EXHIBIT 1
3,200,000 CAPITAL SECURITIES
BAY VIEW CAPITAL I
9.76% CUMULATIVE CAPITAL SECURITIES
(LIQUIDATION PREFERENCE OF $25 PER CAPITAL SECURITY)
UNDERWRITING AGREEMENT
----------------------
December 15, 1998
Xxxx Xxxxxxxx Xxxxxxx, a division of
Xxxx Xxxxxxxx Incorporated
EVEREN Securities, Inc.
Xxxxx Xxxxxxx Inc.
Sutro & Co. Incorporated
x/x Xxxx Xxxxxxxx Xxxxxxxxxxxx
Xxxx Xxxxxxxx Xxxxx
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Bay View Capital Corporation, a Delaware corporation (the "Company"), and
its subsidiary, Bay View Capital I, a statutory business trust organized under
the Delaware Business Trust Act (the "Delaware Act") (the "Trust" and, together
with the Company, the "Offerors"), propose, subject to the terms and conditions
stated herein, to issue and sell to you (the "Underwriters"), an aggregate of
3,200,000 of the Trust's 9.76% Cumulative Capital Securities, with a liquidation
preference of $25.00 per capital security (the "Firm Securities"). In addition,
solely for the purpose of covering overallotments, the Trust proposes to issue
and sell, at the Underwriters' option, up to an additional 480,000 of the
Trust's 9.76% Cumulative Capital Securities, with a liquidation preference of
$25.00 per capital security (the "Additional Securities" and, together with the
Firm Securities, the "Capital Securities"). The Offerors propose that the
Trust issue the Capital Securities pursuant to an amended and restated
declaration of trust, by Wilmington Trust Company, as Property Trustee and
Delaware Trustee, the regular trustees named therein (the "Regular Trustees")
and the Company and by the holders from time to time of undivided beneficial
interests in the Trust (the "Declaration"). The Capital Securities will be
guaranteed by the Company (the "Guarantee") as set forth in a Guarantee
Agreement (the "Guarantee Agreement"), to be dated December 21, 1998, between
the Company and Wilmington Trust Company, as trustee (the "Guarantee Trustee").
The proceeds of the sale of the Capital Securities will be used to purchase
junior subordinated deferrable interest debentures (the "Junior Subordinated
Debentures") issued by the Company pursuant to that certain Indenture, to be
dated December 21, 1998, between the
Company and Wilmington Trust Company, as trustee, as amended by the First
Supplemental Indenture thereto (collectively, the "Indenture").
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-64877) for the
registration of the Capital Securities, the Guarantee and the Junior
Subordinated Debentures under the Securities Act of 1933, as amended (the "Act")
and the rules and regulations thereunder and the qualification of the Indenture,
the Declaration and the Guarantee under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the rules and regulations thereunder.
The registration statement, as amended, at the time it was declared effective,
is herein referred to as the "Registration Statement." The term "Base
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Base Prospectus together with the prospectus
supplement (other than a preliminary prospectus supplement) relating to the
Capital Securities in the form filed by the Offerors with the Commission
pursuant to Rule 424 under the Act. The term "preliminary prospectus" means a
preliminary prospectus supplement relating to the Capital Securities together
with the Base Prospectus. References to the Registration Statement, the Base
Prospectus, the Prospectus and the Preliminary Prospectus include all
information incorporated therein by reference. Copies of the Registration
Statement, including all exhibits and schedules thereto, any amendments thereto
and all Preliminary Prospectuses have been delivered to the Underwriters.
The Offerors hereby confirm their agreement with respect to the purchase of
the Capital Securities by the Underwriters as follows:
1. Representations and Warranties of the Offerors.
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(a) The Offerors jointly and severally represent and warrant to, and
agree with, each of the Underwriters that:
(i) The Registration Statement has been declared effective under the
Act, and no post-effective amendment to the Registration Statement has been
filed with the Commission as of the date of this Agreement. No stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been instituted or, to the Company's
knowledge, threatened by the Commission.
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
promulgated thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Offerors make no
representation or warranty as to information contained in or omitted in reliance
upon, and in conformity with, written information furnished to the Offerors by
or on behalf of any Underwriter, expressly for use in the preparation thereof.
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(iii) The Registration Statement and the Prospectus conform in all
material respects to the requirements of the Act and the rules and regulations
thereunder. Neither the Registration Statement, as of its effective date and
the date of any amendment thereto, nor the Prospectus contains any untrue
statement of a material fact or omits or will omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
however, that the Offerors make no representation or warranty as to (i)
information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Offerors by or on behalf
of any Underwriter, expressly for use in the preparation thereof or (ii)
information in those parts of the Registration Statement which constitute
Statements of Eligibility and Qualification ("Form T-1") under the Trust
Indenture Act. Each Preliminary Prospectus and the Prospectus will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to its Electronic Date Gathering, Analysis and Retrieval system
("XXXXX"), except to the extent permitted by Regulation S-T.
(iv) The documents of the Company incorporated by reference in the
Registration Statement and the Prospectus, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules
and regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and any further documents so filed and incorporated by reference
in the Registration Statement and the Prospectus or any further amendment or
supplement thereto, 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, and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
(v) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with full trust power and
authority to own property and to conduct its business as described in the
Registration Statement and Prospectus and is authorized to do business in each
jurisdiction in which such qualification is required, except where the failure
to so qualify would not have a material adverse effect on the Trust's condition
(financial or otherwise), earnings, business, prospects, assets, results of
operations or properties taken as a whole; the Trust has conducted and will
conduct no business other than the transactions contemplated by the Declaration
and described in the Prospectus; the Trust is not a party to or otherwise bound
by any agreement other than this Agreement and those described in the
Prospectus; the Trust is and will be classified for United States federal income
tax purposes as a grantor trust and not as an association taxable as a
corporation; and the Trust is and will be treated as a consolidated subsidiary
of the Company pursuant to generally accepted accounting principles.
(vi) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and is duly
registered as a
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savings and loan holding company under the Home Owners' Loan Act (the "HOL Act")
supervised by the Office of Thrift Supervision (the "OTS"). The significant
subsidiaries of the Company are Bay View Bank (the "Bank"), Bay View Acceptance
Corporation ("BVAC"), Bay View Commercial Finance Group ("BVCF"), Bay View
Credit ("BVC"), Ultra Funding, Inc. (Ultra") and LFS-BV, Inc. ("LFS," and,
together with the Bank, BVAC and BVCF, BVC, Ultra and LFS, the "Subsidiaries").
