[Form of Underwriting Agreement]
$----------
HSBC AMERICAS, INC.
__% [Senior][Subordinated] Notes Due _____
UNDERWRITING AGREEMENT
New York, New York
_____, 199_
To the Representatives
named in Schedule II
hereto of the Under-
writers named in
Schedule I hereto
Ladies and Gentlemen:
HSBC Americas, Inc., a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, $__________
principal amount of its __% [Senior][Subordinated] Notes Due
_____ (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of ________, 1996, as amended and
supplemented as of the date hereof, between the Company and
Bankers Trust Company, as trustee (the "Trustee").
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter as set forth
below in this Section 1. Certain terms used in this Section 1 are
defined in paragraph (h) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed
with the Securities and Exchange Commission (the
"Commission") a registration statement (file number
333-5801) on such Form, including a basic prospectus, for
the registration under the Act of the offering and sale of
the Securities. The Company may have filed one or more
amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to
you. Such registration statement, as so amended, has become
effective. The offering of the Securities is a delayed
offering and, although the Basic Prospectus may not include
all the information with respect to the Securities and the
offering thereof required by the Act and the rules and regulations
thereunder to be included in the Final Prospectus, the Basic
Prospectus includes all such information required by the
Act and the rules and regulations thereunder to be included
therein as of the Effective Date. The Company will next
file with the Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the form of
prospectus included in such registration statement relating
to the Securities and the offering thereof. As filed, such
final prospectus supplement shall include all required
information with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all
substantive respects in the form furnished to the
Representatives prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain
only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised
the Representatives, prior to the Execution Time, will be
included or made therein.
(b) On the Effective Date, the Registration Statement did
or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing
Date, the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable
requirements of the Act, and the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the respective rules and regulations thereunder;
on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary in order to make the statements
therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all
material respects with the requirements of the Trust
Indenture Act and the rules and regulations thereunder;
and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on
the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement
of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement
of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final
Prospectus. If the Company elects to rely upon Rule 434,
the Company will comply with the requirements of Rule 434.
(c) The financial statements of the Company, together with
the financial statements of Marine Midland Bank (the
"Subsidiary"), included or incorporated by reference in the
Registration Statement present fairly the financial
position of the Company and its consolidated subsidi-
aries and of the Subsidiary, as the case may be,
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as of the dates indicated and the results of their
operations for the periods specified. Such financial
statements have been prepared in conformity with United
States generally accepted accounting principles ("GAAP"),
applied, except as described in the Registration Statement,
on a consistent basis throughout the periods involved. The
financial statement schedules, if any, included or
incorporated by reference in the Registration Statement and
the Basic Prospectus present fairly the information
required to be stated therein. The selected financial data
and selected statistical information included in the Final
Prospectus present fairly the information shown therein
and, except as otherwise set forth in the Final Prospectus,
have been compiled on a basis consistent with that of the
audited financial statements included or incorporated by
reference in the Registration Statement and the Basic
Prospectus. In addition, any pro forma financial statements
of the Company and the related notes thereto included or
incorporated by reference in the Registration Statement and
the Final Prospectus comply as to form in all material
respects with the accounting requirements of the Act and
the rules and regulations thereunder; the pro forma
adjustments have been properly applied to the historical
amounts in the compilation of such pro forma financial
statements; the assumptions described in the notes to such
pro forma financial statements provide a reasonable basis
for presenting the significant direct effects of the
transactions contemplated therein and such pro forma
adjustments give appropriate effect to those assumptions,
in each case, in accordance with Regulation S-X.
(d) The documents incorporated by reference in the
Registration Statement and the Final Prospectus, when they
became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations thereunder, and none of such
documents contained an untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and any further documents so filed and
incorporated by reference in the Registration Statement and
the Final Prospectus, when such documents become effective
or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations thereunder and will not contain an untrue
statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading.
