UNION STATE CAPITAL TRUST I
$20,000,000
9.58% Capital Securities
(Liquidation Amount $1,000 per Capital
Security) fully and unconditionally
guaranteed, as described herein,
by
U.S.B. Holding by Co., Inc.
PURCHASE AGREEMENT
New York, New York
January 31, 1997
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Two World Trade Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Union State Capital Trust I (the "Trust"), a statutory business
trust organized under the Business Trust Act (the "Business Trust Act") of the
State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. (Section
3801 et seq.)), and U.S.B. Holding Co., Inc., a Delaware corporation (the
"Company"), as depositor of the Trust and as guarantor, propose to issue and
sell to Xxxxx, Xxxxxxxx & Xxxxx, Inc. (the "Initial Purchaser") 20,000 of the
Trust's 9.58% Capital Securities, liquidation amount $1,000 per Capital Security
(the "Capital Securities" and, together with the Guarantee (as defined), the
"Securities"). The Capital Securities will represent undivided beneficial
ownership interests in the assets of the Trust, will be guaranteed by the
Company as to the payment of distributions, and as to payments on liquidation or
redemption, to the extent set forth in a guarantee agreement (the "Guarantee")
dated as of February 5, 1997 between the Company and The Chase Manhattan Bank, a
New York banking corporation validly existing under the laws of the State of New
York, as trustee (the "Guarantee Trustee"). The Capital Securities are to be
issued pursuant to the Amended and Restated Declaration of Trust (the
"Declaration") dated as of February 5, 1997 among Xxxxxx X. Xxxxx, Xxxxxxx X.
Xxxx, Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx (each an "Administrative Trustee"
and, collectively, the "Administrative Trustees"), The Chase Manhattan Bank, as
property trustee (the "Property Trustee"), Chase Manhattan Bank Delaware, a
Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee") and the Company, as
depositor. The proceeds of the sale by the Trust of the Capital Securities and
its Common Securities, liquidation amount $1,000 per Common Security (the
"Common Securities"), are to be invested in the 9.58% Junior Subordinated Debt
securities (the "Debt Securities") of the Company having an aggregate principal
amount equal to the aggregate liquidation amount of the Capital Securities and
the Common Securities, to be issued pursuant to a Junior Subordinated Indenture,
as supplemented from time to time (the "Indenture"), dated as of February 5,
1997 between the Company and The Chase Manhattan Bank, as Trustee (the
"Indenture Trustee"). Holders (including subsequent transferees) of the
Securities will have the registration rights set forth in the Registration
Agreement (the "Registration Agreement") to be entered into among the Company,
the Trust and the Initial Purchaser.
The sale of the Securities to the Initial Purchaser will be made
without registration of the Securities under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance upon exemptions from the
registration requirements of the Securities Act. You have advised the Trust and
the Company that you will offer and sell the Securities purchased by you
hereunder in accordance with Section 4 hereof as soon as you deem advisable.
In connection with the sale of the Securities, the Company and the
Trust have prepared a final offering memorandum, dated January 31, 1997
(including any and all exhibits thereto and the documents incorporated by
reference therein, the "Final Memorandum"). The Final Memorandum sets forth
certain information concerning the Company, the Trust and the Securities. The
Company hereby confirms that it has authorized the use of the Final Memorandum,
and any amendment or supplement thereto, in connection with the offer and sale
of the Securities by the Initial Purchaser. Unless stated to the contrary, all
references herein to the Final Memorandum are to the Final Memorandum dated the
date hereof and are not meant to include any amendment or supplement thereto.
1. Representations and Warranties. Each of the Company and the
Trust, jointly and severally, represents and warrants to the Initial Purchaser
as of the date hereof and as of the Closing Date (as defined below), as set
forth below in this Section 1.
(a) The Final Memorandum, at the date hereof, does not, and at the
Closing Date will not (and any amendment or supplement thereto, at the
date thereof and at the Closing Date, will not), contain any untrue
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statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that no
representation or warranty is made by the Company or the Trust as to the
information contained in or omitted from the Final Memorandum, or any
amendment or supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Company or the Trust by or on
behalf of the Initial Purchaser specifically for inclusion therein (all
such information contemplated by this proviso shall be collectively
referred to herein as the "Initial Purchaser Information").
(b) The documents incorporated or deemed to be incorporated by
reference in the Final Memorandum at the time they were or hereafter are
filed with the Securities and Exchange Commission (the "Commission")
complied and will comply in all material respects with the requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and
the rules and regulations of the Commission thereunder, and, when read
together with the other information in the Final Memorandum, at the date
of the Final Memorandum and at the Closing Date, do not and will not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(c) Deloitte & Touche LLP are independent certified public
accountants with respect to the Company under Rule 101 of the AICPA's
"Code of Professional Conduct," and its interpretation and rulings.
(d) The historical financial statements, together with the related
schedules and notes, included or incorporated by reference in the Final
Memorandum present fairly the consolidated financial position of the
Company and its consolidated subsidiaries, at the dates indicated and the
statement of income, changes in stockholders, equity and cash flows of the
Company and its consolidated subsidiaries, for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") in the United States applied on a
consistent basis throughout the periods involved, except as disclosed in
the notes to such financial statements; the supporting schedules, if any,
included or incorporated by reference in the Final Memorandum present
fairly the financial condition and results of opera-
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tions of the Company and its subsidiaries as of and for the periods
indicated therein; and the summary financial data included or incorporated
by reference in the Final Memorandum are accurately extracted and derived
from the financial statements included or incorporated by reference in the
Final Memorandum.
