THE FIRST AMERICAN CORPORATION
$200,000,000
___% Senior Notes due ____
FORM OF UNDERWRITING AGREEMENT
October o, 2000
CHASE SECURITIES INC.
[OTHERS]
c/o Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017-2070
Ladies and Gentlemen:
The First American Corporation, a California corporation (the
"Company"), proposes to issue and sell $200,000,000 of its ___% Senior Notes due
__________ (the "Notes"). The Notes are to be issued under an Indenture dated as
of October 1, 2000 by and between the Company and Wilmington Trust Company, as
trustee (the "Trustee"), (as amended and supplemented, the "Indenture"), the
form of which has been filed as an exhibit to the Registration Statement (as
defined herein). This is to confirm the agreement concerning the purchase of the
Notes from the Company by Chase Securities Inc. (the "Representative") and
[OTHERS] (together with the Representative, the "Underwriters").
Section 1. Representations and Warranties. The Company represents and
warrants to and agrees with the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (file number
333-43676), including a prospectus, relating to its senior debt securities
to be offered by the Company from time to time and has filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit
for filing to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Notes pursuant to Rule 424 under
the Securities Act of 1933, as amended (the "Securities Act"). The
registration statement as amended at the date of the Underwriting Agreement,
including information, if any, deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act, is hereinafter referred to as the "Registration Statement."
The term "Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "Preliminary Prospectus"
means a preliminary prospectus supplement specifically relating to the
Notes, together with the Basic Prospectus. As used herein, the terms
"Registration Statement," "Basic Prospectus," "Prospectus" and "Preliminary
Prospectus" shall include in each case the documents, if any, incorporated
by reference therein. The terms "supplement," "amendment" and "amend" as
used herein shall include the filing of all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Underwriting Agreement by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). If the Company has filed an abbreviated registration statement to
register additional debt securities pursuant to Rule 462(b) under the
Securities Act (the "Rule 462(b) Registration Statement"), then any
reference herein to the term "Registration Statement" shall be deemed to
include such Rule 462(b) Registration Statement. For purposes of this
Agreement, "Effective Time" means the date and time the Registration
Statement became effective.
(b) The Registration Statement has become effective under the
Securities Act; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the best knowledge of the Company, threatened by the
Commission.
(c) The documents incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus (the "Exchange Act
Reports"), when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and any further
documents so filed and incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus, when such
documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and shall not contain an untrue
statement of a material fact or omit to a state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
(d) At the Effective Time, the Registration Statement did, and when the
Prospectus is first filed in accordance with Rule 424(b) and on the Closing
Date, the Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the Securities Act and
the rules and regulations of the Commission thereunder (the "Rules and
Regulations") and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder;
at the Effective Time, the Registration Statement did not or will not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; at the Effective Time and on the
Closing Date, the Indenture did and will conform in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
and regulations of the Commission thereunder; and, the Prospectus on the
date of the Prospectus and on the Closing Date (together with any supplement
thereto), did not and will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to (i) that part
of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the Trust
Indenture Act or (ii) information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter specifically for use therein as
specified in Section 16 hereof (the "Underwriters' Information").
(e) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of California with the
power and authority to own, lease and operate its properties, to conduct its
business and to execute, deliver and perform its obligations under the
Indenture, the Notes and this Agreement (the "Transaction Documents"). Each
subsidiary of the Company listed on Schedule 2 hereto (such subsidiaries
collectively called the "Material Subsidiaries") that is a corporation is
duly incorporated or organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation or organization with power and
authority to own, lease and operate its properties and conduct its business.
Each Material Subsidiary that is a limited liability company is duly formed
and validly existing under the laws of its jurisdiction of formation with
power and authority to own, lease and operate its properties and conduct its
business.
(f) The Company and the Material Subsidiaries are duly qualified in or
licensed to transact business by, and are in good standing as foreign
corporations in, each jurisdiction in which they own or lease real property,
maintain an office or conduct their respective businesses and in which the
failure, individually or in the aggregate with all other failures to be so
licensed or qualified or to be in good standing, would reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), results of operations or business of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect").
(g) As of June 30, 2000, the Company had a duly authorized, issued and
outstanding capitalization as set forth in the Prospectus under the caption
"Capitalization".
(h) All of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and nonassessable. All of the outstanding shares of capital stock of each
Material Subsidiary that is a corporation have been duly and validly
authorized and issued, are fully paid and nonassessable and are owned,
directly or indirectly, by the Company (other than as set forth below with
respect to First American Home Buyers Protection Corporation ("FAHBPC"))
free and clear of any pledge, lien, security interest, charge, claim,
restriction on voting or transfer or encumbrance of any kind, except that
(i) the transfer of ownership of the capital stock of First American Title
Insurance Company ("FATICO") and FAHBPC is subject to the prior approval of
the California Department of Insurance, (ii) the transfer of ownership of
First American Trust Company is subject to the prior approval of the Office
of Thrift Supervision, and (iii) the transfer of ownership of First American
Title Insurance Company of New York is subject to the prior approval of the
New York Superintendent of Insurance. The Company owns indirectly 91.75% of
the issued and outstanding shares of the capital stock of FAHBPC. The
outstanding shares of the capital stock of FAHBPC that are indirectly owned
by the Company have been duly and validly authorized and issued, are fully
paid and are nonassessable, and are owned, indirectly, by the Company free
and clear of any pledge, lien, security interest, charge, claim, restriction
on voting or transfer or encumbrance of any kind, except that the holders of
the minority interests in FAHBPC have the right to "put" all or a portion of
their minority interests to First American Title Insurance Company. The
Company owns indirectly 80% of the issued and outstanding membership
interests in First American Real Estate Solutions LLC ("FARESLLC"). The
membership interests of FARESLLC that are indirectly owned by the Company
have been duly and validly authorized and issued and are owned, indirectly,
by the Company free and clear of any pledge, lien, security interest,
charge, claim, restriction on voting or transfer or encumbrance of any kind,
except that the holders of the minority membership interests in FARESLLC
have the right to "put" their minority interests to the Company and the
Company has the right to "call" such minority interests. All of the
Company's capital contributions required by FARESLLC's operating agreement
have been made and no future capital contributions are required of the
Company or any of its subsidiaries
(i) The Company has full right, power and authority to execute and
deliver the Transaction Documents and to perform its obligations thereunder;
and all action required to be taken by the Company for the due and proper
authorization, execution and delivery of the Transaction Documents and the
consummation of the transactions contemplated thereby have been duly and
validly taken.
