EXHIBIT 1.1
____________ Capital Securities
LIFE FINANCIAL CAPITAL TRUST
_____% CONVERTIBLE TRUST PREFERRED SECURITIES
(Liquidation Amount $___-___ per Capital Security)
FORM OF
UNDERWRITING AGREEMENT
----------------------
December ___, 1997
XXXXX, XXXXXXXX & XXXXX, INC.
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Life Financial Corporation, a Delaware corporation (the "Company"), Life
-------
Financial Capital Trust (the "Trust" and, together with the Company, the
-----
"Offerors"), a statutory business trust created under the Business Trust Act
---------
(Chapter 38, Title 12 of the Delaware Code, 12 Del. C. Section 3801 et seq.)
(the "Delaware Act") and Life Bank, a federally chartered savings bank (the
------------
"Bank") confirm their agreement with Xxxxx, Xxxxxxxx & Xxxxx, Inc. (the
-----
"Underwriter"), with respect to the sale by the Trust and the purchase by the
------------
Underwriter of Convertible Trust Preferred Securities, of the Trust ("Capital
-------
Securities") and with respect to the grant by the Offerors to the Underwriter of
----------
the option described in Section 2(b) hereof to purchase all or any part of
_______________ additional Capital Securities to cover over-allotments, if any.
The aforesaid ______________ Capital Securities (the "Initial Securities") to be
------------------
purchased by the Underwriter and all or any part of the _____________________
Capital Securities subject to the option described in Section 2(b) hereof (the
"Option Securities") are hereinafter called, collectively, the "Securities."
------------------ ----------
The Securities will be guaranteed by the Company, to the extent set forth
in the Prospectus (as defined herein), with respect to distributions and
payments on liquidation or redemption (the "Guarantee") pursuant to the Capital
---------
Securities Guarantee Agreement dated as of December ___, 1997 (the "Guarantee
---------
Agreement") between the Company and State Street Bank and Trust Company, as
---------
trustee (the "Guarantee Trustee") and entitled to the benefits of certain backup
-----------------
undertakings described in the Prospectus with respect to the Company's agreement
pursuant to the Indenture (as defined herein) to pay all expenses relating to
the administration of the Trust. Each Security will be convertible, in
accordance with the terms of the Securities and the Indenture, at the option of
the holder thereof into a Like Amount of Junior Subordinated Debentures (as
defined herein), which upon such conversion shall be automatically converted
into shares of common stock, par value $.01 per share, of the Company (the
"Common Stock").
-------------
The entire proceeds from the sale of the Securities will be combined with
the entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities"), and will be invested by the Trust to
-----------------
purchase $__________________ aggregate principal amount (plus up to an
additional $_____________________ aggregate principal amount if the
Underwriter's over-allotment option is exercised) of____% Junior Convertible
Subordinated Debentures (the "Junior Subordinated Debentures") to be issued by
------------------------------
the Company. The Common Securities will be guaranteed by the Company, to the
extent set forth in the Prospectus, with respect to distributions and payments
on liquidation or redemption (the "Common Guarantee" and, together with the
----------------
Guarantee, the "Guarantees") pursuant
----------
to the Common Guarantee Agreement dated as of December ___, 1997 executed by
the Company (the "Common Guarantee Agreement" and, together with the
--------------------------
Guarantee Agreement, the "Guarantee Agreements"). The Securities and the
--------------------
Common Securities will be issued pursuant to the Amended and Restated
Declaration of Trust dated as of December ___, 1997 (the "Declaration")
-----------
among the Company, as Sponsor, State Street Bank and Trust Company, as Property
Trustee (the "Property Trustee"), Delaware Trust Capital Management Inc., as
----------------
Delaware Trustee (the "Delaware Trustee," and collectively with the Property
----------------
Trustee, the "Issuer Trustees"), the Administrators named therein (the
---------------
"Administrators") and the holders from time to time of the Trust Securities.
---------------
The Convertible Debentures will be issued pursuant to an Indenture dated as of
December ___, 1997 (the "Indenture") between the Company and State Street Bank
---------
and Trust Company, as trustee (the "Debenture Trustee").
-----------------
Prior to the purchase and public offering of the Securities by the
Underwriter and the Company shall enter into an agreement substantially in the
form of Exhibit A hereto (the "Pricing Agreement"). The Pricing 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. The offering of the Securities
will be governed by this Agreement, as supplemented by the Pricing Agreement.
From and after the date of the execution and delivery of the Pricing Agreement,
this Agreement shall be deemed to incorporate the Pricing Agreement.
The Company is a savings and loan holding company under the provisions of
the Savings and Loan Holding Company Act, as amended, whose sole subsidiaries
are the Trust, the Bank and Life Investment Holdings, a Delaware corporation
("Life Holdings," and together with the Trust and the Bank, the "Subsidiaries").
------------- ------------
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-______) and a
-----------
related preliminary prospectus for the registration of (i) the Securities; (ii)
the Guarantee, (iii) the Junior Subordinated Debentures and (iv) the Common
Stock issuable upon conversion of the Junior Subordinated Debentures, (the
securities set forth in the foregoing clauses (i) through (iv) inclusive,
collectively, the "Registered Securities") under the Securities Act of 1933 (the
---------------------
"1933 Act"), has filed such amendments thereto, if any, and such amended
--------
preliminary prospectuses as may have been required to the date hereof, and will
file such additional amendments thereto and such amended prospectuses as may
hereafter be required. Such registration statement (as amended, if applicable)
and the prospectus constituting a part thereof (including in each case the
information, if any, deemed to be part thereof pursuant to Rule 430A(b) of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
--------
Regulations")), as from time to time amended or supplemented pursuant to the
-----------
1933 Act or otherwise, are hereinafter referred to as the "Registration
------------
Statement" and the "Prospectus," respectively, except that if any revised
--------- ----------
prospectus shall be provided to the Underwriter by the Company for use in
connection with the offering of the Securities which differs from the Prospectus
on file at the Commission at the time the Registration Statement becomes
effective (whether or not such revised prospectus is required to be filed by the
Company pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Underwriter for such use.
The Offerors understand that the Underwriter propose to make a public
offering of the Securities as soon as the Underwriter deems advisable after the
Registration Statement becomes effective the Pricing Agreement has been executed
and delivered and the Declaration, the Indenture and the Guarantee Agreement
have been qualified under the Trust Indenture Act of 1939, as amended (the "1939
----
Act").
---
SECTION 1. Representations and Warranties.
------------------------------
(a) The Offerors and the Bank jointly and severally represent and warrant
to the Underwriter as of the date hereof, as of the date of the Pricing
Agreement (such latter date being hereinafter referred to as the "Representation
--------------
Date") and as of the Closing Time referred to in Section 2(a) hereof, and agree
----
with the Underwriter, as follows:
2
(i) The Registration Statement has been declared effective by the
Commission and no stop order has been issued suspending the effectiveness
of the Registration Statement, nor, to the best of their knowledge, has a
stop order been threatened. The Registration Statement, and any post-
effective amendments thereto became or will become effective and at the
Representation Date, the Registration Statement complied and will comply in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations (including, without limitation, requirements regarding
agreements which must be described in and filed as exhibits to such
registration statements) and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Prospectus, at the Representation Date (unless the term
"Prospectus" refers to a prospectus which has been provided to the
-----------
Underwriter by the Offerors for use in connection with the offering of the
Securities which differs from the Prospectus on file at the Commission at
the time the Registration Statement first becomes effective, in which case
at the time it is first provided to the Underwriter for such use) and at
Closing Time, 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, in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
-------- -------
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Underwriter expressly for use in the Registration Statement or Prospectus.
(ii) The accountants who certified the financial statements included
in the Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iii) The financial statements included in the Registration Statement
and the Prospectus, together with the related notes, present fairly the
financial position of the Company and the Subsidiaries at the dates
indicated and the statement of income, stockholders' equity and cash flows
of the Company and the Subsidiaries for the periods specified; except as
otherwise stated in the Registration Statement, said financial statements
have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
----
involved. The selected financial data and the summary financial
information included in the Prospectus have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement.
(iv) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and the Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (B) there have
been no transactions entered into by the Company or the Subsidiaries, other
than those in the ordinary course of business, which are material with
respect to the Company and the Subsidiaries considered as one enterprise,
and (C) there has been no dividend or distribution of any kind declared,
paid or made by the Company or the Subsidiaries on any class of their
respective capital stock.
3
(v) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware and
has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter
into and perform its obligations under this Agreement, the Pricing
Agreement, the Indenture, the Junior Subordinated Debentures, the Guarantee
Agreements and the Declaration, and to purchase, own and hold the Common
Securities issued by the Trust; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in California and
in each other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business; the authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under the caption
"Capitalization"; the shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of such stock were issued in
violation of the preemptive or other similar rights of any securityholder
of the Company or the Subsidiaries arising by operation of law, under the
certificate of incorporation (or charter or Declaration, as the case may
be) or by-laws of the Company or the Subsidiaries or under any agreement to
which the Company or any of the Subsidiaries is a party; and, the
Registered Securities, the Common Securities, the Common Guarantee, the
Indenture, the Guarantee Agreements, the Company's charter and by-laws and
the Declaration conform as of the Representation Date and will conform to
all statements relating thereto contained in the Registration Statement and
the Prospectus.