The Bank is a capital stock savings bank having a valid charter from the federal
government of the United States. The Bank is a member in good standing of the
Federal Home Loan Bank of San Francisco. Each Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own or lease its properties and conduct its business as described
in the Prospectus; is, to the Company's knowledge, in compliance with all
federal and state regulatory rules and guidelines; and is duly qualified to
transact business in all jurisdictions in which the conduct of its business or
its ownership or leasing of property requires such qualification and the failure
so to qualify would have a material adverse effect on the business or condition,
financial or otherwise, of the Company and the Subsidiaries, taken as a whole.
All outstanding shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and non-assessable, and are
owned, directly or indirectly, by the Company free and clear of all liens,
encumbrances and security interests, except as disclosed in the Registration
Statement and Prospectus. No options, warrants or other rights to purchase,
agreements or other obligations to issue, or other rights to convert any
obligations into, shares of capital stock or ownership interests in any of the
Subsidiaries are outstanding.
(vii) All of the issued and outstanding shares of capital stock of
the Company are duly authorized, validly issued, fully paid and nonassessable,
were offered and sold in compliance with all federal and state securities laws,
and were not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities. Except as otherwise stated in
the Registration Statement and Prospectus, there are no preemptive rights or
other rights to subscribe for or to purchase, or any restriction upon the voting
or transfer of, the Junior Subordinated Debentures, the common securities of the
Trust held by the Company (the "Common Securities") or the Capital Securities.
Neither the filing of the Registration Statement nor the registration of the
Capital Securities, the Guarantee or the Junior Subordinated Debentures gives
rise to any rights for or relating to the registration of any capital stock or
other securities of the Company or the Trust. The Company has an authorized and
outstanding capitalization as set forth in the Registration Statement and the
Prospectus.
(viii) Each of this Agreement, the Indenture, the Declaration and
the Guarantee Agreement has been duly authorized, executed and delivered by the
Company and/or the Trust, as the case may be, and constitutes a valid, legal and
binding obligation of the Company and/or the Trust, as the case may be,
enforceable in accordance with its terms, except as rights to indemnity
hereunder may be limited by federal or state securities laws and except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and subject to general
principles of equity and, with respect to Section 7 hereof, by the public policy
underlying the federal or state securities laws. The execution, delivery and
performance of this Agreement, the Indenture, the Declaration and
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the Guarantee Agreement and the consummation of the transactions herein or
therein contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (x) any statute, any
indenture, mortgage, deed of trust, loan agreement, lease, franchise, license or
other agreement or instrument to which the Trust, the Company or any of the
Subsidiaries is a party or by which the Trust, the Company or any of the
Subsidiaries is bound or to which any property or assets of the Trust, the
Company or any of the Subsidiaries is subject or any order, rule, regulation,
order, agreement or decree of any court or governmental agency or body having
jurisdiction over the Company, any Subsidiary or the Trust or any of the
properties of the Company, any Subsidiary or the Trust, except for such
breaches, violations or defaults as would not have a material adverse effect on
(a) the business or condition (financial or otherwise) of the Company, the Trust
or any Subsidiary taken as a whole, (b) the issuance of the Capital Securities
and the Junior Subordinated Debentures or (c) the performance of the Company's
or the Trust's obligations under the Indenture, the Declaration and the
Guarantee or (y) the Company's or any Subsidiary's charter or bylaws or the
Declaration or the Trust's certificate of trust filed with the State of Delaware
on September 16, 1998 (the "Certificate of Trust") . No consent, approval,
authorization or order of, or filing with, any court or governmental agency or
body is required for the execution, delivery and performance of this Agreement,
the Indenture, the Declaration and the Guarantee Agreement or for the
consummation of the transactions contemplated hereby or thereby, including the
issuance or sale of the Junior Subordinated Debentures by the Company and the
Common Securities and the Capital Securities by the Trust, except such as may be
required under the Act, all of which have been obtained or made, and under state
securities or blue sky laws. Each of the Company and the Trust has full power
and authority to enter into this Agreement, the Indenture, the Declaration and
the Guarantee Agreement, as the case may be, and to authorize, issue and sell
the Junior Subordinated Debentures or the Common Securities and the Capital
Securities, as the case may be, as contemplated by this Agreement; and each of
the Indenture, the Declaration and the Guarantee Agreement has been duly
qualified under the Trust Indenture Act and will conform in all material
respects to the statements relating thereto in the Registration Statement and
the Prospectus.
(ix) The Junior Subordinated Debentures have been duly authorized by
the Company and at the Closing Date will have been duly executed by the Company
and, when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general principles of
equity, will be in the form contemplated by, and entitled to the benefits of,
the Indenture, will conform in all material respects to the statements relating
thereto in the Prospectus, and will be owned by the Trust free and clear of any
security interest, pledge, lien, encumbrance, claim or equity.
(x) The Common Securities have been duly authorized by the Declaration
and, when issued and delivered by the Trust to the Company against payment
therefor as described in the Prospectus, will be validly issued and (subject to
the terms of the Declaration) fully paid and nonassessable undivided beneficial
interests in the assets of the Trust
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and will conform in all material respects to all statements relating thereto
contained in the Prospectus; and at 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 security interest, pledge, lien, encumbrance, claim or
equity.
(xi) The Capital Securities have been duly authorized by the
Declaration and, when issued and delivered pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and fully
paid and non-assessable undivided beneficial interests in the Trust, will be
entitled to the benefits of the Declaration and will conform in all material
respects to the statements relating thereto contained in the Prospectus; and
holders of Capital Securities will be entitled to the same limitation of
personal liability under Delaware law as extended to stockholders of private
corporations for profit.
(xii) The Indenture, the Declaration and the Guarantee Agreement are
in substantially the respective forms filed as exhibits to the Registration
Statement.
(xiii) The Company's obligations under the Guarantee are subordinated
and junior in right of payment to all Senior and Subordinated Debt (as defined
in the Indenture) of the Company.
(xiv) The Junior Subordinated Debentures are subordinate and junior in
right of payment to all Senior and Subordinated Debt of the Company.
(xv) Each of the Regular Trustees of the Trust is an officer of the
Company and has been duly authorized by the Company to execute and deliver the
Declaration.
(xvi) The financial statements, together with the related notes and
schedules, contained or incorporated by reference in the Registration Statement
and Prospectus present fairly the consolidated financial position, results of
operations, shareholders' equity and cash flows of the Company and its
consolidated Subsidiaries on the basis stated therein at the indicated dates and
for the indicated periods. Such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as expressly stated therein, and all
adjustments necessary for a fair presentation of results for such periods have
been made, except as otherwise stated therein. The selected financial and
statistical data included in the Registration Statement present fairly the
information shown therein on the basis stated in the Registration Statement and
have been compiled on a basis consistent with the financial statements presented
therein.
