EXHIBIT 1.1
XXXXXX FINANCIAL CORP.
UNDERWRITING AGREEMENT
6 1/2% NOTES DUE 2014
June 16, 2004
Xxxxxx Financial Corp.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Credit Suisse First Boston LLC and X.X. Xxxxxx Securities Inc. (the
"Representatives") are acting on behalf of the underwriters (including
ourselves) named below (such underwriters being herein called the
"Underwriters"), and we understand that Xxxxxx Financial Corp., a Delaware
corporation (the "Company"), proposes to issue and sell to the several
Underwriters $200,000,000 aggregate principal amount of its 6 1/2% Notes due
2014 (the "Offered Securities") to be issued pursuant to the provisions of an
Indenture dated as of November 15, 2000, as amended and supplemented by the
First Supplemental Indenture thereto to be dated as of the Closing Date (as so
amended and supplemented, the "Indenture"), each between the Company and the
Wilmington Trust Company, as trustee (the "Trustee").
On the basis of the representations and warranties, and subject to the
terms and conditions, set forth and incorporated by reference herein, the
Company hereby agrees to sell to the several Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Company, the respective
principal amount of Offered Securities set forth opposite their names below, at
a purchase price equal to 99.130% of the principal amount of such Offered
Securities (the "Purchase Price").
PRINCIPAL
AMOUNT OF
OFFERED
SECURITIES
UNDERWRITER TO BE PURCHASED
---------------
Credit Suisse First Boston LLC........................ $80,000,000
X. X. Xxxxxx Securities Inc .......................... 80,000,000
NBC Capital Markets Group, Inc........................ 20,000,000
Xxx-Xxxx, Xxxxxx Inc.................................. 10,000,000
Friedman, Billings, Xxxxxx & Co., Inc................. 10,000,000
------------
TOTAL $200,000,000
============
The Underwriters will pay for the Offered Securities in funds
immediately available in New York City against delivery thereof for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Offered Securities to the Underwriters
duly paid by the Company, at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 at 9:00 a.m. (New York City
time) on June 23, 2004, or at such other time on the same or such other date,
not later than June 30, 2004,
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as shall be designated in writing by the Representatives. The time and date of
such payment and delivery are hereinafter referred to as the "Closing Date."
The Offered Securities shall have the terms set forth in the Prospectus
dated December 1, 2000 (the "Base Prospectus") and the Prospectus Supplement
dated June 16, 2004 (the "Prospectus Supplement") relating to the Offered
Securities, including the following:
Initial Public Offering Price: 99.780% of the principal amount, plus
accrued and unpaid interest, if any,
from June 23, 2004
Underwriting Discounts and Commissions: 0.650% of the principal amount
Form: Book-entry
Maturity Date: July 1, 2014
Interest Rate: 6 1/2% per annum, accruing from June
23, 2004
Interest Payment Dates: January 1 and July 1 of each year,
commencing January 1, 2005
Optional Redemption: The Offered Securities will be subject
to redemption at the option of the
Company, at any time in whole or from
time to time in part, at the
redemption prices described in the
preliminary prospectus supplement
dated June 14, 2004 relating to the
Offered Securities under the caption
"Description of the Notes--Optional
Redemption"; provided that the number
of basis points to be used in
computing the redemption price as set
forth in clause (b) of the first
paragraph under such caption shall be
30 basis points.
Except as set forth below, all provisions contained in the document
dated June 16, 2004 entitled "Xxxxxx Financial Corp. Underwriting Agreement
Standard Provisions" (the "Standard Provisions"), a copy of which is attached
hereto, are herein incorporated by reference in their entirety and shall be
deemed to be a part hereof to the same extent as if such provisions had been set
forth in full herein, except that if any term defined in the Standard Provisions
is also defined herein, the definition set forth herein shall control.
[SIGNATURE PAGE FOLLOWS]
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
CREDIT SUISSE FIRST BOSTON LLC
X.X. XXXXXX SECURITIES INC.
Acting severally on behalf of themselves
and the several Underwriters named herein.
By Credit Suisse First Boston LLC
By: /s/ XXXXXX XXXXXXXX
---------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
By X.X. Xxxxxx Securities Inc.
