$125,000,000
OCWEN CAPITAL TRUST I
__% Capital Securities
UNDERWRITING AGREEMENT
August __, 1997
Xxxxxx Brothers Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Ocwen Capital Trust I (the "Trust"), a statutory business trust
created under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Section 3801
et seq.), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule 1 hereto (the
"Underwriters") ________ of its __% Capital Securities, liquidation amount
$1,000 per Capital Security (the "Capital Securities"). Because NASD
Regulation, Inc. (the "NASD") views the Capital Securities offered under the
Registration Statements (as defined herein) as interests in a direct
participation program, the offering is being made in compliance with Rule
2810 of the NASD Conduct Rules. Offers and sales of the Capital Securities
will be made only to (i) "qualified institutional buyers," as defined in Rule
144A under the Securities Act, and (ii) institutional "accredited investors,"
as defined in Rule 501(a)(1)-(3) of Regulation D under the Securities Act.
The Capital Securities will be guaranteed by Ocwen Financial
Corporation (the "Company") with respect to distributions and amounts payable
upon liquidation or redemption (the "Guarantee"), to the extent set forth in
the Guarantee Agreement (the "Guarantee Agreement"), to be dated as of the
Closing Date (as defined below), executed and delivered by the Company and
The Chase Manhattan Bank, as trustee (the "Guarantee Trustee"), for the
benefit of the holders from time to time of the Capital Securities. The
proceeds from the sale of the Capital Securities to the Underwriters will be
aggregated with the entire proceeds from the sale by the Trust to the Company
of the common securities of the Trust (the "Common Securities") and will be
used by the Trust to purchase the ___% Junior Subordinated Debentures due
2027 (the "Debentures") issued by the Company. The Capital Securities and
the Common Securities will be issued pursuant to the Amended and Restated
Declaration of Trust of the Trust, to be dated as of the Closing Date (the
"Declaration"), among the Company, as Depositor, the trustees named therein
(the "Trustees") and the holders from time to time of the Capital
Securities and the Common Securities, which represent undivided beneficial
interests in the assets of the Trust. The Debentures will be issued pursuant
to a Junior Subordinated Indenture, to be dated as of the Closing Date (the
"Indenture"), between the Company and The Chase Manhattan Bank, as trustee
(the "Debenture Trustee"). The Capital Securities, the Guarantee and the
Debentures are collectively referred to herein as the "Offered Securities".
This Agreement, the Indenture, the Declaration and the Guarantee Agreement
are referred to collectively as the "Operative Documents".
1. Representations, Warranties and Agreements of the Company. Each
of the Trust and the Company, jointly and severally, represents, warrants and
agrees that:
(a) A registration statement on Form S-1, and amendments
thereto, with respect to the Capital Securities has (i) been
prepared by the Trust and the Company in conformity with the
requirements of the United States Securities Act of 1933 (the
"Securities Act") and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effective under
the Securities Act; and a second registration statement on Form S-1
with respect to the Capital Securities (i) may also be prepared by
the Trust and the Company in conformity with the requirements of the
Securities Act and the Rules and Regulations and (ii) if to be so
prepared, will be filed with the Commission under the Securities Act
pursuant to Rule 462(b) of the Rules and Regulations on the date
hereof. Copies of the first such registration statement and the
amendments to such registration statement, together with the form of
any such second registration statement, have been delivered by the
Trust and the Company to you as the representatives (the
"Representatives") of the Underwriters. As used in this Agreement,
"Effective Time" means (i) with respect to the first such
registration statement, the date and the time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission and (ii)
with respect to any second registration statement, the date and time
as of which such second registration statement is filed with the
Commission, and "Effective Times" is the collective reference to
both Effective Times; "Effective Date" means (i) with respect to the
first such registration statement, the date of the Effective Time of
such registration statement and (ii) with respect to any second
registration statement, the date of the Effective Time of such
second registration statement, and "Effective Dates" is the
collective reference to both Effective Dates; "Preliminary
Prospectus" means each prospectus included in any such registration
statement, or amendments thereof, before it became effective under
the Securities Act and any prospectus filed with the Commission by
the Trust and the Company with the consent of the Representatives
pursuant to Rule 424(a) of the Rules and Regulations; "Primary
Registration Statement" means the first registration statement
referred to in this Section 1(a), as amended, at its Effective Time,
"Rule 462(b) Registration Statement" means the second registration
statement, if any, referred to in this Section 1(a), as filed with
the Commission, and "Registration
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Statements" means both the Primary Registration Statement and any
Rule 462(b) Registration Statement, including in each case all
information contained in the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations in
accordance with Section 5(a) hereof and deemed to be a part of the
Registration Statements as of the Effective Time of the Primary
Registration Statement pursuant to paragraph (b) of Rule 430A of the
Rules and Regulations; and "Prospectus" means such final prospectus,
as first filed with the Commission pursuant to paragraph (1) or (4)
of Rule 424(b) of the Rules and Regulations. The Commission has not
issued any order preventing or suspending the use of any Preliminary
Prospectus.
(b) The Primary Registration Statement conforms (and the Rule
462(b) Registration Statement, if any, the Prospectus and any
further amendments or supplements to the Registration Statements or
the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform) in all material
respects to the requirements of the Securities Act and the Rules and
Regulations and do not and will not, as of the applicable Effective
Date (as to the Registration Statements and any amendment thereto)
and as of the applicable filing date (as to the Prospectus and any
amendment or supplement thereto) contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided that no representation or warranty is made as
to information contained in or omitted from the Registration
Statements or the Prospectus in reliance upon and in conformity with
written information furnished to the Trust and the Company through
the Representatives by or on behalf of any Underwriter specifically
for inclusion therein.
