Exhibit 1.1
$------------
HAVEN CAPITAL TRUST II
____% CAPITAL SECURITIES
(LIQUIDATION AMOUNT OF $25 PER CAPITAL SECURITY)
UNDERWRITING AGREEMENT
April ____, 1999
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
FIRST ALBANY CORPORATION
LADENBURG ▇▇▇▇▇▇▇▇ & CO. INC.
as Representatives of the several Underwriters
c/o Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Haven Capital Trust II (the "Trust"), a statutory business trust
created under the Business Trust Act (the "Delaware Act") of the State of
Delaware, and Haven Bancorp, Inc., a corporation organized under the laws of
the State of Delaware (the "Company"), each confirms its agreement with each
of the Underwriters listed on Schedule I hereto (collectively, the
"Underwriters"), for whom Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc., First
Albany Corporation and Ladenburg ▇▇▇▇▇▇▇▇ & Co. Inc. are acting as
representatives (in such capacity, the "Representatives"), with respect to
(i) the sale of $______ (the "Initial Securities") of the Trust's ____%
Capital Securities (liquidation amount $25 per security), and the purchase by
the Underwriters, acting severally and not jointly, of the respective number
of Initial Securities set forth opposite the names of the Underwriters in
Schedule I hereto, and (ii) the grant of the option described in Section 1(b)
hereof to purchase all or any part of an additional $________ (the "Option
Securities") of the Trust's ____% Capital Securities (liquidation amount of
$25 per security) to cover overallotments, to the Underwriters, acting
severally and not jointly, in the respective numbers of Option Securities set
forth opposite the names of the Underwriters in Schedule I hereto. The
Initial Securities to be purchased by the Underwriters and all or any part of
the Option Securities subject to the option described in Section l(b) hereof
are hereinafter called, collectively, the "Capital Securities."
The Capital Securities will be guaranteed by the Company with respect
to distributions and amounts payable upon liquidation or redemption of such
Capital Securities (the "Guarantee") to the extent set forth in the Guarantee
Agreement (the "Guarantee Agreement"), to be entered into between the Company
and The Chase Manhattan Bank, as trustee (the "Guarantee Trustee"),
for the benefit of holders, from time to time, of the Capital Securities. The
Company will be the owner of all of the beneficial ownership interests
represented by the common securities (the "Common Securities") of the Trust.
Proceeds from the sale of Capital Securities to the Underwriters and from the
concurrent sale of Common Securities to the Company will be used to purchase
______% Junior Subordinated Deferrable Interest Debentures due ____________,
2029 (the "Debentures") of the Company. The Debentures will be issued by the
Company pursuant to an Indenture (the "Indenture"), to be entered into between
the Company and The Chase Manhattan Bank, as trustee (the "Debenture Trustee").
This Agreement, the Indenture, the Debentures, the Declaration (as defined in
Section 3(ee) hereof) and the Guarantee Agreement are referred to collectively
as the "Operative Documents."
The Trust and the Company have filed with the Securities and Exchange
Commission (the "Commission"), a registration statement on Form S-3 (No.
333-________) and a related preliminary prospectus for the registration of the
Capital Securities under the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations thereunder (the "Securities Act
Regulations"). The Trust and the Company have prepared and filed such amendments
thereto, if any, and such amended preliminary prospectuses, if any, as may have
been required to the date hereof, and will file such additional amendments
thereto and such amended prospectuses as may hereafter be required. The
registration statement has been declared effective under the Securities Act by
the Commission. The registration statement as amended at the time it became
effective (including all information deemed (whether by incorporation by
reference or otherwise) to be a part of the registration statement at the time
it became effective pursuant to Rule 430A(b) of the Securities Act Regulations)
is hereinafter called the "Registration Statement," except that, if the Trust
and the Company file a post-effective amendment to such registration statement
which becomes effective prior to the Closing Time (as defined below),
"Registration Statement" shall refer to such registration statement as so
amended. Any registration statement filed pursuant to Rule 462(b) of the
Securities Act Regulations is hereinafter called the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the 462(b) Registration Statement. Each prospectus included in the
registration statement, or amendments thereof or supplements thereto, 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 Underwriters
pursuant to Rule 424(a) of the Securities Act Regulations is hereinafter called
the "Preliminary Prospectus." The term "Prospectus" means the final prospectus,
as first filed with the Commission pursuant to paragraph (1) or (4) of Rule
424(b) of the Securities Act Regulations, and any amendments thereof or
supplements thereto. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus.
The Trust and the Company understand that the Underwriters propose to
make a public offering of the Capital Securities as soon as the Underwriters
deem advisable after this Agreement has been executed and delivered. The Trust
and the Company hereby confirm that the Underwriters and dealers have been
authorized to distribute or cause to be distributed each Preliminary Prospectus
and are authorized to distribute the Prospectus (as from time to time
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amended or supplemented if the Trust and the Company furnish amendments or
supplements to the Underwriters).
The Trust, the Company and the Underwriters agree as follows:
1. SALE AND PURCHASE:
(a) INITIAL SECURITIES. Upon the basis of the warranties and
representations and other terms and conditions herein set forth, the Trust and
the Company agree to sell to the Underwriters the number of Initial Securities
set forth opposite the name of each such Underwriter on Schedule I to this
Agreement and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust and the Company the respective number of Initial
Securities set forth opposite the name of such Underwriter on Schedule I, plus
any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 8 hereof, at a
purchase price of 100% of the liquidation amount thereof (the "Initial Purchase
Price").
(b) OPTION SECURITIES. In addition, upon the basis of the
warranties and representations and other terms and conditions herein set forth,
the Trust and the Company hereby grant to the Underwriters, acting severally and
not jointly, an option to purchase the respective number of Option Securities
set forth opposite the names of such Underwriters in Schedule I hereto, plus any
additional number of Option Securities which each such Underwriter may become
obligated to purchase pursuant to the provisions of Section 8 hereof, at the
Initial Purchase Price. The option hereby granted will expire 30 days after the
date hereof and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Representatives to the Trust and the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time and date of payment and delivery for such Option Securities. Any
such time and date of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than three full business days (or
earlier, without the consent of the Trust and the Company, than two full
business days) after the exercise of said option, nor in any event prior to the
Closing Time, as hereinafter defined.
2. PAYMENT AND DELIVERY:
(a) INITIAL SECURITIES. Payment of the purchase price for the
Initial Securities shall be made to the Trust by wire transfer of immediately
available funds or certified or official bank check payable in federal
(same-day) funds at the offices of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A., located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (unless another place shall be agreed upon by
the Representatives, the Trust and the Company) against delivery of the
certificates for the Initial Securities to the Representatives for the
respective accounts of the Underwriters. Such payment and delivery shall be made
at 9:30 a.m., New York City time, on the third (fourth, if pricing occurs after
4:30 p.m., New York City time) business day after the date hereof (unless
another
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time, not later than ten business days after such date, shall be agreed to by
the Representatives, the Trust and the Company). The time at which such payment
and delivery are actually made is hereinafter sometimes called the "Closing
Time." Certificates for the Initial Securities shall be delivered to the
Representatives in definitive form registered in such names and in such
denominations as the Representatives shall specify. For the purpose of
expediting the checking of the certificates for the Initial Securities by the
Representatives, the Trust agrees to make such certificates available to the
Representatives for such purpose at least one full business day preceding the
Closing Time.
(b) OPTION SECURITIES. In addition, payment of the purchase
price for the Option Securities shall be made to the Trust by wire transfer of
immediately available funds or certified or official bank check payable in
federal (same-day) funds at the offices of ▇▇▇▇▇▇▇▇▇ Traurig, P.A., located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (unless another place shall be agreed
upon by the Representatives, the Trust and the Company), against delivery of the
certificates for the Option Securities to the Representatives for the respective
accounts of the Underwriters. Such payment and delivery shall be made at 9:30
a.m., New York City time, on each Date of Delivery determined pursuant to
Section 1(b) above. Certificates for the Option Securities shall be delivered to
the Representatives in definitive form registered in such names and in such
denominations as the Representatives shall specify. For the purpose of
expediting the checking of the certificates for the Option Securities by the
Representatives, the Trust agrees to make such certificates available to the
Representatives for such purpose at least one full business day preceding the
relevant Date of Delivery.