By: /s/ XXXXXX XXXXXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
Accepted:
XXXXXX FINANCIAL CORP.
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
XXXXXX FINANCIAL CORP.
UNDERWRITING AGREEMENT STANDARD PROVISIONS
June 16, 2004
Xxxxxx Financial Corp., a Delaware corporation (the "Company"), may
enter into an underwriting agreement that provides for the sale of designated
debt securities to the several underwriters named therein. The standard
provisions set forth herein may be incorporated by reference in such
underwriting agreement (the "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as "this Agreement," and any reference to the date of this Agreement
shall mean the date of the Underwriting Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
As used in this Agreement, the term "Operative Instruments" means the
Indenture, this Agreement and the Offered Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-50416) under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
Offered Securities. Such registration statement, as amended (if applicable) at
the time it became effective, is hereinafter referred to as the "Registration
Statement"; and the Base Prospectus and the Prospectus Supplement, each in form
first used to confirm sales of the Offered Securities, are hereinafter referred
to, collectively, as the "Prospectus." The term "preliminary prospectus" means
any preliminary prospectus supplement, together with the related prospectus,
relating to the Offered Securities. As used herein, the terms "Registration
Statement," "Prospectus" and "preliminary prospectus" shall include in each case
the documents incorporated by reference therein. The terms "supplement,"
"amendment" and "amend" as used herein with respect to the Registration
Statement or the Prospectus shall include all documents deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be, that are filed subsequent to the effective date of the
Registration Statement or subsequent to the date of the Prospectus Supplement,
respectively, by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). If the Company has filed
or files an abbreviated registration statement to register additional Offered
Securities pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then each reference in this Agreement to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement.
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; 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 knowledge of the
Company, threatened by the Commission. The Company meets the requirements for
the use of Form S-3 under the Securities Act.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated or deemed to be incorporated by reference in the
Registration Statement or the Prospectus complied or will comply when so filed
in all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) the Registration Statement, as of
its effective date, as of each subsequent date that the Company filed an Annual
Report on Form 10-K (or any amendment thereto) with the Commission and as of the
date of each post-effective amendment thereto (if any), did not and, as of the
date of any subsequent amendment thereto, will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iii) the
Registration Statement, as of its effective date, complied and the Prospectus
complies and, as amended or supplemented, if applicable, the Registration
Statement and the Prospectus will comply, when filed with the Commission, in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus, as of the date
of the Prospectus Supplement, does not contain and, as amended or supplemented,
if applicable, will not contain any 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, except that the
representations and warranties set forth in this Section 1(b) do not apply (A)
to statements or omissions in the Registration Statement or the Prospectus based
upon information concerning any Underwriter furnished to the Company in writing
by such Underwriter through the Representatives expressly for use therein or (B)
to those parts of the Registration Statement that constitute the Statements of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of any trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole;
and the Company has the corporate power and authority to enter into the
Operative Instruments and to perform and comply with its obligations thereunder.
(d) Xxxxxx Savings and Loan Association, F.A., a federally chartered
savings association (the "Association"), has been duly organized and is validly
existing as a federal savings association in good standing under the laws of the
United States of America, and each other subsidiary of the Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation; each subsidiary of the Company
has the power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole;
and all of the issued and outstanding shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned of record, directly or indirectly, by the
Company, free and clear of all liens,
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encumbrances, equities or claims, except that all of the issued and outstanding
capital securities of Xxxxxx Financial Capital Trust I, a statutory business
trust created under the Business Trust Act of the State of Delaware (the
"Trust"), are not owned by the Company. For purposes of this Agreement, all
references to any "subsidiary" or "subsidiaries" of the Company shall include,
without limitation, the Trust and the Association.
(e) The Company is duly registered as a savings and loan holding company
under Section 10 of the Home Owners' Loan Act of 1933, as amended ("HOLA").
(f) All shares of the issued and outstanding capital stock of the
Company have been duly and validly authorized and issued and are fully paid and
non-assessable.
