WSFS CAPITAL TRUST I
50,000 Trust Preferred Securities
Floating Rate Cumulative Trust Preferred Securities
(Liquidation Amount of $1,000 per Trust Preferred Security)
UNDERWRITING AGREEMENT
----------------------
November 17, 1998
SANDLER X'XXXXX & PARTNERS, L.P.
Two World Trade Center, 000xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
WSFS Financial Corporation, a Delaware corporation
(the "Company"), Wilmington Savings Fund Society FSB (the
"Bank") and the Company's financing subsidiary, WSFS Capital
Trust I, a Delaware business trust (the "Trust," and hereinafter
together with the Company, and the Bank, 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, 50,000 of the Trust's Floating Rate Cumulative
Trust Preferred Securities, with a liquidation amount of $1,000
per trust preferred security (the "Trust 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 Offerors hereby confirm as follows their
agreement with the Underwriter in connection with the proposed
purchase of the Trust 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 Trust Preferred Securities.
SECTION 1. Sale, Purchase and Delivery of Trust
------------------------------------
Preferred Securities; Description of Trust Preferred Securities.
---------------------------------------------------------------
(a) Sale and Purchase of Trust Preferred
Securities. 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 $1,000 per Trust Preferred Security (the "Purchase
Price"), the Trust Preferred Securities.
(b) Commission. Because the proceeds from the
sale of the Trust Preferred Securities will be used to purchase
from the Company its Debentures (as hereinafter defined and
1
as described in the Prospectus), the Company shall pay to the
Underwriter a commission of $20 per Trust Preferred Security
purchased (the "Trust Preferred Securities Commission"). The
Company shall pay, or cause to be paid, the Trust Preferred
Securities Commission, by wire transfer of immediately available
funds to a bank account designated by you.
(c) Payment and Delivery. The Trust 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. Certificates
representing the Global Securities for the Trust Preferred
Securities shall be made available for examination by the
Underwriter and counsel to the Underwriter not later than 9:30
a.m., New York City time, on the last business day prior to the
Closing Date (as defined below). Payment of the Purchase Price
and delivery of the Trust Preferred Securities shall be made at
the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other place as
shall be agreed to by you and the Offerors, at 11:00 a.m., New
York City time, on November 20, 1998, or at such other time not
more than three full business days thereafter as the Offerors
and you shall determine (the "Closing Date"). Such payments
shall be made to an account designated by the Trust by wire
transfer of immediately available funds, in the amount of the
Purchase Price therefor, against delivery by or on behalf of the
Trust to you of certificates representing the Global Securities
for the Trust Preferred Securities to be purchased. As used
herein, "business day" shall mean any day other than a Saturday,
a Sunday or a legal holiday or a day on which banking
institutions or trust companies are authorized or obligated by
law to close in New York City.
(d) Description of Trust Preferred Securities.
The Offerors propose that the Trust issue the Trust Preferred
Securities pursuant to an Amended and Restated Trust Agreement,
to be dated as of the Closing Date, among the Company,
Wilmington Trust Company, as property trustee (the "Property
Trustee") and Delaware trustee (the "Delaware Trustee"), and the
administrative trustees named therein (the "Administrative
Trustees," collectively with the Property Trustee and the
Delaware Trustee, the "Trustees"), 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 Trust Preferred Securities, the Company
proposes (i) to issue its Floating Rate Junior Subordinated
Deferrable Interest Debentures due 2028 ( the "Debentures")
pursuant to an Indenture, to be dated as of the Closing Date, as
amended or supplemented (the "Indenture"), between the Company
and Wilmington Trust Company, as debenture trustee (the
"Debenture Trustee") and (ii) to guarantee certain payments on
the Trust Preferred Securities pursuant to a Guarantee
Agreement, to be dated as of the Closing Date (the "Guarantee"),
between the Company and Wilmington Trust Company, as guarantee
trustee (the "Guarantee Trustee"), to the extent described
therein.
1
SECTION 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-3,
as amended by Amendment No. 1 (File Numbers 333-56015,
000-00000-00 and 333-56015-02), for the registration of
the Trust Preferred Securities, the Guarantee and the
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 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
3
(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 1933 Act); 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 be
comes effective and at the Closing Date, did not or will
not, as the case may be, contain an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading.
(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 writ
ing to the Offerors by the Underwriter expressly for
inclusion in the Prospectus beneath the heading "Underwrit-
ing" (such information referred to herein as the "Under-
writer's Information").
