1,000,000 Preferred Securities
Yardville Capital Trust
_____% Cumulative Trust Preferred Securities
(Liquidation Amount of $10 per Preferred Security)
UNDERWRITING AGREEMENT
__________, 0000
XXXXXXX X'XXXXX & PARTNERS, L.P.
Two World Trade Center, 000xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Yardville National Bancorp, a New Jersey corporation (the "Company")
and its financing subsidiary, Yardville Capital Trust, a Delaware business trust
(the "Trust", and hereinafter together with the Company, the "Offerors"),
propose that the Trust issue and sell to Sandler X'Xxxxx & Partners, L.P. (the
"Underwriter"), pursuant to the terms of this Agreement, 1,000,000 of the
Trust's _____% Cumulative Trust Preferred Securities, with a liquidation amount
of $10 per preferred security (the "Preferred Securities"), to be issued under
the Trust Agreement (as hereinafter defined), the terms of which are more fully
described in the Prospectus (as hereinafter defined). The aforementioned
1,000,000 Preferred Securities to be sold to the Underwriter are herein called
the "Firm Preferred Securities". Solely for the purpose of covering
over-allotments in the sale of the Firm Preferred Securities, the Offerors
further propose that the Trust issue and sell to the Underwriter, at the
Underwriter's option, up to an additional 150,000 Preferred Securities (the
"Option Preferred Securities") upon exercise of the over-allotment option
granted in Section 1 hereof. The Firm Preferred Securities and any Option
Preferred Securities are herein collectively referred to as the "Designated
Preferred Securities".
The Offerors hereby confirm as follows their agreement with the
Underwriter in connection with the proposed purchase of the Designated Preferred
Securities. The terms, conditions, covenants and agreements set forth in this
Agreement supersede and preempt the terms, conditions, covenants and agreements
of the parties set forth in any and all other agreements among the parties
hereto relating to the issuance of the Preferred Securities.
1. Sale, Purchase and Delivery of Designated Preferred Securities;
Description of Designated Preferred Securities.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to the Underwriter and
the Underwriter agrees to purchase from the Trust, at a purchase price of $10
per share (the "Purchase Price"), the Firm Preferred Securities. Because the
proceeds from the sale of the Firm Preferred Securities will be used to purchase
from the Company its Debentures (as hereinafter defined and as described in the
Prospectus), the Company shall pay to the Underwriter a commission of $_____ per
Firm.
Preferred Security purchased (the "Firm Preferred Securities Commission").
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants to the Underwriter, an option to purchase all or
any portion of the 150,000 Option Preferred Securities, and upon the exercise of
such option in accordance with this Section 1, the Offerors hereby agree that
the Trust shall issue and sell to the Underwriter all or any portion of the
Option Preferred Securities at the same Purchase Price per share paid for the
Firm Preferred Securities. Because the proceeds from the sale of the Option
Preferred Securities will be used to purchase from the Company its Debentures,
the Company shall pay to the Underwriter a commission of $_____ per Option
Preferred Security for each Option Preferred Security purchased (the "Option
Preferred Securities Commission"). The option hereby granted (the "Option")
shall expire 30 days after the date upon which the Registration Statement (as
hereinafter defined) becomes effective and may be exercised only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Firm Preferred Securities. The Option may be exercised
in whole or in part at any time (but not more than once) by you giving notice
(confirmed in writing) to the Trust setting forth the number of Option Preferred
Securities as to which the Underwriter is exercising the Option and the time,
date and place for payment and delivery of certificates for such Option
Preferred Securities. Such time and date of payment and delivery for the Option
Preferred Securities (the "Option Closing Date") shall be determined by you, but
shall not be earlier than two nor later than five full business days after the
exercise of such Option, nor in any event prior to the Closing Date (as
hereinafter defined). Certificates for the Option Preferred Securities will be
made available for inspection at least 24 hours prior to the Option Closing Date
at the offices of the DTC (as hereinafter defined), or its designated custodian,
or at such other location as specified by the Underwriter. The Option Closing
Date may be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities
Commission and delivery of the Firm Preferred Securities shall be made at the
offices of Sandler X'Xxxxx & Partners, L.P., Two World Trade Center, 104th
Floor, New York, New York 10048, or such other place as shall be agreed to by
you and the Offerors, at 11:00 a.m., New York time, on ____________, 1997, or at
such other time not more than five full business days thereafter as the Offerors
and you shall determine (the "Closing Date"). The Firm Preferred Securities
shall be issued in the form of one or more fully registered global securities
(the "Global Securities") in book-entry form in such denominations and
registered in the name of the nominee of The Depository Trust Company (the
"DTC") or in such names as the Underwriter may request in writing at least two
business days before the Closing Date. The Global Securities representing the
Firm Preferred Securities shall be made available for examination by the
Underwriter and counsel to the Underwriter not later than 9:30 a.m. Eastern
Standard Time on the last business day prior to the Closing Date. If the
Underwriter exercises the option to purchase any or all of the Option Preferred
Securities, payment of the Purchase Price and Option Preferred Securities
Commission and delivery of the certificate representing the Option Preferred
Securities shall be made on the Option Closing Date at the Underwriter's
offices, or at such other place as the Offerors and you shall determine. Such
payments shall be made to an account designated by the
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Trust by wire transfer or certified or bank cashier's check, in clearing house
or similar next day available funds, in the amount of the Purchase Price
therefor, against delivery by or on behalf of the Trust to you of certificates
for the Designated Preferred Securities to be purchased.
The Agreement contained herein with respect to the timing of the
Closing Date and Option Closing Date is intended to, and does, constitute an
express agreement, as described in Rule 15c6-1(a) and (d) promulgated under the
1934 Act (as defined herein), for a settlement date other than three business
days after the date of the contract.
(b) The Offerors propose that the Trust issue the Designated Preferred
Securities pursuant to an Amended and Restated Trust Agreement among Wilmington
Trust Company, as Property Trustee and as Delaware Trustee, the Administrative
Trustees named therein (collectively, the "Trustees"), and the Company, in
substantially the form heretofore delivered to the Underwriter, said Agreement
being hereinafter referred to as the "Trust Agreement". In connection with the
issuance of the Designated Preferred Securities, the Company proposes (i) to
issue its Subordinated Debentures (the "Debentures") pursuant to an Indenture,
dated as of ____________, 1997, between the Company and Wilmington Trust
Company, as Trustee (the "Indenture") and (ii) to guarantee certain payments on
the Designated Preferred Securities pursuant to a Guarantee Agreement between
the Company and Wilmington Trust Company, as guarantee trustee (the
"Guarantee"), to the extent described therein.
2. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant to the
Underwriter that:
(i) The reports filed with the Securities and Exchange Commission
(the "Commission") by the Company under the Securities Exchange Act of
1934, as amended (the "1934 Act") and the rules and regulations
thereunder (the "1934 Act Regulations") during the two year period
ending on the date hereof, at the time they were filed with the
Commission, complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations and did 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 in which they were
made, not misleading.
(ii) The Offerors have prepared and filed with the Commission a
registration statement on Form S-2 (File Numbers 333-35061 and
333-35061-01) for the registration of the Designated Preferred
Securities, the Guarantee and $11,500,000 aggregate principal amount of
Debentures under the Securities Act of 1933, as amended (the "1933
Act"), including the related prospectus subject to completion, and one
or more amendments to such registration statement may have been so
filed, in each case in conformity in all material respects with the
requirements of the 1933 Act, the rules and regulations promulgated
thereunder (the "1933 Act Regulations") and the Trust Indenture
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Act of 1939, as amended (the "Trust Indenture Act") and the rules and
regulations thereunder. Copies of such registration statement,
including any amendments thereto, each Preliminary Prospectus (as
defined herein) contained therein and the exhibits, financial
statements and schedules to such registration statement, as finally
amended and revised, have heretofore been delivered by the Offerors to
the Underwriter. After the execution of this Agreement, the Offerors
will file with the Commission (A) if such registration statement, as it
may have been amended, has been declared by the Commission to be
effective under the 1933 Act, a prospectus in the form most recently
included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with
such changes or insertions as are required by Rule 430A of the 1933 Act
Regulations ("Rule 430A") or permitted by Rule 424(b) of the 1933 Act
Regulations ("Rule 424(b)") and as have been provided to and not
objected to by the Underwriter prior to (or as are agreed to by the
Underwriter subsequent to) the execution of this Agreement, or (B) if
such registration statement, as it may have been amended, has not been
declared by the Commission to be effective under the 1933 Act, an
amendment to such registration statement, including a form of final
prospectus, necessary to permit such registration statement to become
effective, a copy of which amendment has been furnished to and not
objected to by the Underwriter prior to (or is agreed to by the
Underwriter subsequent to) the execution of this Agreement. As used in
this Agreement, the term "Registration Statement" means such
registration statement, as amended at the time when it was or is
declared effective under the 1933 Act, including (1) all financial
schedules and exhibits thereto, (2) all documents (or portions thereof)
incorporated by reference therein filed under the 1934 Act, and (3) any
information omitted therefrom pursuant to Rule 430A and included in the
Prospectus (as hereinafter defined); the term "Preliminary Prospectus"
means each prospectus subject to completion filed with such
registration statement or any amendment thereto including all documents
(or portions thereof) incorporated by reference therein under the 1934
Act (including the prospectus subject to completion, if any, included
in the Registration Statement and each prospectus filed pursuant to
Rule 424(a) under the 0000 Xxx); and the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 424(b)(1)
or (4) or, if no prospectus is required to be filed pursuant to Rule
424(b)(1) or (4), the prospectus included in the Registration
Statement, in each case including the financial schedules and all
documents (or portions thereof) incorporated by reference therein under
the 1934 Act. The date on which the Registration Statement becomes
effective is hereinafter referred to as the "Effective Date."
(iii) The documents incorporated by reference in the Preliminary
Prospectus or Prospectus or from which information is so incorporated
by reference, when they became effective or were filed with the
Commission, as the case may be, complied in all material respects with
the requirements of the 1934 Act and the 1934 Act Regulations, and when
read together and with the other information in the Preliminary
Prospectus or Prospectus, as the case may be, at the time the
Registration Statement became or becomes effective and at the Closing
Date and any Option Closing Date, did not or will not, as the case may
be, contain an untrue statement of a material fact or omit
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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.