(g) The Association is a federally chartered savings association duly
organized in stock form and a member in good standing of the Federal Home Loan
Bank of San Francisco (the "FHLBSF") and the deposit accounts of the Association
are insured by the Savings Association Insurance Fund (the "SAIF") of the
Federal Deposit Insurance Corporation (the "FDIC") to the fullest extent
provided by the Federal Deposit Insurance Act, as amended (the "FDIA"), and the
rules and regulations of the FDIC thereunder.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) The Indenture has been qualified under the Trust Indenture Act; the
Indenture has been duly authorized by the Company and, at the Closing Date, will
have been duly executed and delivered by the Company and (assuming that the
Indenture has been duly executed by the Trustee) will be a valid and binding
agreement of the Company, enforceable in accordance with its terms except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(j) The Offered Securities have been duly authorized by the Company and,
on the Closing Date, will have been duly executed by the Company and, when
authenticated by the Trustee in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement, will be entitled to the benefits of the Indenture and will be
valid and binding obligations of the Company, enforceable in accordance with
their terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) the availability of equitable remedies may be limited by equitable
principles of general applicability.
(k) The Offered Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the Registration Statement and
the Prospectus.
(l) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Operative Instruments do not and will
not contravene any provision of applicable law, the articles of incorporation or
by-laws of the Company or, except for violations that individually or in the
aggregate would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and its
subsidiaries,
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taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any of its subsidiaries,
and no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the issuance or sale of the Offered
Securities or the application of the net proceeds therefrom as described in the
Prospectus Supplement under "Use of Proceeds" or for the performance by the
Company of its obligations under any Operative Instrument, (i) except such as
have been obtained or may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Offered Securities
by the Underwriters or (ii) except to the extent that the failure to so obtain
would not individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(m) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto effected
subsequent to the date of the Underwriting Agreement).
(n) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus or any of the documents incorporated or
deemed to be incorporated by reference therein that are not so described or of
any statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or any of the
documents incorporated or deemed to be incorporated by reference therein or to
be filed or incorporated by reference as exhibits to the Registration Statement
or any of the documents incorporated or deemed to be incorporated by reference
therein that are not described, filed or incorporated as required.
(o) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(p) The Company is not and, after giving effect to the issuance and sale
of the Offered Securities and the application of the proceeds thereof as
described in the Prospectus, will not be, an "investment company" as such term
is defined under the Investment Company Act of 1940, as amended.
(q) The Company and each of its subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any such subsidiary has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
material adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken as a
whole.
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(r) There are no contracts, agreements or understandings between the
Company and any other 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 or to require the Company to include such
securities with the Offered Securities registered pursuant to the Registration
Statement.
(s) The financial statements and the related notes thereto included or
incorporated or deemed to be incorporated by reference in the Registration
Statement or the Prospectus or any amendment or supplement to the Registration
Statement or the Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as applicable, and
present fairly the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the consolidated results of their
operations and the consolidated changes in their cash flows for the periods
specified; such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby, and the supporting schedules included or
incorporated by reference in the Registration Statement or any amendment or
supplement thereto present fairly the information required to be stated therein;
and the other financial information included or incorporated by reference in the
Registration Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus has been derived from the accounting
records of the Company and its subsidiaries and presents fairly the information
shown thereby.
(t) There is and has been no failure on the part of the Company or any
of the Company's directors or officers, in their capacities as such, to comply
with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith, including Section 402 related
to loans and Sections 302 and 906 related to certifications.
(u) The Offered Securities rank senior in right of payment to the
outstanding 10% junior subordinated debentures of the Company.
2. Public Offering. The Company is advised by the Representatives that
the Underwriters propose to make a public offering of their respective portions
of the Offered Securities as soon after this Agreement has been entered into as
in the Representatives' judgment is advisable. The terms of the public offering
of the Offered Securities are set forth in the Underwriting Agreement.
3. Purchase and Delivery. Except as otherwise provided in this Section
3, payment for the Offered Securities shall be made to the Company, in
immediately available funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Representatives for the respective accounts of
the several Underwriters of the Offered Securities registered in such names and
in such denominations or amounts, as the case may be, as the Representatives
shall request in writing not less than one full business day prior to the date
of delivery, with any transfer taxes payable in connection with the transfer of
the Offered Securities to the Underwriters duly paid by the Company.