(v) At the Effective Date and at all times
subsequent thereto, up to and including the Closing Date,
the Registration Statement and any post-effective amend-
ment thereto (A) complied and will comply in all material
respects with the
4
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 Trust
Preferred Securities, including, without limitation, the
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 or to the
Statements of Eligibility of each of the Property Trustee,
the Guarantee Trustee and the Debenture Trustee on Form T-1
filed as exhibits to the Registration Statement.
(vi) (A) The Company is duly organized,
validly existing and in good standing under the laws of
the State of Delaware, 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 unitary savings and loan
holding company under the Home Owners Loan Act (the
"HOLA").
(B) The Trust has been duly created
and is validly existing 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 Trust 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, and at the Closing Date will be, to the
knowledge of the Offerors,
5
classified for United States federal income tax purposes as
a grantor trust and not as an association taxable as a
corporation; and the Trust is, and as of the
Closing Date will be, treated as a consolidated subsidiary
of the Company pursuant to generally accepted accounting
principles.
(vii) The Company has no other significant
subsidiaries within the meaning of Rule 1-02 of Regulation
S-X under the 1933 Act other than the Bank and WSFS Credit
Corporation ("WSFS Credit", together with the Bank, the
"Subsidiaries"). All the subsidiaries of the Company are
listed on Exhibit A attached hereto. 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
listed on Exhibit A attached hereto. Each Subsidiary is a
savings and loan institution or corporation 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 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.
(ix) (A) 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
6
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.
(B) All of the issued and outstanding
shares of capital stock of the Subsidiaries (1) have been
duly authorized and are validly issued, (2) are fully paid
and nonassessable and (3) 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.
(x) (A) The Trust has all requisite power
and authority to issue, sell and deliver the Trust
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 Trust
Preferred Securities in accordance with such terms and
conditions has been validly and sufficiently taken. The
Trust 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, 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 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. None of the Trust
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 by the Company, 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, enforceable in accordance with
its terms, except as the enforcement thereof may be
limited by general principles of equity and by bankruptcy,
insolvency, reorganization, receivership, moratorium and
other laws affecting the rights and remedies of creditors
generally, and are entitled to the benefits of the Inden-
ture and will conform in all material respects to the
description thereof contained in the Prospectus.
7
(C) The Guarantee has been duly and
validly authorized, and on the Closing Date, 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 enforceable in
accordance with its terms, except as the enforcement
thereof may be limited by general principles of equity and
by bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting creditors' rights
generally, 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 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
8
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, bylaws 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 Bank), 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 is 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 Trust Preferred Securities pursuant to, 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
bylaws 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
9
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 Trust 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 Trust Preferred Securities
by the Underwriters.
(xv) The Offerors have all requisite
corporate or trust 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 Administrative Trustees of the Trust
are officers of the Company and have been duly authorized
by the Company to execute and deliver the Trust Agreement.
The Trust Agreement has been duly authorized and, when
executed and delivered by the Company and the Trustees,
will constitute the valid and legally binding instrument of
the Company and the Trustees, 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.
10
(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 schedules and 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 stockholders' equity of the Company
and the Subsidiaries for the periods specified and have
been prepared in conformity with generally accepted ac
counting principles applied on a consistent basis. The
selected and summary consolidated financial data concern-
ing 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 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 in formation shown therein, and to the extent
applicable have been compiled on a basis consistent with
the consolidated
11
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 ordi
nary 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 or distribution 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.
(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 reason-
12
ably 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 Pro
spectus (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 Trust 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 stockholder 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 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 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
13
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, stockholders, 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.
(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 Trust
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).
14
(xxix) 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.
(xxx) Neither of the Offerors is, and follow-
ing the consummation of the transactions contemplated
hereby and the application of the net proceeds as
described in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), an
"investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company
Act").
(xxxi) The Offerors have not distributed and
will not distribute prior to the Closing Date any
prospectus in connection with the Offering (as hereinafter
defined), 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.
(xxxii) 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.
(xxxiii) The provisions of any employee
pension benefit plan ("Pension Plan") as defined in Sec
tion 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 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.
15
SECTION 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 Trust Preferred
Securities for sale to the public upon the terms and conditions
set forth in the Prospectus. 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
Trust 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.
SECTION 4. Certain Covenants of the Offerors.