(j) This Agreement has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law) (the
"Enforceability Exceptions").
(k) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery thereof by the Indenture
Trustee (as defined in the Indenture), is a valid and legally binding
agreement of the Company enforceable against the Company in accordance with
its terms, except as enforcement thereof may be limited by the
Enforceability Exceptions.
(l) The Notes have been duly authorized by the Company and, when duly
executed, authenticated, issued, paid for and delivered as provided in the
Indenture, and the Company Order (as defined in the Indenture) relating to
the Notes, dated as of the Closing Date, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, except as enforcement thereof
may be limited by the Enforceability Exceptions.
(m) The Transaction Documents conform in all material respects to the
description thereof contained in the Prospectus.
(n) PricewaterhouseCoopers LLP, who is reporting upon the financial
statements incorporated by reference in the Prospectus, are and were
independent public accountants as required by the Securities Act and the
Rules and Regulations during the periods covered by the financial statements
which are incorporated by reference in the Registration Statement and the
Prospectus.
(o) The consolidated financial statements of the Company incorporated
by reference in the Registration Statement and the Prospectus fairly present
in all material respects the financial condition of the Company and its
consolidated subsidiaries as of the respective dates indicated and the
consolidated results of operations and changes in shareholders' equity of
the Company and its consolidated subsidiaries for the periods specified. The
consolidated financial statements of the Company incorporated by reference
in the Registration Statement and the Prospectus have been prepared in all
material respects in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved (except as indicated in the notes thereto), and the supporting
schedules, if any, incorporated by reference in the Registration Statement
and the Prospectus present fairly in accordance with GAAP, if so required,
the information required to be stated therein. The summary historical
consolidated financial data of the Company included in the Registration
Statement and the Prospectus fairly present in all material respects the
information shown therein as of the dates stated therein and have been
compiled on a basis consistent with that of the consolidated audited
financial statements of the Company incorporated by reference in the
Registration Statement and the Prospectus.
(p) The execution, delivery and performance by the Company of the
Transaction Documents, the issuance, authentication, sale and delivery of
the Notes and compliance by the Company with the terms thereof and hereof
and the consummation of the transactions contemplated thereby and hereby
will not conflict with or result in a breach or violation of any of the
material terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries or pursuant to,
any material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such actions result in any violation
of the provisions of the charter or by-laws of the Company or any of its
Material Subsidiaries, or any material statute or any material judgment,
order, decree, rule or regulation of any court or arbitrator or governmental
agency or body having jurisdiction over the Company or any of its Material
Subsidiaries or any of their properties or assets; and no consent, approval,
authorization or order of, or filing or registration with, any such court or
arbitrator or governmental agency or body under any such statute, judgment,
order, decree, rule or regulation is required for the execution, delivery
and performance by the Company of the Transaction Documents, the issuance,
authentication, sale and delivery of the Notes and compliance by the Company
with the terms thereof and hereof and the consummation of the transactions
contemplated thereby and hereby except for such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection with the
purchase and distribution of the Notes by the Underwriters and such
consents, approvals, authorizations, orders, filings, registrations or
qualifications which shall have been obtained or made prior to the Closing
Date.
(q) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, as amended or supplemented,
except as may be otherwise stated therein (i) there has been no material
adverse change or any development involving a prospective material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs, management or business prospects of the Company, whether
or not arising in the ordinary course of business, (ii) the Company has not
incurred any material liability or obligation, direct or contingent, other
than in the ordinary course of business, (iii) the Company has not entered
into any material transaction other than in the ordinary course of business
and (iv) except for (x) the issuance of no more than 500,000 shares of the
Company's common stock pursuant to its stock plans, 401(k) plan and stock
issued pursuant to immaterial acquisitions, (y) the regular quarterly cash
dividend declared by the Company to shareholders of record on September 29,
2000, and (z) up to $25,000,000 in long term debt, there has not been any
change in the capital stock or long-term debt of the Company, or any
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock. There are no contracts or other documents
which are required by the Securities Act or by the Rules and Regulations to
be described in the Prospectus or filed as exhibits to the Registration
Statement which have not been so described or filed.
(r) There is no legal or governmental proceeding pending to which the
Company or any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject which,
singularly or in the aggregate, if determined adversely to the Company or
any of its subsidiaries, could reasonably be expected to have a Material
Adverse Effect; and to the best knowledge of the Company, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(s) No action has been taken and no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental agency or body which
prevents the issuance of the Notes or suspends the sale of the Notes in any
jurisdiction; no injunction, restraining order or order of any nature by any
federal or state court of competent jurisdiction has been issued with
respect to the Company or any of its subsidiaries which would prevent or
suspend the issuance or sale of the Notes or the use of the Preliminary
Prospectus or the Prospectus in any jurisdiction; no action, suit or
proceeding is pending against or, to the best knowledge of the Company,
threatened against or affecting the Company or any of its subsidiaries
before any court or arbitrator or any governmental agency, body or official,
domestic or foreign, which could reasonably be expected to interfere with or
adversely affect the issuance of the Notes or in any manner draw into
question the validity or enforceability of or any action taken or to be
taken pursuant thereto; and the Company has complied with any and all
requests by any securities authority in any jurisdiction for additional
information to be included in the Preliminary Prospectus and the Prospectus.
(t) Neither the Company nor any of its Material Subsidiaries is (i) in
violation of its charter or by-laws, (ii) in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance
of any material term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which it is a party or by which it is bound or to
which any of its property or assets is subject or (iii) in violation in any
material respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject.
