EXHIBIT 1.1
OCWEN FINANCIAL CORPORATION
DEBT SECURITIES, PREFERRED STOCK AND COMMON STOCK
UNDERWRITING AGREEMENT
Ocwen Financial Corporation, a Florida corporation (the
"Company"), proposes to issue and sell from time to time certain of its
unsecured senior debt securities, unsecured subordinated debt securities,
Preferred Stock, par value $.01 per share (the "Preferred Stock"), and common
stock, par value $.01 per share (the "Common Stock"), registered under the
registration statement referred to in Section 2(a) ("Registered Securities").
The Registered Securities constituting senior debt securities will be issued
under an indenture, dated as of ___________, 199_ (the "Senior Indenture"),
between the Company and Norwest Bank Minnesota, N.A., as trustee (the
"Trustee"), in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and other terms. The
Registered Securities constituting subordinated debt securities will be issued
under an indenture, dated as of ___________, 199_ (the "Subordinated Indenture"
and, together with the Senior Indenture, the "Indentures" or, individually, an
"Indenture"), between the Company and the Trustee, in one or more series, which
series may vary as to interest rates, maturities, redemption provisions, selling
prices and other terms. The Registered Securities constituting Preferred Stock
may be issued in one or more series, which series may vary as to dividend rates,
redemption provisions, selling prices and other terms. Particular series or
offerings of Registered Securities will be sold pursuant to a Terms Agreement
referred to in Section 2, for resale in accordance with terms of offering
determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Offered Securities". The firm or firms which
agree to purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
2 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement, shall mean the
Underwriters.
1. Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees that:
(a) A registration statement (No. 333-64915),
including a prospectus, relating to the Registered Securities
has been filed with the Securities and Exchange Commission
("Commission") and has become effective. Such registration
statement, as amended at the time of any Terms Agreement
referred to in Section 2 and including all documents
incorporated by reference therein and all exhibits thereto, is
hereinafter referred to as the "Registration Statement", and
the prospectus included in such Registration Statement, as
supplemented to reflect the terms of the Offered Securities
(if they are debt securities or Preferred Stock) and the terms
of the offering of the Offered Securities, as most recently
filed with the Commission prior to the Closing Date (as
defined below) pursuant to Rule 424(b) ("Rule 424(b)")
under the Act of 1933, as amended (the "Act"), and in
accordance herewith, including all material incorporated by
reference therein, is hereinafter referred to as the
"Prospectus". All references in this Agreement to financial
statements and schedules and other information that is
"contained," "included" or "stated" in the registration
statement relating to the Registered Securities, any
preliminary prospectus or the Prospectus (and all other
references of like import) shall be deemed to mean and include
all such financial statements and schedules and other
information that are or are deemed to be incorporated by
reference in such registration statement, any preliminary
prospectus or the Prospectus, as the case may be. Any
reference herein to the terms "amend," "amendment" or
"supplement" with respect to the registration statement
relating to the Registered Securities, any preliminary
prospectus or the Prospectus shall be deemed to refer to and
include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), after
the effective date of such registration statement or the issue
date of any preliminary prospectus or the Prospectus, as the
case may be, and on or prior to the completion of the
applicable offering and which is deemed to be incorporated
therein by reference.
(b) On the effective date of the registration
statement relating to the Registered Securities, such
registration statement complied as to form in all material
respects with the requirements of the Act, the Trust Indenture
Act of 1939 (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder ("Rules and
Regulations") and did not include any 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
not misleading, and on the date of each Terms Agreement
referred to in Section 2, the Registration Statement and the
Prospectus will comply as to form in all material respects
with the requirements of the Act, the Trust Indenture Act, and
the Rules and Regulations, and neither of such documents will
include any 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 not misleading;
provided, however, that no representation or warranty is made
as to (a) information contained in or omitted from any of such
documents in reliance upon and in conformity with written
information furnished
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to the Company through the Representatives by or on behalf of
any Underwriter specifically for inclusion therein or (b) that
part of the Registration Statement that constitutes the
Statements of Eligibility on Forms T-1 of the Trustee under
the Trust Indenture Act filed as exhibits to the Registration
Statement (the "Forms T-1"). The documents incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3
promulgated by the Commission under the Act, when they were
filed with the Commission, conformed in all material respects
to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and any further
documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission,
will conform in all material respects to the requirements of
the Exchange Act and the rules and regulations of the
Commission thereunder.
(c) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform in all material respects to the description thereof
contained in the Prospectus; and all of the issued shares of
capital stock of each subsidiary of the Company have been duly
and validly authorized and issued and are fully paid and
non-assessable and, except for directors' qualifying shares
and as set forth in the Registration Statement and the
Prospectus, are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
the Company is a savings and loan holding company duly
registered under the Home Owners' Loan Act, as amended
("HOLA"), and duly organized and validly existing under the
laws of the State of Florida, with full power and authority to
own its properties and conduct its business as described in
the Registration Statement and the Prospectus and to execute
and deliver the Terms Agreement; the Company owns, directly or
indirectly, beneficially and of record all of the outstanding
shares of capital stock of Ocwen Federal Bank FSB (the
"Bank"); the Bank is a federal savings bank duly organized and
validly existing under the laws of the United States with full
power and authority to own its properties and conduct its
business as described in the Registration Statement and the
Prospectus; the Bank is a member in good standing of the
Federal Home Loan Bank System; the savings accounts of
depositors in the Bank are insured by the Federal Deposit
Insurance Corporation (the "FDIC") to the fullest extent
permitted by law and the rules and regulations of the FDIC,
and no proceedings for the termination of such insurance are
pending, or to the Company's knowledge, threatened.
