EXHIBIT 1.1
[FORM OF UNDERWRITING AGREEMENT]
CREDIT SUISSE FIRST BOSTON (USA), INC.
DEBT SECURITIES
PREFERRED STOCK
UNDERWRITING AGREEMENT
1. INTRODUCTORY. Credit Suisse First Boston (USA), Inc., a Delaware
corporation ("COMPANY"), proposes to issue and sell from time to time certain of
its unsecured debt securities and preferred stock registered under the
registration statement referred to in Section 2(a) ("REGISTERED SECURITIES").
The Registered Securities constituting debt securities will be issued under an
indenture, dated as of June 1, 2001 ("INDENTURE"), between the Company and The
Chase Manhattan Bank, as Trustee, in one or more series, which series may vary
as to interest rates, maturities, redemption provisions, selling prices and
other terms. The Registered Securities constituting preferred stock may be
issued in one or more series, which series may vary as to dividend rates,
redemption provisions, selling prices and other terms. Particular series or
offerings of Registered Securities will be sold pursuant to a Terms Agreement
referred to in Section 3, for resale in accordance with terms of offering
determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "OFFERED SECURITIES". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"UNDERWRITERS" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "REPRESENTATIVES"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company, as of
the date of each Terms Agreement referred to in Section 3, represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-________), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("COMMISSION") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to as
the "REGISTRATION STATEMENT", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Offered Securities and the terms of the
offering of the Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under
the Securities Act of 1933 ("ACT"), including all material incorporated
by reference therein, is hereinafter referred to as the "PROSPECTUS".
No document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(b) On the effective date of the registration statement
relating to the Registered Securities, such registration statement
conformed in all respects to the requirements of the Act, the Trust
Indenture Act of 1939 ("TRUST INDENTURE ACT") and the rules and
regulations of the Commission ("RULES AND REGULATIONS") and did not
include 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, and on the date of each Terms
Agreement referred to in Section 3, the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations, and neither of
such documents will include 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, except that
the foregoing does not apply to statements in or omissions from any of
such documents based upon written information furnished to the Company
by any Underwriter through the Representatives, if any, specifically
for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification.
(d) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and each subsidiary of the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification; all of the issued
and outstanding capital stock of each subsidiary of the Company has
been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(e) If the Offered Securities are debt securities: the
Indenture has been duly authorized and has been duly qualified under
the Trust Indenture Act; the Offered Securities have been duly
authorized; and when the Offered Securities are delivered and paid for
pursuant to the Terms Agreement on the Closing Date (as defined below)
or pursuant to Delayed Delivery Contracts (as hereinafter defined), the
Indenture will have been duly executed and delivered, such Offered
Securities will have been duly executed, authenticated, issued and
delivered and will conform to the description thereof contained in the
Prospectus and the Indenture and such Offered Securities will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
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(f) If the Offered Securities are preferred stock: the Offered
Securities have been duly authorized and, when the Offered Securities
have been delivered and paid for in accordance with the Terms Agreement
on the Closing Date, such Offered Securities will have been validly
issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; and the stockholders
of the Company have no preemptive rights with respect to the Offered
Securities.
(g) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) in connection
with the issuance and sale of the Offered Securities by the Company,
except such as have been obtained and made under the Act and, if the
Offered Securities are debt securities, the Trust Indenture Act and
such as may be required under state securities laws.
(h) The execution, delivery and performance of the Indenture
(if the Offered Securities are debt securities), the Terms Agreement
(including the provisions of this Agreement) and any Delayed Delivery
Contracts and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company
or any of their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or by-laws of
the Company or any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the provisions of this
Agreement).
(i) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
(j) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(k) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that,
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if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect
on the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole
("MATERIAL ADVERSE EFFECT").
(l) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(m) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(n) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under the Indenture (if the Offered Securities
are debt securities), the Terms Agreement (including the provisions of
this Agreement) or any Delayed Delivery Contracts, or which are
otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened
or, to the Company's knowledge, contemplated.