(c) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description thereof
contained in the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and,
except for directors' qualifying shares and as set forth in the
Registration Statements and the Prospectus, are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; the Company is a savings and loan
holding company duly registered under the Home Owners' Loan Act, as
amended ("HOLA"), and duly organized and validly existing under the
laws of the state of Florida, with full power and authority to own
its properties and conduct its business as described in the
Registration Statements and the Prospectus, and to execute and
deliver this Agreement; the Company owns, directly or indirectly,
beneficially and of record 100% of the outstanding shares of capital
stock of Ocwen Federal Bank FSB (the "Bank"); the Bank is a federal
savings bank duly organized and validly existing under the laws of
the United States with full power and authority to own its
properties and conduct its business
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as described in the Registration Statements and the Prospectus; the
Bank is a member in good standing of the Federal Home Loan Bank
System; the savings accounts of depositors in the Bank are insured
by the Federal Deposit Insurance Corporation (the "FDIC") to the
fullest extent permitted by law and the rules and regulations of the
FDIC, and no proceedings for the termination of such insurance are
pending, or to the best of the Company's knowledge, threatened.
(d) Each of the Company's subsidiaries (as defined in Section
15) have been duly formed and are validly existing and in good
standing under the laws of their respective jurisdictions of
incorporation; the Company and each of its subsidiaries are duly
qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification and in which the failure
singularly or in the aggregate, to be so qualified could have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects
of the Company and its subsidiaries, and have all power and
authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged; and none of the
subsidiaries (other than the Bank and BCBF, L.L.C. ("BCBF"), each a
"Significant Subsidiary" and together the "Significant
Subsidiaries") is a "significant subsidiary", as such term is
defined in Rule 405 of the Rules and Regulations.
(e) All of the outstanding beneficial interests of the Trust
have been duly authorized and validly issued and are fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust except as provided in Section [9.1(b)] of the Declaration; the
holders of such beneficial interests of the Trust have no preemptive
or other rights to acquire Capital Securities or Common Securities;
there are no restrictions on transfers of the Capital Securities and
the Common Securities except as required under the Securities Act
and the Declaration; the holders of the Capital Securities will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit incorporated under
the General Corporation Law of the State of Delaware; and all of the
issued and outstanding Common Securities of the Trust will be
directly owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(f) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act with the
power and authority to own property and to conduct its business as
described in the Prospectus.
(g) The Declaration has been duly authorized; and when the
Capital Securities are delivered and paid for pursuant to this
Agreement on the Closing Date, the Declaration will have been duly
executed and delivered and will constitute a valid and legally
binding instrument enforceable in accordance with
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its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(h) The Guarantee Agreement has been duly authorized; and when
the Capital Securities are delivered and paid for pursuant to this
Agreement on the Closing Date, the Guarantee Agreement will have
been duly executed and delivered, assuming due authorization,
execution and delivery by the Guarantee Trustee, and will constitute
a valid and legally binding instrument enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(i) The Capital Securities and the Common Securities conform to
the descriptions thereof contained in the Prospectus.
(j) The Indenture has been duly authorized; and on the Closing
Date the Indenture will have been duly executed and delivered by the
Company and, assuming due authorization, execution and delivery by
the Debenture Trustee, will constitute a valid and legally binding
obligation of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(k) The Debentures have been duly authorized; and when the
Debentures are executed by the Company and delivered on the Closing
Date to the Debenture Trustee for authentication in accordance with
the Indenture and when authenticated in the manner provided for in
the Indenture and delivered against payment therefor, the Debentures
will conform to the descriptions thereof contained in the Prospectus
and will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(l) The execution, delivery and performance of the Operative
Documents by the Trust and the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Trust, the Company or any of the Company's subsidiaries is a party
or by which the Trust, the Company or any of the Company's
subsidiaries is bound or to which any of the properties or assets of
the Trust, the Company or any of the Company's subsidiaries is
subject except for such breaches or violations which would not,
singularly or in the aggregate, have a material
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adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the
Trust, the Company and the Company's subsidiaries, nor will such
actions result in any violation of the provisions of the charter (or
other organizational document) or by-laws of the Company or any of
its subsidiaries, the Declaration or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Trust, the Company or any of the Company's
subsidiaries or any of their properties or assets; and except for
the registration of the Capital Securities under the Securities Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Capital Securities by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and performance of
the Operative Documents by the Trust or the Company and the
consummation of the transactions contemplated thereby.
(m) There are no contracts, agreements or understandings
between the Trust or the Company and any person granting such person
the right to require the Trust or the Company to file a registration
statement under the Securities Act with respect to any securities of
the Trust owned or to be owned by such person or to require the
Trust or the Company to include such securities in the securities
registered pursuant to the Registration Statements or in any
securities being registered pursuant to any other registration
statement filed by the Trust and the Company under the Securities
Act.
(n) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has not
been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change,
or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Registration Statements.
(o) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statements
or included in the Prospectus present fairly the financial condition
and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved,
except as otherwise stated therein.