(e) The Indenture, each supplement thereto, if any, to the
date hereof and the supplement thereto or board resolution
setting forth the terms of the Securities (the Indenture,
as so supplemented by such supplement or supplements and/or
board resolution, being herein referred to as the
"Designated Indenture"), have been duly authorized by the
Company. The Indenture as executed is or will be
substantially in the form filed as an exhibit to the
Registration Statement. The Designated Indenture, when duly
executed and delivered (to the extent required by the
Indenture) by the Company and the Trustee, will constitute
a valid and binding obligation of the Company, assuming due
authorization thereof by the Trustee, enforceable against the
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Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(f) The Securities have been duly authorized and, when
such Securities are executed, authenticated and delivered
in the manner provided for in the Designated Indenture and
issued and paid for in accordance with this Agreement, such
Securities will constitute valid and binding obligations of
the Company entitled to the benefits of the Designated
Indenture and enforceable against the Company in accordance
with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(g) No authorization, approval, consent or license of any
government, governmental instrumentality, authority or
court is required for the issue and sale of the Securities
or the consummation of the other transactions contemplated
by this Agreement or the Designated Indenture except (A)
the registration of the Securities under the Act and the
Trust Indenture Act, and (B) such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Securities by the Underwriters.
(h) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "Effective
Date" shall mean each date that the Registration Statement
and any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered
by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) of this Section 1
contained in the Registration Statement at the Effective
Date. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus
which describes the Securities and the offering thereof and
is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating
to the Securities that is first filed pursuant to Rule
424(b) after the Execution Time, together with the Basic
Prospectus. The "Registration Statement" shall mean the
registration statement referred to in the first sentence of
paragraph (a) of this Section 1, including incorporated
documents, exhibits and financial statements, as amended at
the Execution Time (or, if not effective at the Execution
Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement
as so amended. Such term shall include any Rule 430A
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Information or Rule 434 Information deemed to be included
therein at the Effective Date as provided by Rule 430A and
Rule 434, respectively, and, in the event that the Company
files a registration statement pursuant to paragraph (b) of
Rule 462 (the "Rule 462(b) Registration Statement"), then,
after such filing, all references to "Registration
Statement" shall be deemed to include the Rule 462(b)
Registration Statement. In addition, if the Company elects
to rely upon Rule 434, then all references to "Final
Prospectus" shall also be deemed to include the applicable
term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the
Underwriters by the Company in reliance upon Rule 434.
"Rule 415," "Rule 424," "Rule 430A" "Rule 434", "Rule ▇▇▇",
"▇▇▇▇▇▇▇▇▇▇ ▇-▇" and "Regulation S-X" refer to such rules
or regulation under the Act. "Rule 430A Information" means
information with respect to the Securities and the offering
thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A.
"Rule 434 Information" means any information with respect
to the Securities and the offering thereof contained in any
Term Sheet deemed to be a part of the Registration
Statement when it became effective pursuant to paragraph
(d) of Rule 434. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall also be deemed to
refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final
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 Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. For
purposes of this Agreement, all references to the
Registration Statement, Basic Prospectus, Preliminary Final
Prospectus, Final Prospectus, Term Sheet or to any
amendment or supplement to any of the foregoing shall be
deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("▇▇▇▇▇").
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of _____% of the principal
amount thereof, plus accrued interest, if any, on the Securities
from ____, 199_, to the Closing Date, the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule
I hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on
_____ 1996, or such later date (not later than _____, 1996) as
the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of
delivery and payment for the Securities being herein called the
5
"Closing Date"). Delivery of the Securities shall be made on the
instructions of the Representatives for the respective accounts
of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company in immediately
available funds. Delivery of, and payment for, the Securities
shall be made through the facilities of the Depository Trust
Company.
The Company agrees to have the Securities available
for inspection and checking by the Representatives in New York,
New York, not later than 1:00 PM on the business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to
the public as set forth in the Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will comply with the requirements of Rule
430A and/or Rule 434 if and as applicable. Prior to the
termination of the offering of the Securities, the Company
will not file any amendment of the Registration Statement
or supplement (including the Final Prospectus or any
Preliminary Final Prospectus, any Term Sheet or Rule 462(b)
Registration Statement) to the Basic Prospectus unless the
Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment, Term
Sheet or supplement to which you reasonably object. Subject
to the foregoing sentence, the Company will cause the Final
Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will
promptly advise the Representatives (i) when any
post-effective amendment to the Registration Statement,
shall have become effective, (ii) when the Final
Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b), (iii)
when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any
request by the Commission for any amendment of the
Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will 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.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as
then supplemented would include any 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 shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply
6
with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will notify the
Representatives and prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct
such statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies
of the Registration Statement (including exhibits thereto)
and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any
supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
Copies of the Registration Statement, each amendment
thereto, any Preliminary Final Prospectus and the Final
Prospectus and any amendment or supplements thereto
furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T of the rules and regulations
under the Act.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as
the Representatives may designate, will maintain such
qualifications in effect so long as required for the
distribution of the Securities, will arrange for the
determination of the legality of the Securities for
purchase by institutional investors and will pay the fee of
the National Association of Securities Dealers, Inc., in
connection with its review, if any, of the offering.
