Exhibit 1
PURCHASE AGREEMENT
VALLEY NATIONAL BANCORP
(a New Jersey corporation) and
VNB CAPITAL TRUST I
(a Delaware statutory business trust)
7,000,000 Preferred Securities
% Trust Originated Preferred Securities ("TOPrS")
(Liquidation Amount $25 Per Preferred Security)
Dated: October , 2001
Table of Contents
Page
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SECTION 1. Representations and Warranties. ..............................................................3
(a) Representations and Warranties by the Company and the Trust. ...................................3
(i) Compliance with Registration Requirements. ...................................4
(ii) Incorporated Documents. ......................................................4
(iii) Independent Accountants. .....................................................5
(iv) Financial Statements. ........................................................5
(v) No Material Adverse Change in Business. ......................................5
(vi) Good Standing of the Company. ................................................5
(vii) Good Standing of Subsidiaries. ...............................................5
(viii) Existence of Trust. ..........................................................6
(ix) Common Securities. ...........................................................6
(x) Authorization of Declaration. ................................................6
(xi) Guarantee Agreements. ........................................................7
(xii) Preferred Securities. ........................................................7
(xiii) Authorization of Indenture. ..................................................7
(xiv) Authorization of Debentures. .................................................7
(xv) Authorization of Agreement. ..................................................7
(xvi) Capitalization. ..............................................................8
(xvii) Absence of Defaults and Conflicts. ...........................................8
(xviii) Absence of Labor Dispute. ....................................................9
(xix) Absence of Proceedings. ......................................................9
(xx) Possession of Licenses and Permits. ..........................................9
(xxi) Investment Company Act. ......................................................9
(xxii) Absence of Further Requirements. .............................................9
(xxiii) Title to Property. .........................................................10
(b) Officers' Certificates. .......................................................................10
SECTION 2. Sale and Delivery to Underwriters; Closing. .................................................10
(a) Preferred Securities. .........................................................................10
(b) Payment. ......................................................................................10
(c) Denominations; Registration. ..................................................................11
SECTION 3. Covenants of the Company and the Trust. .....................................................11
(a) Compliance with Securities Regulations and Commission Requests. ...............................11
(b) Filing of Amendments. .........................................................................12
(c) Delivery of Registration Statements. ..........................................................12
(d) Delivery of Prospectus. .......................................................................12
(e) Continued Compliance with Securities Laws. ....................................................12
(f) Blue Sky Qualifications. ......................................................................13
(g) Rule 158. .....................................................................................13
(h) DTC. ..........................................................................................13
(i) Use of Proceeds................................................................................13
(j) Restriction on Sale of Securities. ............................................................13
(k) Listing. ......................................................................................13
(l) Reporting Requirements. .......................................................................14
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SECTION 4. Payment of Expenses. ........................................................................14
(a) Expenses. .....................................................................................14
(b) Termination of Agreement. .....................................................................14
SECTION 5. Conditions of Underwriters' Obligations. ....................................................15
(a) Effectiveness of Registration Statement. ......................................................15
(b) Opinion of Counsel for Company. ...............................................................15
(c) Opinion of Special Tax Counsel for the Trust and the Company. .................................15
(d) Opinion of Special Delaware Counsel for the Trust. ............................................15
(e) Opinion of Counsel for The Bank of New York. ..................................................16
(f) Opinion of Counsel for Underwriters. ..........................................................16
(g) Officers' Certificates. .......................................................................16
(h) Accountant's Comfort Letter. ..................................................................16
(i) Bring-down Comfort Letter. ....................................................................17
(j) Maintenance of Rating. ........................................................................17
(k) Additional Documents. .........................................................................17
(l) Termination of Agreement. .....................................................................17
(m) Approval of Listing. ..........................................................................17
SECTION 6. Indemnification. ............................................................................17
(a) Indemnification of Underwriters. ..............................................................17
(b) Indemnification of Trust by Company. ..........................................................18
(c) Indemnification of Trust, Company, Directors and Officers. ....................................18
(d) Actions against Parties; Notification. ........................................................19
(e) Settlement without Consent if Failure to Reimburse. ...........................................19
SECTION 7. Contribution. ...............................................................................19
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. .............................21
SECTION 9. Termination of Agreement. ...................................................................21
(a) Termination; General. .........................................................................21
(b) Liabilities. ..................................................................................21
SECTION 10. Default by One or More of the Underwriters. ................................................22
SECTION 11. Notices. ...................................................................................22
SECTION 12. Parties. ...................................................................................22
SECTION 13. GOVERNING LAW AND TIME. ....................................................................23
SECTION 14. Effect of Headings. ........................................................................23
SCHEDULES
Schedule A-- List of Underwriters. .................................................Sch. A-1
EXHIBITS
Exhibit A-- Form of Opinion of Company's Counsel. .......................................A-1
Exhibit B-- Form of Opinion of Trust's Special Delaware Counsel. ........................B-1
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VALLEY NATIONAL BANCORP
(a New Jersey corporation)
VNB CAPITAL TRUST I
(a Delaware statutory business trust)
7,000,000 Preferred Securities
% Trust Originated Preferred Securities ("TOPrS")
(Liquidation Amount $25 Per Preferred Security)
PURCHASE AGREEMENT
October , 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Sandler X'Xxxxx & Partners, X.X.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxx, Xxxx & Co., LLC
UBS Warburg LLC
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
North Tower
4 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
VNB Capital Trust I (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12 of the Delaware Code, 12 Del. C. ss. ss. 3801 et seq.)
confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Xxxxxxx X'Xxxxx & Partners, L.P. ("Sandler
X'Xxxxx"), Xxxx Xxxxx Xxxx Xxxxxx, Incorporated ("Xxxx Xxxxx"), Xxxxxx Brothers
Inc. ("Xxxxxx Brothers"), Xxxxxxx Xxxxx Xxxxxx Inc. ("Xxxxxxx Xxxxx Barney"),
Xxxx, Xxxx & Co., LLC ("Xxxx, Xxxx") and UBS Warburg LLC ("UBS Warburg") and
each of the Underwriters named in Schedule A hereto (collectively the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxxx Xxxxx, Xxxxxxx
X'Xxxxx, Xxxxxx Brothers, Xxxx Xxxxx, Xxxxxxx Xxxxx Xxxxxx and
Xxxx, Xxxx are acting as Representatives (in such capacity, the
"Representatives") with respect to the issue and sale by the Trust and the
purchase by the Underwriters, acting severally and not jointly, of % Trust
Originated Preferred Securities (liquidation amount $25 per preferred security)
in the respective numbers set forth in said Schedule A hereto (the "Preferred
Securities"). The Preferred Securities are more fully described in the
Prospectus (as defined below).
The Preferred Securities will be guaranteed by Valley National Bancorp
(a New Jersey corporation) (the "Company"), to the extent set forth in the
Prospectus, with respect to distributions and amounts payable upon liquidation
or redemption (the "Preferred Securities Guarantee") pursuant to the Preferred
Securities Guarantee Agreement (the "Preferred Securities Guarantee Agreement")
to be dated as of Closing Time (as defined below), executed and delivered by the
Company and The Bank of New York (the "Guarantee Trustee"), a New York banking
corporation not in its individual capacity but solely as trustee, for the
benefit of the holders from time to time of the Preferred Securities. The
Company and the Trust each understand that the Underwriters propose to make a
public offering of the Preferred Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered, and the
Declaration (as defined herein), the Indenture (as defined herein), and the
Preferred Securities Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). The entire proceeds from the
sale of the Preferred Securities will be combined with the entire proceeds from
the sale by the Trust to the Company of its common securities (the "Common
Securities") guaranteed by the Company, to the extent set forth in the
Prospectus, with respect to distributions and amounts payable upon liquidation
or redemption pursuant to the Common Securities Guarantee Agreement (the "Common
Securities Guarantee Agreement" and, together with the Preferred Securities
Guarantee Agreement, the "Guarantee Agreements"), to be dated as of Closing
Time, executed and delivered by the Company for the benefit of the holders from
time to time of the Common Securities, and will be used by the Trust to purchase
$ aggregate principal amount of % Junior Subordinated Debentures due (the
"Debentures") issued by the Company. The Preferred Securities and the Common
Securities will be issued pursuant to the Amended and Restated Declaration of
Trust of the Trust, to be dated as of Closing Time (the "Declaration"), among
the Company, as Sponsor, The Bank of New York, as property trustee (the
"Property Trustee"), The Bank of New York (Delaware), as Delaware trustee (the
"Delaware Trustee"), and Xxxxxx X. Xxxxxx, Xxxx X. Xxxxx and Xxxx Xxxxxxx, as
administrative trustees (the "Administrative Trustees" and together with the
Property Trustee and the Delaware Trustee, the "Trustees"), and the holders from
time to time of undivided beneficial interests in the assets of the Trust. The
Debentures will be issued pursuant to an Indenture, dated as of Closing Time
(the "Indenture"), between the Company and The Bank of New York, as trustee (the
"Debenture Trustee"). The Preferred Securities, the Preferred Securities
Guarantee and the Debentures are collectively referred to herein as the
"Securities." Capitalized terms used herein without definition have the
respective meanings specified in the Prospectus.
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Nos.
333-71546 and 333-71546-01), as amended by Amendment No. 1 thereto, including
the relevant forms of prospectus and preliminary prospectus, covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and regulations of the Commission under the 1933 Act (the
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"1933 Act Regulations"). Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the 1933 Act
Regulations, if applicable, and paragraph (b) of Rule 424 ("Rule 424(b)") of the
1933 Act Regulations or (ii) if the Company has elected to rely upon Rule 434
("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the case may
be, that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Any prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, if any, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, in the form first furnished to the Underwriters for
use in connection with the offering of the Preferred Securities is herein called
the "Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to
the preliminary prospectus dated , 2001, together with the Term Sheet and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company and the Trust. The
-----------------------------------------------------------
Company and the Trust jointly and severally represent and warrant to each
Underwriter as of the date
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hereof and as of the Closing Time (in each case, a "Representation Date"), and
agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company and the Trust, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective, at the date hereof, and at each Representation Date, the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and
the rules and regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time included or will
include an untrue statement of a material fact or omitted or will omit 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. If Rule 434 is
used, the Company and the Trust will comply with the requirements of Rule 434.
The representations and warranties in this subsection shall not apply (A) to
statements in or omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the Trust or the
Company in writing by any Underwriter through Xxxxxxx Xxxxx expressly for use in
the Registration Statement or the Prospectus or (B) to that part of the
Registration Statement that constitutes the Statements of Eligibility and
Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of the
Debenture Trustee, the Property Trustee and the Guarantee Trustee.
The relevant forms of prospectus and preliminary prospectus filed as part
of the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and any preliminary
prospectus and the Prospectus delivered to the Underwriters for use in
connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act Regulations")
and, when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the date hereof, at the
4
time the Prospectus was issued and at Closing Time did not and will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) Financial Statements. The financial statements incorporated by
reference in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the Company and
its consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in the Registration
Statement present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements incorporated by
reference in the Registration Statement.