(o) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and,
except as otherwise disclosed in the Prospectus, such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent
basis; any schedules included in the Registration Statement present
fairly the information required to be stated therein; and if pro forma
financial statements are included in the Registration Statement and
Prospectus: the assumptions used in preparing the pro forma financial
statements included in the Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(p) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change,
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in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Prospectus, there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(q) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
3. PURCHASE AND OFFERING OF OFFERED SECURITIES. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("TERMS AGREEMENT") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount or number
of shares to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters and the terms of the Offered Securities not already specified
(in the Indenture, in the case of Offered Securities that are debt securities),
including, but not limited to, interest rate (if debt securities), dividend rate
(if preferred stock), maturity (if debt securities), any redemption provisions
and any sinking fund requirements and whether any of the Offered Securities may
be sold to institutional investors pursuant to Delayed Delivery Contracts. The
Terms Agreement will also specify the time and date of delivery and payment
(such time and date, or such other time not later than seven full business days
thereafter as the Underwriter first named in the Terms Agreement (the "LEAD
UNDERWRITER") and the Company agree as the time for payment and delivery, being
herein and in the Terms Agreement referred to as the "CLOSING DATE"), the place
of delivery and payment and any details of the terms of offering that should be
reflected in the prospectus supplement relating to the offering of the Offered
Securities. For purposes of Rule 15c6-1 under the Securities Exchange Act of
1934, the Closing Date (if later than the otherwise applicable settlement date)
shall be the date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering, other than Contract Securities
for which payment of funds and delivery of securities shall be as hereinafter
provided. The obligations of the Underwriters to purchase the Offered Securities
will be several and not joint. It is understood that the Underwriters propose to
offer the Offered Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("DELAYED
DELIVERY CONTRACTS") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount or number of shares of Offered Securities to be
sold pursuant to Delayed Delivery Contracts ("CONTRACT SECURITIES"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of
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Delayed Delivery Contracts. If the Company executes and delivers Delayed
Delivery Contracts, the Contract Securities will be deducted from the Offered
Securities to be purchased by the several Underwriters and the aggregate
principal amount or number of shares of Offered Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
or number of shares of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro rata and so advise
the Company. The Company will advise the Lead Underwriter not later than the
business day prior to the Closing Date of the principal amount or number of
shares of Contract Securities.
If the Offered Securities are preferred stock, the certificates for the
Offered Securities delivered to the Underwriters on the Closing Date will be in
definitive form, and if the Offered Securities are debt securities, the Offered
Securities delivered to the Underwriters on the Closing Date will be in
definitive fully registered form, in each case, in such denominations and
registered in such names as the Lead Underwriter requests.
If the Offered Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the provisions
of this paragraph shall apply, the Company will deliver against payment of the
purchase price the Offered Securities in the form of one or more permanent
global securities in definitive form (the "GLOBAL SECURITIES") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters in Federal (same day) funds by
official check or checks or wire transfer to an account previously designated by
the Company at a bank acceptable to the Lead Underwriter, in each case drawn to
the order of Credit Suisse First Boston (USA), Inc. at the place of payment
specified in the Terms Agreement on the Closing Date, against delivery to the
Trustee as custodian for DTC of the Global Securities representing all of the
Offered Securities.
4. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters, one
signed copy of the registration statement relating to the Registered Securities,
including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Lead Underwriter, subparagraph (5)) not
later than the second business day following the execution and delivery
of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of
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any part thereof and will use its best efforts to prevent the issuance
of any such stop order and to obtain as soon as possible its lifting,
if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs 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 to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Lead Underwriter of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Lead Underwriter's consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(d) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the registration statement relating to the Registered
Securities, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to
the date of such Terms Agreement and (iii) the date of the Company's
most recent Annual Report on Form 10-K filed with the Commission prior
to the date of such Terms Agreement, which will satisfy the provisions
of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the Lead
Underwriter reasonably requests. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions as the Lead
Underwriter designates and will continue such qualifications in effect
so long as required for the distribution.
(g) During the period of five years after the date of any
Terms Agreement, the Company will furnish to the Representatives and,
upon request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year, if any; and the Company will
furnish to the Representatives (i) as soon as available, a copy of each
report and any definitive proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, if any, and (ii) from time to time, such other
information concerning the Company as the Lead Underwriter may
reasonably request.