(d) Each of the Company's subsidiaries (as defined in
Section 12) has been duly formed and is validly existing and
in good standing under the laws of jurisdiction of
incorporation; each of the Company and its subsidiaries is
duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business
requires such qualification and in which the failure,
singularly or in the aggregate, to be so qualified could not
reasonably be expected to have a material adverse effect on
the consolidated financial position, stockholders' equity,
results of operations or business of the Company and its
subsidiaries, and has all power and authority necessary to own
or hold its properties and to conduct the business in which it
is engaged; and none of the subsidiaries (other than the Bank
and BCBF, L.L.C. ("BCBF"), each a "Significant Subsidiary" and
together the "Significant
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Subsidiaries") is a "significant subsidiary", as such term is
defined in Rule 405 of the Rules and Regulations.
(e) If the Offered Securities are debt securities:
each of the Senior Indenture and the Subordinated Indenture,
as the case may be, has been duly authorized by the Company
and has been duly qualified under the Trust Indenture Act;
when the Offered Securities are delivered and paid for
pursuant to the Terms Agreement on the Closing Date or
pursuant to Delayed Delivery Contracts (as hereinafter
defined), the Senior Indenture or the Subordinated Indenture,
as the case may be, will have been duly executed and delivered
by the Company, and, assuming the due authorization, execution
and delivery thereof by the Trustee, will constitute a valid
and legally binding obligation of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Offered Securities have been duly authorized by the Company
and, when the Offered Securities are executed and delivered by
the Company and authenticated by the Trustee in accordance
with the applicable Indenture, and paid for pursuant to the
Terms Agreement on the Closing Date or pursuant to the
Delayed Delivery Contracts, will be entitled to the benefits
of the applicable Indenture, conform in all material respects
to the description thereof contained in the Prospectus and
constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles.
(f) If the Offered Securities are Preferred Stock:
the Offered Securities have been duly authorized and, when the
Offered Securities have been delivered and paid for in
accordance with the Terms Agreement on the Closing Date or
pursuant to Delayed Deliver Contracts, such Offered Securities
will have been validly issued, fully paid and non-assessable
and will conform in all material respects to the description
thereof contained in the Prospectus; and the shareholders of
the Company have no preemptive rights with respect to the
Offered Securities.
(g) If the Offered Securities are Common Stock or are
convertible into Common Stock: the Offered Securities and all
other outstanding shares of capital stock of the Company have
been duly authorized; all outstanding shares of capital stock
of the Company are, and, when the Offered Securities have been
delivered and paid for in accordance with the Terms Agreement
on the Closing Date, such Offered Securities will have been,
validly issued, fully paid and nonassessable and will conform
in all material respects to the description thereof contained
in the Prospectus; and the shareholders of the Company have no
preemptive rights with respect to the Offered Securities.
(h) If the Offered Securities constitute Common Stock
or are convertible into Common Stock, the outstanding shares
of Common Stock are listed on the New York Stock Exchange (the
"Stock Exchange") and the Offered Securities (if they are
Common Stock) or the Common Stock into which the Offered
Securities are convertible (if they are convertible) have been
approved for listing on the Stock Exchange, subject to notice
of issuance. If the Offered Securities are debt securities or
Preferred Stock, they have been approved for listing on the
Stock Exchange if so indicated in the Terms Agreement, subject
to notice of issuance.
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(i) The execution, delivery and performance of each
Indenture (if the Offered Securities are debt securities), the
Terms Agreement, any Delayed Delivery Contracts, the issuance
and sale of the Offered Securities and, if the Offered
Securities are debt securities or Preferred Stock, compliance
with the terms and provisions thereof and the consummation of
the transactions contemplated thereby, will not conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is
bound or to which any of the properties or assets of the
Company or any of its subsidiaries is subject, except for such
breaches or violations which would not, singularly or in the
aggregate, reasonably be expected to have a material adverse
effect on the consolidated financial position, stockholders'
equity, results of operations or business of the Company and
its subsidiaries, nor will such actions result in any
violation of the provisions of the charter (or other
organizational document) or by-laws of the Company or any of
its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets; and except for (i) the
registration of the Offered Securities under the Act, (ii)
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with
the purchase and distribution of the Offered Securities and
(iii) any approval of the listing of the Offered Securities on
the Stock Exchange, no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required for the execution,
delivery and performance of each Indenture (if the Offered
Securities are debt securities), the Terms Agreement, any
Delayed Delivery Contracts, the issuance and sale of the
Offered Securities and, if the Offered Securities are debt
securities or Preferred Stock, compliance with the terms and
provisions thereof and the consummation of the transactions
contemplated thereby.
(j) Except as described in the Registration
Statement, there are no contracts, agreements or
understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(k) Except as described in the Registration
Statement, the Company has not issued or sold any Offered
Securities during the six-month period preceding the date of
the Prospectus, including any sales pursuant to Rule 144A or
Regulations D or S under the Act, other than Common Stock
issued pursuant to director or employee benefit plans,
qualified stock options plans or other employee compensation
plans or pursuant to outstanding options, rights or warrants.
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(l) Neither the Company nor any of its subsidiaries
has sustained, since the date of the latest audited financial
statements included in the Prospectus, 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, otherwise than as set forth or contemplated in the
Prospectus; and, since such date, there has not been any
change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any material adverse change, or
any development involving a prospective material adverse
change, in or affecting the consolidated financial position,
stockholders' equity, results of operations or business of the
Company and its subsidiaries, otherwise than as set forth or
contemplated in the Registration Statement.
(m) The financial statements (including the related
notes and supporting schedules) filed as part of the
Registration Statement or included in the Prospectus present
fairly in all material respects the financial condition and
results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the
periods involved, except as otherwise stated therein.
(n) PricewaterhouseCoopers LLP, who have certified
certain financial statements of the Company and BCBF, whose
reports are included in the Prospectus and who have delivered
the initial letter referred to in Section 4(e) hereof, are
independent public accountants as required by the Act and the
Rules and Regulations.
