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EXHIBIT 1.1
$100,000,000
DORAL FINANCIAL CORPORATION
7.65% Senior Notes due 2016
AGENCY AGREEMENT
March 27, 2001.
POPULAR SECURITIES, INC.
Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxx, Xxxxxx Xxxx 00000
Ladies and Gentlemen:
DORAL FINANCIAL CORPORATION, a Puerto Rico corporation (the
"Company"), proposes to sell an aggregate principal amount of $100,000,000 of
its 7.65% Senior Notes Due 2016 (the "Notes") to the Puerto Rico Conservation
Trust Fund ("Conservation Trust"), in connection with the issuance by
Conservation Trust of its 6.5% Secured Notes Due 2016 (the "CT Notes"). The CT
Notes will be pledged by Conservation Trust to the holders of the CT Notes. You
have agreed to act as placement agent (the "Agent") in connection with the sale
of the Notes to Conservation Trust, and as representative of the underwriters
(the "Underwriters") in connection with the sale of the CT Notes to the public.
References to the Agent shall be deemed to include the Agent in its role as
representative of the Underwriters.
The Company hereby confirms as follows its agreements with you:
1. Sale of Notes; Compensation of Agent.
(a) The Company will sell the Notes to Conservation
Trust at a purchase price of $97,830,000.00. Conservation Trust will in turn
issue and sell the CT Notes to the Underwriters in accordance with the terms of
a Purchase Agreement being executed simultaneously herewith (the "Purchase
Agreement"). The CT Notes will be offered by the Underwriters by means of an
offering circular of Conservation Trust (the "Offering Circular") that will
include as an attachment a prospectus supplement and the Base Prospectus of the
Company described below. Prior to the date hereof, Conservation Trust and the
Company have delivered to the Agent a preliminary offering
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circular of Conservation Trust (the "Preliminary Offering Circular") that
includes as an attachment a preliminary prospectus supplement dated March 8,
2001, and the Base Prospectus of the Company.
(b) As compensation for its services hereunder, the
Company will pay to the Agent a nonrefundable fee equal to $125,000, which shall
be fully earned upon execution of this Agreement.
2. Delivery and Payment. Delivery of the Notes shall be made to
Banco Popular de Puerto Rico, as trustee for the CT Notes, by delivery to
Bankers Trust Company, acting as agent of the Depository Trust Company, against
payment of the purchase price by wire transfer of immediately available funds
to the bank account designated by the Company. Such payment shall be made at
10:00 a.m., New York City time, on the third full business day following the
date of this Agreement, or at such other time on such other date, not later
than seven business days after the date of this Agreement, as may be agreed
upon by the Company and Conservation Trust (such date is hereinafter referred
to as the "Closing Date"). Delivery of the other documents, required to be
delivered as provided herein, shall be made at the offices of X'Xxxxx & Xxxxxx,
250 Xxxxx Xxxxxx Avenue, Eighth Floor, San Xxxx, Puerto Rico.
3. Representations and Warranties of the Company. The Company
represents, warrants and covenants to the Agent and each of the Underwriters
that:
(a) The Company meets the requirements for use of Form
S-3 and a registration statement (Registration No. 333-52978) on Form S-3, as
amended, with respect to the Notes, including a prospectus (the "Base
Prospectus"), has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, and has been filed with the
Commission and has become effective. Such registration statement and prospectus
may have been amended or supplemented prior to the date of this Agreement; any
such amendment or supplement was so prepared and filed, and any such amendment
or supplement filed after the effective date of such registration statement has
become effective. No stop order suspending the effectiveness of the
registration statement has been issued, and, to the Company's knowledge, no
proceeding for that purpose has been instituted or threatened by the
Commission. A prospectus supplement and a final prospectus containing
information permitted to be omitted at the time of effectiveness by Rule 430A
of the Rules and Regulations has been or will be so prepared and filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations on or before
the second business day after the date hereof (or such earlier time as may be
required by the Rules and Regulations); and the Rules and Regulations do not
require the Company to, and, without the Agent's consent, the Company will not,
file a post-effective amendment after the time of execution of this Agreement
and prior to the filing of such final form of prospectus. The registration
statement may be supplemented by one or more forms of preliminary prospectus
supplement, as contemplated by Rule 430 or Rule 430A of the Rules and
Regulations, to be used in connection with the offering and sale of the Notes
(each a "Preliminary Prospectus"). Copies of such registration statements, any
such amendments, and each related Preliminary
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Prospectus and all documents incorporated by reference therein that were filed
with the Commission on or prior to the date of this Agency Agreement have been
delivered to the Agent and their counsel. The term "Registration Statement"
means such registration statement as amended at the time it becomes or became
effective (the "Effective Date"), including financial statements and all
exhibits and any information deemed by virtue of Rule 430A of the Rules and
Regulations to be included in such Registration Statement at the Effective Date
and any prospectus supplement filed thereafter with the Commission and shall
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). The term "Prospectus" means, collectively, the Base
Prospectus together with any prospectus supplement, in the respective forms
they are filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations. Any references herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Base Prospectus,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective
Date, or the date of any Preliminary Prospectus or the Prospectus, as the case
may be, that is incorporated therein by reference. For purposes of this Agency
Agreement, all references to the Registration Statement, the Prospectus, any
preliminary prospectus or any amendment or supplement thereto shall be deemed
to include any copy filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System (XXXXX), and such copy shall be
identical (except to the extent permitted by Regulation S-T) to any Prospectus
delivered to the Agent for use in connection with the offering of the Notes by
the Company.
