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XXXXX CAPITAL
__________________
8.625% Trust Preferred Securities
guaranteed by
XXXXX NATIONAL CORPORATION
PURCHASE AGREEMENT
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Dated December 10, 1996
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XXXXX CAPITAL
_________________
8.625% Trust Preferred Securities
PURCHASE AGREEMENT
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December 10, 1996
XXXXXX, READ & CO. INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
c/x Xxxxxx, Read & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx Capital (the "Issuer"), a statutory business trust formed under
the Business Trust Act (the "Delaware Act") of the State of Delaware (Chapter
38, Title 12, of the Delaware Code, 12 Del. C. Section 3801 et seq.), proposes
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to issue and sell to Xxxxxx, Read & Co. Inc. ("Xxxxxx, Read") and Friedman,
Billings, Xxxxxx & Co., Inc. and each of the other Initial Purchasers named in
Schedule A hereto (collectively, the "Initial Purchasers," which term shall also
include any initial purchaser substituted as hereinafter provided in Section 9
hereof), for whom you are acting as representatives (the "Representatives"), an
aggregate of 150,000 8.625% Trust Preferred Securities, Liquidation Amount
$1,000 per Preferred Security (the "Preferred Securities"). The Preferred
Securities are more fully described in the Offering Memorandum referred to
below.
The Preferred Securities will be guaranteed by Xxxxx National
Corporation (the "Company"), to the extent set forth in the Offering Memorandum
(as defined below), with respect to distributions and amounts payable upon
liquidation or redemption (the "Guarantee"), pursuant to the Guarantee Agreement
(the "Guarantee Agreement"), to be dated as of the Closing Time (as defined
below), executed and delivered by the Company and The Bank of New York (the
"Guarantee Trustee"), a New York banking corporation, not in its individual
capacity but solely as trustee, for the benefit of the holders from time to time
of the Preferred Securities. The proceeds from the sale of the Preferred
Securities to the Initial Purchasers will be aggregated with the entire proceeds
from the sale by the Issuer to the Company of the common securities of the
Issuer (the "Common Securities") and will be used by the Issuer to purchase the
8.625% Junior Subordinated Deferrable Interest Debentures due 2026 (the
"Debentures") issued by the Company. The Preferred Securities and the Common
Securities will be issued pursuant to the Amended and Restated Trust Agreement
of the Issuer, to be dated as of the Closing Time (the "Trust Agreement"), among
the Company, as
Depositor, the trustees named therein (the "Trustees") and the holders from time
to time of the Preferred Securities and the Common Securities, which represent
undivided beneficial interests in the assets of the Issuer. The Debentures will
be issued pursuant to a Junior Subordinated Indenture, to be dated as of the
Closing Time (the "Indenture"), between the Company and The Bank of New York, as
trustee (the "Indenture Trustee"). All expenses of the Issuer will be paid by
the Company as set forth in the Expense Agreement, to be dated as of the Closing
Time (the "Expense Agreement"). The Preferred Securities, the Guarantee and the
Debentures are collectively referred to herein as the "Securities". This
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the
Expense Agreement and the Registration Rights Agreement (as defined below) are
referred to collectively as the "Operative Documents". Capitalized terms used
herein, without definition have the respective meanings specified in the
Offering Memorandum.
The Preferred Securities will be offered and sold to the Initial
Purchasers without registration under the Securities Act of 1933, as amended
(the "Securities Act"), in reliance upon exemptions from the registration
requirements of the Securities Act. In connection with the sale of the Preferred
Securities, the Issuer and the Company have prepared a preliminary offering
memorandum dated November 22, 1996 (the "Preliminary Offering Memorandum") and a
final offering memorandum dated the date hereof (such final offering memorandum,
in the form first furnished to the Initial Purchasers for use in connection with
the offering and sale of the Preferred Securities, or if such form is not so
used, in the form subsequently furnished for such use, the "Offering
Memorandum"), each setting forth certain information concerning the Issuer, the
Company, the Operative Documents and the Securities. Subject to the provisions
of Section 4(c) hereof, the Issuer and the Company hereby confirm that they
have authorized the use of the Preliminary Offering Memorandum and the Offering
Memorandum in connection with the offer and resale of the Preferred Securities
by the Initial Purchasers. Unless stated to the contrary, all references herein
to the Offering Memorandum are to the Offering Memorandum at the date hereof
(the "Execution Time") and are not meant to include any amendment or supplement
thereto subsequent to the Execution Time.
The Issuer and the Company understand that the Initial Purchasers
propose to make an offering of the Preferred Securities only on the terms,
subject to the conditions and in the manner set forth in the Offering Memorandum
and Section 3 hereof, as soon as the Initial Purchasers deem advisable after
this Agreement has been executed and delivered.
The Initial Purchasers and other holders of Securities (including
subsequent permitted transferees) will be entitled to the benefits of the
registration rights agreement, to be dated as of the Closing Time (the
"Registration Rights Agreement"), among the Issuer, the Company and the Initial
Purchasers, in the form attached hereto as Exhibit A. Pursuant to the
Registration Rights Agreement, the Issuer and the Company will agree to file
with the Securities and Exchange Commission (the "Commission") upon the terms
and conditions set forth therein a shelf registration statement pursuant to Rule
415 under the Securities Act in respect of (i) the Preferred Securities, (ii)
the Guarantee and (iii) the Debentures, and to use their reasonable best efforts
to cause such shelf registration statement to be declared effective.
All references in this Agreement to financial statements and schedules
and other information that is "contained", "included", "deemed included" or
"stated" in the Offering Memorandum (and all other references of like import)
shall be deemed to include all
such financial statements and schedules and other information that are, or are
deemed to be, incorporated by reference in the Offering Memorandum; and all
references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to include the filing of any document under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that is, or is
deemed to be, incorporated by reference in the Offering Memorandum.
Section 1. Representations and Warranties. The Issuer and the
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Company, jointly and severally, represent and warrant to and agree with the
Initial Purchasers that:
(i) As of their respective dates, none of the Offering
Memorandum or any amendment or supplement thereto, and as of the Closing
Time, the Offering Memorandum, as amended or supplemented to such time,
contained or will contain an untrue statement of a material fact or omitted
or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that neither the Company nor the
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Issuer makes any warranty or representation with respect to any statement
or omission made in the Offering Memorandum or any amendment or supplement
thereto in reliance upon and in conformity with information furnished in
writing by or on behalf of any Initial Purchaser to the Company expressly
for use therein. The documents incorporated by reference or deemed to be
incorporated by reference in the Offering Memorandum (the "Exchange Act
Reports"), when they became effective or were last amended or filed with
the Commission, as the case may be, conformed in all material respects to
the requirements of the Exchange Act as applicable, and the rules and
regulations (the "Rules and Regulations") of the Commission, and none of
such documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and any further documents so filed and incorporated
by reference or deemed to be incorporated by reference in the Offering
Memorandum, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Securities Act and the Exchange Act and the Rules
and Regulations, as applicable, and shall not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(ii) Each of the Preferred Securities, the Guarantee and the
Debentures satisfy the eligibility requirements of Rule 144A(d)(3) of the
Rules and Regulations.
(iii) None of the Issuer, the Company, any of their respective
affiliates (as such term is defined in Rule 501(b) of Regulation D of the
Rules and Regulations ("Regulation D")), or any person acting on behalf of
the foregoing (other than an Initial Purchaser) has, directly or
indirectly, made or will, directly or indirectly, make offers or sales of
any security, or solicited offers to buy any security, under
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circumstances that would require the registration of the Securities under the
Securities Act.
(iv) None of the Issuer, the Company or any of their respective
affiliates (as such term is defined in Rule 501(b) of Regulation D) or any
person (other than an Initial Purchaser) acting on the behalf of the foregoing
has engaged or will engage, in connection with the offering of the Securities or
any security of the same class or series as the Securities, (A) in any form of
general solicitation or general advertising within the meaning of Rule 502(c)
of Regulation D or (B) in any directed selling efforts within the meaning of
Rule 902 of the Rules and Regulations in the United States in connection with
the Securities being offered and sold pursuant to Regulation S of the Rules and
Regulations, and each of the foregoing has complied with the offering
restrictions requirement of Regulation S of the Rules and Regulations. The
Company and the Issuer have not entered and will not enter into any
contractual arrangement with respect to the distribution of the Securities
except for this Agreement and the Registration Rights Agreement.
(v) Assuming the accuracy of the representations and warranties and
compliance with the agreements of the Initial Purchasers in Section 3 hereof, it
is not necessary in connection with the offer, sale and delivery of the
Preferred Securities to the Initial Purchasers, or in connection with the
initial resale of the Preferred Securities by the Initial Purchasers in
accordance with this Agreement, to register the Preferred Securities under the
Securities Act or to qualify the Indenture, the Guarantee or the Trust Agreement
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(vi) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware 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 each of the Operative
Documents. Each subsidiary of the Company that is listed on Schedule B hereto
(such subsidiaries collectively called the "Material Subsidiaries") is a
corporation or national banking association 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 as described in the Offering Memorandum.
(vii) The Issuer has been duly formed and is validly existing in good
standing as a business trust under the Delaware Act with the power and authority
to own property and to conduct its business as described in the Offering
Memorandum.
(viii) The Company and the Material Subsidiaries are duly qualified in
or licensed to transact business by, and are in good standing 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
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expected to have a material adverse effect on the financial condition,
properties, assets, business, results of operations or prospects of the
Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(ix) All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable. All of the outstanding shares of capital stock of each
Material Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable and are owned, directly or indirectly, by the
Company free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind.
(x) The Company had, at the date indicated in the Offering
Memorandum, a duly authorized, issued and outstanding capitalization as set
forth in the Offering Memorandum under the caption "Capitalization".
(xi) This Agreement has been duly authorized, executed and delivered
by each of the Company and the Issuer and is a legal, valid and binding
agreement of each of the Company and the Issuer enforceable in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws of general applicability relating to or affecting creditors'
rights and general equitable principles (the "Enforceability Exceptions")
and except to the extent that the indemnification provisions of Section 7
hereof may be limited by federal or state securities laws and public policy
considerations in respect thereof.