The Offerors jointly and severally covenant with the Underwriter
as follows:
(a) Effectiveness of Registration Statement. 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) Continued Compliance with Securities Laws.
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;
(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
16
(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 Trust 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) Delivery of Registration Statements and
Prospectuses. The Offerors shall furnish to the Underwriter,
from time to time and 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) Filing of Amendments and Supplements. 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 Trust 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 Trust 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, 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
17
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) Blue Sky Qualifications. The Offerors shall
cooperate with you in order to qualify the Trust 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 Trust 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 Trust Preferred Securities). The
Offerors shall file such statements and reports as may be
required by the laws of each jurisdiction in which the Trust
Preferred Securities have been qualified as above. The Offerors
will notify you immediately of, and confirm in writing, the
suspension of qualification of the Trust Preferred Securities or
threat thereof in any jurisdiction.
(f) Delivery of Earnings Statement. 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) Use of Proceeds. The Offerors shall use the
proceeds from the sale of the Trust Preferred Securities to be
sold by the Trust hereunder in the manner specified in the
Prospectus under the caption "Use of Proceeds."
(h) Delivery of Corporate Documents. 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
Trust 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.
(i) Restriction on Sale of Securities. 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 Trust 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 Trust
Preferred Securities or the Debentures, including any
18
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) Ordinary Course of Business. During the
period beginning on the date hereof and ending on the Closing
Date, 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.
(k) Restriction on Trust Preferred Securities.
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 Trust Preferred Securities.
(l) Regulation 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.
(m) Public Communications. Prior to the 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 Trust Preferred Securities (the "Offering")
without your prior written consent which consent shall not be
unreasonably withheld.
(n) Best Efforts. 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.
(o) Blue Sky Undertakings. The Trust shall comply
in all respects with the undertakings given by the Trust in
connection with the qualification, registration or exemption of
the Trust Preferred Securities for offering and sale under the
blue sky laws.
SECTION 5. Payment of Expenses. Whether or not
this Agreement is terminated or the sale of the Trust 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:
19
(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 Trust 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 Trust 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 Under writer 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) 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;
(f) the costs and charges of any transfer agent or
registrar and the fees and disbursements of counsel to any
transfer agent or registrar;
(g) all costs and expenses (including stock transfer
taxes) incurred in connection with the issuance and delivery
of the Trust Preferred Securities to the Underwriter;
(h) all expenses incident to the preparation,
execution and delivery of the Trust Agreement, the Indenture and
the Guarantee; and
(i) 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.
In addition to such expenses to be borne by the
Company, the Company agrees to reimburse the Underwriter, upon
request made from time to time, for its reasonable out-of-pocket
expenses incurred in connection with its engagement hereunder,
regardless of whether the offering is consummated, including,
without limitation, legal fees and expenses, marketing,
syndication and travel expenses up to a maximum of $125,000.
20
If the sale of Trust Preferred Securities contemplated
by this Agreement is not completed for any reason whatsoever
(other than as a result of the Underwriter's refusal to
proceed, without cause), whether or not such termination is
allowable hereunder, the Company will pay you your accountable
out-of-pocket expenses, up to a maximum of $125,000, 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 Trust Preferred Securities, in
each case following presentation of reasonably detailed invoices
therefor.
SECTION 6. Conditions of the Underwriter's Obliga-
tions. The obligations of the Underwriter to purchase and pay
for the Trust 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 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) Effectiveness of Registration Statement. 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 City 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) Absence of Misstatements or Omissions. The
Underwriter shall not have advised the Company at or before the
Closing Date that the Registration Statement or any post-
effective amendment thereto, or the Prospectus or any amendment
or supplement thereto, contains an untrue statement of a fact
which, in your reasonable opinion, is material or omits to state
a fact which, in your reasonable 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.
21
(c) Corporate and Legal Matters. All corporate
proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Trust
Agreement, and the Trust 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) Opinion of Outside Counsel to the Offerors.
Xxxxxxx Xxxxxxxxx & Xxxxxxxxx, P.C., counsel to the Offerors,
shall have furnished to you their signed opinion, dated the
Closing Date, 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 Delaware, and is duly registered as a
savings and loan holding company under the HOLA. 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 or
properties are described in the Prospectus in all material
respects. The Company and each Subsidiary are qualified
to do business as foreign corporations, or exempt from
such qualification, under the corporation laws of each
jurisdiction which requires such qualification, wherein it
owns or leases material properties or conducts material
business that is set forth on Annex A to such opinion.
