the
Senior Debentures under the Securities Act, (ii) the qualification of the
Indenture under the Trust Indenture Act, (iii) such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Exchange Act and applicable state securities laws in connection with
the purchase and distribution of the Senior Debentures by the Underwriters
and (iv) such consents, approvals, authorizations, orders, filings,
registrations or qualifications which shall have been obtained or made
prior to the Closing Date.
(e) To the best knowledge of such counsel, there are no pending
actions or suits or judicial, arbitral, rule-making, administrative or
other proceedings to which the Company or any of its subsidiaries is a
party or of which any property or assets of the Company or any of its
subsidiaries is the subject which (A) singularly or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, could
reasonably be expected to have a Material Adverse Effect, (B) questions the
validity or enforceability of any of the Transaction Documents or any
action taken or to be taken pursuant thereto; or (C) which is required to
be disclosed in the Prospectus which is not so disclosed (and any such
proceeding as is disclosed in the Prospectus is accurately summarized in
all material respects) and, to the best knowledge of such counsel, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others. There are no contracts or other documents which are
required by the Securities Act or by the Rules and Regulations to be
described in the Prospectus or filed as exhibits to the Registration
Statement which have not been so described or filed.
(f) Neither the Company nor any of its Material Subsidiaries is (A) in
violation of its charter or by-laws, (B) in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance
of any material term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which it is a party or by which it is bound or
to which any of its material property or assets is subject or (C) in
violation in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its material property or assets
may be subject.
ANNEX C
[Form of Initial Letter]
The Company shall have furnished to the Underwriters a letter of Price
Waterhouse LLP, addressed to the Underwriters and dated the date of the
Underwriting Agreement, in form and substance satisfactory to the Underwriters,
substantially to the effect set forth below:
(a) they are independent certified public accountants with respect to
the Company within the meaning of the Securities Act;
(b) in their opinion, the audited financial statements included or
incorporated by reference in the Prospectus and reported on by them comply
in form in all material respects with the accounting requirements of the
Exchange Act and the related published rules and regulations of the
Commission thereunder (except that certain supporting schedules are
omitted);
(c) based upon a reading of the latest unaudited financial statements
made available by the Company, the procedures of the AICPA for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, reading of minutes and inquiries of certain officials of
the Company who have responsibility for financial and accounting matters
and certain other limited procedures requested by the Underwriters and
described in detail in such letter, nothing has come to their attention
that causes them to believe that (A) any unaudited financial statements
included in the Registration Statement and the Prospectus do not comply as
to form in all material respects with applicable accounting requirements,
(B) any material modifications should be made to the unaudited financial
statements included in the Registration Statement and the Prospectus for
them to be in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
financial statements included in the Prospectus or (C) the information
included under the headings ["Summary--Summary Financial Data",
"Capitalization", "Selected Financial Data", "Management's Discussion and
Analysis of Results of Operations and Financial Condition" and
"Management--Executive Compensation"] is not in conformity with the
disclosure requirements of Regulation S-K;
(d) based upon the procedures detailed in such letter with respect to
the period subsequent to the date of the last available balance sheet,
including reading of minutes and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters,
nothing has come to their attention that causes them to believe that (A) at
a specified date not more than three business days prior to the date of
such letter, there was any change in capital stock, increase in long-term
debt or decrease in net current assets as compared with the amounts shown
in the __________ unaudited balance sheet included or incorporated by
reference in the Prospectus or (B) for the period from __________, 199_ to
a specified date not more than five business days prior to the date of such
letter, there were any decreases, as compared with the corresponding period
in the preceding year, in net sales, income from operations, EBITDA or net
income, except in all instances for changes, increases or decreases that
the Prospectus discloses have occurred or which are set forth in such
letter, in which case the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless said explanation is not
deemed necessary by the Underwriters; [and]
(e) they have performed certain other specified procedures as a result
of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company) set forth in the Prospectus agrees with the accounting records
of the Company, excluding any questions of legal interpretation [; and] [.]
[(f) on the basis of a reading of the unaudited pro forma financial
information included in the Registration Statement and the Prospectus,
carrying out certain specified procedures, reading of minutes and inquiries
of certain officials of the Company who have responsibility for financial
and accounting matters and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in the
pro forma financial information, nothing came to their attention which
caused them to believe that the pro forma financial information does not
comply in form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of such information.]