(u) The Company and each of its subsidiaries holds such licenses,
certificates, consents, orders, approvals, permits and other authorizations
from governmental authorities (including, without limitation, insurance
licenses from the insurance regulatory agencies of the various states where
it conducts business ("Insurance Licenses")) which are necessary to own or
lease, as the case may be, and to operate their respective properties and to
carry on their respective business as presently conducted, except for such
licenses, certificates, consents, orders, approvals, permits or other
authorizations the failure to hold which could not reasonably be expected to
have a Material Adverse Effect; the Company and each of its subsidiaries has
fulfilled and performed all obligations necessary to maintain such licenses,
certificates, consents, orders, approvals, permits and other authorizations
(including, without limitation, the Insurance Licenses), except where the
failure to so fulfill or perform such obligations could not reasonably be
expected to have a Material Adverse Effect. Except as disclosed in the
Registration Statement and Prospectus, there is no pending, or to the best
knowledge of the Company threatened, action, suit, proceeding or
investigation (and, to the best knowledge of the Company, no facts exist
which the Company believes could reasonably be the basis for any such
action, suit, proceeding or investigation) that may reasonably be expected
to lead to the revocation, termination or suspension of any such license,
certificate, consent, order, approval, permit or other authorization
(including, without limitation, the Insurance Licenses), except where such
revocation, termination or suspension could not reasonably be expected to
have a Material Adverse Effect; and no insurance regulatory agency or body
has issued any order or decree restricting or prohibiting the payment of
dividends by the Company's insurance company subsidiaries to the Company.
(v) All ceded reinsurance and retrocessional agreements to which the
Company's insurance company subsidiaries are a party are in full force and
effect, except where the failure to be in full force and effect would not
have a Material Adverse Effect. Neither the Company nor any of such
subsidiaries has received any notice from any of the other parties to such
agreements that such other party intends not to perform in any material
respect such agreement and none of the Company and such subsidiaries has any
reason to believe that any of the other parties to such agreements will be
unable to perform such agreements, except to the extent that (i) the Company
or such subsidiary has established appropriate reserves on its financial
statements or (ii) such nonperformance could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; and
each of the Company and its insurance company subsidiaries is entitled to
give effect in its underwriting results in its most recently filed statutory
financial statements in conformity with the insurance department of the
state of domicile of each such subsidiary in effect at such time of
preparation for reinsurance ceded pursuant to such agreements.
(w) The Company is not, and is not directly or indirectly controlled
by, or acting on behalf of any person which is, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(x) Other than pursuant to this Agreement or as disclosed in the
Prospectus under the caption "Underwriting", there are no contracts,
agreements or understandings between the Company and any person that give
rise to a valid claim against the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment.
(y) Except as described in the Registration Statement and the
Prospectus and except for common share piggyback registration rights granted
to John B. Ward in respect of the 137,143 shares of the Company's common
stock received by him as partial consideration for the sale of Nationwide
Field Services-Ward Associates, Inc. to the Company, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the Registration Company Statement.
Section 2. Purchase by the Underwriters. On the basis of the
representations, warranties and agreements herein contained, and subject to the
terms and conditions herein set forth, the Company agrees to issue and sell to
each Underwriter, severally and not jointly, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the aggregate principal
amount of Notes set forth opposite the name of such Underwriter on Schedule I
hereto at a purchase price equal to o % of the principal amount thereof, plus
accrued and unpaid interest, if any, from the date of issuance. The Company
shall not be obligated to deliver any of the Notes except upon payment for all
the Notes to be purchased as provided herein. The Company acknowledges and
agrees that each Underwriter may sell Notes to any of its affiliates and that
any such affiliate may sell Notes purchased by it to an Underwriter.
Section 3. Delivery of and Payment for the Notes. Payment of the
purchase price for, and delivery of certificates for, the Notes shall be made at
the offices of Simpson Thacher & Bartlett, 425 Lexington Ave., New York, New
York 10017, or at such other place as may be agreed upon by the Representative
and the Company, at 11:00 A.M., New York City time, on October o, 2000 or such
later date and time not more than seven full business days thereafter as shall
be agreed upon by the Representative and the Company (such date and time of
payment and delivery being herein called the "Closing Date").
(a) On the Closing Date, payment of the purchase price for the Notes
shall be made to the Company by wire or book-entry transfer of same-day funds to
such account or accounts as the Company shall specify prior to the Closing Date
or by such other means as the parties hereto shall agree prior to the Closing
Date against delivery to the Representative for the account of each Underwriter
through the book-entry facilities of The Depository Trust Company ("DTC") of the
certificates evidencing the Notes. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligations of the Underwriters hereunder. Upon delivery, the Notes will
be represented by a permanent global certificate registered in the name of Cede
& Co., as nominee for DTC. The Company agrees to make the global certificate
evidencing the Notes available for inspection by the Representative, at least 24
hours prior to the Closing Date.
(b) It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Notes that it has agreed to purchase. You
may (but shall not be obligated to) make payment of the purchase price for the
Notes to be purchased by any Underwriter whose funds shall not have been
received by the Closing Date, but such payment shall not relieve such
Underwriter from its obligations hereunder.