(vi) The Bank has been duly organized and is validly existing as a
savings bank under the federal laws of the United States, and Life Holdings
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware; each of these
Subsidiaries has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; Life Holdings is duly qualified as a foreign corporation to
transact business and is in good standing in California and in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and the
Subsidiaries considered as one enterprise; the Bank, as a federal savings
bank, is not required to qualify as a foreign corporation or otherwise
under state law; all of the issued and outstanding capital stock of the
Subsidiaries has been duly authorized and validly issued, is fully paid and
non-assessable and is directly owned by the Company, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of the Subsidiaries was
issued in violation of the preemptive or similar rights of any stockholder
of such corporation arising by operation of law, under the charter or by-
laws of any such subsidiary or under any agreement to which the Company or
any of the Subsidiaries is a party. The only direct or indirect
subsidiaries of the Company are the Trust, the Bank and Life Holdings.
There are no subsidiaries of the Trust, the Bank or Life Holdings. Except
for the shares of capital stock of the Subsidiaries owned by the Company,
neither the Company nor any of the Subsidiaries owns any shares of stock or
any other equity securities of any corporation or has any equity interest
in any firm, partnership, association or other entity.
(vii) The Trust has been duly created and is validly existing and in
good standing as a business trust under the Delaware Act; the Trust has the
power and authority to own property and to conduct its business as
described in the Registration Statement and the Prospectus and to enter
into and perform its obligations under this Agreement, the Securities, the
Common Securities and the Declaration and to comply with its obligations
hereunder and thereunder; the Trust is duly qualified to transact business
and is in good standing in each jurisdiction in which such qualification is
necessary, except to the extent that the failure to so qualify would not
have a material adverse effect on the Trust; the Trust is not a party to or
otherwise bound by any agreement or instrument other than those described
in the Registration Statement; the Trust is and will be classified for
United States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation, and the Junior Subordinated
Debentures will be treated as indebtedness of the Company for United States
federal income tax purposes; and the Trust is and will be treated as a
consolidated subsidiary of the Company pursuant to generally accepted
accounting principles.
4
(viii) The Declaration has been duly authorized by the Company and,
at the Closing Time, the Declaration will have been duly executed and
delivered by the Company and will be a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including without limitation all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equity principles (regardless of
whether enforcement is considered in a proceeding at law or in equity),
including concepts of commercial reasonableness; and at the Closing Time,
the Declaration will have been duly qualified under the 1939 Act.
(ix) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company
against payment of the consideration therefor as described in the
Registration Statement, will be validly issued and fully paid and non-
assessable undivided beneficial interests in the assets of the Trust and
will be entitled to the benefits of the Declaration; the issuance of the
Common Securities is not subject to any preemptive or other similar rights;
and at the Closing Time, all of the issued and outstanding Common
Securities of the Trust will be owned by the Company, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(x) The Securities have been duly authorized by the Declaration and,
when authenticated in the manner provided for in the Declaration and issued
and delivered by the Trust against payment of the consideration therefor
set forth in this Agreement, will be validly issued and fully paid and non-
assessable undivided beneficial interests in the assets of the Trust and
will be entitled to the benefits of the Declaration; the issuance of the
Securities is not subject to any preemptive or other similar rights; and
holders of Securities will be entitled to the same limitation of personal
liability under Delaware law as extended to stockholders of private
corporations for profit.
(xi) Each of the Guarantee Agreements has been duly authorized by the
Company and, at the Closing Time, each of the Guarantee Agreements will
have been duly executed and delivered by the Company and will constitute a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including without limitation all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equity principles (regardless of whether enforcement is considered
in a proceeding at law or in equity), including concepts of commercial
reasonableness; and at the Closing Time, the Guarantee Agreement will
have been duly qualified under the 0000 Xxx.
(xii) The Indenture has been duly authorized by the Company and, at
the Closing Time, the Indenture will have been duly executed and delivered
by the Company and will be a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including
without limitation all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equity principles (regardless of
whether enforcement is considered in a proceeding at law or in equity),
including concepts of commercial reasonableness; and at the Closing Time,
the Indenture will have been duly qualified under the 1939 Act.
(xiii) The Junior Subordinated Debentures have been duly authorized
by the Company; at the Closing Time, the Junior Subordinated Debentures
will have been duly executed by the Company and, when issued and delivered
in the manner provided for in the Indenture and sold and paid for as
described in the Prospectus, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including without limitation all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equity principles
(regardless of whether
5
enforcement is considered in a proceeding at law or in equity), including
concepts of commercial reasonableness, and will be in the form contemplated
by, and entitled to the benefits of, the Indenture; and the issuance of the
Junior Subordinated Debentures is not and will not be subject to any
preemptive or other similar rights.
(xiv) The shares of Common Stock issuable by the Company upon
conversion of the Junior Subordinated Debentures and the Securities have
been duly and validly authorized and reserved for issuance upon such
conversion by the Company and such shares, when issued upon such
conversion, will be validly issued, fully paid and non-assessable, and the
issuance of such shares upon such conversion is not and will not be subject
to any preemptive or other similar rights.
(xv) The deposits of the Bank are insured by the Federal Deposit
Insurance Corporation ("FDIC") up to legally applicable limits, and no
----
proceedings for the termination or revocation of such insurance are pending
or, to the best knowledge of the Company and the Bank, threatened.
(xvi) The Securities have been duly authorized for issuance and sale
to the Underwriter pursuant to this Agreement and, when issued and
delivered by the Trust pursuant to this Agreement against payment of the
consideration set forth in the Pricing Agreement, will be validly issued
and fully paid and non-assessable; the Securities conform to all statements
relating thereto contained in the Prospectus; no holder of the Securities
will be subject to personal liability by reason of being such a holder; and
the issuance of the Securities is not subject to preemptive or other
similar rights of any securityholder of the Company arising by operation of
law, under the charter, Declaration and by-laws of the Company or the
Subsidiaries or under any agreement to which the Company or any of the
Subsidiaries is a party.
(xvii) Neither the Company nor any of the Subsidiaries is in
violation of its certificate of incorporation, its charter or Declaration,
as the case may be, or in default to an extent which singly or in the
aggregate, would materially and adversely affect the condition, financial
or otherwise, or the earnings, business affairs or business prospects of
the Company and the Subsidiaries considered as one enterprise in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or either of the Subsidiaries is a party or by which or
any of them may be bound, or to which any of the property or assets of the
Company or either of the Subsidiaries is subject, including without
limitation: (A) that certain Master Loan and Security Agreement dated April
30, 1997 between the Bank and Xxxxxx Xxxxxxx Mortgage Capital, Inc., and
any other documents governing such line of credit (collectively the
"Line of Credit Documents"); (B) the Amended Agreement and Plan of
------------------------
Reorganization, dated as of January 16, 1997 between the Company and the
Bank, and any other documents governing the Reorganization (all such
agreements and other documents, collectively, the "Reorganization
--------------
Documents"); and (C) all purchase agreements, servicing agreements and any
---------
other documents governing loan sales or securitizations by the Company or
the Bank (all such agreements and other documents, collectively, the
"Securitization Documents").
-------------------------
(xviii) The execution, delivery and performance of this Agreement the
Pricing Agreement, the Indenture, the Junior Subordinated Debentures, the
Guarantee Agreements, the Declaration, the Certificate of Trust, the
Securities and the Common Securities (collectively, the "Operative
---------
Instruments"), the consummation of the transactions contemplated herein and
-----------
therein (including, without limitation, the issuance and sale of the
Securities, Common Securities, Junior Subordinated Debentures and
Guarantees and the issuance of shares of Common Stock upon conversion of
the Securities and the Junior Subordinated Debentures) and compliance by
the Company with its obligations hereunder and thereunder, have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or
6
encumbrance upon any property or assets of the Company, the Trust or the
Bank pursuant to, the Line of Credit Documents, the Reorganization
Documents, the Securitization Documents, or any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or either of the Subsidiaries
is a party or by which it or either of them may be bound, or to which any
of the property or assets of the Company or any of the Subsidiaries is
subject and which breach or default singly or in the aggregate, would
materially and adversely affect the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and the
Subsidiaries considered as one enterprise; nor will such action result in
any violation of the provisions of certificate of incorporation,
Declaration or charter, as the case may be, or by-laws of the Company or
any of the Subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or the Subsidiaries or any of their assets or properties and which
violation, singly or in the aggregate, would materially and adversely
affect the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and the Subsidiaries
considered as one enterprise. As used herein, a "Repayment Event" means
---------------
any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any of the
Subsidiaries.
(xix) Neither the Company nor any of the Subsidiaries is in violation
of any directive from the FDIC, the OTS, or any other governmental
authority, and the Company and the Subsidiaries are in compliance with all
federal and state laws and regulations that regulate or relate to its
business, including, without limitation, the Financial Institutions
Recovery, Reform and Enforcement Act of 1989 ("FIRREA"), the Federal
------
Deposit Insurance Act (the "FDIA"), the National Housing Act (the "NHA"),
---- ---
the Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA") and all other applicable laws and regulations where the failure
------
to comply would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and the Subsidiaries considered as one enterprise. Neither the
Company nor any of the Subsidiaries is subject to a cease and desist order,
a formal or written agreement or a memorandum of understanding with any
federal or state agency.