(v) No Material Adverse Change in Business. Since the respective dates as
of which information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the ordinary course
of business, which are material with respect to the Company and its subsidiaries
considered as one enterprise and (C) there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital
stock, except for dividends paid by the Company in the ordinary course of
business consistent with past practice.
(vi) Good Standing of the Company. The Company has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of New Jersey and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary" of the
Company (as such term is defined in Rule 1-02 of Regulation S-X) (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly organized and
is validity existing as a corporation or national banking association in good
standing under the laws of the jurisdiction in which it is chartered or
organized, has full corporate power and authority to own, lease and operate its
5
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except for VNB Capital Corp. and as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each such Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien encumbrance, claim or equity; all of the issued and
outstanding capital stock of VNB Capital Corp. has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien encumbrance, claim or equity, except for less than 20% of
the non-voting preferred stock of VNB Capital Corp.; none of the outstanding
shares of capital stock of VNB Capital Corp. was issued in violation of the
preemptive or similar rights of any securityholder of VNB Capital Corp. The
Company has no subsidiaries which, individually or in the aggregate, when
considered as a single subsidiary, would constitute a "significant subsidiary"
as defined in Rule 1-02 of Regulation S-X, other than Valley National Bank, VNB
Capital Corp. and the subsidiaries listed on Schedule 1, which subsidiaries are
significant subsidiaries solely because of their direct or indirect ownership of
capital stock of VNB Capital Corp.
(viii) Existence of Trust. The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act, is and
will be treated as a "grantor trust" for federal income tax purposes under
existing law, has the business trust power and authority to conduct its business
as presently conducted and as described in the Prospectus and is not required to
be authorized to do business in any other jurisdiction.
(ix) Common Securities. The Common Securities have been duly authorized by
the Declaration and, when issued and delivered by the Trust to the Company in
accordance with the terms of the Declaration and against payment therefor as
described in the Prospectus, will be validly issued and (subject to the terms of
the Declaration) fully paid and non-assessable undivided beneficial interests in
the assets of the Trust; the issuance of the Common Securities is not subject to
preemptive or other similar rights; no holder thereof will be subject to
personal liability by reason of being such a holder; and at the Closing Time,
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, mortgage,
pledge, lien, encumbrance, claim or equity.
(x) Authorization of Declaration. The Declaration has been duly authorized
by the Company and duly qualified under the 1939 Act and, when validly executed
and delivered by the Company and the Administrative Trustees, and assuming the
due authorization, execution and delivery of the Declaration by the Delaware
Trustee and the Property Trustee, the Declaration will constitute a valid and
binding obligation of the Company and the Trustees, enforceable against the
Company and the Trustees in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general
6
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xi) Guarantee Agreements. The Guarantee Agreements have been duly
authorized by the Company and duly qualified under the 1939 Act and, when
validly executed and delivered by the Company, and assuming due authorization,
execution and delivery of the Guarantee Agreements by the Guarantee Trustee,
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(xii) Preferred Securities. The Preferred Securities have been duly
authorized by the Declaration and, when authenticated in the manner provided for
in the Declaration and issued and delivered pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and
(subject to the terms of the Declaration) fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; the issuance of the
Preferred Securities is not subject to preemptive or other similar rights; and
holders of Preferred Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
incorporated under the General Corporation Law of the State of Delaware.
(xiii) Authorization of Indenture. The Indenture has been duly authorized
by the Company and duly qualified under the 1939 Act and, when duly executed and
delivered by the Company and assuming the due authorization, execution and
delivery of the Indenture by the Debenture Trustee, will constitute a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(xiv) Authorization of Debentures. The Debentures have been duly authorized
by the Company, and when executed, authenticated, issued and delivered in the
manner provided for in the Indenture and sold and paid for as provided in this
Agreement, the Debentures will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xv) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and the Trust.
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(xvi) Capitalization. The authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to this Agreement, pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus). The shares of
issued and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company.
(xvii) Absence of Defaults and Conflicts. Neither the Company, its
subsidiaries nor the Trust is in violation of its charter or by-laws or other
organizational documents or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company, any subsidiary or the Trust
is a party or by which any of them may be bound, or to which any of the property
or assets of the Company, any subsidiary or the Trust is subject, except for
such defaults that would not result in a Material Adverse Effect; and the
execution and delivery by the Company and the Trust of, and the performance by
the Company and the Trust of their obligations under, this Agreement, the
execution and delivery by the Company of, and the performance by the Company of
its obligations under, the Declaration, the Preferred Securities Guarantee
Agreement, the Indenture and the Debentures, the issuance and delivery by the
Trust of the Common Securities and Preferred Securities and the consummation of
the sale of the Preferred Securities and the fulfillment of the terms herein
contemplated do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or default
under or Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any contract, indenture,
mortgage, deed of trust, loan agreement, guarantee, lease, financing agreement
or other similar agreement or instrument to which the Company or any of its
subsidiaries (including the Trust) is a party or by which the Company or any of
its subsidiaries (including the Trust) is bound or to which any of the property
or assets of the Company or any of its subsidiaries (including the Trust) is
subject, nor will such actions result in any violation of the provisions of the
Articles of Incorporation or By-Laws of the Company or the Declaration of the
Trust, nor will such actions result in any violation (in each case material to
the Company and its subsidiaries (including the Trust) considered as a whole or
as to the Trust separately) of any statute or any order, rule or regulation of
any court or regulatory authority or other governmental body having jurisdiction
over the Trust or the Company or any of its subsidiaries or any of their
properties; and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for, and the
absence of which would materially affect, the performance by the Company and the
Trust of their obligations under this Agreement and the issuance and delivery of
the Preferred Securities, except such approvals as will be obtained under the
1933 Act, the 1934 Act or the 1939 Act and as may be required by the securities
or Blue Sky laws of the various states in connection with the sale of the
Preferred Securities. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to require
the repurchase,
8
redemption or repayment of all or a portion of such indebtedness by the Company
or any subsidiary.
