Exhibit 1.05
Preferred Securities
▇▇▇▇▇▇ BROTHERS HOLDINGS CAPITAL TRUST
UNDERWRITING AGREEMENT
New York, New York
Dated the date set forth
In Schedule I hereto
To the Representative(s)
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
▇▇▇▇▇▇ Brothers Holdings, Inc., a Delaware corporation (the
"Company"), proposes to sell to you and the other underwriters named in Schedule
II hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the aggregate liquidation amount (the "Firm Securities")
identified in Schedule I hereto of the preferred securities (the "Preferred
Securities") of ▇▇▇▇▇▇ Brothers Holdings Capital Trust _____, a Delaware
statutory business trust (the "Trust") guaranteed (the "Guarantee"; together
with the Preferred Securities, the "Securities") by the Company (as defined
herein) to the extent set forth in the Guarantee Agreement (the "Guarantee
Agreement") identified in such Schedule I, to be entered into between the
Company and the guarantee trustee (the "Guarantee Trustee") identified therein.
In addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional aggregate liquidation amount of the Preferred
Securities identified in Schedule I hereto on the terms and for the purposes set
forth in Section 3 hereof (the "Option Securities"). The Firm Securities and the
Option Securities, if purchased, are hereinafter collectively called "Preferred
Securities". The Company will receive all of the common securities (the "Common
Securities") of the Trust and all of the Preferred Securities to be issued by
the Trust in exchange for the Company's debt securities identified in Schedule I
hereto (the "Debentures"). The Debentures are to be issued under the indenture
(the "Indenture") identified in such Schedule I, between the Company and the
indenture trustee (the "Indenture Trustee") identified therein. The Company will
remain the owner of all of the beneficial ownership interests of the Trust
represented by the Common Securities. If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives" shall each be deemed to refer to such
firm or firms.
1. Representations and Warranties. The Company represents and
warrants to each Underwriter that:
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations promulgated thereunder (the "Rules"), and has
carefully prepared and filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the file number
of which is set forth in Schedule I hereto), which has become effective,
for the registration of the Securities under the Securities Act. The
registration statement, as amended at the date of this Agreement, meets
the requirements set forth in Rule 415(a)(1)(x) under the Securities Act
and complies in all other material respects with such rule. The Company
proposes to file with the Commission pursuant to Rule 424 under the
Securities Act ("Rule 424") a supplement to the form of prospectus
included in the registration statement relating to the initial offering of
the Securities and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with respect
to the Company to be set forth therein. The term "Registration Statement"
means the registration statement, as amended at the date of this
Agreement, including the exhibits thereto, financial statements, and all
documents incorporated therein by reference pursuant to Item 12 of Form
S-3 (the "Incorporated Documents"), and such prospectus as then amended,
including the Incorporated Documents, is hereinafter referred to as the
"Basic Prospectus"; and such supplemented form of prospectus, in the form
in which it shall be filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented), is hereinafter called
the "Final Prospectus". Any preliminary form of the Basic Prospectus which
has heretofore been filed pursuant to Rule 424 is hereinafter called the
"Interim Prospectus". Any reference herein to the Registration Statement,
the Basic Prospectus, any Interim Prospectus or the Final Prospectus shall
be deemed to refer to and include the Incorporated Documents which were
filed under the Securities Exchange Act of 1934 (the "Exchange Act"), on
or before the date of this Agreement or the issue date of the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus shall be deemed
to refer to and include the filing of any Incorporated Documents under the
Exchange Act after the date of this Agreement or the issue date of the
Basic Prospectus, any Interim Prospectus or the Final Prospectus, as the
case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
with the Commission pursuant to Rule 424, when, before either Closing Date
(hereinafter defined), any amendment to the Registration Statement becomes
effective, when, before either Closing Date, any Incorporated Document is
filed with the Commission, when any supplement to the Final Prospectus is
filed with the Commission and at each Closing Date, the Registration
Statement, the Final Prospectus and any such amendment or
supplement will comply in all material respects with the applicable
requirements of the Securities Act and the Rules, and the Incorporated
Documents will comply in all material respects with the requirements of
the Exchange Act or the Securities Act, as applicable, and the rules and
regulations adopted by the Commission thereunder; on the date hereof and
on each Closing Date, the Indenture shall have been qualified under and
will comply in all material respects with the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"); on the date it became effective,
the Registration Statement did not, and, on the date that any
post-effective amendment to the Registration Statement becomes effective,
the Registration Statement as amended by such post-effective amendment did
not or will not, as the case may be, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; on the
date the Final Prospectus is filed with the Commission pursuant to Rule
424 and on each Closing Date, the Final Prospectus, as it may be amended
or supplemented, will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading; and on said dates, the Incorporated Documents will comply in
all material respects with the applicable provisions of the Exchange Act
and rules and regulations of the Commission thereunder, and, when read
together with the Final Prospectus, or the Final Prospectus as it may be
then amended or supplemented, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading; provided that the
foregoing representations and warranties in this paragraph (b) shall not
apply to statements or omissions made in reliance upon and in conformity
with written information furnished to the Company by or through the
Representatives on behalf of any Underwriter specifically for use in
connection with the preparation of the Registration Statement or the Final
Prospectus, as they may be amended or supplemented, or to any statements
in or omissions from the statements of eligibility and qualification on
Form T-1 of the Indenture Trustee, the Property Trustee (the "Property
Trustee") identified in Schedule I hereto and the Guarantee Trustee under
the Trust Indenture Act (the "Forms T-1).
(c) The Basic Prospectus and any Interim Prospectus, as of their
respective dates, complied in all material respects with the requirements
of the Securities Act and of the Rules and did not include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Commission has not issued
an order preventing or suspending the use of the Basic Prospectus or any
Interim Prospectus.
(d) The nationally recognized firm of independent public accountants
whose report appears in the Company's most recent Annual Report on Form
10-K, which is
incorporated by reference in the Final Prospectus, are independent public
accountants as required by the Securities Act and the Rules.