(xx) All material transactions between the Company or the
Subsidiaries and their respective officers and directors and their
affiliates required to be disclosed in the Prospectus have been accurately
disclosed in the Prospectus.
(xxi) Except as disclosed in the Prospectus or Registration
Statement, the Company has not: (A) issued any securities within the last
18 months; or (B) entered into a financial or management consulting
agreement, except pursuant to (1) this Agreement, (2) the Underwriting
Agreement dated June 24, 1997 with the Underwriter, and (3) the Placement
Agency Agreements with Friedman, Billings, Xxxxxx & Co., Inc. dated July
23, 1996 and March 14, 1997.
(xxii) The Company has not relied upon you or your legal counsel for
any legal, tax or accounting advice in connection the offering and sale of
the Securities.
(xxiii) To the best of their knowledge, neither the Offerors and the
Bank nor any of the Subsidiaries has violated any Federal, state or local
law relating to discrimination in the hiring, promotion or pay of
employees, any applicable wage or hour laws, or any provisions of the
Employee Retirement Income Security Act of 1974 ("ERISA"), or the rules and
-----
regulations promulgated thereunder. There is (i) no significant unfair
labor practice complaint pending against the Company or any of the
Subsidiaries or, to the best knowledge of the Offerors and the Bank,
threatened against any of them, before the National Labor Relations Board
or any state or local labor relations board, and no significant grievance
or significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company or any of
the Subsidiaries and, to the best knowledge of the Offerors and the Bank,
threatened against any of them, (ii) no
7
labor dispute in which the Company or either of the Subsidiaries is
involved nor, to the best knowledge of the Offerors and the Bank, is any
labor dispute imminent, other than routine disciplinary and grievance
matters; the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its principal customers or vendors
and (iii) no union representation question existing with respect to the
employees of the Company or either of the Subsidiaries and, to the best
knowledge of the Company and the Bank, no union organizing activities are
taking place.
(xxiv) There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign,
now pending, or, to the best knowledge of the Offerors and the Bank,
threatened, against or affecting the Company or any of the Subsidiaries
which might reasonably be expected to result in any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and the Subsidiaries
considered as one enterprise, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of this Agreement or the performance by the Company and the
Trust of their obligations hereunder which is required to be described in
the Registration Statement and is not accurately described in the
Registration Statement; the aggregate of all pending legal or governmental
proceedings to which the Company or any of the Subsidiaries is a party or
of which any of their respective property or assets is the subject which
are not described in the Registration Statement are not reasonably be
expected to result in a material adverse change in the condition, financial
or otherwise, or the earnings, business affairs or business prospects of
the Company and the Subsidiaries considered as one enterprise.
(xxv) Neither the Company nor any of the Subsidiaries has directly or
indirectly: (A) taken any action designed to cause or to result in, or
that has constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities; or (B) since
the filing of the Registration Statement: (1) sold, bid for, purchased, or
paid anyone any compensation for soliciting purchases of, the Securities,
or (2) paid or agreed to pay to any person any compensation for soliciting
another to purchase any other securities of the Company or the Trust.
(xxvi) Neither the Company nor any of the Subsidiaries or, to the
best knowledge of the Offerors and the Bank, any employees of the Company
or their Subsidiaries, have at any time during the last five (5) years:
(A) made any unlawful contribution to any candidate for foreign office or
failed to disclose fully any contribution in violation of law; or (B) made
any payment to any federal or state governmental officer or official, or
other person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof.
(xxvii) To the best knowledge of the Offerors and the Bank, no event
or series of events has occurred that would result in any of the securities
issued in the securitizations described in the Registration Statement and
the Prospectus using loans originated by the Bank being downgraded or
placed on a watch list with negative implications by any rating agency or
similar organization, or that would impair the Company's or any
Subsidiary's ability to consummate future loan sales or to securitize loans
upon economic terms consistent with past loan sales and securitizations or
otherwise cause the Company and any of the Subsidiaries to suffer any
material loss with respect to any past loan sale or securitization.
(xxviii) The Securities and the Common Stock into which the
Securities are ultimately convertible (after the Securities are first
converted into Junior Subordinated Debentures) have been approved for
quotation on the Nasdaq National Market, subject to official notice of
issuance, and the Underwriter has been provided a copy of such approval.
(xxix) To the best knowledge of the Offerors and the Bank, the
Company and the Subsidiaries are in material compliance with all rules,
laws and regulations relating to the use, treatment, storage and disposal
of toxic substances and protection of health or the environment
("Environmental Laws") which are applicable
--------------------
8
to their respective businesses; the Company and the Subsidiaries have
received no notice from any governmental authority or third party of an
asserted claim under Environmental Laws, which claim is required to be
disclosed in the Registration Statement and the Prospectus; the Company and
the Subsidiaries have no reason to believe that any of them will be
required to make future material capital expenditures to comply with
Environmental Laws; and to the best knowledge of the Offerors and the Bank,
no property which is owned, leased or occupied by the Company or the
Subsidiaries has been designated as a Superfund site pursuant to the
Comprehensive Response, Compensation, and Liability Act of 1980, as amended
(42 U.S.C. (S) 9601, et seq.), or otherwise designated as a contaminated
-- ----
site under applicable state or local law.
(xxx) No filing with, or authorization, approval, consent, license
order, registration, qualification or decree of, any court or governmental
authority or agency, including without limitation the OTS and the FDIC is
necessary or required for the performance by the Company, the Trust or the
Bank of their obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder, except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws.
(xxxi) The Company and the Subsidiaries possess such certificates,
authorities, permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
---------------------
appropriate federal, state, local or foreign regulatory agencies or bodies,
including the OTC, FDIC and Federal Reserve Board, necessary to conduct the
business now operated by them and described in the Registration Statement
and Prospectus; the Company and the Subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and the Subsidiaries
considered as one enterprise; all of the Governmental Licenses are valid
and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a material adverse effect on the
condition, financial or otherwise, earnings, business affairs or business
prospects of the Company and the Subsidiaries considered as one enterprise;
and neither the Company nor either of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and the Subsidiaries
considered as one enterprise.
(xxxii) The Company and the Subsidiaries are in compliance in all
material respects with all applicable laws, statutes, ordinances, rules or
regulations, except where the violation of which, individually or in the
aggregate, would not be reasonably expected to have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and the Subsidiaries
considered as one enterprise.
(xxxiii) The Company and the Subsidiaries have good and marketable
title to all properties (real and personal) owned by the Company and the
Subsidiaries, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as
(a) are described in the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company or the Subsidiaries; and all properties held under lease by the
Company or the Subsidiaries are held under valid, subsisting and
enforceable leases.
(xxxiv) Except as disclosed in the Prospectus, there are no
outstanding options, warrants, or other rights calling for the issuance of,
and no commitments, plans or arrangements to issue, any shares of capital
stock of the Company or the Subsidiaries or any security convertible into
or exchangeable for capital stock of the Company or the Subsidiaries.
9
(xxxv) Neither the Company nor any of the Subsidiaries is, nor upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
under the caption "Use of Proceeds" will be, an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
--------
(xxxvi) The Company and the Subsidiaries have filed all federal,
state, local and foreign tax returns that are required to be filed or have
duly requested extensions thereof and have paid all taxes required to be
paid by any of them and any related assessments, fines or penalties, except
for any such tax, assessment, fine or penalty that is being contested in
good faith and by appropriate proceedings; and adequate charges, accruals
and reserves have been provided for in the financial statements referred to
in Section 1(a)(iii) above in respect of all federal, state, local and
foreign taxes for all periods as to which the tax liability of the Company
or the Subsidiaries has not been finally determined or remains open to
examination by applicable taxing authorities.
(xxxvii) The Company and the Subsidiaries carry or are entitled to
the benefits of insurance in such amounts and covering such risks as is
generally maintained by companies of established repute engaged in the same
or similar business, and all such insurance is in full force and effect.
(xxxviii) The Company and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
and specific authorizations; (ii) transactions are recorded as necessary to
permit preparations of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorizations;
and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxxix) Other than as contemplated by this Agreement, there is no
broker, finder or other party that is entitled to receive from the Company
or the Subsidiaries any brokerage or finder's fee or any other fee,
commission or payment as a result of the offer and sale of the Securities.
(xl) The Company has not distributed and, prior to the later to occur
of (i) the Closing Time and (ii) completion of the distribution of the
Securities, will not distribute any prospectus (as such term is defined in
the 1933 Act and the 1933 Act Regulations) in connection with the offering
and sale of the Securities other than the Registration Statement, any
preliminary prospectus, the Prospectus or other materials, if any,
permitted by the 1933 Act or by the 1933 Act Regulations and approved by
the Underwriter.
(xli) The Trust will be classified for United States federal income
tax purposes as a grantor trust and not as an association taxable as a
corporation; accordingly, for United States federal income tax purposes,
each holder of Securities generally will be considered the owner of an
undivided interest in the Junior Subordinated Debentures.
