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EXHIBIT 1
PITTSBURGH HOME CAPITAL TRUST I
(a Delaware business trust)
1,000,000 Preferred Securities
[___]% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Preferred Security)
UNDERWRITING AGREEMENT
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January [___], 1998
Xxxx, Xxxx & Co., Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Pittsburgh Home 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 Business Code, 12
Del. C. Section 3801 et seq.), and Pittsburgh Home Financial Corp., a
Pennsylvania corporation (the "Company"), as depositor of the Trust and as
guarantor (hereafter the Trust and the Company are referred to collectively as
the "Offerors"), hereby confirm their agreement (the "Agreement") with Xxxx
Xxxx & Co., Inc. ("You" or the "Underwriter"), with respect to the issue and
sale by the Trust and the purchase by the Underwriter of 1,000,000 (the
"Initial Securities") of the Trust's _____% Cumulative Trust Preferred
Securities (the "Preferred Securities"). The Trust and the Company also propose
to issue and sell to the Underwriter, at the Underwriter's option, up to an
additional 150,000 Preferred Securities (the "Option Securities") as set forth
herein. The term "Preferred Securities" as used herein, unless indicated
otherwise, shall mean the Initial Securities and the Option Securities.
The Preferred Securities and the Common Securities (as
defined herein) are to be issued pursuant to the terms of an Amended and
Restated Trust Agreement dated as of the Closing Time (as hereinafter defined)
(the "Trust Agreement"), among the Offerors, The Bank of New York ("Trust
Company"), a New York banking corporation, as property trustee ("Property
Trustee"), and
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The Bank of New York (Delaware), as Delaware trustee ("Delaware Trustee"), and
X. Xxxxx Xxxxxx, Xxxxxxx X. Xxxx and Xxxxxxx X. Xxxxx (the "Administrative
Trustees" and, together with the Property Trustee and the Delaware Trustee,
(the "Trustees") and the holders from time to time of undivided interests in
the assets of the Trust. The Preferred Securities will be guaranteed by the
Company, on a subordinated basis and subject to certain limitations, with
respect to distributions and payments upon liquidation, redemption or otherwise
(the "Guarantee") pursuant to the Guarantee Agreement dated as of the Closing
Time (the "Guarantee Agreement"), between the Company and the Trust Company, as
guarantee trustee (the "Guarantee Trustee"). The Company will guarantee the
full payment of any costs, expenses or liabilities of the Trust, other than
obligations of the Trust to pay to the holders of Preferred Securities the
amounts due to such holders, pursuant to the Agreement as to Expenses and
Liabilities dated as of the Closing Time between the Trust and the Company
("Expense Agreement"). The assets of the Trust will consist of [____]% junior
subordinated debentures due [_________], 2028 (the "Junior Subordinated
Debentures") of the Company which will be issued under the Indenture dated as
of the Closing Time (the "Indenture"), between the Company and the Trust
Company, as trustee (the "Indenture Trustee"). Under certain circumstances, the
Junior Subordinated Debentures will be distributable to the holders of
undivided beneficial interests in the assets of the Trust. 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 the Trust's common
securities (the "Common Securities"), and will be used by the Trust to purchase
an equivalent amount of the Junior Subordinated Debentures.
The initial public offering price for the Preferred
Securities, the purchase price to be paid by the Underwriter for the Preferred
Securities, the commission per Preferred Security to be paid by the Company to
the Underwriters and the rate of interest to be paid on the Preferred
Securities shall be agreed upon by the Company and the Underwriter, and such
agreement shall be set forth in a separate written instrument substantially in
the form of Exhibit A hereto (the "Price Determination Agreement"). The Price
Determination Agreement may take the form of an exchange of any standard form
of written telecommunication between the Company and the Underwriter and shall
specify such applicable information as is indicated in Exhibit A hereto. Such
Price Determination Agreement shall be executed no later than 5:30 p.m. on the
first business day following the date hereof. The offering of the Preferred
Securities will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" shall be deemed to
include, the Price Determination Agreement.
The Offerors have prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-1
(File Nos. 333-[_____] and 333-[______]- 01) for the registration of the
Preferred Securities, the Guarantee and the Junior Subordinated Debentures
under the Securities Act of 1933, as amended (the "1933 Act"), including the
related preliminary prospectus or prospectuses, and, if such registration
statement has not become effective, the Company will prepare and file, prior to
the effective date of such registration statement, an
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amendment to such registration statement, including a final prospectus. Each
prospectus used before the time such registration statement becomes effective
is herein called a "preliminary prospectus." Such registration statement,
including the exhibits thereto and the documents incorporated by reference
therein pursuant to Item 12 of Form S-1 under the 1933 Act, at the time it
becomes effective, is herein called the "Registration Statement," and the
prospectus, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-1 under the 1933 Act, included in the Registration
Statement at the time it becomes effective is herein called the "Prospectus"
except that, if any revised prospectus provided to the Underwriter by the
Company for use in connection with the offering of the Preferred Securities
differs from the prospectus included in the Registration Statement at the time
it becomes effective (whether or not such prospectus is required to be filed
pursuant to Rule 424(b)), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first furnished to the Underwriter for
such use.
The Company understands that the Underwriter proposes to make
a public offering of the Preferred Securities (the "Offering") as soon as
possible after the Registration Statement becomes effective. The Underwriter
may assemble and manage a selling group of broker-dealers that are members of
the National Association of Securities Dealers, Inc. ("NASD") to participate in
the solicitation of purchase orders for the Preferred Securities under the form
of a master selected dealer agreement or similar form of dealer agreement,
which the Underwriter has entered into with such broker dealers.
Section 1. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant
to and agree with the Underwriter that:
(i) The Company meets the requirements for use of Form S-1
under the 1933 Act and when the Registration Statement on such form
shall become effective and at the Closing Time referred to below and,
with respect to Option Securities, on the Date of Delivery referred to
below, (A) the Registration Statement and any amendments and
supplements thereto will comply in all material respects with the
requirements of the 1933 Act and the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"); (B)
neither the Registration Statement nor any amendment or supplement
thereto will contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; and (C) neither the Prospectus nor any
amendment or supplement thereto will include an untrue statement of a
material fact or 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, except that none of the
representations and warranties in this Section 1(a)(i)(B) & (C) shall
apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Offerors by
the Underwriter expressly for use in the Registration Statement or the
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Prospectus, [or any information contained in any Form T-1 which is an
exhibit to the Registration Statement.] The statements contained under
the caption "Underwriting" in the Registration Statement or the
Prospectus constitute the only information furnished to the Offerors
in writing by the Underwriter expressly for use in the Registration
Statement or the Prospectus.
(ii) The documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-1 under the 1933 Act, at the
time they were filed with the Commission, complied in all material
respects with the requirements of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together and with the other information in the Prospectus, at the time
the Registration Statement becomes effective and at all times
subsequent thereto up to the Closing Time, will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein not misleading, in each case after excluding any statement
that does not constitute a part of the Registration Statement or the
Prospectus pursuant to Rule 412 of the 1933 Act Regulations.
(iii) Xxxxx & Young LLP, who are reporting upon the audited
financial statements included or incorporated by reference in the
Registration Statement, are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Offerors and, when duly executed by the Underwriter,
will constitute the valid and binding agreement of the Offerors
enforceable against the Offerors in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency, or
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles. The Guarantee Agreement, the Junior Subordinated
Debentures, the Trust Agreement and the Indenture have each been duly
authorized by the Company and when validly executed and delivered by
the Company and, in the case of the Guarantee, by the Guarantee
Trustee, in the case of the Trust Agreement, by the Trustees, and in
the case of the Indenture, by the Indenture Trustee, will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their respective terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, or reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or general equitable principles; the Junior
Subordinated Debentures are entitled to the benefits of the Indenture;
and the Guarantee Agreement, the Junior Subordinated Debentures, the
Trust Agreement and the Indenture conform, in all material respects,
to the descriptions thereof in the Prospectus. The Trust Agreement,
the Guarantee Agreement, and the Indenture have been duly qualified
under the Trust Indenture Act of 1939, amended (the "TIA").