(b) Each part of the Registration Statement (excluding
any prospectus supplement with respect to an offering of securities other than
the offering of the Notes contemplated hereby), when such part became or
becomes effective, each Preliminary Prospectus, on the date of filing thereof
with the Commission, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at the Closing
Date conformed or will conform in all material respects with the requirements
of the Act and the Rules and Regulations; each part of the Registration
Statement (excluding any prospectus supplement with respect to an offering of
securities other than the offering of the Notes contemplated hereby), when such
part became or becomes effective, did not or will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; each
Preliminary Prospectus, on the date of filing thereof with the Commission, and
the Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission and at the Closing Date, did not or will not
include an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; the foregoing shall not apply to
the statements in or omissions from any such document in reliance upon, and in
conformity with, written information relating to any Underwriter furnished to
the Company by the Agent, or by any Underwriter through the Agent, specifically
for use in the preparation thereof. The Company has not distributed any
offering material in connection with the offering or sale of the Notes other
than the Registration Statement, any Preliminary Prospectus, the Prospectus or
any other materials, if any, permitted by the Act.
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(iii) The documents incorporated by reference in the
Registration Statement, the Prospectus and any amendment or supplement to such
Registration Statement or such prospectus, when they became or become effective
under the Act or were or are filed with the Commission under the Exchange Act,
as the case may be, conformed or will conform in all material respects with the
requirements of the Act, the Rules and Regulations, the Exchange Act and the
rules and regulations of the Commission thereunder (the "Exchange Act Rules and
Regulations"), as applicable.
(d) The only directly or indirectly controlled
subsidiaries of the Company (each, a "Subsidiary" and collectively, the
"Subsidiaries") are those listed on Exhibit A hereto. Except as set forth in
the Prospectus or as acquired in connection with the exercise of its rights as
a creditor, or pursuant to a bona fide collateral pledge arrangement, neither
the Company nor any Subsidiary owns, or at the Closing Date, will own an
interest in any corporation, partnership, trust, joint venture or other
business entity. The Company has been and, at the Closing Date, will be duly
organized and validly existing as a corporation under the laws of the
Commonwealth of Puerto Rico and is and, at the Closing Date, will be in good
standing with the Commonwealth of Puerto Rico. The Company is and will be as of
the Closing Date registered with the Board of Governors of the Federal Reserve
System (the "Federal Reserve") as a bank holding company under the Bank Holding
Company Act of 1956 (the "BHCA") and its election to be treated as a financial
holding company under the BHCA is and will remain in full force and effect.
Each of the Subsidiaries is and, at the Closing Date, will be a corporation
duly organized, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation. Each of the Company and its
Subsidiaries is and, at the Closing Date, will be duly qualified and in good
standing as a foreign corporation in each jurisdiction in which the character
or location of its properties (owned, leased or licensed) or the nature or
conduct of its business or use of its property and assets, makes such
qualification necessary, except where the failure to so qualify would not have
a material adverse effect on the condition, financial or otherwise, or the
earnings, prospects or business affairs of the Company and its Subsidiaries
taken as a whole.
(e) The outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable and are not subject to any preemptive or similar rights. The
Notes to be issued and sold by the Company will be, upon such issuance and
payment therefor, duly authorized, valid, binding and enforceable obligations
of the Company. The Company has, and, upon completion of the sale of the Notes,
will have, an authorized, issued and outstanding capitalization as set forth in
the Registration Statement and the Prospectus. The description of the
securities of the Company in the Registration Statement and the Prospectus is,
and at the Closing Date will be, complete and accurate in all respects. No
holders of securities of the Company are entitled to have such securities
registered under the Registration Statement, except where such rights have been
waived.
(f) The consolidated financial statements and the related
notes of the Company included in the Registration Statement or incorporated
therein by reference and the Prospectus present fairly the financial condition
of the Company and its Subsidiaries as of the dates indicated
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and the consolidated results of operations, and cash flows of the Company and
its Subsidiaries for the periods covered thereby, all in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent basis
throughout the entire periods involved. PricewaterhouseCoopers LLP (the
"Accountants"), who have reported on those of such financial statements and
related notes which are audited, are independent accountants with respect to
the Company and its Subsidiaries within the meaning of the Act and the
applicable and published rules and regulations.
(g) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorization, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
accountability for assets, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(h) Except as set forth in the Registration Statement
and Prospectus, subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the Closing
Date, (i) there has not been, and will not have been, any material adverse
change in the business, properties, financial condition, net worth or results
of operations of the Company and its Subsidiaries considered as one enterprise,
(ii) neither the Company nor any of its Subsidiaries has entered into, or will
have entered into any material transactions other than pursuant to this
Agreement, and (iii) the Company has not, and will not have, paid or declared
any dividends or other distributions of any kind on any class of its capital
stock, except for the payment or declaration of quarterly dividends on the
Company's common stock (the "Common Stock") and the payment and declaration of
monthly dividends on the Company's outstanding preferred stock in the ordinary
course of its business.
(i) The Company and each of its Subsidiaries have good
and marketable title to all properties and assets described in the Registration
Statement, including the documents incorporated by reference therein, and
Prospectus, as owned by it, free and clear of all liens, security interests,
restrictions, pledges, encumbrances, charges, equities, claims, easements,
leases and tenancies (collectively, "Encumbrances") other than those described
in the Registration Statement, or in the documents incorporated by reference
therein, and Prospectus or those that will not materially affect the value of
such properties and assets or will not interfere with the use made and proposed
to be made of such properties and assets. The Company and each of its
Subsidiaries have valid, subsisting and enforceable leases for the properties
and assets described in the Registration Statement, or in the documents
incorporated by reference therein, and Prospectus as leased by them, free and
clear of all Encumbrances, other than those described in the Registration
Statement, or in the documents incorporated by reference therein, and
Prospectus, or those that will not materially affect the value of such
properties and assets or will not interfere with the use made and proposed to
be made of such properties and assets.
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(j) The Company is not required to be registered under
the Investment Company Act of 1940, as amended (the "Investment Company Act").