All outstanding shares of capital stock of the Subsidiaries
have been duly authorized and validly issued and are
fully paid and nonassessable 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 authorized
capital stock of the Company as of June 30, 1998 is as set
forth under the caption "Capitalization" in the Prospectus,
has been duly authorized and, assuming the receipt of
full and adequate consideration therefor by the Company,
have been validly issued. To the best of such counsel's
knowledge, there are no outstanding rights, 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
Trust Preferred Securities and Debentures in accordance
with the terms and conditions of this Agreement and the
22
Indenture have been duly authorized by all necessary
actions of the Company. The Trust Preferred Securities
will conform in all material respects to the description
thereof in the Registration Statement, the Prospectus and
the Trust Agreement. 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 pursuant to the
corporate charter, bylaws or other governing documents
(including without limitation, the Trust Agreement) of the
Offerors, or, to the best of such counsel's knowledge,
any agreement or other instrument to which either the
Offerors is a party or by which any of the Offerors may be
bound.
(iv) The Company has all requisite corporate
power to enter into and perform its obligations under this
Agreement, and this Agreement has been duly and validly
authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligations of
the Company 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.
(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, except as the enforcement
thereof may be limited by general principles of equity and
by bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and
remedies of creditors generally.
(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, except as the enforcement thereof may be limited by
general principles of equity and by bankruptcy,
insolvency, reorganization, receivership, moratorium and
other laws affecting the rights and remedies of creditors
generally.
(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, except as the
enforcement thereof may be limited by general principles
of equity and by bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the
rights and remedies of creditors generally.
(viii) To the best of such counsel's know-
ledge, neither of the Offerors nor any of the Subsidiaries
is in breach or violation of, or default under, with or
without
23
notice or lapse of time or both, its corporate charter,
bylaws or governing document (including without
limitation, the Trust Agreement). To the best knowledge
of such counsel, after due inquiry, 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 Trust
Preferred Securities and the Debentures, the compliance by
the Company with the provisions of the Trust Preferred
Securities, the Debentures, the Indenture and this
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 Trust Preferred
Securities, 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, bylaws 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.
(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 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 except
the registration rights granted to persons pursuant to the
Registration Rights Agreement, dated as of September 18,
1992, as amended, by and between Star States Corporation,
Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx, and the
Registration Rights Agreement, dated as of September 18,
1992, as amended, by and between Star States Corporation,
Thrift Investors, L.P. and Quad-C, Inc.
(x) Except as set forth in the Registration
Statement and the Prospectus, to the best of such counsel's
knowledge, 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 or
against or affecting 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 issuance and sale of the Trust
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.
24
(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 issuance, distribution and sale of the Trust
Preferred Securities and the Debentures pursuant to 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 the Trust Indenture 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 Trust 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 and the Statements of
Eligibility of each of the Property Trustee, the Guarantee
Trustee and the Debenture Trustee on Form T-1 filed as
exhibits to the Registration Statement, 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.
(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 Trust Preferred Securities," "Description
of Junior Subordinated Debentures," "Description of
Guarantees," "Relationship Among the Trust Preferred
Securities, the Junior Subordinated Debentures and the
Guarantees," and "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.
(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
25
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) The Trust is not regulated or required
to be registered as an "investment company" as defined in
the Investment Company Act.
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. In giving the above opinion, such counsel may state
that insofar as such opinion relates to matters of New York law,
they have relied upon the opinion of Xxxxxxx, Arps, Slate,
Xxxxxxx & Xxxx LLP and as to matters of Delaware law, other than
the Delaware General Corporation Law, they have relied upon the
opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A.
Such counsel shall also state in a separate letter
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 the
contents of the Registration Statement and Prospectus were
discussed in detail and based on such conferences, nothing has
come to the attention of such counsel to cause it to believe (A)
that the Registration Statement or 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 view), 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
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 view), 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
and at the 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, in the light of the circumstances under
which they were made, not misleading or (C) that there is any
amendment to the Registration Statement required to be filed
that has not already been filed.
26
(e) Opinion of Special Delaware Counsel to the
Offerors. Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., as special Delaware
counsel to the Company and the Trust, shall have furnished to
you their signed opinion, dated as of Closing Date, 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.
Subsection 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 Trust 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.