(xii) The Registration Rights Agreement has been duly authorized by
each of the Company and the Issuer and, at the Closing Time, will have been
executed and delivered by each of the Issuer and the Company and upon such
execution by each of the Issuer and the Company (assuming the due
authorization, execution and delivery thereof by the other parties thereto)
the Registration Rights Agreement will constitute a valid and legally
binding obligation of each of the Issuer and the Company enforceable
against each of the Issuer and the Company in accordance with the terms
thereof, except as enforcement thereof may be limited by the Enforceability
Exceptions, and except as any rights to indemnity may be limited by federal
and state securities laws and public policy considerations, and will
conform in all material respects to all statements relating thereto in the
Offering Memorandum.
(xiii) The Trust Agreement has been duly authorized by the Company
and, at the Closing Time, will have been executed and delivered by the
Company and the Administrative Trustees (as defined in the Trust
Agreement), and assuming the due authorization, execution and delivery of
the Trust Agreement by the Delaware Trustee and the Property Trustee (each
as defined in the Trust Agreement), the Trust Agreement will, at the
Closing Time, constitute a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by the Enforceability
Exceptions, and will
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conform in all material respects to all statements relating thereto in the
Offering Memorandum.
(xiv) The Guarantee Agreement has been duly authorized by the Company
and when executed and delivered by the Company, and assuming due
authorization, execution and delivery thereof by The Bank of New York, not
in its individual capacity but solely as trustee, will constitute a valid
and legally binding obligation of the Company enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by the Enforceability Exceptions, and will conform in all material
respects to all statements relating thereto in the Offering Memorandum.
(xv) The Expense Agreement has been duly authorized by the Company
and when executed and delivered by the Company, and assuming due
authorization, execution and delivery thereof by the Issuer, will
constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by the Enforceability Exceptions, and
will conform in all material respects to all statements relating thereto in
the Offering Memorandum.
(xvi) The Preferred Securities have been duly authorized by the
Issuer and, when executed and authenticated in the manner provided for in
the Trust Agreement and issued and delivered pursuant to this Agreement
against payment of the consideration set forth herein, will be validly
issued and (subject to the terms of the Trust Agreement) fully paid and
nonassessable undivided beneficial interests in the assets of the Issuer,
will be entitled to the benefits of the Trust Agreement (and to the extent
set forth therein the Indenture) and will conform in all material respects
to all statements relating thereto in the Offering Memorandum; the issuance
of the Preferred Securities is not subject to preemptive or other similar
rights; and holders of Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit incorporated under the General Corporation Law of
the State of Delaware.
(xvii) The Common Securities have been duly authorized by the Issuer
and, when executed, issued and delivered by the Issuer to the Company
against payment therefor as described in the Offering Memorandum, will be
validly issued and (subject to the terms of the Trust Agreement) fully paid
and nonassessable undivided beneficial interests in the assets of the
Issuer, will be entitled to the benefits of the Trust Agreement and will
conform in all material respects to the description thereof in the Offering
Memorandum; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time, all of the
issued and outstanding Common Securities of the Issuer will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
7
(xviii) The Indenture has been duly authorized by the Company and
when executed and delivered by the Company, and assuming due authorization,
execution and delivery thereof by the Indenture Trustee, will constitute a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by the Enforceability Exceptions, and will conform in all material
respects to all statements relating thereto in the Offering Memorandum.
(xix) The Debentures have been duly authorized by the Company and,
when executed, authenticated, issued and delivered in the manner provided
for in the Indenture, 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, and will conform
in all material respects to all statements relating thereto in the Offering
Memorandum.
(xx) Except as disclosed in the Offering Memorandum, upon payment
by the Issuer of the purchase price therefor, the Trustee will, on the
Closing Date, have good and valid title to all such Debentures, free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by
the Issuer.
(xxi) Xxxxxx Xxxxxxxx LLP ("Xxxxxx Xxxxxxxx"), who is reporting
upon the financial statements incorporated or deemed incorporated by
reference in the Offering Memorandum, 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 in the Offering Memorandum.
(xxii) The consolidated financial statements of the Company
incorporated or deemed incorporated by reference in the Offering Memorandum
present fairly the consolidated financial position of the Company as of the
dates indicated and the consolidated results of operations and changes in
stockholders' equity of the Company and its subsidiaries for the periods
specified. The consolidated financial statements of the Company
incorporated or deemed incorporated by reference in the Offering Memorandum
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 or deemed incorporated
by reference in the Offering Memorandum present fairly in accordance with
GAAP the information required to be stated therein. The selected
consolidated financial data and the summary financial information of the
Company included in the Offering Memorandum present fairly the information
shown therein and have been complied on a basis consistent with that of the
consolidated audited financial statements of the Company (to the extent so
indicated) incorporated or deemed incorporated by reference in the Offering
Memorandum.
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(xxiii) Since the respective dates as of which information is given
in the Offering Memorandum, except as may be otherwise stated therein,
there has not been (A) any material adverse change in the financial
condition, properties, assets, business, results of operations or prospects
of the Company and its subsidiaries taken as a whole, (B) any transaction
entered into by the Company or any of its subsidiaries, or into which the
Company or any of its subsidiaries intends to enter, which is material to
the Company and its subsidiaries taken as a whole, or (C) any obligation,
contingent or otherwise incurred, directly or indirectly, by the Company or
any of its subsidiaries which is material to the Company and its
subsidiaries taken as a whole.
(xxiv) None of the Company, any Material Subsidiary or the Issuer
(A) is in breach of, or in default in (nor has any event occurred which
with notice, lapse of time, or both, would constitute a breach of, or
default in) the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, bank loan or credit agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound or to which
any of its properties may be subject (collectively, the "Agreements and
Instruments"), except for any such breaches or defaults which, individually
or in the aggregate with all other breaches or defaults, would not have a
Material Adverse Effect or have an adverse effect on the legality, validity
or enforceability of any of the Operative Documents or (B) is in breach of,
or in default under (nor has any event occurred which with notice,lapse of
time, or both would constitute a breach of, or default under) its
respective charter or by-laws. The execution, delivery and performance of
this Agreement and the Registration Rights Agreement by the Company and the
Issuer, the issuance, sale and delivery of the Preferred Securities and the
Common Securities by the Issuer, the issuance, sale and delivery of the
Debentures by the Company, the execution, delivery and performance by the
Company of this Agreement, the Trust Agreement, the Indenture, the
Guarantee Agreement, the Expense Agreement and the Registration Rights
Agreement, the consummation by the Company and the Issuer of the
transactions contemplated hereby and thereby, compliance by the Company and
the Issuer with the terms of the forgoing and the application of the
proceeds from the sale of the Preferred Securities as contemplated by the
Offering Memorandum (A) have been duly authorized by all necessary action
on the part of the Company and the Issuer, (B) do not and will not conflict
with or result in any breach of or constitute a default under (nor
constitute any event which with notice, lapse of time, or both would
constitute a breach of, or default under) any provision of the charter or
by-laws of the Company or any Material Subsidiary or any provision of the
Trust Agreement, (C) do not and will not conflict with or result in any
breach of or constitute a default under (nor constitute any event which
with notice, lapse of time, or both would constitute a breach of, or
default under) any of the terms or provisions of, or give rise to any right
to accelerate the maturity or require the prepayment of any indebtedness
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, any Material
Subsidiary or the Issuer under any such Agreement or Instrument (except,
with respect to this clause (C), for such conflicts, breaches, defaults,
accelerations, prepayments or liens, charges or encumbrances which,
individually or in the aggregate
9
with all other conflicts, breaches, defaults, accelerations, prepayments or
liens, charges or encumbrances, would not have a Material Adverse Effect or
have an adverse effect on the legality, validity or enforceability if any
of the Operative Documents) and (D) do not and will not conflict with, or
result in any breach of or constitute a default under (nor constitute any
event which with notice, lapse of time, or both would constitute a breach
of, or default under), any federal, state, local or English law, regulation
or rule or any decree, judgement or order applicable to the Company, any
Material Subsidiary or the Issuer.
(xxv) No approval, authorization, consent or order of or filing with
any national, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the initial
offering, issuance or sale of the Securities by the Issuer, and the
Guarantee and the Debentures by the Company, or is required for the valid
authorization, execution, delivery and performance by the Company and the
Issuer of their respective obligations under the Operative Documents or the
consummation by the Company and the Issuer of the transactions contemplated
therein, except for such authorizations as may be required by the
securities or "blue sky" laws of the various states in connection with the
offer and sale of the Securities or by the federal and state securities
laws in connection with the registration obligations under the Registration
Rights Agreement.
(xxvi) Except as disclosed in the Offering Memorandum, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company, its subsidiaries
or the Issuer that, individually or in the aggregate with all other
actions, suits or proceedings, is reasonably expected by the Company to
materially and adversely affect the consummation of the transactions
contemplated by this Agreement. The aggregate of all pending legal or
governmental proceedings to which any of the Company, its subsidiaries and
the Issuer are party that are not described in the Offering Memorandum,
including ordinary routine litigation incidental to the business of any of
the Company, its subsidiaries and the Issuer, as the case may be, is not
reasonably expected by the Company to have a Material Adverse Effect.
(xxvii) Neither the Issuer nor the Company is, or after giving effect
to the consummation of the transactions contemplated herein, will be, and
neither the Company nor the Issuer is 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 (the "1940
Act").
(xxviii) The Preferred Securities have been designed PORTAL eligible
securities in accordance with the rules and regulations of the National
Association of Securities Dealers, Inc. ("NASD").
(xxix) Other than pursuant to this Agreement or as disclosed in the
Offering Memorandum under the caption "Plan of Distribution", there are no
contracts,
10
agreements or understandings between either the Issuer or the Company and
any person that give rise to a valid claim against the Issuer, the Company
or any Initial Purchaser for a brokerage commission, finder's fee or other
like payment.
(xxx) Except as set forth in the Registration Rights Agreement or as
described in the Offering Memorandum, 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 securities to be covered by the shelf registration statement
referred to in the Registration Rights Agreement.