(xviii) Absence of Labor Dispute. No labor dispute with the employees of
the Company or any subsidiary exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xix) Absence of Proceedings. There is no action, suit, proceeding, inquiry
or investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company or the
Trust, threatened, against or affecting the Company or any subsidiary, which is
required to be disclosed in the Registration Statement (other than as disclosed
therein), or which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and adversely affect
the properties or assets of the Company and its subsidiaries taken as a whole or
the consummation of the transactions contemplated in this Agreement or the
performance by the Company or the Trust of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which the Company
or any subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xx) Possession of Licenses and Permits. The Company and its subsidiaries
possess such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except for such Governmental Licenses the absence
of which would not cause a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xxi) Investment Company Act. Neither the Company nor the Trust is, and
upon the issuance and sale of the Preferred Securities as herein contemplated
and the application of the net proceeds therefrom as described in the Prospectus
neither will be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xxii) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency is necessary or required for the
performance by the Company
9
or the Trust of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement or for the due execution, delivery
or performance of the Indenture by the Company, except such as have been already
obtained or as may be required under the 1933 Act or the 1933 Act Regulations or
state securities laws and except for the qualification of the Indenture under
the 1939 Act.
(xxiii) Title to Property. The Company and its subsidiaries have good
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described in the
Prospectus or (b) do not, singly or in the aggregate, materially affect the
value of such property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its subsidiaries; and all of the
leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or any
of its subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased premises under
any such lease or sublease.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or the Trust delivered to Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Trust, respectively, to each Underwriter as to the matters covered thereby on
the date of such certificate and, unless subsequently amended or supplemented,
at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing
------------------------------------------
(a) Preferred Securities. On the basis of the representations and
--------------------
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Company, at the purchase price of $25 per Preferred Security, the number of
Preferred Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Preferred Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, subject, in each case, to such adjustments among the
Underwriters as they in their sole discretion shall make to eliminate any sales
or purchases of fractional securities.
(b) Payment. As compensation to the Underwriters for their commitments
-------
hereunder and in view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Debentures, the Company hereby agrees to
pay at the Closing Time to the Underwriters a commission of $ per Preferred
Security purchased by the Underwriters. Payment of the purchase price for, and
delivery of certificates for, the Preferred Securities shall be made at the
offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as shall be agreed upon by the Underwriters, the
Company
10
and the Trust, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 p.m. (Eastern time) on any given day) business day after the
date hereof (unless postponed in accordance with the provisions of Section 10),
or such other time not later than ten business days after such date as shall be
agreed upon by the Underwriters, the Company and the Trust (such time and date
of payment and delivery being herein called "Closing Time").
Payment shall be made to the Trust by wire transfer of immediately
available funds to the order of the Trust, against delivery to the Underwriters
of certificates for the Preferred Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for the Preferred Securities which it has agreed to purchase. Xxxxxxx
Xxxxx, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Preferred
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time, but such payment shall not relieve such Underwriter from
its obligations hereunder.
At Closing Time the Company will pay, or cause to be paid, the commission
payable at such time under this Section 2 to Xxxxxxx Xxxxx on behalf of the
Underwriters by wire transfer of immediately available funds.
(c) Denominations; Registration. Certificates for the Preferred Securities
---------------------------
shall be in such denominations and registered in such names as the
Representatives may request in writing at least one full business day before the
Closing Time. The certificates for the Preferred Securities will be made
available for examination and packaging by the Representatives in The City of
New York not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time.
SECTION 3. Covenants of the Company and the Trust. The Company and the
--------------------------------------
Trust jointly and severally covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
--------------------------------------------------------------
Company and the Trust, subject to Section 3(b), will comply with the
requirements of Rule 424, Rule 430A or Rule 434, as applicable, and will notify
the Underwriters immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information and (iv)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus, any prospectus, or of the suspension of the
qualification of the Preferred Securities for offering or sale in any
jurisdiction or of the initiation or threatening of any proceedings for any of
such purposes. The Company and the Trust will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Company and the
Trust will
11
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company and the Trust will give the
--------------------
Representatives notice of their intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representatives with copies of any such documents to, and consult
with, the Representatives and their counsel within a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Representatives shall object.
(c) Delivery of Registration Statements. The Company has furnished or will
-----------------------------------
deliver to the Representatives and counsel for the Representatives, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and, upon request, documents incorporated or deemed to be
incorporated by reference therein), and will also deliver to the
Representatives, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Representatives. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectus. The Company has delivered to each Underwriter,
----------------------
without charge, as many copies of each preliminary prospectus as such
Underwriter reasonably requested, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. The Company will deliver to
each Underwriter, without charge, as many copies of the Prospectus as such
Underwriter reasonably requests, and the Company and the Trust hereby consent to
the use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the Trust
-----------------------------------------
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the Prospectus. If at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Preferred Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters and for the Company or the Trust, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser,
12
or if it shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement the Prospectus in order
to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company and the Trust will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company and the Trust will each use its
-----------------------
best efforts, in cooperation with the Underwriters, to qualify the Preferred
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Underwriters may
designate and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Registration Statement
and any Rule 462(b) Registration Statement; provided, however, that neither the
Company nor the Trust shall be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Preferred Securities
have been so qualified, the Company and the Trust will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date
hereof. The Company and the Trust will also supply the Underwriters with such
information as is necessary for the determination of the legality of the
Preferred Securities for investment under the laws of such jurisdictions as the
Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to the
--------
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) DTC. The Trust and the Company will cooperate with the Underwriters and
---
use their best efforts to permit the Preferred Securities to be eligible for
clearance and settlement through the facilities of The Depository Trust Company.