4. Conditions to Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the following conditions:
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(a) If a post-effective amendment to the Registration Statement is
required to be filed under the Securities Act, such post-effective amendment
shall have become effective, and the Representatives shall have received notice
thereof, not later than 5:00 p.m., New York City time, on the date of the
Underwriting Agreement; if applicable, the Rule 462 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; no order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceeding for such purpose shall be pending before or threatened by the
Commission; the Prospectus shall have been timely filed with the Commission
under the Securities Act and in accordance with Section 5(b) hereof; and all
requests by the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Representatives.
(b) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded the Offered Securities or
any other securities of the Company or any of its subsidiaries by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of the Underwriting Agreement) that, in the
judgment of the Representatives, is material and adverse and that makes
it, in the judgment of the Representatives, impracticable or inadvisable
to proceed with the offering, sale or delivery of the Offered Securities
on the terms and in the manner contemplated in the Prospectus; and
(c) the Representatives shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company,
(i) to the effect set forth in Section 4(b)(i) hereof; and
(ii) to the effect that the representations and warranties of
the Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(d) The Representatives shall have received on the Closing Date an
opinion of Manatt, Xxxxxx & Xxxxxxxx, LLP, counsel to the Company, dated the
Closing Date, to the effect set forth in Exhibit A.
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(e) The Underwriters shall have received on the Closing Date an opinion
of Xxxx X. Xxxxxxx, Esq., Executive Vice President, General Counsel and
Corporate Secretary of the Company, dated the Closing Date, to the effect set
forth in Exhibit B.
(f) The Representatives shall have received on the Closing Date an
opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, dated
the Closing Date, with respect to the validity of the Indenture and the Offered
Securities and such other matters as the Underwriters may reasonably request.
The opinions described in Sections 4(d) and 4(e) hereof shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(g) The Representatives shall have received on the date of this
Agreement and on the Closing Date a letter, dated the date of this Agreement and
the Closing Date, respectively, in form and substance satisfactory to the
Representatives, from KPMG LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into the
Prospectus; provided that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date of this Agreement.
5. Covenants of the Company. In further consideration of the agreements
of the Underwriters contained herein, the Company, covenants with each
Underwriter as follows:
(a) To furnish the Representatives, without charge, 5 signed copies of
the Registration Statement (including exhibits and, upon request, documents
incorporated therein by reference) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto but, upon
request, including documents incorporated therein by reference) and to furnish
to the Representatives in New York City, without charge, prior to 10:00 a.m. New
York City time on the business day next succeeding the date of the Underwriting
Agreement and during the period mentioned in Section 5(c) hereof, as many copies
of the Prospectus and any supplements and amendments thereto or to the
Registration Statement as the Representatives may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the
Representatives a copy of each such proposed amendment or supplement and not to
file or use any such proposed amendment or supplement to which the
Representatives reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the
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Underwriters, it is necessary to amend or supplement the Prospectus to comply
with law, forthwith to prepare and furnish, at the Company's own expense, to the
Underwriters and to the dealers (whose names and addresses the Representatives
will furnish to the Company) to which Offered Securities may have been sold by
the Representatives on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as so amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions in the United States
as the Representatives shall reasonably request; provided, however, the Company
shall not be required to (i) qualify as a foreign corporation in any such
jurisdiction where it would not otherwise be required to so qualify or (ii)
consent to service of process under the laws of such jurisdiction.
(e) To make generally available to the security holders of the Company
and to the Representatives as soon as practicable an earnings statement covering
a twelve-month period beginning on the first day of the first full fiscal
quarter after the date of the Underwriting Agreement, which earning statement
shall satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder. If such fiscal quarter is
the last fiscal quarter of the Company's fiscal year, such earnings statement
shall be made available not later than 60 days after the close of the period
covered thereby and in all other cases shall be made available not later than 40
days after the close of the period covered thereby. The Company shall have
complied with this requirement if it shall have filed all reports required under
the Exchange Act on a timely basis.