(xvii) There is no action or proceeding pending or, to the knowledge
of the Trust or the Company, threatened or contemplated against any of the
Trust, the Company or any Subsidiary before any court or administrative or
regulatory agency which, if determined adversely to the Trust, the Company or
such Subsidiary would, individually or in the aggregate, result in a material
adverse change in the business or condition (financial or otherwise), results of
operations, shareholders' equity or prospects of the Trust, or of the Company
and it Subsidiaries taken as a whole, except as set forth in the Registration
Statement or the Prospectus.
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(xviii) There are no contracts or documents of the Trust or the
Company or any Subsidiary that are required by the Act or by the rules and
regulations thereunder to be filed as exhibits to the Registration Statement or
any document incorporated by reference therein which contracts or documents have
not been so filed.
(xix) The Company and the Subsidiaries have good and marketable title
to all properties and assets reflected as owned in the financial statements
hereinabove described (or as described as owned in the Prospectus), in each case
free and clear of all liens, encumbrances and defects, except such as are
described in the Prospectus or do not substantially affect the value of such
properties and assets and do not materially interfere with the use made and
proposed to be made of such properties and assets by the Company and the
Subsidiaries; and any real property and buildings held under lease by the
Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and the Subsidiaries.
(xx) Since the respective dates as of which information is given in
the Registration Statement, as it may be amended or supplemented, (A) there has
not been any material adverse change, or any development involving a prospective
material adverse change, in or affecting the condition, financial or otherwise,
of the Trust, or of the Company and the Subsidiaries taken as a whole, or the
business affairs, management, financial position, shareholders' equity or
results of operations of the Trust, or of the Company and the Subsidiaries taken
as a whole, whether or not occurring in the ordinary course of business,
including, without limitation, any material increase in delinquencies or the
amount or number of classified assets of the Bank, any decrease in net interest
margin (including automobile leases) for any month to a level below 3.10%, or
any material decrease in the volume of loan originations, after taking into
account normal seasonality, the amount of deposits or the amount of loans, (B)
there has not been any transaction not in the ordinary course of business
entered into by the Trust, the Company or any of the Subsidiaries which is
material to the Trust, or the Company and the Subsidiaries taken as a whole,
other than transactions described or contemplated in the Registration Statement,
(C) the Trust, the Company and the Subsidiaries have not incurred any material
liabilities or obligations, which are not in the ordinary course of business or
which could result in a material reduction in the future earnings of the Trust,
or the Company and the Subsidiaries taken as a whole, (D) the Trust, the Company
and the Subsidiaries have not sustained any material loss or interference with
their respective businesses or properties from fire, flood, windstorm, accident
or other calamity, whether or not covered by insurance, (E) there has not been
any change in the capital stock of the Company or the Subsidiaries (other than
upon the exercise of options and warrants described in the Registration
Statement), or any material increase in the short-term or long-term debt (other
than the Junior Subordinated Debentures) (including capitalized lease
obligations) of the Company and the Subsidiaries taken as a whole, and (F) there
has not been any declaration or payment of any dividends or any distributions of
any kind with respect to the capital stock of the Company or the Subsidiaries
other than any dividends or distributions described or contemplated in the
Registration Statement and the Company's regular quarterly common stock
dividend.
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(xxi) Neither the Company nor any of the Subsidiaries is in
violation of its respective charter or bylaws; the Trust is not in violation of
the Declaration or its Certificate of Trust; and none of the Trust, the Company,
or the Subsidiaries is in violation of or otherwise in default under any
statute, or any rule, regulation, order, supervisory agreement, judgment, decree
or authorization of any court or governmental or administrative agency or body
having jurisdiction over the Trust, the Company or any of the Subsidiaries or
any of their properties, or any indenture, mortgage, deed of trust, loan
agreement, lease, franchise, license or other agreement or instrument to which
the Trust, the Company or any of the Subsidiaries is a party or by which any of
them are bound or to which any property or assets of the Trust, the Company or
any of the Subsidiaries is subject, which violation or default would have a
material adverse effect on the business, condition (financial or otherwise),
results of operations, shareholders' equity or prospects of the Trust, or of the
Company and the Subsidiaries taken as a whole.
(xxii) The Trust, the Company and each of the Subsidiaries holds
and is operating in compliance in all material respects with all licenses,
approvals, certificates and permits from governmental and regulatory authorities
which are necessary to the conduct of its business as described in the
Prospectus. Without limiting the generality of the foregoing, the Company has
all necessary federal or state approvals to own the stock of the Subsidiaries.
None of the Trust, the Company or any Subsidiary has received notice of or has
knowledge of any basis for any proceeding or action relating specifically to the
Trust, the Company or the Subsidiaries for the revocation or suspension of any
such consent, authorization, approval, order, license, certificate or permit or
any other action or proposed action by any regulatory authority having
jurisdiction over the Trust, the Company or the Subsidiaries that would have a
material adverse effect on the Trust, the Company or any Subsidiary.
(xxiii) Deloitte & Touche LLP, which have certified certain of the
financial statements filed with the Commission as part of the Registration
Statement, and KPMG Peat Marwick, LLP are each independent public accountants
with respect to the Company as required by the Act and the rules and regulations
thereunder.
(xxiv) The Offerors have not taken and will not take, directly or
indirectly, any action designed to, or which has constituted, or which might
reasonably be expected to cause or result in, stabilization or manipulation of
the price of the Capital Securities.
(xxv) The Offerors' registration statement pursuant to Section
12(g) of the Exchange Act with respect to the Capital Securities, has been
declared effective by the Commission; and the Capital Securities have been
approved for designation upon notice of issuance on the Nasdaq National Market
under the symbol "BVCCP."
(xxvi) The Offerors have not distributed and will not distribute
any prospectus or other offering material in connection with the offering and
sale of the Capital Securities other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by the
Company.
(xxvii) The deposit accounts of the Bank are insured by the Federal
Deposit Insurance Corporation (the "FDIC") to the fullest extent provided by
law. No
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proceeding for the termination of such insurance is pending or , to the
knowledge of the Company, is threatened. Neither the Company nor any Subsidiary
has received or is subject to any directive, order or supervisory agreement or
arrangement from the OTS, the FDIC, or any other regulatory authority to make
any material change in the method of conducting their respective businesses that
has not been complied with in all material respects.
(xxviii) The Offerors are in material compliance with all provisions
of Florida Statutes Section 517.075 (Chapter 92-198, laws of Florida). Neither
of the Offerors nor any of their affiliates does any business, directly or
indirectly, with the government of Cuba or with any person or entity located in
Cuba.
(xxix) The Trust, the Company and the Subsidiaries have filed all
federal, state, local and foreign tax returns or reports required to be filed
(including extensions), and have paid in full all taxes indicated by said
returns or reports and all assessments received by it or any of them to the
extent that such taxes have become due and payable (including extensions),
except where the Trust, the Company and the Subsidiaries are contesting in good
faith such taxes and assessments. The Company and the Subsidiaries have also
filed all required applications, reports, returns and other documents and
information with all state and federal savings bank authorities and agencies.