(e) In the event that a report of a nationally recognized firm of
independent public accountants regarding historical financial information
with respect to any entity acquired by the Company is required to be
incorporated by reference in the Final Prospectus, such independent public
accountants were independent public accountants, as required by the
Securities Act and the Rules, during the period of their engagement to
examine the financial statements being reported on and at the date of
their report.
(f) The audited consolidated financial statements of the Company in
the Final Prospectus and the Registration Statement present fairly on a
consolidated basis the financial position, the results of operations,
changes in common stock and other stockholder's equity and cash flows of
the Company and its subsidiaries, as of the respective dates and for the
respective periods indicated, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved. The unaudited consolidated financial statements of the Company,
if any, included in the Final Prospectus and the Registration Statement
and the related notes are true complete and correct, subject to normally
recurring changes resulting from year-end audit adjustments, and have been
prepared in accordance with the instructions to Form 10-Q.
(g) Except as described in or contemplated by the Registration
Statement and the Final Prospectus, there has not been any material
adverse change in or any adverse development which materially affects the
business, properties, financial condition or results of the Company or the
Company and its subsidiaries taken as whole, from the dates as of which
information is given in the Registration Statement and Final Prospectus.
(h) This Agreement has been duly and validly authorized, executed
and delivered by the Company; the Guarantee Agreement has been duly and
validly authorized by the Company and, when duly executed and delivered by
the proper officers of the Company (assuming due execution and delivery by
the Guarantee Trustee) will constitute a valid and legally binding
agreement of the Company enforceable against the Company in accordance
with its terms; the Indenture has been duly and validly authorized,
executed and delivered by the Company and (assuming due execution and
delivery by the Indenture Trustee) constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms; and the Debentures have been duly and validly authorized,
and, when validly authenticated, issued and delivered in accordance with
the Indenture in exchange for the Common Securities and the Preferred
Securities as described in this Agreement, will be validly issued and
outstanding obligations of the Company entitled to the benefits of the
Indenture; and the Debentures
and the Guarantee, when issued and delivered, will conform to the
descriptions thereof contained in the Final Prospectus.
(i) The Company does not have any subsidiaries having business or
properties that are material to the business and properties of the Company
and its subsidiaries taken as a whole with the exception of ▇▇▇▇▇▇
Brothers Inc. ("▇▇▇▇▇▇") and the possible exception of ▇▇▇▇▇▇ Commercial
Paper Inc. (the "Named Subsidiaries"). Neither the Company nor either of
the Named Subsidiaries is in violation of its corporate charter or by-laws
or in default under any agreement, indenture or instrument, the effect of
which violation or default would be material to the Company and its
subsidiaries taken as a whole. The execution, delivery and performance of
this Agreement, the Guarantee Agreement, the Indenture and the Debentures
by the Company, the purchase of the Common Securities by the Company from
the Trust, and the consummation by the Company of the transactions
contemplated hereby (the "Company Transactions") will not violate, result
in the creation or imposition of any material lien, charge or encumbrance
upon any of the assets of the Company or any of its subsidiaries pursuant
to the terms of, or constitute a default under, any material agreement,
indenture or instrument, or result in a violation of the corporate charter
or by-laws of the Company or any of its subsidiaries or any order, rule or
regulation of any court or governmental agency having jurisdiction over
the Company, the Named Subsidiaries or their property. Except as set forth
in the Final Prospectus or as required by the Securities Act, the Exchange
Act, the Trust Indenture Act and applicable state securities laws, no
consent, authorization or order of, or filing or registration with, any
court or governmental agency is required for the Company Transactions.
(j) The Company and the Named Subsidiaries have been duly organized,
are validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do
business and in good standing as foreign corporations and are fully
registered as a broker-dealer, broker, dealer or investment advisor, as
the case may be, in each jurisdiction in which their respective ownership
of property or the conduct of their respective businesses requires such
qualification or registration and in which the failure to qualify or
register would be reasonably likely, individually or in the aggregate, to
have a material adverse effect on the business, condition or properties of
the Company and its subsidiaries taken as a whole. Each of the Company and
its Named Subsidiaries holds all material licenses, permits, and
certificates from governmental authorities necessary for the conduct of
its business and owns, or possesses adequate rights to use, all material
rights necessary for the conduct of such business and has not received any
notice of conflict with the asserted rights of others in respect thereof;
and each of the Company and its Named Subsidiaries has the corporate power
and authority necessary to own or hold its properties and to conduct the
businesses in which it is engaged. Except as may be disclosed in the
Registration Statement and the Final Prospectus, all outstanding shares of
capital stock of the Named Subsidiaries are owned by the Company, directly
or indirectly through subsidiaries, free and clear of any
lien, pledge and encumbrance or any claim of any third party and are duly
authorized, validly issued and outstanding, fully paid and non-assessable.
(k) Except as described in the Registration Statement and the Final
Prospectus, there is no material litigation or governmental proceeding
pending or, to the knowledge of the Company, threatened against the
Company or any of its subsidiaries which might reasonably be expected to
result in any material adverse change in the business, properties,
financial condition or results of operations of the Company and its
subsidiaries taken as a whole or which is required to be disclosed in the
Registration Statement and the Final Prospectus.
(l) The certificates delivered pursuant to paragraph (h) of Section
7 hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the Securities
were on the dates on which they were delivered, or will be on the dates on
which they are to be delivered, in all material respects true and
complete.
2. Representations, Warranties and Agreements of the Company and the
Trust. The Company and the Trust, jointly and severally, represent, warrant and
agree that:
(a) The Trust has been duly created, is validly existing as a
statutory business trust and in good standing under the Business Trust Act
of the State of Delaware (the "Delaware Business Trust Act") with the
trust power and authority to own property and conduct its business as
described in the Registration Statement and the Final Prospectus, and has
conducted and will conduct no business other than the transactions
contemplated by this Agreement as described in the Registration Statement
and the Final Prospectus; the Trust is not and will not be a party to or
bound by any agreement or instrument other than this Agreement, the
Declaration of Trust of the Trust identified in Schedule I hereto, among
the Company, as Sponsor, and the regular trustees identified in Schedule I
hereto (the "Regular Trustees"), the Property Trustee and the Delaware
Trustee identified in Schedule I hereto (the "Delaware Trustee" and,
together with the Regular Trustees and the Property Trustee, the
"Trustees"), and the Amended and Restated Declaration of Trust of the
Trust (the "Declaration") identified in Schedule I hereto, among the
Company, as Sponsor, and the Trustees; the Trust has no and will not have
any liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement, such Declaration of Trust and
the Declaration and described in the Final Prospectus; and the Trust is
not a party to or subject to any action, suit or proceeding of any nature.