(o) Except as described in the Prospectus, there are
no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property or asset of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or
any of its subsidiaries, singularly or in the aggregate, would
reasonably be expected to have a material adverse effect on
the consolidated financial position, stockholders' equity,
results of operations or business of the Company and its
subsidiaries; and to the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or by others.
(p) There are no contracts or other documents which
are required to be described in the Prospectus or filed as
exhibits to the Registration Statement which have not been
described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as
permitted by the Rules and Regulations.
(q) Neither the Company nor any of its subsidiaries
(i) is in violation of its charter (or other organizational
document) or by-laws, (ii) is in default, and no event has
occurred which, with notice or lapse of time or both, would
constitute such default, in the due performance or observance
of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject or (iii)
is in violation of any law, ordinance, governmental rule,
regulation or court decree to which it or its properties or
assets may be subject or has failed to obtain any license,
permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its
properties or assets or to the conduct of its business, other
than, in the case of clause (ii) or (iii) above, any defaults,
events, violations or failures that, singularly or in the
aggregate, would not reasonably be expected to have a material
adverse effect on the consolidated financial position,
stockholders' equity, results of operations or business of the
Company and its subsidiaries.
(r) Neither the Company nor any subsidiary is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
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2. Purchase and Offering of Offered Securities. The obligation
of the Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("Terms Agreement") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount or number
of shares to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters and (if the Offered Securities are debt securities or Preferred
Stock) the terms of the Offered Securities not already specified (in the
Indenture, in the case of Offered Securities that are debt securities),
including, but not limited to, interest rate (if debt securities), dividend rate
(if Preferred Stock), maturity (if debt securities), any redemption provisions
and any sinking fund requirements and whether any of the Offered Securities may
be sold to institutional investors pursuant to Delayed Delivery Contracts. The
Terms Agreement will also specify the time and date of delivery and payment
(such time and date, or such other time not later than seven full business days
thereafter as the Underwriter first named in the Terms Agreement (the "Lead
Underwriter") and the Company agree as the time for payment and delivery, being
herein and in the Terms Agreement referred to as the "Closing Date"), the place
of delivery and payment and any details of the terms of offering that should be
reflected in the prospectus supplement relating to the offering of the Offered
Securities. For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date
(if later than the otherwise applicable settlement date) shall be the date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering, other than Contract Securities (as defined below) for
which payment of funds and delivery of securities shall be as hereinafter
provided. The obligations of the Underwriters to purchase the Offered Securities
will be several and not joint. It is understood that the Underwriters propose to
offer the Offered Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered
Securities pursuant to delayed delivery contracts, the Company authorizes the
Underwriters to solicit offers to purchase Offered Securities pursuant to
delayed delivery contracts substantially in the form of Annex I attached hereto
("Delayed Delivery Contracts") with such changes therein as the Company may
authorize or approve. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable institutions. On the
Closing Date, the Company will pay, as compensation, to the Representatives for
the accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount or number of shares of Offered Securities to be
sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount or number of shares of Offered Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
or number of shares of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro rata and so advise
the Company. The Company will advise the Lead Underwriter not later than the
business day prior to the Closing Date of the principal amount or number of
shares of Contract Securities.
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If the Offered Securities are Preferred Stock or Common Stock,
the certificates for the Offered Securities delivered to the Underwriters on the
Closing Date will be in definitive form, and if the Offered Securities are debt
securities, except as provided below, the Offered Securities delivered to the
Underwriters on the Closing Date will be in definitive fully registered form, in
each case, in such denominations and registered in such names as the Lead
Underwriter requests.
If the Offered Securities are debt securities and the Terms
Agreement specifies "Book-Entry Only" settlement or otherwise states that the
provisions of this paragraph shall apply, the Company will deliver against
payment of the purchase price the Offered Securities in the form of one or more
permanent global securities in definitive form (the "Global Securities")
deposited with the Trustee as custodian for The Depository Trust Company ("DTC")
and registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent global securities will be held only in book-entry form through DTC,
except in the limited circumstances described in the Prospectus. Payment for the
Offered Securities shall be made by the Underwriters (if the Terms Agreement
specifies that the Offered Securities will not trade in DTC's Same Day Funds
Settlement System) by certified or official bank check or checks in New York
Clearing House (next day) funds or (if the Terms Agreement specifies that the
Offered Securities will trade in DTC's Same Day Funds Settlement System) in
Federal (same day) funds by official check or checks or wire transfer to an
account previously designated to the Lead Underwriter by the Company at a bank
acceptable to the Lead Underwriter, in each case drawn to the order of the
Company at the place of payment specified in the Terms Agreement on the Closing
Date, against delivery to the Trustee as custodian for DTC of the Global
Securities representing all of the Offered Securities.
3. Further Agreements of the Company. The Company agrees with
the several Underwriters that it will furnish to counsel for the Underwriters,
one signed copy of the registration statement relating to the Registered
Securities, including all exhibits thereto, in the form it became effective and
of all amendments thereto and that, in connection with each offering of Offered
Securities:
(a) The Company will file the Prospectus in the form
approved by the Representatives with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Lead Underwriter (which consent
shall not be unreasonable withheld), subparagraph (5)) not
later than the second business day following the execution and
delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter
promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus, afford the Lead
Underwriter a reasonable opportunity to comment on any such
proposed amendment or supplement and obtain the approval of
the Lead Underwriter of such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter promptly
of the filing of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in
respect of the Registration Statement or any part thereof and
will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if
issued.
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(c) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act
in connection with sales by any Underwriter or dealer, any
event occurs as a result of which the Prospectus as then
amended or supplemented would include an 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 is
necessary at any time to amend the Prospectus to comply with
the Act, the Company promptly will notify the Lead Underwriter
of such event and upon the request of the Lead Underwriter,
promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance.