(xxx) The Trust, the Company and each of the Subsidiaries owns or
licenses all patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service xxxx registrations, copyrights,
licenses, inventions, trade secrets and other similar rights necessary for the
conduct of their businesses as described in the Prospectus, except where the
failure to so own would not have a material adverse effect on the Trust, the
Company or any Subsidiary, taken as a whole. Neither the Trust nor the Company
has any knowledge of any infringement by them or the Subsidiaries of any
patents, patent applications, trademarks, service marks, tradenames, trademark
registrations, service xxxx registrations, copyrights, licenses, inventions,
trade secrets or other similar rights of others, and none of the Trust, the
Company or any of the Subsidiaries has received any notice or claim of conflict
with the asserted rights of others with respect to any of the foregoing.
(xxxi) None of the Trust, the Company or any of the Subsidiaries is
an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or an
"investment adviser" within the meaning of the Investment Advisers Act of 1940,
as amended.
(xxxii) The Company and its Subsidiaries maintain, and the Trust
will maintain, a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with
management's general or specific authorization; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (C) access to records is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability for
assets is
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compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxxiii) Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred any
liability for any finder's or broker's fee or agent's commission in connection
with the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(xxxiv) No report or application filed by the Company or any of its
Subsidiaries with the OTS, the FDIC, the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board"), the Office of the Comptroller of
the Currency (the "OCC") or any other regulatory authority, as of the date it
was filed or amended, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading when made or failed to comply in all
material respects with the applicable requirements of the OTS, the FDIC, the
Federal Reserve Board, the OCC or any other regulatory authority, as the case
may be.
(xxxv) Based upon current guidelines of the Federal Reserve Board,
the Junior Subordinated Debentures will constitute "tier 1" capital (as defined
in 12 C.F.R. Part 225), subject to applicable regulatory restrictions on the
amount thereof that can be included in tier 1 capital.
(xxxvi) The Offerors meet all of the requirements for the use of Form
S-3 to register the Capital Securities, the Guarantee and the Junior
Subordinated Debentures under the Act.
(b) Any certificate signed by or on behalf of the Trust or the Company
and delivered to the Underwriters or counsel to the Underwriters shall be deemed
to be a representation and warranty of the Trust or the Company to each
Underwriter as to the matters covered thereby.
2. Purchase, Sale and Delivery of Capital Securities. On the basis of
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the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Trust agrees to issue and sell to
each Underwriter, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Trust, at a purchase price per Capital Security of
$25.00, the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule A hereto.
In addition, on the basis of the representations and warranties and the
other terms and conditions herein set forth, the Trust hereby grants to the
several Underwriters an option to purchase, and the Underwriters shall have the
right to purchase, severally and not jointly, from the Trust all or a portion of
the Additional Securities as may be necessary to cover over allotments made in
connection with the offering of the Firm Securities, at the same purchase price
per security to be paid by the several Underwriters to the Trust for the Firm
Securities. This option may be exercised in whole or in part one time on or
before the thirtieth day following the date hereof, by written notice to the
Trust. Any such notice shall set forth the aggregate
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number of Additional Securities as to which the option is being exercised, and
the date and time when the Additional Securities are to be delivered (any such
date and time being herein referred to as the "Additional Closing Date");
provided, however, that no Additional Closing shall occur earlier than the
Closing Date (as defined below) nor earlier than the second nor later than the
eighth business day after any date on which the option is exercised. The number
of Additional Securities to be sold to each Underwriter at the Additional
Closing shall be the number which bears the same proportion to the aggregate
number of Additional Securities being purchased at such Additional Closing as
the number of Firm Securities set forth opposite the name of such Underwriter on
Schedule A bears to the total number of Firm Securities (subject, in each case,
to adjustment as you may determine to eliminate fractional securities).
As compensation to the Underwriters for their commitments hereunder and in
view of the fact that the proceeds of the sale of the Capital Securities
(together with the entire proceeds from the sale by the Trust to the Company of
the Common Securities) will be used to purchase the Junior Subordinated
Debentures, the Company hereby agrees to pay at the Closing Date to the
Underwriters a commission of $1.00 per Capital Security sold by the Trust
hereunder.
The Firm Securities will be delivered by the Company to the Underwriters
against payment of the purchase price therefor at the offices of Xxxxxx, Xxxx &
Xxxxxxxx LLP, One Xxxxxxxxxx Street, Telesis Tower, 31st Floor, San Francisco,
California, or such other location as may be mutually acceptable, at 7:00 a.m.
Pacific time on December 21, 1998, or such other time and date as the
Underwriters and the Company may agree upon in writing, such time and date of
delivery being herein referred to as the "Closing Date." The purchase price
shall be payable by wire transfer of immediately available funds to an account
designated by the Trust at least two business days preceding the Closing Date.
The Underwriters' commission shall be payable by wire transfer of immediately
available funds to an account designated by the Underwriters at least two
business days preceding the Closing Date. Delivery of the Firm Securities may
be made by credit through full fast transfer to the accounts at The Depository
Trust Company ("DTC") designated by the Underwriters. Certificates representing
the Firm Securities, in definitive form and in such denominations and
registered in such names as the Underwriters may request upon at least two
business days' prior notice to the Company shall be prepared and will be made
available for checking and packaging, not later than 10:30 a.m., Central time,
on the business day next preceding the Closing Date at the offices of Xxxx
Xxxxxxxx Incorporated, Xxxx Xxxxxxxx Plaza, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx, or such other location as may be mutually acceptable.
The Additional Securities will be delivered by the Company to the
Underwriters against payment of the purchase price therefor at any Additional
Closing in the same manner as the payment for the Firm Securities. The
Underwriters' commission shall be payable in the same manner as the payment of
the Underwriters' Commission for the Firm Securities.
It is understood that any Underwriter may (but shall not be obligated to)
make payment to the Company on behalf of the other Underwriter for the
Securities to be purchased by such Underwriter. Any such payment shall not
relieve such other Underwriter of any of its obligations
11
hereunder. Nothing herein contained shall constitute the Underwriters as an
unincorporated association or partner with either or both Offerors.
3. Offering by Underwriters. It is understood that the several
------------------------
Underwriters propose to make a public offering of the Capital Securities as soon
as the Underwriters deem it advisable to do so. The Capital Securities are to
be initially offered to the public at the initial public offering price set
forth in the Prospectus. The Underwriters may from time to time thereafter
change the public offering price and other selling terms.