(k) Except as set forth in the Registration Statement,
or incorporated therein by reference, and Prospectus, there are no actions,
suits, arbitrations, claims, governmental or other proceedings (formal or
informal), or investigations pending or threatened against or affecting the
Company or any of its Subsidiaries, or any directors, officers or shareholders
of the Company or any of its Subsidiaries in their respective capacities as
such, or any of the properties or assets owned or leased by the Company or any
of its Subsidiaries, before or by any Federal, state or Commonwealth of Puerto
Rico court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign (collectively, a "Governmental Body"),
wherein an unfavorable ruling, decision or finding would adversely affect the
business, prospects, financial condition, net worth or results of operations of
the Company and its Subsidiaries taken as a whole and would be required to be
disclosed in the Registration Statement and Prospectus. Neither the Company nor
any Subsidiary is in violation of, or in default with respect to, any law,
rule, or regulation, or any order, judgment, or decree, except as described in
the Prospectus or such as in the aggregate do not now have and can reasonably
be expected in the future not to have a material adverse effect upon the
operations, business, properties, or assets of the Company and its Subsidiaries
taken as a whole; nor is the Company or any Subsidiary presently required under
any order, judgment or decree to take any action in order to avoid any such
violation or default.
(l) The Company and each of its Subsidiaries have and,
at the Closing Date , will have all governmental licenses, permits, consents,
orders, approvals, franchises, certificates and other authorizations
(collectively, "Licenses") necessary to carry on their respective businesses
and own or lease their respective properties as contemplated in the
Registration Statement and Prospectus. The Company and each of its Subsidiaries
have and, at the Closing Date, will have complied in all material respects with
all laws, regulations and orders applicable to it or its business, assets and
properties. Neither the Company nor any of its Subsidiaries is, nor, at the
Closing Date, will be in default (nor has any event occurred which, with notice
or lapse of time or both, would constitute a default) in the due performance
and observation of any term, covenant or condition of any indenture, mortgage,
deed of trust, voting trust agreement, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, lease, contract or other agreement
or instrument (collectively, a "contract or other agreement") to which they are
a party or by which their respective properties are bound or affected, the
violation of which would individually or in the aggregate have a material
adverse effect on the condition, financial or otherwise, or the earnings,
prospects or business affairs of the Company and its Subsidiaries taken as a
whole. There are no governmental proceedings or actions pending or threatened
for the purpose of suspending, modifying or revoking any License held by the
Company and its Subsidiaries.
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(m) No consent, approval, authorization or order of, or
any filing or declaration with, any Governmental Body is required for the
consummation of the transactions contemplated by this Agreement or in
connection with the issuance and sale of the Notes by the Company, except such
as have been obtained and such as may be required under the bylaws and rules of
the National Association of Securities Dealers, Inc. (the "NASD") in connection
with the purchase and distribution of the Notes.
(n) The Company has full power (corporate and other) and
authority to enter into this Agreement and to carry out all the terms and
provisions hereof to be carried out by it. This Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company and is enforceable against the Company in
accordance with the terms hereof, except as rights to indemnity and
contribution may be limited by federal, state or Commonwealth of Puerto Rico
securities laws or the public policy underlying such laws. Except as disclosed
in the Registration Statement and the Prospectus, the execution, delivery and
the performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in the creation or imposition of any
Encumbrance upon any of the properties or assets of the Company or any of the
Subsidiaries pursuant to the terms or provisions of, or result in a breach or
violation of, or conflict with any of the terms or provisions of, or constitute
a default under, or give any other party a right to terminate any of its
obligations under, or result in the acceleration of any obligation under, (i)
the Certificate of Incorporation or By-laws of the Company, in each case as
amended, or (ii) any contract or other agreement to which the Company or any of
the Subsidiaries is a party or by which it or any of the respective assets or
properties are bound or affected, the violation of which would individually or
in the aggregate have a material adverse effect on the condition, financial or
otherwise, or the earnings, prospects or business affairs of the Company and
its Subsidiaries, taken as a whole, or (iii) any judgment, ruling, decree,
order, law, statute, rule or regulation of any Governmental Body applicable to
the Company or any of the Subsidiaries or their respective businesses or
properties, the violation of which would individually or in the aggregate have
a material adverse effect on the financial condition, or the earnings,
prospects or business affairs of the Company and its Subsidiaries, taken as a
whole.
(o) No statement, representation, or warranty made by
the Company in this Agreement or made in any certificate or document required
by this Agreement to be delivered to the Agent was or will be, when made,
inaccurate, untrue or incorrect in any material respect.
(p) Neither the Company nor any of its directors,
officers or affiliates, has taken, nor will he, she or it, take directly or
indirectly, any action designed, or which might reasonably be expected in the
future, to cause or result in, under the Act or otherwise, or which has
constituted, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Notes or otherwise.
(q) Neither the Company nor any of its Subsidiaries is
involved in any collective labor dispute with its employees nor is any such
dispute threatened or imminent.
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(r) Neither the Company nor any of its Subsidiaries nor,
to the Company's best knowledge, any employee or agent of the Company or any
Subsidiary has made any payment of funds of the Company or any Subsidiary or
received or retained any funds of the Company or any Subsidiary in violation of
any law, rule or regulation which payment, receipt or retention of funds is of
a character required to be disclosed in the Prospectus.