(d) As soon as practicable, but not later than 16
months, after the date of each Terms Agreement, the Company
will make generally available to its security holders an
earnings statement covering a period of at least 12 months
beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities,
(ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective
prior to the date of such Terms Agreement and (iii) the date
of the Company's most recent Annual Report on Form 10-K filed
with the Commission prior to the date of such Terms Agreement,
which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives
copies of the Registration Statement, including all exhibits
thereto, any related preliminary prospectus, any related
preliminary prospectus supplement, the Prospectus and all
amendments and supplements to such documents, in each case not
later than 10:00 a.m., New York City time, on the day
following execution of the Terms Agreement or any Delayed
Delivery Contract and in such quantities as the Lead
Underwriter reasonably requests. The Company will pay the
expenses of printing and distributing to the Underwriters all
such documents.
(f) The Company will arrange for the qualification of
the Offered Securities for sale under the securities laws of
such jurisdictions as the Lead Underwriter may request and
will continue such qualifications in effect so long as
required for the distribution thereof; provided, however, that
in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction.
(g) During the period of five years after the date of
any Terms Agreement, the Company will furnish to the
Representatives and, upon request, to each of the other
Underwriters, (i) copies of all materials furnished by the
Company to its shareholders generally, (ii) copies of all
public reports and all reports and financial statements
furnished by the Company to the principal national securities
exchange or automated quotation system upon which the Common
Stock may be listed or quoted pursuant to requirements of or
agreements with such exchange or system, (iii) copies of all
reports filed by the Company with the Commission pursuant to
the Exchange Act or any rule or regulation of the Commission
thereunder and (iv) copies of the publicly available reports
filed by the Bank with the OTS.
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(h) The Company will pay (except as otherwise agreed
by the Company and the Representatives) (i) the costs incident
to the authorization, issuance, sale and delivery of the
Offered Securities and any taxes payable in that connection;
(ii) the costs incident to the preparation, printing and
filing under the Act of the Registration Statement and any
amendments and exhibits thereto; (iii) the costs of
distributing the Registration Statement and each amendment
thereto and any post-effective amendments thereof (including,
in each case, exhibits), any preliminary prospectus, the
Prospectus and any amendment or supplement to the Prospectus,
all as provided in this Agreement; (iv) the costs of
reproducing and distributing this Agreement; (v) the filing
fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of sale
of the Offered Securities; (vi) any applicable listing fees;
(vii) the fees and expenses of qualifying the Offered
Securities under the securities laws of the several
jurisdictions as provided in Section 3(f) and of preparing,
printing and distributing a Blue Sky Memorandum (including
related fees and expenses of counsel to the Underwriters);
(viii) fees charged by investment rating agencies for the
rating of the Offered Securities (if they are debt securities
or Preferred Stock); (ix) fees charged by the Trustee; and (x)
all other costs and expenses incident to the performance of
the obligations of the Company under any Terms Agreement or
Delayed Delivery Contract; provided, however, that, except as
provided in this Section 3 and in Section 8, the Underwriters
shall pay their own costs and expenses, including the costs
and expenses of their counsel, any transfer taxes on the
Offered Securities which they may sell and the expenses of
advertising any offering of the Offered Securities made by the
Underwriters.
4. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Offered
Securities on the Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company herein on and as of
the Closing Date as if made on and as of the Closing Date, to the accuracy of
the statements of Company officers made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Prospectus shall have been timely filed with
the Commission in accordance with Section 3(a); no stop order
suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and
disclosed to the Company on or prior to such Closing Date that
the Registration Statement or the Prospectus or any amendment
or supplement thereto contains any untrue statement of a fact
which, in the opinion of counsel for the Underwriters is
material or omits to state any fact which, in the opinion of
such counsel, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(c) Sidley & Austin shall have furnished to the
Representatives its written opinion, as counsel to the
Company, addressed to the Underwriters and dated such
10
Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company is a savings and loan
holding company duly registered under HOLA;
(ii) The Bank is validly existing as a
federal savings bank under the laws of the United
States of America and is a member of the Federal Home
Loan Bank of New York;
(iii) If the Offered Securities are debt
securities: the applicable Indenture has been duly
authorized, executed and delivered by the Company and
has been duly qualified under the Trust Indenture
Act; the applicable Indenture, assuming the due
authorization, execution and delivery thereof by the
Trustee, constitutes a valid and legally binding
obligation of the Company enforceable in accordance
with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or
affecting creditors' rights and to general equity
principles (regardless of whether considered in a
proceeding in equity or at law); the Offered
Securities have been duly authorized by the Company
and, when the Offered Securities are executed and
delivered by the Company and authenticated by the
Trustee in accordance with the applicable Indenture,
and paid for pursuant to the Terms Agreement on the
Closing Date or pursuant to Delayed Delivery
Contracts, will be entitled to the benefits of the
applicable Indenture and constitute valid and legally
binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to
general equity principles (regardless of whether
considered in a proceeding in equity or at law); and
the Offered Securities (other than any Contract
Securities) conform, and any Contract Securities,
when so issued and delivered and paid for will
conform, in all material respects to the description
thereof contained in the Prospectus;
(iv) If the Offered Securities are Common
Stock or are convertible into Common Stock: there are
no contracts or agreements known to such counsel
between the Company and any other person granting to
such person the right to require the Company to file
a registration statement under the Act with respect
to any securities of the Company owned or to be owned
by such person or to require the Company to include
such securities in the securities registered pursuant
to the Registration Statement;
(v) The Registration Statement was declared
effective under the Act as of the date and time
specified in such opinion; the Prospectus was filed
with the Commission pursuant to the subparagraph of
Rule 424(b) of the Rules and Regulations specified in
such opinion on the date specified therein; and no