(xxxi) The Company and each of its Material Subsidiaries has all
necessary licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign law,
regulation or rule, and has obtained all necessary authorizations, consents
and approvals from other persons, in order to conduct its respective
business, except where any failures to obtain any such licenses,
authorizations, consents or approvals, or to make any such filings, would
not, individually or in the aggregate with all other such failures,
reasonably be expected to have a Material Adverse Effect; neither the
Company nor any of its Material Subsidiaries is in violation of, or in
default under, any such license, authorization, consent or approval or any
federal, state, local or foreign law, regulation or rule or any decree,
order or judgement applicable to the Company or any of its Material
Subsidiaries the effect of which, individually or in the aggregate with all
other violations and defaults, would reasonably be expected to have a
Material Adverse Effect.
(xxxii) The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended; the deposit accounts of
each of the Company's domestic bank subsidiaries are insured by the Bank
Insurance Fund of the Federal Deposit Insurance Corporation ("FDIC") to the
fullest extent permitted by law and the rules and regulations of the FDIC,
and no proceedings for the termination of such insurance are pending or, to
the best of the Company's knowledge, threatened; and neither the Company
nor any of its Material Subsidiaries is party to or otherwise the subject
of any consent decree, memorandum of understanding, written commitment or
other written supervisory agreement with the Board of Governors of the
Federal Reserve System (the "Federal Reserve"), the Office of the
Comptroller of the Currency (the "OCC") or any other federal or state
authority or agency charged with the supervision or insurance of depositary
institutions or their holding companies.
Section 2. Sale and Delivery to the Initial Purchasers; Closing. (a)
----------------------------------------------------
On the basis of the representations and warranties herein contained, and subject
to the terms and conditions herein set forth, the Issuer agrees to sell to each
Initial Purchaser, and each Initial Purchaser agrees, severally and not jointly,
to purchase from the Issuer, at the purchase price of $1,000 per Preferred
Security, an aggregate of 150,000 Preferred Securities (except as otherwise
provided in this Agreement, to be allocated to the Initial Purchasers in the
number
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of Preferred Securities set forth opposite the name of each initial Purchaser in
Schedule A hereto).
(b) As compensation to the Initial Purchasers for their commitments
hereunder and in view of the fact that the proceeds of the sale of the Preferred
Securities and the Common Securities will be used to purchase the Debentures,the
Company hereby agrees to pay at the Closing Time to the Representatives, for the
accounts of the Initial Purchasers, a commission of $25.00 per Preferred
Security purchased by the Initial Purchasers by wire transfer of immediately
available funds to a bank account designated by the Representatives.
(c) Payment of the purchase price for, and delivery of certificates
for, the Preferred Securities shall be made at the offices of Xxxxxxxx &
Xxxxxxxx, 0000 Xxxxxxxxxxxx Xxxxxx, X.X. Xxxxxxxxxx, X.X. 00000, at 10:00 A.M.,
New York City time, on December 13, 1996 or such later date and time not more
than two full business days thereafter as you the Company and the Issuer shall
mutually determine (such date and time of payment and delivery being herein
called the "Closing Time"). Payment shall be made to the Issuer by wire transfer
of immediately available funds to a bank account designated by the Issuer
against delivery by or on behalf of the Issuer to the Initial Purchasers for the
respective accounts of the Initial Purchasers of the Preferred Securities.
(d) Certificates for the Preferred Securities shall be in such
denominations and registered in such names as you may request in writing at
least two full business days before the Closing Time. The certificates for the
Preferred Securities will be made available in New York City for examination and
packaging by you not later than 10:00 A.M. on the business day immediately prior
to the Closing Time.
(e) It is understood that each Initial Purchaser has authorized you,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Preferred Securities that it has agreed to purchase. You
may (but shall not be obligated to) make payment of the purchase price for the
Preferred Securities to be purchased by any Initial Purchaser whose funds shall
not have been received by the Closing Time, but such payment shall not relieve
such Initial Purchaser from its obligations hereunder.
Section 3. Resale of the Securities. Each Initial Purchaser severally
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and not jointly represents and warrants to, and agrees with, the Issuer and the
Company that:
(a) it is a "Qualified Institutional Buyer" as defined in Rule 144A of
the Rules and Regulations (a "Qualified institutional Buyer") and an "accredited
investor" within the meaning of Rule 501(a) of Regulation D (an "Accredited
Investor");
(b) it has not offered or sold, and will not offer or sell, any
Preferred Securities (which for purposes of this Section 3 includes the
Guarantee, unless the context requires otherwise) except to persons whom it
reasonably believes to be (i) in the case of offers inside the United States (A)
Qualified Institutional Buyers or (B) Accredited Investors that, prior to their
purchase of the Preferred Securities, deliver to it a letter affirming the
representations and agreements set forth under the caption "Transfer
Restrictions" in the
12
Offering Memorandum or otherwise acceptable to the Company or (ii) in the case
of offers and sales outside the United States, to persons other than "U.S.
Persons" (within the meaning of Regulation S);
(c) it has not made and will not make offers or sales of the Preferred
Securities in the United States by means of any form of general solicitation or
general advertising (within the meaning of Regulation D) or in any manner
involving a public offering (within the meaning of Section 4(2) under the
Securities Act) in the United States prior to the effectiveness of a
registration statement with respect to the Securities; and
(d) with respect to offers and sales outside the United States:
(i) it understands that no action has been or will be taken in any
jurisdiction by the Issuer or the Company that would permit a public
offering of the Securities, or possession or distribution of the Offering
Memorandum or any other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for that purpose is
required;
(ii) it will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or
has in its possession or distributes the Offering Memorandum or any such
other material, in all cases at its own expense;
(iii) the Securities have not been and will not be registered under
the Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons, except in accordance
with Regulation S under the Securities Act pursuant to another exemption
from the registration requirements of the Securities Act;
(iv) it has offered the Securities and will offer and sell the
Securities (A)(x) as part of its distribution at any time and (y) otherwise
until 40 days after the later of the commencement of the offering of
the Securities and the Closing Time, in each case only in accordance with
Rule 903 of Regulation S or (B) pursuant to another exemption from the
registration requirements of the Securities Act. Accordingly, neither such
Initial Purchaser, its affiliates nor any persons acting on its or their
behalf has engaged or will engage in any directed selling efforts (within
the meaning of Regulation S) with respect to the Securities, and such
Initial Purchaser, its affiliates and any such persons has complied and
will comply with the offering restrictions requirements of Regulation S in
connection with the offering of the Securities;
(v) it agrees that, at or prior to confirmation of sales of the
Securities, it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Securities from it during the restricted period a confirmation or notice to
substantially the following effect;
13
"The securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the commencement of
the offering and the closing of the offering, except in either case in
accordance with Regulation S under the Securities Act. Terms used
above have the meaning given to them by Regulation S."
Section 4. Certain Covenants of the Issuer and the Company. The Issuer
-----------------------------------------------
and the Company covenant with each Initial Purchaser as follows:
(a) The Issuer and the Company will promptly deliver to the Initial
Purchasers and counsel for the Initial Purchasers, without charge, as many
copies of the Preliminary Offering Memorandum, the Offering Memorandum, any
amendments or supplements thereto, the documents incorporated or deemed
incorporated by reference in the Offering Memorandum and the Operative Documents
as the Initial Purchasers and their counsel may reasonably request.
(b) The Company and the Issuer will give the Initial Purchasers timely
notice of their intention to prepare any amendment or supplement to the
Preliminary Offering Memorandum or the Offering Memorandum or to file with the
Commission any document incorporated by reference in the Offering Memorandum,
will furnish the Initial Purchasers and counsel to the Initial Purchasers with
copies of any such amendment, supplement or document and will obtain the consent
of the Initial Purchasers to any such amendment or supplement or to any such
filing (which consent shall not be unreasonably withheld or delayed).
(c) If at any time prior to completion of the distribution of the
Preferred Securities (which for purposes of this Section 4 includes the
Guarantee, unless the context otherwise requires) by the Initial Purchasers to
purchasers who are not their affiliates (as determined by you) any event shall
occur or condition exist as a result of which it is necessary, in the reasonable
opinion of the Initial Purchasers, counsel for the Initial Purchasers or counsel
for the Company, to amend or supplement the Offering Memorandum in order that
the Offering Memorandum, as then amended or supplemented, will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading or if, in
the reasonable opinion of the Initial Purchasers, counsel to the Initial
Purchasers or counsel to the Company, such amendment or supplement is necessary
to comply with applicable law, the Issuer and the Company will, subject to
paragraph (b) of this Section 4, promptly prepare such amendment or supplement
as may be necessary to correct such untrue statement or omission or to effect
such compliance (in form and substance reasonably agreed upon by counsel to the
Initial Purchasers), so that as so amended or supplemented, the statements in
the Offering Memorandum will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is delivered
to a purchaser, not misleading or so that
14
such Offering Memorandum as so amended or supplemented will comply with
applicable law, as the case may be, and furnish to the Initial Purchasers such
number of copies of such amendment or supplement as the Initial Purchasers may
reasonably request. The Issuer and the Company agree to notify the Initial
Purchasers in writing to suspend use of the Offering Memorandum as promptly as
practicable after the occurrence of an event specified in this paragraph (c),
and the Initial Purchasers hereby agree upon receipt of such notice from the
Issuer and the Company to suspend use of the Offering Memorandum until the
Issuer and the Company have amended or supplemented the Offering Memorandum to
correct such misstatement or omission or to effect such compliance.
(d) Notwithstanding any provision of paragraph (b) or (e) of this
Section 4 to the contrary, however, the Issuer's and the Company's obligations
under paragraphs (b) and (c) of this Section 4 and the Initial Purchasers'
obligations under paragraph (c) of this Section 4 shall terminate on the earlier
to occur of (i) the effective date of a shelf registration statement with
respect to the Securities filed pursuant to the Registration Rights Agreement
and (ii) the date upon which the Initial Purchasers and their affiliates cease
to hold Securities acquired as part of their initial distribution, but in any
event (in the case of this clause (ii)) not later than one year from the Closing
Time.