(iv) No order preventing or suspending the use of any Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) has been issued by the Commission, nor has the Commission,
to the knowledge of the Offerors, threatened to issue such an order or
instituted proceedings for that purpose. Each Preliminary Prospectus,
at the time of filing thereof, (A) complied in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
(B) did not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty does not apply to statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Offerors by the Underwriter expressly for inclusion in
the Prospectus beneath the heading "Underwriting" (such information
referred to herein as the "Underwriter's Information").
(v) At the Effective Date and at all times subsequent thereto, up
to and including the Closing Date and, if applicable, the Option
Closing Date, the Registration Statement and any post-effective
amendment thereto (A) complied and will comply in all material respects
with the requirements of the 1933 Act, the 1933 Act Regulations and the
Trust Indenture Act (and the rules and regulations thereunder) and (B)
did not and will 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, not misleading. At the
Effective Date and at all times when the Prospectus is required to be
delivered in connection with offers and sales of Designated Preferred
Securities, including, without limitation, the Closing Date and, if
applicable, the Option Closing Date, the Prospectus, as amended or
supplemented, (A) complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the Trust Indenture Act (and the rules and regulations thereunder) and
(B) did not contain and will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty does not apply to
Underwriter's Information.
(vi) (A) The Company is duly organized, validly existing and in
good standing under the laws of the State of New Jersey, with full
corporate and other power and authority to own, lease and operate its
properties and conduct its business as described in and contemplated by
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and as
currently being conducted and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended (the
"BHC Act").
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(B) The Trust has been duly created and is validly existing
as a as a statutory business trust in good standing under the Delaware
Business Trust Act with the power and authority (trust and other) to
own its property and conduct its business as described in the
Registration Statement and Prospectus, to issue and sell its common
securities (the "Common Securities") to the Company pursuant to the
Trust Agreement, to issue and sell the Designated Preferred Securities,
to enter into and perform its obligations under this Agreement and to
consummate the transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership of its property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Trust; the Trust has
conducted and will conduct no business other than the transactions
contemplated by this Agreement and described in the Prospectus; the
Trust is not a party to or bound by any agreement or instrument other
than this Agreement, the Trust Agreement and the agreements and
instruments contemplated by the Trust Agreement and described in the
Prospectus; the Trust has no liabilities or obligations other than
those arising out of the transactions contemplated by this Agreement
and the Trust Agreement and described in the Prospectus; the Trust is
not a party to or subject to any action, suit or proceeding of any
nature; the Trust is not, and at the Closing Date or any Option Closing
Date will not be, to the knowledge of the Offerors, classified as an
association taxable as a corporation for United States federal income
tax purposes; and the Trust is, and as of the Closing Date or any
Option Closing Date will be, treated as a consolidated subsidiary of
the Company pursuant to generally accepted accounting principles.
(vii) The Company has one direct subsidiary and the Bank has five
direct subsidiaries. They are listed on Exhibit A attached hereto and
incorporated herein (the "Subsidiaries"). The Company does not own or
control, directly or indirectly, more than 5% of any class of equity
security of any corporation, association or other entity other than the
Subsidiaries. The Yardville National Bank is referred to herein as the
"Bank". Each Subsidiary is a bank, corporation, security corporation or
Delaware business trust duly incorporated (or created, as the case may
be), validly existing and in good standing under the laws of its
respective jurisdiction of incorporation. Each such Subsidiary has full
corporate and other power and authority to own, lease and operate its
properties and to conduct its business as described in and contemplated
by the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) and as
currently being conducted. The deposit accounts of the Bank are insured
by the Bank Insurance Fund administered by the Federal Deposit
Insurance Corporation up to the maximum amount provided by law; and no
proceedings for the modification, termination or revocation of any such
insurance are pending or, to the knowledge of the Offerors, threatened.
(viii) Each of the Company and the Subsidiaries is duly qualified
to transact business as a foreign corporation and is in good standing
in each other jurisdiction in which it owns or leases property or
conducts its business so as to require
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such qualification and in which the failure to so qualify would,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, business, prospects or
results of operations of the Company and the Subsidiaries on a
consolidated basis. All of the issued and outstanding shares of capital
stock of the Subsidiaries (A) have been duly authorized and are validly
issued, (B) are fully paid and nonassessable except to the extent such
shares may be deemed assessable under 12 U.S.C. Section 55, and (C)
except as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), are directly owned
by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, restriction upon voting or transfer,
preemptive rights, claim or equity. Except as disclosed in the
Prospectus, there are no outstanding rights, warrants or options to
acquire or instruments convertible into or exchangeable for any capital
stock or equity securities of the Offerors or the Subsidiaries.
(ix) The capital stock of the Company and the equity securities
of the Trust conform to the description thereof contained in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). The outstanding shares of capital stock and
equity securities of each Offeror have been duly authorized and validly
issued and are fully paid and nonassessable, and no such shares were
issued in violation of the preemptive or similar rights of any security
holder of an Offeror; no person has any preemptive or similar right to
purchase any shares of capital stock or equity securities of the
Offerors. Except as disclosed in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), there are
no outstanding rights, options or warrants to acquire any securities of
the Offerors, and there are no outstanding securities convertible into
or exchangeable for any such securities and no restrictions upon the
voting or transfer of any capital stock of the Company or equity
securities of the Trust pursuant to the Company's corporate charter or
bylaws, the Trust Agreement or any agreement or other instrument to
which an Offeror is a party or by which an Offeror is bound.
(x) (A) The Trust has all requisite power and authority to issue,
sell and deliver the Designated Preferred Securities in accordance with
and upon the terms and conditions set forth in this Agreement, the
Trust Agreement, the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus). All corporate and trust action required to be taken by the
Offerors for the authorization, issuance, sale and delivery of the
Designated Preferred Securities in accordance with such terms and
conditions has been validly and sufficiently taken. The Designated
Preferred Securities, when delivered in accordance with this Agreement,
will be duly and validly issued and outstanding, will be fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust, will be entitled to the benefits of the Trust Agreement, will
not be issued in violation of or subject to any preemptive or similar
rights, and will conform in all material respects to the description
thereof in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
and the Trust Agreement. None of the
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Designated Preferred Securities, immediately prior to delivery, will be
subject to any security interest, lien, mortgage, pledge, encumbrance,
restriction upon voting or transfer, preemptive rights, claim, equity
or other title defect.
(B) The Debentures have been duly and validly authorized,
and, when duly and validly executed, authenticated and issued as
provided in the Indenture and delivered to the Trust pursuant to the
Trust Agreement, will constitute valid and legally binding obligations
of the Company entitled to the benefits of the Indenture and will
conform in all material respects to the description thereof contained
in the Prospectus.
(C) The Guarantee has been duly and validly authorized, and,
when duly and validly executed and delivered to the guarantee trustee
for the benefit of the Trust, will constitute a valid and legally
binding obligation of the Company and will conform in all material
respects to the description thereof contained in the Prospectus.
(D) The Agreement as to Expenses and Liabilities (the
"Expense Agreement") has been duly and validly authorized, and, when
duly and validly executed and delivered to the Company, will constitute
a valid and legally binding obligation of the Company and will conform
in all material respects to the description thereof contained in the
Prospectus.
(xi) The Offerors and the Subsidiaries have complied with all
federal, state and local statutes, regulations, ordinances and rules
applicable to the ownership and operation of their properties or the
conduct of their businesses as described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) and as currently
being conducted except where the failure to so comply would not have a
material adverse effect on the condition, financial or otherwise,
earnings, affairs, business, prospects or results of operations of the
Offerors and the Subsidiaries on a consolidated basis.
(xii) The Offerors and the Subsidiaries have all permits,
easements, consents, licenses, franchises and other governmental and
regulatory authorizations from all appropriate federal, state, local or
other public authorities ("Permits") as are necessary to own and lease
their properties and conduct their businesses in the manner described
in and contemplated by the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted, except where the failure
to have such Permits would not have a material adverse effect on the
condition, financial or otherwise, earnings, affairs, business,
prospects or results of operations of the Offerors and the Subsidiaries
on a consolidated basis. All such Permits are in full force and effect
and each of the Offerors and the Subsidiaries are in all material
respects complying therewith, and no event has occurred that allows, or
after notice or lapse of time would allow, revocation or termination
thereof or will result in any other material impairment of the rights
of the
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holder of any such Permit, subject in each case to such qualification
as may be adequately disclosed in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), except
where the failure of such Permits to be in full force and effect or the
lack of such compliance would not have a material adverse effect on the
condition, financial or otherwise, earnings, affairs, business,
prospects or results of operations of the Offerors and the Subsidiaries
on a consolidated basis. Such Permits contain no restrictions that
would materially impair the ability of the Company or the Subsidiaries
to conduct their businesses in the manner consistent with their past
practices. Neither the Offerors nor any of the Subsidiaries has
received notice or otherwise has knowledge of any proceeding or action
relating to the revocation or modification of any such Permit.
(xiii) Neither of the Offerors nor any of the Subsidiaries is in
breach or violation of their corporate charter, by-laws or other
governing documents (including without limitation, the Trust
Agreement). Neither of the Offerors nor any of the Subsidiaries are,
and to the knowledge of the Offerors no other party is, in violation,
breach or default (with or without notice or lapse of time or both) in
the performance or observance of any term, covenant, agreement,
obligation, representation, warranty or condition contained in (A) any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, franchise, license, Permit or any other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound, except where such breach, violation or default
would not have a material adverse effect on the condition, financial or
otherwise, earnings, affairs, business, prospects, or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis, and to the knowledge of the Offerors, no other party has
asserted that the Offerors or any of the Subsidiaries is in such
violation, breach or default (provided that the foregoing shall not
apply to defaults by borrowers from the Banks), or (B) except as
disclosed in the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus), any order, decree, judgment,
rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having
jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties the breach, violation or default of which could
have a material adverse effect on the condition, financial or
otherwise, earnings, affairs, business, prospects, or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis.