4. Covenants of the Offerors. The Offerors jointly and severally
-------------------------
covenant and agree with the several Underwriters that:
(a) The Offerors will not file any amendment to the Registration
Statement or supplement to the Prospectus of which the Underwriters shall not
previously have been advised and furnished with a copy and as to which the
Underwriters shall have reasonably objected in writing promptly after reasonable
notice thereof or which is not in compliance with the Act or the rules and
regulations thereunder.
(b) The Offerors will advise the Underwriters promptly of any request
of the Commission for amendment of the Registration Statement or for supplement
to the Prospectus or for any additional information, or of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the use of the Prospectus, of the suspension of the qualification
of the Capital Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for that purpose, and the Offerors
will use their best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus or suspending such
qualification and to obtain as soon as possible the lifting thereof, if issued.
(c) The Offerors will cooperate with the Underwriters and the
Underwriter's counsel in order to qualify the Capital Securities for sale under
the securities laws of such jurisdictions as the Underwriters may reasonably
have designated in writing and to continue such qualifications in effect for so
long as the Underwriters may reasonably request for distribution of the Capital
Securities (or obtain exemptions from the application of such laws), provided
that neither Offeror shall be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction where it is not
now so qualified or required to file such a consent. The Offerors will, from
time to time, prepare and file such statements, reports and other documents as
may be requested by the Underwriters for that purpose.
(d) The Offerors will furnish the Underwriters with as many copies of
any Preliminary Prospectus as the Underwriters may reasonably request and,
during the period when delivery of a prospectus is required under the Act, the
Offerors will furnish the Underwriters with as many copies of the Prospectus in
final form, or as thereafter amended or supplemented, as the Underwriters may,
from time to time, reasonably request. The Offerors will deliver to the
Underwriters, at or before the Closing Date, two conformed copies of the
Registration Statement and all amendments thereto including all exhibits filed
therewith, and will deliver to the
12
Underwriters such number of conformed copies of the Registration Statement,
without exhibits, and of all amendments thereto, as the Underwriters may
reasonably request.
(e) If, during the period in which a prospectus is required by law to
be delivered by an Underwriter or dealer, any event shall occur 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 in
order to make the statements therein, in light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, not misleading, or if for
any other reason it shall be necessary at any time to amend or supplement the
Prospectus to comply with any law, the Offerors promptly will prepare and file
with the Commission an appropriate amendment to the Registration Statement or
supplement to the Prospectus so that the Prospectus as so amended or
supplemented will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein in
light of the circumstances when it is so delivered, not misleading, or so that
the Prospectus will comply with law.
(f) The Offerors will make generally available to their security
holders, as soon as it is practicable to do so, but in any event not later than
18 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 thereunder and will advise the
Underwriters in writing when such statement has been so made available.
(g) The Company will, for five years from the Closing Date, deliver to
each Underwriter, as soon as they are available, copies of its annual report and
copies of all other documents, reports and information furnished by the Company
to its security holders or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant to the Act or the
Exchange Act. The Company will deliver to each Underwriter similar reports with
respect to significant subsidiaries, as that term is defined in the rules and
regulations under the Act, which are not consolidated in the Company's financial
statements.
(h) The Offerors will apply the net proceeds from the sale of the
Junior Subordinated Debentures and the Capital Securities substantially in
accordance with the purposes set forth under "Use of Proceeds" in the
Prospectus.
(i) The Offerors will use their best efforts to maintain the
designation of the Capital Securities on the Nasdaq National Market.
5. Costs and Expenses.
------------------
(a) The Offerors will pay (directly or by reimbursement) all costs,
expenses and fees incident to the performance of the obligations of the Offerors
under this Agreement, including, without limiting the generality of the
foregoing, the following: accounting fees of the Offerors; the fees and
disbursements of counsel for the Offerors; the cost of preparing, printing
13
and filing of the Registration Statement, the Base Prospectus, the Preliminary
Prospectus(es) and the Prospectus and any amendments and supplements thereto and
the printing, mailing and delivery to the Underwriters and dealers of copies
thereof and of this Agreement, any selected dealers agreement, any blue sky
memorandum and any supplements or amendments thereto (excluding, except as
provided below, fees and expenses of counsel to the Underwriters); the filing
fees of the Commission; the filing fees and expenses (including legal fees and
disbursements of counsel for the Underwriters) incident to securing any required
review by the NASD of the terms of the sale of the Capital Securities; the fees
and expenses of the Indenture Trustee, including the fees and disbursements of
counsel for the Indenture Trustee in connection with the Indenture and Junior
Subordinated Debentures; the fees and expenses of the Property Trustee and the
Delaware Trustee, including the fees and disbursements of counsel for the
Property Trustee and the Delaware Trustee in connection with the Declaration and
the Certificate of Trust; the fees and expenses of the Guarantee Trustee,
including the fees and disbursements of counsel for the Guarantee Trustee in
connection with the Guarantee and Guarantee Agreement; listing fees, if any,
transfer taxes and the expenses, including the fees and disbursements of counsel
for the Underwriters, incurred in connection with the qualification of the
Capital Securities under state securities or Blue Sky laws; the fees and
expenses incurred in connection with the designation of the Capital Securities
on the Nasdaq National Market; the costs of preparing certificates representing
Junior Subordinated Debentures or Capital Securities; the costs and fees of any
registrar or transfer agent and all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 5. Notwithstanding anything to the contrary in the
foregoing sentence, the Offerors shall not be required to pay more than an
aggregate of (i) $20,000 of fees and expenses (x) related to qualification of
the Capital Securities under state securities or Blue Sky laws or (y) incident
to securing any required review by the NASD of the terms of the sale of the
Capital Securities or (ii) $10,000 of fees and expenses of the Guarantee
Trustee, including the fees and disbursements of counsel for the Guarantee
Trustee in connection with the Guarantee and Guarantee Agreement. The Offerors
shall not be required to pay for any of the Underwriters' expenses (other than
those related to qualification of the Capital Securities under state securities
or Blue Sky laws and those incident to securing any required review by the NASD
of the terms of the sale of the Capital Securities which shall be paid by the
Offerors as provided above) except that, if this Agreement shall not be
consummated because the conditions in Section 6 hereof are not satisfied, or
because this Agreement is terminated by the Underwriters pursuant to Section
9(b) hereof, or by reason of any failure, refusal or inability on the part of
the Offerors to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on either of their parts to
be performed, unless such failure to satisfy said condition or to comply with
said terms shall be due to the default or omission of any Underwriter, then the
Offerors promptly upon request by the Underwriters shall reimburse the several
Underwriters for all actual, accountable out-of-pocket expenses, including fees
and disbursements of counsel reasonably incurred in connection with
investigating, marketing and proposing to market the Capital Securities or in
contemplation of performing their obligations hereunder; but the Offerors shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Capital
Securities.