(e) Since December 31, 1996, except as otherwise stated in the Final
Memorandum or contemplated thereby, there has not been (A) any material
adverse change, in the financial condition, earnings or business affairs
of the Trust, or the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (B) any transaction entered into by the Trust,
the Company or any of its subsidiaries, other than in the ordinary course
of business, that is material to the Trust, or the Company and its
subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock, other than regular quarterly dividends on the
Company's common stock and dividends declared, paid or made in accordance
with the terms of any series of the Company's preferred stock.
(f) Neither the Company nor the Trust, nor any of their Affiliates
(as defined in Rule 501(b) of Regulation D under the Securities Act
("Regulation D")), nor any person acting on its or their behalf has,
directly or indirectly, made offers or sales of any security, or solicited
offers to buy any security, under circumstances that would require the
registration of the Securities under the Securities Act.
(g) Neither the Company nor the Trust, nor any of their Affiliates,
nor any person acting on its or their behalf has engaged or will engage in
any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with any offer or sale of the
Securities in the United States.
(h) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(i) The Company will assist the Initial Purchaser in obtaining by
the Closing Date notification from the National Association of Securities
Dealers, Inc. Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market that the Capital Securities have been
designated PORTAL-eligible securities in
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accordance with the rules and regulations of the National Association of
Securities Dealers, Inc.
(j) Neither the Company nor the Trust is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended
(together with the rules and regulations thereunder, the "Investment
Company Act"), and after giving effect to the offer and sale of the
Capital Securities and the application of the proceeds thereof as
described in the Final Memorandum, neither will be an "investment company"
or a company "controlled" by an investment company within the meaning of
the Investment Company Act.
(k) The Company is subject to and in compliance in all material
respects with the reporting requirements of Section 15 and Section 1S(d)
of the Exchange Act.
(1) Neither the Company nor the Trust has paid or agreed to pay to
any person any compensation for soliciting another to purchase any of the
Securities (except as contemplated by this Agreement).
(m) The information provided by the Company pursuant to Section 5(h)
hereof will not, at the date thereof, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(n) The Trust has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act with the power
and authority to own property and to conduct its business as described in
the Final Memorandum and to enter into and perform its obligations under
this Agreement, the Indenture, the Declaration, the Securities and the
Registration Agreement (collectively, the "Operative Documents"). The
Trust is duly qualified to transact business as a foreign entity and is in
good standing in each jurisdiction in which such qualification is
necessary, except where the failure to so qualify or be in good standing
would not have a material adverse effect on the Trust. The Trust is not a
party to or otherwise bound by any agreement other than those described in
the Final Memorandum.
(o) The Declaration has been duly authorized by the Company and, on
the Closing Date, will have been duly executed and delivered by the
Company and the Administrative Trustees, and, assuming due authoriza-
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tion, execution and delivery by the Delaware Trustee and the Property
Trustee, be a valid and binding obligation of the Company and the
Administrative Trustees, enforceable against them in accordance with its
terms, subject to applicable bankruptcy, moratorium, insolvency,
fraudulent conveyance and similar laws affecting creditors, rights
generally and to general principles of equity and a covenant of good faith
and fair dealing ("Bankruptcy and Equity") and except that the
indemnification provisions may be limited by federal or state securities
laws or the public policy underlying such laws ("Public Policy"). Each of
the Administrative Trustees of the Trust is an employee of the Company and
has been duly authorized by the Company to execute and deliver the
Declaration.
(p) Each of the Guarantee and the Indenture has been duly authorized
by the Company and, on the Closing Date will have been duly executed and
delivered by the Company, and, assuming due authorization, execution and
delivery by the Guarantee Trustee, in the case of the Guarantee and by the
Indenture Trustee, in the case of the Indenture, will be a valid and
binding obligation of the Company enforceable against it in accordance
with its terms, subject to Bankruptcy and Equity.
(q) The Capital Securities and the Common Securities have been duly
authorized by the Declaration and, when issued and delivered against
payment therefor on the Closing Date to the Initial Purchaser, in the case
of the Capital Securities, and to the Company, in the case of the Common
Securities, will be validly issued fully paid and nonassessable undivided
beneficial interests in the assets of the Trust. The issuance of neither
the Capital Securities nor the Common Securities is subject to preemptive
or other similar rights. On the Closing Date, all of the issued and
outstanding Common Securities of the Trust will be directly owned by the
Company free and clear of any pledge, security interest, claim, lien or
other encumbrance.
(r) The Debt Securities have been duly authorized by the Company
and, at the Closing Date, will have been duly executed and delivered to
the Indenture Trustee for authentication in accordance with the Indenture,
and, when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Final Memorandum,
will constitute valid and binding obligations of the Company entitled to
the benefits of the Indenture enforceable against the Company in
accordance with their terms, subject to Bankruptcy and Equity.
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(s) This Agreement has been duly authorized, executed and delivered
by the Company and the Trust. The Registration Agreement has been duly
authorized by the Trust and, at the Closing Date, will have been duly
executed and delivered by the Company and the Trust and will constitute a
valid and binding agreement of the Company and the Trust, enforceable
against the Company and the Trust in accordance with its terms subject to
Bankruptcy and Equity and Public Policy.
(t) The Operative Documents will, on the Closing Date, conform in
all material respects to the descriptions thereof contained in the Final
Memorandum.