(xlii) The Junior Subordinated Debentures will be classified for
United States federal income tax purposes as indebtedness of the Company.
(xliii) The Offerors have no present intention to, or knowledge of
any facts which would likely result in, the exercise of an Extension Period
(as defined in the Indenture), nor do the Offerors have any present intent
to, or knowledge of facts which would likely result in a, trigger of a
Special Event (as defined in the Indenture).
(xliv) As of the date hereof, the amount of Senior Indebtedness (as
defined in the Indenture) is $_________.
10
(b) Any certificate signed by any officer of the Company or any Trustee of
the Trust and delivered to the Underwriter or to counsel for the Underwriter
shall be deemed a representation and warranty by the Company or the Trust to the
Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to 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, at the
price per Security set forth in the Pricing Agreement, the Initial Securities.
(i) If the Trust has elected not to rely upon Rule 430A under the 1933
Act Regulations, the public offering price and the purchase price per share
to be paid by the Underwriter for the Securities have each been determined
and set forth in the Pricing Agreement, dated the date hereof, and an
amendment to the Registration Statement and the Prospectus will be filed
before the Registration Statement becomes effective.
(ii) If the Trust has elected to rely upon Rule 430A under the 1933
Act Regulations, the public offering price and the purchase price per share
to be paid by the Underwriter for the Securities shall be determined by
agreement between the Underwriter and the Offerors and, when so determined,
shall be set forth in the Pricing Agreement. In the event that such prices
have not been agreed upon and the Pricing Agreement has not been executed
and delivered by all parties thereto by the close of business on the fourth
business day following the date of this Agreement, this Agreement shall
terminate forthwith, without liability of any party to any other party,
unless otherwise agreed to by the Offerors and the Underwriter, except that
Sections 6 and 7 shall remain in effect.
(b) In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Offerors
hereby grants an option to the Underwriter to purchase up to an additional
_______ Securities at the price per Security set forth in the Pricing
Agreement. The option hereby granted will expire 30 days after (i) the date the
Registration Statement becomes effective, if the Offerors has elected not to
rely on Rule 430A under the 1933 Act Regulations, or (ii) the Underwriter Date,
if the Offerors has elected to rely on Rule 430A under the 1933 Act Regulations,
and may be exercised in whole or in part from time to time only 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 the Underwriter to the
Offerors setting forth the number of Option Securities as to which the several
Underwriter are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery (a
"Date of Delivery") shall be determined by the Underwriter, but shall not be
-----------------
later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time or prior to the date two business days after
receipt by the Offerors of notice of the exercise, as hereinafter defined,
unless otherwise agreed by the Underwriter and the Offerors. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriter, acting severally and not jointly, will purchase that proportion of
the total number of Option Securities then being purchased which the number of
Initial Securities set forth in Schedule A opposite the name of such Underwriter
bears to the total number of Initial Securities (except as otherwise provided in
the Pricing Agreement), subject in each case to such adjustments as the
Underwriter in their discretion shall make to eliminate any sales or purchases
of fractional shares.
(c) Payment of the purchase price for, and delivery of a certificate for,
the Initial Securities shall be made at the office of Xxxxxxx, Phleger &
Xxxxxxxx LLP, Newport Beach, California, or at such other place as shall be
agreed upon by the Underwriter and the Offerors, at 10:00 A.M. (unless postponed
in accordance with the provisions of Section 10) on the fourth business day
following the date the Registration Statement becomes effective (or, if the
Offerors have elected to rely upon Rule 430A of the 1933 Act Regulations, the
fourth business day after execution of the Pricing Agreement), or such other
time not later than ten business days after such date as shall be agreed upon by
the Underwriter and the Offerors (such time and date of payment and delivery
being herein called "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
11
delivery of certificate for, such Option Securities shall be made at the above-
mentioned offices of Xxxxxxx, Phleger & Xxxxxxxx LLP, Newport Beach, California,
or at such other place as shall be agreed upon by the Underwriter and the
Offerors, on each Date of Delivery as specified in the notice from the
Underwriter to the Offerors. Payment shall be made to the Offerors by wire
transfer or by certified or official bank check or checks drawn in same day
funds payable to the order of the Trust, against delivery to the Underwriter of
a global certificate for the Securities. A Certificate for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Underwriter may request in writing at least two
business days before the Closing Time or the relevant Date of Delivery, as the
case may be. Notwithstanding the foregoing, if the Underwriter elects that the
delivery of all or a portion of the Securities be effected through the "Full
Fast" system of the Depository Trust Corporation, such that all or a portion of
the Securities will be denominated in book-entry form and there will be no
certificate therefor, then in lieu of the global certificate for the Securities,
the Offerors shall deliver to their transfer agent at least 24 hours prior to
Closing Time, instructions in form and substance satisfactory to the
Underwriter, instructing such transfer agent to register such shares through the
Full Fast system at Closing Time.
(d) In view of the fact that the proceeds of the sale of the Securities
will be invested by the Trust in the Junior Subordinated Debentures, the Company
hereby agrees to pay the Underwriter as compensation (the "Underwriter's
Compensation") for arranging for the investment therein of such proceeds, $____
per Security purchased by the Underwriter at the Closing Time and each Date of
Delivery, if any ($______ in the aggregate assuming no exercise of the
Underwriter's over-allotment option or $______ in the aggregate assuming
exercise of such over-allotment option in full). Such Underwriter's
Compensation shall be payable to the Underwriter by wire transfer of immediately
available funds at the Closing Time and at each Date of Delivery (if any) or, if
agreed by the Underwriter and the Company, by deduction from the amount payable
by the Underwriter to the Trust in respect of the Securities being purchased on
such date.
SECTION 3. Covenants of the Offerors. Each of the Offerors jointly and
-------------------------
severally covenants with each Underwriter as follows:
(a) The Offerors will use their best efforts to cause the Registration
Statement to become effective as and when requested by the Underwriter, and if
the Offerors elects to rely upon Rule 430A and subject to Section 3(b), will
comply with the requirements of Rule 430A 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
become effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the Commission,
(iii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of or the initiation or threatening of any proceedings for any
of such purposes. The Offerors will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest reasonable moment.
(b) The Offerors will give the Underwriter notice of their intention to
file or prepare any amendment to the Registration Statement (including any post-
effective amendment) or any amendment or supplement to the Prospectus (including
any revised prospectus which the Offerors propose for use by the Underwriter in
connection with the offering of the Securities which differs from the Prospectus
on file at the Commission at the time the Registration Statement first becomes
effective, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish the
Underwriter with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus to which the
Underwriter or counsel for the Underwriter shall object.
(c) The Offerors have furnished or will deliver to the Underwriter and
counsel for the Underwriter, without charge, copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed
12
therewith or incorporated by reference therein) and copies of all consents
and the certificate of experts, and will also deliver to the Underwriter a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for the Underwriter.
(d) The Offerors will deliver to the Underwriter, without charge, from time
to time until the effective date of the Registration Statement (or, if the
Offerors have elected to rely upon Rule 430A, until such time the Pricing
Agreement is executed and delivered), 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 furnish to the Underwriter, without charge, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the Securities Reorganization Act of 1934 (the "1934 Act"), such number
--------
of copies of the Prospectus (as amended or supplemented) as the Underwriter may
reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act
or the respective applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriter or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Offerors will furnish to the Underwriter such number of copies of such amendment
or supplement as the Underwriter may reasonably request.
(f) If, at the time that the Registration Statement becomes effective, any
information shall have been omitted therefrom in reliance upon Rule 430A of the
1933 Act Regulations, then immediately following the execution of the Pricing
Agreement, the Offerors will prepare, and file or transmit for filing with the
Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act
Regulations, 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 and will use its best efforts
to cause such post-effective amendment to be declared effective as promptly as
practicable.
(g) The Offerors will use their best efforts, in cooperation with the
Underwriter, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Underwriter may designate 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 neither of the Offerors shall be
obligated to qualify as a foreign corporation or trust or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Securities have
been so qualified, the Offerors will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for as long as may be required for the distribution of the Securities or,
in the case of such Junior Subordinated Debentures, for as long as such Junior
Subordinated Debentures are issuable as contemplated by the Prospectus or, in
the case of shares of Common Stock issuable upon conversion of Securities and
Junior Subordinated Debentures, for so long as is required by applicable law.
The Offerors will promptly advise the Underwriter of the receipt by either of
the Offerors of any notification with respect to the suspension of the
qualification of the Registered Securities for sale or issuance, as the case may
be, in any such state or jurisdiction or the initiating or threatening of any
proceedings for such purpose.
(h) The Company will, on behalf of the Trust, make generally available to
the Trust's security holders as soon as practicable, but not later than 90 days
after the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations) covering
a twelve month period beginning
13
not later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(i) The Offerors will use the net proceeds received by it from the sale of
the Securities and the Junior Subordinated Debentures in the manner specified in
the Prospectus under "Use of Proceeds".