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(p) Price Waterhouse LLP, who have certified certain financial
statements of the Company and BCBF, whose reports appear in the
Prospectus and who have delivered the initial letter referred to in
Section 7(g) hereof, are independent public accountants as required
by the Securities Act and the Rules and Regulations.
(q) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any property or asset of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of
its subsidiaries, are reasonably likely to have a material adverse
effect on the consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company and its
subsidiaries; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or by others.
(r) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to
either of the Registration Statements by the Securities Act or by
the Rules and Regulations which have not been described in the
Prospectus or filed as exhibits to either of the Registration
Statements or incorporated therein by reference as permitted by the
Rules and Regulations.
(s) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other
hand, which is required to be described in the Prospectus which is
not so described.
(t) The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date
hereof and has paid all taxes due thereon, and no tax deficiency has
been determined adversely to the Company or any of its subsidiaries
which has had (nor does the Company have any knowledge of any tax
deficiency which, if determined adversely to the Company or any of
its subsidiaries, is reasonably likely to have) a material adverse
effect on the consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company and its
subsidiaries.
(u) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Registration Statements, the Company has not (i)
issued or granted any securities,(ii) incurred any liability or
obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of
business,(iii) entered into any transaction not in the ordinary
course of business or (iv)declared or paid any dividend on its
capital stock.
(v) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide
reasonable assurance that (A)
7
transactions are executed in accordance with management's
authorization,(B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain
accountability for its assets,(C) access to its assets is permitted
only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing
assets at reasonable intervals.
(w) Neither the Company nor any of the Company's subsidiaries
is in violation of its charter (or other organizational document) or
by-laws; the Trust is not in violation of its certificate of Trust
or Declaration; and neither the Trust, the Company nor any of the
Company's subsidiaries (i) is in default in any material respect,
and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject or (ii)
is in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its
properties or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of
its properties or assets or to the conduct of its business.
(x) Neither the Trust nor the Company nor any subsidiary of the
Company is an "investment company" within the meaning of such term
under the Investment Company Act of 1940 and the rules and
regulations of the Commission thereunder.
2. Purchase of the Capital Securities by the Underwriters. On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Trust agrees to sell
$125,000,000 of it's Capital Securities to the several Underwriters and each
of the Underwriters, severally and not jointly, agrees to purchase the
respective liquidation amount of Capital Securities set forth opposite that
Underwriter's name in Schedule 1 hereto. The respective purchase obligations
of the Underwriters with respect to the Capital Securities shall be rounded
among the Underwriters to avoid fractional shares, as the Representatives may
determine.
The Trust shall not be obligated to deliver any of the certificates
evidencing the Capital Securities to be delivered on the Delivery Date (as
hereinafter defined) except upon payment for all the Capital Securities to be
purchased on the Delivery Date as provided herein.
3. Offering of Capital Securities by the Underwriters. Upon
authorization by the Representatives of the release of the Capital
Securities, the several Underwriters propose to offer the Capital Securities
for sale upon the terms and conditions set forth in the Prospectus; provided,
8
however, that no Capital Securities registered pursuant to the Rule 462(b)
Registration Statement, if any, shall be offered prior to the Effective Time
thereof.
4. Delivery of and Payment for the Capital Securities. Delivery of
and payment for the Capital Securities shall be made at the office of Xxxxxxx
Xxxxxxx & Xxxxxxxx at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, at
10:00 A.M., New York City time, on the third (fourth, if pricing occurs after
4:30 p.m. New York City time) full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Representatives and the Company and the Trust. This date and
time are sometimes referred to as the "Delivery Date." On the Delivery Date,
the Trust shall deliver or cause to be delivered certificates representing
the Capital Securities to the Representatives for the account of each
Underwriter against payment to or upon the order of the Trust of the purchase
price by wire transfer. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. Upon delivery, the
certificates evidencing the Capital Securities shall be registered in such
names and in such denominations as the Representatives shall request in
writing not less than two full business days prior to the Delivery Date. For
the purpose of expediting the checking and packaging of the certificates for
the Capital Securities, the Company shall make the certificates representing
the Capital Securities available for inspection by the Representatives in New
York, New York, not later than 2:00 P.M., New York City time, on the business
day prior to the Delivery Date.
As compensation for the Underwriters' commitment and in view of the
fact that the proceeds of the sale of the Capital Securities and the Common
Securities will be used to purchase the Debentures, the Company will pay, on
the Closing Date, to the Underwriters a commission of __% of the liquidation
amount of the Capital Securities purchased by the Underwriters on the Closing
Date by wire transfer to a bank account designated by Xxxxxx Brothers Inc.