(b) The Declaration is duly and validly authorized and, when duly
executed and delivered by the Company, as Sponsor, and the Trustees, and
(assuming due authorization, execution and delivery of the Declaration by
the Property Trustee and the Delaware Trustee), will constitute a valid
and legally binding agreement of the Company
and the Trust, and will conform to the description thereof contained in
the Final Prospectus.
(c) All of the outstanding beneficial ownership interests in the
Trust have been, and the Preferred Securities and the Common Securities,
upon issuance and delivery and payment therefor in the manner described
herein, will be, duly authorized, validly issued and outstanding, fully
paid and non-assessable and will conform to the descriptions of the
Preferred Securities and the Common Securities contained in the Final
Prospectus.
(d) This Agreement has been duly and validly authorized, executed
and delivered by the Trust.
(e) The execution, delivery and performance of this Agreement, the
Declaration, the Common Securities and the Preferred Securities by the
Trust, the exchange of the Common Securities and the Preferred Securities
by the Trust for the Debentures of the Company, the distribution of the
Debentures upon the liquidation of the Trust in the circumstances
contemplated by the Declaration and described in the Final Prospectus, and
the consummation by the Trust of the transactions contemplated hereby and
by the Declaration (the "Trust Transactions") will not result in a
violation of any order, rule or regulation of any court or governmental
agency having jurisdiction over the Trust or its property. Except as set
forth in the Final Prospectus or as required by the Securities Act, the
Exchange Act, the Trust Indenture Act and applicable state securities
laws, no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the Trust
Transactions.
(f) The Trust is not required to be registered as an "investment
company" under the Investment Company Act of 1940, as amended.
3. Sale and Purchase of the Preferred Securities.
(a) The Company agrees to sell to each Underwriter, and each
Underwriter, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein stated, agrees to purchase, at a purchase price equal to 100% of
the liquidation amount of the Preferred Securities, the aggregate
liquidation amount of Firm Securities set forth opposite the name of such
Underwriter in Schedule II hereto. The obligations of the Underwriters
under this Agreement are several and not joint.
(b) In addition, the Company grants to the Underwriters an option to
purchase, at a purchase price equal to 100% of the liquidation amount of
the Preferred Securities, up to an additional aggregate liquidation amount
of Option Securities indicated in Schedule I hereto. Such option is
granted solely for the purpose of covering over-allotments in the sale of
Firm Securities and is exercisable as provided in Section 4
hereof. Option Securities shall be purchased severally for the account of
the Underwriters in proportion to the liquidation amounts of Firm
Securities set forth opposite the name of such Underwriters in Schedule II
hereto. The respective purchase obligations of each Underwriter with
respect to the Option Securities shall be adjusted by the Representatives
so that no Underwriter shall be obligated to purchase Option Securities
other than in a liquidation amount of $1,000 or an integral multiple
thereof.
(c) As compensation to the Underwriters, the Company shall, on the
First Closing Date and the Second Closing Date (as defined in Section 4
hereof) pay to the Representatives for the accounts of the several
Underwriters a commission equal to % of the aggregate liquidation amount
of the Preferred Securities sold by the Company on such Closing Date.
4. Delivery and Payment.
(a) Delivery by the Company and the Trust of the Firm Securities to
the Representatives for the respective accounts of the several
Underwriters and payment by the Underwriters therefor by wire transfer in
federal (same day) funds to such account as the Company shall specify,
shall take place at the office, on the date and at the time specified in
Schedule I hereto, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in Section 10
hereof (such date and time of delivery and payment for the Firm Securities
being herein called the "First Closing Date").
(b) The Firm Securities will be in the form of one or more global
Firm Securities registered in the name of Cede & Co., as nominee of the
Depository Trust Company ("DTC").
(c) At any time on or before the thirtieth day after the date
hereof, the option granted in Section 3 may be exercised by written notice
being given to the Company by the Representatives. Such notice shall set
forth the aggregate liquidation amount of Option Securities as to which
the option is being exercised and the date and time, as determined by the
Representatives, when the Option Securities are to be delivered; provided,
however, that this date and time shall not be earlier than the First
Closing Date nor earlier than the third business day after the date on
which the option shall have been exercised nor later than the fifth
business day after the date on which the option shall have been exercised.
The date and time the Option Securities are delivered are sometimes
referred to as the "Second Closing Date" and the First Closing Date and
the Second Closing Date are sometimes referred to as a "Closing Date".
(d) Delivery by the Company of the Option Securities to the
Representatives for the respective accounts of the several Underwriters
and payment by the Underwriters therefor by wire transfer in federal (same
day) funds to such account as the Company will
specify, shall take place at the office and at the time agreed to in
advance by the Underwriters and the Company, on the Second Closing Date,
which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 10 hereof.
(e) The Option Securities will be in the form of one or more global
option Securities registered in the name of Cede & Co., as nominee of DTC.
(f) On the First Closing Date and the Second Closing Date, the
Company shall pay, or cause to be paid, the commission payable on such
Closing Date to the Representatives for the accounts of the Underwriters
under Section 3 by wire transfer in federal (same day) funds to such
account as the Representatives shall specify.
5. Offering by Underwriters. The Company and the Trust hereby
confirm that the Underwriters and dealers have been authorized to distribute or
cause to be distributed any Interim Prospectus and are authorized to distribute
the Final Prospectus (as from time to time amended or supplemented if the
Company furnishes amendments or supplements thereto to the Underwriters). The
Representatives agree that, as soon as the Representatives believe the offering
of the Preferred Securities has been terminated, the Representatives will so
advise the Company and the Trust.