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(h) The Company will pay all expenses incident to the
performance of its obligations under the Terms Agreement (including the
provisions of this Agreement), for any filing fees or other expenses
(including fees and disbursements of counsel) in connection with
qualification of the Registered Securities for sale and any
determination of their eligibility for investment under the laws of
such jurisdictions as the Lead Underwriter may designate and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Offered Securities,
for any applicable filing fee incident to, the review by the National
Association of Securities Dealers, Inc. of the Registered Securities,
for any travel expenses of the Company's officers and employees and any
other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of Registered Securities and for
expenses incurred in distributing the Prospectus, any preliminary
prospectuses, any preliminary prospectus supplements or any other
amendments or supplements to the Prospectus to the Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to United
States dollar-denominated debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of
issue (if the Offered Securities are debt securities) or any series of
preferred stock issued or guaranteed by the Company (if the Offered
Securities are preferred stock), or publicly disclose the intention to
make any such offer, sale, pledge, disposition or filing, without the
prior written consent of the Lead Underwriter for a period beginning at
the time of execution of the Terms Agreement and ending the number of
days after the Closing Date specified under "Blackout" in the Terms
Agreement.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Offered Securities will
be subject to the accuracy of the representations and warranties on the part of
the Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of KMPG LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect
that:
(i) in their opinion the financial statements and any
schedules and any summary of earnings examined by them and
included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included in
the Registration Statement;
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(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements, if
any, and any summary of earnings included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements and
summary of earnings for them to be in conformity with
generally accepted accounting principles;
(B) if any unaudited "capsule" information
is contained in the Prospectus, the unaudited
consolidated net revenues, income before provision
for income taxes and extraordinary items, net income
or other amounts constituting such "capsule"
information and described in such letter do not agree
with the corresponding amounts set forth in the
unaudited consolidated financial statements or were
not determined on a basis substantially consistent
with that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of the such letter,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts
shown on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest income statement included in the
Prospectus, in consolidated net revenues, in the
total or per share amounts of income before provision
for income taxes and extraordinary items or net
income or (if the Offered Securities are debt
securities) in the ratio of earnings to fixed charges
or (if the Offered Securities are preferred stock) in
the ratio of earnings to combined fixed charges and
preferred stock dividends;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
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(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed
included in the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of
this Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Company or any Underwriter, shall be
contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as one enterprise which, in the judgment
of a majority in interest of the Underwriters including any
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading
in the rating of any debt securities or preferred stock of the
Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities or
preferred stock of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of
a possible downgrading, of such rating); (iii) any material
suspension or material limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by U.S. Federal or New
York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration
of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including any
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated
the Closing Date, of the General Counsel of the Company to the
effect that:
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(i) The Company is an existing corporation in good standing
under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification;
(ii) If the Offered Securities are debt securities: the
Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act;
the Offered Securities have been duly authorized; the Offered
Securities other than any Contract Securities have been duly
executed, authenticated, issued and delivered; the Indenture and the
Offered Securities other than any Contract Securities constitute,
and any Contract Securities, when executed, authenticated, issued
and delivered in the manner provided in the Indenture and sold
pursuant to Delayed Delivery Contracts, will constitute, valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Offered Securities other than any
Contract Securities conform, and any Contract Securities, when so
issued and delivered and sold will conform, to the description
thereof contained in the Prospectus;
(iii) If the Offered Securities are preferred stock: the
Offered Securities have been duly authorized; the Offered Securities
other than any Contract Securities have been validly issued and are
fully paid and nonassessable; any Contract Securities, when issued,
delivered and sold pursuant to Delayed Delivery Contracts, will be
validly issued, fully paid and non-assessable; and the Offered
Securities other than any Contract Securities conform, and any
Contract Securities, when so issued, delivered and sold, will
conform, to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights with
respect to the Offered Securities;
(iv) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Offered Securities by
the Company, except such as have been obtained and made under the
Act and, if the Offered Securities are debt securities, the Trust
Indenture Act and such as may be required under state securities
laws;
(v) The execution, delivery and performance of the Indenture
(if the Offered Securities are debt securities), the Terms Agreement
(including the provisions of this Agreement) and any Delayed
Delivery Contracts and the issuance and sale of the Offered
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any rule,
regulation or
11
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or
any of their properties, or any material agreement or instrument to
which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the
charter or by-laws of the Company or any such subsidiary, and the
Company has full power and authority to authorize, issue and sell
the Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement);
(vi) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the registration statement relating
to the Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the date of the
Terms Agreement, and any amendment or supplement thereto, as of its
date, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations; such counsel have no reason to believe that such
registration statement, as of its effective date, the Registration
Statement, as of the date of the Terms Agreement or as of the
Closing Date, or any amendment thereto, as of its date or as of the
Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Terms Agreement or as of such
Closing Date, or any amendment or supplement thereto, as of its date
or as of the Closing Date, contained any untrue statement of a
material fact or omitted 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; the
descriptions in the Registration Statement and Prospectus of
statutes, legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information required
to be shown; and such counsel do not know of any legal or
governmental proceedings required to be described in the Prospectus
which are not described as required or of any contracts or documents
of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as
required; it being understood that such counsel need express no
opinion as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus; and
(vii) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
12
(e) The Representatives shall have received from Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to the
validity of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as the Representatives may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass
upon such matters.
(f) The Representatives shall have received a certificate,
dated the Closing Date, signed by any two of the chairman of the
board of directors, the chief executive officer, the president, the
chief financial officer, the chief administrative officer, the chief
accounting officer and any Managing Director of the Company in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties
of the Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof
has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in
the Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken
as a whole except as set forth in or contemplated by the Prospectus
or as described in such certificate.