5. Further Agreements of the Company. The Trust and the Company
agree:
(a) To prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representatives and to file
such Rule 462(b) Registration Statement with the Commission not
later than the day following the execution and delivery of this
Agreement; to prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than 10:00 A.M., New York City
time, on the day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the
Registration Statements or to the Prospectus except as permitted
herein; to advise the Representatives, promptly after it receives
notice thereof of the time when any amendment to either Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to
provide the Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or
9
suspending the use of any Preliminary Prospectus or the Prospectus,
of the suspension of the qualification of the Capital Securities for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statements or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to Xxxxxx Brothers Inc. a signed copy
of each of the Registration Statements as originally filed with the
Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives in New York
City such number of the following documents as the Representatives
shall reasonably request: (i) conformed copies of the Registration
Statements as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than this
Agreement and the computation of per share earnings) and (ii) each
Preliminary Prospectus, the Prospectus (not later than 10:00 A.M.,
New York City time, of the day following the execution and delivery
of this Agreement) and any amended or supplemented Prospectus (not
later than 10:00 A.M., New York City time, on the day following the
date of such amendment or supplement); and, if the delivery of a
prospectus is required at any time after the Effective Time of the
Primary Registration Statement in connection with the offering or
sale of the Capital Securities (or any other securities relating
thereto) and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary to amend or supplement the Prospectus in order
to comply with the Securities Act, to notify the Representatives
and, upon their request, to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many copies as
the Representatives may from time to time reasonably request of an
amended or supplemented Prospectus which will correct such statement
or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statements or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by
the Commission;
(e) Prior to filing with the Commission (i) any amendment to
either of the Registration Statements or supplement to the
Prospectus or (ii) any Prospectus
10
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Representatives and counsel for the Underwriters and
obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date of the
Primary Registration Statement, to make generally available to the
holders of Capital Securities and to deliver to the Representatives
an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities
Act and the Rules and Regulations (including, at the option of the
Company, Rule 158);
(g) For a period of five years following the Effective Date of
the Primary Registration Statement, to furnish to the
Representatives (i) copies of all materials furnished by the Company
to its shareholders generally, (ii) copies of all public reports and
all reports and financial statements furnished by the Company to the
principal national securities exchange or automated quotation system
upon which the Company's Common Stock may be listed or quoted
pursuant to requirements of or agreements with such exchange or
system, (iii) copies of all reports filed by the Company with the
Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder and (iv) copies of the publicly available
reports filed by the Bank with the OTS;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Capital
Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Capital Securities; provided that
in connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction; and
(i) During the period beginning from the date of this Agreement
and continuing to and including the earlier of (i) the termination
of trading restrictions on the Capital Securities, as communicated
to the Company by the Representatives, and (ii) 90 days following
the Closing Date, the Trust and the Company will not offer, sell,
contract to sell or otherwise dispose of any additional securities
of the Trust or the Company substantially similar to the Capital
Securities or any securities convertible into or exchangeable for or
that represent the right to receive any such similar securities,
without the consent of Xxxxxx Brothers Inc., on behalf of the
Representatives.
6. Expenses. The Company agrees to pay all expenses incidental to
the performance of its and the Trust's obligations under the Operative
Documents, including (a) the costs incident to the authorization, issuance,
sale and delivery of the Capital Securities and any taxes payable in that
connection; (b) the costs incident to the preparation, printing and filing
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under the Securities Act of the Registration Statements and any amendments
and exhibits thereto; (c) the costs of distributing the Registration
Statements as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of reproducing
and distributing the Operative Documents; (e) the costs of distributing the
terms of agreement relating to the organization of the underwriting syndicate
and selling group to the members thereof by mail, telex or other means of
communication; (f) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of sale
of the Capital Securities; (g) any applicable listing or other fees; (h) the
fees and expenses of qualifying the Capital Securities under the securities
laws of the several jurisdictions as provided in Section 5(h) and of
preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Underwriters); and (i) all other costs
and expenses incident to the performance of the obligations of the Trust and
the Company under this Agreement; provided that, except as provided in this
Section 6 and in Section 11, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer
taxes on the Capital Securities which they may sell and the expenses of
advertising any offering of the Capital Securities made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when
made and on the Delivery Date, of the representations and warranties of the
Company and the Trust contained herein, to the performance by the Company of
its obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Rule 462(b) Registration Statement, if any, and the
Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a); no stop order suspending the
effectiveness of either of the Registration Statements or any part
thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in
either of the Registration Statements or the Prospectus or otherwise
shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that either of the
Registration Statements or the Prospectus or any amendment or
supplement thereto contains any untrue statement of a fact which, in
the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of the Operative Documents,
and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all
respects to counsel for the Underwriters, the Company and
12
the Trust shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass
upon such matters.