(xiv) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus in not in existence, the most recent
Preliminary Prospectus) do not and will not conflict with, result in
the creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the Offerors
or the Subsidiaries or the Designated Preferred Securities pursuant to,
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constitute a breach or violation of, or constitute a default under,
with or without notice or lapse of time or both, any of the terms,
provisions or conditions of the charter or by-laws of the Company or
the Subsidiaries, the Trust Agreement, the Guarantee, the Indenture,
any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any other
agreement or instrument to which the Offerors or the Subsidiaries is a
party or by which any of them or any of their respective properties may
be bound or any order, decree, judgment, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the
Offerors or the Subsidiaries or any of their respective properties
which conflict, creation, imposition, breach, violation or default
would have either singly or in the aggregate a material adverse effect
on the condition, financial or otherwise, earnings, affairs, business,
prospects or results of operations of the Offerors and the Subsidiaries
on a consolidated basis. No authorization, approval, consent or order
of, or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body or
authority) is required in connection with the transactions contemplated
by this Agreement, the Trust Agreement, the Indenture, the Guarantee,
the Registration Statement and the Prospectus (or such Preliminary
Prospectus), except such as may be required under the 1933 Act, and
such as may be required under state securities laws in connection with
the purchase and distribution of the Designated Preferred Securities by
the Underwriter. No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is
required in connection with the transactions contemplated by this
Agreement, the Trust Agreement, the Indenture, the Guarantee, the
Registration Statement and the Prospectus, except such as have been
obtained under the 1933 Act, and such as may be required under state
securities laws or Interpretations or Rules of the National Association
of Securities Dealers, Inc. ("NASD") in connection with the purchase
and distribution of the Designated Preferred Securities by the
Underwriters.
(xv) The Offerors have all requisite corporate power and
authority to enter into this Agreement and this Agreement has been duly
and validly authorized, executed and delivered by the Offerors and
constitutes the legal, valid and binding agreement of the Offerors,
enforceable against the Offerors in accordance with its terms, except
as the enforcement thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting
creditors' rights generally and except as any indemnification or
contribution provisions thereof may be limited under applicable
securities laws. Each of the Indenture, the Trust Agreement, the
Guarantee and the Expense Agreement has been duly authorized by the
Company, and, when executed and delivered by the Company on the Closing
Date, each of said agreements will constitute a valid and legally
binding obligation of the Company and will be enforceable against the
Company in accordance with its terms, except as the enforcement thereof
may be limited by general principles of equity and by bankruptcy or
other laws relating to or affecting creditors' rights generally and
except as any indemnification or contribution provisions thereof may be
limited under applicable securities laws. The Trust Agreement has been
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duly authorized and, when executed by the proper officers of the Trust
and delivered by the Trust, will have been duly executed and delivered
by the Trust and will constitute the valid and legally binding
instrument of the Trust, enforceable in accordance with its terms. Each
of the Indenture, the Trust Agreement and the Guarantee has been duly
qualified under the Trust Indenture Act and will conform in all
material respects to the description thereof contained in the
Prospectus.
(xvi) The Company and the Subsidiaries have good and marketable
title in fee simple to all real property and good title to all personal
property owned by them and material to their business, in each case
free and clear of all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other defects except
such as are referred to in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) or such as do not
materially affect the value of such property in the aggregate and do
not materially interfere with the use made or proposed to be made of
such property; and all of the leases under which the Company or the
Subsidiaries hold real or personal property are valid, existing and
enforceable leases and in full force and effect with such exceptions as
are not material and do not materially interfere with the use made or
proposed to be made of such real or personal property, and neither the
Company nor any of the Subsidiaries is in default in any material
respect of any of the terms or provisions of any leases.
(xvii) KPMG Peat Marwick, LLP, who have certified certain of the
consolidated financial statements of the Company and the Subsidiaries
including the notes thereto, included or incorporated by reference in
the Registration Statement and Prospectus, are independent public
accountants with respect to the Company and the Subsidiaries, as
required by the 1933 Act and the 1933 Act Regulations.
(xviii) The consolidated financial statements including the notes
thereto, included by incorporation or otherwise in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) with respect to the
Company and the Subsidiaries comply in all material respects with the
1933 Act and the 1933 Act Regulations and present fairly the
consolidated financial position of the Company and the Subsidiaries as
of the dates indicated and the consolidated results of operations, cash
flows and shareholders' equity of the Company and the Subsidiaries for
the periods specified and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis.
The selected and summary consolidated financial data concerning the
Offerors and the Subsidiaries included in the Registration Statement
and the Prospectus (or such Preliminary Prospectus) comply in all
material respects with the 1933 Act and the 1933 Act Regulations,
present fairly the information set forth therein, and have been
compiled on a basis consistent with that of the consolidated financial
statements of the Offerors and the Subsidiaries in the Registration
Statement and the Prospectus (or such Preliminary Prospectus). The
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Company had an outstanding capitalization as set forth under
"Capitalization" in the Prospectus as of the date indicated therein and
there has been no material change therein since such date except as
disclosed in the Prospectus. The other financial, statistical and
numerical information included in the Registration Statement and the
Prospectus (or such Preliminary Prospectus) comply in all material
respects with the 1933 Act and the 1933 Act Regulations, present fairly
the information shown therein, and to the extent applicable have been
compiled on a basis consistent with the consolidated financial
statements of the Company and the Subsidiaries included in the
Registration Statement and the Prospectus (or such Preliminary
Prospectus).
(xix) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), except as
otherwise stated therein:
(A) neither of the Offerors nor any of the Subsidiaries have
sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree which is material to the condition
(financial or otherwise), earnings, business, prospects or
results of operations of the Offerors and the Subsidiaries on a
consolidated basis;
(B) there has not been any material adverse change in, or
any development which is reasonably likely to have a material
adverse effect on, the condition (financial or otherwise),
earnings, business, prospects or results of operations of the
Offerors and the Subsidiaries on a consolidated basis, whether or
not arising in the ordinary course of business;
(C) neither of the Offerors nor any of the Subsidiaries have
incurred any liabilities or obligations, direct or contingent, or
entered into any material transactions, other than in the
ordinary course of business which is material to the condition
(financial or otherwise), earnings, business, prospects or
results of operations of the Offerors and the Subsidiaries on a
consolidated basis;
(D) neither of the Offerors have declared or paid any
dividend, and neither of the Offerors nor any of the Subsidiaries
have become delinquent in the payment of principal or interest on
any outstanding borrowings; and
(E) there has not been any change in the capital stock,
equity securities, long-term debt, obligations under capital
leases or, other than in the ordinary course of business,
short-term borrowings of the Offerors or the Subsidiaries.
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(xx) Except as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Offerors, threatened,
against or involving the property or assets of the Offerors or the
Subsidiaries or any of their respective properties before or by any
court or any regulatory, administrative or governmental official,
commission, board, agency or other authority or body, or any
arbitrator, wherein an unfavorable decision, ruling or finding could
reasonably be expected to have a material adverse effect on the
consummation of this Agreement or the transactions contemplated herein
or the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the Subsidiaries
on a consolidated basis or which is required to be disclosed in the
Registration Statement or the Prospectus (or such Preliminary
Prospectus) and is not so disclosed.
(xxi) There are no contracts or other documents required to be
filed as exhibits to the Registration Statement by the 1933 Act or the
1933 Act Regulations or the Trust Indenture Act (or any rules or
regulations thereunder) which have not been filed as exhibits or
incorporated by reference to the Registration Statement, or that are
required to be summarized in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) that are not
so summarized.
(xxii) Neither of the Offerors has taken, directly or indirectly,
any action designed to result in or which has constituted or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Offerors to facilitate
the sale or resale of the Designated Preferred Securities, and neither
of the Offerors is aware of any such action taken or to be taken by any
officer, director, trustee or 5% or more shareholder of the Offerors.
(xxiii) The Offerors and the Subsidiaries own, or possess
adequate rights to use, all patents, copyrights, trademarks, service
marks, trade names and other rights necessary to conduct the businesses
now conducted by them in all material respects or as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and neither the Offerors nor the Subsidiaries
have received any notice of infringement or conflict with asserted
rights of others with respect to any patents, copyrights, trademarks,
service marks, trade names or other rights which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries on a
consolidated basis, and the Offerors do not know of any basis for any
such infringement or conflict.
(xxiv) Except as adequately disclosed in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus), no labor dispute involving the Company or the Subsidiaries
- 13 -
exists or, to the knowledge of the Offerors, is imminent which might be
expected to have a material adverse effect on the condition (financial
or otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated basis
or which is required to be disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). Neither the Company nor any of the Subsidiaries have
received notice of any existing or threatened labor dispute by the
employees of any of its principal suppliers, customers or contractors
which might be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis.
(xxv) The Offerors and the Subsidiaries have properly prepared
and timely filed all necessary federal, state, local and foreign tax
returns which are required to be filed and have paid all taxes shown as
due thereon and have paid all other taxes and assessments to the extent
that the same shall have become due, except such as are being contested
in good faith or where the failure to so timely and properly prepare
and file would not have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries on a
consolidated basis. The Offerors have no knowledge of any tax
deficiency which has been or might be assessed against the Offerors or
the Subsidiaries which, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the Subsidiaries
on a consolidated basis.
(xxvi) Each of the material contracts, agreements and instruments
described or referred to in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and each contract, agreement and instrument
filed as an exhibit to the Registration Statement is in full force and
effect and is the legal, valid and binding agreement of the Offerors or
the Subsidiaries, enforceable in accordance with its terms, except as
the enforcement thereof may be limited by general principles of equity
and by bankruptcy or other laws relating to or affecting creditors'
rights generally. Except as disclosed in the Prospectus (or such
Preliminary Prospectus), to the knowledge of the Offerors, no other
party to any such agreement is (with or without notice or lapse of time
or both) in breach or default in any material respect thereunder.