(j) During a period of 90 days from the date of the Pricing Agreement (the
"Lock-Up Period"), neither the Offerors nor the Bank will, without the prior
--------------
written consent of the Underwriter (which may be withheld in its sole
discretion), directly or indirectly, (i) sell, pledge, hypothecate, offer to
sell, pledge or hypothecate, grant any option for the sale of, or otherwise
dispose of, including without limitation a disposition or transfer into nominee
or street name (all such forms of disposition or transfer enumerated in this
sentence collectively, a "Disposition"), (A) any trust certificate or other
-----------
securities of the Trust (other than the Securities and the Common Securities
issued to the Company), (B) any preferred stock or any other security of the
Company that is substantially similar to the Securities, (C) any shares of any
class of common stock of the Company (other than (i) shares of Common Stock
issuable upon conversion of the Securities or pursuant to the exercise of
options or warrants outstanding on the date hereof and (ii) the grant of stock
options or other stock-based awards (and the exercise thereof) to directors,
officers and employees of the Company and its Subsidiaries), (D) any debt
securities of the Company that are substantially similar to the Junior
Subordinated Debentures (other than the Junior Subordinated Debentures issued to
the Trust) or (E) any other securities which are convertible into, or
exercisable or exchangeable for, any securities of the type referred to in
clauses (A) through (D) above (subject, however, to the same exceptions, to the
extent applicable, as are set forth in clauses (A) through (D) above) or (ii)
enter into any swap or any other agreement or any transaction the transfers,
directly or indirectly, the economic consequences of ownership of any of the
securities described in clauses (A) through (D) above whether or not such swap
is to be settled by delivery of such securities, in cash or otherwise. The
Offerors consent to the entry by the Underwriter of stop-transfer orders with
the Offeror's transfer agent if, in the Underwriter's sole discretion, a stop
order is necessary to prevent violation of this subparagraph. The foregoing
restrictions are expressly agreed to preclude the Offerors and the Bank from
engaging in any hedging, pledge or other transaction which is designed to or
reasonably expected to lead to or result in a Disposition of Registered
Securities or any securities convertible into or exchangeable or exercisable for
Registered Securities during the Lock-Up Period even if such securities would be
disposed of by someone other than the Offerors or the Bank. Such prohibited
hedging, pledge or other transactions would include without limitation any short
sale (whether or not against the box), any pledge of shares covering an
obligation that matures, or could reasonably mature during the Lock-Up Period,
or any purchase, sale or grant of any right (including without limitation any
put or call option) with respect to any Registered Securities or with respect to
any security (other than a broad-based market basket or index) that includes,
relates to or derives any significant part of its value from the Securities.
(k) The Offerors will file with the Commission such reports on Form SR as
may be required pursuant to Rule 463 of the 1933 Act Regulations.
SECTION 4. Payment of Expenses. Whether or not the transactions
-------------------
contemplated hereunder are consummated or this Agreement remains effective or is
terminated, the Offerors jointly and severally agree to pay all costs, fees and
expenses incurred in connection with the performance of their obligations
hereunder and in connection with the transactions contemplated hereby, including
without limiting the generality of the foregoing, (i) all expenses incident to
the issuance and delivery of the Securities (including all printing and
engraving costs), (ii) all fees and expenses of the registrar and transfer agent
of the Securities, (iii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Securities, (iv) all fees and
expenses of the Company's and the Trust's counsel and the Company's independent
accountants, (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration
Statement and the Prospectus (including all exhibits and financial statements)
and all amendments and supplements provided for herein, (vi) the fees and
expenses of the Debenture Trustee, including the fees and disbursements of
counsel for the Debenture Trustee, (vii) the fees and expenses of the Property
Trustee, including the fees and disbursements of counsel for the Property
Trustee, (viii) the fees and expenses of the Delaware Trustee, including the
fees and disbursements of counsel for the Delaware Trustee, (ix)
14
the filing fees incident to the review by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of sale of the Securities, (x) the fees
and expenses incurred in connection with the listing on the Nasdaq of the
Securities and the shares of Common Stock issuable upon conversion of the
Securities, (xi) the fees and expenses of any transfer agent, paying agent or
registrar, and (xii) the cost of qualifying the Securities, and, if applicable,
the Junior Subordinated Debentures, with The Depository Trust Company, (xiii)
where applicable, all filing fees, attorney's fees and expenses incurred by the
Offerors or the Underwriter in connection with qualifying or registering (or
obtaining exemptions from the qualification or registration of) all or any part
of the Securities for offer and sale under the Blue Sky laws, (xiv) all the
costs and expenses incurred by the Offerors in making road show presentations
with respect to the Offering, (xv) all costs of preparing, printing and
distributing bound volumes of the transaction documents for the Underwriter and
its counsel, and (xvi) all other fees, costs and expenses referred to in Item 13
of the Registration Statement. Except as provided in this Section 5, and Section
8 hereof, the Underwriter shall pay all of its own expenses, including the fees
and disbursements of its own counsel.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of
---------------------------------------
the Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Offerors and the Bank herein contained, to the accuracy of the
statements of the Company's or the Bank's officers or the Trustees, as the case
may be, made in any certificate furnished pursuant to the provisions hereof, to
the performance by each of the Offerors and the Bank of its obligations
hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not later than
5:30 P.M. on the date hereof, or with the consent of the Underwriter, 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 and date as may be approved by
a majority in interest of the Underwriter; and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated threatened or, to
the knowledge of the Offerors and the Bank, contemplated by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the Underwriter.
If the Offerors have elected to rely upon Rule 430A of the 1933 Act Regulations,
the price of the Securities and any price-related information previously omitted
from the effective Registration Statement pursuant to such Rule 430A shall have
been transmitted to the Commission for filing in accordance with Rule 424(b) of
the 1933 Act Regulations within the prescribed time period and prior to Closing
Time the Offerors shall have provided evidence satisfactory to the Underwriter
of such timely filing, or a post-effective amendment providing such information
shall have been promptly filed and declared effective in accordance with the
requirements of Rule 430A of the 1933 Act Regulations.
(b) At Closing Time the Underwriter shall have received:
(i) The opinion, dated as of Closing Time, of Xxxxxxx, Xxxxxx &
Xxxxxxxx, counsel for the Offerors and the Bank, in form and substance
satisfactory to counsel for the Underwriter, to the effect that:
a. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
b. The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and to enter into and perform
its obligations under the Operative Instruments, and to purchase, own
and hold the Common Securities issued by the Trust.
c. Each of the Company and its Subsidiaries (other than the
Trust) is duly qualified as a foreign corporation to transact business
and is in good standing in California and is duly qualified as a
foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct
15
of business, except where the failure so to qualify or to be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and the Subsidiaries considered as one
enterprise; the authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus; the shares of issued
and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; none of the
outstanding shares of such stock was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company arising by operation of law, under the certificate of
incorporation or by-laws of the Company, or to the best of their
knowledge, under any agreement to which the Company is a party; and
the Registered Securities, the Common Securities, the Common
Guarantee, the Indenture, the Guarantee Agreements, the Company's
charter and by-laws conform and will conform to all statements
relating thereto contained in the Registration Statement and the
Prospectus.
d. The Bank is validly existing as a federal savings bank under
the federal laws of the United States and Life Holdings has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware; each of the Subsidiaries has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus; the Bank,
as a federal savings bank, is not required to qualify as a foreign
corporation or otherwise under state law; all of the issued and
outstanding capital stock of Life Holdings has been duly authorized
and validly issued and to the best of their knowledge is fully paid
and non-assessable and is directly owned by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; to the best of their knowledge, all of the issued and
outstanding capital stock of the Subsidiaries has been duly authorized
and validly issued, is fully paid and non-assessable and is directly
owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; to the best of
their knowledge, none of the outstanding shares of capital stock of
the Subsidiaries was issued in violation of the preemptive or similar
rights of any stockholder of such corporation arising by operation of
law, under the charter or by-laws of any subsidiary or under any
agreement to which the Company or any of the Subsidiaries is a party.
The only direct or indirect subsidiaries of the Company are the Trust,
the Bank and Life Holdings. There are no subsidiaries of the Trust,
the Bank or Life Holdings. To the best of their knowledge, except for
the shares of capital stock of the Subsidiaries owned by the Company,
the Company does not own any shares of stock or any other equity
securities of any corporation or has any equity interest in any firm,
partnership, association or other entity.
e. The Company has corporate power and corporate authority to
enter into and to perform its obligations under the Operative
Instruments to which it is a party and to purchase, own and hold the
Common Securities issued by the Trust.
f. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act.
g. Under the Delaware Act and the Declaration, the Trust has the
power and authority (a) to enter into and perform its obligations
under this Agreement, (b) to perform its obligations under the
Declaration, (c) to issue and perform its obligations under the
Securities and the Common Securities and (d) to purchase and hold the
Junior Subordinated Debentures.
h. The Trust is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification is
necessary, except where the failure to so qualify would not have a
material adverse effect on the Trust; and, to the best knowledge of
such counsel, the Trust is not a party to or otherwise bound by any
agreements or instruments other than those described in the
Prospectus.