(i) Use of Proceeds. The Trust and the Company will use the proceeds
---------------
referred to in the Prospectus under "Use of Proceeds" in the manner described
therein.
(j) Restriction on Sale of Securities. During a period of 30 days from the
---------------------------------
date of the Prospectus, neither the Company nor the Trust will, without the
prior written consent of Xxxxxxx Xxxxx, directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any Preferred Securities or Debentures (or any
equity or debt securities substantially similar to the Preferred Securities or
Debentures, respectively). The foregoing sentence shall not apply to the
Preferred Securities or Debentures to be sold hereunder.
(k) Listing. The Company will use its best efforts to effect the listing of
-------
the Securities on the New York Stock Exchange.
13
(l) Reporting Requirements. The Company and the Trust, during the period
----------------------
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the performance
--------
of its and the Trust's obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Preferred Securities, (iii) the preparation, issuance and delivery of the
certificates for the Preferred Securities to the Underwriters, including any
stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Preferred Securities to the Underwriters, (iv)
the fees and disbursements of the Company's and the Trust's counsel, accountants
and other advisors, (v) the qualification of the Preferred Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, if any, (vi) the printing and
delivery to the Underwriters of copies of any preliminary prospectus, any Term
Sheets and of the Prospectus and any amendments or supplements thereto, (vii)
the printing and delivery to the Underwriters of copies of the Blue Sky Survey
and any supplement thereto, if any, (viii) the fees and expenses of any transfer
agent or registrar for the Preferred Securities, (ix) the fees and expenses of
the Debenture Trustee, including the fees and disbursements of counsel for the
Debenture Trustee in connection with the Indenture and the Debentures, (x) the
reasonable fees and expenses of the Delaware Trustee, the Property Trustee and
the Guarantee Trustee, including the fees and disbursements of counsel for the
Delaware Trustee, the Property Trustee and the Guarantee Trustee, (xi) any fees
payable in connection with the rating of the Preferred Securities and the
Debentures, (xii) the cost and charges associated with the approval of the
Preferred Securities by The Depository Trust Company for "book-entry" transfer
and (xiii) the fees and expenses incurred in connection with the listing of the
Preferred Securities and, if applicable, the Debentures on the New York Stock
Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
------------------------
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
14
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Trust contained in Section
1 hereof or in certificates of any officer of the Company or any Trustee
delivered pursuant to the provisions hereof, to the performance by the Company
and the Trust of their respective covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
---------------------------------------
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus shall have
been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective) or, if the Company has elected to rely upon Rule 434, a Term
Sheet shall have been filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Representatives
------------------------------
shall have received the favorable opinion, dated as of Closing Time, of Pitney,
Xxxxxx, Xxxx & Xxxxx LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters substantially to the
effect set forth in Exhibit A hereto and to such further effect as counsel to
the Underwriters may reasonably request. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(c) Opinion of Special Tax Counsel for the Trust and the Company. At
------------------------------------------------------------
Closing Time, the Company, the Trust and the Representatives shall have received
an opinion, dated as of Closing Time, of Pitney, Xxxxxx, Xxxx & Xxxxx LLP,
special tax counsel to the Trust and the Company, that (i) the Debt Securities
will be classified for United States federal income tax purposes as indebtedness
of the Company, (ii) the Trust will be classified for United States federal
income tax purposes as a grantor trust and not as an association taxable as a
corporation and (iii) although the discussion set forth in the Prospectus under
the heading "United States Federal Income Taxation" does not purport to discuss
all possible United States federal income tax consequences of the purchase,
ownership and disposition of the Preferred Securities, such discussion
constitutes, in all material respects, a fair and accurate summary of the United
States federal income tax consequences of the purchase, ownership and
disposition of the Preferred Securities under current law. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(d) Opinion of Special Delaware Counsel for the Trust. At Closing Time, the
-------------------------------------------------
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Morris, Nichols, Arsht & Xxxxxxx, special Delaware counsel to
the Trust, together with signed or reproduced copies of such letter for each of
the Underwriters to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Underwriters may reasonably request.
15
(e) Opinion of Counsel for The Bank of New York. At Closing Time, the
-------------------------------------------
Representatives shall have received an opinion, dated as of Closing Time, of
Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to The Bank of New York, as Property
Trustee and Debenture Trustee, and The Bank of New York (Delaware), as Guarantee
Trustee, in form and substance satisfactory to the Underwriters.
(f) Opinion of Counsel for Underwriters. At Closing Time, the
-----------------------------------
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the validity of the Preferred Securities, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably request. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to the Underwriters. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(g) Officers' Certificates. At Closing Time, there shall not have been,
----------------------
since the date hereof or since the respective dates as of which information is
given in the Prospectus, (A) any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the Chairman, the
President, a Vice Chairman or a Vice President of the Company and of the chief
financial or chief accounting officer or the Treasurer of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time (except for representations or warranties which by their terms
speak as of a different date or dates), (iii) the Company has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to Closing Time and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are, to
the best of the Company's knowledge, threatened by the Commission; or (B) any
material adverse change in the condition, financial or otherwise, or in the
earnings or business affairs of the Trust, and the Representatives shall have
received a certificate of a Administrative Trustee of the Trust, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time (except for representations or warranties which by their terms
speak as of a different date or dates), (iii) the Trust has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to Closing Time and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are, to
the best of the Trust's knowledge, threatened by the Commission.