6. Agreements. Each of the Company and the Trust agrees with the
several Underwriters:
(a) To cause the Final Prospectus to be filed with the Commission
pursuant to Rule 424 as required thereby and promptly to advise the
Representatives (A) when the Final Prospectus shall have been filed with
the Commission pursuant to Rule 424, (B) when any amendment to the
Registration Statement relating to the Securities shall have become
effective, (C) of any request by the Commission for any amendment of the
Registration Statement, the Final Prospectus, the Basic Prospectus or any
Interim Prospectus, or for any additional information, (D) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the qualification of the Declaration, the
Guarantee Agreement or the Indenture or the institution or threatening of
any proceedings for that purpose and (E) of the receipt by the Company or
the Trust of any notification with respect to the suspension of the
qualification of the Securities or the Debentures for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; after the date of this Agreement and prior to the termination of
the offering of these Preferred Securities, not to file any amendment of
the Registration Statement or amendment or supplement to the Final
Prospectus (except an amendment or supplement to the Final Prospectus that
is deemed to be incorporated by reference in the Final Prospectus pursuant
to Item 12 of Form S-3) without the consent of the Representatives and to
use its best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the
withdrawal thereof; prior to receipt of the advice to be given by the
Representatives pursuant to Section 5, not to file any document that would
be deemed to be incorporated by reference in the Final Prospectus pursuant
to Item 12 of Form S-3 without delivering to the Representatives a copy of
the document proposed to be so filed, such delivery to be made at least
twenty-four hours prior to such filing, and to consult with the
Representatives as to any comments which the Representatives make in a
timely manner with respect to the document so delivered.
(b) Subject to the last sentence of the immediately preceding
paragraph, if, at any time when a prospectus relating to the Securities is
required to be delivered under the Securities Act, any event occurs as a
result of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if it shall be necessary at any time to amend or supplement the Final
Prospectus to comply with the Securities Act or the Rules, to promptly
prepare and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance and to use its best efforts to cause any amendment of the
Registration Statement containing an amended Final Prospectus to be made
effective as soon as possible.
(c) To deliver to the Representatives, without charge, (i) signed
copies of the Registration Statement relating to the Securities and of any
amendments thereto (including all exhibits filed with, or incorporated by
reference in, any such document) and (ii) as many conformed copies of the
Registration Statement and of any amendments thereto which shall become
effective on or before each Closing Date (excluding exhibits) as the
Representatives may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, to deliver, without charge to the
Representatives and to Underwriters and dealers, at such office or offices
as the Representatives may designate, as many copies of the Basic
Prospectus, any Interim Prospectus and the Final Prospectus as the
Representatives may reasonably request.
(e) To make generally available to the Company's security holders
and to the Representatives as soon as practicable an earnings statement
(which need not be audited) of the Company and its subsidiaries, covering
a period of at least 12 months beginning after the date the Final
Prospectus is filed with the Commission pursuant to Rule 424, which will
satisfy the provisions of Section 11(a) of the Securities Act.
(f) To furnish such information, execute such instruments and take
such actions as may be required to qualify the Securities and the
Debentures for offering and sale under the laws of such jurisdictions as
the Representatives may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Preferred Securities; provided, however, that neither
the Company nor the Trust shall be required to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action
which would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(g) So long as any Preferred Securities are outstanding, to furnish
or cause to be furnished to the Representatives copies of all annual
reports and current reports filed with the Commission on Forms 10-K, 10-Q
and 8-K, or such other similar forms as may be designated by the
commission.
(h) If the Company or the Trust has applied for the listing of the
Preferred Securities on the New York Stock Exchange Inc. (the "NYSE"), to
use its best efforts to cause such listing to be approved as soon as
possible.
(i) For a period beginning at the time of execution of this
Agreement and ending on the later of the business day following the First
Closing Date or following the date on which any price restrictions on the
sale of the Preferred Securities are terminated, without the prior consent
of the Representatives, not to offer, sell, contract to sell or otherwise
dispose of any preferred stock of the Company or any securities of any
business trust or other entity controlled by the Company substantially
similar to the Preferred Securities or any securities thereof convertible
into or exchangeable for or that represent the right to receive any such
securities.
(j) To use its best efforts to do and perform all things to be done
and performed hereunder prior to each Closing Date and to satisfy all
conditions precedent to the delivery of the Preferred Securities to be
purchased hereunder.
(k) To take such steps as shall be necessary to ensure that neither
the Company nor the Trust shall become subject to registration as an
"investment company" under the Investment Company Act of 1940, as amended.
7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of the Company and the Trust contained herein as of the date hereof and
each Closing Date, to the accuracy of any material statements made in any
certificates, opinions, affidavits, written statements or letters furnished to
the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel")
pursuant to this Section 7, to the performance by the Company and the Trust of
their respective obligations hereunder and to the following additional
conditions:
(a) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 not later than 5:00 p.m., New York City time, on the
second business day
following the date of this Agreement or such later date and time as shall
be consented to in writing by the Representatives.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, or suspending the qualification
of the Declaration, the Guarantee Agreement or the Indenture, shall be in
effect and no proceedings for such purpose shall be pending before or
threatened by the Commission and any requests for additional information
on the part of the Commission (to be included in the Registration
Statement or the Final Prospectus or otherwise) shall have been complied
with to the reasonable satisfaction of the Representatives.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, there shall not have
been any change or decrease specified in the letter or letters referred to
in paragraphs (h) or (i) of this Section 7 which, in the judgment of the
Representatives, makes it impracticable or inadvisable to proceed with the
offering and delivery of the Preferred Securities as contemplated by the
Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representatives the
opinion of a Deputy General Counsel or the Chief Legal Officer for the
Company, dated the applicable Closing Date, to the effect that:
(i) The Company has been duly organized and is validly
existing and in good standing under the laws of the jurisdiction of
its incorporation with all requisite corporate power and authority
to own and operate its properties and to conduct its business as
described in the Final Prospectus.