(d) Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P. shall have furnished
to the Representatives its written opinion, as counsel to the Trust
and the Company, addressed to the Underwriters and dated the
Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company is a savings and loan holding company
duly registered under HOLA;
(ii) The Bank has been duly organized and is validly
existing as a federal savings bank under the laws of the United
States of America, with full corporate power and authority to
own its properties and conduct its business as described in the
Registration Statements and the Prospectus, and is a member of
the Federal Home Loan Bank of New York;
(iii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus;
and all of the issued shares of capital stock of the Bank have
been duly and validly authorized and issued and are fully paid,
non-assessable and are directly or indirectly owned of record
and, to such counsel's knowledge, beneficially by the Company,
free and clear of all liens, encumbrances, equities or claims;
(iv) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property or asset
of the Company or any of its subsidiaries is the subject which,
if determined adversely to the Company or any of its
subsidiaries, reasonably could be expected to have a material
adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries; and, to such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or by others;
(v) The Primary Registration Statement was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Rule 462(b) Registration
Statement, if any, was filed with the Commission on the date
specified therein, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified
therein and no stop order suspending the effectiveness of
either of the Registration
13
Statements has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(vi) The Registration Statements, as of their respective
Effective Dates, and the Prospectus, as of its date, and any
further amendments or supplements thereto, as of their
respective dates, made by the Trust and the Company prior to
the Delivery Date (other than the financial statements and
other financial and statistical data contained therein, as to
which such counsel need express no opinion) complied as to form
in all material respects with the requirements of the
Securities Act and the Rules and Regulations;
(vii) The statements contained in the Prospectus under the
captions "Regulation", "Taxation-Federal Taxation" and
"Description of Capital Stock", insofar as they describe
federal statutes, rules and regulations, constitute a fair
summary thereof and the opinion of such counsel filed as
Exhibit 8 to the Registration Statements is confirmed and the
Underwriters may rely upon such opinion as if it were addressed
to them;
(viii) The statements made in the Prospectus under the
captions "Description of Junior Subordinated Debentures", "The
Trust", "Description of Capital Securities", "Description of
Guarantee" and "Relationship Among the Capital Securities, the
Junior Subordinated Debentures and the Guarantee", insofar as
such statements purport to constitute summaries of the terms of
the Capital Securities, the Junior Subordinated Debentures and
the Guarantee Agreement, constitute accurate summaries of the
terms of the Capital Securities, Junior Subordinated Debentures
and Guarantee Agreement;
(ix) The statements in the Prospectus under the caption
"Certain United States Federal Income Tax Consequences" are
accurate and fairly summarize the matters referred to therein;
(x) To such counsel's knowledge, there are no contracts or
other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statements
by the Securities Act or by the Rules and Regulations which
have not been described or filed as exhibits to the
Registration Statements or incorporated therein by reference as
permitted by the Rules and Regulations;
(xi) This Agreement has been duly authorized, executed and
delivered by the Company;
14
(xii) The Declaration has been duly authorized, executed
and delivered by the Company;
(xiii) The Indenture has been duly authorized, executed
and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Indenture
Trustee, constitutes a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with
its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating or affecting creditors' rights generally,
general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; and the Debentures have been duly
authorized, executed and delivered by the Company in accordance
with the provisions of the Indenture and, assuming due
authentication by the Trustee, when delivered to and paid for
by the Trust as contemplated by this Agreement, will constitute
legal, valid and binding obligations of the Company entitled to
the benefits of the Indenture and enforceable against the
Company in accordance with their terms (subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing);
(xiv) The Guarantee Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the Guarantee
Trustee, constitutes a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with
its terms (subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating or affecting creditors' rights generally,
general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing);
(xv) The issue and sale of the Capital Securities being
delivered on the Delivery Date by the Trust and the compliance
by the Trust and the Company with all of the provisions of the
Operative Documents and the consummation of the transactions
contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of
its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the properties or
assets of the Company or any of its subsidiaries is subject,
except for such conflicts, breaches, violations or defaults
which individually or in the aggregate would not have a
material adverse effect
15
on the operations, business or condition of the Company and its
subsidiaries taken as a whole, nor will such actions result in
any violation of the provisions of the charter or by-laws of
the Company or any of its subsidiaries or any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties
or assets; and, except for the registration of the Capital
Securities under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable state or
foreign securities laws in connection with the purchase and
distribution of the Capital Securities by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of
the Operative Documents by the Trust or the Company and the
consummation of the transactions contemplated hereby and
thereby;
(xvi) The savings accounts of depositors in the Bank are
insured by the FDIC to the fullest extent permitted by law and
the rules and regulations of the FDIC, and no proceedings for
the termination of such insurance are pending, or to such
counsel's knowledge, threatened; and
(xvii) To such counsel's knowledge, neither the Company
nor any of its subsidiaries is party to or otherwise the
subject of any consent decree, memorandum of understanding,
written agreement or similar supervisory or enforcement
agreement or understanding with the OTS, the FDIC or any other
government authority or agency responsible for the supervision,
regulation or insurance of depository institutions or their
holding companies.
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America and the laws of Florida. Such counsel
shall also have furnished to the Representatives a written
statement, addressed to the Underwriters and dated the Delivery
Date, in form and substance satisfactory to the Representatives, to
the effect that (x) such counsel has, in its capacity as special
counsel to the Company, participated in conferences with officers
and other representatives of the Company, representatives of the
independent public accountants of the Company and representatives of
the Representatives at which the contents of the Registration
Statements and the Prospectus have been discussed, and (y) based on
the foregoing, no facts have come to the attention of such counsel
which lead it to believe that the Registration Statements, as of
their respective Effective Dates, contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading, or that the Prospectus contains any untrue statement
of a
16
material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading. The foregoing opinion and statement may be qualified by
a statement to the effect that such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statements or the
Prospectus, except for the statements made in the Prospectus under
the captions "Regulation", "Taxation-Federal Taxation", "Description
of Capital Stock", "Description of Junior Subordinated Debentures",
"The Trust", "Description of Capital Securities", "Description of
Guarantee" and "Relationship Among the Capital Securities, the
Junior Subordinated Debentures and the Guarantee", insofar as such
statements relate to the Capital Securities and concern legal
matters.