(s) The business, operations and facilities of the
Company and its Subsidiaries have been and are being conducted in compliance
with all applicable laws, ordinances, rules, regulations, licenses, permits,
approvals, plans, authorizations or requirements relating to occupational
safety and health, or pollution, or protection of health or the environment
(including, without limitation, those relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants or hazardous or
toxic substances, materials or wastes into ambient air, surface water,
groundwater or land, or relating to the manufacture, processing, distribution,
use, treatment storage, disposal, transport or handling of chemical substances,
pollutants, contaminants or hazardous or toxic substances, materials or wastes,
whether solid, gaseous or liquid in nature) of any governmental department,
commission, board, bureau, agency or instrumentality of the United States, any
state, or the Commonwealth of Puerto Rico or political subdivision thereof, and
all applicable judicial or administrative agency or regulatory decrees, awards,
judgments and orders relating thereto; and neither the Company nor any of its
Subsidiaries has received any notice from any governmental instrumentality or
any third party alleging any violation thereof or liability thereunder
(including, without limitation, liability for costs of investigating or
remediating sites containing hazardous substances and/or damages to natural
resources), except where failure to so comply would not have a material adverse
effect on the financial condition, or the earnings or business affairs of the
Company and its Subsidiaries taken as a whole. The intended use and occupancy
of each of the facilities owned or operated by the Company and its Subsidiaries
complies in all material respects with all applicable codes and zoning laws and
regulations, and there is no pending or threatened condemnation, zoning change,
environmental or other proceeding or action that will in any material respect
adversely affect the size of, use of, improvements on, construction on, or
access to such facilities.
(t) The Company has filed all foreign, federal, state
and local tax returns that are required to be filed or has requested extensions
thereof and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any failure to file that would not
have a material adverse effect on the financial condition of the Company.
(u) The Company meets the requirements for use of Rule
415 under the Rules and Regulations.
(v) The deposit accounts of Doral Bank, a Subsidiary of
the Company ("Doral Bank") and Doral Bank, FSB, a Subsidiary of the Company
("Doral FSB"), are insured by the Savings Association Insurance Fund ("SAIF")
of the Federal Deposit Insurance Corporation
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("FDIC") to the legal maximum, and no proceeding for the termination or
revocation of such insurance is pending or threatened. Doral Bank and Doral FSB
are members in good standing of the Federal Home Loan Bank of New York.
(w) None of the Company, Doral Bank, Doral FSB and their
affiliates, or any of their respective directors or officers, is subject to any
order or directive of, or party to any agreement with, any regulatory agency
having jurisdiction with respect to its business or operations except as
disclosed in the Prospectus.
(x) The Company is engaged in trade or business in
Puerto Rico. The Company derived more than 20% of its gross income from Puerto
Rico sources for the three year period ending with the close of the Company's
taxable year end on December 31, 2000.
(y) The interest rate of the Notes is similar to the
rate that would be payable by the Company on other senior unsecured debt
securities issued by the Company under similar market conditions.
4. Agreements of the Company. The Company covenants and agrees
with the Agent and each of the Underwriters as follows:
(a) The Company will cause the Prospectus Supplement to
be filed as contemplated by Section 3(a) hereof (but only if the Agent has not
reasonably objected thereto by notice to the Company after having been
furnished a copy within a reasonable time prior to filing) and will notify the
Agent promptly of such filing. The Company will not during such period as the
Prospectus is required by law to be delivered in connection with sales of the
CT Notes by any underwriter or dealer (the "Prospectus Delivery Period"), file
any amendment or supplement to the Registration Statement or the Prospectus,
unless a copy thereof shall first have been submitted to the Agent within a
reasonable period of time prior to the filing thereof and the Agent shall not
have objected thereto in good faith.
(b) The Company will use its best efforts to cause the
Registration Statement to remain effective through the completion of the
Underwriters' distribution of the CT Notes, and will notify the Agent promptly,
and will confirm such advice in writing, (i) of the preparation and filing
(subject to Section 4(a)) of any post-effective amendment and when any such
post-effective amendment to the Registration Statement becomes effective, (ii)
of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information, (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose or the threat thereof, (iv) of the suspension of
the qualification or registration of the Notes for offering or sale in any
jurisdiction, or of the initiation or threat of any proceeding for any such
purpose; (v) of the happening of any event during the Prospectus Delivery
Period that in the judgment of the Company makes any statement made in the
Registration Statement or the Prospectus untrue or that requires
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the making of any changes in the Registration Statement or the Prospectus in
order to make the statements therein, in light of the circumstances in which
they are made, not misleading and (vi) of receipt by the Company or any
representative or attorney of the Company of any other communication from the
Commission relating to the Company, the Registration Statement, any preliminary
prospectus or the Prospectus. If at any time the Commission or any jurisdiction
shall threaten to issue, or shall issue, any order suspending the effectiveness
of the Registration Statement or suspending the qualification or registration
of the Notes for sale in any jurisdiction, the Company will make every
reasonable effort to prevent the issuance of such order and, if such an order
should be issued, to obtain the withdrawal of such order at the earliest
possible moment. The Company will use its best efforts to comply with the
provisions of and make all requisite filings with the Commission pursuant to
Rule 430A and to notify the Agent promptly of all such filings.
(c) If, at any time when a Prospectus relating to the
Notes is required to be delivered under the Act, any event occurs as a result
of which, in the judgment of the Company or in the opinion of counsel for the
Underwriters, the Prospectus, as then amended or supplemented, would include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or the Registration
Statement, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein not misleading, or if for any other reason it is necessary
at any time to amend or supplement the Prospectus or the Registration Statement
to comply with the Act or the Rules and Regulations, the Company will promptly
notify the Agent thereof and, subject to Section 4(b) hereof, will prepare and
file with the Commission, at the Company's expense, an amendment to the
Registration Statement or an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance.
(d) The Company will furnish to the Agent, without
charge, two signed copies of the Registration Statement and of any
post-effective amendment thereto, including financial statements and schedules,
and all exhibits thereto and will furnish to the Agent, without charge, for
transmittal to each of the Underwriters, copies of the Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules but without exhibits.
(e) The Company will comply with all the provisions of
all undertakings contained in the Registration Statement.