(xxvii) No relationship, direct or indirect, exists between or
among the Offerors or the Subsidiaries, on the one hand, and the
directors, officers, trustees, shareholders, customers or suppliers of
the Offerors or the Subsidiaries, on the other hand, which is required
to be described in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus) which is not adequately described therein.
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(xxviii) No person has the right to request or require the
Offerors or the Subsidiaries to register any securities for offering
and sale under the 1933 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the
Designated Preferred Securities except as adequately disclosed in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus).
(xxix) The Designated Preferred Securities have been approved for
quotation on the Nasdaq National Market subject to official notice of
issuance.
(xxx) Except as described (or referred to) in the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no contractual encumbrances or restrictions or
material legal restrictions, on the ability of the Subsidiaries (A) to
pay dividends or make any other distributions on its capital stock or
to pay any indebtedness owed to the Offerors, (B) to make any loans or
advances to, or investments in, the Offerors or (C) to transfer any of
its property or assets to the Offerors.
(xxxi) Neither of the Offerors is an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxxii) The Offerors have not distributed and will not distribute
prior to the Closing Date any prospectus in connection with the
Offering, other than a Preliminary Prospectus, the Prospectus, the
Registration Statement and the other materials permitted by the 1933
Act and the 1933 Act Regulations and reviewed by the Underwriter.
(xxxiii) The Company and each Subsidiary have in place and
effective such policies of insurance, with limits of liability in such
amounts, as are normal and prudent in the ordinary scope of business
similar to that of the Company and such Subsidiary in the respective
jurisdiction in which they conduct business.
(xxxiv) The provisions of any employee pension benefit plan
("Pension Plan") as defined in Section 3(2) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), in which the Company
or any Subsidiary is a participating employer are in substantial
compliance with ERISA, and neither the Company nor any Subsidiary is in
violation of ERISA. The Company, each Subsidiary, or the plan sponsor
thereof, as the case may be, has duly and timely filed the reports
required to be filed by ERISA in connection with the maintenance of any
Pension Plans in which the Company or any Subsidiary is a participating
employer, and no facts, including any "reportable event" as defined by
ERISA and the regulations thereunder, exist in connection with any
Pension Plan in which the Company or any Subsidiary is a participating
employer which might constitute grounds for the termination of such
plan by the Pension Benefit Guaranty Corporation or for the appointment
by the appropriate U.S. District Court of a trustee to administer any
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such plan. The provisions of any employee benefit welfare plan, as
defined in Section 3(1) of ERISA, in which the Company or any
Subsidiary is a participating employer, are in substantial compliance
with ERISA, and the Company, any Subsidiary, or the plan sponsor
thereof, as the case may be, has duly and timely filed the reports
required to be filed by ERISA in connection with the maintenance of any
such plans.
3. Offering by the Underwriter. After the Registration Statement
becomes effective or, if the Registration Statement is already effective, after
this Agreement becomes effective, the Underwriter proposes to offer the Firm
Preferred Securities for sale to the public upon the terms and conditions set
forth in the Prospectus. Because the NASD is expected to view the Preferred
Securities as interests in a direct participation program, the offering of the
Preferred Securities is being made in compliance with the applicable provisions
of Rule 2810 of the NASD's Conduct Rules. The Underwriter may from time to time
thereafter reduce the public offering price and change the other selling terms,
provided the proceeds to the Trust shall not be reduced as a result of such
reduction or change.
The Underwriter may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriter as the Underwriter may elect to dealers
chosen by it (the "Selected Dealers") at the public offering price set forth in
the Prospectus less the applicable Selected Dealers' concessions set forth
therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriter may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. Certain Covenants of the Offerors. The Offerors jointly and
severally covenant with the Underwriter as follows:
(a) The Offerors shall use their best efforts to cause the Registration
Statement and any amendments thereto, if not effective at the time of execution
of this Agreement, to become effective as promptly as possible. If the
Registration Statement has become or becomes effective pursuant to Rule 430A and
information has been omitted therefrom in reliance on Rule 430A, then, the
Offerors will prepare and file in accordance with Rule 430A and Rule 424(b)
copies of the Prospectus or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including the Prospectus) containing
all information so omitted and will provide evidence satisfactory to the
Underwriter of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice
in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when
the Prospectus or any supplement to the Prospectus or any amended
Prospectus has been filed;
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(ii) of the receipt of any comments or requests from the
Commission;
(iii) of any request of the Commission to amend or supplement the
Registration Statement, any Preliminary Prospectus or the Prospectus or
for additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, or suspending
the qualification of any of the Designated Preferred Securities for
offering or sale in any jurisdiction or the institution or threat of
institution of any proceedings for any of such purposes. The Offerors
shall use their best efforts to prevent the issuance of any such stop
order or of any other such order and if any such order is issued, to
cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriter, from time to time
without charge, as soon as available, as many copies as the Underwriter may
reasonably request of (i) the registration statement as originally filed and of
all amendments thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective, (ii) all exhibits
and documents incorporated therein or filed therewith, (iii) all consents and
certificates of experts in executed form, (iv) each Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under
the 1933 Act, the Offerors shall comply to the best of their ability with the
1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Designated
Preferred Securities as contemplated herein and in the Trust Agreement and the
Prospectus. The Offerors shall not file any amendment to the registration
statement as originally filed or to the Registration Statement and shall not
file any amendment thereto or make any amendment or supplement to any
Preliminary Prospectus or to the Prospectus of which you shall not previously
have been advised in writing and provided a copy a reasonable time prior to the
proposed filings thereof or to which you or counsel to the Underwriter shall
object. If it is necessary, in the Company's reasonable opinion or in the
reasonable opinion of the Company's counsel to amend or supplement the
Registration Statement or the Prospectus in connection with the distribution of
the Designated Preferred Securities, the Offerors shall forthwith amend or
supplement the Registration Statement or the Prospectus, as the case may be, by
preparing and filing with the Commission (provided you or counsel to the
Underwriter does not reasonably object), and furnishing to you, such number of
copies as you may reasonably request of an amendment or amendments of, or a
supplement or supplements to, the Registration Statement or the Prospectus, as
the case may be (in form and substance reasonably satisfactory to you and
counsel to the Underwriter). If any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus to correct an untrue statement
of a material fact or to include a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
- 17 -
not misleading, or if for any reason it is necessary at any time to amend or
supplement the Prospectus to comply with the 1933 Act and the 1933 Act
Regulations, the Offerors shall, subject to the second sentence of this
subsection (d), forthwith amend or supplement the Prospectus by preparing and
filing with the Commission, and furnishing to you, such number of copies as you
may reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Prospectus (in form and substance satisfactory to you and
counsel to the Underwriter) so that, as so amended or supplemented, the
Prospectus shall not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel to the
Underwriter in order to qualify the Designated Preferred Securities for offering
and sale under the securities or blue sky laws of such jurisdictions as you may
reasonably request and shall continue such qualifications in effect so long as
may be advisable for distribution of the Designated Preferred Securities;
provided, however, that the Offerors shall not be required to qualify to do
business as a foreign corporation or file a general consent to service of
process in any jurisdiction in connection with the foregoing (except with
respect to the offering and sale of the Designated Preferred Securities). The
Offerors shall file such statements and reports as may be required by the laws
of each jurisdiction in which the Designated Preferred Securities have been
qualified as above. The Offerors will notify you immediately of, and confirm in
writing, the suspension of qualification of the Designated Preferred Securities
or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations, and
furnish to you, as soon as practicable, but in any event not later than 15
months after the Effective Date, a consolidated earnings statement of the
Offerors conforming with the requirements of Section 11(a) of the 1933 Act and
Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated
Preferred Securities to be sold by the Trust hereunder in the manner specified
in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish
to the Underwriter copies of all reports and communications (financial or
otherwise) furnished by the Offerors to the holders of the Designated Preferred
Securities as a class, copies of all reports and financial statements filed with
or furnished to the Commission (other than portions for which confidential
treatment has been obtained from the Commission) or with any national securities
exchange or the Nasdaq National Market and such other documents, reports and
information concerning the business and financial conditions of the Offerors as
the Underwriter may reasonably request, other than such documents, reports and
information which the Offerors have a legal obligation not to reveal to the
Underwriter.
- 18 -
(i) For a period of 180 days from the Effective Date, the Offerors
shall not, directly or indirectly, offer for sale, sell or agree to sell or
otherwise dispose of any Designated Preferred Securities other than pursuant to
this Agreement, any other beneficial interests in the assets of the Trust or any
securities of the Trust or the Company that are substantially similar to the
Designated Preferred Securities or the Debentures, including any guarantee of
such beneficial interests or substantially similar securities, or securities
convertible into or exchangeable for or that represent the right to receive any
such beneficial interest or substantially similar securities, without the prior
written consent of the Underwriter.
(j) The Offerors shall use their best efforts to cause the Designated
Preferred Securities to become quoted on the Nasdaq National Market, or in lieu
thereof a national securities exchange, and to remain so quoted for at least
five years from the Effective Date or for such shorter period as may be
specified in a written consent of the Underwriter, provided this shall not
prevent the Company from redeeming the Designated Preferred Securities pursuant
to the terms of the Trust Agreement. If the Designated Preferred Securities are
exchanged for Debentures, the Company will use its best efforts to have the
Debentures promptly listed on the Nasdaq National Market or other organization
on which the Designated Preferred Securities are then listed, and to have the
Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which
is the later of (i) the day following the date on which the Underwriter's option
to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriter shall elect to purchase, except as described in
or contemplated by the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any action) which
will result in the Offerors or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, and there will not be any material
change in the capital stock, or any material increase in long-term debt,
obligations under capital leases or short-term borrowings of the Offerors and
the Subsidiaries on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date
hereof, without the prior written consent of the Underwriter, purchase, redeem
or call for redemption, or prepay or give notice of prepayment (or announce any
redemption or call for redemption, or any repayment or notice of prepayment) of
any of the Preferred Securities.
(m) The Offerors shall not take, directly or indirectly, any action
designed to result in or which has constituted or which might reasonably be
expected to cause or result in a violation of the Commission's Regulation M and
the Offerors are not aware of any such action taken or to be taken by any
affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Offerors will not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the
Offerors, the Subsidiaries or the offering of the Designated Preferred
Securities (the "Offering") without your prior written consent.