16
i. The Declaration has been duly executed and delivered by the
Company and the Declaration constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency
(including without limitation all laws relating to fraudulent
transfers), reorganization, moratorium, or other similar laws relating
to or affecting creditors' rights generally and except as enforcement
thereof may be subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding at law or in
equity), including concepts of commercial reasonableness.
j. The Declaration has been duly authorized, executed and
delivered by the Company and the Declaration constitutes a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency (including without limitation all laws relating
to fraudulent transfers), reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally and except
as enforcement thereof may be subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding at
law or in equity), including concepts of commercial reasonableness;
and the Declaration has been duly qualified under the 1939 Act.
k. The Common Securities have been duly authorized by the
Declaration and, when duly issued and delivered by the Trust to the
Company against payment of the consideration therefor as described in
the Registration Statement, will be validly issued and, fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust and will be owned of record by the Company; and the issuance of
the Common Securities is not subject to preemptive or other similar
rights arising under the Delaware Act or the Declaration.
l. The Securities have been duly authorized by the Declaration
and, when issued, delivered and paid for in accordance with the terms
of this Agreement, will be validly issued, fully paid and non-
assessable undivided beneficial interests in the assets of the Trust
and will entitle the holders thereof to the benefits of the
Declaration; the holders of the Securities will be entitled to the
same limitation of personal liability as extended to stockholders of
private corporations for profit organized under the DGCL; and the
issuance of the Securities is not subject to preemptive or other
similar rights arising under the Delaware Act or the Declaration.
m. Each of the Guarantee Agreements has been duly authorized,
executed and delivered by the Company and each of the Guarantee
Agreements constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
as enforcement thereof may be limited by the bankruptcy, insolvency
(including without limitation all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally and except as enforcement
thereof may be subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding at law or in
equity), including concepts of commercial reasonableness; and the
Guarantee Agreement has been duly qualified under the 1939 Act.
n. The Indenture has been duly authorized, executed and
delivered by the Company and (when duly authorized, executed and
delivered by the Debenture Trustee) will constitute a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be
limited by the bankruptcy, insolvency (including without limitation
all laws relating to fraudulent transfers), reorganization, moratorium
or other similar laws relating to or affecting creditors' rights
generally and except as enforcement thereof may be subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding at law or in equity), including concepts of commercial
reasonableness; and the Indenture has been duly qualified under the
1939 Act.
17
o. The Junior Subordinated Debentures have been duly authorized
by the Company and, when the Junior Subordinated Debentures have been
duly executed by the Company and authenticated and delivered by the
Debenture Trustee in the manner provided in the Indenture and paid for
by the Trust of the consideration therefor, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including without limitation all
laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws relating to or affecting creditors' rights
generally and except as enforcement thereof may be subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding at law or in equity), including concepts of commercial
reasonableness, and will be entitled to the benefits of the Indenture;
and the issuance of the Junior Subordinated Debentures is not subject
to preemptive or other similar rights arising under the charter or by-
laws of the Company, under the DGCL or, to the best knowledge of such
counsel, otherwise.
p. The shares of Common Stock issuable upon conversion of the
Junior Subordinated Debentures have been duly authorized and reserved
by the Company for issuance upon such conversion and, if and when
issued upon such conversion in accordance with the provisions of the
Indenture at conversion prices equal to or in excess of the par value
of such shares of Common Stock at such time, will be validly issued,
fully paid and non-assessable, and the issuance of such shares is not
subject to preemptive or other similar rights arising under the
charter or bylaws of the Company, under the DGCL or, to the best
knowledge of such counsel, otherwise.
q. To the best knowledge of such counsel, neither the Company
nor any of the Subsidiaries is in violation of its Certificate of
Incorporation, charter or Declaration, as the case may be, or by-laws
or in default to an extent which, singly or in the aggregate, would
materially and adversely affect the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company
and the Subsidiaries considered as one enterprise, in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to
which the Company or any of the Subsidiaries is a party or by which or
any of them may be bound, or to which any of the property or assets of
the Company or the Subsidiaries is subject, including without
limitation, the Line of Credit Documents, the Reorganization Documents
or the Securitization Documents.
r. The execution, delivery and performance of this Agreement and
the Operative Instruments, the consummation of the transactions
contemplated herein and therein (including, without limitation, the
issuance and sale of the Securities, Common Securities, Junior
Subordinated Debentures and Guarantees and the issuance of shares of
Common Stock upon conversion of the Securities and the Junior
Subordinated Debentures) and compliance by each of the Company and the
Trust with its respective obligations hereunder and thereunder have
been duly authorized by all necessary corporate or other action and,
to the best of their knowledge, do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event under, or
result in the creation or imposition of any lien or encumbrance not
existing on the date of this Agreement upon any property or assets of
the Company or the Subsidiaries pursuant to, the Line of Credit
Documents, the Reorganization Documents, the Securitization Documents,
or any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or the Subsidiaries is subject and which breach or default
singly or in the aggregate, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and the Subsidiaries considered
as one enterprise; nor will any such action
18
result in any violation of the provisions of the certificate of
incorporation, Declaration or the charter, as the case may be, or by-
laws of the Company or the Subsidiaries or, to the best of such
counsel's knowledge, any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or the Subsidiaries or any of their assets or
properties and which violation, singly or in the aggregate, would
materially and adversely affect the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company
and the Subsidiaries considered as one enterprise.
s. The deposit accounts of the Bank are insured by the FDIC up
to legally applicable limits, and, to their best knowledge, no
proceedings for the termination or revocation of such insurance are
pending or threatened.
t. The activities of the Company and each of the Subsidiaries as
described in the Registration Statement and the Prospectus are
permissible activities for each such entity under federal law and the
rules, regulations, resolutions and practices of the OTS and the FDIC.
u. The Securities have been duly authorized for issuance and
sale to the Underwriter pursuant to this Agreement and, when issued
and delivered by the Trust pursuant to this Agreement against payment
of the consideration set forth in the Pricing Agreement, will be
validly issued and fully paid and non-assessable; the Registered
Securities are not subject to preemptive or other similar rights
arising by operation of law, under the certificate of incorporation or
by-laws of the Company or, to the best of such counsel's knowledge,
otherwise.
v. Except as disclosed in or specifically contemplated by
the Prospectus, to the best of such counsel's knowledge, there are no
outstanding options, warrants or other rights calling for the issuance
of, and no commitments, obligations, plans or arrangements to issue,
any shares of capital stock of the Company or the Subsidiaries or any
security convertible into or exchangeable for capital stock of the
Company or the Subsidiaries. The outstanding stock options relating
to the Company's Common Stock have been duly authorized and validly
issued and the description thereof contained in the Prospectus is
accurate in all material requests.
w. The Registration Statement has been declared effective
under the 1933 Act; any required filing of the Prospectus pursuant to
Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); and, to the best of their knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
x. The Registration Statement and the Prospectus and each
amendment or supplement thereto, as of their respective effective or
issue dates (other than the financial statements, as to which no
opinion need be rendered) complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations.
y. The form of global certificate used to evidence the
Securities complies in all material respects with all applicable
statutory requirements, with any applicable requirements of the
certificate of incorporation and by-laws of the Company and the
requirements of Nasdaq.
z. To the best of their knowledge, neither the Company nor any
of the Subsidiaries is in violation of any directive from the FDIC,
the OTS, or any other governmental authority, and the Company and the
Subsidiaries are in compliance with all federal and state laws and
regulations that regulate or relate to its business, including,
without limitation, FIRREA, the FDIA, the NHA, FDICIA
19
and all other applicable laws and regulations where the failure to
comply would materially and adversely affect the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of the Company and the Subsidiaries considered as one enterprise.
aa. To the best of their knowledge: there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to
which the Company or any of the Subsidiaries is a party, or to which
the property of the Company or any of the Subsidiaries is subject,
before or brought by any court or governmental agency or body, which
might reasonably be expected to result in any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and the Subsidiaries
considered as one enterprise, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or
the consummation of the Operative Instruments or the performance by
the Company of its obligations hereunder or thereunder or any of the
other transactions contemplated by the Registration Statement which is
required to be disclosed in such registration statements and are not
accurately described therein; and the aggregate all pending legal or
governmental proceedings to which the Company or any of the
Subsidiaries is a party or that affect any of their respective
properties that are not described in the Prospectus are not reasonably
expected to result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and the Subsidiaries considered as
one enterprise.
bb. The information in the Prospectus under "Risk Factors,"
"Description of Capital Stock of the Company," and "Regulation," and
in the Registration Statement under items 14 and 15, to the extent
that it constitutes matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, has been reviewed by
them and complies in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations; to the best of such
counsel's knowledge, there are no statutes or regulations, and no
legal or governmental actions, suits or proceedings pending or
threatened against the Company or any of the Subsidiaries that are
required to be described in the Prospectus that are not described as
required.
cc. All descriptions in the Prospectus of contracts and
other documents to which the Company or any of the Subsidiaries are a
party comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations; to the best of their knowledge
and information, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those described or
referred to therein or filed as exhibits thereto and the descriptions
thereof or references thereto comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
dd. No authorization, approval, consent or order of any
court or governmental authority or agency (other than under the 1933
Act and the 1933 Act Regulations, which have been obtained, or as may
be required under the securities or blue sky laws of the various
states, as to which such counsel need express no opinion) is required
in connection with the issuance and sale of the Securities by the
Trust to the Underwriter pursuant to this Agreement, the issuance and
sale of the Common Securities by the Trust to the Company, the
issuance and sale of the Convertible Debentures by the Company to the
Trust, the issuance by the Company of shares of Common Stock and
rights upon conversion of the Convertible Debentures or the execution,
delivery or performance by the Company or the Trust of their
respective obligations under this Agreement, the Indenture, the Junior
Subordinated Debentures, the Guarantee Agreements, the Declaration,
the Securities or the Common Securities, except that such counsel need
not express any opinion as to the rules and regulations of the NASD.