(e) Xxxx X. Xxxxx, Managing Director, General Counsel and Secretary
of the Company, shall have furnished to the Representatives its written
opinion addressed to the Underwriters and dated the Delivery Date, in
form and substance satisfactory to the Representatives, to the effect
that:
(i) All of the issued shares of capital stock of each
Significant Subsidiary of the Company have been duly and
validly authorized and issued and are fully paid,
non-assessable and are directly or indirectly owned of record
and beneficially by the Company, free and clear of all liens,
encumbrances, equities or claims;
(ii) Each of the Company's Significant Subsidiaries has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation; the Company and each of its subsidiaries are
duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of
their respective businesses requires such qualification (other
than those jurisdictions in which the failure to so qualify
would not have a materially adverse effect on the Company or
the Company and its subsidiaries taken as a whole), and have
all the power and authority necessary to own or hold their
respective properties and conduct the businesses in which they
are engaged;
(iii) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property or asset of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or
any of its subsidiaries, reasonably could be expected to have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries; and, to the best
of such counsel's
17
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or by others;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) The Declaration has been duly authorized, executed
and delivered by the Company;
(vi) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization,
execution and delivery thereof by the Indenture Trustee,
constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating or affecting creditors' rights generally,
general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; and the Debentures have been duly
authorized, executed and delivered by the Company in accordance
with the provisions of the Indenture and, assuming due
authentication by the Trustee, when delivered to and paid for
by the Trust as contemplated by this Agreement, will constitute
legal, valid and binding obligations of the Company entitled to
the benefits of the Indenture and enforceable against the
Company in accordance with their terms (subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing);
(vii) The Guarantee Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the Guarantee
Trustee, constitutes a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with
its terms (subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating or affecting creditors' rights generally,
general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing); and
(viii) The issue and sale of the Capital Securities being
delivered on the Delivery Date by the Trust and the compliance
by the Trust and the Company with all of the provisions of the
Operative Documents and the consummation of the transactions
contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed
18
of trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries
is bound or to which any of the properties or assets of the
Company or any of its subsidiaries is subject, except for such
conflicts, breaches, violations or defaults which individually
or in the aggregate would not have a material adverse effect on
the operations, business or condition of the Company and its
subsidiaries taken as a whole, nor will such actions result in
any violation of the provisions of the charter (or other
organizational document) or by-laws of the Company or any of
its subsidiaries or any statute or any decree, judgment or
order of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any
of their properties or assets; and, except for the registration
of the Capital Securities under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with
the purchase and distribution of the Capital Securities by the
Underwriters, no consent, approval, authorization or order of,
or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and
performance of the Operative Documents by the Trust and the
Company and the consummation of the transactions contemplated
hereby and thereby.
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America and the laws of Florida. Such counsel
shall also have furnished to the Representatives a written
statement, addressed to the Underwriters and dated the Delivery
Date, in form and substance satisfactory to the Representatives, to
the effect that (x) such counsel has acted as counsel to the Company
in connection with the preparation of the Registration Statements,
and (y) based on the foregoing, no facts have come to the attention
of such counsel which lead it to believe that the Registration
Statements, as of their respective Effective Dates, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus contains
any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading. The foregoing opinion and
statement may be qualified by a statement to the effect that such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statements or the Prospectus.
(f) Xxxxxxxx Xxxxxx & Finger shall have furnished to the
Representatives its written opinion, as special counsel to the Trust
and the Company, addressed
19
to the Underwriters and dated the Delivery Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made;
(ii) Under the Delaware Act and the Declaration, the Trust
has the trust power and authority to own its property and
conduct its business as set forth in the Declaration;
(iii) The Declaration constitutes a valid and binding
obligation of the Company and the Trustees, and is enforceable
against the Company and the Trustees in accordance with its
terms, subject, as to enforcement, to the effect upon the
Declaration of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent transfer
and other similar laws relating to the rights and remedies of
creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution;
(iv) Under the Delaware Act and the Declaration, the Trust
has the trust power and authority (i) to execute and deliver,
and to perform its obligations under, this Agreement and (ii)
to issue and perform its obligations under the Capital
Securities and the Common Securities;
(v) Under the Delaware Act and the Declaration, the
execution and delivery by the Trust of this Agreement, and the
performance by the Trust of its obligations hereunder, have
been duly authorized by all necessary trust action on the part
of the Trust;
(vi) The Capital Securities have been duly authorized by
the Declaration and are duly and validly issued and, subject to
the qualifications set forth herein, fully paid and
nonassessable undivided beneficial interests in the assets of
the Trust and are entitled to the benefits of the Declaration.
The holders of the Capital Securities, as beneficial owners of
the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State
of Delaware. Such counsel may note that the holders of Capital
Securities may be obligated, pursuant to the Declaration, (i)
to provide indemnity and/or
20
security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of certificates for
Capital Securities and the issuance of replacement certificates
for Capital Securities, and (ii) to provide security or
indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and powers under the
Declaration;
(vii) Under the Delaware Act and the Declaration, the
issuance of the Capital Securities is not subject to preemptive
rights;
(viii) The issuance and sale by the Trust of the Capital
Securities, the execution, delivery and performance by the
Trust of this Agreement, the consummation by the Trust of the
transactions contemplated hereby and compliance by the Trust
with its obligations hereunder, and the performance by the
Company, as sponsor, of its obligations under the Declaration
(A) do not violate (i) any of the provisions of the certificate
of trust of the Trust or the Declaration or (ii) any applicable
Delaware law or administrative regulation (except that such
counsel need express no opinion with respect to the securities
laws of the State of Delaware) and (B) do not require any
consent, approval, license, authorization or validation of, or
filing or registration with, any Delaware legislative,
administrative or regulatory body under the laws or
administrative regulations of the State of Delaware (except
that such counsel need express no opinion with respect to the
securities laws of the state of Delaware); and
(ix) Assuming that the Trust derives no income from or in
connection with sources within the State of Delaware and has no
assets, activities (other than maintaining the Delaware Trustee
and the filing of documents with the Secretary of State of the
State of Delaware) or employees in the State of Delaware, the
holders of the Capital Securities (other than those holders of
Capital Securities who reside or are domiciled in the State of
Delaware) will have no liability for income taxes imposed by
the State of Delaware solely as a result of their participation
in the Trust, and the Trust will not be liable for any income
tax imposed by the State of Delaware.