(e) Neither the Company, the Issuer nor any of their respective
affiliates (as defined in Rule 501(b) of Regulation D), nor any person acting on
behalf of the foregoing, will engage in any form of general solicitation or
general advertising (within the meaning of Regulation D) in connection with any
offer or sale of the Securities in the United States, or engage in any directed
selling efforts (as defined in Rule 902 of the Rules and Regulations) with
respect to the Securities prior to the effectiveness of a registration statement
with respect to the Securities, and each of them will comply with the offering
restrictions requirement of Regulation S with respect to the Securities. Terms
used in this clause (e) have the meanings ascribed to them by Regulation S. No
covenant is made hereby with respect to the conduct of the Initial Purchasers or
their affiliates (as such term is defined in Rule 501(b) of Regulation D).
(f) Neither the Company nor any of its affiliates (as defined in Rule
501(b) of Regulation D), including without limitation the Issuer, will,
directly or indirectly, make offers or sales of any security, or solicit offers
to buy any security, under circumstances that would require the registration of
the Securities under the Securities Act.
(g) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) of the Rules and Regulations, the Company
will, during any period in which it is not subject to and in compliance with
Section 13 or 15(d) of the Exchange Act, provide to each holder of such
restricted securities and to each prospective purchaser (as designated by such
holder) of such restricted securities, upon the request of such holder or
prospective purchaser, any information required to be provided by Rule
144A(d)(4) of the Rules and Regulations. This covenant is intended to be for the
benefit of the holders, and the prospective purchasers designated by such
holders, from time to time of such restricted securities.
15
(h) Each Preferred Security (and each Debenture distributed to
holders of Preferred Securities pursuant to the terms of the Trust Agreement)
will bear a legend (and with respect to the Debentures a similar legend)
substantially in the following form until such legend shall no longer be
necessary or advisable because the Preferred Securities (and the Debentures) are
no longer subject to the restrictions on transfer described herein:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY AGREES FOR THE BENEFIT OF THE SERIES A ISSUER THAT THIS
SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE
THIRD ANNIVERSARY OF THE LATER OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR
SECURITY HERETO) AND THE LAST DATE ON WHICH THE SERIES A ISSUER OR ANY
AFFILIATE OF THE SERIES A ISSUER WAS THE OWNER HEREOF (OR ANY PREDECESSOR OF
THIS SECURITY) OR (Y) THEREAFTER, BY ANY HOLDER THAT WAS AN AFFILIATE OF THE
SERIES A ISSUER AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH
TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE SERIES A ISSUER OR ANY SUBSIDIARY
THEREOF, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A,
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR
ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN
"OFFSHORE TRANSACTION" (AS DEFINED IN REGULATION S) IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
FOREIGN PURCHASER ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), AND IF SUCH TRANSFER IS BEING EFFECTED BY CERTAIN FOREIGN PURCHASERS
SPECIFIED IN THE INDENTURE (AS DEFINED IN THIS SECURITY) PRIOR TO THE EXPIRATION
OF THE "40 DAY RESTRICTED PERIOD" (WITHIN THE MEANING OF RULE 903(C)(3) OF
REGULATION S UNDER THE SECURITIES ACT), A CERTIFICATE (WHICH MAY BE OBTAINED
FROM THE SERIES A ISSUER OR THE PROPERTY TRUSTEE)IS DELIVERED TO THE SERIES A
ISSUER AND THE PROPERTY TRUSTEE, (4) TO A PERSON THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(A) UNDER THE SECURITIES ACT (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE
OF THIS SECURITY) THAT IS ACQUIRING THE SECURITY FOR INVESTMENT PURPOSES AND NOT
FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, AND A CERTIFICATE IN THE
FORM SPECIFIED IN THE INDENTURE IS DELIVERED BY THE TRANSFEREE TO THE SERIES A
ISSUER AND THE PROPERTY TRUSTEE (PROVIDED THAT CERTAIN FOREIGN PURCHASERS
SPECIFIED IN THE INDENTURE MAY NOT TRANSFER THIS SECURITY PURSUANT TO THIS
CLAUSE (4) PRIOR TO THE EXPIRATION OF THE "40 DAY RESTRICTED PERIOD" (WITHIN
16
THE MEANING OF RULE 903(C)(3) OF REGULATION S UNDER THE SECURITIES ACT), (5)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT OR (6) PURSUANT TO AN
EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER, BY
PURCHASING THIS SECURITY, IS DEEMED TO REPRESENT THAT IT (X) IS NOT ITSELF, AND
IS NOT ACQUIRING THE SECURITY WITH ASSETS OF, (i) AN "EMPLOYEE BENEFIT PLAN"
(WITHIN THE MEANING OF SECTION 3(3) OF ERISA), A "PLAN" (WITHIN THE MEANING OF
SECTION 4975(E)(I) OF THE INTERNAL REVENUE CODE), OR AN ENTITY WHOSE UNDERLYING
ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH AN
"EMPLOYEE BENEFIT PLAN" OR "PLAN" AND THE APPLICATION OF THE PLAN ASSET
REGULATION OR (ii) A "GOVERNMENTAL PLAN" (WITHIN THE MEANING OF SECTION 3(32) OF
ERISA) OR (Y)(i) IS ITSELF, OR IS ACQUIRING THIS SECURITY WITH ASSETS OF, AN
"INVESTMENT FUND" (WITHIN THE MEANING OF PART V(b) OF THE U.S. DEPARTMENT OF
LABOR PTE 84-14) MANAGED BY A "QUALIFIED PROFESSIONAL ASSET MANAGER" (WITHIN THE
MEANING OF PART V(a) OF PTE 84-14) WHICH IS MADE OR PROPERLY AUTHORIZED THE
DECISION FOR SUCH FUND TO PURCHASE THE SECURITIES, UNDER CIRCUMSTANCES SUCH THAT
PTE 84-14 IS APPLICABLE TO THE PURCHASE AND HOLDING OF SUCH SECURITIES (ii) IS
AN INSURANCE COMPANY POOLED SEPARATE ACCOUNT PURCHASING SECURITIES PURSUANT TO
PART I OF THE U.S. DEPARTMENT OF LABOR PTE 90-1 OR A BANK COLLECTIVE INVESTMENT
FUND PURCHASING PURSUANT TO PART I OF THE U.S. DEPARTMENT OF LABOR PTE 91-38,
AND IN EITHER CASE, NO "PLAN" OR "EMPLOYEE BENEFIT PLAN" NOT PURCHASING PURSUANT
TO PTE 84-14 OWNS MORE THAN 10% OF THE ASSETS OF SUCH ACCOUNT OR COLLECTIVE FUND
(WHEN AGGREGATED WITH OTHER PLANS OF THE SAME EMPLOYER OR EMPLOYEE
ORGANIZATION), (iii) IS AN INSURANCE COMPANY USING THE ASSETS OF THE GENERAL
ASSET ACCOUNT OF THE INSURANCE COMPANY TO PURCHASE THE SECURITIES PURSUANT TO
PART I OF THE U.S. DEPARTMENT OF LABOR PTE 95-60, IN WHICH CASE THE RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN,
TOGETHER WITH ANY OTHER PLANS MAINTAINED BY THE SAME EMPLOYER OR EMPLOYEE
ORGANIZATION, DO NOT EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF THE
INSURANCE COMPANY GENERAL ACCOUNT (EXCLUSIVE OF SEPARATE ACCOUNT LIABILITIES),
PLUS SURPLUS AS SET FORTH IN THE NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS
ANNUAL STATEMENT FILED WITH THE DATE OF DOMICILE OF THE INSURER OR (IV) IS A
PLAN ACQUIRING THE SERIES A PREFERRED SECURITY WITH ASSETS OVER WHICH AN
IN-HOUSE ASSET MANAGER (WITHIN THE MEANING OF PART IV(A) OF PTE 96-23) HAS
DISCRETIONARY AUTHORITY, UNDER CIRCUMSTANCES SUCH THAT PTE 96-23 IS APPLICABLE
TO THE PURCHASE AND HOLDING OF SUCH SECURITIES. THE HOLDER HEREOF FURTHER AGREES
FOR THE BENEFIT OF THE SERIES A ISSUER THAT IT WILL NOTIFY ANY PURCHASER HEREOF
OF THE RESALE
17
RESTRICTIONS REFERRED TO ABOVE, AN ACCREDITED INVESTOR HOLDING THIS SECURITY
AGREES THAT IT WILL FURNISH TO THE SERIES A ISSUER AND THE PROPERTY TRUSTEE SUCH
CERTIFICATES, LEGAL OPINIONS AND OTHER INFORMATION AS THEY MAY REASONABLY
REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE
FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE SERIES A ISSUER THAT IT IS (l) A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A 0R (2) A PERSON
THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a) UNDER THE SECURITIES
ACT THAT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (3) NOT A U.S. PERSON AND
THAT IT IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF, OR AN ACCOUNT
SATISFYING THE REQUIREMENTS OF, PARAGRAPH (o) OF RULE 902 UNDER REGULATION S
UNDER THE SECURITIES ACT. THE SERIES A PREFERRED SECURITIES WILL BE ISSUED, AND
MAY BE TRANSFERRED, ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN
$100,000. ANY TRANSFER, SALE OR OTHER DISPOSITION OF SERIES A PREFERRED
SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL
BE DEEMED NOT TO BE THE HOLDER OF SUCH SERIES A PREFERRED SECURITIES FOR ANY
PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF DISTRIBUTIONS ON SUCH
SERIES A PREFERRED SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO
INTEREST WHATSOEVER IN SUCH SERIES A PREFERRED SECURITIES."
(i) The Company will, or will cause the Issuer to, arrange for the
registration and qualification of the Preferred Securities for offering and sale
under the applicable securities or "blue sky" laws of such states and other U.S.
jurisdictions as the Initial Purchasers may reasonably designate in connection
with the resale of Preferred Securities as contemplated by this Agreement and
the Offering Memorandum and will continue such qualifications in effect for as
long as may be reasonably required to complete the distribution of the
Preferred Securities; provided that the Company shall not be required to (i)
--------
qualify as a foreign corporation, (ii) consent to the service of process under
the laws of any such state (except service of process with respect to the
offering and sale of the Preferred Securities), (iii) subject itself to taxation
in any such jurisdiction of (iv) make any change to its certificate of
incorporation or by-laws in connection with such qualification. The Company
shall, or shall cause the Issuer to, promptly advise the Initial Purchasers of
the receipt by the Company or the Issuer, as the case may be, of any
notification with respect to the suspension of the qualification or exemption
from qualification of the Preferred Securities for offering or sale in any
jurisdiction or the institution of any proceeding for such purpose.