(c) COMPENSATION. As compensation for the Underwriters'
commitment and in view of the fact that proceeds from the sale of the Capital
Securities to the Underwriters will be used to purchase the Debentures, the
Company shall pay a fee equal to a percentage of the gross proceeds received by
the Trust from the sale of the Capital Securities (the "Fee"). The Fee will be
determined on each Closing Date by a sliding scale based on the spread over the
30-year Benchmark U.S. Treasury rate in accordance with the table set forth on
Schedule II attached hereto; PROVIDED, HOWEVER, that the Fee shall not be
greater than 3.5% or less than 3.0% of the gross proceeds received by the Trust
on each Closing Date from the sale of the Capital Securities; PROVIDED FURTHER,
HOWEVER, that notwithstanding the foregoing, the Fee payable with respect to
Capital Securities sold to any investor identified on Schedule III attached
hereto shall be equal to 40% of the Fee which would otherwise be due and payable
with respect to such Capital Securities. The Fee shall be paid by means of a
discount from the offering price of the Capital Securities or, at the option of
the Representatives, by wire transfer of immediately available (same day) funds,
net of the $25,000 retainer fee paid by the Company to the Representatives, on
such Closing Date to a bank account designated by the Representatives.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE TRUST. The
Company and the Trust, jointly and severally, hereby represent and warrant to,
and agree with, each Underwriter as follows:
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(a) Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Securities Act and no stop
order suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company or the Trust, are threatened by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
(b) The Preliminary Prospectus and the Registration Statement
comply and the Prospectus and any further amendments or supplements thereto
will, when they have become effective or are filed with the Commission, as the
case may be, comply in all material respects with the requirements of the
Securities Act and the Securities Act Regulations, the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations of the
Commission thereunder; the Registration Statement did not, and any amendment
thereto will not, in each case as of the applicable effective date, contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and the
Preliminary Prospectus does not, and the Prospectus or any amendment or
supplement thereto will not, as of the applicable filing date and at the Closing
Time and on each Date of Delivery (if any), contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that the Company
and the Trust make no warranty or representation with respect to any statement
contained in the Registration Statement or the Prospectus in reliance upon and
in conformity with the information concerning the Underwriters and furnished in
writing by or on behalf of the Underwriters through the Representatives to the
Company expressly for use in the Registration Statement or the Prospectus (that
information being limited to that described in the last sentence of the first
paragraph of Section 9(c) hereof).
(c) The Preliminary Prospectus was and the Prospectus
delivered to the Underwriters for use in connection with this offering will be
identical to the versions of the Preliminary Prospectus and Prospectus created
to be transmitted to the Commission for filing via the Electronic Data Gathering
Analysis and Retrieval System ("▇▇▇▇▇"), except to the extent permitted by
Regulation S-T.
(d) The documents incorporated by reference in the
Registration Statement and the Prospectus, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements made therein not misleading.
(e) The financial statements, including the notes thereto,
incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated
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financial position of the entities to which such financial statements relate
(the "Covered Entities") as of the dates indicated and the consolidated results
of operations and changes in financial position and cash flows of the Covered
Entities for the periods specified; such financial statements have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved and in accordance with Regulation
S-X promulgated by the Commission; the financial statement schedules
incorporated by reference in the Registration Statement and the amounts in the
Prospectus under the captions "Summary Selected Financial Data" fairly present
the information shown therein and have been compiled on a basis consistent with
the financial statements incorporated by reference in the Registration Statement
and the Prospectus
(f) KPMG LLP, whose reports are filed with the Commission as
a part of the Registration Statement, are and, during the periods covered by
their reports, were independent public accountants as required by the Securities
Act and the Securities Act Regulations.
(g) The Company is duly registered with the Office of Thrift
Supervision as a savings and loan holding company under the Home Owners' Loan
Act of 1933, as amended (the "HOLA"); the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
State of Delaware; the Bank has been duly organized and is validly existing as a
federally-chartered stock savings bank with the Office of Thrift Supervision and
each of the Company's other direct and indirect subsidiaries (together with the
Bank, the "Subsidiaries" and each a "Subsidiary"), which Subsidiaries are set
forth on Schedule IV attached hereto, has been duly incorporated and is validly
existing as a corporation in good standing in their respective jurisdictions of
incorporation, as identified on Schedule IV hereto. The Company does not
control, directly or indirectly, any corporation (other than the Subsidiaries),
partnership, joint venture, association or other business organization. The
Company and each of the 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 properties or the conduct of their respective
businesses requires such qualification, except where the failure to so qualify
will not have a material adverse effect on the assets or properties, business,
results of operations, prospects or financial condition of the Company and the
Subsidiaries, taken as a whole, and have all corporate power necessary to own or
hold their respective properties and to conduct the businesses in which they are
engaged. The deposit accounts of the Bank are insured by the Savings Association
Insurance Fund of 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 threatened.
(h) Each of the Company and the Subsidiaries owns, possesses
or has obtained all governmental licenses, permits, certificates, consents,
orders, approvals and other authorizations (collectively, the "Authorizations")
and has made all requisite declarations, registrations and filings
(collectively, the "Filings") of, from and with all governmental or regulatory
bodies and any other person or entity, required under the laws of the States of
New York, New Jersey, Connecticut and Delaware, the United States and any other
jurisdiction in
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which the Company or any of the Subsidiaries transacts business in order to own
or lease, as the case may be, and to operate its respective properties and to
conduct its respective business as presently conducted and as described in the
Prospectus, except where the failure to own, possess, obtain or make such
Authorization or Filing would not have a material adverse effect on the assets
or properties, business, results of operations, prospects or financial condition
of the Company and the Subsidiaries, taken as a whole; all of such
Authorizations are in full force and effect, and neither the Company nor the
Subsidiaries has received any notice of proceedings relating to any revocation
or modification thereof.
(i) Each of the Company and the Subsidiaries is in compliance
in all material respects with all applicable laws and the regulations, orders
and policies of the Office of Thrift Supervision, the FDIC, the Commission and
any other federal or state governmental authority with jurisdiction over the
Company or any of the Subsidiaries, as the case may be (each, a "Governmental
Authority"), the failure to comply with which would have a material adverse
effect upon the assets or properties, business, results of operations, prospects
or financial condition of the Company and the Subsidiaries, taken as a whole.
Neither the Company nor any of the Subsidiaries is a party to any written
agreement or memorandum of understanding with, or a party to any commitment
letter or similar undertaking to, or is subject to any order or directive by, or
is a recipient of any extraordinary supervisory letter from, or has adopted any
board resolutions at the request of, any Governmental Authority which materially
restricts the conduct of its business, or in any manner relates to its capital
adequacy, its credit policies or its management, nor have any of them been
advised by any Governmental Authority that it is contemplating issuing or
requesting (or is considering the appropriateness of issuing or requesting) any
such order, decree, agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar submission, or any such board
resolutions.
(j) To the best of the Company's knowledge, each of the
Company's and the Bank's directors, officers, employees and other
"institution-affiliated parties" (as that term is defined in Section 3(u) of the
Federal Deposit Insurance Act of 1933, as amended), is in compliance in all
material respects with all applicable laws and the regulations, orders and
policies of the Office of Thrift Supervision, the FDIC, the Commission and any
other Governmental Authority, the failure to comply with which would have a
material adverse effect upon the assets or properties, business, results of
operations, prospects or financial condition of the Company and the Bank, taken
as a whole. To the best of the Company's knowledge, none of the Company's or the
Bank's directors, officers, employees and other institution-affiliated parties
is a party to any written agreement or memorandum of understanding with, or a
party to any commitment letter or similar undertaking to, or is subject to any
order or directive by, or is a recipient of any extraordinary supervisory letter
from, or has adopted any board resolutions at the request of, any Governmental
Authority, or, to the best of the Company's knowledge, have any of them been
advised by any Governmental Authority that it is contemplating issuing or
requesting (or is considering the appropriateness of issuing or requesting) any
such order, decree, agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar submission, or any such board
resolutions.