(u) The Trust is not in violation of the certificate of trust filed
with the State of Delaware (the "Trust Certificate") or the Declaration or
any provision of the Business Trust Act. The execution, delivery and
performance by the Company and the Trust of the Operative Documents to
which it is a party, and the consummation of the transactions contemplated
herein or therein, will not conflict with or constitute a breach of, or a
default under, or result in the creation or imposition of any lien, charge
or other encumbrance upon any property or assets of the Trust, the Company
or any of the Company's subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note lease or other instrument to which the
Trust, the Company or any of its subsidiaries is a party or by which any
of them may be bound, or to which any of the property or assets of any of
them is subject, except for a conflict, breach, default, lien, charge or
encumbrance which could not reasonably be expected to have a Material
Adverse Effect or a material adverse effect on the consummation of the
transactions contemplated herein or therein, nor will such action result
in a violation of the Declaration or the Business Trust Act.
(v) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened,
against or affecting the Trust or the Company or any of its subsidiaries,
which is required to be disclosed in the Final Memorandum (other than as
disclosed therein), or which in the reasonable judgment of the Trust or
the Company might result in a Material Adverse Effect, or which in the
reasonable judgment of the Company might materially and adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated by the Operative Documents or the performance by the Trust or
the Company of their
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respective obligations hereunder or thereunder; the aggregate of all
pending legal or governmental proceedings to which the Trust or the
Company or any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the Final
Memorandum, including ordinary routine litigation incidental to the
business, are, in the reasonable judgment of the Company, not likely to
result in a Material Adverse Effect.
(w) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, other than those that have been made or obtained, is
necessary or required for the performance by the Company or the Trust of
their obligations hereunder.
(x) The Company is a duly organized and validly existing corporation
in good standing under the laws of the State of Delaware and is duly
registered as a bank holding company under the Bank Holding Company Act of
1956, as amended, and has the corporate power and authority to own its
properties and conduct its business as described in the Final Memorandum
and the documents incorporated by reference therein; Union State Bank (the
"Bank") is a duly organized and validly existing New York State chartered
commercial bank and continues to hold a valid certificate to do business
as such and has full power and authority to conduct its business as such;
U.S.B. Reality Corp. ("USB Realty") is a duly organized and validly
existing corporation in good standing under the laws of the State of New
York and has the corporate power and authority to own its properties and
conduct its business as such; and, except as set forth in the Final
Memorandum, each of the Company, the Bank and USB Realty is in all
material respects in compliance with all laws, rules, regulations,
directives and published interpretations issued or administered by, all
conditions imposed in writing by and all agreements entered into with, any
bank regulatory agency, authority or body having jurisdiction over the
Company, the Bank or USB Realty or any of their respective assets,
operations or businesses; each of the Company, the Bank and USB Realty
holds all material licenses, certificates and permits from governmental
authorities necessary for the conduct of its business as described in the
Final Memorandum; and other than the Bank and USB Realty, there is no
direct or indirect significant subsidiary of the Company, as that term is
defined in Rule 1-02(w) of Regulation S-X, and there are no other
subsidiaries of the Company
8
which individually, or in the aggregate, own or lease property or conduct
business which is material to the properties or business of the Company
and its subsidiaries taken as a whole.
(y) The Bank and USB Realty are duly authorized, and the Company is
duly qualified as a foreign corporation, to do business and each is in
good standing in all jurisdictions in which the nature of its business or
the character or location of its assets require such authorization or
qualification and in which the failure to be so authorized or to qualify,
as the case may be, could reasonably be expected to, in the aggregate,
have a Material Adverse Effect; all of the issued and outstanding capital
stock of each of the Bank and USB Realty has been duly authorized and
validly issued and is fully paid and non-assessable; all of the issued and
outstanding shares of capital stock of the Bank, and all of the issued and
outstanding shares of common stock of USB Realty, are owned by the Company
free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim.
(z) Any certificate signed by any trustee of the Trust or any duly
authorized officer of the Company or any material subsidiary and delivered
to you or to counsel for the Initial Purchaser in connection with the
Closing shall be deemed a representation and warranty by the Trust or the
Company, as the case may be, to the Initial Purchaser as to the matters
covered thereby.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
and the Trust agree that the Trust will sell to the Initial Purchaser, and the
Initial Purchaser agrees to purchase from the Trust, at a purchase price of
$1,000 per Capital Security, plus accrued distributions, if any, from February
5, 1997 to the Closing Date, 20,000 Capital Securities.
As compensation to the Initial Purchaser for its commitment
hereunder and in view of the fact that the proceeds of the sale of the
Securities will be used to purchase Debt Securities of the Company, the Company
hereby agrees to pay at the Closing Time to the Initial Purchaser in immediately
available funds $35.00 per Security to be delivered by the Trust hereunder at
the Closing Time.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at 10:00 AM, New York City time, on February 5, 1997, which date
and time may be post-
9
poned by agreement among the Initial Purchaser, the Trust and the Company (such
date and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Initial
Purchaser against payment by the Initial Purchaser of the purchase price thereof
to or upon the order of the Trust by wire transfer drawn and payable in same day
funds or such other manner of payment as may be agreed by the Company, the Trust
and the Initial Purchaser. Delivery of the Securities shall be made at such
location as the Initial Purchaser shall reasonably designate at least one
business day in advance of the Closing Date and payment for the Securities shall
be made at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP ("Counsel to
the Initial Purchaser"), 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, or paid to such
bank account as is specified by the Company. Certificates for the Capital
Securities shall be registered in such names and in such denominations as the
Initial Purchaser may request not less than three full business days in advance
of the Closing Date.
The Company agrees to have the Capital Securities available for
inspection, checking and packaging by the Initial Purchaser in New York, New
York, not later than 10:00 A.M. on the business day prior to the Closing Date.