(j) The Issuer will use the proceeds received from the sale of the
Preferred Securities and the Company will use the proceeds received from the
issue and sale of the Debentures in the manner specified in the Offering
Memorandum under the caption "Use of Proceeds".
18
(k) Neither the Issuer nor the Company shall, directly or indirectly,
for a period commencing on the date hereof and ending on the earlier of (1) the
completion of the distribution of the Preferred Securities (as notified by
Xxxxxx, Read) and (2) 30th day after the Closing Time, except with the prior
written consent of Xxxxxx, Read, offer to sell, pledge, sell, grant any option,
warrant or other right to purchase, or otherwise transfer or dispose of (or
agree to do any of the foregoing) (a) any trust certificates or other securities
of the Issuer, (b) any preferred stock or any other security of the Company that
is substantially similar to the Preferred Securities or (c) any other securities
which are convertible into, or exercisable or exchangeable for, any of the
securities described in (a) and (b) above. The foregoing sentence shall not
apply to (i) the issuance of the Common Securities to the Company by the Issuer,
(ii) the issuance of the Preferred Securities being sold hereunder and the sale
thereof pursuant hereto or (iii) the issuance of the Debentures to the Issuer by
the Company.
(l) The Company agrees that no future offer and sale of securities of
the Company of any class will be made if, as a result of the doctrine of
"integration" referred to in Rule 502 of Regulation D, such offer and sale could
reasonably have been expected, at the time of such sale, based upon public laws,
Commission releases and Commission no-action - letters, to render invalid the
exemption from the registration requirements of the Securities Act relied upon
in connection with the transactions contemplated by this Agreement.
(m) In connection with the original distribution of the Preferred
Securities, the Company agrees that, prior to any offer or resale of the
Preferred Securities by the Initial Purchasers, the Initial Purchasers and
counsel for the Initial Purchasers shall have the right to make, and promptly
receive from the Company adequate information with respect to, reasonable
inquiries into the business of the Company and its subsidiaries.
Section 5. Payment of Expenses. The Company will pay all costs and
-------------------
expenses incident to the performance of the obligations under this Agreement of
the Company and the Issuer, including (a) the preparation and printing of the
Preliminary Offering Memorandum and the Offering Memorandum (including financial
statements, exhibits and documents incorporated by referenced therein) and any
amendments or supplements thereto, and the cost of delivery thereto to the
Initial Purchasers, (b) the preparation, issuance, printing and distribution of
the Preferred Securities and any survey of state securities or "blue sky" laws
or legal investment memoranda ("Blue Sky Survey"), (c) the delivery of the
Preferred Securities to the Initial Purchasers, including any stock transfer
taxes payable upon the sale of the Preferred Securities to the Initial
Purchasers, (d) the fees and disbursements of the Company's and the Issuer's
counsel and accountants, (e) the qualification of the Preferred Securities under
the applicable state securities or "blue sky" laws in accordance with Section
4(i) hereof, including all filing fees and reasonable fees and disbursements of
counsel for the Initial Purchasers in connection therewith and in connection
with the Blue Sky Survey, (f) any filling fees in connection with any filing for
review of the offering with the NASD, (g) any fees charged by rating agencies
for rating the Preferred Securities, (h) the fees and expenses of the Indenture
Trustee, the Property Trustee, the Guarantee Trustee and the Delaware Trustee,
including the reasonable fees and disbursements of counsel for such trustees,
(i) all listing fees and reasonable expenses in connection with the application
for designation of the Preferred Securities as PORTAL-eligible securities and
(j) the cost of qualifying the Preferred
19
Securities with The Depository Trust Company; provided, however, that it is
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understood that the Company will not be responsible for payment of the Initial
Purchasers' legal counsel fees and expenses, except as provided in subsection
(e) above and under the circumstances set forth in the last paragraph of this
section, and shall not be responsible for the travel and lodging expenses
related to the road show, except that the Company will pay the travel and
lodging expenses of its own employees.
If the sale of the Preferred Securities provided for herein is not
consummated because this Agreement is terminated pursuant to Section 8 hereof or
because any condition to the obligations of the Initial Purchasers set forth in
Section 6 hereof is not satisfied, other than by reason of a default by the
Initial Purchasers in payment for the Preferred Securities at the Closing Time,
the Company shall reimburse the Initial Purchasers promptly upon demand for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel to the Initial Purchasers) that shall have been incurred by them in
connection with the proposed purchase and sale of the Preferred Securities.
Section 6. Conditions of Initial Purchasers' Obligation. The
--------------------------------------------
obligations of the several Initial Purchasers to purchase and pay for the
Preferred Securities that they have respectively agreed to purchase pursuant to
this Agreement are subject to the following conditions:
(a) The Company shall furnish to the Initial Purchasers at the
Closing Time an opinion of Xxxxxxxx & Xxxxxxxx, special counsel for the
Company, addressed to each of the Initial Purchasers and dated the day of
the Closing Time and in form reasonably satisfactory to Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Initial Purchasers, to the effect that:
(i) Each of this Agreement and the Registration Rights Agreement
has been duly authorized, executed and delivered by the Company.
(ii) Each of the Trust Agreement, the Guarantee Agreement and the
Expense Agreement has been duly authorized, executed and delivered by the
Company, and each of the Guarantee Agreement and the Expense Agreement
constitutes a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and, when duly authorized, executed and delivered
by the Indenture Trustee will constitute a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
20
(iv) The Debentures have been duly authorized, executed, issued and
delivered by the Company and, when the Debentures have been duly
authenticated by the Indenture Trustee and paid for by the Issuer, 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 bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(v) The statements set forth in the Offering Memorandum or any
amendment or supplement thereto under the captions "Description of the
Series A Preferred Securities", "Description of the Series A Subordinated
Debentures", "Description of the Series A Guarantee", "Relationship Among
the Series A Preferred Securities, the Series A Subordinated Debentures,
the Expense Agreement and the Series A Guarantee" and "ERISA
Considerations" insofar as they purport to describe the provisions of the
law and documents referred to therein are accurate, complete and fair.
(vi) Assuming the accuracy of the representations and warranties
and compliance with the agreements of the Initial Purchasers in Section 3
hereof, the offer, sale and delivery of the Preferred Securities to the
Initial Purchasers in the manner contemplated by this Agreement and the
Offering Memorandum and the initial resale of the Preferred Securities by
the Initial Purchasers in the manner contemplated in the Offering
Memorandum and this Agreement do not require registration under the
Securities Act, and, on or before the date hereof, none of the Indenture,
the Trust Agreement or the Guarantee Agreement is required to be qualified
under the Trust Indenture Act, it being understood that such counsel need
express no opinion as to any subsequent resale of any Preferred Securities.
(vii) Neither the Trust nor the Company is required to be registered
as an "investment company" under the 1940 Act.
(viii) The execution and delivery by the Company of, and the
performance by the Company under, this Agreement, the Trust Agreement, the
Indenture, the Guarantee, the Expense Agreement and the Registration Rights
Agreement, the consummation by the Company of the transactions contemplated
hereby and thereby, the filing of the certificate of trust of the Issuer
with the Secretary of State of the State of Delaware, compliance by the
Company with the terms of the foregoing and the application of the proceeds
from the sale of the Preferred Securities as contemplated by the Offering
Memorandum do not and will not (A) violate the charter or by-laws of the
Company or any Material Subsidiary or (B) violate any federal law of the
United States or law of the State of New York applicable to the Company or
its Material Subsidiaries or the General Corporation Law of the State of
Delaware; provided that, insofar as the performance by the Company of its
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obligations under the Indenture and the Debentures is concerned, such
counsel need express no opinion as to bankruptcy,
21
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights.
In addition, such counsel shall state that, as special counsel for the
Company, they reviewed the Offering Memorandum and the documents
incorporated or deemed incorporated by reference therein (the "Exchange Act
Documents"), participated in the preparation of the Offering Memorandum and
in discussions with the Initial Purchasers and 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, the opinion of the
Company's General Counsel 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 Offering
Memorandum (including the Exchange Act Documents) contained any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Such counsel may also state that the limitations inherent in the
independent verification of factual matters are such, however that they do
not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Offering Memorandum or any amendment or
supplement thereto, except for those made under the caption "Description of
the Series A Preferred Securities", Description of the Series A
Subordinated Debentures", "Description of the Series A Guarantee",
"Relationship Among the Series A Preferred Securities, the Series A
Subordinated Debentures, the Expense Agreement and the Series A Guarantee"
and "ERISA Considerations", and any comparable provisions in any amendment
or supplement to the Offering Memorandum insofar as they relate to
provisions of documents therein described. Also, such counsel may state
that they do not express any opinion or belief as to the financial
statement and schedules or other financial and statistical data contained
in the Offering Memorandum.
The foregoing opinion of such counsel may be limited to the federal
laws of the United States and the laws of the State of New York and of the
State of Delaware, and may state that such counsel express no opinion as to
the effect of the laws of any other jurisdiction.
Such counsel may rely as to certain matters on information obtained
from public officials, officers of the Company and other sources believed
by such counsel to be responsible, and shall assume that the Indenture has
been duly authorized, executed and delivered by the Trustee, that the
Trustee's certificates of authentication of the Debentures have been duly
manually signed by one of the Trustee's authorized officers, and that the
signatures on all documents examined by such counsel are genuine,
assumptions which they will not have independently verified.
22
Such counsel may state that their opinion is delivered to the Initial
Purchasers by them as special counsel for the Company and is solely for the
Initial Purchasers' benefit.