(f) The Company will not, until the first business day
following the Closing Date, without prior written consent
of the Representatives, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce
the offering of, any debt securities issued or guaranteed
by the Company other than the Securities.
(g) The Company confirms as of the date hereof that it is
in compliance with all provisions of Section 1 of Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of
Doing Business with Cuba, and the Company further agrees
that if it commences engaging in business with the
government of Cuba or with any person or affiliate located
in Cuba after the date the Registration Statement becomes
or has become effective with the Securities and Exchange
Commission or with the Florida Department of Banking and
Finance (the "Department"), whichever date is later, or if
the information reported in the Prospectus, if any,
concerning the Company's business with Cuba or with any
person or affiliate located in Cuba changes in any material
way, the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to
the Department.
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6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall
be subject to the accuracy of the representations and warranties
on the part of the Company contained herein as of the Execution
Time and the Closing Date, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the Act
and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Act
and no proceedings for that purpose shall have been
initiated or be pending or threatened by the Commission,
and any request on the part of the Commission for
additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A
Final Prospectus containing information relating to the
description of the Securities, the specific method of
distribution and similar matters shall have been filed with
the Commission in accordance with Rule 424(b) (1) (2) (3)
(4) or (5), as applicable (or any required post-effective
amendment providing such information shall have been filed
and declared effective in accordance with the requirements
of Rule 430A), or, if the Company has elected to rely upon
Rule 434, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance
with Rule 424(b)(7).
(b) The Company shall have furnished to the
Representatives the opinion of Cleary, Gottlieb, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Company, or __________, Counsel
for the Company, dated the Closing Date, to the effect, in
aggregate, that:
(i) each of the Company and Marine Midland Bank (the
"Subsidiary") has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and
authority to own its properties and conduct its
business as described in the Final Prospectus; and the
Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as
amended;
(ii) the Company's authorized equity
capitalization is as set forth in the Final
Prospectus; the Securities conform to the description
thereof contained in the Final Prospectus; and, if the
Securities are to be listed on any stock exchange,
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 Securities
with such securities exchange and such counsel has no
reason to believe that the Securities will not be
authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(iii) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act and conforms to the description thereof
in the Final Prospectus, and constitutes a legal, valid and
8
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in
effect); and the Securities have been duly authorized
and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to
and paid for by the Underwriters pursuant to this
Agreement, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of
the Indenture;
(iv) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus; and the
statements included or incorporated in the Final
Prospectus describing any legal proceedings relating
to the Company fairly summarize such matters;
(v) the Registration Statement has become effective
under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the
Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); to
the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other
than the financial statements and other financial and
statistical information contained therein as to which
such counsel need express no opinion) comply as to
form in all material respects with the applicable
requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe
that at the Execution Date or the Closing Date the
Registration Statement 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
Final Prospectus includes any untrue statement of a
material fact or omits to state a material fact
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading;
(vi) this Agreement has been duly authorized, executed
and delivered by the Company;
(vii) no consent, approval, authorization or order of
any court or governmental agency or body is required
for the consummation of the transactions contemplated
herein, except such as have been obtained under the
Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters as contemplated by this Agreement and
such other approvals (specified in such opinion) as
have been obtained;
9
(viii) neither the issue and sale of the Securities, nor
the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach of, or
constitute a default under the charter or by-laws of
the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a
party or bound, or any order or regulation known to
such counsel to be applicable to the Company or any of
its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its
subsidiaries; and
(ix) no holders of securities of the Company have
rights to the registration of such securities under
the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any
jurisdiction other than the States of New York and Delaware
or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who
are satisfactory to counsel for the Underwriters and (B) as
to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in
this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ &
Wood LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the