4. Offering of Securities. The Initial Purchaser represents and
warrants to and agrees with the Company and the Trust that:
(a) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Securities Act)
and to whom notice has been given that such sale is being made in reliance
on Rule 144A, or (ii) to other institutional "accredited investors" (as
defined in Rule 501(a)(1),(2), (3) or (7) of Regulation D) who provide to
it and to the Company a letter in the form of Exhibit A hereto.
(b) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Securities in the United States by means of
any form of general solicitation or general advertising (within the
meaning of Regulation D) in the United States.
5. Agreements. Each of the Company and the Trust agrees with
the Initial Purchaser that:
(a) The Company, as promptly as possible, will furnish to the
Initial Purchaser, without charge,
10
during the period referred to in paragraph (c) below, as many copies of
the Final Memorandum and any amendments and supplements thereto as it may
reasonably request. The Company will pay the expenses of printing or other
production of all documents relating to the offering, purchase, sale and
delivery of the Securities.
(b) The Company will not amend or supplement the Final Memorandum,
other than by filing documents under the Exchange Act which are
incorporated by reference therein, without the prior written consent of
the Initial Purchaser; provided, however, that prior to the completion of
the distribution of the Securities by the Initial Purchaser (as determined
by the Initial Purchaser and communicated to the Company), the Company
will not file any document under the Exchange Act which is incorporated by
reference in the Final Memorandum unless, prior to such proposed filing,
the Company has furnished the Initial Purchaser with a copy of such
document for its review and the Initial Purchaser has not reasonably
objected to the filing of such document. The Company will promptly advise
the Initial Purchaser when any document filed under the Exchange Act which
is incorporated by reference in the Final Memorandum shall have been filed
with the Commission.
(c) If at any time prior to the completion of the distribution of
the Securities by the Initial Purchaser (as determined by the Initial
Purchaser), any event occurs as a result of which the Final Memorandum, as
then amended or supplemented, would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it should be necessary to amend or
supplement the Final Memorandum to comply with applicable law, the Company
will promptly notify the Initial Purchaser of the same and, subject to the
requirements of paragraph (b) of this Section 5, will prepare and provide
to the Initial Purchaser pursuant to paragraph (a) of this Section 5 an
amendment or supplement which will correct such statement or omission or
effect such compliance.
(d) The Company and the Trust will arrange for the qualification of
the Securities for sale by the Initial Purchaser under the laws of such
jurisdictions in the United States as the Initial Purchaser may reasonably
designate and will maintain such qualifications in effect so long as
required for the sale of the Securities. The Company will promptly advise
the
11
Initial Purchaser of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Capital Securities
for sale in any Jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(e) From and after the date hereof until the third anniversary of
the date hereof, the Company and the Trust will not, and will not permit
any of its "affiliates" (as defined in Rule 144A) to, resell any
Securities which constitute "restricted securities under Rule 144 that
have been reacquired by any of them.
(f) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf will, directly or indirectly, make offers or
sales of any security, or solicit offers to buy any security, under
circumstances that would require the registration of the Securities under
the Securities Act.
(g) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation D)
in connection with any offer or sale of the Securities in the United
States.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, the Company
will, during any period in which it is not subject to and in compliance
with Section 13 or 15(d) of the Exchange Act, provide to each holder of
such restricted securities and to each prospective purchaser (as
designated by such holder) of such restricted securities, upon the request
of such holder or prospective purchaser, any information required to be
provided by Rule 144A(d)(4) under the Securities Act.
(i) Each of the Company and the Trust will cooperate with the
Initial Purchaser and use its respective best efforts to permit the
Securities to be eligible for clearance and settlement through The
Depository Trust Company.
(j) In connection with any disposition of Securities pursuant to a
transaction made in compliance with paragraph 1 of Exhibit A, the Company
will reissue certificates evidencing such Securities without a restrictive
legend (provided, if requested, that the legal opinion referred to therein
so permits).
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(k) During the period of three years after the last date of original
issuance of the Securities, neither the Company nor the Trust will be or
become an "investment company" under the Investment Company Act.
(l) Prior to August 4, 1997, neither the Trust nor the Company will,
without the prior written consent of the Initial Purchaser, directly or
indirectly, issue, sell, offer or agree to sell, grant any option for the
sale of, or otherwise dispose of, or enter into an agreement to sell
Capital Securities, any security convertible into exchangeable or
exercisable for Capital Securities or the Debt Securities or any of the
debt securities substantially similar (including provisions with respect
to the deferral of interest) to the Debt Securities or any equity security
substantially similar to the Capital Securities (except for the Securities
issued pursuant to this Agreement).