(ii) The statements made in the Final Prospectus under the
captions "Description of Debentures", "The Trust", "Description of
Preferred Securities", "Description of Guarantee" and "Relationship
Among the Preferred Securities, the Debentures and the Guarantee",
insofar as such statements purport to constitute summaries of the
terms of the Preferred Securities, the Debentures and the Guarantee,
constitute accurate summaries of the terms of the Preferred
Securities, the Debentures and the Guarantee in all material
respects.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms; and
the Debentures have been duly authorized, executed and issued by the
Company, and assuming due authentication by the Indenture Trustee
and upon payment and delivery in accordance with this Agreement,
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture; and the Guarantee
Agreement has been
duly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the Guarantee Trustee,
will constitute a legal, valid and binding obligation of the
Company; provided, however, that the foregoing is subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium. and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and by an
implied covenant of good faith and fair dealing.
(iv) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of
the transactions contemplated by this Agreement, except for (1) such
consents, approvals, authorizations or orders as have been obtained
under the Securities Act and such as may be required under the
Exchange Act and the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters, and (2) the qualification of the Indenture, the
Declaration and the Guarantee Agreement under the Trust Indenture
Act, which has been obtained.
(v) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules which
have not been filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules.
(vi) To the best of such counsel's knowledge, neither the
Company nor either of its Named Subsidiaries is in violation of its
corporate charter or by-laws, or in default under any material
agreement, indenture or instrument known to such counsel, the effect
of which violation or default would be material to the Company and
its subsidiaries taken as a whole.
(vii) This Agreement and the Declaration have been duly
authorized, executed and delivered by the Company; the execution,
delivery and performance of this Agreement, the Declaration, the
Indenture and the Guarantee Agreement (collectively the "Transaction
Documents") by the Company and the Trust will not conflict with, or
result in the creation or imposition of any material lien, charge or
encumbrance upon any of the assets of the Company or its Named
Subsidiaries pursuant to the terms of, or constitute a default
under, any material agreement, indenture or instrument known to such
counsel and to which the Company or either of its Named Subsidiaries
is a party or is bound, or result in a violation of the corporate
charter or by-laws of the Company or either of its Named
Subsidiaries or any order, rule or regulation known to such counsel
of any court or governmental agency having jurisdiction over the
Company, its Named Subsidiaries or any of their respective
properties, the effect of which would be material to the Company and
its subsidiaries taken as a whole.
(viii) The Registration Statement has become effective under
the Securities Act, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose is pending or threatened by the Commission.
(ix) The Registration Statement, the Final Prospectus and each
amendment thereof or supplement thereto (except that no opinion need
be expressed as to the financial statements or other financial or
statistical data or the Forms T-1 included or incorporated by
reference therein) comply as to form in all material respects with
the requirements of the Securities Act and the Rules.
(x) If the Preferred Securities are to be listed on the NYSE,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company
has filed a preliminary listing application and all required
supporting documents with respect to the Preferred Securities with
the NYSE, and such counsel has no reason to believe that the
Preferred Securities will not be authorized for listing, subject to
official notice of issuance and evidence of satisfactory
distribution.
(xi) Each of the Named Subsidiaries is a duly organized and
validly existing corporation in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate power
and authority to own and operate its properties and to conduct its
business as described in the Final Prospectus. Each of the Company
and its Named Subsidiaries is duly qualified to do business as a
foreign corporation, is in good standing and is duly registered as a
broker-dealer, broker, dealer or investment advisor, as the case may
be, in each jurisdiction in which the nature of the business
conducted by it or in which the ownership or holding by lease of the
properties owned or held by it require such qualification or
registration and where the failure to so qualify or register would
have a material adverse effect on the Company and its subsidiaries
taken as a whole.
(xii) All the outstanding shares of capital stock of the
Company's Named Subsidiaries have been duly and validly authorized
and issued and are fully paid and non-assessable and, except for
directors' qualifying shares, are owned by the Company or a
subsidiary of the Company free and clear of any claims, liens,
encumbrances and security interests.
(xiii) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company or
any of its subsidiaries which would affect the subject matter of
this Agreement or is required to be
disclosed in the Final Prospectus which is not disclosed and
correctly summarized therein.
(xiv) To such counsel's knowledge, the Trust is not a party to
or otherwise bound by any agreement other than those described in
the Final Prospectus.
(xv) The Trust is not subject to registration as an
"investment company" under the Investment Company Act of 1940, as
amended.
Such opinion shall also contain a statement that although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Final Prospectus (except as to those matters
stated in paragraph (ii) of such opinion), such counsel has no reason to believe
that (i) the Registration Statement, as of its effective date, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or (ii) the Final Prospectus contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (except that no opinion need be expressed
as to the financial statements or other financial or statistical data or the
Forms T-1 included or incorporated by reference therein).
In rendering such opinion, such counsel may rely upon opinions of
local counsel satisfactory to the Representatives for matters not governed by
New York law and may rely as to matters of fact, to the extent he or she deems
proper, upon certificates or affidavits of officers of the Company, the
Trustees, the Guarantee Trustee or the Indenture Trustee and public officials.
Such counsel may rely on a certificate of the Indenture Trustee and the
Guarantee Trustee with respect to the execution of the Debentures and the
Guarantee, respectively, by the Company, the authentication of the Debentures by
the Indenture Trustee, and the execution of the Guarantee by the Guarantee
Trustee.
(e) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the
Company and the Trust, shall have furnished to the Representatives its
opinion, on certain matters of Delaware law relating to the validity of
the Preferred Securities, dated the applicable Closing Date, to the effect
that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Trust Act with
the business trust power and authority to own property and to
conduct its business as described in the Final Prospectus and to
enter into and perform its obligations under each of this Agreement,
the Preferred Securities, the Common Securities and the Declaration;
the Trust is a party to this Agreement and the Declaration and, to
such counsel's knowledge, the Trust is not a party to or otherwise
bound by any agreement other than those described in the Final
Prospectus.