stop order suspending the effectiveness the
Registration Statement has been issued and, to the
knowledge of such counsel, no proceeding for that
purpose is pending or threatened by the Commission;
11
(vi) The Registration Statement (other than
the Forms T-1), as of its effective date, and the
Prospectus, as of its date, and any further
amendments or supplements thereto, as of their
respective dates, made by the Company prior to such
Closing Date (other than the financial statements,
financial data, statistical data and supporting
schedules included therein, as to which such counsel
need express no opinion) complied as to form in all
material respects with the requirements of the Act
and the Rules and Regulations;
(vii) To such counsel's knowledge, there are
no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits
to the Registration Statement by the Act or by the
Rules and Regulations that have not been described or
filed as required;
(viii) The Terms Agreement has and, if the
Offered Securities are debt securities or Preferred
Stock, any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company;
(ix) The execution, delivery and performance
by the Company of the applicable Indenture (if the
Offered Securities are debt securities), the Terms
Agreement and (if the Offered Securities are debt
securities or Preferred Stock) any Delayed Delivery
Contracts and the issuance and sale by the Company of
the Offered Securities and (if the Offered Securities
are debt securities or Preferred Stock) compliance by
the Company with the terms and provisions thereof
will not result in a breach or violation of any of
the terms and provisions of, or constitute a default
under, HOLA or the Act or the rules and regulations
of the OTS and the Commission thereunder,
respectively; (B) any indenture, mortgage, deed of
trust, loan agreement or other agreement or
instrument identified in such opinion to which the
Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound
or to which any of the properties or assets of the
Company or any of its subsidiaries is subject; or (C)
to such counsel's knowledge, any other federal laws
or any judgment or order of any court or governmental
agency or body having jurisdiction over the Company
or any of its subsidiaries or any of the properties
or assets; and, except for the registration of the
Offered Securities under the Act and such consents,
approvals, authorizations, registrations or
qualifications as may be required under the Exchange
Act, applicable state or foreign securities laws and
Stock Exchange regulations in connection with the
purchase and distribution of the Offered Securities
by the Underwriters, no consent, approval,
authorization or order of, or filing or registration
with, any court or governmental agency or body is
required for the execution, delivery and performance
of the Terms Agreement or (if the Offered Securities
are debt securities or Preferred Stock) any Delayed
Delivery Contract by the Company and the consummation
of the transactions contemplated thereby;
(x) The savings accounts of depositors in
the Bank are insured by the FDIC to the fullest
extent permitted by law and the rules and regulations
of the FDIC, and no proceedings for the termination
of such insurance are pending or, to such counsel's
knowledge, threatened;
(xi) To such counsel's knowledge, neither
the Company nor any of its subsidiaries is party to
or otherwise the subject of any consent decree,
memorandum of understanding, written agreement or
similar supervisory
12
or enforcement agreement or understanding with the
OTS, the FDIC or any other government authority or
agency responsible for the supervision, regulation or
insurance of depository institutions or their holding
companies, except as disclosed in the Prospectus; and
(xii) The information in the Prospectus
under the caption related to the description of the
Offered Securities, to the extent that it constitutes
matters of law or legal conclusions, has been
reviewed by such counsel and is correct in all
material respects.
In rendering the foregoing opinions, such counsel may state
that such opinions are limited to matters governed by the
Federal laws of the United States of America and the laws of
the State of New York. Such counsel shall also have furnished
to the Representatives a written statement, addressed to the
Underwriters and dated such Closing Date, to the effect that
in the course of the preparation of the Registration Statement
and the Prospectus such counsel has considered the information
set forth therein in light of the matters required to be set
forth therein, and has participated in conferences with
officers and representatives of the Company, including its
internal counsel and independent public accountants, and
representatives of and counsel for the Underwriters, during
the course of which the contents of the Registration Statement
and the Prospectus and related matters were discussed; such
counsel has not independently checked the accuracy or
completeness of, or otherwise verified, and accordingly is not
passing upon, and does not assume responsibility for, the
accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus (except as
expressed in the last clause of paragraph (iii) and clause
(xii) above); and such counsel has relied as to materiality,
to a large extent, upon the judgment of officers and
representatives of the Company; however, as a result of such
consideration and participation, nothing has come to such
counsel's attention which causes them to believe that the
Registration Statement (other than the financial statements,
financial data, statistical data and supporting schedules
included therein, as to which such counsel need express no
belief), at the time it became effective, contained any untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
(other than the financial statements, financial data,
statistical data and supporting schedules included therein, as
to which such counsel need express no belief), as of such
Closing Date, included any untrue statement of a material fact
or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d) Xxxx X. Xxxxx, General Counsel of the Company,
shall have furnished to the Representatives his written
opinion addressed to the Underwriters and dated such Closing
Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company is a validly existing
corporation under the laws of the State of Florida,
with corporate power and authority to own its
properties and conduct its business as described in
the Registration Statement and the Prospectus;
13
(ii) The Company has an authorized
capitalization as set forth in the Prospectus, and
all of the issued shares of capital stock of the
Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform
in all material respects to the description thereof
contained in the Prospectus; and all of the issued
shares of capital stock of the Bank have been duly
and validly authorized and issued and are fully paid,
non-assessable and are directly or indirectly owned
of record and, to such counsel's knowledge,
beneficially by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iii) The Bank has corporate power and
authority to own its properties and conduct its
business as described in the Registration Statement
and the Prospectus, and is a member of the Federal
Home Loan Bank of New York;
(iv) All of the ownership interests in BCBF
held by the Company, as described in the Prospectus,
have been duly and validly created and acquired by
the Company and are directly or indirectly owned of
record and beneficially by the Company, free and
clear of all liens, encumbrances, equities or claims;
(v) Each of the Company's Significant