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(k) The Company and each Subsidiary owns or possesses adequate
license or other rights to use all patents, trademarks and trademark
applications, service marks, trade names, copyrights, software and design
licenses, trade secrets, other intangible property rights and know-how
(collectively "Intangibles") necessary to entitle the Company and each
Subsidiary to conduct its business as described in the Prospectus, and neither
the Company, nor any Subsidiary, has received notice of infringement of or
conflict with (and the Company knows of no such infringement of or conflict
with) asserted rights of others with respect to any Intangibles which could
materially and adversely affect the business, prospects, properties, assets,
results of operations or condition (financial or otherwise) of the Company or
any Subsidiary.
(l) Each of the Company and the Subsidiaries has good and
marketable title in fee simple to all real property and good title to all
personal property owned by it, in each case free and clear of all liens,
encumbrances and defects except such as do not materially affect the value of
such property or do not materially interfere with the use made of such property
by the Company or any Subsidiary; and all real property and buildings held under
lease by the Company or any Subsidiary are held by them under valid, subsisting
and enforceable leases, with such exceptions as are not material and do not
interfere with the use made of such property and buildings by the Company or any
such Subsidiary.
(m) There are no actions, suits, proceedings, inquiries or
investigations pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries or any of their respective officers and
directors or to which the properties, assets or rights of any such entity are
subject, at law or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority, arbitral panel or
agency which could result in a judgment, decree, award or order having a
material adverse effect on the assets, business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole, or which is required to be disclosed in the
Prospectus and is not so disclosed.
(n) Except as disclosed in or contemplated by the Registration
Statement and the Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, and
except as may be otherwise stated in the Registration Statement or Prospectus,
there has not been (i) any material adverse change in the assets, business,
operations, earnings, prospects, properties or condition (financial or
otherwise), present or prospective, of the Company and its Subsidiaries taken as
a whole, whether or not arising in the ordinary course of business, (ii) any
transaction, which is material to the Company and its Subsidiaries taken as a
whole, contemplated or entered into by the Company or any of its Subsidiaries,
or (iii) any obligation, contingent or otherwise, directly or indirectly
incurred by the Company or any of its Subsidiaries, which is material to the
Company and its Subsidiaries taken as a whole.
(o) Neither the Company nor any Subsidiary is in violation of
any term or provision of its (i) charter, by-laws or other governing documents
or (ii) any franchise, license, permit, judgment, decree, order, statute, rule,
regulation, directive, policy or guideline to which it
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or its property may be subject, except, in the case of clause (ii), for such
violations which would not, individually or in the aggregate, have a material
adverse effect on the assets or properties, business, results of operations,
prospects or financial condition of Company and the Subsidiaries, taken as a
whole.
(p) No default exists, and no event has occurred which with
notice or lapse of time or both would constitute a default in the due
performance and observance of any term, covenant or condition by the Company or
any Subsidiary of any agreement, indenture, mortgage, deed of trust, note or any
other agreement or material instrument to which the Company or Subsidiary is a
party or by which any of them or their respective properties or businesses may
be bound, except for such defaults or events which would not have a material
adverse effect on the assets or properties, business, results of operations,
prospects or financial condition of the Company and the Subsidiaries, taken as a
whole.
(q) Neither the execution, delivery and performance of the
Operative Documents by the Company and the Trust nor the consummation of any of
the transactions contemplated hereby or thereby will (i) conflict with or result
in the breach or violation of any term or provision of, or give rise to a right
to terminate or accelerate the due date of any payment due under, or constitute
a default (or an event which with notice or lapse of time or both would
constitute a default) under, or require any consent or waiver under, or result
in the creation or imposition of any lien, charge, claim, encumbrance or
security interest on any properties or assets of the Company or of any
Subsidiary pursuant to the terms of any indenture, mortgage or other material
agreement or material instrument to which the Company or any Subsidiary is a
party or by which the Company or any Subsidiary is bound or to which any of the
properties or assets of the Company or any Subsidiary is subject, nor (ii)
violate the charter or by-laws or other governing document of the Company or any
Subsidiary or any applicable law, rule, regulation, decision, order or decree of
any court or governmental agency or governmental authority having jurisdiction
over the Company or any Subsidiary or any of their properties, except in the
case of clause (i), for such violations which would not have a material adverse
effect on the assets or properties, business, results of operations, prospects
or financial condition of the Company and the Subsidiaries, taken as a whole.
(r) No approval, authorization, consent or order of or filing
with any federal, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the execution, delivery
and performance by the Company and the Trust of the Operative Documents or the
consummation of the transactions contemplated hereby and thereby, other than (i)
such as have been obtained, or will have been obtained at the Closing Time or
the relevant Date of Delivery, as the case may be, under the Securities Act,
(ii) such approvals as have been obtained in connection with the approval of the
quotation of the Capital Securities on the National Market of the National
Association of Securities Dealers Automated Quotation ("NASDAQ") system and
(iii) any necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Capital Securities are being offered by the
Underwriters
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(s) The descriptions in the Registration Statement and the
Prospectus of the contracts, leases and other legal documents therein described
present fairly the information required to be shown and there are no contracts
or other documents which are required to be described in the Prospectus or filed
as exhibits to the Registration Statement by the Securities Act or by the
Securities Act Regulations which have not been described in the Prospectus or
filed as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Securities Act Regulations.
(t) The Company's capitalization is as set forth in the
Prospectus; all of the issued shares of capital stock of each of the
Subsidiaries have been duly and validly authorized and issued and are fully paid
and non-assessable, and all of such shares are owned either by the Company or
the Bank, directly or indirectly, free and clear of all liens, encumbrances,
equities or claims of any third parties; and no holder of any security of the
Company has the right to have any security owned by such holder included in the
Registration Statement.
(u) Since the date of the latest balance sheet incorporated by
reference in the Registration Statement and the Prospectus, except as reflected
therein, neither the Company nor any Subsidiary has (i) issued or granted any
securities (other than shares of the Company's common stock issued under the
Company's Stock Option Plan, pursuant to the exercise of outstanding stock
options or to employees or directors under bonus or other compensation plans or
arrangements) or incurred any material liability or obligation, whether fixed or
contingent, except for liabilities or obligations incurred in the ordinary
course of its business, (ii) entered into any transaction not in the ordinary
course of its business, or (iii) declared or paid any dividend or made any
distribution on any shares of its capital stock or redeemed, purchased or
otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares
of its capital stock.
(v) Neither the Company nor any Subsidiary is involved in any
labor dispute nor, to the knowledge of the Company, is any such dispute
threatened, which dispute would have a material adverse effect on the assets or
properties, business, results of operations, prospects or financial condition of
the Company and the Subsidiaries, taken as a whole.
(w) No transaction has occurred between or among the Company
or any of its affiliates, officers or directors or any affiliate or affiliates
of any such officer or director that is required to be described in and is not
described in the Registration Statement and the Prospectus.
(x) The Company and each Subsidiary has filed all Federal,
state, local and foreign tax returns which are required to be filed by them,
either on an individual or consolidated basis, through the date hereof, or has
received extensions thereof; all taxes shown on such returns and all assessments
received by them have been paid, to the extent that the same have become due,
except where the failure to so file or pay would not have a material adverse
effect on the assets or properties, business, results of operations, prospects
or financial condition of the Company and the Subsidiaries, taken as a whole.
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(y) Each of the Company and its Subsidiaries maintain
insurance (issued by insurers of recognized financial responsibility) of the
types and in the amounts generally deemed adequate for their respective
businesses and consistent with insurance coverage maintained by similar
companies in similar businesses, including, but not limited to, insurance
covering real and personal property owned or leased by the Company and its
Subsidiaries against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against, all of which insurance is in full force and
effect.