Section 4. Further Agreements of the Company. The Company agrees with
each of the Underwriters as follows:
(a) (i) to prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representative, to file such Rule
462(b) Registration Statement with the Commission in compliance with Rule
462(b) of the Rules and Regulations by 10:00 a.m., New York City time, on
the business day following the date of determination of the public offering
price and, at the time of filing, either to pay the Commission the filing
fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the
Rules and Regulations and (ii) to file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) of Rule 424(b) within
the time period prescribed by such rule, and provide evidence satisfactory
to the Representative of such timely filing;
(b) To file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
a Prospectus is required in connection with the offering of the Notes;
(c) Prior to filing with the Commission any (i) amendment to the
Registration Statement (including any Rule 462(b) Registration Statement) or
supplement to the Prospectus, (ii) any document incorporated by reference in
the Prospectus or (iii) any Prospectus pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the Representative and counsel for
the Underwriters, and not to file any such document to which the
Representative shall reasonably object after having been given reasonable
notice of the proposed filing thereof unless the Company is required by law
to make such filing;
(d) To advise the Representative promptly of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose; to advise the Representative promptly of any order preventing or
suspending the use of any prospectus relating to the Notes, of the
suspension of the qualification of the Notes for offering or sale in any
jurisdiction, and of the initiation or threatening of any proceeding for any
such purpose; and to use its best efforts to prevent the issuance of any
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Notes or suspending any such qualification and,
if any such stop order or order of suspension is issued, to obtain the
lifting thereof at the earliest possible time;
(e) To furnish promptly to the Representative and counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith; and to deliver promptly
without charge to the Underwriters such number of the following documents as
the Underwriters from time to time may reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission
and each amendment thereto (in each case excluding exhibits other than this
Agreement, the Indenture and the computation of the ratio of earnings to
fixed charges), (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus and (iii) any document incorporated by
reference in the Prospectus (excluding exhibits thereto); (f) If the
delivery of a prospectus is required at any time in connection with the sale
of the Notes and if at such time any events shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or if for any other reason it shall be necessary at such
time to amend or supplement the Prospectus in order to comply with the
Securities Act or the Exchange Act, then to notify the Representative
immediately thereof, and promptly to prepare and, subject to Section 4(c)
hereof, file with the Commission an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect such
compliance;
(g) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Company or the Representative,
be required by the Securities Act or requested by the Commission or
advisable in connection with the distribution of the Notes;
(h) As soon as practicable to make generally available to the Company's
security holders and to deliver to the Representative an earning statement
of the Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Securities Act and the Rules and Regulations
(including Rule 158);
(i) For so long as any of the Notes are outstanding, to furnish to the
Underwriters copies of any annual reports, quarterly reports and current
reports filed by the Company with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar forms as may be designated by the Commission, and
all such other documents, reports and information as shall be furnished by
the Company to the Trustee or to the holders of the Notes pursuant to the
Indenture or the Exchange Act or any rule or regulation of the Commission
thereunder;
(j) Promptly, from time to time, to take such action as the
Representative may reasonably request to qualify the Notes for offering and
sale under the securities laws of such jurisdictions as the Representative
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Notes; provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation in any jurisdiction in which they are not so qualified
or to file a general consent to service of process in any jurisdiction;
(k) The Company shall apply the net proceeds of its sale of the Notes
as set forth in the Prospectus;
(l) In connection with the offering of the Notes, until the
Representative on behalf of the Underwriters shall have notified the Company
of the completion of the distribution of the Notes, not to, and to cause its
affiliated persons (as defined in Regulation M under the Exchange Act) not
to, either alone or with other persons, bid for or purchase, for any account
in which it or any of its affiliated persons has a beneficial interest, any
Notes, or attempt to induce any person to purchase Notes; and not to, and to
cause its affiliated purchasers not to, make bids or purchase for the
purpose of creating actual, or apparent, active trading in or of raising the
price of the Notes;
(m) For a period of 30 days from the date of the Prospectus, not to
offer for sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any offering
of, any debt securities (or securities convertible into debt securities) of
the Company (other than the Notes in connection herewith) without the prior
written consent of the Representative;
(n) In connection with the offering of the Notes, the Company agrees to
make its officers, trustees, independent accountants and legal counsel
reasonably available upon request by the Underwriters;
(o) The Company will do and perform all things required to be done and
performed by it under this Agreement that are within its control prior to or
after the Closing Date, and to use its reasonable best efforts to satisfy
all conditions precedent on its part to the delivery of the Notes; and
(p) Not to, for so long as the Notes are outstanding, be or become, or
be or become owned by, an open-end investment company, unit investment trust
or face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act, and to not be or become, or
be or become owned by, a closed-end investment company required to be
registered, but not registered thereunder.
Section 5. Conditions of Underwriters' Obligations. The respective
obligations of the several Underwriters hereunder are subject to the accuracy,
on and as of the date hereof and the Closing Date, of the representations and
warranties of the Company contained herein, to the accuracy of the statements of
the Company and its officers made in any certificates delivered pursuant hereto,
to the performance by the Company of its obligations hereunder, and to each of
the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 4(a) of this Agreement, and, if applicable, the Rule
462(b) Registration Statement shall have become effective by 10:00 a.m. New
York City time on the business day following the date of the Underwriting
Agreement. Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with to the reasonable
satisfaction of the Underwriters.
(b) The Prospectus (and any amendments or supplements thereto) shall
have been printed and copies distributed to the Underwriters as promptly as
practicable on or following the date of this Agreement or at such other date
and time as to which the Underwriters may agree.
(c) None of the Underwriters shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Prospectus or any amendment
or supplement thereto contains an untrue statement of a fact which, in the
opinion of counsel for the Underwriters, is material or omits to state any
fact which, in the opinion of such counsel, is material and is required to
be stated therein or is necessary to make the statements therein not
misleading.
(d) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of the Transaction Documents, the
Registration Statement and the Prospectus, and all other legal matters
relating thereto and the transactions contemplated thereby, shall be
satisfactory in all material respects to the Underwriters, and the Company
shall have furnished to the Underwriters and their counsel all documents and
information that the Underwriters or their counsel may reasonably request to
enable them to pass upon such matters.
(e) White & Case LLP shall have furnished to the Underwriters their
written opinion, as counsel to the Company, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably satisfactory to
the Underwriters substantially to the effect set forth in Annex A hereto.
(f) Craig I. DeRoy shall have furnished to the Underwriters his written
opinion, as General Counsel to the Company, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably satisfactory to
the Underwriters, substantially in the form of Annex B hereto.
(g) The Underwriters shall have received from Simpson Thacher &
Bartlett, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Underwriters may
reasonably require, and the Company shall have furnished to such counsel
such documents and information as the Underwriters or their counsel
reasonably request for the purpose of enabling them to pass upon such
matters.