(b) The Company shall furnish to the Initial Purchasers at the
Closing Time an opinion of Xx. Xxxxx Xxxxxx, Esq., Managing Director of
Legal Affairs for the Company, addressed to each of the Initial Purchasers
and dated the day of the Closing Time and in form reasonably satisfactory
to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its properties and
conduct its business as described in the Offering Memorandum.
(ii) Xxxxx Bank N.A. is a national banking association duly
organized under the laws of the United States, holds a valid certificate of
authority from the OCC and is authorized to do business as a national
banking association under the laws of the United States, and has all
corporate power and authority to own its properties and conduct its
business as presently conducted, except where the failure to have such
corporate power and authority would not, individually or in the aggregate
with all other failures, have a Material Adverse Effect.
(iii) The Company and Xxxxx Bank N.A. are duly qualified or
licensed and in good standing as a foreign corporation in each jurisdiction
in which the ownership or leasing of its properties or character of its
operations makes such qualification necessary, except where failure to
obtain such qualification, license or good standing would not, individually
or in the aggregate with all other failures, have a Material Adverse
Effect.
(iv) All of the issued 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 are
owned of record by the Company or one or more of its subsidiaries, and all
shares of such capital stock are duly and validly issued, fully paid and
non-assessable (except to the extent provided in 12 U.S.C (S) 55 or any
comparable provision of state law).
(v) The Company has an authorized capitalization as set forth
in the Offering Memorandum.
(vi) No approval, authorization, consent or order of or filing
with any federal or District of Columbia governmental or regulatory
commission, board, body, authority or agency is required in connection with
the offering, issuance or sale of the Guarantee and the Debentures by the
Company or is required for the valid
23
authorization, execution, delivery and performance by the Company of the
Operative Documents or the consummation by the Company of the transactions
contemplated therein, other than (i) prior written notice to the Federal
Reserve, which notice has been duly given and (ii) such authorizations as
may be required by the securities or "blue sky" laws of the various states
in connection with the offer and sale of the Guarantee and the Debentures
or by the federal and state securities laws in connection with the
registration obligations under the Registration Rights Agreement.
(vii) The execution and delivery by the Company of, and the
performance by the Company under, this Agreement, the Trust Agreement, the
Indenture, the Debentures, the Guarantee, the Expense Agreement and the
Registration Rights Agreement, the consummation by the Company of the
transactions contemplated hereby and thereby, the filing of the certificate
of trust of the Issuer with the Secretary of State of the State of
Delaware, compliance by the Company with the terms of the foregoing and the
application of the proceeds from the sale of the Preferred Securities as
contemplated by the Offering Memorandum do not and will not (A) conflict
with, or result in any breach of, or constitute a default under (nor
constitute any event which with notice, lapse of time, or both would
constitute a breach of or default under), (1) any provision of any
Agreement or Instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, except any such breaches or defaults
as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect or (2) any federal or District of Columbia
law, regulation or rule or the General Corporation Law of the State of
Delaware or any decree, judgement or order of any federal or state
governmental authority known to such counsel applicable to the Company or
any of its Material Subsidiaries; (B) to the best of such counsel's
knowledge result in, or require the creation or imposition of, any material
lien upon or with respect to any of the properties now owned or hereafter
acquired by the Company or any of its Material Subsidiaries.
(viii) To the best of such counsel's knowledge, neither the Company
nor any of its Material Subsidiaries is in breach of, or in default under
(nor has any event occurred which with notice, lapse of time, or both would
constitute a breach of, or default under), (A) any Agreement or Instrument
to which the Company or any of its subsidiaries is a party or by which any
of them or their respective properties may be bound or affected or (B) any
law, regulation or rule or any decree, judgment or order applicable to the
Company or any of its subsidiaries, except any such breaches or defaults of
a type referred to in (A) or (B) above which would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect or a material adverse effect on the ability of the Company to
consummate the transactions contemplated by this Agreement, the Trust
Agreement, the Indenture, the Debentures, the Guarantee, the Expense
Agreement and the Registration Rights Agreement.
(ix) To the best of such counsel's knowledge, there are no
actions, suits or proceedings pending or threatened against the Company or
any of its subsidiaries or any of their respective properties, at law or in
equity or before or by any court
governmental authority or administrative authority which are likely to have a
Material Adverse Effect.
(x) The Company is duly registered as a bank holiday company under the
Bank Holiday Company Act of 1956, as amended; the deposit accounts of each of
the Company's domestic bank subsidiaries are insured by the Bank Holiday
Insurance Fund of the FDIC to the fullest extent permitted by law and the rules
and regulations of the FDIC, and no proceedings for the termination of such
insurance are pending or, to the best of such counsel's knowledge, threatened;
and neither the Company nor any of its Material Subsidiaries its party to or
otherwise the subject of any consent decree, memorandum of understanding, or
written agreement as defined in the Financial Institutions Reform, recovery and
Enforcement Act of 1989 (12 U.S.C. 1818 (e)(1)(A)(i)), nor to the best of such
councel's knowledge is the Company or any of its Material Subsidiaries a party
to any written agreement with the Bank of England.
In addition, such counsel shall state that, as Managing Director of Legal
Affairs of the Company, she reviewed the Offering Memorandum, participated in
the preparation of the Offering Memorandum and the Exchange Act Documents and in
discussions with the Initial Purchasers and representatives of the Company, its
outside counsel 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 the 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 her attention that has caused her to believe that any part of the
Offering Memorandum (including the Exchange Act Documents) contained any untrue
statement of a material fact or omitted to any state material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
Such counsel may also state that the limitations inherent in the
independent verification of factual matters are such, however, that she does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in Offering Memorandum or any amendment or supplement
thereto, except for those made under the caption "The Corporation" in the
Offering Memorandum, and any comparable provisions in any amendment or
supplement to the Offering Memorandum insofar as they relate to provisions of
documents or legal matters therein described. Also, such counsel may state that
she does not express any opinion or belief as to the financial statements and
schedules or other financial and statistical data contained in the Offering
Memorandum.
Such counsel may rely as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by such
counsel to be responsible, and all assume that the Indenture has been duly
authorized, executed and delivered by the Trustee, that the Trustee's
certificates of authentication of the Debentures have been duly manually signed
by one of the Trustee's authorized
25
officers, and that the signatures on all documents examined by such counsel
are genuine, assumptions which he will not have independently verified.
The foregoing opinion of such counsel may be limited to the federal
laws of the United States, the laws of the District of Columbia and the
General Corporation Law of the State of Delaware, and may state that such
counsel expresses no opinion as to the effect of the laws of any other
jurisdiction.
Such counsel may state that his opinion is delivered to the Initial
Purchasers as Managing Director of Legal Affairs of the Company and is
solely for the Initial Purchasers' benefit.
Such opinion shall be to such further effect with respect to other
legal matters relating to this Agreement and the Securities as counsel for
the Initial Purchasers may reasonably request. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of the State of
Delaware, on the opinion delivered pursuant to Section 6(f) hereto by
Xxxxxxxx, Xxxxxx & Finger, P.A. In addition, in giving such opinion, such
counsel may state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries, certificates of trustees of
the Issuer and certificates of public officials, provided that such
--------
certificates have been delivered to the Initial Purchasers.
(c) At the Closing Time, you shall have received a signed opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A. counsel to the Delaware Trustee, dated as of the
Closing Time, addressed to each of the Initial Purchasers, in form and substance
reasonably satisfactory to Xxxxxxx Xxxxxxx & Xxxxxxxx, to the effect that:
(i) The Bank of New York (Delaware), a Delaware banking
corporation, has been duly incorporated and is validly existing in good
standing as a banking corporation under the laws of the State of Delaware
and has the corporate power to act as Trustee of a Delaware business trust
under the laws of the State of Delaware, 12 Del. (S) 3801 et seq.
---- -- ---
(d) At the Closing Time, you shall have received a signed opinion of
Xxxxx, Xxxxxx & Xxxxxx LLP, counsel to The Bank of New York, dated as of the
Closing Time, addressed to each of the Initial Purchasers, in form and substance
reasonably satisfactory to Xxxxxxx Xxxxxxx & Xxxxxxxx, to the effect that:
(i) The Trustee is a banking corporation duly incorporated and
validly existing under the laws of the State of New York.
(ii) The execution, delivery and performance by The Bank of New
York, as property trustee (the "Property Trustee") of the Trust Agreement,
the execution, delivery and performance by The Bank of New York, as
Guarantee Trustee, of the Guarantee Agreement and the execution, delivery
and performance by The Bank of
New York, as the Indenture Trustee, of the Indenture have been duly
authorized by all necessary corporate action on the part of the Property
Trustee, the Guarantee Trustee and the Indenture Trustee, respectively. The
Trust Agreement, the Guarantee Agreement and the Indenture have been duly
executed and delivered by the Property Trustee, the Guarantee Trustee and
the Indenture Trustee, respectively, and constitute the legal, valid and
binding obligations of the Property Trustee, the Guarantee Trustee and the
Indenture Trustee, respectively, enforceable against the Property Trustee,
the Guarantee Trustee and the Indenture Trustee, respectively, in
accordance with their terms, except as enforcement thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation, receivership or similar laws relating to the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or a law).
(iii) The execution, delivery and performance of the Trust
Agreement, the Guarantee Agreement and the Indenture by the Property
Trustee, the Guarantee Trustee and the Indenture Trustee, respectively, do
not conflict with or constitute a breach of the applicable organizational
documents or by-laws of the Property Trustee, the Guarantee Trustee or the
Indenture Trustee, respectively, or the terms of any indenture or other
agreement or instrument known to such counsel and to which the Property
Trustee, the Guarantee Trustee or the Indenture Trustee, respectively, is a
party or is bound or any judgment, order or decree known to such counsel to
be applicable to the Property Trustee, the Guarantee Trustee or the
Indenture Trustee, respectively, of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over the Property Trustee, the Guarantee Trustee or the Indenture Trustee,
respectively.
(iv) No consent, approval or authorization of, or registration
with or notice to, any federal or New York State banking authority is
required for the execution, delivery or performance by the Property
Trustee, the Guarantee Trustee or the Indenture Trustee of the Trust
Agreement, the Guarantee Agreement or the Indenture, respectively.