issuance and sale of the Securities, the Indenture, the
Registration Statement, the Final Prospectus (together with
any supplement thereto) and other related matters as the
Representatives may reasonably 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.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the
Senior Vice President and the Controller of the Company,
dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration
Statement, the Final Prospectus, any supplement to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same
effect as if made on the 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 the 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,
to the Company's knowledge, threatened; and
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(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive
of any supplement thereto), there has been no material
adverse change in the condition (financial or other),
earnings, business or properties of the Company and
its subsidiaries, whether or not arising from
transactions in the ordinary course of business,
except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time, KPMG Peat Marwick LLP shall
have furnished to the Representatives a letter or letters
(which may refer to letters previously delivered to the
Representatives), dated as of the Execution Time, in form
and substance satisfactory to the Representatives,
confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules and pro forma
financial statements, if any, included or incorporated
in the Registration Statement and the Final Prospectus
and reported on by them comply in form in all material
respects with the applicable accounting requirements
of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and
its subsidiaries; their limited review in accordance
with standards established by the American Institute
of Certified Public Accountants of the unaudited
interim financial information as indicated in their
reports incorporated in the Registration Statement and
the Final Prospectus; carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with
respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the
stockholders, directors and executive and audit
committees of the Company and the Subsidiary; and
inquiries of certain officials of the Company 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 financial statements in or incorporated in the
Final Prospectus, nothing came to their attention
which caused them to believe that:
(1) any unaudited financial statements included
or incorporated in the Registration Statement and
the Final Prospectus do not comply in form in all
material respects with applicable accounting
requirements and with the published rules and
regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; or said unaudited financial statements are
not in conformity with generally accepted
accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
11
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to the
date of the most recent financial statements
(other than any capsule information), audited or
unaudited, in or incorporated in the Registration
Statement and the Final Prospectus, there were
any material changes, at a specified date not
more than five business days prior to the date of
the letter, in the consolidated long-term debt or
capital stock of the Company and its subsidiaries
or decreases in the stockholders' equity of the
Company and its subsidiaries as compared with the
amounts shown on the most recent consolidated
balance sheet included or incorporated in the
Registration Statement and the Final Prospectus,
except in all instances for changes 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;
(3) the amounts included in any unaudited
"capsule" information included or incorporated in
the Registration Statement and the Final
Prospectus do not agree with the amounts set
forth in the unaudited financial statements for
the same periods or were not determined on a
basis substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus.
(iii) they have performed certain other specified
procedures as a result of which they determined that
certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement
and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information
included or incorporated in Items 1, 2, 6, 7 and 11 of
the Company's Annual Report on Form 10-K, incorporated
in the Registration Statement and the Final
Prospectus, and the information included in the
"Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement
and the Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding
any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement
and the Final Prospectus, on the basis of a reading of
the unaudited pro forma financial statements included
or incorporated in the Registration Statement and the
Final Prospectus (the "pro forma financial
statements"), carrying out certain specified
procedures, inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters, and proving the arithmetic
accuracy of the
12
application of the pro forma adjustments to the
historical amounts in the pro forma financial
statements, nothing came to their attention which
caused them to believe that the pro forma financial
statements do not comply in form in all material
respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the
historical amounts in the compilation of such
statements.
References to the Final Prospectus in this paragraph
(e) include any supplement thereto to the date of the
letter.
In addition, at the Closing Date, KPMG Peat Marwick
LLP. shall have furnished to the Representatives a letter
or letters, dated as of the Closing Date, in form and
substance satisfactory to the Representatives, to the
effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the
Final Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph
(e) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting
the business or properties of the Company and its
subsidiaries the effect of which, in any case referred to
in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof)
and the Final Prospectus (exclusive of any supplement
thereto).