(z) Neither the Company nor any of its Subsidiaries has
violated, or received notice of any violation with respect to, any applicable
environmental, safety or similar law applicable to the business of the Company
or any of its Subsidiaries, nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees, nor any applicable
federal or state wages and hours law, nor any provisions of the Employee
Retirement Income Security Act or the rules and regulations promulgated
thereunder, nor any state law precluding the denial of credit due to the
neighborhood in which a property is situated, the violation of any of which
could have a material adverse effect on the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Company and
its Subsidiaries, taken as a whole.
(aa) The Company and the Trust will comply with all of the
requirements and file the required forms as specified in Florida Statutes
Section 517.075 if qualification of the Capital Securities in the State of
Florida becomes necessary. Neither the Company nor any of its Subsidiaries or
affiliates does business with the government of Cuba or with any person or
affiliate located in Cuba.
(bb) The Capital Securities have been duly authorized for
quotation on the NASDAQ National Market, subject to official notice of issuance,
and a registration statement has been filed on Form 8-A pursuant to Section 12
of the Exchange Act for the Capital Securities, which registration statement
complies in all material respects with the Exchange Act.
(cc) The Capital Securities and the Common Securities have
been duly and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued, fully paid and
non-assessable; and the Capital Securities and the Common Securities, when
issued and delivered, will conform in all material respects to the descriptions
thereof contained in the Prospectus.
(dd) The Indenture has been duly authorized, and when duly
executed by the proper officers of the Company (assuming due execution and
delivery by the Debenture Trustee) and delivered by the Company will constitute
a valid and binding agreement 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 to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law); and the
Debentures have been duly authorized and, when duly executed, authenticated,
issued and delivered as contemplated in the Indenture,
11
will constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether considered
in a proceeding in equity or at law); and the Debentures, when issued and
delivered, will conform in all material respects to the description thereof
contained in the Prospectus.
(ee) The Trust has been duly created and is validly existing
as a statutory business trust in good standing under the Delaware Act with the
trust power and authority to own property and conduct its business as described
in the Prospectus, and has conducted and will conduct no business other than the
transactions contemplated by this Agreement as described in the Prospectus; the
Trust is not a party to or bound by any agreement or instrument other than this
Agreement, the Amended and Restated Declaration of Trust (the "Declaration")
among the Company, The Chase Manhattan Bank, as property trustee (the "Property
Trustee"), The Chase Manhattan Bank Delaware, as Delaware trustee (the "Delaware
Trustee"), and the individuals named therein as the Administrative Trustees (the
"Administrative Trustees," and, together with the Property Trustee and the
Delaware Trustee, the "Trustees"), and the agreements and instruments
contemplated by the Declaration and described in the Prospectus; the Trust has
no liabilities or obligations other than those arising out of the transactions
contemplated by this Agreement and the agreements and instruments contemplated
by the Declaration and described in the Prospectus; and the Trust is not a party
to or subject to any action, suit or proceeding of any nature.
(ff) The Declaration has been duly authorized by the Company
and, when duly executed and delivered by the Company and the Trustees, will be a
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 to or affecting the rights of creditors generally and general equitable
principles (whether considered in a proceeding in equity or at law), and will
conform in all material respects to the description thereof contained in the
Prospectus. Each of the Administrative Trustees is an employee of the Company
and has been duly authorized by the Company to serve in such capacity and to
execute and deliver the Declaration.
(gg) The Guarantee Agreement has been duly authorized and,
when duly executed and delivered by the proper officers of the Company and the
Guarantee Trustee, will constitute a valid and legally binding agreement 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 to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law); and the Guarantee Agreement, when executed and delivered,
will conform in all material respects to the description thereof contained in
the Prospectus.
(hh) This Agreement has been duly authorized, executed and
delivered by each of the Company and the Trust and constitutes a valid and
legally binding agreement of the
12
Company and the Trust enforceable against the Company and the Trust in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law) and except
to the extent that the indemnification and contribution provisions of Section 9
hereof may be limited by federal or state securities laws and public policy
considerations in respect thereof.
(ii) Neither the Trust nor the Company nor any of the
Subsidiaries is and, after giving effect to the transactions contemplated by the
Operative Documents, will be an "investment company" or an entity "controlled"
by and "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act").
(jj) The conditions for use of Form S-3 by the Company and the
Trust, as set forth in the General Instructions thereto, have been satisfied.
(kk) All computer software (including, without limitation
software which forms a part of any hardware) owned or used by the Company or any
Subsidiary, or licensed by the Company or any Subsidiary, as licensor or as
licensee, is "Year 2000 Compliant" (as hereinafter defined). For purposes of
this Agreement, "Year 2000 Compliant" shall mean (i) all such software shall
operate in 4-digit year format and, in all material respects, without errors in
the recognition, calculation and processing of date data relating to century
recognition, leap years, single and multi-century formulae, date values and
interfaces of date-related functionalities; (ii) all date processing shall be
conducted in a four-digit year format and all date sorting that includes a "year
field" or "year category" shall be based upon a four-digit year format; and
(iii) any date arithmetic programs or calculators in the software shall operate
in all material respects in accordance with the related user documentation in
the Year 2000, and the years following, without degrading functionality or
performance.
(ll) The Company has not incurred any liability for any
finder's fees or similar payments in connection with the transactions herein
contemplated.
(mm) Neither the Company nor the Trust has relied upon the
Representatives or legal counsel for the Underwriters for any legal, tax or
accounting advice in connection with the offering and sale of the Capital
Securities.
(nn) Any certificate signed by any officer of the Company or
any Subsidiary delivered to the Representatives or to counsel for the
Underwriters pursuant to or in connection with this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
4. CERTAIN COVENANTS. The Trust and the Company hereby covenant and
agree with each Underwriter as follows:
13
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Capital Securities for offering and
sale under the securities or blue sky laws of such states as the Representatives
may designate and to maintain such qualifications in effect so long as required
for the distribution of the Capital Securities;
(b) to prepare the Prospectus in a form approved by the
Underwriters and file such Prospectus with the Commission pursuant to Rule
424(b) not later than 10:00 a.m. (New York City time), on the day following the
execution and delivery of this Agreement and to furnish promptly (and with
respect to the initial delivery of such Prospectus, not later than 10:00 a.m.