(g) The Representatives shall have received a letter, dated
the Closing Date, of KPMG LLP which meets the requirements of
subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three
days prior to the Closing Date for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person,
if any, who controls such Underwriter within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, 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
13
make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that 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 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 written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being
understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in the
Terms Agreement.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, its directors and officers and each
person, if any, who controls the Company within the meaning of
Section 15 of the Act, against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, 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 such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company
by such Underwriter through the Representatives, if any,
specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability
or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in the Terms
Agreement.
(c) Promptly after receipt by an indemnified party under this
Section 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 subsection (a) or (b) above,
notify the indemnifying party 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 subsection (a) or (b) above. 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 wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof
14
other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened action 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 (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement
as to, or an admission of, fault, culpability or a failure to act by
or behalf of an indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such proportion as
is 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 Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities 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 shall be
deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations in this subsection (d) to contribute
are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning
15
of the Act; and the obligations of the Underwriters under this
Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each
officer of the Company who has signed the Registration Statement and
to each person, if any, who controls the Company within the meaning
of the Act.
7. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities under the Terms Agreement and
the aggregate principal amount (if debt securities) or number of shares (if
preferred stock) of Offered Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount (if debt securities) or number of shares (if preferred stock)
of Offered Securities, the Lead Underwriter may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by the
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments under the Terms Agreement (including
the provisions of this Agreement), to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount (if debt securities)
or number of shares (if preferred stock) of Offered Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
(if debt securities) or number of shares (if preferred stock) of Offered
Securities and arrangements satisfactory to the Lead Underwriter and the Company
for the purchase of such Offered Securities by other persons are not made within
36 hours after such default, the Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts (if debt securities)
or numbers of shares (if preferred stock) of the Offered Securities set forth
opposite their names in the Terms Agreement as a result of Delayed Delivery
Contracts entered into by the Company.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters
16
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
9. NOTICES. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Treasury Department (Facsimile No.: (212)
325-8227).
10. SUCCESSORS. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. REPRESENTATION OF UNDERWRITERS. Any Representatives will act for the
several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. COUNTERPARTS. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
17
ANNEX I
DELAYED DELIVERY CONTRACT
______________, 20__
CREDIT SUISSE FIRST BOSTON (USA), INC.
c/o CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, N.Y. 10010-3629
Attention: Investment Banking Department - Transactions Advisory Group
Gentlemen:
The undersigned hereby agrees to purchase from Credit Suisse First
Boston (USA), Inc., a Delaware corporation ("COMPANY"), and the Company agrees
to sell to the undersigned, [IF ONE DELAYED CLOSING, INSERT--as of the date
hereof, for delivery on ___________, 20__ ("DELIVERY DATE"),]
[$]___________[shares] [principal amount]
of the Company's [INSERT TITLE OF SECURITIES] ("SECURITIES"), offered by the
Company's Prospectus dated _________, 20__ and a Prospectus Supplement dated
____________, 20__ relating thereto, receipt of copies of which is hereby
acknowledged, at [__ % of the principal amount thereof plus accrued interest, if
any,][$______ per share plus accrued dividends, if any,] and on the further
terms and conditions set forth in this Delayed Delivery Contract ("CONTRACT").
[IF TWO OR MORE DELAYED CLOSINGS, INSERT THE FOLLOWING:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the [principal] amounts
set forth below:
[PRINCIPAL AMOUNT][NUMBER] DELIVERY DATE
.............................................. .............
.............................................. .............
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on [the][each] Delivery Date shall be made to the Company or its
order in Federal (same day) funds by certified or official bank check or wire
transfer to an account designated by the Company, at
18
the office of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at __ A.M. on [the][such] Delivery Date upon delivery to the
undersigned of the Securities to be purchased by the undersigned [for delivery
on such Delivery Date] in definitive [IF DEBT ISSUE, INSERT--fully registered]
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to [the][such] Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on [the][each] Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at [the][such] Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total [principal
amount][number of shares] of the Securities less the [principal amount][number
of shares] thereof covered by this and other similar Contracts. The undersigned
represents that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
19
Yours very truly,
--------------------------------------
(NAME OF PURCHASER)
BY:
-----------------------------------
--------------------------------------
(TITLE OF SIGNATORY)
--------------------------------------
--------------------------------------
(ADDRESS OF PURCHASER)
Accepted, as of the above date.
CREDIT SUISSE FIRST BOSTON (USA), INC.
By:
-----------------------------------
[INSERT TITLE]
20