(h) The Company shall have furnished to the Underwriters a letter (the
"Initial Letter") of PricewaterhouseCoopers LLP, addressed to the
Underwriters and dated the date hereof, in form and substance satisfactory
to the Underwriters, substantially to the effect set forth in Annex C
hereto.
(i) The Company shall have furnished to the Underwriters a letter (the
"Bring-Down Letter") of PricewaterhouseCoopers LLP, addressed to the
Underwriters and dated the Closing Date (i) confirming that they are
independent public accountants with respect to the Company and its
subsidiaries within the meaning of the Securities Act, (ii) stating, as of
the date of the Bring-Down Letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more than
five business days prior to the date of the Bring-Down Letter), that the
conclusions and findings of such accountants with respect to the financial
information and other matters covered by the Initial Letter are accurate and
(iii) confirming in all material respects the conclusions and findings set
forth in the Initial Letter.
(j) The Company shall have furnished to the Underwriters a certificate,
dated the Closing Date, of its president and its chief financial officer
stating that (A) such officers have carefully examined the Registration
Statement and the Prospectus, (B) in their opinion, the Registration
Statement, including the documents incorporated therein by reference, as of
the Effective Time, did not include any untrue statement of a material fact
and did not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, and the
Prospectus, including the documents incorporated therein by reference, as of
the date of the Prospectus and as of the Closing Date, did not and does not
include any untrue statement of a material fact and did not and does not
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, and (C) as of the Closing Date, the representations and
warranties of the Company in this Agreement are true and correct in all
material respects, the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
on or prior to the Closing Date, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of such officer's knowledge,
are contemplated by the Commission, and subsequent to the date of the most
recent financial statements contained or incorporated by reference in the
Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company or any of its Material
Subsidiaries and other consolidated subsidiaries, or any change, or any
development involving a prospective material adverse change, in or affecting
the condition (financial or otherwise), results of operations or business of
the Company and its Material Subsidiaries and other consolidated
subsidiaries taken as a whole, except as set forth in the Prospectus.
(k) The Indenture and any applicable supplement thereto, shall have
been duly executed and delivered by the Company and the Trustee and the
Notes shall have been duly executed and delivered by the Company and duly
authenticated by the Trustee.
(l) If any event shall have occurred that requires the Company under
Section 4(e) to prepare an amendment or supplement to the Prospectus, such
amendment or supplement shall have been prepared, the Underwriters shall
have consented to its use, and copies thereof shall have been delivered to
the Underwriters reasonably in advance of the Closing Date.
(m) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment or supplement thereto) and the
Prospectus (exclusive of any amendment or supplement thereto), there shall
not have been any change in the capital stock or long-term debt or any
change, or any development involving a prospective change, in or affecting
the condition (financial or otherwise), results of operations or business or
prospects of the Company and its consolidated subsidiaries taken as a whole,
the effect of which, in any such case described above, is, in the judgment
of the Representative, so material and adverse as to make it impracticable
or inadvisable to proceed with the sale or delivery of the Notes on the
terms and in the manner contemplated by this Agreement and in the Prospectus
(exclusive of any amendment or supplement thereto).
(n) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency
or body which would, as of the Closing Date, prevent the issuance or sale of
the Notes; and no injunction, restraining order or order of any other nature
by any federal or state court of competent jurisdiction shall have been
issued as of the Closing Date which would prevent the issuance or sale of
the Notes.
(o) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Notes or any of
the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization", as such term is defined by the
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations and
(ii) no such organization shall have publicly announced that it has under
surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of the Notes or any of the
Company's debt securities or preferred stock.
(p) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or limited, or minimum
prices shall have been established on any such exchange or market by the
Commission, by any such exchange or by any other regulatory body or
governmental authority having jurisdiction, or trading in any securities of
the Company on any exchange or in the over-the-counter market shall have
been suspended or (ii) any moratorium on commercial banking activities shall
have been declared by federal or New York State authorities or (iii) an
outbreak or escalation of hostilities or a declaration by the United States
of a national emergency or war or (iv) a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) the
effect of which, in the case of this clause (iv), is, in the judgment of the
Underwriters, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or the delivery of the Notes on the
terms and in the manner contemplated by this Agreement and in the Prospectus
(exclusive of any amendment or supplement thereto).
Section 6. Termination. The obligations of the Underwriters hereunder
may be terminated by the Underwriters, in their absolute discretion, by notice
given to and received by the Company prior to delivery of and payment for the
Notes, if, prior to that time, any of the events described in Section 5(m), (n),
(o) or (p) shall have occurred and be continuing.
Section 7. Defaulting Underwriters. If, on the Closing Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the non-defaulting Underwriters may make arrangements for the purchase of the
Notes which such defaulting Underwriter agreed but failed to purchase by other
persons satisfactory to the Company and the non-defaulting Underwriters, but if
no such arrangements are made within 36 hours after such default, this Agreement
shall terminate without liability on the part of the non-defaulting
Underwriters, or the Company, except that the Company will continue to be liable
for the payment of expenses of the non-defaulting Underwriters to the extent set
forth in Sections 8 and 12 hereof and except that the provisions of Sections 9
and 10 hereof as they relate to non-defaulting Underwriters shall not terminate
and shall remain in effect. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context otherwise
requires, any party not listed in Schedule 1 hereto that, pursuant to this
Section 7, purchases Notes which a defaulting Underwriter agreed but failed to
purchase.
(a) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default. If other persons are obligated or agree to
purchase the Notes of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for
the Company or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement, and the
Company agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus that effects any such changes.
Section 8. Reimbursement of Underwriters' Expenses. If (a) this
Agreement shall have been terminated pursuant to Section 7, (b) the Company
shall fail to tender any of the Notes for delivery to the Underwriters for any
reason permitted under this Agreement or (c) the Underwriters shall decline to
purchase the Notes for any reason permitted under this Agreement, the Company
shall reimburse the Underwriters for such out-of-pocket expenses (including
reasonable fees and disbursements of counsel) as shall have been reasonably
incurred by the Underwriters in connection with this Agreement and the proposed
purchase and resale of the Notes. If this Agreement is terminated pursuant to
Section 7 by reason of the default of one or more of the Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of such expenses.