(h) Accountant's Comfort Letter. At the time of the execution of this
---------------------------
Agreement, the Representatives shall have received from KPMG LLP a letter dated
such date, in form and
16
substance satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the Underwriters 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.
(i) Bring-down Comfort Letter. At Closing Time, the Representatives shall
-------------------------
have received from KPMG LLP a letter, dated as of the Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (h) of this Section 5, except that the specified date referred to
shall be a date not more than three business days prior to the Closing Time.
(j) Maintenance of Rating. At Closing Time, the Preferred Securities shall
---------------------
be rated at least Baa1 by Xxxxx'x Investors Service, Inc. and BBB by Standard &
Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc., and the Company shall
have delivered to the Underwriters a letter dated the Closing Time, from each
such rating agency, or other evidence satisfactory to the Representatives,
confirming that the Preferred Securities have such ratings; and since the date
of this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Preferred Securities or any of the Company's debt or preferred
securities by any "nationally recognized statistical rating agency," as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933
Act, and no such organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any of the Company's debt
or preferred securities.
(k) Additional Documents. At Closing Time, counsel for the Underwriters
--------------------
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Preferred Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company
and Trust in connection with the issuance and sale of the Preferred Securities
as herein contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(l) Termination of Agreement. If any condition specified in this Section
------------------------
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company at any
time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
(m) Approval of Listing. At the Closing Time, the Preferred Securities
-------------------
shall have been approved for listing on the New York Stock Exchange, subject
only to official notice of issuance.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. Each of the Company and the Trust
-------------------------------
jointly and severally agrees to indemnify and hold harmless each Underwriter and
each person, if any, who
17
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Trust by Company. The Company agrees to indemnify
------------------------------------
the Trust against all loss, liability, claim, damage and expense whatsoever as
due from the Trust under Section 6(a) hereunder.
(c) Indemnification of Trust, Company, Directors and Officers. Each
---------------------------------------------------------
Underwriter severally agrees to indemnify and hold harmless the Company and the
Trust, the Company's directors, each of the Company's officers and the Trustee
of the Trust who signed the Registration Statement, and each person, if any, who
controls the Company and the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged
18
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through Xxxxxxx
Xxxxx expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus, if any, or the Prospectus (or any amendment or
supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
-------------------------------------
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(c) above, counsel to the
indemnified parties shall be selected by the Company, in each case reasonably
acceptable to the indemnifying party. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time an
--------------------------------------------------
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 60 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein; then each indemnifying party
19
shall contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Trust on the one hand and the Underwriters on the other hand
from the offering of the Preferred Securities pursuant to this Agreement or (ii)
if the allocation provided by clause (i) 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 and
the Trust on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions, which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Trust on the one hand
and the Underwriters on the other hand in connection with the offering of the
Preferred Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Preferred Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the Securities as set forth on such
cover.
The relative fault of the Company and the Trust on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such 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 by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Trust and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 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. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the 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 been required to pay by reason of any such 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 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
20
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company and the Trustee of the
Trust who signed the Registration Statement, and each person, if any, who
controls the Company or the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Preferred Securities
set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or the Trustees of the Trust or any of
its other subsidiaries submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representatives may terminate this Agreement,
--------------------
by notice to the Company and the Trust, at any time at or prior to Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to market the Preferred Securities or to enforce contracts for the
sale of the Preferred Securities, (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States or (iv) if a banking moratorium has been
declared by either Federal, New York or New Jersey authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
-----------
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
21
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at Closing Time to purchase the Preferred Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number
of Preferred Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Preferred Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement either the Representatives or the Company shall have the right to
postpone Closing Time for a period not exceeding seven days in order to effect
any required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Representatives shall be directed to Xxxxxxx Xxxxx at North Tower, 4 World
Financial Center, New York, New York 10281-1201, attention of Syndicate
Operations; notices to the Trust shall be directed to it at The Bank of New
York, 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286, attention of
Corporate Trust Administration and notices to the Company shall be directed to
it at Valley National Bancorp, 0000 Xxxxxx Xxxx, Xxxxx, Xxx Xxxxxx 00000,
attention of Xxxx X. Xxxxx, Corporate Secretary.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters, the Company and the Trust and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and the Trust and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
the Trust and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other
22
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
----------------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and
------------------
the Table of Contents are for convenience only and shall not affect the
construction hereof.
23
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters, the Company and the Trust in accordance with
its terms.
Very truly yours,
VALLEY NATIONAL BANCORP
By:
-------------------------------------
Name:
Title:
VNB CAPITAL TRUST I
By:
------------------------------------
Name:
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
SANDLER X'XXXXX & PARTNERS, X.X.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXX BROTHERS INC.
XXXXXXX XXXXX XXXXXX INC.
XXXX, XXXX & CO., LLC
UBS WARBURG LLC
By: XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------------
Authorized Signatory
24
SCHEDULE A
Number of
Name of Underwriter Initial Preferred Securities
------------------- ----------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated..................................
Sandler X'Xxxxx & Partners, L.P. .............................
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated .........................