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(v) The consolidated financial statements, audited and
unaudited (including the Notes thereto), included or incorporated by
reference in the Registration Statement present fairly the
consolidated financial position of the Company and its subsidiaries as
of the dates indicated therein and the consolidated statements of
income and cash flows of the Company and its subsidiaries for the
periods specified therein. Such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except
as otherwise stated therein. The financial statement schedules, if
any, included in the Registration Statement present fairly the
information required to be stated therein. The selected financial, pro
forma and statistical data included in the Prospectus are accurate in
all material respects and present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited
consolidated financial statements included or incorporated by
reference in the Registration Statement.
(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of Pennsylvania with
corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus. The Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects
of the Company and its subsidiaries, considered as one enterprise.
(vii) The Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended
("BHCA"); each subsidiary of the Company that conducts business as a
bank is duly authorized to conduct such business in each jurisdiction
in which such business is currently conducted, except to the extent
that the failure to be so authorized would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise; and the deposit accounts of Pittsburgh Home Savings Bank
(the "Bank") are insured by the Savings Association Insurance Fund of
the Federal Deposit Insurance Corporation ("FDIC") up to the maximum
allowable limits thereof. The Offerors have all such power, authority,
authorization, approvals and orders as may be required to enter into
this Agreement, to carry out the provisions and conditions hereof and
to issue and sell the Preferred Securities.
(viii) The Bank is a Pennsylvania chartered stock savings
bank duly organized, validly existing and in good standing under the
laws of the Commonwealth of Pennsylvania with corporate power and
authority under such laws to own, lease and operate its properties and
conduct its business; the Bank is duly qualified to transact business
as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
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necessary, except to the extent that the failure to so qualify or be
in good standing would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise. All of the outstanding shares of capital stock of
the Bank have been duly authorized and validly issued and are fully
paid and non-assessable and are owned by the Company directly, free
and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind.
(ix) Except for the Bank and the Trust, the Company does not
have any "significant subsidiaries" as defined in Rule 1-02 of
Regulation S-X under the 1933 Act.
(x) The Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus under
the caption "Capitalization"; the capital stock of the Company, and
the Subordinated Debentures conform in all material respects to the
description thereof contained or incorporated by reference in the
Prospectus and such description conforms to the rights set forth in
the instruments defining the same.
(xi) The Preferred Securities have been duly and validly
authorized by the Trust for issuance and sale to the Underwriter
pursuant to this Agreement and, when executed and authenticated in
accordance with the terms of the Trust Agreement and delivered by the
Trust to the Underwriter pursuant to this Agreement against payment of
the consideration set forth herein, will be validly issued and fully
paid and non-assessable. The Trust Agreement has been duly authorized
by the Trust and, when executed by the Property Trustee and the
Administrative Trustees of the Trust and delivered by the Trust, will
have been duly executed and delivered by the Trust and will constitute
the valid and legally binding instrument of the Trust, enforceable in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law). The
Preferred Securities conform, in all material respects, to the
statements relating thereto contained in the Prospectus and such
description conforms, in all material respects, to the rights set
forth in the instruments defining the same; the holders of the
Preferred Securities (the "Security holders") 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; and the issuance of the
Preferred Securities is not subject to the preemptive or other similar
rights of any security holder of the Company.
(xii) The Common Securities have been duly and validly
authorized by the Trust and upon delivery by the Trust to the Company
against payment therefor as described in the Prospectus, will be duly
and validly issued and fully paid undivided beneficial interests in
the assets of the Trust and will conform, in all material respects, to
the description thereof contained in the Prospectus and such
description conforms, in all material respects, to the
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rights set forth in the instruments defining the same; the issuance of
the Common Securities is not subject to preemptive or other similar
rights; 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.
(xiii) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the
Delaware Act with the power and authority to own, lease and operate
its properties and conduct its business as described in the
Prospectus, and the Trust has conducted no business to date, and it
will conduct no business in the future that would be inconsistent with
the description of the Trust set forth in the Prospectus; the Trust is
not a party to or bound by any agreement or instrument other than this
Agreement, the Trust Agreement and the agreements and instruments
contemplated by the Trust Agreement or described in the Prospectus;
the Trust has no liabilities or obligations other than those arising
out of the transactions contemplated by this Agreement and the Trust
Agreement and described in the Prospectus; and the Trust is not a
party to or subject to any action, suit or proceeding of any nature.
(xiv) The issuance and sale of the Preferred Securities and
the Common Securities by the Trust, the compliance by the Trust with
all of the provisions of this Agreement, the purchase of the Junior
Subordinated Debentures by the Trust, and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, loan agreement, mortgage, deed of trust or other
agreement or instrument to which the Trust is a party or by which the
Trust is bound or to which any of the property or assets of the Trust
is subject, nor will such action result in any violation by the Trust
of the provisions of the Trust Agreement or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Trust or any of its properties, except in any
case for such conflicts, breaches, defaults or violations that would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects
of the Company and its subsidiaries, considered as one enterprise; and
no consent, approval, authorization, order, license, certificate,
permit, registration or qualification of or with any such court or
other governmental agency or body is required to be obtained by the
Trust for the issue and sale of the Preferred Securities and the
Common Securities by the Trust, the purchase of the Junior
Subordinated Debentures by the Trust or the consummation by the Trust
of the transactions contemplated by this Agreement and the Trust
Agreement, except for such consents, approvals, authorizations,
licenses, certificates, permits, registrations or qualifications as
have already been obtained, or as may be required under the 1933 Act
or the 1933 Act Regulations, 1934 Act or 1934 Act Regulations, state
securities laws or under the TIA.
The issuance by the Company of the Guarantee and the Junior
Subordinated Debentures, the compliance by the Company with all of the
provisions of this Agreement,
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the execution, delivery and performance by the Company of the Trust
Agreement, the Junior Subordinated Debentures, the Guarantee Agreement
and the Indenture, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any material indenture, loan agreement, mortgage, deed
of trust, or other material agreement or instrument to which the
Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, nor will such action
result in any violation by the Company of the provisions of the
Certificate of Incorporation or by-laws of the Company or any statute
or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its properties,
except in any case for such conflicts, breaches, defaults or
violations that would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise; and no consent, approval, authorization, order,
license, certificate, permit, registration or qualification of or with
any such court or other governmental agency or body is required to be
obtained by the Company for the issue of the Guarantee and the Junior
Subordinated Debentures or the consummation by the Company of the
other transactions contemplated by this Agreement, except for such
consents, approvals, authorizations, licenses, certificates, permits,
registrations or qualifications as have already been obtained, or as
may be required under the 1933 Act or the 1933 Act Regulations, 1934
Act or 1934 Act Regulations, state securities laws or under the TIA.
(xv) The Trust is not, and after giving effect to the
offering and sale of the Preferred Securities will not 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 "Investment Company Act").
(xvi) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid and non-assessable, and none of the outstanding shares of capital
stock was issued in violation of the preemptive rights of any
stockholder of the Company.
(xvii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or any subsidiary, other than in the ordinary course of
business, that is material to the Company and its subsidiaries,
considered as one enterprise, or (C) any dividend or distribution of
any kind declared, paid or made by the Company on its capital stock,
excluding the regular quarterly dividend paid on its common stock.
Neither the
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Company nor the Bank has any material liability of any nature,
contingent or otherwise, except as set forth in the Prospectus.
(xviii) Neither the Company nor the Bank is in violation of
any provision of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it is
a party or by which it may be bound or to which any of its properties
may be subject, except for such defaults that would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(xix) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company or the Bank
that is required to be disclosed in the Prospectus or that could
reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise, or that could reasonably be expected to materially
and adversely affect the properties or assets of the Company and its
subsidiaries, considered as one enterprise, or that could reasonably
be expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement; all pending legal or
governmental proceedings to which the Company or the Bank is a party
that are not described in the Prospectus, including ordinary routine
litigation incidental to its business, if decided in a manner adverse
to the Company, would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise.
(xx) There are no material contracts or documents of a
character required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
Statement that are not described and filed as required.