(ii) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the
Company as described in the Final Prospectus, will be validly issued
and (subject to the terms of the Declaration) fully paid undivided
beneficial ownership interests in the assets of the Trust (such
counsel may note that the holders of Common Securities will be
subject to the withholding provisions of Section 10.4 of the
Declaration, will be required to make payment or provide indemnity
or security as set forth in the Declaration and will be liable for
the debts and obligations of the Trust to the extent provided in
Section 9.1(b) of the Declaration); under the Delaware Trust Act and
the Declaration the issuance of the Common Securities is not subject
to preemptive or other similar rights.
(iii) The Preferred Securities have been duly authorized by
the Declaration and, when issued and delivered by the Trust to the
Company as described in the Final Prospectus, the Preferred
Securities will be validly issued and (subject to the terms of the
Declaration) fully paid and non-assessable undivided beneficial
ownership interests in the Trust, the holders of the Preferred
Securities will be entitled to the benefits of the Declaration
(subject to the limitations set forth in clause (v) below) and will
be entitled to the same limitation of personal liability under
Delaware law as extended to stockholders of private corporations for
profit (such counsel may note that the holders of Preferred
Securities will be subject to the withholding provisions of Section
10.4 of the Declaration and will be required to make payment or
provide indemnity or security as set forth in the Declaration) .
(iv) All necessary trust action has been taken to duly
authorize the execution and delivery by the Trust of this Agreement.
(v) Assuming the Declaration has been duly authorized by the
Company and has been duly executed and delivered by the Company and
the Regular Trustees, and assuming due authorization, execution and
delivery of the Declaration by the Property Trustee and the Delaware
Trustee, the Declaration constitutes a valid and binding obligation
of the Company and the Regular Trustees, enforceable against the
Company and the Regular Trustees in accordance with its terms;
provided, however, that the foregoing is subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors, rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and by an implied
covenant of good faith and fair dealing.
(vi) The issuance and exchange by the Trust of the Preferred
Securitiesfor the Debentures, the execution, delivery and performance by
the Trust of this Agreement, the consummation by the Trust of the
transactions contemplated by this Agreement and compliance by the Trust
with its obligations thereunder will not violate (i) any of the provisions
of the Certificate of Trust or the Declaration or (ii) any applicable
Delaware law or administrative regulation.
(vii) Assuming that the Trust derives no income from or connected
with services provided within the State of Delaware and has no assets,
activities (other than having a Delaware Trustee as required by the
Delaware Trust Act and the filing of documents with the Secretary of State
of Delaware) or employees in the State of Delaware, no filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any Delaware court or Delaware governmental
authority or agency (other that as may be required under the securities or
blue sky laws of the State of Delaware, as to which such counsel need
express no opinion) is necessary or required in connection with the due
authorization, execution and delivery of this Agreement or the offering,
issuance, sale or delivery of the Preferred Securities.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the law of the State of Delaware.
(f) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special tax counsel to the Company
and the Trust, shall have furnished to the Representatives its opinion,
dated the applicable Closing Date, to the effect that:
(i) The Trust will be characterized as a grantor trust for
United States federal income tax purposes and not as an association
taxable as a corporation; and
(ii) Subject to the qualifications set forth in the opinion
and the Final Prospectus, the statements made in the Final
Prospectus under the caption "Certain United States Federal Income
Tax Consequences" insofar as they purport to constitute summaries of
matters of United States federal tax law and regulations or legal
conclusions with respect thereto, constitute accurate summaries of
the matters described therein in all material respects.
(g) The Representatives shall have received from the Underwriters'
Counsel such opinion or opinions, dated the applicable Closing Date, with
respect to the issuance and sale of the Preferred Securities, the
Guarantee, the Debentures, the Registration Statement, the Final
Prospectus and other related matters as the Representatives may reasonably
require, and the Company and the Trust shall have furnished to such
counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(h) The Company shall have furnished to the Representatives a
certificate of its Chief Executive officer, its President or any Managing
Director or Vice President and its Chief Financial Officer or its
Treasurer, dated the applicable Closing Date, to the effect that, to the
best of their knowledge after due inquiry:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
such Closing Date with the same effect as if made on such Closing
Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
(iii) (x) The Registration Statement does not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, (y) the Final Prospectus does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (z) since the effective
date of the Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented prospectus
which has not been so set forth.
(i) The Trust shall have furnished to the Representatives a
certificate of its Regular Trustees, dated the applicable Closing Date, to
the effect that, to the best of their knowledge after due inquiry:
(i) The representations and warranties of the Trust in this
Agreement are true and correct in all material respects on and as of
such Closing Date with the same effect as if made on such Closing
Date, and the Trust has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
(iii) (x) The Registration Statement does not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, (y) the Final Prospectus does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (z) since the effective
date of the Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented prospectus
which has not been so set forth.
(j) At each Closing Date, a nationally recognized firm of
independent public accountants shall have furnished to the Representatives
a letter, dated the day of such Closing Date, in form and substance
satisfactory to the Representatives, which states in effect that:
(i) In their opinion, any consolidated financial statements of
the Company and its subsidiaries, and the supporting schedules,
included in the Registration Statement and the Final Prospectus and
audited by them comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder.
(ii) On the basis of a reading of the unaudited consolidated
financial statements of the Company and its subsidiaries, if any,
included in the Registration Statement and the Final Prospectus and
of the latest unaudited consolidated financial statements made
available by the Company and ▇▇▇▇▇▇, carrying out certain specified
procedures (but not an audit in accordance with generally accepted
auditing standards), a reading of the minutes of the meetings of the
directors of the Company, and inquiries of certain officials of the
Company and its subsidiaries, who have responsibility for financial
and accounting matters of the Company and its subsidiaries, as to
transactions and events subsequent to the date of the most recent
audited consolidated financial statements included in the
Registration Statement and the Final Prospectus, nothing came to
their attention that caused them to believe that:
(A) any material modifications should be made to the
unaudited consolidated financial statements of the Company and
its subsidiaries, if any, included in the Registration
Statement and the Final Prospectus and not covered by their
letter delivered pursuant to paragraph (i) of this Section 7,
for them to be in conformity with generally accepted
accounting principles; and such financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of the
Securities Act and the published instructions, rules and
regulations thereunder.