14
(b) Upon successful completion of the offering contemplated by this
Agreement, the Offerors will pay all reasonable and customary costs, expenses
and fees incident to tombstone advertisements of the offering and incurred with
the approval of the Company.
6. Conditions of Obligations of the Underwriters.
---------------------------------------------
The several obligations of the Underwriters to purchase the Capital
Securities on the Closing Date are subject to the condition that all
representations and warranties of the Offerors contained herein are true and
correct, at and as of the Closing Date, and the condition that each Offeror
shall have performed all of its covenants and obligations hereunder and to the
following additional conditions:
(a) The Prospectus Supplement shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in accordance
with Section 4(a) hereof (or any required post-effective amendment to the
Registration Statement shall have been filed and declared effective in
accordance with the requirements of Rule 430A); no stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, or
any part thereof shall have been issued and no proceedings for that purpose
shall have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to the reasonable satisfaction of the Underwriters.
(b) The Underwriters shall have received on the Closing Date and any
Additional Closing Date the opinions of Silver, Xxxxxxxx & Xxxx, L.L.P., counsel
for the Offerors, dated the Closing Date or the Additional Closing Date, as the
case may be, addressed to the Underwriters, in the form attached hereto as
Exhibit 1.
---------
Such counsel shall also state that on the basis of such counsel's review
and participation in conferences in connection with the preparation of the
Registration Statement and the Prospectus, such counsel has no reason to believe
that, as of its effective date, the Registration Statement or any further
amendment thereto made by the Offerors prior to the Closing Date, including any
document incorporated by reference in the Registration Statement, as the case
may be (other than the financial statements, other financial and statistical
data and related schedules therein, as to which such counsel need express no
statement) contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the Prospectus or any
further amendment or supplement thereto made by the Offerors prior to the
Closing Date, including any document incorporated by reference in the Prospectus
(other than the financial statements, other financial and statistical data and
related schedules therein, as to which such counsel need express no statement)
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading or that, as of the Closing Date, either the
Registration Statement or the Prospectus or any further amendment or supplement
thereto made by the Offerors prior to the Closing Date (other than the financial
statements, other financial and statistical data and related schedules therein,
as to which such counsel need express no statement) contains an untrue statement
of a
15
material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
and they do not know of any amendment to the Registration Statement (or any
document incorporated therein by reference) required to be filed.
In rendering the above opinions, counsel may rely (i) as to matters of
law other than federal law, upon the opinion or opinions of local counsel
provided that the extent of such reliance is specified in such opinion and that
such counsel shall state that such opinion or opinions of local counsel are
satisfactory to them and they believe they and the Underwriters are justified in
relying thereon and (ii) as to matters of fact, upon the representations of the
Trust and the Company contained in this Agreement and upon certificates of
trustees or officers of the Trust, the Company and of public officials.
(c) The Underwriters and Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to the
Underwriters, shall have received on the Closing Date and any Additional Closing
Date a letter from Silver, Xxxxxxxx & Taff, L.L.P., stating that the
Underwriters and Xxxxxx, Xxxx & Xxxxxxxx LLP may rely upon the opinion of such
firm addressed to SunTrust Bank, Central Florida, National Association, dated
October 30, 1998, as if such opinion was addressed directly to the Underwriters
and Xxxxxx, Xxxx & Xxxxxxxx LLP.
(d) The Underwriters shall have received on the Closing Date and any
Additional Closing Date the opinion of Xxxxxxxx, Xxxxxx & Finger, counsel to
Wilmington Trust Company, as Property Trustee under the Declaration, Indenture
Trustee under the Indenture, and Guarantee Trustee under the Guarantee
Agreement, dated the Closing Date or the Additional Closing Date, as the case
may be, addressed to the Underwriters, to the effect that:
(i) Wilmington Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation under the laws of the State
of Delaware.
(ii) Wilmington Trust Company has the power and authority to execute,
deliver and perform its obligations under the Declaration, the Indenture and the
Guarantee Agreement.
(iii) Each of the Declaration, the Indenture and the Guarantee
Agreement has been duly authorized, executed and delivered by Wilmington Trust
Company and constitutes a legal, valid and binding obligation of Wilmington
Trust Company, enforceable against Wilmington Trust Company, in accordance with
its terms.
(iv) The execution, delivery and performance by Wilmington Trust
Company of the Declaration, the Indenture and the Guarantee Agreement do not
conflict with or constitute a breach of the charter or by-laws of Wilmington
Trust Company.
(v) No consent, approval or authorization of, or registration with or
notice to, any governmental authority or agency of the State of Delaware or the
United States of America governing the banking or trust powers of Wilmington
Trust Company is required for the
16
execution, delivery or performance by Wilmington Trust Company of the
Declaration, the Indenture and the Guarantee Agreement.
(e) The Underwriters shall have received on the Closing Date and any
Additional Closing Date the opinion of Xxxxxxxx, Xxxxxx & Finger, as special
Delaware counsel for the Offerors, dated the Closing Date or the Additional
Closing Date, as the case may be, addressed to the Underwriters, to the effect
that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act, and all filings required as
of the date hereof under the Delaware Act with respect to the creation and valid
existence of the Trust as a business trust have been made.
(ii) Under the Declaration and the Delaware Act, the Trust has the
trust power and authority to own property and to conduct its business, all as
described in the Prospectus.
(iii) The Declaration constitutes a valid and binding obligation of
the Company, the Property Trustee and each of the Regular Trustees, and is
enforceable against the Company, the Property Trustee and each of the Regular
Trustees in accordance with its terms.
(iv) Under the Declaration and the Delaware Act, the Trust has the
trust power and authority (i) to execute and deliver, and to perform its
obligations under, this Agreement, and (ii) to issue, and to perform its
obligations under, the Capital Securities and the Common Securities.
(v) Under the Declaration and the Delaware Act, the execution and
delivery by the Trust of this Agreement, and the performance by the Trust of its
obligations under this Agreement, have been duly authorized by all necessary
trust action on the part of the Trust.
(vi) Under the Delaware Act, the certificate attached to the
Declaration as Exhibit E is an appropriate form of certificate to evidence
ownership of the Capital Securities. The Capital Securities have been duly
authorized by the Declaration and are duly and validly issued and, subject to
the qualifications hereinafter expressed in this paragraph (vi), fully paid and
non-assessable undivided beneficial interests in the assets of the Trust and are
entitled to the benefits of the Declaration. The Common Securities have been
duly authorized by the Declaration and are duly and validly issued undivided
beneficial interests in the assets of the Trust and are entitled to the benefits
of the Declaration. The holders of the Capital Securities, as beneficial owners
of the Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. Such counsel may note that
the respective holders of the Capital Securities may be obligated, pursuant to
the Declaration, to make certain payments under the Declaration.