(New York City time) on the day following the execution and delivery of this
Agreement) to the Underwriters as many copies of the Prospectus (or of the
Prospectus as amended or supplemented if the Trust and the Company shall have
made any amendments or supplements thereto after the effective date of the
Registration Statement) as the Underwriters may reasonably request for the
purposes contemplated by the Securities Act Regulations, which Prospectus and
any amendments or supplements thereto furnished to the Underwriters will be
identical to the version created to be transmitted to the Commission for filing
via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested
by the Representatives) to confirm such advice in writing, when the Registration
Statement has become effective and when any post-effective amendment thereto
becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such
advice in writing, of (i) the receipt of any comments from, or any request by,
the Commission for amendments or supplements to the Registration Statement or
Prospectus or for additional information with respect thereto, or (ii) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, or of the suspension of the
qualification of the Capital Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes and, if the Commission or any other government agency or authority
should issue any such order, to make every reasonable effort to obtain the
lifting or removal of such order as soon as possible; to advise the
Representatives promptly of any proposal to amend or supplement the Registration
Statement or Prospectus and to file no such amendment or supplement to which the
Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years
from the date of this Agreement (i) as soon as available, copies of all annual,
quarterly and current reports or other communications supplied to holders of
shares of any class of its capital stock, (ii) as soon as practicable after the
filing thereof, copies of all reports filed by the Company or the Trust with the
Commission, the NASD or any securities exchange and (iii) such other information
as the Underwriters may reasonably request regarding the Trust, the Company
and/or the Subsidiaries;
14
(f) to advise the Underwriters promptly of the happening of
any event known to the Trust and/or the Company within the time during which a
Prospectus relating to the Capital Securities is required to be delivered under
the Securities Act Regulations which, in the judgment of the Trust and the
Company, would require the making of any change in the Prospectus then being
used so that the Prospectus would not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, and, during such time, to prepare and promptly
furnish to the Underwriter, at the Trust's and the Company's expense, such
amendments or supplements to such Prospectus as may be necessary to reflect any
such change and to furnish to the Underwriters a copy of such proposed amendment
or supplement before filing any such amendment or supplement with the
Commission;
(g) to furnish the Representatives and counsel for the
Underwriters, without charge, (i) signed copies of the Registration Statement,
as initially filed with the Commission, and of all amendments or supplements
thereto (including all exhibits filed therewith or incorporated by reference
therein), (ii) copies of any document incorporated by reference in the
Prospectus (including exhibits thereto) and (iii) so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Securities Act or
the Securities Act Regulations, as many copies of any Preliminary Prospectus and
the Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital
Securities and the Debentures in accordance with the statements under the
caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to
the Representatives as soon as practicable, but in any event not later than the
end of the fiscal quarter first occurring after the first anniversary of the
effective date of the Registration Statement (or 90 days if such 12-month period
coincides with the Company's fiscal year), an earnings statement complying with
the provisions of Section 11(a) of the Securities Act (in form, at the option of
the Company, complying with the provisions of Rule 158 of the Securities Act
Regulations) covering a period of 12 months beginning after the effective date
of the Registration Statement;
(j) to use its best efforts to effect and maintain the
quotation of the Capital Securities on the NASDAQ National Market and to file
with the NASDAQ National Market all documents and notices required by the NASDAQ
National Market of companies that have securities that are traded in the
over-the-counter market and quotations for which are reported by the NASDAQ
National Market;
(k) to engage and maintain, at its expense, a registrar and
transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives,
for a period of 180 days after the date of this Agreement, not to offer, issue,
sell, contract to sell or otherwise
15
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;
(m) to use its best efforts to cause its officers, directors
and affiliates not to (i) take, directly or indirectly prior to termination of
the underwriting syndicate contemplated by this Agreement, any action designed
to stabilize or manipulate the price of the Capital Securities or any security
of the Company, or which may cause or result in, or which might in the future
reasonably be expected to cause or result in, the stabilization or manipulation
of the price of the Capital Securities or any security of the Company, to
facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid
for, purchase or pay anyone any compensation for soliciting purchases of the
Capital Securities or (iii) pay or agree to pay to any person any compensation
for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement
dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co.,
Inc. shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
5. PAYMENT OF EXPENSES:
(a) Each of the Trust and the Company agrees to pay, or
reimburse if paid by the Representatives, all costs and expenses incident to the
purchase, sale and delivery of the Capital Securities in the public offering and
the performance of the obligations of the Trust and the Company under this
Agreement, whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, including expenses, fees and taxes
in connection with (i) the preparation and filing of the Registration Statement,
each Preliminary Prospectus, the Prospectus, and any amendments or supplements
thereto, and the printing, furnishing and distribution of copies of each thereof
to the Underwriters, dealers and others (including costs of mailing and
shipment), (ii) the preparation, issuance and delivery of the certificates for
the Capital Securities to the Underwriters, including any transfer taxes or
duties payable upon the sale of the Capital Securities to the Underwriters,
(iii) the printing of this Agreement and any dealer agreements and furnishing of
copies of each to the Underwriters and to dealers (including costs of mailing
and shipment), (iv) the registration and qualification of the Capital Securities
for offering and sale under state laws that the Company and the Representatives
have mutually agreed are appropriate and the determination of their eligibility
for investment under state law as aforesaid (including the legal fees and filing
fees and other disbursements of counsel for the Underwriters) and the printing,
distribution and distribution of copies of any blue sky surveys or legal
investment surveys to the Underwriters and to dealers, (v) filing for review of
the public offering of the Capital Securities by the NASD (including the legal
fees and filing fees and other disbursements of counsel for the Underwriters
relating thereto), (vi) the fees and expenses of any transfer agent or registrar
for the Capital Securities and miscellaneous expenses referred to in the
Registration Statement, (vii) the fees and expenses incurred in connection with
the inclusion of the Capital Securities in the NASDAQ National Market, (viii)
making road show presentations
16
with respect to the offering of the Capital Securities, (ix) preparing and
distributing bound volumes of transaction documents for the Representatives and
their legal counsel and (x) the performance of the Company's other obligations
hereunder. Upon the request of the Representatives, the Company will provide
funds in advance for filing fees.
(b) Each of the Trust and the Company agrees to reimburse the
Representatives for their reasonable out-of-pocket expenses in connection with
the performance of its activities under this Agreement, including, but not
limited to, costs such as printing, facsimile, courier service, direct computer
expenses, accommodations and travel, and the fees and expenses of the
Underwriters' outside legal counsel and any other advisors, accountants,
appraisers, etc. (other than the fees and expenses of counsel with respect to
state securities or blue sky laws and obtaining the filing for review of the
public offering of the Capital Securities by the NASD, all of which shall be
reimbursed by the Company pursuant to the provisions of subsection (a) above);
PROVIDED, HOWEVER, that the Trust and the Company shall not be required to
reimburse the Representatives for out-of-pocket expenses in excess of $150,000
without the Company's prior approval.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS: The obligations of the
Underwriters hereunder to purchase the Capital Securities at the Closing Time or
on the Date of Delivery, as applicable, are subject to the accuracy of the
representations and warranties on the part of the Trust and the Company in all
material respects on the date hereof and at the Closing Time and on each Date of
Delivery, as applicable, the performance by the Trust and the Company of their
respective obligations hereunder in all material respects and to the
satisfaction of the following further conditions at the Closing Time or on the
Date of Delivery, as applicable:
(a) The Representatives shall have received on each Closing
Date from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to the Company and the Trust, an
opinion or opinions, addressed to the Representatives and dated such Closing
Date, in form and substance satisfactory to the Underwriters and stating in
effect that:
(i) The Company is duly registered with the Office of
Thrift Supervision as a savings and loan holding company under the HOLA
and has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware. The Bank has
been duly organized and is validly existing as a federally-chartered
stock savings bank with the Office of Thrift Supervision. Each of the
Subsidiaries (other than the Bank) has been duly organized and is
validly existing as a corporation in good standing under the laws of
its respective state of incorporation. The Company and each Subsidiary
is duly qualified and 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, except where the failure to so qualify would not have a
material adverse effect on the assets or properties, business, results
of operations or financial condition of the Company and the
Subsidiaries, taken as a whole, and have all corporate power necessary
to own or hold their respective properties and to conduct the business
in which they are engaged as
17
described in the Prospectus. The deposit accounts of the Bank are
insured by the Bank Insurance Fund of 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
threatened.
(ii) The Company's capitalization is as set forth in
the Prospectus; all of the issued and outstanding shares of capital
stock of each of the Subsidiaries have been duly and validly authorized
and issued and are fully paid and non-assessable; and no holder of any
security of the Company has the right, under the Company's certificate
of incorporation or by-laws or any agreement or instrument known to
such counsel, to have any security owned by such holder included in the
Registration Statement. To the best knowledge of such counsel, all of
the issued and outstanding capital stock of the Subsidiaries is owned
directly or indirectly by the Company or the Bank, free and clear of
all liens, encumbrances, equities or claims.
(iii) The Registration Statement was declared
effective under the Securities Act at the time and on the date
specified in such counsel's opinion, and to the best knowledge of such
counsel, no stop order or other order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose are pending before the Commission under the Securities Act.
(iv) The Registration Statement and the Prospectus
and any further amendments or supplements thereto made by the Company
prior to such Closing Date (other than the financial statements and
related notes and schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Securities Act Regulations;
and the documents incorporated by reference in the Prospectus (other
than the financial statements and related schedules therein, as to
which such counsel need express no opinion), when they were filed with
the Commission, complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder.