(xxi) The Company and the Bank each has good and marketable
title to all properties and assets described in the Prospectus as
owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or
(B) are neither material in amount nor materially significant in
relation to the business of the Company and its subsidiaries,
considered as one enterprise; 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 the Bank holds properties
described in the Prospectus, are in full force and effect, and neither
the Company nor the Bank has any notice of any material claim that has
been asserted by anyone adverse to the rights of the Company or the
Bank under any of the leases or subleases mentioned above, or
affecting or questioning the rights
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of such corporation to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xxii) Each of the Company and the Bank owns, possesses or
has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted, and
neither the Company nor the Bank has received any notice of any
restriction upon, or any notice of proceedings relating to revocation
or modification of, any such licenses, permits, certificates,
consents, orders, approvals or authorizations.
(xxiii) Except as disclosed in the Prospectus, no labor
problem exists with the employees of the Company or with employees of
the Bank or, to the best knowledge of the Company, is imminent that
could, materially adversely affect the Company and its subsidiaries,
considered as one enterprise, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or the Bank's principal suppliers, contractors or customers that could
reasonably be expected to materially adversely affect the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise.
(xxiv) There are no persons with registration or other
similar rights to have any securities of the Company registered
pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act.
(xxv) Except as disclosed in the Prospectus, the Company and
the Bank own or possess all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets or other
unpatented and/or unpatentable proprietary or confidential information
systems or procedures), trademarks, servicemarks and tradenames
(collectively, "patent and proprietary rights") currently employed by
them in connection with the business now operated by them except where
the failure to so own, possess or acquire such patent and proprietary
rights would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs, assets or
business prospects of the Company and its subsidiaries considered as
one enterprise, and neither the Company nor the Bank has received any
notice nor is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any patent or proprietary
rights, and which infringement or conflict (if the subject of any
unfavorable decision, rule and refinement, singly or in the aggregate)
could reasonably be expected to result in any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxvi) The Company and each subsidiary of the Company have
filed all Federal, state and local income, franchise or other tax
returns required to be filed and have made
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timely payments of all taxes due and payable indicated by such returns
and no material deficiency has been asserted with respect thereto by
any taxing authority.
(xxvii) The Company has filed with NASD all documents and
notices required by NASD of companies that have issued securities that
are traded in the over-the-counter market and quotations for which are
reported by the Nasdaq National Market of the Nasdaq Stock Market,
Inc. ("Nasdaq Stock Market").
(xxviii) Neither the Trust nor the Company or any Subsidiary
has taken or will take, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might reasonably
be expected to constitute, the stabilization or manipulation, under
the Exchange Act or otherwise, of the price of the Preferred
Securities.
(xxix) Neither the Company nor the Bank is or has been (by
virtue of any action, omission to act, contract to which it is a party
or by which it is bound, or any occurrence or state of facts
whatsoever) in violation of any applicable Federal, state, municipal,
or local statutes, laws, ordinances, rules, regulations and/or orders
issued pursuant to foreign, federal, state, municipal, or local
statutes, laws, ordinances, rules, or regulations (including those
relating to any aspect of banking, bank holding companies,
environmental protection, occupational safety and health, and equal
employment practices) heretofore or currently in effect, except such
violation that has been fully cured or satisfied without recourse or
that is not reasonably likely to have a material adverse effect on the
Company or the Bank.
(xxx) The Company and the Bank have no agreement or
understanding with any entity concerning the future acquisition by the
Company or the Bank of a controlling interest in any entity that is
required by the 1933 Act or the 1933 Act Regulations to be disclosed
by the Company that is not disclosed in the Prospectus; the Company
and the Bank have no agreement or understanding with any entity
concerning the future acquisition of a controlling interest in the
Company or the Bank by any entity that is required by the 1933 Act or
the 1933 Act Regulations to be disclosed by the Company that is not
disclosed in the Prospectus.
(b) Any certificate signed by any authorized officer of the
Company or the Bank and delivered to the Underwriter or to counsel for the
Underwriter pursuant to this Agreement shall be deemed a representation and
warranty by the Company to the Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to the Underwriter; Closing.
(a) 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 the Underwriter, and the Underwriter agrees to purchase from
the Trust 1,000,000 Initial Securities at the purchase price and terms set
forth herein and in the Price Determination Agreement.
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In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants an option to the Underwriter to purchase up to
150,000 Option Securities in accordance with the terms set forth herein and in
the Price Determination Agreement. The option hereby granted will expire at
5:00 p.m. on the 30th day after the date the Registration Statement is declared
effective by the Commission (or at 5:00 p.m. on the next business day if such
30th day is not a business day) and may be exercised, on one occasion only,
solely for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Securities upon
notice by you to the Company setting forth the number of Option Securities as
to which the Underwriter is exercising the option and the time, date and place
of payment and delivery for the Option Securities. Such time and date of
delivery (the "Option Closing Date") shall be determined by the Underwriter but
shall not be later than five full business days after the date on which the
notice of the exercise of the option shall have been given, nor in any event
prior to Closing Time, as hereinafter defined, nor earlier than the second
business day after the date on which the notice of the exercise of the option
shall have been given.
(b) Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Elias,
Matz, Xxxxxxx & Xxxxxxx, LLP, or at such other place as shall be agreed upon by
the Company and the Underwriter, at 9:30 a.m. on the third full business day
after the effective date of the Registration Statement, or at such other time
not more than seven full business days thereafter as you and the Company shall
determine (such date and time of payment and delivery being herein called the
"Closing Time"). In addition, in the event that any or all of the Option
Securities are purchased by the Underwriter, payment of the purchase price for,
and delivery of certificates for, such Option Securities shall be made at the
above-mentioned office of Elias, Matz, Xxxxxxx & Xxxxxxx, LLP, or at such other
place as shall be agreed upon by the Company and the Underwriter, on the Option
Closing Date as specified in the notice from the Underwriter to the Company.
Payment for the Initial Securities and the Option Securities, if any, shall be
made to the Company by wire transfer of immediately available funds, against
delivery to the Underwriter for the account of the Underwriter of Preferred
Securities to be purchased by it.
(c) The Initial Securities shall be issued in the form of one
or more fully registered global securities (the "Global Securities") in
book-entry form in such denominations and registered in the name of the nominee
of The Depository Trust Company (the "DTC") or in such names as the Underwriter
may request in writing at least two business days before the Closing Date or
the Option Closing Date, as the case may be. The Global Securities representing
the Initial Securities or the Option Securities to be purchased will be made
available in Washington, D.C. for examination by the Underwriter and counsel to
the Underwriter not later than 10:00 A.M. on the business day prior to the
Closing Time or the Option Closing Date, as the case may be.
Section 3. Certain Covenants of the Offerors. Each of the
Offerors covenants jointly and severally with the Underwriter as follows:
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(a) The Offerors will use their best efforts to cause the
Registration Statement to become effective and will notify the Underwriter
immediately, and confirm the notice in writing, (i) when the Registration
Statement, or any post-effective amendment to the Registration Statement, shall
have 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 of the Commission to amend the Registration
Statement or amend or supplement 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, or of the suspension of the
qualification of the Preferred Securities or capital stock, for offering or
sale in any jurisdiction, or of the institution or threatening of any
proceedings for any of such purposes. The Offerors will use every reasonable
effort to prevent the issuance of any such stop order or of any order
preventing or suspending such use and, if any such order is issued, to obtain
the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any
amendment to the Registration Statement, or any amendment or supplement, if the
Offerors have elected to rely upon Rule 430A, to the Prospectus (including
documents incorporated by reference into such prospectus or to the Prospectus)
of which the Underwriter shall not have previously been advised and have
previously been furnished a copy, or to which the Underwriter or counsel for
the Underwriter shall reasonably object.
(c) The Offerors have furnished or will furnish to you as
many signed and conformed copies of the Registration Statement as originally
filed and of each amendment thereto, whether filed before or after the
Registration Statement becomes effective, copies of all exhibits and documents
filed therewith (including documents incorporated by reference into the
Prospectus pursuant to Item 12 of Form S-1 under the 1933 Act) and signed
copies of all consents and certificates of experts as you may reasonably
request.