6. Conditions to the Obligations of the Initial Purchaser. The
obligations of the Initial Purchaser to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the Company
and the Trust contained herein at the date and time that this Agreement is
executed and delivered by the parties hereto (the "Execution Time"), and the
Closing Date, to the accuracy of the statements of the Company and the Trust
made in any certificates pursuant to the provisions hereof, to the performance
by the Company and the Trust of their respective obligations hereunder in all
material respects and to the following additional conditions:
(a) The Company and the Trust shall have furnished to the Initial
Purchaser the opinion of Xxxxxxxxxx, Xxxxxxxxxx & Xxxx, counsel to the
Company and the Trust, dated the Closing Date, to the effect that:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware
and is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended, and has the corporate power
and authority to own its properties and conduct its business as
described in the Final Memorandum; the Bank is a duly organized and
validly existing New York State chartered commercial bank and
continues to hold a valid certificate to do business as such and has
full power and authority to conduct its business as such; USB Realty
is a duly organized and validly existing corporation in good
standing under the
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laws of the State of New York and has the corporate power and
authority to own its properties and conduct its business as such;
each of the Company, the Bank and USD Realty holds all material
licenses, certificates and permits from governmental authorities
necessary for the conduct of its business as described in the Final
Memorandum; and other than the Bank and USB Realty, there is no
significant subsidiary of the Company, as that term is defined in
Rule 1-02(w) of Regulation S-X, and there are no other subsidiaries
of the Company which individually, or in the aggregate, own or lease
property or conduct business which is material to the properties or
business of the Company and its subsidiaries taken as a whole;
(ii) the Bank and USB Realty are duly authorized, and the
Company is duly qualified as a foreign corporation, to do business
and are in good standing in all jurisdictions in which such
authorization or qualification is required and in which the failure
to be so authorized or to qualify, as the case may be, could
reasonably be expected to, in the aggregate, have any material
adverse effect upon the business, condition or properties of the
Company and its subsidiaries taken as a whole;
(iii) all the outstanding shares of capital stock of the Bank
and USB Realty have been duly and validly authorized and issued and
are fully paid and nonassessable; and all the outstanding shares of
capital stock of the Bank and all of the outstanding shares of
common stock of USB Realty are owned by the Company either directly
or through wholly-owned subsidiaries free and clear of any perfected
security interest and, to the knowledge of such counsel, after due
inquiry, any other security interests, claims, liens or
encumbrances;
(iv) the Company's authorized equity capitalization is as set
forth in the Final Memorandum and the Securities, the Debt
Securities and the Common Securities conform to the description
thereof contained in the Final Memorandum; the holders of the
outstanding shares of capital stock of the Company are not entitled
to any preemptive or other rights to subscribe for the Securities,
the Debt Securities or the Common Securities pursuant to Delaware
law or the Company's charter, and to the knowledge of such counsel
after due
14
inquiry, such counsel is not aware of the existence of such rights
pursuant to any agreement;
(v) to the knowledge of such counsel, after due inquiry, (A)
there is no pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or any
arbitrator involving the Company, the Trust or the Bank of a
character required to be disclosed in the Final Memorandum which is
not so disclosed; and (B) there is no franchise, contract or other
document of a character required to be described in the Final
Memorandum, which is not so described;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the Registration Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a legal,
valid and binding instrument enforceable against the Company and the
Trust in accordance with its terms (subject, as to the enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors, rights generally from
time to time in effect and except that the indemnification
provisions may be limited by federal or state securities laws or the
public policy underlying such laws);
(viii) the Indenture has been duly authorized, executed and
delivered, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
(subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors, rights generally from time to time in effect);
the Debt Securities have been duly and validly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Trust, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture;
(ix) the Guarantee has been duly authorized, executed and
delivered, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
(subject, as to the enforcement of remedies, to applicable
15
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors, rights generally from time to time in effect);
(x) all of the issued and outstanding Common Securities will
be owned directly by the Company free and clear of any security
interest, claims, liens or encumbrances;
(xi) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by
the Company or the Trust of the transactions contemplated by this
Agreement, the Registration Agreement, the Declaration, the
Indenture and the Guarantee, except such as may be required under
the blue sky or securities laws of any jurisdiction in connection
with the purchase and sale of the Securities by the Initial
Purchaser and such other approvals (specified in such opinion) as
have been obtained, and except in connection with the registration
of the Securities and the Debt Securities;
(xii) neither the issue and sale of the Securities or the Debt
Securities, the execution and delivery of the Declaration, the
Indenture, the Guarantee or the Registration Agreement, the
consummation of any other of the transactions herein or therein
contemplated nor the fulfillment of the terms hereof or thereof will
conflict with, result in a breach or violation of, or constitute a
default under or violate (A) any of the terms, conditions or
provisions of the charter or by-laws of the Company, the Bank or USB
Realty or the Declaration, (B) to the knowledge of such counsel,
after due inquiry, any of the terms, conditions or provisions of any
material document, agreement or other instrument to which the
Company, the Bank or USB Realty or the Trust is a party or by which
any of them or their property is bound, (C) any law or regulation
normally applicable to transactions of this type or, to the
knowledge of such counsel after due inquiry, any judgment, order,
decree or ruling applicable to the Company, the Bank, USB Realty or
the Trust of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company, the Bank, USB Realty or the Trust;
(xiii) assuming the accuracy of the representations and
warranties and compliance with the agreements contained herein, no
registration of
16
the Securities or the Debt Securities under the Securities Act is
required, and no qualification of the Declaration, the Indenture or
the Guarantee under the Trust Indenture Act of 1939, as amended, is
necessary, for the offer and sale by the Initial Purchaser of the
Securities in the manner contemplated by this Agreement;
(xiv) neither the Company nor the Trust is an "investment
company" within the meaning of the Investment Company Act, and after
giving effect to the offer and sale of the Securities and the
application of the proceeds thereof as described in the Final
Memorandum, neither will be an "investment company" as defined in
the Investment Company Act;
(xv) the Securities, the Common Securities, the Debt
Securities and each of the Guarantee, the Registration Agreement,
the Indenture and the Declaration conform in all material respects
to the descriptions thereof contained in the Final Memorandum; and
(xvi) the statements of legal matters, documents or
proceedings, and legal conclusions, if any, set forth in the Final
Memorandum under the headings "Exchange Offer; Registration Rights",
"Description of Capital Securities", "Description of Junior
Subordinated Debt Securities", "Relationship Among the Capital
Securities, the Junior Subordinated Debt Securities and the
Guarantee" and "Description of the Guarantee" fairly present the
information called for and fairly summarize the matters referred to
therein.