(f) During the period beginning on and including the date of the
Underwriting Agreement and continuing to and including the Closing Date, not to
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly or indirectly,
any debt securities of the Company or any debt securities, capital securities or
trust preferred securities of any subsidiary of the Company, or any securities
convertible into or exchangeable or exercisable for any debt securities of the
Company or any debt securities, capital securities or trust preferred securities
of any subsidiary of the Company or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of any debt securities of the Company or any debt
securities, capital securities or trust preferred securities of any subsidiary
of the Company, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of securities of the Company or any other
entity, any other securities, in cash or otherwise, in each case, without the
prior written consent of the Representatives on behalf of the Underwriters;
provided that the restrictions set forth in this paragraph shall not apply to
the issuance of Offered Securities to the Underwriters.
(g) Whether or not any sale of Offered Securities is consummated, the
Company will pay or cause to be paid all expenses incident to the performance of
the obligations of the Company under this Agreement, including: (i) the
preparation and filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto, (ii) the preparation,
8
issuance, transfer and delivery of the Offered Securities, including any
transfer or other taxes payable thereon, (iii) the fees and disbursements of the
Company's counsel and accountants, (iv) the qualification of the Offered
Securities under securities or Blue Sky laws in accordance with the provisions
of Section 5(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith, (v) the
reasonable fees and disbursements of counsel to the Underwriters (not to exceed
$20,000) and all filing fees incurred in connection with the review and
qualification of the offering of the Offered Securities by the National
Association of Securities Dealers, Inc., if any, (vi) the printing and delivery
to the Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of the Prospectus and any
amendments or supplements thereto, (vii) any fees charged by rating agencies for
the rating of the Offered Securities, (viii) all fees and expenses of the
Trustee, including fees and disbursements of its counsel, and (ix) all other
costs and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section 6. It is
understood, however, that except as provided in this Section, Section 6 entitled
"Indemnity and Contribution," and the last paragraph of Section 8 below, the
Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of any of
the Offered Securities by them and any advertising expenses connected with any
offers they may make.
6. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who signed the
Registration Statement and each person, if any, who controls or the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company by such Underwriter in writing through the
Representatives expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
9
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 6(a) or 6(b), such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Representatives, in
the case of parties indemnified pursuant to Section 6(b), and by the Company, in
the case of parties indemnified pursuant to Section 6(a). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the immediately preceding sentence, if
at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, such indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 40
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 20 days prior to the date of such settlement and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement, provided,
however, that an indemnifying party shall not be liable for any such settlement
effected without its consent if such indemnifying party (1) reimburses such
indemnified party in accordance with such request at least two days prior to the
date of settlement to the extent it determines in good faith such fees and
expenses of counsel to be reasonable and (2) provides written notice within 10
days after receipt of the request for reimbursement to the indemnified party
substantiating the unpaid balance to be unreasonable. No indemnifying party
shall, without the prior written consent of the indemnified party, 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.
(d) To the extent the indemnification provided for in Section 6(a) or
6(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or
10
liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the Offered
Securities or (ii) if the allocation provided by clause 6(d)(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 6(d)(i) above but also the
relative fault of the Company, on the one hand, and of the Underwriters, on the
other hand, in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other hand, in connection with the offering of the
Offered Securities shall be deemed to be in the same respective proportions as
the net proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company, on the one
hand, and of the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 6 are several in proportion
to the respective principal amounts of Offered Securities purchased by each of
such Underwriters and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 were 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 account of the
equitable considerations referred to in Section 6(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
6 and the representations, warranties and other statements of the Company set
forth in this Agreement will remain operative and in full force and effect,
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any
11
Underwriter or by or on behalf of the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of
the Offered Securities.
7. Termination. This Agreement shall be subject to termination by notice
given by the Representatives to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to delivery of the Offered
Securities to the Underwriters on the Closing Date (i) trading generally shall
have been suspended or materially limited on or by, as the case may be, any of
the New York Stock Exchange, the American Stock Exchange or the National
Association of Securities Dealers, Inc., (ii) trading of any securities of the
Company or any of its subsidiaries shall have been suspended on any exchange or
in any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representatives, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (a)(iv), such
event, singly or together with any other such event, makes it, in the judgment
of the Representatives, impracticable or inadvisable to proceed with the
offering, sale or delivery of the Offered Securities on the terms and in the
manner contemplated in the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Offered Securities that it has
or they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of the Offered Securities to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Offered Securities set forth opposite
their respective names in the Underwriting Agreement bears to the aggregate
principal amount of Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of Offered Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 8 by an amount in excess of one-ninth of such
principal amount of Offered Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Offered Securities and the aggregate principal amount of
Offered Securities with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Offered Securities to be
purchased, and arrangements satisfactory to the Representatives and the Company
for the purchase of such Offered Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case that does not
result in termination, either the Representatives or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
12
If (i) this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement or (ii) for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company agrees to reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement and the offering of the Offered Securities, but the Company shall then
be under no further liability to any Underwriter except as provided in Sections
5(g) and 6 hereof.
9. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
10. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Underwriters
shall be given to the Representatives at X.X. Xxxxxx Securities Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: High Grade Syndicate Desk - 8th
Floor, Facsimile: (000) 000-0000 and Credit Suisse First Boston LLC, 00 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Transaction Advisory Group,
Facsimile: (000) 000-0000. Notices to the Company shall be given to it at 0000
Xxxxxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx, 00000, Attention: General Counsel,
Facsimile: (000) 000-0000, or if different, to the address set forth in the
Underwriting Agreement.
13
EXHIBIT A
Opinion of Manatt, Xxxxxx & Xxxxxxxx LLP
(a) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole;
and the Company has the corporate power and authority to enter into the
Operative Instruments and to perform and comply with its obligations thereunder.
For purposes of this opinion, all references to any "subsidiary" or
"subsidiaries" of the Company shall include, without limitation, the Trust and
the Association.
(b) The Association has been duly organized and is validly existing as a
federal savings association in good standing under the laws of the United States
of America and has the power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and all of the issued and outstanding shares of
capital stock of the Association have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned of record, directly or
indirectly, by the Company, free and clear, to the best of our knowledge, of all
liens, encumbrances, equities or claims.
(c) The Company is duly registered as a savings and loan holding company
under Section 10 of the HOLA.
(d) The Association is a federally chartered savings association duly
organized in stock form and is a member of the FHLBSF and the deposit accounts
of the Association are insured by the SAIF to the fullest extent provided by the
FDIA and the rules and regulations of the FDIC thereunder.
(e) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company. (Such opinion shall define the Underwriting Agreement
to include the Standard Provisions.)
(f) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
A-1
(g) The Offered Securities have been duly authorized and executed by the
Company and, when authenticated by the Trustee in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters in accordance
with the provisions of the Underwriting Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as (i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Operative Instruments do not and will
not contravene any provision of Applicable Law or the certificate of
incorporation or by-laws of the Company or, to the best of our knowledge, any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or, to the best of our knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
of its subsidiaries, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the issuance
or sale of the Offered Securities or the application of the net proceeds
therefrom as described in the Prospectus Supplement under "Use of Proceeds" or
for the performance by the Company of its obligations under any Operative
Instruments, except such as (i) have been obtained under the Securities Act and
the Trust Indenture Act or (ii) may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Offered
Securities by the Underwriters. As used in this paragraph, the term "Applicable
Law" means (x) the Delaware General Corporation Law and the federal securities
and banking laws of the United States of America and (y) such other laws of the
State of California and the State of New York and such other federal laws of the
United States of America which (solely in the case of this clause (y)) in the
experience of such counsel are normally applicable to transactions of the type
contemplated by this Agreement; provided that the term "Applicable Law" shall
not include the securities or Blue Sky laws of the various states.
(i) The statements (i) in the Prospectus under the captions "Prospectus
Supplement Summary--The Offering," "Risk Factors--We are a holding company and
our ability to service our debt, including the notes depends upon cash provided
to us by our primary subsidiary, the Bank," "Risk Factors--The notes will be
effectively subordinated to the liabilities of our subsidiaries and to our
secured indebtedness," "Description of the Notes," "Description of the Senior
and Subordinated Debt Securities," and "Certain United States Federal Income Tax
Consequences," (ii) in the Registration Statement in Item 15, and (iii) in the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2003
under the captions "Business--Regulation," and "Business--Taxation," in each
case insofar as such statements constitute summaries of the legal matters,
Operative Instruments and other documents and proceedings referred to therein,
fairly summarize the matters referred to therein in all material respects.