(d) The Offerors will deliver or cause to be delivered to the
Underwriter, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as the
Underwriter may reasonably request, and the Offerors hereby consent to the use
of such copies for purposes permitted by the 1933 Act. The Offerors will
deliver or cause to be delivered to the Underwriter, without charge, as soon as
the Registration Statement shall have become effective (or, if the Offerors
have elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested during the period when the Prospectus is required to
be delivered under the 1933 Act, such number of copies of the Prospectus (as
supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with
the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act
Regulations, so as to permit the completion of the distribution of the
Preferred Securities as contemplated in this Agreement and in
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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 exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Underwriter or counsel for the Offerors,
to amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement 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, or if it shall be necessary, in the reasonable
opinion of either 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 will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such untrue statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements.
(f) The Offerors will use their best efforts, in cooperation
with the Underwriter, to qualify the Preferred Securities and the Junior
Subordinated Debentures for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Underwriter may designate in
writing and to maintain such qualifications in effect for a period of not less
than one year from the effective date of the Registration Statement; provided,
however, that the Company shall not 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. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the Preferred
Securities have been qualified as above provided.
(g) The Company will make generally available (within the
meaning of Rule 158) as soon as practible, but not later than the Availability
Date (as defined below) to its security holders, the Underwriter and the
Security holders an earnings statement (which need not be audited) of the
Company and its subsidiary (in form complying with the provisions of Rule 158
of the 1933 Act Regulations) covering a period of at least 12 months beginning
after the effective date of the Registration Statement. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes such effective
date, except that, if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "Availability Date" means the 90th day after the end of
such fourth fiscal quarter.
(h) The Trust shall apply the proceeds from its sale of the
Preferred Securities, combined with the entire proceeds from the issuance by
the Trust to the Company of the Trust's Common Securities, to purchase an
equivalent amount of Junior Subordinated Debentures. The Company and the Bank
will use the net proceeds received by them from the sale of the Junior
Subordinated Debentures in the manner specified in the Prospectus under the
caption "Use of Proceeds."
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(i) The Offerors, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of the
1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the
Company will furnish to the Underwriter, copies of all annual reports,
quarterly reports and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports, Proxy Statements, and
information as shall be furnished by the Company to its stockholders generally.
(k) The Offerors will cause the Preferred Securities to be
listed and will file with the Nasdaq Stock Market all documents and notices
required by the Nasdaq Stock Market of companies that have issued securities
that are traded in the over-the-counter market and quotations for which are
reported by the Nasdaq Stock Market.
(l) The Company shall pay for the legal fees and related
filing fees to your counsel to prepare one or more "blue sky" surveys (each, a
"Blue Sky Survey") for use in connection with the offering of the Preferred
Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey
or surveys shall be delivered to each of the Company and the Underwriter.
(m) If, at the time the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A of the 1933 Act Regulations, then the Offerors will prepare, and file
or transmit for filing with the Commission in accordance with such Rule 430A
and Rule 424(b), copies of an amended Prospectus, or, if required by such Rule
430A, a post-effective amendment to the Registration Statement (including an
amended Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the
issuance of the Preferred Securities, prepare and distribute to each of the
Underwriter and counsel to the Underwriter, copies of all the documents used in
connection with the issuance of the Preferred Securities in the form of a
Closing Bound Volume.
(o) The Offerors will not, prior to the Option Closing Date
or thirty (30) days after the date of this Agreement, whichever occurs first,
incur any material liability or obligation, direct or contingent, or enter into
any material transaction, other than in the ordinary course of business, or any
transaction with a related party which is required to be disclosed in the
Prospectus pursuant to Item 404 of Regulation S-K under the Securities Act,
except as contemplated by the Prospectus.
(p) During a period of ten days from the date of the
Prospectus, neither the Trust nor the Company will, without the prior written
consent of the Underwriter, directly or indirectly, offer, sell, offer to sell,
or otherwise dispose of any Preferred Securities, any other beneficial
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interests in the assets of the Trust, or any preferred securities or other
securities of the Trust or the Company which are substantially similar to the
Preferred Securities, including any guarantee of such securities. The foregoing
sentence shall not apply to any of the Preferred Securities to be sold
hereunder.
Section 4. Payment of Expenses and Advisory Fee.
(a) The Company will pay and bear all costs and expenses
incident to the performance of its and the Trust's obligations under this
Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectuses and the
Prospectus and any amendments or supplements thereto, and the cost of
furnishing copies thereof to the Underwriter, (b) the preparation, printing and
distribution of this Agreement, the Preferred Securities and the Blue Sky
Survey, (c) the issuance and delivery of the Preferred Securities to the
Underwriter, including any transfer taxes payable upon the sale of the
Preferred Securities to the Underwriter, (d) the fees and disbursements of the
Company's counsel and accountants, (e) NASD filing fees, (f) fees and
disbursements of counsel in connection with the Blue Sky Survey, (g) the
qualification of the Preferred Securities under the applicable securities laws
in accordance with Section 3(f) and any filing fee for review of the offering
with the NASD, (h) the legal fees and expenses of the Underwriter's counsel
(such counsel's fees shall not exceed $55,000 (exclusive of out-of-pocket
expenses of counsel) and general out-of-pocket expenses of the Underwriter not
to exceed [$5,000], (i) the fees and expenses of the Indenture Trustee,
including the fees and disbursements of counsel for the Indenture Trustee, in
connection with the Indenture and the Junior Subordinated Debentures; (j) the
fees and expenses of the Property Trustee and Delaware Trustee, including the
fees and disbursements of counsel for the Property Trustee and the Delaware
Trustee, in connection with the Trust Agreement and the Certificate of Trust,
and (k) all other costs incident to the performance of the Offerors'
obligations hereunder.
If (i) the Closing Time does not occur on or before
[__________ __], 1998, (ii) the Company abandons or terminates the Offering, or
(iii) this Agreement is terminated by the Underwriter in accordance with the
provisions of Section 5 or 9(a), the Company shall reimburse the Underwriter
for all its reasonable out-of-pocket expenses, as set forth in this Section 4,
including the reasonable fees and disbursements of counsel for the Underwriter.
Section 5. Conditions of Underwriter's Obligations. The
obligations of the Underwriter to purchase and pay for the Preferred Securities
that it has agreed to purchase pursuant to this Agreement are subject to the
accuracy of the representations and warranties of the Offerors contained herein
or in certificates of the officers or trustees of the Offerors or any
subsidiary delivered pursuant to the provisions hereof, to the execution of the
Price Determination Agreement no later than 5:30 p.m. on the first business day
following the date hereof, or at such later time as you may agree in writing
(in your sole discretion), to the performance by the Offerors of their
obligations hereunder and to the following further conditions:
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(a) The Registration Statement shall have become effective
not later than 5:30 P.M. on the date of this Agreement or, with your consent,
at a later time and date not later, however, than 5:30 P.M. on the first
business day following the date hereof, or at such later time or on such later
date as you may agree to in writing; at the Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending or, to the Underwriter's knowledge or the
knowledge of the Offerors shall be contemplated by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the satisfaction of counsel for the Underwriter. If the
Offerors have elected to rely upon Rule 430A, a prospectus containing the Rule
430A Information 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 in accordance with the requirements of
Rule 430A).
(b) At the Closing Time, you shall have received:
(i) The favorable opinion, dated as of Closing Time, of
Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx, LLP, counsel for the Company, in form
and substance reasonably satisfactory to counsel for the Underwriter,
substantially in the form set forth in Exhibit B.
(ii) The favorable opinion, dated as of Closing Time, of
Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel for the Offerors,
in form and substance satisfactory to counsel for the Underwriter,
substantially in the form set forth in Exhibit C.
(iii) The favorable opinion, dated as of Closing Time, of
Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Indenture Trustee and the
Delaware Trustee, in form and substance satisfactory to counsel for
the Underwriter, substantially in the form set forth in Exhibit D.
(iv) The favorable opinion, dated as of Closing Time, of
Silver, Xxxxxxxx & Xxxx, L.L.P., counsel for the Underwriter, in form
and substance satisfactory to the Underwriter.