(o) The Offerors will use their best efforts to satisfy or cause to be
satisfied the conditions to the obligations of the Underwriter in Section 6
hereof.
(p) The Trust shall comply in all respects with the undertakings given
by the Trust in connection with the qualification or registration of the
Designated Preferred Securities for offering and sale under the Blue Sky Laws.
- 19 -
5. Payment of Expenses. Whether or not this Agreement is terminated or
the sale of the Designated Preferred Securities to the Underwriter is
consummated, the Company covenants and agrees that it will pay or cause to be
paid (directly or by reimbursement) all costs and expenses incident to the
performance of the obligations of the Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of
the initial registration statement, the Preliminary Prospectus or Prospectuses,
the Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements), the certificates for the Designated Preferred Securities and the
Preliminary and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto;
(b) all fees, expenses and disbursements of the Offerors' counsel
and accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as you may
request, including all filing fees and reasonable fees and disbursements of
counsel to the Underwriter in connection therewith, including, without
limitation, in connection with the preparation of the Preliminary and Final Blue
Sky Memoranda and any legal investment surveys and any supplements thereto;
(d) all fees and expenses incurred in connection with filings
made with the NASD;
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on the Nasdaq National Market;
(f) the cost of furnishing to you copies of the initial
registration statements, any Preliminary Prospectus, the Registration Statement
and the Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and
the fees and disbursements of counsel to any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes)
incurred in connection with the issuance and delivery of the Designated
Preferred Securities to the Underwriter;
(i) all expenses incident to the preparation, execution and
delivery of the Trust Agreement, the Indenture and the Guarantee; and
- 20 -
(j) all other costs and expenses incident to the performance of
the obligations of the Company hereunder and under the Trust Agreement that are
not otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by
this Agreement is not completed for any reason whatsoever, whether or not such
termination is allowable hereunder, the Company will pay you your accountable
out-of-pocket expenses in connection herewith or in contemplation of the
performance of your obligations hereunder, including without limitation travel
expenses, reasonable fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any investigation of the
Offerors and the Subsidiaries, or any preparation for the marketing, purchase,
sale or delivery of the Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
6. Conditions of the Underwriter's Obligations. The obligations of the
Underwriter to purchase and pay for the Firm Preferred Securities and, following
exercise of the option granted by the Offerors in Section 1 of this Agreement,
the Option Preferred Securities, are subject, in your sole discretion, to the
accuracy of and compliance with the representations and warranties and
agreements of the Offerors herein as of the date hereof and as of the Closing
Date (or in the case of the Option Preferred Securities, if any, as of the
Option Closing Date), to the accuracy of the written statements of the Offerors
made pursuant to the provisions hereof, to the performance by the Offerors of
their covenants and obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 11:00 a.m., New York time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Offerors or the Underwriter, shall be contemplated by
the Commission or any state authority. Any request on the part of the Commission
or any state authority for additional information (to be included in the
Registration Statement or Prospectus or otherwise) shall have been disclosed to
you and complied with to your satisfaction and to the satisfaction of your
counsel.
(b) The Underwriter shall not have advised the Company at or
before the Closing Date (and, if applicable, the Option Closing Date) that the
Registration Statement or any post-effective amendment thereto, or the
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Prospectus or any amendment or supplement thereto, contains an untrue statement
of a fact which, in your opinion, is material or omits to state a fact which, in
your opinion, is material and is required to be stated therein or is necessary
to make statements therein (in the case of the Prospectus or any amendment or
supplement thereto, in light of the circumstances under which they were made)
not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Trust Agreement, and
the Designated Preferred Securities, and the authorization and form of the
Registration Statement and Prospectus, other than financial statements and other
financial data, and all other legal matters relating to this Agreement and the
transactions contemplated hereby or by the Trust Agreement shall be reasonably
satisfactory in all respects to counsel to the Underwriter, and the Offerors and
the Subsidiaries shall have furnished to such counsel all documents and
information relating thereto that they may reasonably request to enable them to
pass upon such matters.
(d) Stradley, Ronon, Xxxxxxx & Xxxxx, LLP, counsel to the
Offerors, shall have furnished to you their signed opinion, dated the Closing
Date or the Option Closing Date, as the case may be, in form and substance
reasonably satisfactory to counsel to the Underwriter, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of New
Jersey, and is duly registered as a bank holding company under
the BHC Act. Each of the Subsidiaries is duly incorporated,
validly existing and in good standing under the laws of its
jurisdiction of incorporation. Each of the Company and the
Subsidiaries has full corporate power and authority to own or
lease its properties and to conduct its business as such business
is described in the Prospectus and is currently conducted in all
material respects. The Company and each Subsidiary are qualified
to do business as foreign corporations under the corporation laws
of each jurisdiction in which the Company or such Subsidiary, as
the case may be, owns or leases properties, has an office, or in
which business is conducted and such qualification is required.
All outstanding shares of capital stock of the Subsidiaries have
been duly authorized and validly issued and are fully paid and
nonassessable except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 55 and, to the best of such
counsel's knowledge, except as disclosed in the Prospectus, there
are no outstanding rights, options or warrants to purchase any
such shares or securities convertible into or exchangeable for
any such shares.
(ii) The capital stock, Debentures and Guarantee of the
Company and the equity securities of the Trust conform to the
description thereof contained in the Prospectus in all material
respects. The capital stock of the Company authorized and issued
as of June 30, 1997 is as set forth under the caption
"Capitalization" in the Prospectus, has been duly authorized and
validly issued, and is fully paid and nonassessable. To the best
of such counsel's knowledge, there are no outstanding rights,
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options or warrants to purchase, no other outstanding securities
convertible into or exchangeable for, and no commitments, plans
or arrangements to issue, any shares of capital stock of the
Company or equity securities of the Trust, except as described in
the Prospectus.
(iii) The issuance, sale and delivery of the Designated
Preferred Securities and Debentures in accordance with the terms
and conditions of this Agreement and the Indenture have been duly
authorized by all necessary actions of the Offerors. All of the
Designated Preferred Securities have been duly and validly
authorized and, when delivered in accordance with this Agreement
will be duly and validly issued, fully paid and nonassessable,
and will conform in all material respects to the description
thereof in the Registration Statement, the Prospectus and the
Trust Agreement. The Designated Preferred Securities have been
approved for quotation on the Nasdaq National Market subject to
official notice of issuance. There are no preemptive or other
rights to subscribe for or to purchase, and other than as
disclosed in the Prospectus no restrictions upon the voting or
transfer of, any shares of capital stock or equity securities of
the Offerors or the Subsidiaries pursuant to the corporate
charter, by-laws or other governing documents (including without
limitation, the Trust Agreement) of the Offerors or the
Subsidiaries, or, to the best of such counsel's knowledge, any
agreement or other instrument to which either Offeror or any of
the Subsidiaries is a party or by which either Offeror or any of
the Subsidiaries may be bound.
(iv) The Offerors have all requisite corporate and trust
power to enter into and perform their obligations under this
Agreement, and this Agreement has been duly and validly
authorized, executed and delivered by the Offerors and
constitutes the legal, valid and binding obligations of the
Offerors enforceable in accordance with its terms, except as the
enforcement hereof or thereof may be limited by general
principles of equity and by bankruptcy or other laws relating to
or affecting creditors' rights generally, and except as the
indemnification and contribution provisions hereof may be limited
under applicable laws and certain remedies may not be available
in the case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act,
has been duly authorized, executed and delivered by the Company,
and is a valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject to the effect
of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity.
(vi) The Debentures have been duly authorized, executed,
authenticated and delivered by the Company, are entitled to the
benefits of the Indenture and are legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy,
- 23 -
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and
of general principles of equity.
(vii) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally
binding obligation of the Company enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting
the rights and remedies of creditors generally and of general
principles of equity.
(viii) To the best of such counsel's knowledge, neither of
the Offerors nor any of the Subsidiaries is in breach or
violation of, or default under, with or without notice or lapse
of time or both, its corporate charter, by-laws or governing
document (including without limitation, the Trust Agreement). The
execution, delivery and performance of this Agreement, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement and the
Indenture, the issue and sale of the Designated Preferred
Securities and the Debentures, the compliance by the Company with
the provisions of the Designated Preferred Securities, the
Debentures, the Indenture and this Agreement and the consummation
of the transactions contemplated by this Agreement and the Trust
Agreement do not and will not conflict with, result in the
creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the
Offerors or the Subsidiaries or the Designated Preferred
Securities pursuant to, or constitute a material breach or
violation of, or constitute a material default under, with or
without notice or lapse of time or both, any of the terms,
provisions or conditions of the charter, by-laws or governing
document (including without limitation, the Trust Agreement) of
the Offerors or the Subsidiaries, or to the best of such
counsel's knowledge, any material contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease, franchise,
license or any other agreement or instrument to which either
Offeror or the Subsidiaries is a party or any order, decree,
judgment, franchise, license, Permit, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality known to such counsel having jurisdiction over
the Offerors or the Subsidiaries which, in each case, is material
to the Offerors and the Subsidiaries on a consolidated basis. No
authorization, approval, consent or order of, or filing,
registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is
required under New Jersey law in connection with the transactions
contemplated by this Agreement in connection with the purchase
and distribution of the Designated Preferred Securities by the
Underwriter, except such as may be required under state
securities laws or Interpretations or Rules of the NASD in
connection with the purchase and distribution of the Designated
Preferred Securities by the Underwriter, as to which no opinion
need be rendered.
(ix) To the best of such counsel's knowledge, holders of
securities of the Offerors either do not have any right that, if
exercised, would require the Offerors to cause such securities to
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be included in the Registration Statement or have waived such
right. To the best of such counsel's knowledge, neither the
Offerors nor any of the Subsidiaries is a party to any agreement
or other instrument which grants rights for or relating to the
registration of any securities of the Offerors.