Section 9. Indemnification. The Company shall indemnify and hold
harmless each Underwriter, its affiliates, their respective officers, directors,
employees, representatives and agents, and each person, if any, who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 9(a) and Section 10 as an
Underwriter), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, without limitation, any
loss, claim, damage, liability or action relating to purchases and sales of the
Notes), to which that Underwriter may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and shall reimburse each
Underwriter promptly upon demand for any legal or other expenses reasonably
incurred by that Underwriter in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with any Underwriters' Information; and provided, further, that with
respect to any such untrue statement in or omission from any Preliminary
Prospectus, the indemnity agreement contained in this Section 9(a) shall not
inure to the benefit of any such Underwriter to the extent that the sale to the
person asserting any such loss, claim, damage, liability or action was an
initial resale by such Underwriter and any such loss, claim, damage, liability
or action of or with respect to such Underwriter results from the fact that both
(A) to the extent required by applicable law, a copy of the Prospectus
(excluding the documents incorporated by reference therein) was not sent or
given to such person at or prior to the written confirmation of the sale of such
Notes to such person and (B) the untrue statement in or omission from such
Preliminary Prospectus was corrected in the Prospectus unless, in either case,
such failure to deliver the Prospectus was a result of non-compliance by the
Company with the provision of Section 4(e).
(a) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers who sign the Registration Statement, its
directors, and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act (collectively referred to for purposes
of this Section 9(b) and Section 10 as the Company), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company may become subject, whether commenced or threatened, under
the Securities Act, the Exchange Act, any other federal or state statutory law
or regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with any Underwriters' Information
provided by such Underwriter and shall reimburse the Company promptly upon
demand for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred.
(b) Promptly after receipt by an indemnified party under this Section 9
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party pursuant to Section 9(a) or 9(b), notify the indemnifying party in writing
of the claim or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 9 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 9. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 9(a) and 9(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding and contains no findings of fault or culpability or failure
to act by or on behalf of the indemnified party.
The obligations of the Company and the Underwriters in this Section 9
and in Section 10 are in addition to any other liability that the Company or the
Underwriters, as the case may be, may otherwise have, including in respect of
any breaches of representations, warranties and agreements made herein by any
such party.
Section 10. Contribution. If the indemnification provided for in
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under Section 9(a) or 9(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes purchased
under this Agreement (before deducting expenses) received by or on behalf of the
Company, on the one hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the Notes purchased under this
Agreement, on the other, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to the
Company or information supplied by the Company on the one hand or to any
Underwriters' Information on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section 10
were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 10 shall be deemed to include, for purposes of this Section 10, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 10, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total underwriting discounts and commissions received by such
Underwriter with respect to the Notes purchased by it under this Agreement
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 10 are several in proportion to their respective underwriting
commitments and not joint.
Section 11. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except as provided in
Sections 9 and 10 with respect to affiliates, officers, trustees, directors,
employees, representatives, agents and controlling persons of the Company and
the Underwriters. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 11, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein. The term "successors" shall not include a
purchaser of any of the Notes from any Underwriter merely because of such
purchase.
Section 12. Expenses. The Company agrees with the Underwriters to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Notes and any taxes payable in that connection; (b) the costs
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement, all Preliminary Prospectuses and the Prospectus and any
amendments and exhibits thereto (including the filing fees of the Commission);
(c) the costs of distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus, all as provided in this Agreement;
(d) the costs of printing, reproducing and distributing the Indenture, the Notes
and this Agreement and any other underwriting and selling group documents by
mail, telex or other means of communications; (e) the costs incident to the
preparation, printing and delivery of the certificates evidencing the Notes,
including stamp duties and transfer taxes, if any, payable upon issuance of the
Notes; (f) the fees and expenses of the Company's counsel and independent
accountants; (g) the fees and expenses of qualifying the Notes under the
securities laws of the several jurisdictions as provided in Section 4(i) and of
preparing, printing and distributing Blue Sky Memoranda (including related
reasonable fees and expenses of counsel for the Underwriters); (h) any fees
charged by rating agencies for rating the Notes; (i) the fees and expenses of
the Trustee and any paying agent (including related fees and expenses of any
counsel to such parties); (j) the cost of qualifying the Notes with DTC and
other costs and expenses incident to the performance of the obligations of the
Company under this Agreement which are not otherwise specifically provided for
in this Section 12; provided, however, that except as provided in this Section
12 and Section 8, the Underwriters shall pay their own costs and expenses.
Section 13. Survival. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Company and the
Underwriters contained in this Agreement or made by or on behalf of the Company
or the Underwriters pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Notes and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
Section 14. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
if to the Underwriters, shall be delivered or sent by mail or
telecopy transmission to Chase Securities Inc., 270 Park Avenue, New York,
New York 10017, Attention: Mr. Louis DeCaro (telecopier no.: (212)
834-6170); or
if to the Company shall be delivered or sent by mail or telecopy
transmission to the address of the Company set forth in the Prospectus,
Attention: Mark R Arnesen (telecopier no.: 714-800-3497);
provided that any notice to the Underwriters pursuant to Section 9(c) shall also
be delivered or sent by mail to the Representative at its address set forth on
the signature page hereof. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Company shall be entitled
to act and rely upon any request, consent, notice or agreement given or made on
behalf of the Underwriters by the Representative.
Section 15. Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange, Inc.
is open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
Section 16. Underwriters' Information. The parties hereto acknowledge
and agree that the Underwriters' Information consists solely of the statements
concerning the Underwriters contained in the third paragraph, the third sentence
of the fifth paragraph and the ninth paragraph under the heading "Underwriting".
Section 17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 18. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
Section 19. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
Section 20. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the
Underwriters in accordance with its terms.
Very truly yours,
THE FIRST AMERICAN CORPORATION
By
-----------------------------------------
Name: Thomas A. Klemens
Title: Executive Vice President and Chief
Financial Officer
Accepted:
CHASE SECURITIES INC.