In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the federal law of the
United States, upon opinions of other counsel, who shall be counsel
satisfactory to counsel for the Underwriter (the Underwriter agrees and
acknowledges that, Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx, LLP and Xxxxxx, Xxxxxxxx &
Xxxx, L.L.P. will rely on the opinion of Xxxxxxxx, Xxxxxx & Xxxxxx with respect
to matters of Delaware law), in which case the opinion shall state that counsel
believes that you and your counsel are entitled to so rely. 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, the Bank and the Trust and certificates of public officials.
(c) At the Closing Time and again at the Option Closing Date,
(i) the Registration Statement and the Prospectus, as they may then be amended
or supplemented, shall contain all statements that are required to be stated
therein under the 1933 Act and the 1933 Act Regulations
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and in all material respects shall conform to the requirements of the 1933 Act
and the 1933 Act Regulations, the Offerors shall have complied in all material
respects with Rule 430A (if they shall have elected to rely thereon) and
neither the Registration Statement nor the Prospectus, as they may then be
amended or supplemented, shall 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, (ii) there shall not have been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (iii) no action, suit or proceeding
at law or in equity shall be pending or, to the knowledge of the Offerors,
threatened against the Company or any subsidiary or the Trust that would be
required to be set forth in the Prospectus other than as set forth therein and
no proceedings shall be pending or, to the knowledge of the Offerors,
threatened against the Offerors or any subsidiary before or by any federal,
state or other commission, board or administrative agency wherein an
unfavorable decision, ruling or finding could reasonably be expected to
materially adversely affect the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, other than as set forth in the
Prospectus, (iv) each of the Offerors shall have complied, in all material
respects, with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, (v) the other
representations and warranties of the Offerors set forth in Section l(a) shall
be accurate in all material respects as though expressly made at and as of the
Closing Time, and (vi) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose been initiated or to the best knowledge of the Offerors threatened by
the Commission. At the Closing Time, the Underwriter shall have received a
certificate of the Chairman or the President, and the Chief Financial Officer
or Controller, of the Company, dated as of the Closing Time, to such effect.
(d) At the time that this Agreement is executed by the
Company, you shall have received from Ernst & Young LLP a letter or letters,
dated such date, in form and substance satisfactory to you, confirming that
they are independent certified public accountants with respect to the Company
within the meaning of the 1933 Act and the published 1933 Act Regulations, and
stating in effect that:
With respect to the Company:
(i) in their opinion, the consolidated financial statements
as of September 30, 1997 and 1996, and for each of the years in the
three year period ended December 31, 1997 and the related financial
statement schedules, if any, included or incorporated by reference in
the Registration Statement and the Prospectus and covered by their
opinions included therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the
published 1933 Act Regulations;
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(ii) on the basis of a reading of the minutes of all meetings
of the stockholders of the Company and the Bank, of the Board of
Directors of the Company and the Bank and of the Audit and Executive
Committees of the Board of Directors of the Bank since September 30,
1997, inquiries of certain officials of the Company and its
subsidiaries responsible for financial and accounting matters, and
such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe
that:
(A) at a specified date not more than three days
prior to the date of this Agreement, there was any increase
in other borrowings or real estate owned, or any decrease in
allowance for loan losses of the Company and its consolidated
subsidiaries or any decrease in total assets, total deposits
or stockholders' equity of the Company and its consolidated
subsidiaries or any increase in the number of outstanding
shares of capital stock of the Company and its consolidated
subsidiaries, in each case as compared with amounts shown in
the financial statements at September 30, 1997 in the
Registration Statement, except in each case, for changes,
increases or decreases that the Prospectus discloses have
occurred or which are described in such letter; or
(B) for the period from September 30, 1997 to a
specified date not more than three days prior to the date of
this Agreement, there was any decrease in consolidated net
interest income, non-interest income or net income or the
total or fully diluted per share amounts of net income or any
increase in the consolidated provision for loan losses, in
each case as compared with the comparable period in the
preceding year, except in each case, for changes, increases
or decreases that the Prospectus discloses have occurred or
which are described in such letter.
(iii) in addition to the procedures referred to in clause
(ii) above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages,
numerical data and financial information appearing or incorporated by
reference in the Registration Statement (including the Selected
Consolidated Financial Data) (having compared such items with, and
have found such items to be in agreement with, the financial
statements of the Company or general accounting records of the
Company, as applicable, which are subject to the Company's internal
accounting controls or other data and schedules prepared by the
Company from such records).
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(iv) on the basis of a review of schedules provided to them by
the Company, nothing came to their attention that caused them to
believe that the pro forma information, set forth in the Prospectus
under the headings "Capitalization" on page [______] had not been
correctly calculated on the basis described therein.
(e) At the Closing Time, the Underwriter shall have received
from Ernst & Young LLP letters, in form and substance satisfactory to the
Underwriter and dated as of the Closing Time, to the effect that they reaffirm
the statements made in the letter(s) furnished pursuant to Section 5(d), except
that the inquiries specified in Section 5(d) shall be made based upon the
latest available unaudited interim consolidated financial statements and the
specified date referred to shall be a date not more than three days prior to
the Closing Time.
(f) At the Closing Time, counsel for the Underwriter shall
have been furnished with all such documents, certificates and opinions as they
may request for the purpose of enabling them to pass upon the issuance and sale
of the Preferred Securities as contemplated in this Agreement and the matters
referred to in Section 5(c) and in order to evidence the accuracy and
completeness of any of the representations, warranties or statements of the
Offerors, the performance of any of the covenants of the Offerors, or the
fulfillment of any of the conditions herein contained; all proceedings taken by
the Company at or prior to the Closing Time in connection with the
authorization, issuance and sale of the Preferred Securities and the Junior
Subordinated Debentures as contemplated in this Agreement shall be satisfactory
in form and substance to the Underwriter and to counsel for the Underwriter.
(g) Between the date of this Agreement and the Closing Time,
(i) no downgrading shall have occurred in the rating accorded any securities of
the Company or any deposit instruments of the Bank by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act and (ii) no such
organization shall have given any notice of any intended or potential
downgrading or of any surveillance or review, with possible negative
implications, of its rating of any of the Company's securities or any deposit
instruments of the Bank.
(h) The Company shall have paid, or made arrangements
satisfactory to the Underwriter for the payment of, all such expenses as may be
required by Section 4 hereof.
(i) In the event the Underwriter exercises its option
provided in Section 2 hereof to purchase all or any portion of the Option
Securities, the obligations of the Underwriter to purchase the Option
Securities that it has agreed to purchase shall be subject to the accuracy of
the representations and warranties of the Offerors contained herein and of the
statements in any certificates furnished by the Offerors hereunder as of such
Option Closing Date (as if made on such date), to the performance by the
Offerors of their obligations hereunder and to the receipt by you on the Option
Closing Date of:
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(1) A certificate, dated the Option Closing Date, of
the Chairman or the President and the Chief Financial Officer
or Controller of the Company confirming that the certificate
delivered on the Closing Time pursuant to Section 5(c) hereof
remains true as of the Option Closing Date;
(2) The favorable opinion of Xxxxx, Xxxx, Xxxxxxx &
Xxxxxxx, LLP, counsel for the Company, addressed to you and
dated the Option Closing Date, in form satisfactory to
Silver, Xxxxxxxx & Xxxx L.L.P., your counsel, relating to the
Option Securities and otherwise to the same effect as the
opinion required by Section 5(b) hereof;
(3) The favorable opinion of Xxxxxxxx, Xxxxxx &
Finger, special Delaware counsel for the Offerors, addressed
to you and dated the Option Closing Date, in form
satisfactory to Silver, Xxxxxxxx & Xxxx, L.L.P., your
counsel, relating to the Option Securities and otherwise to
the same effect as the opinion required by Section 5(b)
hereof;
(4) The favorable opinion of Xxxxx, Xxxxxx & Xxxxxx,
LLP, counsel for the Indenture Trustee and the Delaware
Trustee, addressed to you and dated the Option Closing Date,
relating to the Option Securities and otherwise to the same
effect as the opinion required by Section 5(e) hereof;
(5) The favorable opinion of Xxxxxx, Xxxxxxxx &
Xxxx, L.L.P., dated the Option Closing Date, relating to the
Option Shares and otherwise to the same effect as the opinion
required by Section 5(b) hereof; and
(6) Letters from Xxxxx & Young LLP addressed to the
Underwriter and dated the Option Closing Date, in form and
substance satisfactory to the Underwriter and substantially
the same in form and substance as the letters furnished to
the Underwriter pursuant to Section 5(e) hereof.