Such opinion shall be to such further effect with respect to other
legal matters relating to this Agreement and the Securities as counsel for the
Initial Purchasers may reasonably request. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of Delaware, the law of the State of New York and the federal
law of the United States, upon the opinions of counsel satisfactory to counsel
for the Initial Purchasers. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries,
certificates of trustees of the Issuer and certificates of public officials;
provided that such certificates have been delivered to the Initial Purchasers.
--------
(e) At the Closing Time, you shall have received a signed opinion of
Xxxxxxxx & Xxxxxxxx, special United States tax counsel to the Company and the
Issuer, dated as of the
27
Closing Time, addressed to each of the Initial Purchasers, in form and substance
reasonably satisfactory to counsel for the Initial Purchasers, to the effect
that:
(i) Subject to the qualifications set forth therein, the
statements made in the Offering Memorandum under the caption "Certain
United States Federal Income Tax Consequences" fairly present in all
material respects the principal United States federal income tax
consequences of an investment in the Preferred Securities.
(f) At the Closing Time, you shall have received a signed option of
Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Initial Purchasers and
special counsel to the Issuer, dated as of the Closing Time, together with
signed or reproduced copies of such opinion for each of the other Initial
Purchasers, in form and substance reasonably satisfactory to counsel for the
Initial Purchasers, to the effect set forth below.
(i) The Issuer has been duly created and is validly existing in
good standing as a business trust under the Delaware Act, and all filings
required under the laws of the State of Delaware with respect to the
creation and valid existence of the Issuer as a business trust have been
made.
(ii) Under the Delaware Act and the Trust Agreement, the Issuer
has the trust power and authority to own its property and conduct its
business, all as described in the Offering Memorandum.
(iii) The Trust Agreement constitutes a valid and binding
obligation of the Company and the Trustees, and is enforceable against the
Company and the Trustees in accordance with its terms, subject, as to
enforcement, to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent transfer and other similar laws relating to the rights and
remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law), and (iii) the
effect of applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
(iv) Under the Delaware Act and the Trust Agreement, the Issuer
has the trust power and authority (i) to execute and deliver, and to
perform its obligations under, this Agreement and the Registration Rights
Agreement and (ii) to issue and perform its obligations under the Preferred
Securities and the Common Securities.
(v) Under the Delaware Act and Trust Agreement, the execution
and delivery by the Issuer of this Agreement and the Registration Rights
Agreement, and the performance by the Issuer of its obligations hereunder
and thereunder, have been duly authorized by all necessary trust action on
the part of the Issuer.
(vi) The Preferred Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and nonassessable undivided
beneficial interests in the assets of the
28
Issuer and are entitled to the benefits of the Trust Agreement. The holders
of the Preferred Securities, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. Such counsel may note that the
holders of Preferred Securities may be obligated, pursuant to the Trust
Agreement, (i) to provide indemnity and/or security in connection with and
pay taxes or governmental charges arising from transfers or exchanges of
certificates for Preferred Securities and the issuance of replacement
certificates for Preferred Securities, and (ii) to provide security or
indemnity in connection with requests of or directions to the Property
Trustee to exercise its rights and powers under the Trust Agreement.
(vii) Under the Delaware Act and the Trust Agreement, the issuance
of the Preferred Securities is not subject to preemptive rights.
(viii) The issuance and sale by the Issuer of the Preferred
Securities, the execution, delivery and performance by the Issuer of this
Agreement and the Registration Rights Agreement, the consummation by the
Issuer of the transactions contemplated hereby and thereby and compliance
by the Issuer with its obligations hereunder and thereunder, and the
performance by the Company, as sponsor, of its obligations under the Trust
Agreement (A) do not violate (i) any of the provisions of the certificate
of trust of the Issuer or the Trust Agreement or (ii) any applicable
Delaware law or administrative regulation (except that such counsel need
express no opinion with respect to the securities laws of the State of
Delaware) and (B) do not require any consent, approval, license,
authorization or validation of, or filing or registration with, any
Delaware legislative, administrative or regulatory body under the laws or
administrative regulations of the State of Delaware (except that such
counsel need express no opinion with respect to the securities laws of the
state of Delaware).
(ix) Assuming that the Issuer derives no income from or in
connection with sources within the State of Delaware and has no assets,
activities (other than maintaining the Delaware Trustee and the filing of
documents with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, the holders of the Preferred Securities
(other than those holders of Preferred Securities who reside or are
domiciled in the State of Delaware) will have no liability for income taxes
imposed by the State of Delaware solely as a result of their participation
in the Issuer, and the Issuer will not be liable for any income tax imposed
by the State of Delaware.
Such opinion shall be to such further effect with respect to other legal
matters relating to this Agreement and the Securities as counsel for the Initial
Purchasers may reasonably request. In giving such opinion, such counsel may
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries, certificates of trustees of the Issuer and certificates of
public officials; provided that such certificates have been delivered to the
--------
Initial Purchasers.
29
(g) At the Closing Time, you shall have received the favorable
opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, dated
as of the Closing Time, addressed to each of the Initial Purchasers, to the
effect that the opinions delivered pursuant to Sections 6(a), 6(b), 6(c), 6(d)
6(e) and 6(f) appear on their face to be appropriately responsive to the
requirements of this Agreement, and with respect to the Securities, this
Agreement and such other related matters as you may reasonably require. In
giving such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to you. Such counsel may
also state that they have relied, to the extent they deem proper, upon
certificates of officers of the Company and certificates of public officials.
(h) At the Closing Time, (i) the Offering Memorandum, as it may then
be amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, (ii) except as may be disclosed in the Offering
Memorandum, there shall not have been, since the respective dates as of which
information is given in the Offering Memorandum, any material adverse change in
the financial condition, properties, assets, business, results of operations or
prospects of the Company and its subsidiaries and the Issuer taken as a whole,
(iii) each of the Company and the Issuer shall have complied in all material
respects with all agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied at or prior to the Closing
Time and (iv) the representations and warranties of the Company and the
Issuer set forth in Section 1(a) shall be accurate in all material respects as
though expressly made at and as of the Closing Time. At the Closing Time, you
shall have received a certificate of (x) the Chief Executive Officer or an
Executive Vice President of the Company and (y) the Vice President-Finance of
the Company, dated as of the Closing Time, to such effect. At the Closing Time,
you shall also have received a certificate signed by an Administrative Trustee,
dated as of the Closing Time, to such effect.
(i) At the time that this Agreement is executed by the Company, you
shall have received from Xxxxxx Xxxxxxxx a letter, dated such date, in form and
substance reasonably satisfactory to you confirming that they are independent
public accountants with respect to the Company within the meaning of the
Securities Act and the applicable published rules and regulations thereunder,
and otherwise satisfactory to you.
(j) At the Closing Time, you shall have received from Xxxxxx Xxxxxxxx
a letter, in form and substance reasonably satisfactory to you and dated as of
the Closing Time, to the effect that they reaffirm the statements made in the
letters furnished pursuant to Section 6(i) hereof, except that the specified
date referred to shall be a date not more than five days prior to the Closing
Time.
(k) At the Closing Time, counsel for the Initial Purchasers shall
have been furnished with all such documents, certificates and opinions as they
may reasonably request for the purpose of enabling them to pass upon the
issuance and sale of the Securities as contemplated in this Agreement and in
order to evidence the accuracy and completeness of
30
any of representations, warranties or statements of the Company and the Issuer,
the performance of any of the covenants of the Company and the Issuer, or the
fulfillment of any of the conditions herein contained; and all proceedings by
the Company and the Issuer at or prior to the Closing Time in connection with
the authorization, issuance and the of the Securities as contemplated in this
Agreement shall be reasonably satisfactory in form and substance to you and to
counsel for the Initial Purchasers.
(l) At the Closing Time, the Issuer and the Company shall have
executed and delivered the Registration Rights Agreement, and the Registration
Rights Agreement shall be in full force and effect.
(m) At the Closing Time, there shall not be any pending or
threatened legal or governmental proceedings against the Company or the Issuer
with respect to any of the transactions contemplated in this Agreement.
(n) The Preferred Securities shall have been approved by the
NASD as being eligible for trading in the PORTAL market.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, this Agreement may
be terminated by you on notice to the Company and the Issuer at any time at or
prior to the Closing Time, and such termination shall be without liability of
any party to any other party, except as provided in Section 5 hereof.
Notwithstanding any such termination, the provisions of Section 7 hereof shall
remain in effect. Xxxxxx, Read may in its sole discretion waive on behalf of the
Initial Purchasers compliance with any conditions to the obligations of the
Initial Purchasers hereunder.
Section 7. Indemnification
---------------
(a) The Company and the Issuer, jointly and severally(solely from
the assets of the Issuer), agree to indemnify, defend and hold harmless each
Initial Purchaser, and any person who controls any Initial Purchaser within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Initial Purchaser or
controlling person may incur arising out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Offering Memorandum or in the Offering Memorandum (or any amendment
or supplement thereto or any Exchange Act Document) or, arises out of or is
based upon any omission or alleged omission to state a material fact necessary
to make the statements made in such Preliminary Offering Memorandum or in such
Offering Memorandum (or any amendment or supplement thereto or any Exchange Act
Document) not misleading, except insofar as any such loss, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with information
furnished in writing by or on behalf of any Initial Purchaser to the Company
expressly for use with reference to such Initial Purchaser in such Preliminary
Offering Memorandum or in such Offering Memorandum (or any
31
amendment or supplement thereto) or arises out of or is based upon any omission
or alleged omission to state a material fact in connection with such information
necessary to make such information not misleading; provided further that the
-------- -------
foregoing indemnification with respect to any Preliminary Offering Memorandum
shall not inure to the benefit of any Initial Purchaser (or any person
controlling such Initial Purchaser) from whom the person asserting any such
losses, claims, damages or liabilities purchased any of the Preferred Securities
if a copy of the Offering Memorandum (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Initial Purchaser on the initial resale to such
person, if such is required by law, at or prior to the written confirmation of
the sale of such Preferred Securities to such person and if the Offering
Memorandum (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability, unless such failure resulted from
non-compliance by the Company with Section 4(c). For purposes of the last
proviso to the immediately preceding sentence, the term "Offering Memorandum"
shall not be deemed to include the documents incorporated therein by reference,
and no Initial Purchaser shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in any Preliminary Offering
Memorandum or the Offering Memorandum to any person.