(f) During the Prospectus Delivery Period, the Company
will promptly furnish to the Underwriters, without charge, as many copies of
each preliminary prospectus, the Prospectus (containing the Prospectus
Supplement) and any amendment or supplement thereto as the Underwriters may
from time to time reasonably request. The Company consents to the use of the
Prospectus, as amended or supplemented from time to time, by the Underwriters
and by all dealers to whom the CT Notes may be sold, both in connection with
the offering or sale of the CT Notes and, thereafter, during the Prospectus
Delivery Period. If during the Prospectus Delivery Period
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any event shall occur which in the judgment of the Company or counsel to the
Underwriters should be set forth in the Prospectus in order to make any
statement therein, in the light of the circumstances under which it was made,
not misleading, or if, in the reasonable opinion of counsel to the
Underwriters, it is necessary to supplement or amend the Prospectus to comply
with law, the Company will forthwith prepare and duly file with the Commission
an appropriate supplement or amendment thereto. Except as required by the
Exchange Act or the Exchange Act Rules and Regulations, the Company shall not
file any document under the Exchange Act before the termination of the
Prospectus Delivery Period if such document would be deemed to be incorporated
by reference into the Prospectus to which the Agent reasonably objects.
(g) During the period of five years commencing on the
Closing Date, the Company will furnish to the Agent, and each other Underwriter
who may so request, copies of such financial statements and other periodic and
special reports as the Company may from time to time distribute generally to
the holders of any class of its capital stock, and will furnish to the Agent,
and each other Underwriter who may so request, a copy of each annual or other
report it shall be required to file with the Commission.
(h) The Company will make generally available to its
security holders as soon as practicable, but not later than ninety (90) days
after the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Section 11(a) of the Act and Rule 158 of the
Rules and Regulations) covering a twelve-month period beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration Statement.
(i) The Company will apply the net proceeds from the
offering and sale of the Notes in the manner set forth in the Prospectus under
"Use of Proceeds."
5. Expenses.
(a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will
pay, or reimburse if paid by the Agent, all costs and expenses incidental to
the performance of the obligations of the Company under this Agreement,
including, but not limited to, costs and expenses of or relating to (i) the
preparation, printing and filing by the Company of the Registration Statement
and exhibits thereto, each Preliminary Prospectus prior to or during the period
specified in the first sentence of Section 4(f) but not exceeding nine (9)
months after the Effective Date, the Prospectus and any amendment or supplement
to the Registration Statement or the Prospectus, (ii) furnishing (including
costs of shipping and mailing) such copies of the Registration Statement, the
Prospectus and any Preliminary Prospectus, and all amendments and supplements
thereto, as may be requested for use in connection with the offering and sale
of the CT Notes by the Underwriters or by dealers to whom CT Notes may be sold,
(iii) any filings required to be made by the Underwriters with the NASD, (iv)
counsel and accountants to the Company, and (v) the transfer agent for the
Notes and the CT Notes; it being
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understood that the proportional cost of printing the portion of the Offering
Circular other than the prospectus supplement and Base Prospectus shall be
borne by Conservation Trust.
(b) If the transactions contemplated by this Agreement
are not consummated or if this Agreement is terminated by the Company pursuant
to any of the provisions hereof, the Company will reimburse the Agent and the
Underwriters for all of their accountable out-of-pocket fees and expenses
(including the fees, disbursements and other charges of their counsel) incurred
by them in connection herewith.
6. Conditions of the Obligations of the Underwriters. The
obligations of each Underwriter under the Purchase Agreement and the
consummation of the transaction contemplated hereunder are subject to the
following conditions:
(a) All filings required under Rule 424 and 430A of the
Rules and Regulations to be made by the Company prior to the Closing shall have
been made by the Company.
(b) (i) No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the qualification
or registration of the Notes under the securities or blue sky laws of any
jurisdiction shall be in effect, and no proceeding for such purposes shall be
pending before or threatened or contemplated by the Commission or the
authorities of any such jurisdiction, (iii) any request for additional
information on the part of the staff of the Commission or any such authorities
shall have been complied with to the satisfaction of the staff of the
Commission or such authorities, and (iv) after the date hereof no amendment or
supplement to the Registration Statement or the Prospectus shall have been
filed unless a copy thereof was first submitted to the Agent did not object
thereto in good faith, and the Agent shall have received certificates, dated
the Closing Date and signed by the Chief Executive Officer of the Company and
the Chief Financial Officer of the Company (who may, as to proceedings
threatened, rely upon the best of their information and belief), to the effect
of the foregoing clauses (i), (ii) and (iii).
(c) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) there shall not
have been a material adverse change in the general affairs, business,
properties, management, financial condition or results of operations of the
Company whether or not arising from transactions in the ordinary course of
business, and (ii) the Company shall not have sustained any material loss or
interference with its business, assets or properties from fire, explosion,
flood or other casualty, or from any labor dispute or any court or legislative
or other governmental action, order or decree, which is not set forth in the
Registration Statement and the Prospectus.
(d) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there shall have
been no litigation or other proceeding instituted
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against the Company or any of its officers, directors or shareholders in their
capacities as such, or any of its assets or properties, before or by any
Governmental Body in which litigation or proceeding an unfavorable ruling,
decision or finding would materially and adversely affect the business,
properties, financial condition, net worth or results of operations of the
Company.
(e) Each of the representations and warranties of the
Company contained herein shall be true and correct at the Closing Date, as if
made on such date, and all covenants and agreements herein contained to be
performed on the part of the Company and all conditions herein contained to be
fulfilled or complied with by the Company at or prior to the Closing Date,
shall have been fully performed, fulfilled or complied with.
(f) The Agent shall have received an opinion from
Xxxxxxxxxxx Xxxxxx & Xxxxxxx, LLP, Puerto Rico counsel for the Company, and an
opinion from Xxxxx & Wood, New York Counsel for the Company, each dated as of
the Closing Date, in form and substance satisfactory to the Agent.
(g) The Agent shall have received an opinion, dated the
Closing Date, from X'Xxxxx & Xxxxxx, counsel to the Underwriters, which opinion
shall be satisfactory in all respects to the Agent.