(xvii) the Trust is and will be classified as a grantor trust
for federal income tax purposes and not as a partnership or an
association taxable as a corporation;
(xviii) the Debt Securities will be classified as indebtedness
of the Company for United States federal income tax purposes;
(xix) the statements made under the heading "Certain Federal
Income Considerations" in the Final Memorandum, in so far as such
statements purport to summarize certain federal income tax laws of
the United States, constitute a fair and accurate summary of the
principal United States
17
federal income tax consequences of an investment in the Securities;
(xx) the Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business
Trust Act, and all filings required under the Delaware Business
Trust Act with respect to the creation and valid existence of the
trust as a business trust have been made;
(xxi) this Agreement and the Registration Agreement have been
duly executed and delivered by the Trust;
(xxii) the Declaration constitutes a valid and binding
obligation of the Company, and is enforceable against the Company in
accordance with its terms, subject to Bankruptcy and Equity and
Public Policy;
(xxiii) under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i) to
execute and deliver, and to perform its obligations under, this
Agreement and the Registration Agreement, and (ii) to issue and
perform its obligations under the Capital Securities and the Common
Securities;
(xxiv) under the Delaware Business Trust Act and the
Declaration, the execution and delivery by the Trust of this
Agreement and the Registration Agreement, and the performance by the
Trust of its obligations thereunder, have been duly authorized by
all necessary trust action on the part of the Trust;
(xxv) the Capital Securities have been duly authorized by the
Declaration and, when authenticated and paid for, will be duly and
validly issued and fully paid and nonassessable undivided beneficial
interests in the assets of the Trust, entitled to the benefits of
the Declaration; the holders, as beneficial owners of the Trust,
subject to Bankruptcy and Equity and Public Policy;
(xxvi) the holders of the Capital Securities will be entitled
to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware; pro-
18
vided, however, that the holders may be obligated, pursuant to the
Declaration, (A) to provide indemnity and/or security in connection
with and pay taxes or governmental charges arising from transfers or
exchanges of Securities certificates and the issuance of replacement
Securities certificates, and (B) to provide security or indemnity in
connection with requests of or directions to the Property Trustee to
exercise its rights and powers under the Declaration;
(xxvii) under the Delaware Business Trust Act and the
Declaration, the issuance of the Capital Securities and the Common
Securities is not subject to preemptive rights;
(xxviii) the Common Securities have been duly authorized by
the Declaration and, when authenticated and paid for, will be duly
and validly issued and fully paid undivided beneficial interests in
the assets of the Trust, entitled to the benefits of the
Declaration; and
(xxix) the (a) purchase of the Debt Securities by the Trust
and, (b) the distribution of the Debt Securities by the Trust in the
circumstances contemplated by the Declaration, and (c) the
performance by the Trust of this Agreement and the Registration
Agreement and the consummation of the transactions contemplated
thereunder, will not conflict with or result in a breach or
violation of any of the terms or provisions of the certificate of
the Trust or the Declaration or any statute, order, rule or
regulation of the State of Delaware or any governmental agency or
body of the State of Delaware having jurisdiction over the Trust or
any of its properties.
Such counsel shall also state that, in the course of preparation by
the Company of the Final Memorandum, such counsel has participated in
conferences with officers and other representatives of the Company and the
Trust, representatives of the independent public accountants for the Company and
the Trust, representatives of the Initial Purchaser and representatives of
counsel for the Initial Purchaser, at which conferences such counsel made
inquiries of such officers, representatives and accountants and discussed the
contents of the Final Memorandum and related matters and, although such counsel
has not independently verified and is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Final Memorandum (other than as
19
expressly set forth in such counsel's opinion), no facts have come to the
attention of such counsel which would lead such counsel to believe that the
Final Memorandum (other than the financial or statistical information contained
therein or omitted therefrom as to which such counsel need not express an
opinion), as of its date or on the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company, the Trust and public officials.
All references in this Section 6(a) to the Final Memorandum shall be
deemed to include any amendment or supplement thereto at the Closing Date.
(b) The Chase Manhattan Bank shall have furnished to the Initial
Purchaser the opinion of Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxx, special counsel
to The Chase Manhattan Bank, dated the Closing Date, to the effect that:
(i) The Chase Manhattan Bank has been duly incorporated and is
validly existing as a banking corporation in good standing under the
laws of the State of New York;
(ii) each of the Declaration, the Indenture and the Guarantee
has been duly authorized, executed and delivered by the Property
Trustee, the Indenture Trustee and the Guarantee Trustee,
respectively, and constitutes a legal, valid and binding instrument
enforceable against the Property Trustee, the Indenture Trustee and
the Guarantee Trustee in accordance with its respective terms
(subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors, rights generally from time to time in effect);
(iii) no consent, approval, authorization or order of any
federal or New York State banking authority is required for the
consummation of the transactions contemplated by the Declaration,
the Indenture or the Guarantee by the Property Trustee, the
Indenture Trustee or the Guarantee Trustee, respectively; and
20
(iv) neither the execution and delivery of the Declaration,
the Indenture or the Guarantee, the consummation of any other of the
transactions herein or therein contemplated nor the fulfillment of
the terms hereof or thereof will conflict with, result in a breach
or violation of, or constitute a default under any law or the
charter or by-laws of The Chase Manhattan Bank or the terms of any
indenture or other agreement or instrument known to such counsel and
to which The Chase Manhattan Bank is a party or bound or any
judgment, order or decree known to such counsel to be applicable to
The Chase Manhattan Bank of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over The Chase Manhattan Bank.