17
(vii) Under the Declaration and the Delaware Act, the issuance of
the Capital Securities and the Common Securities is not subject to preemptive or
similar rights.
(viii) The issuance and sale by the Trust of the Capital Securities
and the Common Securities, the purchase by the Trust of the Junior Subordinated
Debentures, the execution, delivery and performance by the Trust of this
Agreement and the Guarantee Agreement, the consummation by the Trust of the
transactions contemplated by this Agreement and compliance by the Trust with its
obligations under this Agreement do not violate (a) any of the provisions of the
Certificate of Trust or the Declaration, or (b) any applicable Delaware law or
Delaware administrative regulation.
(f) The Underwriters shall have received from Xxxxxx, Xxxx & Xxxxxxxx,
LLP, counsel for the Underwriters, an opinion dated the Closing Date or the
Additional Closing Date, as the case may be, with respect to the formation of
the Trust, the validity of the Capital Securities, the Indenture, the
Declaration, the Guarantee Agreement, this Agreement, the Registration
Statement, the Prospectus, and other related matters as the Underwriters may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters. In rendering the above opinions, counsel may rely (i) as to matters of
law other than federal law, upon the opinion or opinions of local counsel
provided that the extent of such reliance is specified in such opinion and (ii)
as to matters of fact, upon the representations of the Trust and the Company
contained in this Agreement and upon certificates of trustees or officers of the
Trust, the Company and of public officials.
(g) The Underwriters shall have received on each of the date hereof
and the Closing Date and any Additional Closing Date signed letters, dated as of
the date hereof and the Closing Date or the Additional Closing Date, as the case
may be, in form and substance reasonably satisfactory to the Underwriters, from
each of Deloitte & Touche LLP and KPMG Peat Marwick LLP, to the effect that they
are independent public accountants with respect to the Trust, the Company and
the Subsidiaries within the meaning of the Act and the related rules and
regulations and containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(h) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date or the Additional Closing Date, as the case may be,
there shall not have been any change, or any development involving a reasonably
foreseeable change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Offerors
otherwise than as set forth or contemplated in the Prospectus, the effect of
which, in the Underwriters' reasonable judgment, is material and adverse to the
Offerors and makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Capital Securities being delivered at the
Closing Date or the Additional Closing Date, as the case may be, on the terms
and in the manner contemplated in the Prospectus.
18
(i) The Underwriters shall have received on the Closing Date and any
Additional Closing Date a certificate or certificates of the chief executive
officer and the chief financial officer of the Company, to the effect that, as
of the Closing Date or the Additional Closing Date, as the case may be, each of
them severally represents as follows:
(i) The Prospectus Supplement was filed with the Commission
pursuant to Rule 424(b) within the applicable period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section 4 of
this Agreement; no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have been
initiated or are, to his knowledge, threatened by the Commission.
(ii) The representations and warranties of the Company set forth
in Section 1 of this Agreement are true and correct at and as of the Closing
Date or the Additional Closing Date, as the case may be, and the Company has
performed all of its obligations under this Agreement to be performed at or
prior to the Closing Date or the Additional Closing Date, as the case may be.
(j) The Underwriters shall have received on the Closing Date and any
Additional Closing Date a certificate or certificates of the Regular Trustees,
to the effect that, as of the Closing Date or the Additional Closing Date, as
the case may be, each of them severally represents as follows:
(i) The Prospectus Supplement was filed with the Commission
pursuant to Rule 424(b) within the applicable period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section 4 of
this Agreement; no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have been
initiated or are, to his knowledge, threatened by the Commission.
(ii) The representations and warranties of the Trust set forth in
Section 1 of this Agreement are true and correct at and as of the Closing Date
or the Additional Closing Date, as the case may be, and the Trust has performed
all of its obligations under this Agreement to be performed at or prior to the
Closing Date or the Additional Closing Date, as the case may be.
(k) Between the execution and delivery of this Agreement and the
Closing Date, there shall not have occurred a downgrading in the rating assigned
to the Capital Securities or any of the Company's other securities by Xxxxx'x
Investor Services and Standard & Poor's Corporation, and neither such rating
organization shall have publicly announced that is has under surveillance or
review, with possible negative implications, its rating of the Capital
Securities or any of the Company's other securities.
(l) The Offerors shall have furnished to the Underwriters such further
certificates and documents as the Underwriters may reasonably have requested.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects reasonably
19
satisfactory to the Underwriters and to Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for
the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Underwriters by notifying the Trust of such termination in writing or by
telegram at or prior to the Closing Date. In such event, the Trust and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 7 hereof).
7. Indemnification.
---------------
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter, each officer and director thereof, and each person,
if any, who controls any Underwriter within the meaning of the Act, against any
losses, claims, damages or liabilities to which such Underwriter or such persons
may become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus or the Prospectus, including any amendments or supplements thereto,
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not misleading
in light of the circumstances under which they were made, or (iii) any act or
failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Capital Securities or the
offering contemplated hereby, and which is included as part of or referred to in
any losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arising out of or based upon matters covered by clause (i) or (ii)
above, and will reimburse each Underwriter and each such controlling person for
any legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Offerors
shall not be liable (1) in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission, made in the
Registration Statement, any Preliminary Prospectus or the Prospectus, including
any amendments or supplements thereto, in reliance upon and in conformity with
written information furnished to the Offerors by any Underwriter specifically
for use therein or (2) in the case of any matter covered by clause (iii) above
to the extent that it is determined in a final judgment by a court of competent
jurisdiction that such losses, claims, damages or liabilities resulted directly
from any such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Offerors and the trustees and directors and officers who have signed the
Registration Statement, and each person, if any, who controls the Offerors
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Offerors or any such person may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
20
actions or proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances under which they were made, and will reimburse any legal or
other expenses reasonably incurred by the Offerors or any such person in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that each Underwriter will be liable
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Trust or the Company by or through the Underwriters
specifically for use therein. The obligations of the Underwriters under this
Section 7(b) are several in proportion to their respective underwriting
obligations and not joint.
(c) The Company agrees to indemnify the Trust against all loss,
liability, claim damage and expense whatsoever, which may become due from the
Trust under subsection (a).