(h) Concurrently with the execution and delivery of this
Agreement, or, if the Company elects to rely on Rule 430A, on the date of the
Prospectus, the Accountants shall have furnished to the Agent a letter, dated
the date of its delivery (the "Original Letter"), addressed to the Agent and in
form and substance satisfactory to the Agent, to the effect that:
(i) they are independent accountants within the
meaning of the Act and the applicable published rules and regulations
thereunder;
(ii) in their opinion, the consolidated
financial statements of the Company and its Subsidiaries audited by
them and incorporated by reference in the Prospectus comply as to form
in all material respects with the applicable accounting requirements
of the Act, the Exchange Act and the published rules and regulations
thereunder with respect to registration statements on Form S-3;
(iii) on the basis of procedures (but not an
audit in accordance with generally accepted auditing standards)
consisting of (a) reading the minutes of meetings of the stockholders
and the Board of Directors of the Company and its Subsidiaries since
December 31, 2000 as set forth in the minute books through a specified
date not more than five business days prior to the date of delivery of
the Original Letter; (b) reading the unaudited interim financial data
for the period from the date of the latest balance sheet incorporated
by reference in the Prospectus to the date of the latest available
interim financial data; and (c) making inquiries of certain officials
of the Company who have
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responsibility for financial and accounting matters regarding the
specific items for which representations are requested below; nothing
has come to their attention (as of a date not more than five business
days prior to the date of the delivery of such letter) as a result of
the foregoing procedures that caused them to believe that: (1) at the
date of the latest available interim financial data and at a specified
date not more than five business days prior to the date of delivery of
the Original Letter there was any change in the capital stock,
deposits, federal funds purchased or securities sold under agreements
to repurchase or any decreases in the consolidated stockholders'
equity (only as to the latest interim financial data) of the Company
and its Subsidiaries as compared with amounts shown in the December
31, 2000 balance sheet incorporated by reference in the Prospectus and
(2) for the period from December 31, 2000, to the latest interim
financial data available which should be no later than forty (40) days
prior to the date of delivery of the Original Letter, there were any
decreases, as compared with the corresponding period in the preceding
year, in consolidated net interest income, other income, income before
taxes or in the total or per share amounts of net income, except in
all instances for changes or decreases which the Registration
Statement discloses have occurred or may occur, or they shall state
any specific changes or decreases; and
(iv) they have compared specific amounts
expressed in dollars (or percentages derived from such dollar amounts)
and other financial information contained or incorporated by reference
in the Prospectus or Prospectus Supplement, which has been obtained
from accounting records that are subject to the internal controls of
the Company's accounting system or which has been derived directly
from such accounting records and analysis or computation, with the
results obtained from inquiries or reading of such general accounting
records and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial information to be
in agreement with such results.
At the Closing Date, the Accountants shall have furnished to the Agent
a letter, dated the date of its delivery, which shall confirm, on the basis of
a review in accordance with the procedures set forth in the Original Letter,
that nothing has come to their attention during the period from the date of the
Original Letter referred to in the prior sentence to a date (specified in the
letter) not more than five business days prior to the Closing Date, which would
require any change in the Original Letter if it were required to be dated and
delivered at the Closing Date.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (A) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Agent deems such explanation unnecessary, and (B) such changes, decreases or
increases do not, in the sole judgment of the Agent, make it impractical or
inadvisable to proceed with the purchase and delivery of the Notes as
contemplated by the Registration Statement and the Prospectus, as amended as of
the date hereof.
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(i) At the Closing Date, there shall be furnished to the
Agent an accurate certificate, dated the date of its delivery, signed by each
of the Chief Executive Officer and the Chief Financial Officer of the Company,
in form and substance satisfactory to the Agent, to the effect that to the best
of their knowledge:
(i) Each signer of such certificate has
carefully examined the Registration Statement and the Prospectus and
(A) as of the date of such certificate, (x) the Registration Statement
does not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading and (y) the
Prospectus does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading and (B) since
the Effective Date no event has occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein not untrue or misleading in any material respect;
(ii) Each of the representations and warranties
of the Company contained in this Agreement, were, when originally
made, and are, at the time such certificate is delivered, true and
correct in all respects; each of the covenants required herein to be
performed by the Company on or prior to the date of such certificate
has been duly, timely and fully performed and each condition herein
required to be complied with by the Company on or prior to the
delivery of such certificate has been duly, timely and fully complied
with.
(iii) No stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto
and no order directed at any document incorporated by reference in the
Registration Statement or any amendment thereto or the Prospectus has
been issued, and no proceedings for that purpose have been instituted
or threatened or, to the best of the Company's knowledge, are
contemplated by the Commission.
(j) The Company shall have furnished to the Agent such
certificates, letters and other documents, in addition to those specifically
mentioned herein, as the Agent may have reasonably requested as to the accuracy
and completeness at the Closing Date, of any statement in the Registration
Statement or the Prospectus, as to the accuracy at the Closing Date of the
representations and warranties of the Company, as to the performance by the
Company of its obligations hereunder, or as to the fulfillment of the
conditions concurrent and precedent to the obligations hereunder of the
Underwriters.
(k) The Agent shall have received copies, duly certified
by the Secretary or an Assistant Secretary of the Company of the resolutions or
other corporate actions adopted or taken by the Company in connection with the
transactions contemplated herein.
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(l) The Agent shall have received a copy of the
certificate of incorporation of the Company, as amended, certified as of a
recent date by the appropriate officer of the Commonwealth, together with
certificates dated as of a recent date from the Secretary of State of the
Commonwealth as to the existence and good standing of the Company under the
laws of the Commonwealth and copies of the by-laws of the Company certified by
the Secretary or an Assistant Secretary of the Company.