(x) Except as set forth in the Registration Statement and
the Prospectus, to the best of such counsel's knowledge, (i) no
action, suit or proceeding at law or in equity is pending or
threatened in writing to which the Offerors or the Subsidiaries
is or may be a party, and (ii) no action, suit or proceeding is
pending or threatened in writing against or affecting the
Offerors or the Subsidiaries or any of their properties, before
or by any court or governmental official, commission, board or
other administrative agency, authority or body, or any
arbitrator, wherein an unfavorable decision, ruling or finding
could reasonably be expected to have a material adverse effect on
the consummation of this Agreement or the issuance and sale of
the Designated Preferred Securities as contemplated herein or the
condition (financial or otherwise), earnings, affairs, business,
or results of operations of the Offerors and the Subsidiaries on
a consolidated basis or which is required to be disclosed in the
Registration Statement or the Prospectus and is not so disclosed.
(xi) No authorization, approval, consent or order of or
filing, registration or qualification with, any person
(including, without limitation, any court, governmental body or
authority) is required in connection with the transactions
contemplated by this Agreement, the Trust Agreement, the
Guarantee Agreement, the Expense Agreement, the Indenture, the
Registration Statement and the Prospectus, except such as have
been obtained under the 1933 Act, and except such as may be
required under state securities laws or Interpretations or Rules
of the NASD in connection with the purchase and distribution of
the Designated Preferred Securities by the Underwriter, as to
which no opinion need be rendered.
(xii) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the financial
statements or other financial or statistical data included
therein or omitted therefrom and Underwriter's Information, as to
which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations as of their respective dates of
effectiveness and in each case at the Closing Date or any Option
Closing Date.
(xiii) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character
required to be disclosed in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration
Statement that are not so disclosed or filed.
(xiv) The statements under the captions, "Description of
Preferred Securities", "Description of the Subordinated
Debentures", "Description of the Guarantee", "Expense Agreement",
"Relationship Among the Preferred Securities, Subordinated
Debentures and the Guarantee", "Certain Federal Income Tax
Consequences", and "Certain ERISA Considerations" in the
Prospectus (or incorporated therein by reference), insofar as
such statements constitute a summary of legal and regulatory
matters, documents, instruments or proceedings referred to
therein are accurate in all material respects, other than
financial and statistical data as to which said counsel expresses
no opinion or belief.
- 25 -
(xv) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective
under the 1933 Act; any required filing of the Prospectus
pursuant to Rule 424(b) has been made within the time period
required by Rule 424(b); to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for a stop order are
pending or threatened by the Commission.
(xvi) Except as set forth (or referred to) in the
Prospectus, to the best of such counsel's knowledge, there are no
contractual encumbrances or restrictions, or material legal
restrictions on the ability of the Subsidiaries (A) to pay
dividends or make any other distributions on its capital stock or
to pay indebtedness owed to the Offerors, (B) to make any loans
or advances to, or investments in, the Offerors or (C) to
transfer any of its property or assets to the Offerors.
(xvii) To the best of such counsel's knowledge, the business
and operations of the Offerors and the Subsidiaries comply in all
material respects with all statutes, ordinances, laws, rules and
regulations applicable thereto which are material to the Offerors
and the Subsidiaries on a consolidated basis, except in those
instances where non-compliance would not materially impair the
ability of the Offerors and the Subsidiaries to conduct their
business.
(xviii) The Trust is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in Investment Company Act of 1940, as amended.
(xix) The statements of law or legal conclusions and
opinions set forth in the Registration Statement under the
caption "Certain Federal Income Tax Consequences," subject to the
assumptions and conditions described therein, constitute such
counsel's opinion.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Offerors including, without limitation, certificates as to the
identity of any and all material contracts, indentures, mortgages, deeds of
trust, loans or credit agreements, notes, leases, franchises, licenses or other
agreements or instruments, and all material permits, easements, consents,
licenses, franchises and government regulatory authorizations, for purposes of
paragraphs (viii), (xiii) and (xvii) hereof and certificates of public
officials.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Offerors
and with their independent public accountants and with you and your counsel, at
which conferences such counsel made inquiries of such officers, representatives
and accountants and discussed in detail the contents of the Registration
Statement and Prospectus and such counsel has no reason to believe (A) that the
Registration Statement or
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any amendment thereto (except for the financial statements and related schedules
and statistical data included therein or omitted therefrom or Underwriter's
Information, as to which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or (B)
that the Prospectus or any amendment or supplement thereto (except for the
financial statements and related schedules and statistical data included therein
or omitted therefrom or Underwriter's Information, as to which such counsel need
express no opinion), at the time the Registration Statement became effective
(or, if the term "Prospectus" refers to the prospectus first filed pursuant to
Rule 424(b) of the 1933 Act Regulations, at the time the Prospectus was issued),
at the time any such amended or supplemented Prospectus was issued, at the
Closing Date and, if applicable, the Option Closing Date, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (C) that there is any amendment to the Registration
Statement required to be filed that has not already been filed.
(e) Stradley, Ronon, Xxxxxxx & Xxxxx, LLP, as Delaware counsel to
the Offerors, shall have furnished to you their signed opinion, dated as of
Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to counsel to the Underwriter, to the effect that:
(i) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business
Trust Act, 12 Del. C. xx.xx. 3801 et seq. (the "Delaware Act"),
with the business trust power and authority to (a) own its
property and conduct its business as described in the Prospectus,
(b) execute and deliver, and perform its obligations under, this
Agreement, and (c) issue and perform its obligations under the
Preferred Securities. All filings required under the laws of the
State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
(ii) The Trust Agreement constitutes a legal, valid and
binding obligation of the Company and the trustees of the Trust
in accordance with its terms, except to the extent that
enforcement thereof may be limited by (a) bankruptcy, insolvency,
receivership, liquidation, fraudulent conveyance, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and remedies, (b) general
principles of equity (regardless of whether considered and
applied in a proceeding in equity or at law), and (c)
considerations of public policy and the effect of applicable law
relating to fiduciary duties.
(iii) Under the Trust Agreement and the Delaware Act, all
necessary trust action has been taken on the part of the Trust to
duly authorize the execution and delivery of this Agreement by
the Trust and the performance of its obligations hereunder.
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(iv) The Preferred Securities have been duly authorized for
issuance by the Trust Agreement and, when issued and delivered in
accordance with the terms of the Trust Agreement and this
Agreement and as described in the Prospectus, will be validly
issued and (subject to the terms of the Trust Agreement) fully
paid and non-assessable undivided beneficial interests in the
assets of the Trust. The holders of the Preferred Securities will
be entitled to the benefits of the Trust Agreement (subject to
the limitations set forth in paragraph (ii) above) and will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the Delaware General Corporation Law. Such opinion may note that
the holders of the Preferred Securities may be required to make
payment or provide indemnity or security as set forth in the
Trust Agreement.
(v) Under the Trust Agreement and the Delaware Act, the
issuance of the Preferred Securities is not subject to preemptive
rights.
(vi) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the purchase by the Trust
of the Debentures, the execution, delivery and performance by the
Trust of this Agreement, and the consummation by the Trust of the
transactions contemplated by this Agreement will not (a) to our
knowledge constitute a violation of or default under any
indenture, mortgage, deed of trust, loan agreement or other
agreement that is set forth on Annex A to such opinion; (b)
violate any of the provisions of the Certificate of Trust or the
Trust Agreement or (c) violate any applicable Delaware law or
administrative regulation.
(vii) The issuance, sale and delivery of the Debentures, the
execution, delivery and performance by the Company of this
Agreement, and the consummation by the Company of the
transactions contemplated by this Agreement will not violate any
applicable Delaware law or administrative regulation.
(viii) Assuming that the Trust derives no income from or
connected with services provided within the State of Delaware and
has no assets, activities (other than having a Delaware trustee
as required by the Delaware Act and the filing of documents with
the Secretary of State of the State of Delaware) or employees in
the State of Delaware, no filing with, or authorization,
approval, consent, license, order, registration, qualification or
decree of, any Delaware court or Delaware governmental authority
or agency (other than as may be required under the securities or
blue sky laws of the State of Delaware as to which such counsel
may express no opinion) is necessary or required to be obtained
by the Trust solely in connection with the due authorization,
execution and delivery of this Agreement by the Trust or the
offering, issuance, sale or delivery of the Preferred Securities
by the Trust in accordance with the Trust Agreement and the
Prospectus.
- 28 -
(ix) To such counsel's knowledge, there are no actions,
suits or proceedings pending or judgments outstanding against the
Trust in any court or agency or instrumentality of the United
States of America that relate to or place or may place in
question the validity or enforceability of this Agreement or the
issuance and sale of the Preferred Securities and the Common
Securities by the Trust or the purchase of the Debentures by the
Trust.
(x) The Common Securities have been duly authorized by the
Trust Agreement and are duly and validly issued undivided
beneficial interests in the assets of the Trust and are entitled
to the benefits of the Trust Agreement.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting 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.
(f) Xxxxxxxx, Xxxxxx & Finger, counsel to Wilmington Trust Company (the
"Trust Company") shall have furnished to you their signed opinion, dated the
Closing Date or the Option Closing Date, as the case may be, in form and
substance reasonably satisfactory to counsel to the Underwriter, to the effect
that:
(i) The Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation with trust
powers under the laws of the State of Delaware.
(ii) The Trust Company, as Indenture Trustee, has the
requisite power and authority to execute, deliver and perform its
obligations under the Indenture, and has taken all necessary
corporate action to authorize the execution, delivery and
performance by it of the Indenture.
(iii) The Trust Company, as Guarantee Trustee, has the
requisite power and authority to execute, deliver and perform its
obligations under the Guarantee Agreement, and has taken all
necessary corporate action to authorize the execution, delivery
and performance by it of the Guarantee Agreement.