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the ratings of any of the Company's
debt securities by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule
436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the
direction of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior
to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
7. Payment of Expenses. The Company will pay
and bear all costs and expenses incident to the
13
performance of its obligations under this Agreement
including (a) the printing and filing of the
Registration Statement (including financial statements and
exhibits), as originally filed and as amended, the Basic
Prospectus, the Preliminary Final Prospectus (if any), the Final
Prospectus, the Term Sheet and any amendments or supplements to
any of the foregoing, and the cost of furnishing copies thereof
to the Underwriters, (b) the printing and distribution of this
Agreement, the Indenture, the Securities and the Blue Sky Survey
and Legal Investment Survey (if any), (c) the delivery of the
Securities to the Underwriters or any depositary, (d) the fees
and disbursements of the Company's counsel and accountants, (e)
the qualification of the Securities under the applicable
securities laws in accordance with Section 5(e) and any filing
for review of the offering with the National Association of
Securities Dealers, Inc., including filing fees and disbursements
of counsel to the Underwriters in connection therewith and in
connection with the Blue Sky Survey and Legal Investment Survey
(if any), (f) the costs and charges of any transfer agent,
registrar or depositary with respect to the Securities, (g) the
fees of rating agencies, (h) the fees and expenses of the
Trustee, including the reasonable fees and disbursements of
counsel for the Trustee, and (i) any fees and expenses incurred
in connection with listing the Securities on any securities
exchange.
If the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or
because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters
severally upon demand 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 Securities.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and
each person who controls any Underwriter within the meaning of
either the Act or the Exchange 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 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 or investigations or proceedings
commenced or threatened by any governmental agency or body 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, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, 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,
as incurred, for any legal or other expenses reasonably incurred
by them in connection with investigating or defending against any
such action, investigation or proceeding; 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 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 by or on behalf of any
14
Underwriter through the Representatives specifically for
inclusion therein. 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, and each person
who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set
forth in the ___________ paragraph of the cover page and the ____
paragraph(s) under the heading "Plan of Distribution" in the
Basic Prospectus and the ________ paragraph of the cover page and
the _______________ paragraphs under the heading "Underwriting"
in the Prospectus Supplement constitute the only information
furnished in writing by or on behalf of the several Underwriters
for inclusion in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 8 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 8, notify
the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party, (iii)
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 the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An
15
indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit
or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to
hold harmless any indemnified party for any reason, the Company
and the Underwriters agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and
one or more of the Underwriters may be subject in such proportion
as is appropriate to reflect the relative benefits received by
the Company and by the Underwriters from the offering of the
Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Company and the Underwriters shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and of the Underwriters in
connection with the statement or omissions which resulted in such
Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting
expenses), and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the
Final Prospectus. Relative fault shall be determined by reference
to whether any alleged untrue statement or omission relates to
information provided by the Company or the Underwriters. The
Company and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), 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. For purposes
of this Section 8, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall
have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either
the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the
Company, subject in each case to applicable terms and conditions
of this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the
16
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 principal
amount of Securities set forth opposite their names in Schedule I
hereto bears to the aggregate principal amount of Securities set
forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate principal amount of
Securities set forth in Schedule I hereto, the remaining
Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and
if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a
default by any Underwriter as set forth in this Section 9, the
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 contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by
notice given to the Company prior to delivery of and payment for
the Securities, if prior to such time (i) trading in the
Company's Common Stock shall have been suspended by the
Commission or trading in securities generally on the New York
Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or
New York State authorities, (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it,
in the judgment of the Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto) or (iv) subsequent to the Execution Time,
there shall have occurred any of the events specified in Section
6(f) or Section 6(g).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers 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 any of
the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 7, 8, 11 and 14 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telegraphed and
confirmed to ____________ at ________________________, attention
of the Legal Department; or, if sent to the Company, will be
mailed, delivered or telegraphed and
17
confirmed to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, attention of the Secretary.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 8 hereof, and no other person will have
any right or obligation hereunder.
18
14. 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 between the Company
and the several Underwriters.
Very truly yours,
HSBC Americas, Inc.
By:______________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of
the date first above written.
[List all Representatives]
By: [Lead Manager]
By:______________________________
Name:
Title:
For themselves and the other several Underwriters, if any, named
in Schedule I to the foregoing Agreement.
19
SCHEDULE I
Principal
Amount of
Securities to
Underwriters be Purchased
------------ ------------
$
$
$
$
$
$
$
Total............... $
=
20
SCHEDULE II
REPRESENTATIVES
======================
----------------------
21