Subsidiaries has been duly formed and is validly
existing in good standing under the laws of its
jurisdiction of incorporation; each of the Company
and its subsidiaries is duly qualified to do business
and is in good standing as a foreign corporation in
each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such
qualification (other than those jurisdictions in
which the failure to so qualify would not, singularly
or in the aggregate, reasonably be expected to have a
material adverse effect on the consolidated financial
position, stockholders' equity, results of operations
or business of the Company and its subsidiaries), and
has the corporate power and authority to own or hold
its properties and conduct the business in which
engaged;
(vi) If the Offered Securities are Preferred
Stock: the Offered Securities have been duly
authorized; the Offered Securities (other than any
Contract Securities), when paid for pursuant to the
Terms Agreement, have been validly issued and are
fully paid and nonassessable; any Contract
Securities, when issued, delivered and paid for
pursuant to Delayed Delivery Contracts, will be
validly issued, fully paid and nonassessable; and the
Offered Securities (other than any Contract
Securities) conform, and any Contract Securities,
when so issued, delivered and paid for, will conform,
in all material respects to the description thereof
contained in the Prospectus; and, to the knowledge of
such counsel, the shareholders of the Company have no
preemptive rights with respect to the Offered
Securities;
(vii) If the Offered Securities are Common
Stock: the Offered
14
Securities, when paid for pursuant to the Terms
Agreement, will be duly authorized and validly
issued, fully paid and nonassessable and conform in
all material respects to the description thereof
contained in the Prospectus; and, to the knowledge of
such counsel, the shareholders of the Company have no
preemptive rights with respect to the Offered
Securities;
(viii) If the Offered Securities are
Preferred Stock or Common Stock: there are no
preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or
transfer of, any shares of Preferred Stock or Common
Stock pursuant to the Company's articles of
incorporation or by-laws or any agreement or other
instrument known to such counsel;
(ix) Other than as set forth in the
Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property
or asset of the Company or any of its subsidiaries is
the subject which, if determined adversely to the
Company or any of its subsidiaries, singularly or in
the aggregate, would reasonably be expected to have a
material adverse effect on the consolidated financial
position, stockholders' equity, results of operations
or business of the Company and its subsidiaries; and,
to such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental
authorities or by others;
(x) The execution, delivery and performance
of the Indenture (if the Offered Securities are debt
securities), the Terms Agreement and, if the Offered
Securities are debt securities or Preferred Stock,
any Delayed Delivery Contracts and the issuance and
sale of the Offered Securities and, if the Offered
Securities are debt securities or Preferred Stock,
compliance with the terms and provisions thereof will
not result in a breach or violation of any of the
terms and provisions of, or constitute a default
under, the articles of incorporation (or other
organizational document) or by-laws of the Company or
any of its subsidiaries or, to the knowledge of such
counsel, any Florida statute, rule or regulation or
any decree, judgment or order of any court or
governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of
their properties or assets; and, except for the
registration of the Offered Securities under the Act
and such consents, approvals, authorizations,
registrations or qualifications as may be required
under the Exchange Act, applicable state or foreign
securities laws and Stock Exchange regulations in
connection with the purchase and distribution of the
Offered Securities by the Underwriters, no consent,
approval, authorization or order of, or filing or
registration with, any court or governmental agency
or body is required for the execution, delivery and
performance of the Terms Agreement or (if the Offered
Securities are debt securities or Preferred Stock)
any Delayed Delivery Contract by the Company and the
consummation of the transactions contemplated
thereby; and
(xi) If the Offered Securities are Common
Stock or are convertible into Common Stock: there are
no contracts or agreements known to such counsel
between the Company and any other person granting to
such person the right to require the Company to file
a registration statement under the Act with respect
to any securities of the Company owned or to be owned
by such person or to require the Company to include
such securities in the securities registered pursuant
to the Registration Statement.
15
In rendering the foregoing opinions, such counsel may state
that such opinions are limited to matters governed by the
Federal laws of the United States of America and the laws of
the State of Florida. Such counsel shall also have furnished
to the Representatives a written statement, addressed to the
Underwriters and dated such Closing Date, to the effect that
in the course of the preparation of the Registration Statement
and the Prospectus he has considered the information set forth
therein in light of the matters required to be set forth
therein, and he has participated in conferences with officers
and representatives of the Company, including its counsel and
independent public accountants, and representatives of and
counsel for the Underwriters, during the course of which the
contents of the Registration Statement and the Prospectus and
related matters were discussed; he has not independently
checked the accuracy or completeness of, or otherwise
verified, and accordingly is not passing upon, and does not
assume responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Prospectus (except as contemplated in clauses
(ii), (vi) and (vii) above); and he has relied as to
materiality, to a large extent, upon the judgment of officers
and representatives of the Company; however, as a result of
such consideration and participation, nothing has come to his
attention which causes him to believe that the Registration
Statement (other than the financial statements, financial
data, statistical data and supporting schedules included
therein, as to which he need express no belief), at the time
it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that the Prospectus (other than the
financial statements, financial data, statistical data and
supporting schedules included therein, as to which he need
express no belief), as of the Closing Date, included any
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(e) With respect to the letter of
PricewaterhouseCoopers LLP delivered to the Representatives
concurrently with the execution of the Terms Agreement (the
"initial letter"), the Company shall have furnished to the
Representatives a letter (the "bring-down letter") of such
accountants, addressed to the Representatives and dated such
Closing Date (i) confirming that they are independent public
accountants within the meaning of the Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2- 01 of Regulation
S-X of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as
of a date not more than three days prior to the date of the
bring-down letter), the conclusions and findings of such firm
with respect to the financial information and other matters
covered by the initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in
the initial letter.