(v) All the conditions necessary for the use of Form
S-3 in connection with the issuance and sale of the Capital Securities,
the Guarantee and the Debentures have been satisfied by the Company and
the Trust.
(vi) No consent, approval, authorization or order of
or filing, registration, or qualification with any governmental agency
or authority is required in connection with the execution and delivery
by the Company and the Trust of the Operative Documents and the
consummation of the transactions contemplated thereby except (A) as may
be required under the Exchange Act or the Blue Sky laws of the various
states of the United States in connection with any sales of Capital
Securities therein or (B) as have already been obtained or made.
18
(vii) This Agreement has been duly authorized,
executed and delivered by the Company and the Trust and constitutes a
valid and binding agreement of the Company and the Trust enforceable
against each of them in accordance with its terms, except as
enforceability thereof may be limited by (A) the application of
bankruptcy, reorganization, insolvency and other laws affecting
creditors' rights generally, and (B) equitable principles being applied
at the discretion of a court before which any proceeding may be
brought.
(viii) To the best knowledge of such counsel, neither
the Company nor any Subsidiary is in violation of or conflict with any
term or provision of its charter or bylaws or other governing documents
and neither the Company nor any Subsidiary is in violation of any
franchise, license, permit, judgment, decree, order, statute, rule,
regulation, directive, policy or guideline to which it or its property
may be subject, except for such violations which could not individually
or in the aggregate, have a material adverse effect on the Company and
the Subsidiaries, taken as a whole.
(ix) To the best knowledge of such counsel, no
default exists, and no event has occurred which with notice or lapse of
time or both would constitute a default, in the due performance and
observance of any term, covenant or condition by the Company or any
Subsidiary of any material agreement, indenture, mortgage, deed of
trust, note or any other material agreement or material instrument to
which the Company or any Subsidiary is a party or by which it or its
respective properties or businesses may be bound.
(x) The execution, delivery and performance of the
Operative Documents by the Company and the Trust and the consummation
of the transactions contemplated hereby and thereby will not conflict
with or result in the breach or violation of any term or provision of,
or constitute a default (or an event which with notice or lapse of time
or both would constitute a default) under, or require any consent or
waiver under, or result in the creation or imposition of any lien,
charge, claim, encumbrance or security interest on any properties or
assets of the Company or any Subsidiary pursuant to the terms of, any
material agreement, indenture, mortgage or other material agreement or
material instrument known to such counsel to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary is
bound or to which any of the property or assets of the Company or the
Subsidiaries is subject, nor will such actions violate the charter or
bylaws or other governing document of the Company or any Subsidiary or
any applicable law, rule or administrative regulation of any court or
governmental agency or governmental authority having jurisdiction over
the Company or any Subsidiary or any of their respective properties,
except for such violations which could not have, individually or in the
aggregate, a material adverse effect on the Company and the
Subsidiaries, taken as a whole..
(xi) To the best knowledge of such counsel, there are
no contracts or other documents which are required to be described in
the Prospectus or filed as exhibits
19
to the Registration Statement by the Securities Act or by the
Securities Act Regulations which have not been so described or filed as
required.
(xii) To the best knowledge of such counsel, there is
no action, suit, investigation or proceeding, governmental or
otherwise, pending, threatened or contemplated to which the Company or
any Subsidiary is or may be a party or of which the business or
property of the Company or any Subsidiary is or may be subject in
either case that is required to be disclosed in the Prospectus.
(xiii) The Declaration has been duly authorized,
executed and delivered by the Company.
(xiv) The Indenture has been duly authorized,
executed and delivered by the Company and (assuming due authorization,
execution and delivery thereof by the Debenture Trustee) constitutes a
valid and binding agreement 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 to or affecting creditors'
rights generally and general equitable principles (whether considered
in a proceeding in equity or at law); and the Debentures have been duly
authorized, executed, issued and delivered by the Company as
contemplated in the Indenture and (assuming due authentication by the
Debenture Trustee) constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in
accordance with their term, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in
equity or at law).
(xv) The Guarantee Agreement has been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Guarantee Trustee,
constitutes a valid and legally 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 to or
affecting creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law).
(xvi) The statements contained in the Prospectus
under the caption "Certain United States Federal Income Tax
Consequences" are accurate in all material respects and constitute a
fair summary of the matters set forth therein.
(xvii) Each of the Company and the Subsidiaries owns,
possesses or has obtained all Authorizations and has made all Filings
of, from and with all governmental or regulatory bodies and any other
person or entity, required under the laws of the States of New York,
New Jersey, Connecticut and Delaware, the United States and any other
jurisdiction in which the Company or any of the Subsidiaries transacts
business in order
20
to own or lease, as the case may be, and to operate its respective
properties and to conduct its respective business as presently
conducted and as described in the Prospectus, except where the failure
to own, possess, obtain or make such Authorization or Filing would not
have a material adverse effect on the assets or properties, business,
results of operations, prospects or financial condition of the Company
and the Subsidiaries, taken as a whole; to the best of knowledge of
such counsel, all of such Authorizations are in full force and effect,
and neither the Company nor the Subsidiaries has received any notice of
proceedings relating to any revocation or modification thereof.
(xviii) To the best knowledge of such counsel, the
businesses of the Company and the Subsidiaries has been conducted in
compliance in all material respects with all applicable laws and the
regulations, orders and policies of the Office of Thrift Supervision,
the FDIC, the Commission and each other Governmental Authority, which
laws are material to the operations of the Company and the Subsidiaries
taken as a whole.
(xix) The statements in the Prospectus under the
captions "Description of Capital Securities," "Description of
Subordinated Debentures," "Description of Guarantee" and "Relationship
Among the Capital Securities, the Subordinated Debentures and the
Guarantee," insofar as such statements constitute a summary of
documents referred to therein or matters of law, are fair summaries in
all material respects and accurately present the information called for
with respect to such documents and matters.
(xx) Except as set forth (or referred to) in the
Prospectus, or incorporated by reference therein, to the best knowledge
of such counsel, there are no contractual encumbrances or restrictions,
or material legal restrictions on the ability of any of the
Subsidiaries (i) to pay dividends or make any other distributions on
its capital stock or to pay indebtedness owed to the Company, (ii) to
make any loans or advances to, or investments in, the Company, or (iii)
to transfer any of its properties or assets to the Company.
(xxi) Neither the Trust nor the Company nor any
Subsidiary is required to register as an investment company under the
Investment Company Act as a result of the transactions contemplated by
the Operative Documents.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company, the
Subsidiaries and public officials and on the opinions of other counsel
satisfactory to the Representatives as to matters which are governed by laws
other than the laws of the States of New York and Delaware and the Federal laws
of the United States; provided that such counsel shall state that in their
opinion the Underwriters and they are justified in relying on such other
opinions. Copies of such certificates and other opinions shall be furnished to
the Representatives and counsel for the Underwriters.
21
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives, including Underwriters'
counsel, and representatives of the independent certified public accountants of
the Company, at which conferences the contents of the Registration Statement and
the Prospectus and related matters were discussed and, although such counsel is
not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (relying as to materiality to a large extent upon
the opinions and representations of officers and other representatives of the
Company), on the basis of the foregoing, no facts have come to the attention of
such counsel which lead such counsel to believe that the Registration Statement
at the time the Registration Statement became effective (except with respect to
the financial statements and notes thereto and other financial and statistical
data contained therein, as to which such counsel need express no opinion or
belief) contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus as amended or supplemented
(except with respect to the financial statements and notes thereto and other
financial and statistical data contained therein, as to which such counsel need
make no statement or express any opinion or belief) on the date thereof and on
such Closing Date contained any untrue statement of a material fact or omitted
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.