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity or
contribution may be sought pursuant to this Section 7, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 7(a) or (b) or contribution provided for
in Section 7(e) shall be available with respect to a proceeding to any party who
shall fail to give notice of such proceeding as provided in this Section 7(d) if
the party to whom notice was not given was unaware of the proceeding to which
such notice would have related and was prejudiced by the failure to give such
notice, but the failure to give such notice shall not relieve the indemnifying
party or parties from any liability which it or they may have to the indemnified
party otherwise than on account of the provisions of Section 7(a) or (b). In
case any such proceeding shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party and shall pay as incurred the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel at its own
expense. Notwithstanding the foregoing, the indemnifying party shall pay
promptly as incurred the reasonable fees and expenses of the counsel retained by
the indemnified party in the event (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and the
indemnified party shall have reasonably concluded that there may be a conflict
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it or other indemnified parties which are different
21
from or additional to those available to the indemnifying party. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm at any time for all such
indemnified parties. Such firm shall be designated in writing by the
Underwriters and shall be reasonably satisfactory to the Offerors in the case of
parties indemnified pursuant to Section 7(a) and shall be designated in writing
by the Offerors and shall be reasonably satisfactory to the Underwriters in the
case of parties indemnified pursuant to Section 7(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under Section
7(a) or (b) above in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Offerors on the one hand and
the Underwriters on the other from the offering of the Capital Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Offerors on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Offerors bears to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Offerors on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Offerors and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 7(e) were 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 account of the
equitable considerations referred to above in this Section 7(e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereto) referred
to above in this Section 7(e) shall be deemed to include 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 7(e), no Underwriter shall be required to contribute
any amount in excess of the underwriting discounts and commissions applicable to
the Capital Securities purchased by such Underwriter; and no person guilty of
fraudulent
22
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 in this Section 7(e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Offerors under this Section 7 shall be in
addition to any liability which the Offerors may otherwise have, and the
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the Underwriters may otherwise have.
8. Notices. All communications hereunder shall be in writing and, except
-------
as otherwise provided herein, will be mailed, delivered or telegraphed and
confirmed as follows: if to the Underwriters, to them c/o Xxxx Xxxxxxxx
Incorporated, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: J.
Xxxxx Xxxxx, Managing Director, with a copy to Xxxx X. Xxxxx, Esq., Xxxxxx, Xxxx
& Xxxxxxxx LLP, One Xxxxxxxxxx Street, Telesis Tower, 31st Floor, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000; if to the Company, to Bay View Capital Corporation, 0000 Xxxxx
Xx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx,
President and Chief Executive Officer, with a copy to Xxxxxx X. Xxxxxxxx, P.C.,
Silver, Xxxxxxxx & Xxxx, L.L.P., 0000 Xxx Xxxx Xxxxxx, XX, 0xx Xxxxx, Xxxx
Xxxxx, Xxxxxxxxxx, X.X. 00000-0000, and if to the Trust, to it c/o Bay View
Capital Corporation 0000 Xxxxx Xx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxx Xxxx, with a copy to Wilmington Trust Company, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 Attention: Corporate Trust
Administration. All notices given by telegram shall be promptly confirmed by
letter. Any notice to the Trust shall also be copied to the Company at the
address previously stated, Attention: Xxxxxx X. Xxxx. Any party may change its
address for notice purposes by written notice to the other parties.
9. Termination. This Agreement may be terminated by the Underwriters by
-----------
notice to the Offerors as follows:
(a) at any time prior to the earlier of (i) the time the Capital
Securities are released by the Underwriters for sale or (ii) 10:00 A.M., Pacific
time, on the first business day following the date of this Agreement;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in or
affecting the condition, financial or otherwise, of the Trust, or of the Company
and the Subsidiaries taken as a whole or the business affairs, management,
financial position, shareholders' equity or results of operations of the Trust,
or of the Company and the Subsidiaries taken as a whole, whether or not arising
in the ordinary course of business, (ii) any outbreak or escalation of
hostilities or declaration of war or national emergency after the date hereof or
other national or international calamity or crisis or change in economic or
political conditions if the effect of such outbreak, escalation, declaration,
emergency, calamity, crisis or change on the financial markets of the United
States would, in the Underwriters' judgment, make the offering or delivery of
the Capital Securities impracticable or
23
inadvisable, (iii) suspension of trading in securities on the New York Stock
Exchange or the American Stock Exchange or limitation on prices (other than
limitations on hours or numbers of days of trading) for securities on either
such Exchange, or a halt or suspension of trading in securities generally which
are quoted on Nasdaq or (iv) declaration of a banking moratorium by either
federal or state authorities or New York; or
(c) as provided in Section 6 of this Agreement.
10. Written Information. For all purposes under this Agreement
-------------------
(including, without limitation, Section 1, Section 3 and Section 7 hereof), the
Offerors understand and agree with each of the Underwriters that the following
constitutes the only written information furnished to the Offerors by the
Underwriters specifically for use in preparation of the Registration Statement,
any Preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto: (i) the per share "Public Offering Price" and per share "Underwriting
Fees to be Paid by the Company" set forth on the cover page of the Prospectus,
and (ii) the information set forth under the caption "Underwriting" in the
Preliminary Prospectus and the Prospectus.
11. Successors. This Agreement has been and is made solely for the
----------
benefit of and shall be binding upon the Underwriters, the Trust and the Company
and their respective successors, executors, administrators, heirs and assigns,
and the trustees and controlling persons and the officers and directors of any
such controlling person referred to herein, and no other person will have any
right or obligation hereunder. The term "successors" shall not include any
purchaser of the Capital Securities merely because of such purchase.
12. Miscellaneous. The reimbursement, indemnification and contribution
-------------
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Offerors or controlling persons thereof and (c) delivery of and payment for
the Capital Securities under this Agreement.
Each provision of this Agreement shall be interpreted in such a manner as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule in any jurisdiction, such provision will be ineffective only to the
extent of such invalidity, illegality or unenforceability in such jurisdiction
or any provision hereof in any other jurisdiction.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware.
If the foregoing letter is in accordance with the Underwriters'
understanding of our agreement, please sign and return to us the enclosed
duplicates hereof, whereupon it will become a binding agreement among the
Offerors and the Underwriters in accordance with its terms.
24
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25
Very truly yours,
BAY VIEW CAPITAL I, a Delaware business trust
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Xxxxxx X. Xxxx, Administrative Trustee
BAY VIEW CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxxxx, Chief Financial Officer
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
XXXX XXXXXXXX XXXXXXX, A DIVISION OF
XXXX XXXXXXXX INCORPORATED
EVEREN SECURITIES, INC.
XXXXX XXXXXXX INC.
SUTRO & CO. INCORPORATED
By: Xxxx Xxxxxxxx Incorporated
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
SCHEDULE A
SCHEDULE OF UNDERWRITERS
Capital Number of
Securities Capital Securities
Underwriter to be purchased
------------------------------------------ ------------------
Xxxx Xxxxxxxx Xxxxxxx, a division of
Xxxx Xxxxxxxx Incorporated............... 1,280,000
EVEREN Securities, Inc. ................. 640,000
Xxxxx Xxxxxxx Inc. ...................... 640,000
Sutro & Co. Incorporated ................ 640,000
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Total 3,200,000
---------
A-1