(g) With respect to the letter of Price Waterhouse LLP
delivered to the Representatives concurrently with the execution of
this Agreement (the "initial letter"), the Trust and the Company
shall have furnished to the Representatives a letter (the
"bring-down letter") of such accountants, addressed to the
Underwriters and dated the Delivery Date (i) confirming that they
are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of the
date of the
21
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than three days prior to the date of the bring-down letter),
the conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial
letter and (iii) confirming in all material respects the conclusions
and findings set forth in the initial letter.
(h) The Company shall have furnished to the Representatives a
certificate, dated the Delivery Date, of its Chairman of the Board,
its President, a Managing Director or a Vice President and its chief
financial officer stating that, to the best of his or her knowledge,
(i) the representations, warranties and agreements of the
Company and the Trust in Section 1 are true and correct as of
the Delivery Date; each of the Company and the Trust has
complied in all material respects with all its agreements
contained herein; and the conditions set forth in Section 7(a)
have been fulfilled;
(ii) (A) neither the Company nor any of its subsidiaries
has sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus
or (B) since such date there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Registration
Statements; and
(iii) they have carefully examined the Registration
Statements and the Prospectus and, in their opinion (A) the
Registration Statements, as of their respective Effective
Dates, and the Prospectus, as of each of the Effective Dates,
did not include any untrue statement of a material fact and did
not omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (B) since the Effective Date of the Primary
Registration Statement, no event has occurred which should have
been set forth in a supplement or amendment to either of the
Registration Statements or the Prospectus.
(i)(i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with
its business from fire, explosion, flood or
22
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus or
(ii) since such date there shall not have been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Registration Statements, the effect of which, in
any such case described in clause (i) or (ii), is, in the judgment
of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Capital Securities being delivered on the
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(j) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following:(i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission,
by such exchange or by any other regulatory body or governmental
authority having jurisdiction,(ii) a banking moratorium shall have
been declared by Federal or state authorities,(iii) the United
States shall have become engaged in hostilities, there shall have
been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war
by the United States or (iv) there shall have occurred such a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the
financial markets in the United States shall be such) as to make it,
in the judgment of a majority in interest of the several
Underwriters, impracticable or inadvisable to proceed with the
public offering or delivery of the Capital Securities being
delivered on the Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(l) The consummation of the Common Stock Offering (as defined
in the Prospectus) shall have occurred.
23
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to
counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Trust and the Company shall, jointly and severally,
indemnify and hold harmless each Underwriter, its officers and employees and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, but not limited to,
any loss, claim, damage, liability or action relating to purchases and sales
of the Capital Securities), to which that Underwriter, officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon,(i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, either of the Registration
Statements or the Prospectus, or in any amendment or supplement thereto, or
(B) in any blue sky application or other document prepared or executed by the
Trust or the Company (or based upon any written information furnished by the
Trust or the Company) specifically for the purpose of qualifying any or all
of the Capital Securities under the securities laws of any state or other
jurisdiction (any such application, document or information being hereinafter
called a "Blue Sky Application"),(ii) the omission or alleged omission to
state in any Preliminary Prospectus, either of the Registration Statements or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to
make the statements therein not misleading, or (iii) any act or failure to
act, or any alleged act or failure to act, by any Underwriter in connection
with, or relating in any manner to, the Capital Securities or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company and the Trust
shall not be liable in the case of any matter covered by this clause (iii) to
the extent that it is determined in a final judgement by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such act or failure to act undertaken or omitted to be
taken by such Underwriter through its gross negligence or wilful misconduct),
and shall reimburse each Underwriter and each such officer, employee and
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter, officer, employee or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Trust and the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, either of the Registration Statements or the
Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application in reliance upon and in conformity with the written information
furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein and described in Section 8(e);
and provided further that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any Underwriter, its officers or
employees or any person controlling that Underwriter on account of any loss,
claim, damage,
24
liability or action arising from the sale of Capital Securities to any person
by that Underwriter if that Underwriter failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Securities Act, and the untrue statement or alleged
untrue statement of any material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from non-compliance by the Trust and
the Company with Section 5(c). The foregoing indemnity agreement is in
addition to any liability which the Trust or the Company may otherwise have
to any Underwriter or to any officer, employee or controlling person of that
Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Trust and the Company, their officers and employees,
each of their directors and each person, if any, who controls the Trust or
the Company within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Trust or the Company or any such director, officer or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon,(i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, either of the Registration
Statements or the Prospectus, or in any amendment or supplement thereto, or
(B) in any Blue Sky Application or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, either of the Registration Statements or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with the written
information furnished to the Company through the Representatives by or on
behalf of that Underwriter specifically for inclusion therein and described
in Section 8(e), and shall reimburse the Trust and the Company and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Trust or the Company or any such director, officer
or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Company or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 8 except to the extent it
has been materially prejudiced by such failure and, provided further, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
25
party, to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that any indemnified
party shall have the right to employ separate counsel in any such action and
to participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party
in writing, (ii) such indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the indemnifying party
and in the reasonable judgment of such counsel it is advisable for such
indemnified party to employ separate counsel or (iii) the indemnifying party
has failed to assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action on behalf
of such indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for all such indemnified parties, which firm shall be
designated in writing by the Representatives, if the indemnified parties
under this Section 8 consist of any Underwriter or any of their respective
officers, employees or controlling persons, or by the Company, if the
indemnified parties under this Section 8 consist of the Trust or the Company
or any of the their directors, officers, employees or controlling persons.