(b) The Representatives shall have received on each Closing
Date from ______________, as special Delaware counsel to the Trust and the
Company, an opinion or opinions, addressed to the Representatives and dated such
Closing Date, in form and substance satisfactory to counsel for the
Underwriters, and stating in 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 (A) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent transfer and other similar laws relating to the rights and
remedies of creditors generally, (B) 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 (C)
the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution;
22
(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, (ii) to issue and
perform its obligations under the Capital Securities and the Common
Securities and (iii) to purchase and hold the Debentures;
(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, (A) to provide indemnity
and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of certificates of Capital
Securities and the issuance of replacement certificates of Capital
Securities, and (B) 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) The Common Securities have been duly authorized
by the Declaration and are validly issued undivided beneficial
interests in the assets of the Trust and are entitled to the benefits
of the Declaration.
(viii) Under the Delaware Act and the Declaration,
the issuance of the Capital Securities and Common Securities is not
subject to preemptive rights;
(ix) The issuance and sale by the Trust of the
Capital Securities and Common 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 depositor, 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
23
(x) 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.
(c) On each Closing Date there shall have been furnished to
the Representatives the opinion (addressed to the Underwriters) of ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, P.A., counsel for the Underwriters, with respect to, as applicable, the
incorporation of the Company, the Registration Statement, the Prospectus (other
than financial statements and other financial data included therein) and other
related matters as the Representatives may reasonably request, and such counsel
shall have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
(d) The Representatives shall have received from KPMG LLP
letters dated, respectively, as of the date of this Agreement, the Closing Time
and each Date of Delivery, as the case may be, addressed to the Representatives,
in form and substance reasonably satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Securities Act
and the Securities Act Regulations 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 and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated by reference
in the Registration Statement and the Prospectus and reported on by
them comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Securities Act
Regulations;
(ii) on the basis of a reading of the financial
statements and amounts included or incorporated by reference in the
Registration Statement and the Prospectus, carrying out certain
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal matters
of significance with respect to comments set forth in such letter, a
reading of the minutes of the meetings of the shareholders and board of
directors of the Company and the Subsidiaries and inquiries of certain
officials of the Company and the Subsidiaries who have responsibility
for financial and accounting matters of the Company and the
Subsidiaries, nothing came to their attention which caused them to
believe that there were any changes, increases or decreases, as of the
date of the letter, in consolidated net interest income, net income,
long-term debt or capital stock compared to the same period in the
prior year or as of December 31, 1998, as the case may be, except in
all instances for changes, increases or
24
decreases set forth or contemplated in the Registration Statement or as
otherwise set forth in this letter; and
(iii) they have performed certain other procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the
Registration Statement and the Prospectus agrees with the financial
statements or accounting or other records of the Company and is
arithmetically correct;
and including and addressing such other matters customarily covered by comfort
letters issued in connection with registered public offerings.
(e) The Prospectus shall have been timely filed with the
Commission in accordance with Section 4(b) of this Agreement.
(f) No amendment or supplement to the Registration Statement
or Prospectus shall have been filed to which the Underwriters shall have
objected in writing.
(g) Prior to the Closing Time and each Date of Delivery (i) no
stop order suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus has been issued, and no proceedings for such purpose shall have been
initiated or threatened, by the Commission, and no suspension of the
qualification of the Capital Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes, has occurred; and (ii) the Registration Statement and the
Prospectus shall not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(h) Between the time of execution of this Agreement and the
Closing Time or the relevant Date of Delivery (i) no material and unfavorable
change in the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiaries taken as
a whole shall occur or become known (whether or not arising in the ordinary
course of business), and (ii) no transaction which is material and unfavorable
to the Company and/or the Subsidiaries shall have been entered into by the
Company or any Subsidiary.
(i) The Capital Securities shall have been approved for
inclusion in the NASDAQ National Market.
(j) The NASD shall not have raised any objection with respect
to the fairness and reasonableness of the underwriting terms and arrangements.
(k) The representations and warranties of the Trust and the
Company contained in this Agreement and in the certificates delivered pursuant
to Section 5(l) shall be true and correct when made and on and as of each
Closing Date as if made on such date and each of the Trust and the Company shall
have performed all covenants and agreements and satisfied all
25
the conditions contained in this Agreement required to be performed or satisfied
by it at or before such Closing Date.
(l) The Representatives shall have received on each Closing
Date a certificate, addressed to the Representatives and dated such Closing
Date, of the chief executive or chief operating officer and the chief financial
officer of the Company, to the effect that the signers of such certificate have
reviewed the Registration Statement, the Prospectus and this Agreement and that
(i) to the best of their knowledge after due inquiry, the representations and
warranties of the Company contained in this Agreement are true and correct as if
made on and as of such Closing Date with the same effect as if made on such
Closing Date, and the Company has performed all covenants and agreements and
satisfied all conditions contained in this Agreement required to be performed or
satisfied by it at or prior to such Closing Date and (ii) they have reviewed the
Registration Statement and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and the Prospectus did not include
any untrue statement of a material fact and did not omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and (B) since the Effective Date no event has occurred which
should have been set forth in a supplement to the Prospectus or an amendment to
the Registration Statement.
(m) All corporate proceedings and other legal matters incident
to the authorization, form and validity of the Operative Documents, the
Registration Statement and the Prospectus shall be satisfactory in all respects
to counsel for the Underwriters, and the Representatives shall have been
furnished with such additional documents and certificates as the Representatives
or counsel for the Underwriters may reasonably request related to this
Agreement, the Prospectus or the transactions contemplated hereby.
(n) [If the Capital Securities have been qualified for sale in
the State of Florida, the Representatives shall have received on each Closing
Date certificates, addressed to the Representatives, and dated such Closing
Date, of an executive officer of the Company, stating solely in his capacity as
an executive officer of the Company, to the effect that the signer of such
certificate has reviewed and understands the provisions of Section 517.075 of
the Florida Statutes, and represents that, to his knowledge after due inquiry,
the Company has complied, and at all times will comply, with all provisions of
Section 517.075 and further, that as of such Closing Date, neither the Company
nor any of its affiliates does business with the government of Cuba or with any
person or affiliate located in Cuba.]
7. TERMINATION. The obligations of the several Underwriters hereunder
shall be subject to termination in the absolute discretion of the
Representatives, at any time prior to the Closing Time or any Date of Delivery,
(i) if any of the conditions specified in Section 5 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, or (ii) if
there has been since the respective dates as of which information is given in
the Registration Statement, any material adverse change, or any development
involving a prospective material adverse change, in or affecting the assets,
business, operations, earnings, prospects, properties, condition (financial or
otherwise) or management of the Company or any Subsidiary, whether or not
26
arising in the ordinary course of business, or (iii) if there has occurred
outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic, political or other conditions the
effect of which on the financial markets of the United States is such as to make
it, in the judgment of the Representatives, impracticable to market the Capital
Securities or enforce contracts for the sale of the Capital Securities, or (iv)
if trading in any securities of the Company has been suspended by the Commission
or by NASDAQ, or if trading generally on the New York Stock Exchange or in the
NASDAQ over-the-counter market has been suspended (including automatic halt in
trading pursuant to market-decline triggers other than those in which solely
program trading is temporarily halted), or limitations on prices for trading
(other than limitations on hours or numbers of days of trading) have been fixed,
or maximum ranges for prices for securities have been required, by such exchange
or the NASD or NASDAQ or by order of the Commission or any other governmental
authority, or (v) any federal or state statute, regulation, rule or order of any
court or other governmental authority has been enacted, published, decreed or
otherwise promulgated which in the reasonable opinion of the Representatives
materially adversely affects or will materially adversely affect the business or
operations of the Company or the Subsidiaries, or (vi) any action has been taken
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs, including the declaration of a banking moratorium, which in
the reasonable opinion of the Representatives, has a material adverse effect on
the securities markets in the United States.
If the Representatives elect to terminate this Agreement as provided in
this Section 7, the Trust, the Company and the Underwriters shall be notified
promptly by telephone, promptly confirmed by facsimile.