[OTHERS]
By CHASE SECURITIES INC.
By
-----------------------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
Chase Securities Inc.
1 Chase Manhattan Plaza
26th Floor
New York, New York 10081
Attention: Legal Department
<PAGE>
SCHEDULE 1
Underwriters Principal Amount
of Notes
Chase Securities Inc. $ o
[OTHERS] $ o
--------------------
Total $200,000,000
<PAGE>
SCHEDULE 2
Material Subsidiaries
First American Trust Company
First American Title Insurance Company
First American Title Guaranty Holding Company
First American Home Buyers Protection Corporation
First American Title Insurance Company of New York
First American Real Estate Information Services, Inc.
First American Real Estate Solutions LLC
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ANNEX A
Form of White & Case LLC Opinion
White & Case shall have furnished to the Underwriters their written
opinion, as counsel to the Company, addressed to the Underwriters and dated the
Closing Date, in form and substance reasonably satisfactory to the Underwriters,
substantially to the effect set forth below:
(a) The Company has full right, power and authority to execute and
deliver each of the Transaction Documents and to perform its obligations
thereunder; and all corporate action required to be taken for the due and
proper authorization, execution and delivery of the Transaction Documents
and the consummation of the transactions contemplated thereby have been duly
and validly taken.
(b) This Agreement has been duly authorized, executed and delivered by
the Company.
(c) The Indenture has been duly authorized, executed and delivered by
the Company, and, assuming due authorization, execution and delivery thereof
by the Trustee, the Indenture constitutes a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance with
its terms, subject to the Enforceability Exceptions.
(d) The Notes have been duly authorized, executed, issued and delivered
by the Company and, when the Notes have been duly authenticated by the
Trustee and paid for by the Underwriters, will constitute legal, valid and
binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, subject to the Enforceability Exceptions.
(e) Each Transaction Document conforms in all material respects to the
description thereof contained in the Prospectus.
(f) The statements set forth in the Prospectus under the caption
"Description of Notes", insofar as they purport to describe the provisions
of the law and documents referred to therein are accurate.
(g) The Company is not an "investment company" or a company "controlled
by" an investment company within the meaning of the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission
thereunder, without taking account of any exemption under the Investment
Company Act of 1940, as amended, arising out of the number of holders of the
Company's securities.
(h) The Registration Statement was declared effective under the
Securities Act and the rules and regulations of the Commission thereunder
and the Indenture was qualified under the Trust Indenture Act at
[__________] on [__________], 2000; [the Rule 462(b) Registration Statement
was filed with the Commission on __________, 2000]; the Prospectus was filed
with the Commission pursuant to the subparagraph of Rule 424(b) of the Rules
and Regulations specified in such opinion on [__________], 2000; and no stop
order suspending the effectiveness of the Registration Statement has been
issued and, to the best of such counsel's knowledge, no proceeding for that
purpose is pending or threatened by the Commission;
(i) The Registration Statement, as of the Effective Date, and the
Prospectus (including any amendments or supplements thereto), as of its
date(s) and as of the Closing Date, complied as to form in all material
respects with the requirements of the Securities Act and the Rules and
Regulations and the Indenture complies as to form in all material respects
with the Trust Indenture Act and the rules and regulations of the Commission
thereunder, and the Exchange Act Reports complied as to form when filed in
all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder (in the case of the
Registration Statement, the Prospectus and the Exchange Act Reports, other
than the financial statements and related schedules and the other financial
and statistical information contained therein, as to which such counsel need
express no opinion).
In addition, such counsel shall state that, although they have not
undertaken, except as otherwise indicated in their opinion, to determine
independently, and do not assume any responsibility for the accuracy or
completeness of the statements in the Registration Statement and the
Prospectus (other than as set forth in paragraphs (e) and (f) above), as
counsel for the Company, they reviewed the documents incorporated by
reference therein (the "Exchange Act Documents"), participated in the
preparation of the Registration Statement and the Prospectus and in
discussions with representatives of the Company and its independent public
accountants and advised the Company as to the requirements of the Securities
Act and the applicable rules and regulations thereunder. Such counsel shall
also state that they reviewed certificates of certain officers of the
Company and the letter from the Company's independent accountants. Such
counsel shall state that nothing that came to their attention that has
caused them to believe that any part of the Registration Statement
(including the Exchange Act Documents) as of the Effective Date contained
any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus as amended or
supplemented (including the Exchange Act Documents) as of its date(s) and as
of the Closing Date contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need not express
an opinion with respect to the financial statements and notes and schedules
thereto or any other statistical or financial data included therein
(including the Exchange Act Documents)).
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ANNEX B
[Form of Opinion of Craig I. DeRoy]
Craig I. DeRoy, shall have furnished to the Underwriters his written
opinion, as general counsel to the Company, addressed to the Underwriters and
dated the Closing Date, in form and substance reasonably satisfactory to the
Underwriters, substantially to the effect set forth below:
(a) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of California; and
the Company and each of its Material Subsidiaries is duly qualified or
licensed to do business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership or lease of property, maintenance
of an office or the conduct of its businesses requires such qualification,
and has all power and authority necessary to own or hold its properties and
to conduct the businesses in which it is engaged (except where the failure
to so qualify or be licensed or have such power or authority would not,
singularly or in the aggregate, have a Material Adverse Effect).
(j) The Company has an authorized capitalization as set forth in the
Prospectus.