(iv) The Trust Company, as Property Trustee, has the
requisite power and authority to execute and deliver the Trust
Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
- 29 -
(v) Each of the Indenture and the Guarantee Agreement has
been duly executed and delivered by the Trust Company, as
Indenture Trustee and Guarantee Trustee, respectively, and
constitutes a legal, valid and binding obligation of the
Indenture Trustee and the Guarantee Trustee, respectively,
enforceable against the Indenture Trustee and the Guarantee
Trustee, respectively in accordance with its respective terms,
except that certain payment obligations may be enforceable solely
against the assets of the Trust and except that such enforcement
may be limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation, fraudulent conveyance and transfer of
other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability
is considered in a proceeding in equity or at law), and by the
effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
(vi) The Debentures delivered on the date hereof have been
duly authenticated by the Trust Company, as Indenture Trustee, in
accordance with the terms of the Indenture.
(g) Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., counsel to the
Underwriter, shall have furnished you their signed opinion, dated the Closing
Date or the Option Closing Date, as the case may be, with respect to the
sufficiency of all corporate procedures and other legal matters relating to this
Agreement, the validity of the Designated Preferred Securities, the Registration
Statement, the Prospectus and such other related matters as you may reasonably
request and there shall have been furnished to such counsel such documents and
other information as they may request to enable them to pass on such matters. In
giving such opinion, Xxxxxxx, Spidi, Sloane & Xxxxx, P.C. may rely as to matters
of fact upon statements and certifications of officers of the Offerors and of
other appropriate persons and may rely as to matters of law, other than law of
the United States, and upon the opinions of Stradley, Ronon, Xxxxxxx & Young,
LLP described herein.
(h) On the date of this Agreement and on the Closing Date (and,
if applicable, any Option Closing Date), the Underwriter shall have received
from KPMG Peat Marwick, LLP a letter, dated the date of this Agreement and the
Closing Date (and, if applicable, the Option Closing Date), respectively, in
form and substance satisfactory to the Underwriter, confirming that they are
independent public accountants with respect to Company, within the meaning of
the 1933 Act and the 1933 Act Regulations, and stating in effect that:
(i) In their opinion, the consolidated financial statements
of the Company audited by them and included in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933
Act Regulations.
(ii) On the basis of the procedures specified by the
American Institute of Certified Public Accountants as described
- 30 -
in SAS No. 71, "Interim Financial Information", inquiries of
officials of the Company responsible for financial and accounting
matters, and such other inquiries and procedures as may be
specified in such letter, which procedures do not constitute an
audit in accordance with U.S. generally accepted auditing
standards, nothing came to their attention that caused them to
believe that, if applicable, the unaudited interim consolidated
financial statements of the Company included in the Registration
Statement do not comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and 1933
Act Regulations or are not in conformity with U.S. generally
accepted accounting principles applied on a basis substantially
consistent, except as noted in the Registration Statement, with
the basis for the audited consolidated financial statements of
the Company included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting
an audit in accordance with U.S. generally accepted auditing
standards, consisting of a reading of the unaudited interim
financial statements and other information referred to below, a
reading of the latest available unaudited condensed consolidated
financial statements of the Company, inspection of the minute
books of the Company since the date of the latest audited
financial statements of the Company included in the Registration
Statement, inquiries of officials of the Company responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) as of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated capital stock of the Company,
any increase in the consolidated debt of the Company, any
decreases in consolidated total assets or shareholders
equity of the Company, or any changes, decreases or
increases in other items specified by the Underwriters, in
each case as compared with amounts shown in the latest
unaudited interim consolidated statement of financial
condition of the Company included in the Registration
Statement except in each case for changes, increases or
decreases which the Registration Statement specifically
discloses, have occurred or may occur or which are described
in such letter; and
(B) for the period from the date of the latest
unaudited interim consolidated financial statements included
in the Registration Statement to the specified date referred
to in Clause (iii)(A), there were any decreases in the
consolidated interest income, net interest income, or net
income of the Company or in the per share amount of net
income of the Company, or any changes, decreases or
increases in any other items specified by the Underwriter,
in each case as compared with the comparable period of the
preceding year and with any other period of corresponding
length specified by the Underwriter, except in each case for
increases or decreases which the Registration Statement
discloses have occurred or may occur, or which are described
in such letter.
-31-
(iv) In addition to the audit referred to in their report
included in the Registration Statement and the limited
procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (ii) and (iii) above, they
have carried out certain specified procedures, not constituting
an audit in accordance with U.S. generally accepted auditing
standards, with respect to certain amounts, percentages and
financial information specified by the Underwriter which are
derived from the general accounting records and consolidated
financial statements of the Company which appear in the
Registration Statement specified by the Underwriter in the
Registration Statement, and have compared such amounts,
percentages and financial information with the accounting records
and the material derived from such records and consolidated
financial statements of the Company have found them to be in
agreement.
In the event that the letters to be delivered referred to above
set forth any such changes, decreases or increases as specified in Clauses
(iii)(A) or (iii)(B) above, or any exceptions from such agreement specified in
Clause (iv) above, it shall be a further condition to the obligations of the
Underwriter that the Underwriter shall have determined, after discussions with
officers of the Company responsible for financial and accounting matters, that
such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
Clause (iii)(A) above as compared with the amounts shown in the latest unaudited
consolidated statement of financial condition of the Company included in the
Registration Statement, (y) reflect a material adverse change in the items
specified in Clause (iii)(B) above as compared with the corresponding periods of
the prior year or other period specified by the Underwriter, or (z) reflect a
material change in items specified in Clause (iv) above from the amounts shown
in the Preliminary Prospectus distributed by the Underwriter in connection with
the offering contemplated hereby or from the amounts shown in the Prospectus.
(i) At the Closing Date and, if applicable, the Option Closing
Date, you shall have received certificates of the chief executive officer and
the chief financial and accounting officer of the Company, which certificates
shall be deemed to be made on behalf of the Company dated as of the Closing Date
and, if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (i) the representations and
warranties of the Company set forth in Section 2(a) hereof are accurate as of
the Closing Date and, if applicable, the Option Closing Date, and that the
Offerors have complied with all agreements and satisfied all conditions on their
part to be performed or satisfied at or prior to such Closing Date; (ii) since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material adverse change in
the condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Offerors and the Subsidiaries on a consolidated
basis; (iii) since such dates there has not been any material transaction
entered into by the Offerors or the Subsidiaries other than transactions in the
ordinary course of business; and (iv) they have carefully examined the
Registration Statement and the Prospectus as amended or supplemented and nothing
has come to their attention that would lead them to believe that either the
Registration Statement or the Prospectus, or any amendment or supplement thereto
as of their respective effective or issue dates, contained, and the Prospectus
as amended or supplemented at such Closing Date (and, if applicable, the Option
Closing Date), contains any untrue statement of a material fact, or omits to
state a material fact required to be stated therein or necessary in order to
make the statements
- 32 -
therein, in the light of the circumstances under which they were made, not
misleading; and (v) covering such other matters as you may reasonably request.
The officers' certificate of the Company shall further state that no stop order
affecting the Registration Statement is in effect or, to their knowledge,
threatened.
(j) At the Closing Date and, if applicable, the Option Closing
Date, you shall have received a certificate of an authorized representative of
the Trust to the effect that to the best of his or her knowledge based upon a
reasonable investigation, the representations and warranties of the Trust in
this Agreement are true and correct as though made on and as of the Closing Date
(and, if applicable, the Option Closing Date); the Trust has complied with all
the agreements and satisfied all the conditions required by this Agreement to be
performed or satisfied by the Trust on or prior to the Closing Date and since
the most recent date as of which information is given in the Prospectus, except
as contemplated by the Prospectus, the Trust has not incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise) of the Trust.
(k) On the Closing Date, you shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
(l) The NASD, upon review of the terms of the public offering of
the Designated Preferred Securities, shall not have objected to the
Underwriter's participation in such offering. The Preferred Securities, the
Guarantee and the Debentures shall have been qualified or registered for sale,
or subject to an available exemption from such qualification or registration,
under the Blue Sky Laws of such jurisdictions as shall have been reasonably
specified by the Underwriter.
(m) Prior to the Closing Date and, if applicable, the Option
Closing Date, the Offerors shall have furnished to you and counsel to the
Underwriter all such other documents, certificates and opinions as they have
reasonably requested.
All opinions, certificates, letters and other documents shall be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you. The Offerors shall furnish you with
conformed copies of such opinions, certificates, letters and other documents as
you shall reasonably request.
If any of the conditions referred to in this Section 6 shall not
have been fulfilled when and as required by this Agreement, this Agreement and
all of the Underwriter's obligations hereunder may be terminated by you on
notice to the Company at, or at any time before, the Closing Date or the Option
Closing Date, as applicable. Any such termination shall be without liability of
the Underwriter to the Offerors.
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7. Indemnification and Contribution.
(a) The Offerors jointly and severally agree to indemnify and
hold harmless the Underwriter, each of its directors, partners, officers and
agents, and each person, if any, who controls the Underwriter within the meaning
of the 1933 Act, against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and reasonable attorney
fees and expenses), joint or several, arising out of or based upon (i) any
untrue statement or alleged untrue statement of a material fact made by the
Company or the Trust contained in the Registration Statement, any Preliminary
Prospectus or the Prospectus, or in any amendment or supplement thereto, (ii)
any blue sky application or other document executed by the Company or the Trust
specifically for that purpose or based upon written information furnished by the
Company or the Trust filed in any state or other jurisdiction in order to
qualify any of the Designated Preferred Securities under the securities laws
thereof (any such application, document or information being hereinafter
referred to as a "Blue Sky Application"), (iii) any omission or alleged omission
to state a material fact in the registration statement as originally filed or
the Registration Statement, any Preliminary Prospectus or the Prospectus, or in
any amendment or supplement thereto, or in any Blue Sky Application required to
be stated therein or necessary to make the statements therein not misleading,
and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and attorney fees), joint or
several, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus or the
Prospectus, or in any amendment or supplement thereto, or arising out of or
based upon any omission or alleged omission to state therein 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 or
(iv) the enforcement of this indemnification provision or the contribution
provisions of Section 7(d); and shall reimburse each such indemnified party for
any reasonable legal or other expenses as incurred, but in no event less
frequently than 30 days after each invoice is submitted, incurred by them in
connection with investigating or defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action,
notwithstanding the possibility that payments for such expenses might later be
held to be improper, in which case such payments shall be promptly refunded;
provided, however, that the Offerors shall not be liable in any such case to the
extent, but only to the extent, that any such losses, claims, damages,
liabilities and expenses arise out of or are based upon any untrue statement or
omission or allegation thereof that has been made or omitted in reliance upon
and in conformity with the Underwriter's Information; provided, that the
indemnification contained in this paragraph with respect to any Preliminary
Prospectus shall not inure to the benefit of the Underwriter (or of any person
controlling the Underwriter) to the extent any such losses, claims, damages,
liabilities or expenses directly results from the fact that the Underwriter sold
Designated Preferred Securities to a person to whom there was not sent or given,
at or prior to the written confirmation of such sale, a copy of the Prospectus
(as amended or supplemented if any amendments or supplements thereto shall have
been furnished to you in sufficient time to distribute same with or prior to the
written confirmation of the sale involved), if required by law, and if such
loss, claim, damage, liability or expense would not have arisen but for the
failure to give or send such person such document. The foregoing indemnity
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agreement is in addition to any liability the Company or the Trust may otherwise
have to any such indemnified party.