(j) The Company is not and, after giving effect to the issuance and sale
of the Offered Securities and the application of the proceeds thereof as
described in the Prospectus, the Company will not be, an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
A-2
(k) The Registration Statement and the Prospectus (except for financial
statements and schedules and other financial and statistical data included or
incorporated by reference therein and any trustee's statement of eligibility on
Form T-1 (a "Form T-1"), as to which we have not been called upon to express any
opinion), as of their respective effective or issue dates, as the case may be,
each complied as to form in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
(l) Each document filed pursuant to the Exchange Act and incorporated or
deemed to be incorporated by reference in the Registration Statement or the
Prospectus (except for financial statements and schedules and other financial
and statistical data included or incorporated by reference therein, as to which
we have not been called upon to express an opinion) complied when so filed as to
form in all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder.
In addition, Manatt, Xxxxxx & Xxxxxxxx LLP shall state that they have
participated in conferences with officers and other representatives of the
Company, representatives of the independent accountants of the Company, and
representatives of the Underwriters and counsel to the Underwriters at which the
contents of the Registration Statement and the Prospectus (in each case
including the documents incorporated or deemed to be incorporated by reference
therein pursuant to Item 12 of Form S-3) and related matters were discussed and,
although Manatt, Xxxxxx & Xxxxxxxx LLP is not passing upon, and does not assume
any responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and has made no
independent check or verification thereof, except as stated in paragraph (i)
above, on the basis of the foregoing, nothing has come to the attention of
Manatt, Xxxxxx & Xxxxxxxx LLP that has led such counsel to believe that the
Registration Statement, at the time it became effective or at the time that the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2003
was filed with the Commission, 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 or that the Prospectus, as of the
date of the Prospectus Supplement or as of the date of such opinion, contained
or contains an untrue statement of a material fact or omitted or omits 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, except that
such counsel need express no belief with respect to the financial statements and
schedules and other financial and statistical data contained in or incorporated
or deemed to be incorporated by reference in the Registration Statement and the
Prospectus or any Form T-1.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-3
EXHIBIT B
Opinion of Xxxx X. Xxxxxxx, Esq.
(a) Each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has the power and authority to own its
property and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; and all of the issued and
outstanding shares of capital stock, or other equity securities, as the case may
be, of each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for the capital securities
of the Trust) are owned of record, directly or indirectly, by the Company, free
and clear, to the best of my knowledge, of all liens, encumbrances, equities or
claims;
(b) after due inquiry, I do not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus or any of the documents incorporated or
deemed to be incorporated by reference therein that are not so described or of
any statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or any of the
documents incorporated or deemed to be incorporated by reference therein or to
be filed or incorporated by reference as exhibits to the Registration Statement
or any of the documents incorporated or deemed to be incorporated by reference
therein that are not described or filed as required;
(c) the Company and its subsidiaries (A) are in compliance with all
applicable laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws"), (B) have received all permits, licenses
or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (C) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole;
(d) all issued and outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and
(e) the statements in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 2003 under the caption "Item 3.--Legal
Proceedings" and in the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2004 under the caption "Item 1.--Legal Proceedings," in each
case, insofar as such statements constitute
B-1
summaries of the legal matters and other documents and proceedings referred to
therein, fairly summarize the matters referred to therein in all material
respects.
In addition, such counsel shall state that he has participated in
conferences with officers and other representatives of the Company,
representatives of the independent accountants of the Company, and
representatives of the Underwriters and counsel to the Underwriters at which the
contents of the Registration Statement and the Prospectus (in each case
including the documents incorporated and deemed to be incorporated by reference
therein pursuant to Item 12 of Form S-3) and related matters were discussed and,
although he is not passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and has made no independent check or
verification thereof (except as set forth in paragraph (e) above), on the basis
of the foregoing, nothing has come to his attention that has led him to believe
that the Registration Statement, at the time it became effective or at the time
that the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 2003 was filed with the Commission, 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 or that the
Prospectus, as of the date of the Prospectus Supplement or as of the date of
such opinion, contained or contains an untrue statement of a material fact or
omitted or omits 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, except that such counsel need express no belief with
respect to the financial statements and schedules and other financial and
statistical data contained in or incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus or any trustee's
statement of eligibility on Form T-1.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent he deems proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
B-2