20
ee. The statements in the Prospectus under the captions
"Description of Capital Securities," "Description of the Guarantee,"
"Description of the Junior Subordinated Debentures," "Relationship
Among the Capital Securities, the Junior Subordinated Debentures and
the Guarantee" and "Description of Capital Stock of the Company,"
insofar as such statements constitute a summary of certain provisions
of law or certain provisions of the Securities, the Common Securities,
the Junior Subordinated Debentures, the Guarantees, the Indenture, the
Declaration, the Guarantee Agreements, the charter and by-laws of the
Company or legal conclusions, have been reviewed by such counsel and
are, in all material respects an accurate summary of such provisions
and legal conclusions.
ff. The Trust will be classified for United States federal
income tax purposes as a grantor trust and not as an association
taxable as a corporation; accordingly, for United States federal
income tax purposes, each holder of Securities generally will be
considered the owner of an undivided interest in the Junior
Subordinated Debentures.
gg. The Junior Subordinated Debentures will be classified for
United States federal income tax purposes as indebtedness of the
Company.
hh. The discussion set forth in the Prospectus under the caption
"Certain Federal Income Tax Considerations" is a fair and accurate
summary of the matters set forth therein, based upon current law and
the assumptions stated therein; and the opinions of such counsel set
forth under such caption are confirmed.
ii. To the best of their knowledge, there are no persons with
registration or other similar rights pursuant to written contracts
with the Company or the Trust to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act other than the registration rights granted
to purchasers in the Bank's private placement completed in the third
quarter of 1996.
jj. Neither the Company nor any of the Subsidiaries is, nor
(assuming application by the Company of the net proceeds of the sale
of the Securities in the manner described in the Prospectus) will
become, as a result of the consummation of the transactions
contemplated by the Agreement, required to register as an investment
company under the Investment Company Act of 1940, as amended.
In rendering their opinion, such counsel may rely as to matters
of fact (but not as to legal conclusions), to the extent they deem proper,
on the certificate of responsible officers of the Company, the Subsidiaries
and public officials.
Such counsel shall additionally state that nothing has come to their
attention that would lead them to believe that the Registration Statement
(except for financial statements and schedules and other financial or
statistical data included therein, as to which such counsel need make no
statement), at the time each became effective or at the Representation
Date, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (except for
financial statements and schedules and other financial or statistical data
included therein, as to which such counsel need make no statement), at the
Representation Date (unless the term "Prospectus" refers to a prospectus
which has been provided to the Underwriter by the Offerors for use in
connection with the offering of the Securities which differs from the
Prospectus on file at the Commission at the time the Registration Statement
becomes effective, in which case at the date of such prospectus) or at
Closing Time, included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
21
(ii) The favorable opinion of Xxxxxxx, Xxxx & Xxxxx, counsel to the
Debenture Trustee, Property Trustee and Guarantee Trustee, dated as of the
Closing Time, in form and substance satisfactory to the Underwriter and
counsel for the Underwriter, to the effect that:
a. Each of the Debenture Trustee, Property Trustee and the
Guarantee Trustee is a national banking association with trust powers,
duly organized, validly existing and in good standing under the
federal laws of the United States of America, with all necessary
corporate power and authority to execute and deliver, and to carry out
and perform its obligations under, the Indenture, the Declaration and
the Guarantee Agreement.
b. The Indenture, the Declaration and the Guarantee Agreement
have been duly authorized, executed and delivered by the Debenture
Trustee, the Property Trustee and the Guarantee Trustee, respectively,
and constitute valid and binding obligations of the Debenture Trustee,
the Property Trustee and the Guarantee Trustee, respectively,
enforceable against the Debenture Trustee, the Property Trustee and
the Guarantee Trustee, respectively, in accordance with their terms,
except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to or affecting creditors'
rights generally or by general equity principles, including concepts
of commercial reasonableness.
c. The execution, delivery and performance of the Indenture, the
Declaration and the Guarantee Agreement by the Debenture Trustee, the
Property Trustee and the Guarantee Trustee, respectively, do not
conflict with or constitute a breach of the charter or by-laws of the
Debenture Trustee, the Property Trustee or the Guarantee Trustee,
respectively.
d. No consent, approval or authorization of, or registration
with or notice to, any federal banking authority is required for the
execution, delivery or performance by the Debenture Trustee, the
Property Trustee or the Guarantee Trustee of the Indenture, the
Declaration or the Guarantee Agreement, respectively.
e. The Debenture Trustee, the Property Trustee and the Guarantee
Trustee have each been duly qualified under the 1939 Act to serve in
such capacities in connection with the Indenture, the Declaration, the
Guarantee Agreement and have properly completed and filed under the
1939 Act a Form T-1 in connection therewith.
(iii) The favorable opinion of Prickett, Jones, Xxxxxxx, Xxxxxxx &
Schner, counsel to the Delaware Trustee, dated as of the Closing Time, in
form and substance satisfactory to the Underwriter and counsel for the
Underwriter, to the effect that:
a. The Delaware Trustee is a Delaware banking corporation with
trust powers, validly existing and in good standing under the laws of
the State of Delaware, with all necessary power and authority to
execute and deliver, and to carry out and perform its obligations
under, the Declaration.
b. The Declaration has been duly authorized, executed and
delivered by the Delaware Trustee, and constitutes a valid and binding
obligations of the Delaware Trustee, enforceable against the Delaware
Trustee in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general
equity principles, including concepts of commercial reasonableness.
c. The execution, delivery and performance of the Declaration by
the Delaware Trustee do not conflict with or constitute a breach of
the charter or by-laws of the Delaware Trustee.
22
d. No consent, approval or authorization of, or registration
with or notice to, any federal or Delaware banking authority is
required for the execution, delivery or performance by the Delaware
Trustee of the Declaration.
(iv) The opinion of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriter, with respect to the issuance and sale of the Securities, the
Registration Statement and Prospectus, and such other related matters as
the Underwriter may reasonably require, and the Company shall have
furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
(c) At Closing Time there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and the
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Underwriter shall have received a
certificate of the President and the chief financial or chief accounting officer
or Trustee of the Company, the Bank and the Trust, each dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of Closing
Time, (iii) the Company, the Bank and the Trust have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the Commission. As used
in this Section 5(c) the term "Prospectus" means the Prospectus in the form
first used by the Underwriter to confirm sales of the Securities.
(d) At the time of the execution of this Agreement, the Underwriter shall
have received from each of Xxxxx Xxxxxxxx LLP, Price Waterhouse LLP and Deloitte
& Touche LLP a letter dated such date, in form and substance satisfactory to the
Underwriter, to the effect that (i) they are independent public accountants with
respect to the Company and the Trust within the meaning of the 1933 Act and the
applicable published rules and regulations thereunder; and (ii) in their
opinion, the consolidated financial statements audited by them and included in
the Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the related published
rules and regulations. The letter from Deloitte & Touche LLP shall additionally
state that based upon limited procedures set forth in detail in such letter
(which shall include, without limitation, the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial Information,
with respect to the unaudited condensed financial statement of the Bank included
in the Registration Statement), nothing has come to their attention which causes
them to believe that (A) any material modifications should be made to the
unaudited condensed financial statements included in the Registration Statement
for them to be in conformity with generally accepted accounting principles or
(B) the unaudited condensed consolidated financial statements included in the
Registration Statement do not comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the related published
rules and regulations or (C) at a specified date not more than four days prior
to the date of this Agreement, there has been any change in the capital stock of
the Bank, any increase in the debt of the Bank or any decrease in the level of
total assets and deposits at the Bank as compared with the amounts shown in the
September 30, 1997 balance sheet included in the Registration Statement or,
during the period from October 1, 1997 to November 30, 1997, there were any
decreases as compared with the corresponding period in the preceding year, in
net interest income (before and after allowance for estimated loan losses), net
interest income and net income of the Bank, except in all instances for changes,
increases or decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur. The letter of each of the three auditors
referred to above shall also state that in addition to the examination referred
to in their opinions (and, in the case of Deloitte & Touche LLP only, the
limited procedures referred to in clause (iii) above), they have carried out
certain specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included in the
Registration Statement and Prospectus and which are specified by the
Underwriter, and have found such amounts, percentages and financial information
to be in agreement with the relevant accounting, financial and other records of
the Company and the Bank identified in such letter; and, they have compared the
information in the
23
Prospectus under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified in their letters
nothing came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K.