(m) The Underwriters shall have received such other
documentation, certificates and opinions as may be reasonably required by the
Underwriters.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in form
and substance to you. The Company will furnish you with such conformed copies
of such opinions, certificates, letters and other documents as you shall
reasonably request.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person, if any, who controls each Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint or several
(and actions in respect thereof), to which they, or any of them, may become
subject under the Act or other Federal, state or Commonwealth of Puerto Rico
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged untrue statement
made by the Company in Section 3 of this Agreement, (ii) any untrue statement
or alleged untrue statement of any material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, any amendment or
supplement to the Registration Statement or the Prospectus, or under the
headings "Summary - Doral Financial Corporation," "Summary - Doral Notes" and
"Doral Financial" in the Preliminary Offering Circular and Offering Circular,
or (iii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, any amendment or
supplement to the Registration Statement or the Prospectus, or under the
headings "Summary - Doral Financial Corporation," "Summary - Doral Notes" and
"Doral Financial" in the Preliminary Offering Circular and Offering Circular a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse, as incurred, each Underwriter and
each such other person for any legal or other expenses reasonably incurred by
such Underwriter or such other person in connection with investigating
defending or appearing as a third-party witness in connection with any such
loss, claim, damage, liability or action; provided, however, that the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability based solely upon an untrue statement or omission or
alleged untrue statement or omission in any of such documents made in reliance
upon and in conformity with information relating to any Underwriter furnished
in writing to the Company by the Agent on behalf of any Underwriter
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expressly for inclusion therein, or for any information contained in the
Preliminary Offering Circular or Offering Circular for the CT Notes other than
under the headings identified above and other than in the preliminary
prospectus supplement, prospectus supplement or Base Prospectus for the Notes
attached to the Preliminary Offering Circular or the Offering Circular;
provided, further, that such indemnity with respect to any Preliminary
Prospectus or Preliminary Offering Circular shall not inure to the benefit of
any Underwriter (or any such other person) from whom the person asserting any
such loss, claim, damage, liability or action purchased Notes or CT Notes which
are the subject thereof to the extent that any such loss, claim, damage or
liability (i) results from the fact that such Underwriter failed to send or
give a copy of the Prospectus and Offering Circular (as amended or
supplemented) to such person at or prior to the confirmation of the sale of
such Notes or CT Notes to such person in any case where such delivery is
required by the Act and (ii) arises out of or is based upon an untrue statement
or omission of a material fact contained in such Preliminary Prospectus or
Preliminary Offering Circular that was corrected in the Prospectus and Offering
Circular (or any amendment or supplement thereto), unless such failure to
deliver the Prospectus and Offering Circular (as amended or supplemented) was
the result of noncompliance by the Company with Section 4(f). This indemnity
agreement will be in addition to any liability that the Company might otherwise
have. The Company will not, without the prior written consent of each
Underwriter, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not such Underwriter or any
person who controls such Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act is a party to each claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of each Underwriter and each such other person from all
liability arising out of such claim, action, suit or proceeding.
(b) Each Underwriter will indemnify and hold harmless
the Company, and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
director of the Company and each officer of the Company who signed the
Registration Statement against any losses, claims, damages or liabilities (or
actions in respect thereof) to which the Company and any such director, officer
or controlling person may become subject under the Act or other federal, state
or Commonwealth of Puerto Rico statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, any amendment or
supplement to the Registration Statement or the Prospectus or under the
headings "Plan of Distribution" in the Preliminary Offering Circular and
Offering Circular or material fact required to be stated therein or (ii) the
omission or the alleged omission to state in the Registration Statement, any
Preliminary Prospectus or the Prospectus, any amendment or supplement to the
Registration Statement or the Prospectus or under the headings "Plan of
Distribution" in the Preliminary Offering Circular and Offering Circular, a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
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alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the Agent
expressly for use therein; and, subject to the limitation set forth immediately
preceding this clause, will reimburse, as incurred, any legal or other expenses
reasonably incurred by the Company and any such director, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or any action in respect thereof. The Company
acknowledges that, for all purposes under this Agreement, the statements
relating to the Underwriters set forth under the heading "Plan of Distribution"
in the Prospectus and in the Offering Circular constitute the only information
relating to any Underwriter furnished in writing to the Company by the Agent on
behalf of the Underwriters expressly for inclusion in the Registration
Statement, any Preliminary Prospectus, the Prospectus, the Preliminary Offering
Circular or the Offering Circular. This indemnity agreement will be in addition
to any liability that each Underwriter might otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party or parties under this Section 7, notify such indemnifying party or
parties of the commencement thereof, but the omission so to notify the
indemnifying party or parties will not relieve it or them from any liability
which it or they may have to any indemnified party under the foregoing
provisions of this Section 7 or otherwise unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by
the indemnifying party. If any such action is brought against an indemnified
party and it notifies an indemnifying party or parties of its commencement, the
indemnifying party or parties against which a claim is made will be entitled to
participate therein and, to the extent that it or they may wish, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnifying party
shall not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses other than reasonable costs of
investigation subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the reasonable fees and expenses of
more than one separate counsel (in addition to the fees and expenses of local
counsel necessary in connection with any such proceedings) in any one action or
separate but substantially similar actions in the same jurisdiction arising out
of the same general allegations or circumstances, designated by the Agent in
the case of paragraph
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(a) of this Section 7, representing the indemnified parties under paragraph (a)
who are parties to such action or actions), or (ii) the indemnifying party has
authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party. After such notice from the indemnifying
party to such indemnified party, the indemnifying party will not be liable for
the costs and expenses of any settlement of such action effected by such
indemnified party without the written consent of the indemnifying party, unless
such indemnified party waived its rights under this Section 7 in which case the
indemnified party may effect such a settlement without such consent.