Xxxxxx Brothers Inc. .........................................
Xxxxxxx Xxxxx Xxxxxx Inc. ....................................
Xxxx, Xxxx & Co., LLC ........................................
UBS Warburg LLC ..............................................
Total...................................... 7,000,000
Sch. A-1
Exhibit A
Form of opinion, dated as of Closing Time, of Pitney, Xxxxxx, Xxxx & Xxxxx LLP,
counsel for the Company and the Trust, substantially to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New Jersey.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectus in the column entitled "Actual" under the caption
"Capitalization"; the shares of issued and outstanding capital stock of the
Company are fully paid and non-assessable; and none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(v) Each Subsidiary has been duly incorporated and is validly existing as a
corporation or a national banking association in good standing under the laws of
the jurisdiction in which it is chartered or organized, has full corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect;
all of the issued and outstanding capital stock of Valley National Bank has been
duly authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding shares of capital stock of Valley National Bank was issued in
violation of the preemptive or similar rights of any securityholder of Valley
National Bank; all of the issued and outstanding capital stock of VNB Capital
Corp. has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity, except for less than 20% of the non-voting preferred stock of
VNB Capital Corp.; none of the outstanding shares of capital stock of VNB
Capital Corp. was issued in violation of the preemptive or similar rights of any
securityholder of VNB Capital Corp. The Company has no subsidiaries which,
individually or in the aggregate, when considered as a single subsidiary, would
constitute a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X,
other than Valley National Bank, VNB Capital Corp. and the subsidiaries listed
on Schedule 1, which subsidiaries are significant subsidiaries solely because of
their direct or indirect ownership of capital stock of VNB Capital Corp.
A-1
(vi) The Purchase Agreement has been duly authorized by the Company and has
been duly executed and delivered by each of the Company and the Trust.
(vii) The Indenture has been duly authorized, executed and delivered by the
Company and, assuming the due authorization, execution and delivery of the
Indenture by the Bank of New York, constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(viii) The Debentures are in the form contemplated by the Indenture, have
been duly authorized, executed and delivered by the Company and, when the
Debentures have been duly authenticated by the Debenture Trustee in accordance
with the provisions of the Indenture, the Debentures will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(ix) The Declaration has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery of the
Declaration by The Bank of New York and The Bank of New York (Delaware), the
Declaration constitutes a valid and binding obligation of the Company and is
enforceable against the Company and the Administrative Trustees in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(x) The Guarantee Agreements have been duly authorized, executed and
delivered by the Company and, in the case of the Preferred Securities Guarantee
Agreement, assuming the due authorization, execution and delivery of the
Preferred Securities Guarantee Agreement by the Bank of New York, are valid and
binding agreements of the Company enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(xi) The Indenture, the Preferred Securities Guarantee Agreement and the
Declaration have each been duly qualified under the 1939 Act.
A-2
(xii) The Declaration, the Indenture, the Preferred Securities Guarantee
Agreement, the Preferred Securities and the Debentures conform as to legal
matters in all material respects to the descriptions thereof contained in the
Prospectus.
(xiii) The holders of outstanding shares of capital stock of the Company
are not entitled to any preemptive rights under the Articles of Incorporation or
By-Laws of the Company or the laws of the State of New Jersey to subscribe for
the Preferred Securities or the Debentures.
(xiv) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which such counsel need express no opinion), when they were
filed with the Commission complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
(xv) The statements made (1) in the Prospectus under the captions
"Description of the Preferred Securities," "Description of the Guarantee,"
"Description of the Junior Subordinated Debentures" and "Effect of Obligations
Under the Junior Subordinated Debentures and the Guarantee," (2) in the
Registration Statement under Item 15 and (3) in the Company's Annual Report on
Form 10-K for the year ended December 31, 2000 under the caption "Item 1.
Business - Supervision and Regulation," insofar as such statements purport to
summarize certain provisions of the Preferred Securities, the Common Securities,
the Debentures, the Preferred Securities Guarantee, the Indenture, the
Declaration, the Guarantee Agreements, the Articles of Incorporation and By-Laws
of the Company or to the extent that they constitute matters of law or legal
conclusions, have been reviewed by such counsel and is correct in all material
respects.
(xvi) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign (other than under the 1933 Act and the 1933 Act
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which we need express
no opinion, and except for the qualification of the Declaration, the Indenture
and the Preferred Securities Guarantee Agreement under the 1939 Act) is
necessary or required in connection with the due authorization, execution and
delivery of the Purchase Agreement or the due execution, delivery or performance
of the Indenture by the Company or for the offering, issuance, sale or delivery
of the Securities.
(xvii) The execution, delivery and performance of the Purchase Agreement,
the Indenture and the Securities and the consummation of the transactions
contemplated in the Purchase Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Prospectus under the caption
"Use Of Proceeds") and compliance by the Company and the Trust with their
obligations under the Purchase Agreement, the Indenture, the Declaration, the
Preferred Securities Guarantee Agreement, the Debentures and the Preferred
Securities do not and will not, whether with or without the giving of notice or
lapse of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(xiii) of the Purchase Agreement)
under or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company, any subsidiary or the Trust pursuant
to any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any
A-3
other agreement or instrument, known to us, to which the Company, any subsidiary
or the Trust is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company, any subsidiary or the Trust is
subject (except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary of the Company or of the Declaration or other
organizational documents of the Trust, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company, any subsidiary, the Trust or any of their respective
properties, assets or operations.
(xviii) Neither the Company nor the Trust is, and upon the issuance and
sale of the Preferred Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus neither will be,
required to be registered under the Investment Company Act of 1940, as amended.