No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss of liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect
thereof,(i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Trust and the Company on the one hand and
the Underwriters on the other from the offering of the Capital Securities or
(ii) if the
26
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Trust and the Company on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Trust and the Company on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Capital Securities purchased
under this Agreement (before deducting expenses) received by the Trust and
the Company, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the Capital
Securities purchased under this Agreement, on the other hand, bear to the
total gross proceeds from the offering of the Capital Securities under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Trust, the Company and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d) shall be
deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Capital Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm that the statements with
respect to the public offering of the Capital Securities set forth on the
cover page of, and under the caption "Underwriting" in, the Prospectus are
correct and constitute the only information furnished in writing to the
Company by or on behalf of the Underwriters specifically for inclusion in the
Registration Statements and the Prospectus.
9. Defaulting Underwriters.
If, on the Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated
27
to purchase the Capital Securities which the defaulting Underwriter agreed
but failed to purchase on the Delivery Date in the respective proportions
which the liquidation amount of Capital Securities opposite the name of each
remaining non-defaulting Underwriter in Schedule 1 hereto bears to the total
liquidation amount of Capital Securities set opposite the names of all the
remaining non-defaulting Underwriters in Schedule 1 hereto; provided,
however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Capital Securities on the Delivery Date if
the total liquidation amount of Capital Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such date
exceeds 9.09% of the total liquidation amount of Capital Securities to be
purchased on the Delivery Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the liquidation amount
of Capital Securities which it agreed to purchase on the Delivery Date
pursuant to the terms of Section 2. If the foregoing maximums are exceeded,
the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representatives who so agree, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the Capital Securities to be purchased on the Delivery Date.
If the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on the Delivery
Date, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Trust and the Company, except that the
Trust and the Company will continue to be liable for the payment of expenses
to the extent set forth in Sections 6 and 11. As used in this Agreement, the
term "Underwriter" includes, for all purposes of this Agreement unless the
context requires otherwise, any party not listed in Schedule 1 hereto who,
pursuant to this Section 9, purchases Capital Securities which a defaulting
Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Trust or the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Capital Securities of a defaulting or withdrawing Underwriter, either the
Representatives or the Trust may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Underwriters may be necessary in
the Registration Statement, the Prospectus or in any other document or
arrangement.
10. Termination. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company prior to delivery of and payment for the Capital Securities if, prior
to that time, any of the events described in Sections 7(i), 7(j) or 7(k)
shall have occurred or if the Underwriters shall decline to purchase the
Capital Securities for any reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the Trust
shall fail to tender the Capital Securities for delivery to the Underwriters
for any reason permitted under this Agreement, or (b) the Underwriters shall
decline to purchase the Capital Securities for any reason permitted under
this Agreement (including the termination of this Agreement pursuant to
Section 10), the Company shall reimburse the Underwriters for the reasonable
fees and expenses of their counsel and for such other out-of-pocket expenses
as shall have been incurred by them in
28
connection with this Agreement and the proposed purchase of the Capital
Securities, and upon demand the Company shall pay the full amount thereof to
the Representatives. If this Agreement is terminated pursuant to Section 9
by reason of the default of one or more Underwriters, the Company shall not
be obligated to reimburse any defaulting Underwriter on account of those
expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 000-000-0000);
(b) if to the Trust or the Company, shall be delivered or sent
by mail, telex or facsimile transmission to the address of the
Company set forth in the Primary Registration Statement, Attention:
Secretary (Fax: 000-000-0000);
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by
the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Trust and
the Company shall be entitled to act and rely upon any request, consent,
notice or agreement given or made on behalf of the Underwriters by Xxxxxx
Brothers Inc. on behalf of the Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Trust, the
Company, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Trust
and the Company contained in this Agreement shall also be deemed to be for
the benefit of the officers and employees of each Underwriter and the person
or persons, if any, who control each Underwriter within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the
Underwriters contained in Section 8(b) of this Agreement shall be deemed to
be for the benefit of directors, officers and employees of the Company and
any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed
to give any person, other than the persons referred to in this Section 13,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Trust and the Company and the Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Capital Securities and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person
controlling any of them.
29
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement,(a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
30
If the foregoing correctly sets forth the agreement among the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
Ocwen Financial Corporation
By
-----------------------------------
Xxxxxxx X. Xxxxx
Chairman, President and
Chief Executive Officer
Ocwen Capital Trust I
By: Ocwen Financial Corporation, as Sponsor
By
-----------------------------------
[ ]
Accepted:
Xxxxxx Brothers Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By Xxxxxx Brothers Inc.
By
-----------------------------------
Authorized Representative
31
SCHEDULE 1
Liquidation amount of
Underwriters Capital Securities
Xxxxxx Brothers Inc.............................
Friedman, Billings, Xxxxxx & Co., Inc...........
Xxxxxx Xxxxxxx & Co. Incorporated...............
-------------------
Total.................................... $
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