(f) The Company shall have furnished to the
Representatives a certificate, dated such Closing Date, of its
Chairman of the Board, its President, a Managing
16
Director or a Vice President and its chief financial officer
stating that, to his or her knowledge, the representations,
warranties and agreements of the Company in Section 1 are true
and correct as of such Closing Date; the Company has complied
in all material respects with all its agreements contained
herein; and the conditions set forth in Section 4(a) have been
fulfilled.
(g) Subsequent to the execution and delivery of the
Terms Agreement, (i) neither the Company nor any of its
subsidiaries shall 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, otherwise than as set forth or contemplated in the
Prospectus or (ii) since such date there shall not have been
any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting
the consolidated financial position, stockholders' equity or
results of operations or business of the Company and its
subsidiaries, otherwise than as set forth or contemplated in
the Registration Statement, the effect of which, in any such
case described in clause (i) or (ii), is, in the judgment of
the Lead Underwriter, so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Offered Securities being
delivered on such Closing Date on the terms and in the manner
contemplated in the Prospectus.
(h) Subsequent to the execution and delivery of the
Terms Agreement (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule
436(g)(2) of the Rules and Regulations and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities.
(i) Subsequent to the execution and delivery of the
Terms Agreement, there shall not have occurred any of the
following: (i) trading in securities generally on the Stock
Exchange or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market,
shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged
in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the
United States or (iv) there shall have occurred such a
material adverse change in general economic,
17
political or financial conditions (or the effect of
international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of
the Lead Underwriters, impracticable or inadvisable to proceed
with the public offering or delivery of the Offered Securities
being delivered on such Closing Date on the terms and in the
manner contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in form and
substance satisfactory to counsel for the Underwriters.
5. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless
each Underwriter, its officers and employees and each person,
if any, who controls any Underwriter within the meaning of the
Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including,
but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Offered Securities),
to which that Underwriter, officer, employee or controlling
person may become subject, under the Act or otherwise, insofar
as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any
preliminary prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or (B)
in any blue sky application or other document prepared or
executed by the Company (or based upon any written information
furnished by the Company) specifically for the purpose of
qualifying any or all of the Offered Securities under the
securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called
a "Blue Sky Application"), or (ii) the omission or alleged
omission to state in any preliminary prospectus, the
Registration Statement or the Prospectus, or in any amendment
or supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall
reimburse each Underwriter and each such officer, employee and
controlling person promptly upon demand for any legal or other
expenses
18
reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus, the
Registration Statement or the Prospectus, or in any amendment
or supplement thereto, or in any Blue Sky Application in
reliance upon and in conformity with the written information
furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein;
and provided, further, that as to any preliminary prospectus
this indemnity agreement shall not inure to the benefit of any
Underwriter, its officers or employees or any person
controlling that Underwriter on account of any loss, claim,
damage, liability or action arising from the sale of Offered
Securities to any person by that Underwriter if that
Underwriter failed to send or give a copy of the Prospectus,
as the same may be amended or supplemented, to that person
within the time required by the Act, and the untrue statement
or alleged untrue statement of any material fact or omission
or alleged omission to state a material fact in such
preliminary prospectus was corrected in the Prospectus, unless
such failure resulted from non-compliance by the Company with
Section 3(c). The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have to any
Underwriter or to any officer, employee or controlling person
of that Underwriter.
(b) Each Underwriter, severally and not jointly,
shall indemnify and hold harmless the Company, its officers
and employees, each of its directors and each person, if any,
who controls the Company within the meaning of the Act, from
and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person
may become subject, under the Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of,
or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any preliminary
prospectus, the Registration Statement or the Prospectus, or
in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state
in any preliminary prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or
in any Blue Sky Application any material fact required to be
stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity
with the written information furnished to the Company through
the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the
Company and any such director, officer or controlling person
for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or
action as such expenses are
19
incurred. The foregoing indemnity agreement is in addition to
any liability which any Underwriter may otherwise have to the
Company or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party
under this Section 5 of notice of any claim or the
commencement of any action, the indemnified party shall, if a
claim in respect thereof is to be made against the
indemnifying party under this Section 5, notify the
indemnifying party in writing of the claim or the commencement
of that action; provided, however, that the failure to notify
the indemnifying party shall not relieve it from any liability
which it may have under this Section 5 except to the extent it
has been materially prejudiced by such failure and, provided
further, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 5
(except to the extent so provided in any such other
obligation). If any such claim or action shall be brought
against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory
to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall
not be liable to the indemnified party under this Section 5
for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other
than reasonable costs of investigation; provided, however,
that any indemnified party 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 unless (i)
the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party
shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different
from or additional to those available to the indemnifying
party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate
counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such
indemnified party 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, 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 at any time for all such indemnified parties, which
firm shall be designated in writing by the Representatives, if
the indemnified parties under this Section 5 consist of any
Underwriter or any of their respective officers, employees or
controlling persons, or by the Company, if the indemnified
parties under this Section 5 consist of the Company or any of
the Company's directors,
20
officers, employees or controlling persons. No indemnifying
party shall (i) 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, or (ii) be
liable for any settlement of any action, compromise of any
action or any judgment with respect to any action the entry of
which was consented to, or effectuated without its written
consent, but if settled with its written consent or if there
be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any
indemnified party, to the extent set forth herein, from and
against any loss of liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this
Section 5 shall for any reason be unavailable to or
insufficient to hold harmless an indemnified party under
Section 5(a) or 5(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering
of the Offered Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters
on the other with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the
offering of the Offered Securities purchased under the Terms
Agreement (before deducting expenses) received by the Company,
on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the
Offered Securities purchased under the Terms Agreement, on the
other hand, bear to the total gross proceeds from the offering
of the Offered Securities under the Terms Agreement, in each
case as set forth in the table on the cover page of the
applicable prospectus supplement. The relative fault shall be
determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or
omission. The Company and Underwriters
21
agree that it would not be just and equitable if contributions
pursuant to this Section 5(d) were to be determined by pro
rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which 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 loss, claim, damage or
liability, or action in respect thereof, referred to above in
this Section 5(d) shall be deemed to include, for purposes of
this Section 5(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5(d), no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute
as provided in this Section 5(d) are several in proportion to
their respective underwriting obligations and not joint.