(xix) There is no action, suit, proceeding, inquiry or investigation before
or brought by any court or governmental agency or body, domestic or foreign, now
pending or, to the best knowledge of such counsel, threatened, against or
affecting the Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately disclosed in the
Prospectus or which could reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated in the Purchase Agreement or the performance by the Company of its
obligations thereunder.
(xx) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to be
filed as an exhibit, which is not described or filed as required.
(xxi) The Registration Statement was declared effective under the 1933 Act
on October , 2001; any required filing of the Prospectus pursuant to Rule 424(b)
under the 1933 Act has been made in the manner and within the time period
required by Rule 424(b) and, such counsel has been orally advised by the
Commission that no stop order suspending the effectiveness of the Registration
Statement has been issued by the Commission and, no proceeding for that purpose
is pending or, to such counsel's knowledge, threatened by the Commission.
(xxii) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(xxiii) The Registration Statement, as of its effective date, and the
Prospectus, as of its date, complied as to form in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations, except that in each
case such counsel need not express an opinion as to the financial statements,
schedules and other financial data included therein or excluded therefrom or the
exhibits to the Registration Statement.
Additionally, in giving its opinion, such counsel shall state that nothing has
come to the attention of such counsel that would lead it to believe that the
Registration Statement or any amendment
A-4
thereto, including the Rule 430A Information and Rule 434 Information (if
applicable), (except for financial statements and schedules and other financial
data included or incorporated by reference therein or omitted therefrom and the
Form T-1, as to which such counsel need make no statement), at the time such
Registration Statement or any such amendment became effective, 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 the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom and the Form T-1, as to
which such counsel need make no statement), at the time the Prospectus was
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or includes an untrue statement of a material fact or
omitted or omits 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. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
A-5
Exhibit B
Form of opinion, dated as of Closing Time, of Morris, Nichols, Arsht & Xxxxxxx,
special Delaware counsel for the Trust, substantially to the effect that:
(i) the Trust has been duly formed and is validly existing in good standing
as a business trust under the Delaware Act; all filings required under the laws
of the State of Delaware with respect to the formation and valid existence of
the Trust as a business trust have been made; and the Trust has the business
trust power and authority to conduct its business, as described in the
Prospectus.
(ii) the Amended and Restated Declaration is a valid and binding obligation
of the Company and the Trustees, enforceable against the Company and the
Trustees in accordance with its terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, receivership, liquidation,
fraudulent conveyance, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and remedies, (ii)
general principles of equity (regardless of whether considered and applied in a
proceeding in equity or at law) and (iii) considerations of public policy and
the effect of applicable law relating to fiduciary duties.
(iii) the Preferred Securities have been duly authorized for issuance in
accordance with the Amended and Restated Declaration and, subject to the terms
of the Amended and Restated Declaration and the qualifications set forth below,
when issued, executed, authenticated, delivered and paid for in accordance with
the Amended and Restated Declaration and the Purchase Agreement, will be validly
issued, fully paid and non-assessable undivided beneficial interests in the
assets of the Trust, will not be subject to preemptive or other similar rights
under the Delaware Act or the Amended and Restated Declaration and will entitle
the holders of the Preferred Securities to the benefits of the Amended and
Restated Declaration except to the extent that enforcement of the Amended and
Restated Declaration may be limited by (i) bankruptcy, insolvency, receivership,
liquidation, fraudulent conveyance, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and
remedies, (ii) general principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law) and (iii) considerations of
public policy and the effect of applicable law relating to fiduciary duties; and
the holders of the Preferred Securities will be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware. We
bring to your attention, however, that the holders of Preferred Securities may
be obligated, pursuant to the Amended and Restated Declaration, to make payment
or provide security and indemnity as set forth in the Amended and Restated
Declaration.
(iv) the Common Securities have been duly authorized for issuance in
accordance with the Amended and Restated Declaration and, subject to the
qualifications set forth below, when issued, executed, authenticated, delivered
and paid for in accordance with the Amended and Restated Declaration, will be
validly issued, fully paid and non-assessable undivided beneficial interests in
the assets of the Trust, will not be subject to preemptive or other similar
rights under the Delaware Act or the Amended and Restated Declaration and will
entitle the holder of the Common Securities to the benefits of the Amended and
Restated Declaration
B-1
except to the extent that enforcement of the Amended and Restated Declaration
may be limited by (i) bankruptcy, insolvency, receivership, liquidation,
fraudulent conveyance, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and remedies, (ii)
general principles of equity (regardless of whether considered and applied in a
proceeding in equity or at law) and (iii) considerations of public policy and
the effect of applicable law relating to fiduciary duties; and the holders of
the Common Securities will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We bring to your
attention, however, that the holders of Common Securities may be obligated,
pursuant to the Amended and Restated Declaration, to make payment or provide
security and indemnity as set forth in the Amended and Restated Declaration.
(v) under the Amended and Restated Declaration and the Delaware Act, the
Trust has the requisite business trust power and authority to execute and
deliver the Purchase Agreement, and to perform its obligations under the
Purchase Agreement and to consummate the transactions contemplated thereby.
Under the Amended and Restated Declaration and the Delaware Act, the execution
and delivery by the Trust of the Purchase Agreement, and the performance of its
obligations thereunder, have been duly authorized by all requisite business
trust action on the part of the Trust.
(vi) the statements made in the Prospectus under the caption "Description
of the Preferred Securities" to the extent such statements address matters of
Delaware law are correct statements of such law in all material respects.
B-2