(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.
(iv) The Trust Preferred Securities have
been duly authorized for issuance by the Trust Agreement
and, when issued, delivered and paid for 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 Trust
Preferred Securities will be entitled to the benefits of
the Trust Agreement 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 Trust 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 Trust Preferred
Securities is not subject to preemptive rights.
(vi) The issuance and sale by the Trust of
the Trust 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)
violate any of the provisions of the Certificate of Trust
or the Trust Agreement or (b) violate any applicable
Delaware law or administrative regulation.
27
(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 Trust Preferred
Securities by the Trust in accordance with the Trust
Agreement and the Prospectus.
(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 Trust 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) Opinion of Counsel to Wilmington Trust Company.
Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to Wilmington
Trust Company (the "Trust Company") shall have furnished to you
their signed opinion, dated the Closing Date, in form and
substance reasonably satisfactory to counsel to the Underwriter,
to the effect that:
28
(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 Debenture 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.
(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.
(v) Each of the Indenture and the Guarantee
Agreement has been duly executed and delivered by the
Trust Company, as Debenture 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 Debenture
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 Closing
Date have been duly authenticated by the Trust Company, as
Debenture Trustee, in accordance with the terms of the
Indenture.
(g) Opinion of Counsel to the Underwriter.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the
Underwriter, shall have furnished you their signed opinion,
dated the Closing Date, with respect to the sufficiency of all
corporate procedures and other legal matters relating to this
Agreement, the validity of the Trust 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, such counsel may rely as
29
to matters of fact upon statements and certifications of
officers of the Offerors and of other appropriate persons.
(h) Opinion of Special Tax Counsel for the
Offerors. At the Closing Time, the Underwriter shall have
received an opinion, dated as of the Closing Time, of Xxxxxxx
Xxxxxxxxx & Xxxxxxxxx, P.C., special tax counsel to the
Offerors, substantially to the effect that (i) the Trust will be
classified as a grantor trust for United States federal income
tax purposes and (ii) the statements set forth in the Prospectus
under the caption "Certain Federal Income Tax Consequences"
constitute, in all material respects, a fair and accurate
summary of the United States federal income tax consequences of
the ownership and disposition of the Trust Preferred Securities
under current law. Such opinion may be conditioned on, among
other things, the initial and continuing accuracy of the facts,
financial and other information, covenants and representations
set forth in certificates of Trustees of the Trust, officers of
the Company and its subsidiaries and certificates of public
officials.
(i) Accountant's Comfort Letter. On the date of
this Agreement and on the Closing Date, the Underwriter shall
have received from KPMG Peat Marwick LLP a letter, dated as of
the date of this Agreement and the Closing Date, respectively,
in form and substance satisfactory to the Underwriter,
confirming that they are independent public accountants with
respect to the 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 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 require-
ments 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
30
the unaudited interim financial statements and other in
formation 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 stockholders 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.
(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 and have found them to be in
agreement.
31
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.
(j) Company Certificates. At the 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, 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
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
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 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.
(k) Trust Certificate. At the Closing Date, you
shall have received a certificate of an Administrative Trustee
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; the Trust has complied with all the agreements and
satisfied all the conditions required by this Agreement
32
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.
(l) Counterparts. On the Closing Date, you shall
have received duly executed counterparts of the Trust Agreement,
the Guarantee, the Indenture and the Expense Agreement.
(m) NASD. The NASD shall not have objected to the
Underwriter's participation in such offering.
(n) Blue Sky Laws. The Trust 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.
(o) Additional Documents. Prior to the 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. Any such
termination shall be without liability of the Underwriter to the
Offerors.
SECTION 7. Indemnification and Contribution.
--------------------------------
(a) Indemnification of Underwriter. The Company,
the Trust and the Bank jointly and severally agree to indemnify
and hold harmless (x) the Underwriter, (y) each of the Under-
writer's directors, partners, officers and agents and (z) each
person, if any, who controls the Underwriter within the meaning
of the 1933 Act, as follows:
(i) 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
any untrue statement or alleged untrue statement of a
material fact made by the Company or the Trust contained
33
in the Registration Statement, any Preliminary Prospectus
or the Prospectus, or in any amendment or supplement
thereto;
(ii) 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
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 Trust Preferred Securities
under the securities laws thereof (any such application,
document or information being hereinafter referred to as a
"Blue Sky Application");
(iii) 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
any omission or alleged omission to state a material fact
in the registration statement as originally filed or the
Registration Statement, 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;
(iv) 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
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; and
(v) 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
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
34
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 its directors, partners,
officers, and agents 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 Trust 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
agreement is in addition to any liability the Company or the
Trust may otherwise have to any such indemnified party.