(e) At the Closing Time the Underwriter shall have received from Xxxxx
Xxxxxxxx LLP, Price Waterhouse LLP and Deloitte & Touche LLP a letter, dated as
of Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (d) of this Section. If the Offerors
have elected to rely on Rule 430A of the 1933 Act Regulations, the letter of
Deloitte & Touche LLP shall additionally state that they have carried out
procedures as specified in the last sentence of subsection (d) of this Section
with respect to certain amounts, percentages and financial information specified
by the Underwriter and deemed to be a part of the Registration Statement
pursuant to Rule 430(A)(b) and have found such amounts, percentages and
financial information to be in agreement with the records specified in such
sentence.
(f) At the Closing Time the Securities and the shares of Common Stock
issuable upon conversion of the Securities shall have been approved for
inclusion in the Nasdaq National Market System, subject only to official notice
of issuance, and the NASD shall have approved in writing the Underwriter's
participation in the distribution of the Securities and such approval shall not
have been withdrawn or limited.
(g) At the date of this Agreement, the Underwriter shall have received an
agreement substantially in the form of Exhibit B hereto signed by each of the
---------
directors and officers of the Company and the Bank. The Company and the Bank
jointly and severally represent and warrant that Schedule A hereto includes a
----------
complete and accurate list of all directors and officers of the Company and the
Bank.
(h) At the Closing Time and at each Date of Delivery, counsel for the
Underwriter shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Securities, Common Securities and Junior Subordinated Debentures as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company
and the Trust in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the
Underwriter and counsel for the Underwriter.
(i) In the event that the Underwriter exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Offerors and the Bank contained herein and
the statements in any certificate furnished by the Company hereunder shall be
true and correct as of each Date of Delivery and, at the relevant Date of
Delivery, the Underwriter shall have received:
(i) A certificate, dated such Date of Delivery, of the President and
of the chief financial or chief accounting officer of the Company and the
Bank, and of the Trustee of the Trust, confirming that the certificate
delivered at the Closing Time pursuant to Section 5(c) hereof remains true
and correct as of such Date of Delivery.
(ii) The opinion of Xxxxxxx, Xxxxxx & Xxxxxxxx, counsel for the
Company, in form and substance satisfactory to counsel for the Underwriter,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(b)(1) hereof.
(iii) The favorable opinion of Xxxxxxx, Xxxx & Xxxxx, counsel
for the Property Trustee and the Guarantee Trustee, in form and substance
satisfactory to the Underwriters, dated such Date of Delivery, to the same
effect as the opinion required by Section 5(b)(2).
24
(iv) The favorable opinion of Prickett, Jones, Xxxxxxx, Xxxxxxx &
Schner, counsel for the Delaware Trustee, in form and substance
satisfactory to the Underwriters, dated such Date of Delivery, to the same
effect as the opinion required by Section 5(b)(3) hereof.
(v) The opinion of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel for
the Underwriter, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(b)(4) hereof.
(vi) A letter from each of Xxxxx Xxxxxxxx LLP, Price Waterhouse
LLP and Deloitte & Touche LLP, in form and substance satisfactory to the
Underwriter and dated such Date of Delivery, substantially the same in form
and substance as the letter furnished to the Underwriter pursuant to
Section 5(e) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than four
days prior to such Date of Delivery.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriter by notice to the Company at any time at or prior to Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 6 and 7 shall survive
any such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) The Offerors and the Bank agree jointly and severally to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any untrue statement or alleged untrue statement made by
the Offerors and the Bank in Section 2(a) of this Agreement.
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the information deemed to be part of
the Registration Statement pursuant to Rule 430A(b) of the 1933 Act
Regulations, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or prospectus, including the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(iii) against any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials prepared by the
Offerors or the Bank or authorized for use by the Offerors or the Bank to
be used in connection with the marketing of the Securities, including
without limitation, slides, videos, films, tape recordings.
(iv) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company.
(v) against any and all expense whatsoever, as incurred (including,
subject to the third sentence of Section 6(c) hereof, the fees and
disbursements of counsel chosen by the Underwriter), reasonably incurred
25
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above.
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Offerors or the
Bank by the Underwriter expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
The foregoing indemnification with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased Securities, or any
person controlling the Underwriter, if 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, if such is required by law, at or prior to the written confirmation
of the sale of such shares 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.
(b) The Underwriter agrees to indemnify and hold harmless each of the
Offerors and the Bank, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Offerors and
the Bank within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
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) in reliance upon and in conformity with written
information furnished to the Offerors and the Bank 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).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
-------- -------
(except with the consent of the indemnified party) be counsel to the indemnified
party. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered
26
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and the Underwriter on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Offerors on the one hand and of the Underwriter on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriter on the other hand in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Offerors and the total underwriting discount received by the Underwriter, in
each case as set forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of the Securities as set forth on such cover. The
relative fault of the Offerors on the one hand and the Underwriter on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Offerors or by the Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Offerors and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriter were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of
this Section 7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, each Trustee of the Trust and each person, if any, who controls an
Offeror within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as such Offeror. The
Underwriter' respective obligations to contribute pursuant to this Section 7 are
several in proportion to the number of Initial Securities set forth opposite
their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement and
the Pricing Agreement, or contained in certificates of officers of the Company
or the Bank, or Trustees of the Trust, submitted pursuant hereto, are made only
as of the date hereof and the Representation Date and the Closing Date, as the
case may be, but shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter or controlling
person, or by or on behalf of Offerors or the Bank, and shall survive delivery
of the Securities to the Underwriter.
27
SECTION 9. Termination of Agreement.
------------------------
(a) The Underwriter may terminate this Agreement, by notice to the Company,
at any time at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and the Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or elsewhere, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Underwriter, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in the
Common Stock has been suspended or limited by the Commission or Nasdaq, or if
trading generally on the American Stock Reorganization or the New York Stock
Reorganization or in the over-the-counter market has been suspended or limited,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal, New York or California authorities. As used in this
Section 9(a), the term "Prospectus" means the Prospectus in the form first used
by the Underwriter to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 6 and 7 shall
survive such termination and remain in full force and effect.
SECTION 10. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to Xxxxx, Xxxxxxxx & Xxxxx, Inc., Xxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxxxx Xxxxxxxx; notices to the
Offerors shall be directed to them at Life Financial Corporation, 00000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxx X, Xxxxxxxxx, Xxxxxxxxxx 00000, attention of Xxxxxx X.
Perl.
SECTION 11. Parties. This Agreement and the Pricing Agreement shall each
-------
inure to the benefit of and be binding upon the Underwriter, the Offerors, the
Bank and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers, trustees and directors
referred to in Sections 6 and 7 and their heirs and legal representative, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or the Pricing Agreement or any provision herein or therein contained. This
Agreement and the Pricing Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors, and said controlling persons and
officers, trustees and directors and their heirs and legal representative, and
for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE PRICING
----------------------
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID
STATE. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
28
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement between the
Underwriter, on the one hand, and the Company and the Trust, on the other, in
accordance with its terms.
Very truly yours,
LIFE FINANCIAL CORPORATION
By:___________________________________
Xxxxxx X. Perl, President and
Chief Executive Officer
LIFE BANK
By:___________________________________
Xxxxxx X. Perl, President and
Chief Executive Officer
LIFE FINANCIAL CAPITAL TRUST
By: Life Financial Corporation, as Sponsor
By:___________________________________
Xxxxxx X. Perl, President and
Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXX, XXXXXXXX & XXXXX, INC.
By:______________________________________
Name:__________________________________
Title:_________________________________
29
SCHEDULE A
LIST OF PERSONS SUBJECT TO SECTION 5(g) OF THE UNDERWRITING AGREEMENT WHO ARE
REQUIRED TO DELIVER A LETTER SUBSTANTIALLY IN
THE FORM OF EXHIBIT B TO THE UNDERWRITING AGREEMENT
[to be attached]
Exhibit A
____________ Capital Securities
LIFE FINANCIAL CAPITAL TRUST
__% CONVERTIBLE TRUST PREFERRED SECURITIES
(Liquidation Amount $________ per Capital Security)
PRICING AGREEMENT
-----------------
December __, 1997
XXXXX, XXXXXXXX & XXXXX, INC.
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Reference is made to the Underwriting Agreement dated December __, 1997
(the "Underwriting Agreement") relating to the purchase by Xxxxx, Xxxxxxxx &
----------------------
Xxxxx, Inc. (the "Underwriter"), of the above-described Convertible Trust
-----------
Preferred Securities (the "Securities"), of Life Financial Capital Trust, a
----------
statutory business trust created under the Business Trust Act (Chapter 38, Title
12 of the Delaware Code, 12 Del. C. Section 3801 et seq.) (the "Trust").
-----
Pursuant to Section 2 of the Underwriting Agreement, the Company and the
Trust agree with the Underwriter that the initial public offering price per
share for the Securities, determined as provided in said Section 2, shall be
$_____.
1
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN SAID STATE.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement between the
Underwriter, on the one hand, and the Company and the Trust, on the other, in
accordance with its terms.
Very truly yours,
LIFE FINANCIAL CORPORATION
By:________________________________________
Xxxxxx X. Perl, President and
Chief Executive Officer
LIFE FINANCIAL CAPITAL TRUST
By: Life Financial Corporation, as Sponsor
By:____________________________________
Xxxxxx X. Perl, President and
Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXX, XXXXXXXX & XXXXX, INC.
By:______________________________________
Name:__________________________________
Title:_________________________________
2