(b) The Underwriter agrees to indemnify and hold harmless each
Offeror, each of its directors, each of its officers and trustees who signed the
Registration Statement and each person, if any, who controls an Offeror within
the meaning of the 1933 Act, to the same extent as required by the foregoing
indemnity from the Company to the Underwriter, but only with respect to the
Underwriter's Information or information relating to the Underwriter furnished
in writing to an Offeror through the Underwriter by or on behalf of it expressly
for use in a Blue Sky Application. The foregoing indemnity agreement is in
addition to any liability which the Underwriter may otherwise have to any such
indemnified party.
(c) If any action or claim shall be brought or asserted against
any indemnified party or any person controlling an indemnified party in respect
of which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
counsel that there may be one or more legal defenses available to it that are
different from or in addition to those available to the indemnifying party (in
which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person); it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel) separate from their own counsel at any time and for all such
indemnified parties and controlling persons, which firm shall be designated in
writing by the indemnified party. Each indemnified party and each controlling
person, as a condition of such indemnity, shall use reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. The indemnifying party shall not be liable for any settlement of any such
action effected without its written consent, but if there be a final judgment
for the plaintiff in any such action, the indemnifying party agrees
- 35 -
to indemnify and hold harmless any indemnified party and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
An indemnifying party shall not, without the prior written
consent of each indemnified party, settle, compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall not alter the
right of any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each 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, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriter on the other from the offering of the Designated Preferred
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 Offerors on the one hand and the Underwriter on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriter on the other shall be deemed to be in the same
proportion as the total proceeds from the offering of the Designated Preferred
Securities (before deducting expenses) received by the Offerors bear to the
total underwriting discounts, commissions and compensation received by the
Underwriter, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriter on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Offerors and the Underwriter agree that it
would not be just and equitable if contribution pursuant to this paragraph (d)
were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses
- 36 -
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
paragraph (d), the Underwriter shall not be required to contribute any amount in
excess of the underwriting discount received by it. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
Neither party shall be liable for contribution for claims settled
without such party's consent, provided such consent shall not be unreasonably
withheld, conditioned or delayed.
For purposes of this paragraph (d), each person who controls the
Underwriter within the meaning of Section 15 of the 1933 Act, the partners,
directors, officers, employees and agents of the Underwriter shall have the same
rights to contribution as the Underwriter, and each person who controls an
Offeror within the meaning of Section 15 of the 1933 Act, each officer and
trustee of an Offeror who shall have signed the Registration Statement and each
director of an Offeror shall have the same rights to contribution as the
Offerors subject in each case to the preceding sentence. The obligations of the
Offerors under this paragraph (d) shall be in addition to any liability which
the Offerors may otherwise have and the obligations of the Underwriter under
this paragraph (d) shall be in addition to any liability that the Underwriter
may otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Offerors set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of the Underwriter or its
partners, directors, officers, employees or agents (or any person controlling
the Underwriter) or by or on behalf of the Offerors, or their directors,
trustees or officers (or any person controlling an Offeror), (ii) acceptance of
any Designated Preferred Securities and payment therefor hereunder and (iii) any
termination of this Agreement. A successor of the Underwriter or its partners,
directors, officers, employees or agents, or of an Offeror, or its directors,
trustees or officers (or of any person controlling the Underwriter or an
Offeror) shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7.
(f) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust under
this Section 7.
8. Termination. You shall have the right to terminate this Agreement at
any time at or prior to the Closing Date or, with respect to the Underwriter's
obligation to purchase the Option Preferred Securities, at any time at or prior
to the Option Closing Date, without liability on the part of the Underwriter to
the Offerors, if:
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(a) Either Offeror shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Offerors or any of the Subsidiaries shall have sustained
any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which in the judgment
of the Underwriter materially impairs the investment quality of the Designated
Preferred Securities;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which is reasonably likely to
have a material adverse effect on, the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Offerors
and the Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
(d) Any event shall have occurred or shall exist that makes
untrue or incorrect in any material respect any statement or information
contained in the Registration Statement or that is not reflected in the
Registration Statement but should be reflected therein to make the statements or
information contained therein not misleading in any material respect; or
(e) There has occurred any outbreak of hostilities or other
calamity or crisis or material change in general economic, political or
financial conditions, or internal conditions, the effect of which on the
financial markets of the United States is such as to make it, in your reasonable
judgment, impracticable to market the Designated Preferred Securities or enforce
contracts for the sale of the Designated Preferred Securities;
(f) Trading generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended,
or minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required, by any of said
exchanges or market system or by the Commission or any other governmental
authority;
(g) A banking moratorium shall have been declared by either
federal or New Jersey authorities; or
(h) Any action shall have been taken by any government in respect
of its monetary affairs which, in your reasonable judgment, has a material
adverse effect on the United States securities markets.
If this Agreement shall be terminated pursuant to this Section 8,
the Offerors shall not then be under any liability to the Underwriter except
that the provisions of Sections 5 and 7 hereof shall survive any termination of
this Agreement.
- 38 -
9. Effective Date of Agreement. If the Registration Statement is not
effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time the Commission declares the
Registration Statement effective. The Company shall immediately notify the
Underwriter when the Registration Statement becomes effective.
If the Registration Statement is effective at the time of
execution of this Agreement, this Agreement shall become effective at the
earlier of 11:00 a.m. Eastern Standard time, on the first full business day
following the day on which this Agreement is executed, or at such earlier time
as the Underwriter shall release the Designated Preferred Securities for initial
public offering. The Underwriter shall notify the Offerors immediately after
they have taken any action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it
may be terminated by the Offerors, by notifying the Underwriter, or by you, by
notifying either Offeror, except that the provisions of Sections 5 and 7 shall
at all times be effective.
10. Representations, Warranties and Agreements to Survive Delivery. The
representations, warranties, indemnities, agreements and other statements of the
Offerors and their officers and trustees set forth in or made pursuant to this
Agreement and the agreements of the Underwriter contained in Section 7 hereof
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Offerors or controlling persons of
either Offeror, or by or on behalf of the Underwriter or controlling persons of
the Underwriter or any termination or cancellation of this Agreement and shall
survive delivery of and payment for the Designated Preferred Securities.
11. Notices. Except as otherwise provided in this Agreement, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered by hand, mailed by registered or
certified mail, return receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to either Offeror shall be sent to 0000
Xxxxxxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxxx X. Xxxx (with a
copy to Stradley, Ronon, Xxxxxxx & Young LLP, 0000 Xxx Xxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, Esq.); and notices
to the Underwriter shall be sent to Sandler X'Xxxxx & Partners, L.P., Two World
Trade Center, 104th Floor, New York, New York 10048, Attention: Xxxxxxx Xxxxxx
(with a copy to Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., 0000 X Xxxxxx, X.X., Xxxxx
000 Xxxx, Xxxxxxxxxx, X.X. 00000 Attention: Xxxxx X. Xxxxxxx, Esq.).
12. Parties. The Agreement herein set forth is made solely for the
benefit of the Underwriter and the Offerors and, to the extent expressed,
directors, trustees and officers of the Offerors, partners, directors, officers,
employees and agents of the Underwriter, any person controlling the Offerors or
the Underwriter, and their respective successors and assigns. 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, in his or her status
as such purchaser, from the Underwriter of the Designated Preferred Securities.
- 39 -
The Company on behalf of itself and its Subsidiaries (including,
without limitation, the Trust), hereby irrevocably submits to the jurisdiction
of the federal and New York State courts located in the City of New York in
connection with any suit, action or proceeding related to this agreement or any
of the matters contemplated hereby, irrevocably waives any defense of lack of
personal jurisdiction and irrevocably agrees that all claims in respect of any
suit, action or proceeding may be heard and determined in any such court. The
Company, on behalf of itself and the Subsidiaries (including, without
limitation, the Trust), irrevocably waives, to the fullest extent it may
effectively do so under applicable law, any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding
brought it any such court and any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
13. Governing Law. This Agreement shall be governed by the laws of the
State of New York, without giving effect to the choice of law or conflicts of
law principles thereof.
14. Counterparts. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
[Remainder of page intentionally left blank]
- 40 -
If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
YARDVILLE NATIONAL BANCORP.
By:
----------------------------
Name:
Title:
YARDVILLE CAPITAL TRUST
By:
----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of ____________, 1997.
BY: SANDLER X'XXXXX & PARTNERS, L.P.
by Sandler X'Xxxxx & Partners Corp.,
the sole general partner
By:
--------------------------------
Name:
Title:
- 41 -
EXHIBIT A
LIST OF SUBSIDIARIES
Subsidiaries of the Company
The Yardville National Bank
Yardville Capital Trust
Subsidiaries of the Bank
Yardville National Investment Corporation, a New Jersey corporation.
Brendan, Inc., a New Jersey corporation.
Xxxxx Xxxx, Inc., a New Jersey corporation.
Xxx Xxxx, Inc., a New Jersey corporation.
YNB Real Estate Holdings Co., Inc., a New Jersey corporation.
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