If any action is brought against an Initial Purchaser or controlling person
in respect of which indemnity may be sought against the Company or the Issuer
pursuant to the foregoing paragraph, such Initial Purchaser shall promptly
notify the Company in writing of the institution of such action and the Company
shall assume the defense of such action, including the employment of counsel and
payment of expenses. Such Initial Purchaser or controlling person shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Initial Purchaser or
such controlling person unless the employment of such counsel shall have been
authorized in writing by the Company in connection with the defense of such
action or the Company shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Company (in which
case the Company shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by the Company and paid as incurred (it being
understood, however, that the Company shall not be liable for the expenses of
more than one separate counsel in any one action or series of related actions in
the same jurisdiction representing the indemnified parties who are parties to
such action). Anything in this paragraph to the contrary notwithstanding, the
Company shall not be liable for any settlement of any such claim or action
effected without its written consent.
(b) Each Initial Purchaser severally agrees to indemnify, defend and
hold harmless the Company and the Issuer, their respective directors and
officers and any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act from and against any loss,
expense, liability or claim (including the reasonable cost of investigation)
which, jointly or severally, the Company or any such person arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact
32
contained in and in conformity with information furnished in writing by or on
behalf of such Initial Purchaser to the Company expressly for use with reference
to such Initial Purchaser in the Offering Memorandum (or in the Offering
Memorandum as amended or supplemented), or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information necessary to make such information not misleading.
If any action is brought against the Company, the Issuer or any such
person in respect of which indemnity may be sought against any Initial Purchaser
pursuant to the foregoing paragraph, the Company, the Issuer or such person
shall promptly notify such Initial Purchaser in writing of the institution of
such action and such Initial Purchaser shall assume the defense of such action,
including the employment of counsel and payment of expenses. The Company, the
Issuer or such person shall have the right to employ its own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of the
Company, the Issuer or such person unless the employment of such counsel shall
have been authorized in writing by such Initial Purchaser in connection with the
defense of such action or such Initial Purchaser shall not have employed counsel
to have charge of the defense of such action or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to those available to such
Initial Purchaser (in which case such Initial Purchaser shall not have the right
to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by such
Initial Purchaser and paid as incurred (it being understood, however, that such
Initial Purchaser shall not be liable for the expenses of more than one separate
counsel in any one action or series of related actions in the same jurisdiction
representing the indemnified parties who are parties to such action). Anything
in this paragraph to the contrary notwithstanding, no Initial Purchaser shall be
liable for any settlement of any such claim or action affected without the
written consent of such Initial Purchaser.
(c) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 7 in respect of any losses, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, expenses, liabilities or claims
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Issuer on the one hand and the Initial
Purchasers on the other hand from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Issuer on the one hand and of the Initial Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
expenses, liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Issuer on
the one hand and the Initial Purchasers on the other shall be deemed to be in
the same proportion as the total proceeds from the offering of the Securities
(net of underwriting discounts and commissions but before deducting expenses)
received by the Company and the Issuer bear to the underwriting discounts and
commissions received by the Initial Purchasers. The relative fault of the
Company and the Issuer on the one hand and of the Initial Purchasers on the
33
other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company, the Issuer or
by the Initial Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages
and liabilities referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any claim or action.
(d) The Company, the Issuer and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in subsection (c)
above. Notwithstanding the provisions of this Section 7, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities distributed by it exceeds the amount of any
damages which such Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person quilty 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 Initial
Purchasers' obligations to contribute pursuant to this Section 7 are several in
proportion to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 7, and the covenants, warranties and representations of the Company and
the Issuer contained in this Agreement, shall remain in full force and effect
regardless of any investigation made by or on behalf of any Initial Purchaser,
or any person who controls any Initial Purchaser within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, or by or on behalf of the
Company, its directors and officers or any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and shall survive any termination of this Agreement or the issuance and delivery
of the Securities. The Company and each Initial Purchaser agree promptly to
notify the others of the commencement of any litigation or proceeding against it
and, in the case of the Company, against any of the Company's officers and
directors, in connection with the issuance and sale of the Securities, or in
connection with the Offering Memorandum.
Section 8. Termination of Agreement. The obligations of the several
-----------------------
Initial Purchasers hereunder shall be subject to termination in the absolute
discretion of the Initial Purchasers if, at any time prior to the time of
purchase, trading in securities on the New York Stock Exchange shall have been
suspended or minimum prices shall have been established on the New York Stock
Exchange, or if a banking moratorium shall have been declared either by the
United States or New York State authorities, or if the United States shall have
declared war in accordance with its constitutional processes or there shall have
occurred any material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in the reasonable judgement of the
Initial Purchasers, to make it impracticable to market the Securities.
34
If the Initial Purchaser elect to terminate this agreement as
provided in this Section 8, the Company shall be notified promptly in writing
delivered by facsimile or telegram.
If the sale to the Initial Purchasers of the Securities, as
contemplated by this Agreement, is not carried out by the Initial Purchasers for
any reason permitted under this Agreement or if such sale is not carried out
because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability hereunder
or thereunder (except to the extent provided in Sections 5 and 7 hereof), and
the Initial Purchasers shall be under no obligation or liability to the Company
under this Agreement (except to the extent provided in Section 7 hereof) or to
one another hereunder.
This Agreement may also terminate pursuant to the provisions of
Section 6 with the effect stated in such Section.
Section 9. Default by One or More of the Initial Purchasers. If
------------------------------------------------
one or more of the Initial Purchasers shall fail at the Closing Time to purchase
the Preferred Securities that it or they are obligated to purchase pursuant to
this Agreement (the "Defaulted Securities"), you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Initial Purchasers, or any other initial purchasers, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms set forth in this Agreement; if, however, you have not
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the total number of Preferred Securities, the non-defaulting Initial Purchasers
shall be obligated to purchase the full amount thereof in the proportions that
their respective Initial Share underwriting obligation proportions bear to the
underwriting obligation proportions of all non-defaulting Initial Purchasers, or
(b) if the number of Defaulted Securities exceeds 10% of the
total number of Preferred Securities, this Agreement shall terminate without
liability on the part of any non-defaulting Initial Purchaser.
No action taken pursuant to this Section shall relieve any
defaulting Initial Purchaser from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Offering Memorandum or in any other documents
or arrangements. As used herein, the term "Initial Purchaser" includes any
person substituted for an Initial Purchaser under this Section 9.
Section 10. Notices. All notices and other communications under
-------
the Agreement shall be in writing and shall be deemed to have been duly given,
upon receipt, if
35
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to you or the Initial Purchasers shall be directed to you at Xxxxxx,
Read, 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 (telecopier no.: (212)
593-0164), attention of Xxxxx X. Xxxx, with a copy to Xxxxxxx Xxxxxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telecopier no.: (212)
455-2502), attention of Xxx Xxxxxxxx, Esq.; and notices to the Company shall be
directed to Xxxxx National Corporation, 000 00xx Xxxxxx, XX, Xxxxxxxxxx, X.X.,
00000 (telecopier no.: (000) 000-0000), attention of Xxxxx X. Xxxxxx, Senior
Vice President and Managing Director of Legal Affairs, with a copy to Xxxxxxxx &
Xxxxxxxx, 0000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, X.X. (telecopier no.: (202) 293-
6330), attention: Xxxxxx X. Xxxxx, Xx.
Section 11. Parties. This Agreement is made solely for the benefit of
-------
the several Initial Purchasers, the Company and the Issuer and, to the extent
expressed, any person who controls the Company, the Issuer or any of the Initial
Purchasers within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, and the directors of the Company and the Issuer, their
officers, employees and trustees, and their respective executors,
administrators, successors and assigns and, subject to the provisions of
Section 9 hereof, no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include
any purchaser, as such purchaser, from any of the several Initial Purchasers of
the Securities. All of the obligations of the Initial Purchasers hereunder are
several and not joint.
Section 12. Representation of Initial Purchasers. You will act for the
------------------------------------
several Initial Purchasers in connection with the transactions contemplated by
this Agreement, and any action under or in respect of this Agreement taken by
you as Representatives will be binding upon all the Initial Purchasers.
Section 13. Governing Law and Time. This Agreement shall be governed
----------------------
by the laws of the State of New York, without giving effect to the provisions
thereof relating to conflicts of law. Specified times of the day refer to New
York City time.
Section 14. Counterparts. This Agreement may be executed in one or
------------
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
36
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Issuer and the
several Initial Purchasers in accordance with its terms.
Very truly yours,
XXXXX CAPITAL
By Xxxxx National Corporation,
as Depositor
By ___________________________
Name:
Title:
XXXXX NATIONAL CORPORATION
By ___________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
XXXXXX, READ & CO. INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By Xxxxxx, Read & Co. Inc.
By _________________________________________
Name:
Title:
By Friedman, Billings, Xxxxxx & Co., Inc.
By _________________________________________
Name:
Title:
36
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Issuer and the
several Initial Purchasers in accordance with its terms.
Very truly yours,
XXXXX CAPITAL
By Xxxxx National Corporation,
as Depositor
By ___________________________
Name:
Title:
XXXXX NATIONAL CORPORATION
By ___________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
XXXXXX, READ & CO. INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By Xxxxxx, Read & Co. Inc.
By ________________________________________
Name:
Title:
By Friedman, Billings, Xxxxxx & Co., Inc.
By ________________________________________
Name:
Title:
SCHEDULE A
Liquidation
Name of Initial Purchaser Amount
------------------------- ------
Xxxxxx, Read & Co. Inc. $ 86,250,000
Xxxxxxxx, Xxxxxxxx Xxxxxx & Co., Inc. 63,750,000
Total ................................................... 150,000,000
==============
=
SCHEDULE B
Material Subsidiaries
---------------------
Xxxxx Bank X.X.
Xxxxx AP Bank Limited