(j) The Preferred Securities, the Guarantee and the Junior
Subordinated Debentures shall have been qualified or registered for sale, or
subject to an available exemption from such qualification or registration,
under the Blue Sky Laws of such jurisdictions as shall have been reasonably
specified by the Underwriter and the offering contemplated by this Agreement
shall have been cleared by the NASD.
If any of the conditions specified in this Section 5 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
this Agreement may be terminated by the Underwriter on notice to the Offerors
at any time at or prior to the Closing Time, and such termination shall be
without liability of any party to any other Party, except as provided in
Section 4. Notwithstanding any such termination, the provisions of Sections 6,
7, 10 and 12 shall remain in effect.
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Section 5A. Conditions of Offeror's Obligations. The obligations of
the Offerors to sell and deliver the portion of the Preferred Securities
required to be delivered as and when specified in this Agreement are subject to
the conditions that the Registration Statement shall have become effective and
that as of the Closing Time (or the Option Closing Date with respect to the
Option Securities) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened, and there shall have been no change in the
Internal Revenue Code of 1986 or the regulations promulgated thereunder that
reasonably would be expected to adversely effect the ability of the Company to
deduct the interest paid by it under the Junior Subordinated Debentures.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Underwriter, officers, directors and employees of the Underwriter, and each
person, if any, who controls the Underwriter within the meaning of Section 15
of the 1933 Act or Section 20(a) of the 1934 Act, against any loss, liability,
claim, damage, and expense whatsoever (which shall include, but not be limited
to amounts incurred in investigating, preparing, or defending against any
litigation, commenced or threatened, or any claim or investigation whatsoever
and any and all amounts paid in settlement of any claim or litigation), as and
when incurred, arising out of, based upon, or in connection with (i) any untrue
statement or alleged untrue statement of a material fact or any omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, contained in (A) any
Preliminary Prospectus, the Registration Statement, or the Prospectus (as from
time to time amended and supplemented), or any amendment or supplement thereto
or in any document incorporated by reference therein or required to be
delivered with any Preliminary Prospectus or the Prospectus or (B) in any
application or other document or communication (collectively called an
"application") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Preferred Securities under the "blue sky" or securities
laws thereof or filed with the Commission or any securities exchange; unless
such statement or omission or alleged statement or omission was made in
reliance upon and in conformity with written information concerning the
Underwriter, the Underwriting Agreement or the compensation of the Underwriter
furnished to the Company by or on behalf of the Underwriter expressly for
inclusion in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or in any application, as
the case may be, or (ii) any breach of any representation, warranty, covenant,
or agreement of the Company contained in the Underwriting Agreement. The
foregoing indemnification with respect to any Preliminary Prospectus shall not
inure to the benefit of the Underwriter (or its directors, officers, employees
and controlling persons within the meaning of the federal securities laws) if
the person asserting any such losses, claims, damages or liabilities against
the Underwriter (or such other persons) purchased Preferred Securities and a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of the Underwriter to such person in connection with the written
confirmation of the sale of such Preferred Securities
22
23
to such person and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability, provided
that the Company delivered the Prospectus, as amended or supplemented, to the
Underwriter on a timely basis to permit such delivery or sending. For purposes
of this section, the term "expense" shall include, but not be limited to,
counsel fees and costs, court costs, out-of-pocket costs and compensation for
the time spent by the Underwriter's directors, officers, employees and counsel
according to his or her normal hourly billing rates. The indemnification
provisions shall also extend to all affiliates of the Underwriter, its
respective directors, officers, employees and controlling persons within the
meaning of the federal securities laws. The foregoing agreement to indemnify
shall be in addition to any liability the Company may otherwise have to the
Underwriter or the persons entitled to the benefit of these indemnification
provisions.
(b) The Underwriter agrees to indemnify and hold harmless the
Offerors, their directors, officers who signed the Registration Statement, and
each person, if any, who controls the Offerors within the meaning of Section 15
of the 1933 Act or Section 20(a) of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) above, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any Preliminary Prospectus
or the Prospectus (or any amendment or supplement thereto) or any application
in reliance upon and in conformity with written information about the
Underwriter, the Underwriting Agreement, or the compensation of the
Underwriter, furnished to either of the Offerors by the Underwriter expressly
for use in the Registration Statement (or any amendment thereto) or such
Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto) or in any application.
(c) An indemnified party shall give prompt notice to the
indemnifying party if any action, suit, proceeding or investigation is
commenced in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve the indemnifying party from
its obligations to indemnify hereunder, except to the extent that the
indemnifying party has been prejudiced in any material respect by such failure.
If it so elects within a reasonable time after receipt of such notice, an
indemnifying party may assume the defense of such action, including the
employment of counsel satisfactory to the indemnified parties and payment of
all expenses of the indemnified party in connection with such action. Such
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless the employment of such
counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such action or the indemnifying party shall not
have promptly employed counsel satisfactory to such indemnified party or
parties or such indemnified party or parties shall have reasonably concluded
that there may be one or more legal defenses available to it or them or to
other indemnified parties which are different from or additional to those
available to one or more of the indemnifying parties, in any of which events
such fees and expenses shall be borne by the indemnifying party and the
indemnifying party shall not have the right to direct the defense of such
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action on behalf of the indemnified party or parties; it being understood,
however, that the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (except in the event of a conflict or potential conflict of interest
between or among indemnified parties and in addition to any local counsel)
separate from their own counsel at any time and for all such indemnified
parties and controlling persons, which firm shall be designated in writing by
the indemnified party. The Company shall be liable for any settlement of any
claim against the Underwriter (or its directors, officers, employees,
affiliates or controlling persons), made with the Company's written consent,
which consent shall not be unreasonably withheld. The Company shall not,
without the written consent of the Underwriter, settle or compromise any claim
against it based upon circumstances giving rise to an indemnification claim
against the Company hereunder unless such settlement or compromise provides
that the Underwriter and the other indemnified parties shall be unconditionally
and irrevocably released from all liability in respect to such claim.
(d) In order to provide for just and equitable contribution,
if a claim for indemnification pursuant to these indemnification provisions is
made but it is found in a final judgment by a court that such indemnification
may not be enforced in such case, even though the express provisions hereof
provide for indemnification in such case, then the Company, on the one hand,
and the Underwriter, on the other hand, shall contribute to the amount paid or
payable by such indemnified persons as a result of such loss, liability, claim,
damage and expense in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriter, on the
other hand, from the underwriting, and also the relative fault of the Company,
on the one hand, and the Underwriter, on the other hand, in connection with the
statements, acts or omissions which resulted in such loss, liability, claim,
damage and expense, and any other relevant equitable considerations shall also
be considered. No person found liable for a fraudulent misrepresentation or
omission shall be entitled to contribution from any person who is not also
found liable for such fraudulent misrepresentation or omission. Notwithstanding
the foregoing, the Underwriter shall not be obligated to contribute any amount
hereunder that exceeds the amount of the underwriting commission paid by the
Company to the Underwriter with respect to the Preferred Securities purchased
by the Underwriter.
(e) The indemnity and contribution agreements contained
herein are in addition to any liability which the Company may otherwise have to
the Underwriter.
(f) Neither termination nor completion of the engagement of
the Underwriter nor any investigation made by or on behalf of the Underwriter
shall affect the indemnification obligations of the Company or the Underwriter
hereunder, which shall remain and continue to be operative and in full force
and effect.