6. Defaulting Underwriters.
If any Underwriter or Underwriters default in their
obligations to purchase Offered Securities under the Terms Agreement and the
aggregate principal amount (if debt securities) or number of shares (if
Preferred Stock or Common Stock) of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount (if debt securities) or number of shares (if
Preferred Stock or Common Stock) of Offered Securities, the Lead Underwriter may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under the
Terms Agreement, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount (if debt securities) or number of
shares (if Preferred Stock or Common Stock) of Offered Securities with respect
to which such default or defaults occur exceeds 10% of the total principal
amount (if debt securities) or number of shares (if Preferred Stock or Common
Stock) of Offered Securities and arrangements satisfactory to the Lead
Underwriter and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, the Terms Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 5. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default. If the Offered Securities are debt securities or Preferred Stock,
the respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts (if debt securities)
or numbers of shares (if Preferred Stock) of the Offered Securities set forth
opposite their names in the Terms Agreement
22
as a result of Delayed Delivery Contracts entered into by the Company.
7. Termination. The obligations of the Underwriters under the
Terms Agreement may be terminated by the Representatives by notice given to and
received by the Company prior to delivery of and payment for the Offered
Securities if, prior to that time, any of the events described in Sections 4(g),
4(h) or 4(i) shall have occurred or if the Underwriters shall decline to
purchase the Offered Securities for any reason permitted under this Agreement.
8. Reimbursement of Underwriters' Expenses. If (a) the Company
shall fail to tender the Offered Securities for delivery to the Underwriters for
any reason permitted under the Terms Agreement, or (b) the Underwriters shall
decline to purchase the Offered Securities for any reason permitted under the
Terms Agreement, the Company shall reimburse the Underwriters for the reasonable
fees and expenses of their counsel and for such other out-of-pocket expenses as
shall have been incurred by them in connection with the Terms Agreement and the
proposed purchase of the Offered Securities, and upon demand the Company shall
pay the full amount thereof to the Representatives. If the Terms Agreement is
terminated pursuant to Section 6 hereof by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
9. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and shall be delivered or sent by
mail, telex or facsimile transmission:
(a) if to the Underwriters, to their address
furnished to the Company in writing; or
(b) if to the Company, to the address of the Company
set forth in the Registration Statement, Attention: Secretary
(Fax: 000-000-0000);
provided, however, that any notice to an Underwriter pursuant to Section 5(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by the Lead Underwriter on behalf of the
Representatives.
10. Persons Entitled to Benefit of Agreement. This Agreement
and the Terms Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Company and their respective successors. This Agreement and
the Terms Agreement are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
officers and employees of each Underwriter and the person or persons, if any,
who control each Underwriter within the meaning of Section 15 of the Act and (B)
the indemnity agreement of the Underwriters contained in Section 5(b) of this
Agreement shall be deemed to be for the benefit of directors, officers and
employees of the Company and any person controlling the Company within the
meaning of Section 15 of the Act. Nothing in this Agreement is intended or shall
be construed
23
to give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
11. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Offered Securities
and shall remain in full force and effect, regardless of any investigation made
by or on behalf of any of them or any person controlling any of them.
12. Definition of the Terms "Business Day" and "Subsidiary".
For purposes of this Agreement, (a) "business day" means any day on which the
Stock Exchange is open for trading and (b) "subsidiary" has the meaning set
forth in Rule 405 of the Rules and Regulations and shall be deemed to include
BCBF.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK.
14. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
24
ANNEX I
Three copies of this Delayed Delivery Contract should be
signed and returned to the address shown below so as to
arrive not later than 9:00 A.M.,
New York time, on ______________, 199__
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
[OCWEN FINANCIAL CORPORATION]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Attention:
Ladies and gentlemen:
The undersigned hereby agrees to purchase from Ocwen Financial
Corporation, a Florida corporation ("Company"), and the Company
agrees to sell to the undersigned, [If one delayed
closing, insert--as of the date hereof, for delivery on , 19
("Delivery Date"),]
[$]___________[shares]
--principal amount--of the Company's [Insert title of securities]
("Securities"), Offered by the Company's Prospectus dated , 1998 and a
Prospectus Supplement dated , 19 relating thereto, receipt of copies of which is
hereby acknowledged, at-- % of the principal amount thereof plus accrued
interest, if any,--$ per share plus accrued dividends, if any,--and on the
further terms and conditions set forth in this Delayed Delivery Contract
("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the--principal--amounts
set forth below:
NUMBER OF SHARES/
DELIVERY DATE PRINCIPAL AMOUNT
------------- -----------------
----------------- -----------------
----------------- -----------------
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on--the--each--Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House (next day)
funds at the office of at .M. on--the--such--Delivery Date upon delivery to the
undersigned of the Securities to be purchased by the undersigned--for delivery
on such Delivery Date--in definitive form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total--principal
amount--number of shares--of the Securities less the--principal amount---number
of shares--thereof covered by this and other similar Contracts. The undersigned
represents that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which governs such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by--a copy--copies--of the opinion[s] of counsel for
the Company delivered to the Underwriters in connection therewith.
A-2
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
A-3
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
-----------------------------
(Name of Purchaser)
By
-------------------------------
Name:
Title:
-----------------------------------
------------------------------------
(Address of Purchaser)
Accepted, as of the above date.
OCWEN FINANCIAL CORPORATION
By
----------------------
Name:
Title:
A-4