(b) Indemnification of Offerors, Directors and
Officers. 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 any 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) Actions against Parties; Notification. 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
indemni-
35
fied 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, suit or proceeding effected
without its written consent, but if settled with such written
consent or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying party agrees
to the extent provided by this Section 7 to indemnify and hold
harmless any indemnified party and any such controlling person
from and against any loss, claim, damage, xxxxxxxxx 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
and does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of an
indemnified party 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) Contribution. If the indemnification provided
for in this Section 7 is unavailable or insufficient to hold
harmless an indemnified party under paragraphs (a) or (b)
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 Trust
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
36
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 Trust 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 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
1933 Act) 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) Survival of Indemnification and Contribution
Provisions. 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
37
behalf of the Offerors, or their directors, trustees or officers
(or any person controlling an Offeror), (ii) acceptance of any
Trust 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.
SECTION 8. Termination.
-----------
(a) Termination; General. You shall have the
right to terminate this Agreement at any time at or prior to the
Closing Date without liability on the part of the Underwriter to
the Offerors, if:
(i) 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;
(ii) 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 Trust Preferred
Securities;
(iii) 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;
(iv) 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
(v) 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
Trust Preferred Securities or enforce contracts for the
sale of the Trust Preferred Securities;
38
(vi) 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; or
trading of any securities of the Company on any exchanges
or in the over-the-counter market shall have been
suspended;
(vii) A banking moratorium shall have been
declared by either federal, New York or Delaware
authorities; or
(viii) 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.
(b) Liabilities. 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.
SECTION 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 upon the execution and delivery hereof by the parties
hereto.
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.
SECTION 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
Trust Preferred Securities.
39
SECTION 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
the Underwriter shall be directed to Xxxxxxx X'Xxxxx & Partners,
L.P., Two World Trade Center, New York, New York 10048,
Attention: Xxxxxxxxx X. Xxxxxx, Principal and General Counsel,
with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X.
Xxxxxx, Esq.; notices to the Offerors shall be directed to WSFS
Financial Corporation, 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000,
Attention: Xxxx X. Xxxxxx, with a copy to Xxxxxxx Xxxxxxxxx &
Xxxxxxxxx, P.C., 0000 00xx Xxxxxx, XX, Xxxxx 000, Xxxxxxxxxx, XX
00000, Attention: Xxxxx X. Xxxxxxx, Esq.
SECTION 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 Trust Preferred
Securities.
SECTION 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.
SECTION 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.
SECTION 15. Effect of Headings. The Section
headings herein are for convenience only and shall not affect
the construction hereof.
SECTION 16. Other Agreements. To the extent that
the provisions in Section 7 of this Agreement conflict with the
provisions in the Section entitled "Indemnification" set forth
in the engagement letter, dated April 9, 1998, between the
Underwriter and the Company, the provisions in this Agreement
shall control.
[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,
WSFS FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
__________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chairman and President
WILMINGTON SAVINGS FUND
SOCIETY, FSB
By: /s/ Xxxxxx X. Xxxxxxxxxx
___________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chairman and President
WSFS CAPITAL TRUST I
By: /s/ Xxxxxx X. Xxxxxxxxxx
___________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Administrative Trustee
By: /s/ Xxxx X. Xxxxxx
___________________________
Name: Xxxx X. Xxxxxx
Title: Administrative Trustee
By: /s/ Xxxxx X. Xxxxxx
___________________________
Name: Xxxxx X. Xxxxxx
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of November 17, 1998.
BY: XXXXXXX X'XXXXX & PARTNERS, L.P.
BY: Xxxxxxx X'Xxxxx & Partners Corp.,
the sole general partner
By: /s/ Xxxxxxxxx X. Xxxxxx
_____________________________
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
LIST OF SUBSIDIARIES
--------------------
Subsidiaries of the Company
---------------------------
Wilmington Savings Fund Society, FSB
WSFS Capital Trust I
Subsidiaries of the Bank
------------------------
WSFS Credit Corporation
838 Investment Group, Inc.
Community Credit Corporation
Star States Development Company (inactive)
42