(k) All of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid and
non-assessable and were not issued in violation of the preemptive rights of
any other stockholder of the Company; and all of the issued and outstanding
shares of capital stock of each of the Company's Material Subsidiaries that
is a corporation are owned of record by the Company or one or more of its
subsidiaries (other than as set forth below with respect to First American
Home Buyers Protection Corporation ("FAHBPC")), and all such shares of such
capital stock are duly and validly issued, fully paid and non-assessable,
except that (i) the transfer of ownership of the capital stock of First
American Title Insurance Company ("FATICO") and FAHBPC is subject to the
prior approval of the California Department of Insurance, (ii) the transfer
of ownership of First American Trust Company is subject to the prior
approval of the Office of Thrift Supervision, and (iii) the transfer of
ownership of First American Title Insurance Company of New York is subject
to the prior approval of the New York Superintendent of Insurance. The
Company owns 91.75% of the issued and outstanding shares of the capital
stock of FAHBPC. The outstanding shares of the capital stock of FAHBPC that
are indirectly owned by the Company have been duly and validly authorized
and issued, are fully paid and are nonassessable, and are owned, indirectly,
by the Company free and clear of any pledge, lien, security interest,
charge, claim, restriction on voting or transfer or encumbrance of any kind,
except that the holders of the minority interests in FAHBPC have the right
to "put" all or a portion of their minority interests to First American
Title Insurance Company. All of the Company's capital contributions required
by First American Real Estate Solutions LLC's ("FARESLLC") operating
agreement have been made and no future capital contributions are required of
the Company. The Company owns indirectly 80% of the membership interests in
FARESLLC free and clear of any pledge, lien, security interest, charge,
claim, restriction on voting or transfer or encumbrance of any kind, except
that the holders of the minority membership interests in FARESLLC have the
right to "put" their minority interests to the Company and the Company has
the right to "call" such minority interests.
(l) The execution, delivery and performance by the Company of the
Transaction Documents, the issuance, authentication, sale and delivery of
the Notes and compliance by the Company with the material terms thereof and
the consummation of the transactions contemplated thereby will not conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its subsidiaries or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, nor will
such actions result in any violation of the provisions of the charter or
by-laws of the Company or any of its Material Subsidiaries or any material
statute or any material judgment, order, decree, rule or regulation of any
court or arbitrator or governmental agency or body having jurisdiction over
the Company or any of its Material Subsidiaries or any of their properties
or assets; and no consent, approval, authorization or order of, or filing or
registration with, any such court or arbitrator or governmental agency or
body under any such statute, judgment, order, decree, rule or regulation is
required for the execution, delivery and performance by the Company of the
Indenture, the Notes and this Agreement, the issuance, authentication, sale
and delivery of the Notes and compliance by the Company with the terms
thereof and the consummation of the transactions contemplated thereby,
except for (i) the registration of the Notes under the Securities Act, (ii)
the qualification of the Indenture under the Trust Indenture Act, (iii) such
consents, approvals, authorizations, registrations or qualifications as may
be required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Notes by the
Underwriters and (iv) such consents, approvals, authorizations, orders,
filings, registrations or qualifications which shall have been obtained or
made prior to the Closing Date.
(m) To the best knowledge of such counsel, there are no pending actions
or suits or judicial, arbitral, rule-making, administrative or other
proceedings to which the Company or any of its subsidiaries is a party or of
which any property or assets of the Company or any of its subsidiaries is
the subject which (A) singularly or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could reasonably be
expected to have a Material Adverse Effect, (B) questions the validity or
enforceability of any of the Transaction Documents or any action taken or to
be taken pursuant thereto; or (C) which is required to be disclosed in the
Prospectus which is not so disclosed (and any such proceeding as is
disclosed in the Prospectus is accurately summarized in all material
respects) and, to the best knowledge of such counsel, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others. There are no contracts or other documents which are required by the
Securities Act or by the Rules and Regulations to be described in the
Prospectus or filed as exhibits to the Registration Statement which have not
been so described or filed.
(n) Neither the Company nor any of its Material Subsidiaries is (A) in
violation of its charter or by-laws, (B) in default in any material respect,
and no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
material term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which it is a party or by which it is bound or to which any of
its material property or assets is subject or (C) in violation in any
material respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its material property or assets may be subject.
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ANNEX C
[Form of Initial Letter]
The Company shall have furnished to the Underwriters a letter of
PricewaterhouseCoopers LLP, addressed to the Underwriters and dated the date of
the Underwriting Agreement, in form and substance satisfactory to the
Underwriters, substantially to the effect set forth below:
(a) they are independent certified public accountants with respect to
the Company within the meaning of the Securities Act;
(o) in their opinion, the audited financial statements included or
incorporated by reference in the Prospectus and reported on by them comply
in form in all material respects with the accounting requirements of the
Exchange Act and the related published rules and regulations of the
Commission thereunder (except that certain supporting schedules are
omitted);
(p) based upon a reading of the latest unaudited financial statements
made available by the Company, the procedures of the AICPA for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, reading of minutes and inquiries of certain officials of
the Company who have responsibility for financial and accounting matters and
certain other limited procedures requested by the Underwriters and described
in detail in such letter, nothing has come to their attention that causes
them to believe that (A) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus
do not comply as to form in all material respects with applicable accounting
requirements or (B) any material modifications should be made to the
unaudited financial statements included or incorporated by reference in the
Registration Statement and the Prospectus for them to be in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included or
incorporated by reference in the Prospectus;
(q) based upon the procedures detailed in such letter with respect to
the period subsequent to the date of the last available balance sheet,
including reading of minutes and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters,
nothing has come to their attention that causes them to believe that (A) at
a specified date not more than three business days prior to the date of such
letter, there was any change in capital stock, increase in long-term debt or
decrease in net current assets as compared with the amounts shown in the
__________ unaudited balance sheet included or incorporated by reference in
the Prospectus or (B) for the period from _______, 2000 to a specified date
not more than five business days prior to the date of such letter, there
were any decreases, as compared with the corresponding period in the
preceding year, in net sales, income from operations, net income, except in
all instances for changes, increases or decreases that the Prospectus
discloses have occurred or which are set forth in such letter, in which case
the letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by the
Underwriters; and
(r) they have performed certain other specified procedures as a result
of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company) set forth or incorporated by reference in the Prospectus agrees
with the accounting records of the Company, excluding any questions of legal
interpretation [; and] [.]
(s) on the basis of a reading of the unaudited pro forma financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, if any, carrying out certain specified
procedures, reading of minutes and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters and
proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma financial
information, nothing came to their attention which caused them to believe
that the pro forma financial information does not comply in form in all
material respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such information.]