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25
Section 7. Representations, Warranties and Agreements to
Survive Delivery. The representations, warranties, indemnities, agreements and
other statements of the Offerors or its officers or trustees set forth in or
made pursuant to this Agreement will remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Offerors or
the Underwriter or any controlling person and will survive delivery of and
payment for the Preferred Securities.
Section 8. Offering by the Underwriter. The Trust and the
Company are advised by the Underwriter that the Underwriter proposes to make a
public offering of the Preferred Securities, on the terms and conditions set
forth in the Registration Statement from time to time as and when the
Underwriter deems advisable after the Registration Statement becomes effective.
Because the NASD is expected to view the Preferred Securities as interests in a
direct participation program, the offering of the Preferred Securities is being
made in compliance with the applicable provisions of Rule 2810 of the NASD's
Conduct Rules.
Section 9. Termination of Agreement.
(a) You may terminate this Agreement, by notice to the
Offerors, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), 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, or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the Underwriter's reasonable judgment, impracticable to
market the Preferred Securities or enforce contracts for the sale of the
Preferred Securities, or (iii) if trading in any securities of the Company has
been suspended by the Commission or the National Association of Securities
Dealers, Inc., or if trading generally on the New York Stock Exchange or in the
over-the-counter market has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority
with appropriate jurisdiction over such matters, or (iv) if a banking
moratorium has been declared by federal, Pennsylvania or New York authorities,
or (v) if there shall have been such material and substantial change in the
market for securities in general or in political, financial or economic
conditions as in your reasonable judgment makes it inadvisable to proceed with
the Offering, sale and delivery of the Preferred Securities on the terms
contemplated by the Prospectus, (vi) if you reasonably determine (which
determination shall be in good faith) that there has not been satisfactory
disclosure of all relevant financial information relating to the Offerors in
the Offerors' disclosure documents and that the sale of the Preferred
Securities is unreasonable given such disclosures or (vii) if the Price
Determination Agreement has not been executed by all the parties hereto prior
to 5:30 p.m. on the first business day following the date of this Agreement.
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26
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6 and 7 shall remain in effect.
Section 10. Notices. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices shall be addressed as follows:
If to the Underwriter:
Xxxx, Xxxx & Co., Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. xxx Xxxxxx
Senior Vice President
with a copy to:
Xxxxx X. Xxxxxxxxx, P.C.
Silver, Xxxxxxxx & Xxxx, L.L.P.
0000 Xxx Xxxx Xxxxxx, X.X.
Washington, D.C. 20005-3934
If to the Company or the Trust:
Pittsburgh Home Financial Corp.
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: X. Xxxxx Xxxxxx
President and Chief Executive Officer
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx, LLP
000 00xx Xxxxxx, X.X., 0xx Xxxxx
Xxxxxxxxxx, X.X. 00000
Section 11. Parties. This Agreement is made solely for the
benefit of the Underwriter, and the officers, directors and employees of the
Underwriter specified in Section 6, the Trust and the Company and, to the
extent expressed, any person controlling the Trust, the Company or the
26
27
Underwriter, and the directors of the Company, or Administrative Trustees of
the Trust, their respective officers who have signed the Registration
Statement, and their respective executors, Administrative Trustees, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include
any purchaser, as such purchaser, from the Underwriter of the Preferred
Securities.
Section 12. Arbitration. Any claims, controversies, demands,
disputes or differences between or among the parties hereto or any persons
bound hereby arising out of, or by virtue of, or in connection with, or
otherwise relating to this Agreement shall be submitted to and settled by
arbitration conducted in Pennsylvania before one or three arbitrators, each of
whom shall be knowledgeable in the field of securities law and investment
banking. Such arbitration shall otherwise be conducted in accordance with the
rules then obtaining of the American Arbitration Association. The parties
hereto agree to share equally the responsibility for all fees of the
arbitrators, abide by any decision rendered as final and binding, and waive the
right to appeal the decision or otherwise submit the dispute to a court of law
for a jury or non-jury trial. The parties hereto specifically agree that
neither party may appeal or subject the award or decision of any such
arbitrator to appeal or review in any court of law or in equity or in any other
tribunal, arbitration system or otherwise. Judgment upon any award granted by
such arbitrator may be enforced in any court having jurisdiction thereof.
Section 13. Governing Law and Time. This Agreement shall be
governed by the laws of the State of New Jersey. Specified times of the day
refer to Washington, D.C. time.
Section 14. Counterparts. This Agreement may be executed in
one or more counterparts, and when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this instrument will become a binding agreement among the Company, the Trust
and the Underwriter in accordance with its terms.
Very truly yours,
PITTSBURGH HOME CAPITAL TRUST I
By: PITTSBURGH HOME FINANCIAL CORP.
By:
---------------------------------------------
Name: X. Xxxxx Xxxxxx
Title: President and Chief Executive Officer
PITTSBURGH HOME FINANCIAL CORP.
By: ---------------------------------------------
Name: X. Xxxxx Xxxxxx
Title: President and Chief Executive Officer
Confirmed and accepted as of the date first above written:
XXXX, XXXX & CO., INC.
By:
----------------------------
Name: Xxxx X. Xxx Xxxxxx
Title: Senior Vice President
29
EXHIBIT A
PITTSBURGH HOME CAPITAL TRUST I
(a Delaware business trust)
1,000,000 Preferred Securities
[_____]% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Preferred Security)
PRICE DETERMINATION AGREEMENT
January [__], 1998
Xxxx, Xxxx & Co., Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated the date hereof
(the "Underwriting Agreement") among Pittsburgh Home Capital Trust I, a
Delaware business trust, (the "Trust"), Pittsburgh Home Financial Corp. (the
"Company" and together with the Trust, the "Offerors") and the Underwriter
named above (the "Underwriter"). The Underwriting Agreement provides for the
purchase by the Underwriter from the Trust, subject to the terms and conditions
set forth therein, of 1,000,000 shares, subject to a 150,000 adjustment (to
cover over-allotments, if any), of the [_____]% Cumulative Trust Preferred
Securities of the Trust (the "Preferred Securities"). This Agreement is the
Price Determination Agreement referred to in the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Offerors
agree with the Underwriter as follows:
1. The public offering price per Preferred Security shall be
$10.
2. The purchase price for the Preferred Securities to be paid
by the Underwriter shall be $10 per Preferred Security.
3. The commission per Preferred Security to be paid by the
Company to the Underwriter for their commitments hereunder shall be
$[_____] per Preferred Security.
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4. The interest rate on the Preferred Securities shall be
[_____]% per annum.
The Offerors represent and warrant to the Underwriter that the
representations and warranties of the Offerors set forth in Section 1(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
This Agreement shall be governed by the laws of the Commonwealth of
Pennsylvania.
If the foregoing is in accordance with the understanding of the
Underwriter of the agreement between the Underwriter and the Offerors, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriter and the Offerors in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
PITTSBURGH HOME CAPITAL TRUST I
By:
-----------------------------------------
Name: X. Xxxxx Xxxxxx
Title: President and Chief Executive Officer
PITTSBURGH HOME FINANCIAL CORP.
By:
-----------------------------------------
X. Xxxxx Xxxxxx
President and Chief Executive Officer
Confirmed and accepted as of the date first above written:
XXXX, XXXX & CO., INC.
By:
-----------------------------
Xxxx X. Xxx Xxxxxx
Senior Vice President
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EXHIBIT B
1. The Underwriting Agreement has been duly authorized, executed and
delivered by the Trust and the Corporation.
2. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Trust Act.
3. The Trust Agreement has been duly authorized, executed and
delivered by the Corporation and the Administrative Trustees and is a valid and
binding obligation of each of the Corporation and the Administrative Trustees,
enforceable against the Company and the Administrative Trustees in accordance
with its terms except as rights to indemnity and contribution thereunder may be
limited under applicable law, subject to the qualifications that (i) that
enforcement of the Trust Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws (including the laws of fraudulent
conveyance) or judicial decisions affecting the enforcement of creditors'
rights generally and (ii) the enforceability of the Corporation's and the
Administrative Trustees' obligations under the Trust Agreement is subject to
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and to the effect of certain
laws and judicial decisions upon the availability and enforcement of certain
remedies, including the remedies of specific performance and self-help.