(B) the unaudited capsule information of the Company and
its subsidiaries, if any, included in the Registration
Statement and the Final Prospectus does not agree with the
amounts set forth in the unaudited consolidated financial
statements of the Company from which it was derived or was not
determined on a basis substantially consistent with that of
the corresponding financial information in the latest audited
financial statements of the Company included in the
Registration Statement and the Final Prospectus.
(C) (I) as of the latest date as of which the Company
and its subsidiaries have monthly financial statements, there
was any decrease in the capital stock, additional paid-in
capital or retained earnings, or increase in long-term
indebtedness of the Company and its subsidiaries, as compared
with the amounts shown in the most recent consolidated
statement of financial condition of the Company and its
subsidiaries included in the Registration Statement and the
Final Prospectus, (II) with respect to the period subsequent
to the date of the most recent financial statements included
in the Registration Statement and the Final Prospectus and
extending through the latest date as of which the Company and
its subsidiaries have monthly financial statements, there was
a consolidated net loss or (III) with respect to the amounts
of net capital or excess net capital of ▇▇▇▇▇▇ determined
pursuant to Commission Rule 15c3-1 and shown in the most
recent financial statement of ▇▇▇▇▇▇ filed pursuant to
Commission Rule 17a-5, there has been any decrease in such
amounts as compared with the amounts shown in the most recent
consolidated financial statements included in the Registration
Statement and the Final Prospectus;
(D) as of a specified date not more than three business
days prior to the date of the letter, there was any decrease
in the capital stock or additional paid-in capital, or
increase in long-term indebtedness of the Company and its
subsidiaries as compared with the amounts shown in the most
recent consolidated statement of financial condition of the
Company and its subsidiaries included in the Registration
Statement and the Final Prospectus;
except in all instances for increases or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof, unless
said explanation is not deemed necessary by the Representatives.
(iii) If pro forma financial statements are included in the
Registration Statement or the Final Prospectus and are not covered
by their letter delivered pursuant to paragraph (i) of this Section
7, (x) they have read such pro forma financial statements, (y) they
have made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company
as to the basis for their determination of the pro forma adjustments
and whether such pro forma financial statements comply as to form in
all material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X and (z) they have proved the arithmetic
accuracy of the application of the pro forma adjustments to the
historical amounts; and as a result thereof, nothing came to their
attention that caused them to believe that such pro forma financial
statements do not so comply with Rule 11-02 of Regulation S-X and
that such pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements.
(iv) To the extent not covered by their letter delivered
pursuant to paragraph (i) of this Section 7, they have performed
certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is expressed in dollars, or percentages
derived from dollar amounts, and has been obtained from the general
accounting records of the Company) set forth in the Registration
Statement, as amended, and the Final Prospectus, as amended or
supplemented, and in Exhibit 12 to the Registration Statement,
including specified information, if any, included or incorporated
from the Company's Annual Report on Form 10-K incorporated therein
or specified information, if any, included or incorporated from any
of the Company's Quarterly Reports on Form 10-Q or its Current
Reports on Form 8-K incorporated therein, agrees with the accounting
records of the Company and its subsidiaries or computations made
therefrom, excluding any questions of legal interpretation.
(k) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the ratings of any of the Company's debt
securities by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's
Corporation.
(l) Prior to each Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives or Underwriters' Counsel may reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates or opinions furnished to the Representatives or Underwriters'
Counsel pursuant to this Section 7 shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and to
Underwriters' Counsel, this Agreement and all obligations of the Underwriters
hereunder may be cancelled at, or at any time prior to, each Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing, or by telegraph confirmed in writing.
8. Expenses.
(a) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company will pay all
costs and expenses incident to the performance of the obligations of the
Company and the Trust hereunder, including, without limiting the
generality of the foregoing, all costs, taxes and expenses incident to the
issuance, sale and delivery of the Preferred Securities to the
Underwriters, all fees and expenses of the Company's counsel and
accountants, all costs and expenses incident to the preparing, printing
and filing of the Registration Statement (including all exhibits thereto),
any Interim Prospectus, the Basic Prospectus, the Final Prospectus and any
amendments thereof or supplements thereto and the Declaration, the
Guarantee Agreement and the Indenture, and the rating of the Preferred
Securities by one or more rating agencies, all costs and expenses
(including fees of Underwriters' Counsel and their disbursements) incurred
in connection with blue sky qualifications, advising on the legality of
the Securities for investment, the filing requirements, if any, of the
National Association of Securities Dealers, Inc. in connection with its
review of corporate financings, the fee for listing the Securities on the
NYSE, the fees and expenses of the Property Trustee, the Guarantee Trustee
and the Indenture Trustee and all costs and expenses of the printing and
distribution of all documents in connection with such offering. Except as
provided in this Section 8, the Company will have no responsibility to the
Underwriters for the Underwriters' own costs and expenses, including the
fees of Underwriters' Counsel and any advertising expenses in connection
with any offer the Underwriters may make.
(b) If the sale of the Preferred Securities provided for herein is
not consummated because any condition to the obligations of the
Underwriters set forth in Section 7 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company or the Trust
to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by the Representatives, reimburse the
Underwriters for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Preferred
Securities.
9. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls such Underwriter within the
meaning of the Securities Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, as originally filed or in any amendment thereof, or in any
Interim Prospectus, the Basic Prospectus or the Final Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company as
herein stated by the Representatives on behalf of any Underwriter
specifically for use in connection with the preparation thereof, and (ii)
such indemnity with respect to the Basic Prospectus or any Interim
Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which are
the subject thereof if such person did not receive a copy of the Final
Prospectus at or prior to the confirmation of the sale of such Securities
to such person in any case where such delivery is required by the
Securities Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Interim Prospectus was corrected
in the Final Prospectus, unless such failure to deliver the Final
Prospectus was a result of noncompliance by the Company with Section 6(d)
hereof. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, the Trust and each Trustee, and each person, if
any, who controls the Company or the Trust within the meaning of the
Securities Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under
the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that
the same was made therein in reliance upon and in conformity with written
information furnished to the Company as herein stated by the
Representatives on behalf of such Underwriter specifically for use in the
preparation thereof, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The statements set forth in the last paragraph of the
cover page and under the heading "Underwriting" in the Final Prospectus
constitute the only information furnished to the Company in writing by or
on behalf of the several Underwriters for inclusion in the Registration
Statement and the Final Prospectus, as the case may be, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 9. In case
any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and either (i) the
indemnifying party or parties and the indemnified party or parties
mutually agree or (ii) representation of both the indemnifying party or
parties and the indemnified party or parties by the same counsel is
inappropriate under applicable standards of professional conduct due to
actual or potential differing interests between them, the indemnified
party or parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have
employed counsel in connection with the assumption of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a) representing the
indemnified parties under subparagraph (a), as the case ray be, who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying
party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph
(a) of this Section 9 is due in accordance with its terms but is for any
reason held by a court to be unavailable from the Company on grounds of
policy or other similar grounds, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) to which the Company, the Trust and one
or more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discounts appearing on the cover page of
the Final Prospectus bear to the public offering prices appearing thereon
and the Company is responsible for the balance; provided, however, that
(i) in no case shall any Underwriter (except as may be provided in any
agreement among underwriters) be responsible for any amount in excess of
the underwriting discounts applicable to the Preferred Securities
purchased by such Underwriter hereunder and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 9, each person who controls an Underwriter within the meaning of
the Securities Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning
of either the Securities Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement each director of
the Company, the Trust and each Trustee shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii)
of this subparagraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution
may be made against another party or parties under this subparagraph (d),
notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it
or they may have hereunder or otherwise than under this subparagraph (d).
10. Default by an Underwriter. If, on either Closing Date, any one
or more Underwriters shall fail to purchase and pay for all of the Preferred
Securities agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective proportions
which the aggregate liquidation amount of Preferred Securities set forth
opposite their names in Schedule II hereto bear to the aggregate liquidation
amount of Firm Securities set opposite the names of the remaining Underwriters)
the Firm Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase on such Closing Date; provided, however, that in the event
that the aggregate liquidation amount of Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
Closing Date shall exceed 10% of the aggregate liquidation amount of Preferred
Securities, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Preferred Securities, and if such
non-defaulting Underwriters do not purchase all the Preferred Securities, this
Agreement (or, with respect to the Second Closing Date, the obligation of the
Underwriters to purchase, and of the Company to sell, the Option Securities)
will terminate without liability to any nondefaulting Underwriters or the
Company or the Trust. In the event of a default by any Underwriter as set forth
in this Section 10, the applicable Closing Date shall be postponed for such
period, not exceeding seven days, as the Representatives shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
herein contained shall relieve any defaulting Underwriter of its liability, if
any, to the Company or the Trust and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
11. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
at or prior to delivery of and payment for all of the Firm Securities, if, prior
to such time (i) trading in securities generally on the NYSE or the
over-the-counter market shall have been suspended or limited or minimum prices
shall have been established on the NYSE or the over-the-counter market, (ii) a
banking moratorium shall have been declared either by federal or New York State
authorities, (iii) any new restriction materially affecting the distribution of
the Preferred Securities shall have become effective; (iv) trading in any
securities of the Company shall have been suspended or halted by any national
securities exchange, the National Association of Securities Dealers, Inc. or the
Commission, (v) the United States becomes engaged in hostilities or there is an
escalation in hostilities involving the United States or there is a declaration
of a national emergency or war by the United States, or (vi) there shall have
been such a material adverse change in national or international political,
financial or economic conditions, national or international equity markets or
currency exchange rates or controls as to make it, in the judgment of the
Representatives, inadvisable or impracticable to proceed with the payment for
and delivery of the Preferred Securities.
12. Representations and Indemnities to Survive Delivery. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers (as such officers) or the Trust and of
the Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or the Company or the Trust or any of their respective officers,
directors or trustees or any controlling person within the meaning of the
Securities Act, and will survive delivery of the payment for the Preferred
Securities.
13. Notices. All communications hereunder will be in writing, and,
if sent to the Representatives will be mailed, delivered, telegraphed or telexed
and confirmed to them, at the address specified in Schedule I hereto; or, if
sent to the Trust or the Company, will be mailed, delivered, telegraphed or
telexed and confirmed to the Trust or the Company at ▇▇▇▇▇▇ Brothers Holdings
Inc., 3 World Financial Center, New York, New York 10285, Attention: Chief
Financial Officer.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their successors and, to the extent and only
to the extent stated in Section 9 hereof, the officers and directors and
controlling persons referred to in Section 9 hereof, and except as provided in
Section 9 hereof, no person other than the parties hereto and their respective
successors will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
▇▇▇▇▇▇ BROTHERS HOLDINGS
CAPITAL TRUST
By:_____________________________________
Title: Regular Trustee
By:_____________________________________
Title: Regular Trustee
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By:_____________________________________
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇ BROTHERS INC.
By:_______________________________
Title:
Acting on behalf of the
Representatives named in Schedule I
annexed hereto and the several
Underwriters named in Schedule II
annexed hereto.
SCHEDULE I
Date of Underwriting Agreement:
Registration Statement No. 333-
Representative and Address: ▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Declaration of Trust, Declaration, Title, Purchase Price and Description of
Preferred Securities:
Declaration of Trust:
Declaration:
Title:
Aggregate liquidation amount:
Price to public:
Purchase price:
Distribution rate:
Time of payment of distributions:
Redemption provisions:
Repayment:
Indenture, Title, Purchase Price and Description of Debentures:
Indenture:
Title:
Principal Amount:
Price to Trust:
Interest rate:
Time of payment of interest:
Maturity: Redemption provisions:
Repayment:
Guarantee Agreement:
Commission payable by Company:
First Closing Date, Time and Location:
Date:
Time:
Location:
SCHEDULE II
Liquidation
Amount of
Securities
Underwriters to be Purchased
------------ ---------------
▇▇▇▇▇▇ Brothers Inc...................................... $
Total.............................................. $
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