(d) If the indemnification provided for in the foregoing
paragraphs of this Section 7 is unavailable or insufficient to hold harmless an
indemnified party under paragraph (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties, on the one hand, and the indemnified party, on the other, from the
offering of the Notes or (ii) if, but only if, the allocation provided by the
foregoing clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties on
the one hand, and the indemnified party, on the other, in connection with the
statements or omissions or alleged statements or omissions that resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Underwriters, on the other,
shall be deemed to be in the same proportion as the total proceeds from the
offering of the Notes (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the
Underwriters in connection with the sale of the CT Notes. Relative fault shall
be determined by reference to whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Agent on behalf of the
Underwriters, the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purposes) 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 losses, claims, damages, liabilities
(or actions in respect thereof) referred to above in this Section 7(d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7(d), no Underwriter
shall be required to contribute any amount in excess of the total underwriting
discounts received by it with respect to the CT Notes purchased by such
Underwriter under this Agreement, less the aggregate amount of any damages that
such Underwriter has otherwise been required to pay in respect of the same or
any substantially similar claim. No person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person
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who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 7(d) are several in
proportion to their respective underwriting obligations and not joint. For
purposes of this Section 7(d), each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
will have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, will
have the same rights to contribution as the Company, subject in each case to
the provisions of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made under this Section 7(d), notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other
obligation(s) it or they may have hereunder or otherwise than under this
paragraph (d) or to the extent that such party or parties were not adversely
affected by such omission. The contribution agreement set forth above shall be
in addition to any liabilities which any indemnifying party may otherwise have.
No party will be liable for contribution with respect to any action or claim
settled without its written consent (which consent will not be unreasonably
withheld).
(e) The indemnity and contribution agreements contained
in this Section 7 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of the Underwriters,
(ii) acceptance of any of the Notes or the CT Notes and payment therefor or
(iii) any termination of this Agreement.
8. Termination. This Agreement may be terminated by the Agent at
any time prior to the Closing Date, by notice to the Company, without liability
on the part of the Agent or any Underwriter to the Company if, prior to
delivery and payment for the Notes, in the sole judgment of the Agent, (i)
trading in the Common Stock or the Preferred Stock of the Company or securities
generally shall have been suspended by the Commission or by the Nasdaq, (ii)
minimum or maximum prices shall have been established for the Common Stock or
the Preferred Stock of the Company or securities generally on either the Nasdaq
or the NYSE, or additional material governmental restrictions, not in force on
the date of this Agreement, shall have been imposed upon trading in securities
generally by any of such market or exchange or by order of the Commission or
any court or other Governmental Authority, (iii) a general banking moratorium
shall have been declared by the United States, New York State, or Commonwealth
of Puerto Rico authorities, or (iv) any material adverse change in the
financial or securities markets in the United States or any outbreak or
material escalation of hostilities or declaration by the United States of a
national emergency or war or other calamity or crisis shall have occurred, the
effect of any of which is such as to make it, in the sole judgment of the
Agent, impracticable or inadvisable to market the CT Notes on the terms and in
the manner contemplated by the Offering Circular. Any termination
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pursuant to Section 8 shall be without liability of any party to any other
party except as provided in Sections 5(a) and 7.
9. Survival. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers, and the several Underwriters set forth in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement shall remain in
full force and effect, regardless of (i) any investigation made by or on behalf
of the Company, any of its officers or directors, any Underwriter or any
controlling person referred to in Section 7 hereof and (ii) delivery of and
payment for the Notes. The respective agreements, covenants, indemnities and
other statements set forth in Sections 6 and 8 hereof shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement.
10. Notices. Notice given pursuant to any of the provisions of
this Agreement shall be in writing and, unless otherwise specified, shall be
mailed or delivered (a) if to the Company, at the office of the Company, 1159
Xxxxxxxx X. Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxx Xxxx 00000, Attention: Xxxxx X.
Xxxxx, Executive Vice President and Treasurer, or (b) if to the Underwriters,
to the office of the Agent, Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxx, Xxxxxx
Xxxx 00000, Attention: Xxxxxx Xxxxx. Any such notice shall be effective only
upon receipt. Any notice under Section 7 or 8 may be made by telex or
telephone, but if so made shall be subsequently confirmed in writing.
11. Successors. This Agreement shall inure to the benefit of, and
shall be binding upon the Agent, the several Underwriters, the Company, and
their respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of
this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of such persons and for the benefit of no other person
except that (i) the indemnities of the Company contained in Section 7 of this
Agreement shall also be for the benefit of any person or persons who control
any Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act and (ii) the indemnities of the Underwriters contained in
Section 7 of this Agreement shall also be for the benefit of the directors of
the Company, the officers of the Company who have signed the Registration
Statement and any person or persons who control the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of CT
Notes from any Underwriter shall be deemed a successor because of such
purchase. This Agreement shall not be assignable by either party hereto without
the prior written consent of the other party.
12. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PUERTO RICO,
WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
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13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters.
Very truly yours,
DORAL FINANCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
Confirmed as of the date first
above mentioned:
POPULAR SECURITIES, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
Acting on its behalf as Agent in
the placement of the Notes with
Conservation Trust and as lead
underwriter of the several
Underwriters named in SCHEDULE 1
hereof in connection with the sale
of the CT Notes.
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SCHEDULE 1
UNDERWRITERS
CT Notes to be
Purchased
Popular Securities, Inc...................................................................
Doral Securities, Inc.....................................................................
Prudential Securities........ ............................................................
Xxxxxx Xxxxxxx Xxxx Xxxxxx................................................................
Xxxxxxx Xxxxx Barney......................................................................
UBS PaineWebber Incorporated of Puerto Rico...............................................
Total:
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EXHIBIT A
LIST OF SUBSIDIARIES
1. Doral Mortgage Corporation
2. Doral Securities, Inc.
3. Centro Hipotecario, Inc.
4. Doral Bank
5. Doral Bank, FSB
6. Doral Money, Inc.
7. SANA Investment Mortgage Bankers, Inc.
8. Doral Properties, Inc.
9. Doral International, Inc.