(c) Chase Manhattan Bank Delaware shall have furnished to the
Initial Purchaser the opinion of Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxx, special
counsel to Chase Manhattan Bank Delaware, dated the Closing Date, to the
effect that Chase Manhattan Bank Delaware has been duly incorporated and
is validly existing as a banking corporation in good standing under the
laws of the State of Delaware; and has full corporate power and authority
to act as trustee of a statutory business trust under the laws of the
State of Delaware.
(d) The Initial Purchaser shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, special counsel to the Initial Purchaser, such
opinion or opinions, dated the Closing Date, with respect to the issuance
and sale of the Securities, the Final Memorandum (as amended or
supplemented at the Closing Date) and other related matters as the Initial
Purchaser may reasonably require, and the Company and the Trust shall have
furnished to such counsel such documents as they may request for the
purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Initial Purchaser a
certificate of the Company, signed by the Chairman of the Board and
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Final Memorandum, any amendment or
supplement to the Final Memorandum and this Agreement and that:
(i) the representations and warranties of the Company and the
Trust in this Agreement are true and correct in all material
respects on and
21
as of the Closing Date with the same effect as if made on the
Closing Date, and the Company and the Trust have complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
and
(ii) since the date of the most recent financial statements
included in the Final Memorandum, there has been no material adverse
change in the financial condition, earnings, business or properties
of the Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set forth
in the Final Memorandum (exclusive of any amendment or supplement
thereto).
(f) At the Closing Date, Deloitte & Touche LLP shall have furnished
to the Initial Purchaser a letter or letters, dated as of the Closing
Date, in form and substance satisfactory to the Initial Purchaser,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to initial purchasers with respect to the
financial statements and certain financial information contained in the
Final Memorandum.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Final Memorandum, there shall not have
been (i) any change or decrease specified in the letter or letters
referred to in paragraph (f) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the business
or properties of the Company and its subsidiaries the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the judgment of
the Initial Purchaser, so material and adverse as to make it impractical
or inadvisable to market the Capital Securities as contemplated by the
Final Memorandum.
(h) Prior to the Closing Date, the Company and the Trust shall have
furnished to the Initial Purchaser such further information, certificates
and documents as the Initial Purchaser may reasonably request.
(i) The Registration Agreement shall have been duly executed and
delivered by the Company and the Trust, and each of the Declaration,
Indenture and Guarantee shall have been duly executed and delivered by
each of the parties thereto.
22
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Initial Purchaser and Counsel to the Initial Purchaser,
this Agreement and all obligations of the Initial Purchaser hereunder may be
canceled at, or at any time prior to, the Closing Date by the Initial Purchaser.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Initial Purchaser set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any refusal, inability or
failure on the part of the Company or the Trust to perform any agreement herein
or comply with any provision hereof other than by reason of a default by the
Initial Purchaser, the Company will reimburse the Initial Purchaser upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Initial Purchaser, the directors, officers,
employees and agents of the Initial Purchaser and each person who controls the
Initial Purchaser within the meaning of either the Securities Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which any of them may become subject under the Securities Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Final
Memorandum or any information provided by the Company to any holder or
prospective purchaser of Securities pursuant to Section 5 hereof, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
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
23
which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made in the Final Memorandum, or in any amendment thereof or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Company or the Trust by or on behalf of the
Initial Purchaser specifically for inclusion therein (which the parties
hereto understand consists only of the Initial Purchaser Information).
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) The Initial Purchaser agrees to indemnify and hold harmless each
of the Company and the Trust, their respective directors, officers or
trustees, as the case may be, and each person who controls the Company or
the Trust, as the case may be, within the meaning of either the Securities
Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Company to the Initial Purchaser, but only with reference to
written information relating to the Initial Purchaser furnished to the
Company or the Trust by or on behalf of the Initial Purchaser specifically
for inclusion in the Final Memorandum (or in any amendment or supplement
thereto). This indemnity agreement will be in addition to any liability
which the Initial Purchaser may otherwise have. The Company acknowledges
that the Initial Purchaser Information constitutes the only information
furnished in writing by or on behalf of the Initial Purchaser for
inclusion in the Final Memorandum (or in any amendment or supplement
thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint counsel
of
24
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ one separate counsel (and, in addition, one local
counsel in any relevant jurisdiction for an indemnified party), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Initial Purchaser
agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses")
to which the Company, the Trust and the Initial Purchaser may be subject
in such proportion as is appropriate to reflect the relative benefits
received by the Trust, the Company and by the Initial Purchaser from the
offering of the Securities. If the allocation provided by
25
the immediately preceding sentence is unavailable for any reason, the
Company and the Initial Purchaser shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and of the Initial Purchaser in connection
with the statements or omissions which resulted in such Losses as well as
any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the
offering of the Securities (before deducting expenses), and benefits
received by the Initial Purchaser shall be deemed to be equal to the
compensation received by or credited to the Initial Purchaser in
connection with its purchase of the Securities hereunder. Relative fault
shall be determined by reference to whether any alleged untrue statement
or omission relates to information provided by the Company or the Trust,
on the one hand, or the Initial Purchaser, on the other. The Company, the
Trust and the Initial Purchaser agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who
controls the Initial Purchaser within the meaning of either the Securities
Act or the Exchange Act and each director, officer, employee and agent of
the Initial Purchaser shall have the same rights to contribution as the
Initial Purchaser, and each person who controls the Company or the Trust
within the meaning of either the Securities Act or the Exchange Act and
each officer and director of the Company or trustee of the Trust shall
have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Initial Purchaser, by notice given to the Company
prior to delivery of and payment for the Securities, (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Final Memorandum, any material adverse
change in the financial condition, the earnings or the business affairs of the
Trust or the Company and its subsidiaries, considered as one enterprise, whether
or not arising in the ordinary course of business, (ii) trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or limited, or minimum or maximum prices for trading
have been fixed, or maximum
26
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any governmental authority, (iii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iv) if there has
occurred any material adverse change in the financial markets in the United
States, or there shall have occurred any outbreak or escalaion of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the reasonable judgment of the Initial Purchaser, impracticable or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Memorandum.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or the Trust or their respective officers or Trustees and of the Initial
Purchaser set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of the
Initial Purchaser or the Company or the Trust or any of the officers, directors,
trustees or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Initial Purchaser, will be
mailed, delivered or telegraphed and confirmed to Xxxxx, Xxxxxxxx & Xxxxx,
Inc., at Two World Trade Center - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; or,
if sent to the Company or the Trust, will be mailed, delivered or telegraphed
and confirmed to it at 000 Xxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx, Executive Vice President.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, trustees and controlling persons referred to in Section 8
hereof, and, except as expressly set forth in Section 5(h) hereof, no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
27
14. Business Day. For purposes of this Agreement, "business day"
means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in The City of New York, New York, are authorized or
obligated by law, executive order or regulation to close.