4. The Preferred Securities have been duly authorized for issuance by
the Trust; and the Preferred Securities, when executed and authenticated in
accordance with the Trust Agreement and delivered and paid for in accordance
with the Underwriting Agreement, will be validly issued, fully paid and
nonassessable, representing undivided beneficial ownership interests in the
assets of the Trust; and the holders of such 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 Trust Agreement, to
(i) provide indemnity and/or securities in connection with and pay taxes or
governmental charges arising from transfers of Preferred Securities and (ii)
provide security and indemnity in connection with the requests of or directions
to the Property Trustee to exercise its rights and powers under the Trust
Agreement.
5. The Guarantee has been duly authorized, executed and delivered by
the Corporation and constitutes a valid and binding obligation of the
Corporation, enforceable against the Corporation in accordance with its terms,
except as rights to indemnity and contribution thereunder may be limited under
applicable law, subject to the qualifications that (i) enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, or other laws
(including the laws of fraudulent conveyance) or judicial decisions affecting
the enforcement of creditors' rights generally and (ii) the enforceability of
the Corporation's obligations under the Guarantee is subject to general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and to the effect of certain laws and judicial
decisions upon the availability and enforcement of certain remedies, including
the remedies of specific performance and self help.
6. The Indenture has been duly authorized, executed and delivered by
the Corporation and constitutes a valid and binding obligation of the
Corporation, enforceable against the Corporation in accordance with its terms,
except as rights to indemnity and contribution thereunder may be limited under
32
applicable law, subject to the qualifications that (i) enforcement of the
Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium,
or other laws (including the laws of fraudulent conveyance) or judicial
decisions affecting the enforcement of creditors' rights generally and (ii) the
enforceability of the Corporation's obligations under the Indenture is subject
to general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and to the effect of certain
laws and judicial decisions upon the availability and enforcement of certain
remedies, including the remedies of specific performance and self help.
7. The issuance and sale of the Subordinated Debentures has been duly
authorized by the Corporation and, when duly executed, authenticated and issued
in accordance with the Indenture and paid for in accordance with the Debenture
Subscription Agreement, will constitute valid and binding obligations of the
Corporation entitled to the benefits of the Indenture and enforceable against
the Corporation in accordance with their terms, except as rights to indemnity
and contribution thereunder may be limited under applicable law, subject to the
qualifications that (i) enforcement of the Subordinated Debentures may be
limited by bankruptcy, insolvency, reorganization, moratorium, or other laws
(including the laws of fraudulent conveyance) or judicial decisions affecting
the enforcement of creditors' rights generally and (ii) the enforceability of
the Corporation's obligations under the Subordinated Debentures is subject to
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and to the effect of certain
laws and judicial decisions upon the availability and enforcement of certain
remedies, including the remedies of specific performance and self help.
8. At the time the Registration Statement became effective, the
Registration Statement (except for the financial statements, notes to financial
statements, schedules and other financial or statistical information and data
included therein, as to which we express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
During the course of preparation of the Prospectus, we reviewed the
Prospectus and participated in discussions with officers of the Corporation and
the Bank, and their advisors. We did not participate in the preparation of the
Operative Documents, but have, however, reviewed such documents and discussed
the business and affairs of the Corporation with officers and representatives
of the Corporation. Although we have not undertaken to determine independently,
and are not passing upon or assuming any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Prospectus or the
Registration Statement, on the basis of such review and discussions, nothing
has come to our attention that caused us to believe that the Registration
Statement (other than the financial statements, notes to financial statements,
schedules and other financial and statistical information and data included
therein or omitted therefrom, as to which we express no opinion), at the time
it became effective or the date hereof contained or contains 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 (other than the financial statements, notes to financial
statements, schedules and other financial and statistical information and data
included therein or omitted therefrom, as to which we express no opinion), as
of its date or the date hereof contained or contains 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, in light of the
circumstances under which they were made, not misleading.
33
In rendering this opinion letter, we do not express any opinion
concerning any law other than the law of the Commonwealth of Pennsylvania, the
law of the State of Delaware concerning the treatment of Delaware business
trusts, the corporate law of the State of Delaware and the federal law of the
United States of America and we do not express any opinion concerning the
application of the "doing business" laws or the securities laws of any
jurisdiction other than the federal securities laws of the United States. In
addition, we do not express any opinion on any issue not expressly addressed
above.
34
EXHIBIT C
The opinion of counsel, as special Delaware counsel to the Company and the
Trust to be delivered pursuant to Section 5(b)(ii) of the Underwriting
Agreement shall be substantially to the effect that:
1. The Trust has been duly created and is validly existing in good standing as
a business trust under the Delaware Business Trust Act, 12 Del. C. Section 3801
et seq. (the "Delaware Act"), and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence of the Trust
as a business trust have been made.
2. Under the Delaware Act and the Trust Agreement the Trust has the trust power
and authority to own its property and to conduct its business, all as described
in the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of the
Company and the Property Trustee and the Delaware Trustee, and is enforceable
against the Company and the Trustees, in accordance with its terms.
4. Under the Delaware Act and the Trust Agreement, the Trust has the trust
power and authority to execute and deliver, and to perform its obligations
under, the Underwriting Agreement and to issue and perform its obligations
under the Preferred Securities and the Common Securities.
5. Under the Delaware Act and the Trust Agreement, the execution and delivery
by the Trust of the Underwriting Agreement, and the performance by the Trust of
its obligations thereunder, have been duly authorized by all necessary trust
action on the part of the Trust.
6. The Preferred Securities have been duly authorized by the Trust Agreement
and are duly and validly issued and, subject to the qualifications set forth
herein, fully paid and nonassessable undivided beneficial interests in the
assets of the Trust and are entitled to the benefits of the Trust Agreement.
The Holders, as beneficial owners of the Trust, will be entitled to the same
limitations of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware. We note that the Holders may be obligated pursuant to the
Trust Agreement, (i) to provide indemnity and/or security in connection with
and pay taxes or governmental charges arising from transfers or exchanges of
Preferred Securities Certificates and the issuance of replacement Preferred
Securities Certificates, and (ii) to provide security or indemnity in
connection with requests of or directions to the Property Trustee to exercise
its rights and powers under the Trust Agreement.
7. Under the Delaware Act and the Trust Agreement, the issuance of the
Preferred Securities and Common Securities is not subject to preemptive rights.
8. The Common Securities have been duly authorized by the Trust Agreement and
are duly and validly issued undivided beneficial interests in the assets of the
Trust and are entitled to the benefits of the Trust Agreement.
35
9. The issuance and sale by the Trust of the Preferred Securities and Common
Securities, the purchase by the Trust of the Subordinated Debentures, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the compliance by the Trust with its obligations
thereunder will not violate (i) any of the provisions of the Certificate of
Trust or the Trust Agreement or (ii) any applicable Delaware law or
administrative regulation.
10. The Delaware Trustee is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of Delaware.
11. The Delaware Trustee has the corporate power to act as trustee of a
Delaware business trust under the laws of the State of Delaware.
36
EXHIBIT D
The opinion of counsel to Trust Company and Delaware Trustee to be delivered
pursuant to Section 5(b)(iii) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Trust Company is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of New York.
2. The Indenture Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Indenture, and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of the Indenture.
3. The Guarantee Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Guarantee Agreement, and has
taken all necessary corporate action to authorize the execution, delivery and
performance by it of the Guarantee Agreement.
4. The Property Trustee has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
5. Each of the Indenture and the Guarantee Agreement has been duly executed and
delivered by the Indenture Trustee and the Guarantee Trustee, respectively, and
constitutes a legal, valid and binding obligation of the Indenture Trustee and
the Guarantee Trustee, respectively, enforceable against the Indenture Trustee
and the Guarantee Trustee, respectively, in accordance with its respective
terms, except that certain payment obligations may be enforceable solely
against the assets of the Trust and except that such enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent
conveyance and transfer or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether such enforceability, is considered in a
proceeding in equity or at law), and by the affect of applicable public policy
on the enforceability of provisions relating to indemnification or
contribution.
6. The Subordinated Debentures delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