15 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Trust, the Company and the Initial Purchaser.
Very truly yours,
UNION STATE CAPITAL TRUST I
By: /s/ [ILLEGIBLE]
-----------------------------
Name:
Title:
U.S.B. HOLDING CO., INC.,
By: /s/ [ILLEGIBLE]
-----------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written:
XXXXX, XXXXXXXX & XXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
29
EXHIBIT A
Form of Investment Letter for
Institutional Accredited Investors
January __, 1997
U.S.B. Holding Co., Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Two World Trade Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
In connection with our proposed purchase of ____________% Capital
Securities (together with the Guarantee (as defined) the "Securities") of Union
State Capital Trust I, a Delaware statutory business trust (the "Trust") and a
guarantee agreement (the "Guarantee") dated as of January 1, 1997, between
U.S.B. Holding Co., Inc. (the "Company") and The Chase Manhattan Bank, we
confirm that:
1. We understand that the Securities, and the Junior Subordinated
Debentures due 2027 (the "Debentures") of the Company have not been
registered under the Securities Act of 1933, as amended (the "Securities
Act"), and may not be sold except as permitted in the following sentence.
We understand and agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, (x) that such Securities
are being offered only in a transaction not involving any public offering
within the meaning of the Securities Act, and (y) that if we should
resell, pledge or otherwise transfer such Securities or Debentures within
three years after the last date of the original issuance of the Securities
or, if later, within three months after we cease to be an affiliate
(within the meaning of Rule 144 under the Securities Act) of the Company,
such Securities and Debentures may be resold, pledged or transferred only
(i) to the Company, (ii) so long as the Securities and Debentures are
eligible for resale pursuant to Rule 144A under the Securities Act ("Rule
144A"), to a person whom we reasonably believe is a "qualified
institutional buyer"
1
(as defined in Rule 144A) ("Qualified Institutional Buyer") that purchases
for its own account or for the account of a Qualified Institutional Buyer
to whom notice is given that the resale, pledge or transfer is being made
in reliance on Rule 144A (as indicated by the box checked by the
transferor on the Certificate of Transfer on the reverse of the
certificates if such securities are not in book-entry form), (iii)
pursuant to an exemption from registration under the Securities Act
provided by Rule 144 (if applicable) under the Securities Act, or (iv)
pursuant to an effective registration statement under the Securities Act,
in each case in accordance with any applicable securities laws of any
state of the United States, and we will notify any purchaser of the
Securities or Debentures from us of the above resale restriction, if then
applicable. We further understand that, in connection with any transfer of
the Securities or Debentures by us, the Company and the Property Trustee
(or, in the case of the Debentures, the Indenture Trustee) may request,
and, if so requested we will furnish, such certificates, legal opinions
and other information as they may reasonably require to confirm that any
such transfer complies with the foregoing restrictions.
2. We are able to fend for ourselves in the transactions
contemplated by the offering memorandum, we have such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Securities or the
Debentures and we and any accounts for which we are acting are each able
to bear the economic risk of our or its investment and can afford the
complete loss of such investment.
3. We understand that the minimum aggregate stated liquidation
amount of Securities that may be purchased by an institutional "accredited
investor" is $100,000.
4. We understand that the Company and Xxxxx, Xxxxxxxx & Xxxxx, Inc.
(the "Initial Purchaser") and others will rely upon the truth and accuracy
of the foregoing acknowledgments, representations and agreements, and we
will agree that if any of the acknowledgments, representations and
warranties deemed to have been made by us by our purchase of the
Securities, for our own account or for one or more accounts as to each of
which we exercise sole investment discretion, are no longer accurate, we
shall promptly notify the Company and the Initial Purchaser.
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5. We are acquiring the Securities purchased by us for investment
purposes, and not for distribution, for our own account or for one or more
accounts as to each of which we exercise sole investment discretion and we
are or such account is an institution which is an "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act).
6. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
________________________________
(Name of purchaser)
By: ____________________________
Name:
Title:
Date:
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