If the sale to the Underwriters of the Capital Securities, as
contemplated by this Agreement, is not carried out by the Underwriters for any
reason permitted under this Agreement or if such sale is not carried out because
the Company and the Trust shall be unable to comply in all material respects
with any of the terms of this Agreement, the Company and the Trust shall not be
under any obligation or liability under this Agreement (except to the extent
provided in Sections 5 and 9 hereof) and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
8. INCREASE IN UNDERWRITERS' COMMITMENTS: If any Underwriter shall
default at the Closing Time or on a Date of Delivery in its obligation to take
up and pay for the Capital Securities to be purchased by it under this Agreement
on such date, the Representatives shall have the right, within 36 hours after
such default, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Capital Securities which such Underwriter shall have agreed but failed to
take up and pay for (the "Defaulted Capital Securities"). Absent the completion
of such arrangements within such 36 hour period, (i) if the total number of
Defaulted Capital Securities does not exceed 10% of the total number of Capital
Securities to be purchased on such date, each non-defaulting Underwriter shall
take up and pay for (in addition to the number of Capital Securities which it is
otherwise obligated to purchase on such date pursuant to this Agreement) the
portion of the total number of
27
Capital Securities agreed to be purchased by the defaulting Underwriter on such
date in the proportion that its underwriting obligations hereunder bears to the
underwriting obligations of all non-defaulting Underwriters; and (ii) if the
total number of Defaulted Capital Securities exceeds 10% of such total, the
Representatives may terminate this Agreement by notice to the Company and the
Trust, without liability to any non-defaulting Underwriter.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company and the Trust agree with the non-defaulting Underwriters
that it will not sell any Capital Securities hereunder on such date unless all
of the Capital Securities to be purchased on such date are purchased on such
date by the Underwriters (or by substituted Underwriters selected by the
Representatives with the approval of the Company and the Trust or selected by
the Company and/or the Trust with the approval of the Representatives).
If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter in accordance with the foregoing provision, the Company, the Trust
or the non-defaulting Underwriters shall have the right to postpone the Closing
Time or the relevant Date of Delivery for a period not exceeding five business
days in order that any necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with the like effect
as, if such substituted Underwriter had originally been named in this Agreement.
9. INDEMNITY AND CONTRIBUTION BY THE COMPANY, THE TRUST AND THE
UNDERWRITERS.
(a) The Trust and the Company agree, jointly and severally, to
indemnify, defend and hold harmless each Underwriter and any person who controls
any Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any loss, expense, liability,
damage or claim (including the reasonable cost of investigation) which, jointly
or severally, any such Underwriter or controlling person may incur under the
Securities Act, the Exchange Act or otherwise, insofar as such loss, expense,
liability, damage or claim arises out of or is based upon (i) any breach of any
representation, warranty or covenant of the Trust and/or the Company contained
herein, (ii) any failure on the part of the Trust and/or the Company to comply
with any applicable law, rule or regulation relating to the offering of
securities being made pursuant to the Prospectus, or (iii) any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Trust and the Company) or in a Prospectus (the term
Prospectus for the purpose of this Section 9 being deemed to include any
Preliminary Prospectus, the Prospectus and the Prospectus as amended or
supplemented by the Trust and the Company), or arises out of or is based upon
any omission or alleged omission to state a material fact required to be stated
in either such Registration Statement or Prospectus or necessary to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading, except insofar as any such loss, expense, liability,
damage or claim arises out of or is based upon any untrue statement or alleged
28
untrue statement or omission or alleged omission of a material fact contained in
and in conformity with information furnished in writing by the Underwriters
through the Representatives to the Trust and the Company expressly for use in
such Registration Statement or such Prospectus; provided, however, that the
indemnity agreement contained in this subsection (a) with respect to the
Preliminary Prospectus or the Prospectus shall not inure to the benefit of an
Underwriter (or to the benefit of any person controlling such Underwriter) with
respect to any person asserting any such loss, expense, liability, damage or
claim which is the subject thereof if the Prospectus or any supplement thereto
prepared with the consent of the Representatives and furnished to the
Underwriters prior to the Closing Time corrected any such alleged untrue
statement or omission and if such Underwriter failed to send or give a copy of
the Prospectus or supplement thereto to such person at or prior to the written
confirmation of the sale of Capital Securities to such person, unless such
failure resulted from noncompliance by the Company with Section 4(b) above).
(b) If any action is brought against an Underwriter or
controlling person in respect of which indemnity may be sought against the Trust
and/or the Company pursuant to subsection (a) above, such Underwriter shall
promptly notify the Trust and the Company in writing of the institution of such
action, and the Trust and the Company shall assume the defense of such action,
including the employment of counsel, reasonably acceptable to such Underwriter,
and the payment of expenses; PROVIDED, HOWEVER, that any failure or delay to so
notify the Trust and the Company will not relieve the Trust and the Company of
any obligation hereunder, except to the extent that its ability to defend is
actually impaired by such failure or delay. Such Underwriter or controlling
person shall have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless the employment of such counsel
shall have been authorized in writing by the Trust and the Company in connection
with the defense of such action, or the Trust and/or the Company shall not have
employed counsel to have charge of the defense of such action within a
reasonable time or such indemnified party or parties shall have reasonably
concluded (based on the advice of counsel) that there may be defenses available
to it or them which are different from or additional to those available to the
Trust and the Company (in which case neither the Trust nor the Company shall
have the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne
by the Trust and the Company and paid as incurred (it being understood, however,
that neither the Trust nor the Company shall be liable for the expenses of more
than one separate firm of attorneys for the Underwriters or controlling persons
in any one action or series of related actions in the same jurisdiction (other
than local counsel in any such jurisdiction) representing the indemnified
parties who are parties to such action). Anything in this paragraph to the
contrary notwithstanding, neither the Trust nor the Company shall be liable for
any settlement of any such claim or action effected without its written consent.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify, defend and hold harmless the Trust and the Company, each director of
the Company, each officer of the Trust or of the Company that signed the
Registration Statement, and any person who controls the
29
Trust or the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any loss, expense, liability,
damage or claim (including the reasonable cost of investigation) which, jointly
or severally, the Trust, the Company, or any such person may incur under the
Securities Act, the Exchange Act or otherwise, but only insofar as such loss,
expense, liability, damage or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in and in
conformity with information furnished in writing by such Underwriter through the
Representatives to the Trust or the Company expressly for use in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Trust and the Company) or in a
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such information required to be
stated either in such Registration Statement or Prospectus or necessary to make
such information, in the light of the circumstances under which made, not
misleading. The statements set forth (i) in ____________ and (ii) under the
caption "Underwriting" in the Preliminary Prospectus and the Prospectus (to the
extent such statements relate to the Underwriters) constitute the only
information furnished by or on behalf of any Underwriter through the
Representatives to the Trust and the Company for purposes of Section 3(b) and
this Section 9.
If any action is brought against the Trust, the Company or any such
person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Trust, the Company or such person shall
promptly notify the Representatives in writing of the institution of such action
and the Representatives, on behalf of the Underwriters, shall assume the defense
of such action, including the employment of counsel, reasonably acceptable to
the Trust and the Company, and the payment of expenses. The Trust, Company, or
such person shall have the right to employ its own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of the Trust, the
Company or such person unless the employment of such counsel shall have been
authorized in writing by the Representatives in connection with the defense of
such action or the Representatives shall not have employed counsel to have
charge of the defense of such action within a reasonable time or such
indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which are
different from or additional to those available to the Underwriters (in which
case the Representatives shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by such Underwriter and paid as incurred
(it being understood, however, that the Underwriters shall not be liable for the
expenses of more than one separate firm of attorneys in any one action or series
of related actions in the same jurisdiction (other than local counsel in any
such jurisdiction) representing the indemnified parties who are parties to such
action). Anything in this paragraph to the contrary notwithstanding, no
Underwriter shall be liable for any settlement of any such claim or action
effected without the written consent of the Representatives.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a), (b) and (c) of this
Section 9 in respect of any losses,
30
expenses, liabilities, damages or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, expenses, liabilities, damages or claims (i) in such
proportion as is 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 (but only if) the 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 of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, expenses, liabilities,
damages or claims, as well as any other relevant equitable considerations. The
relative benefits received by the Trust, the Company and the Underwriters shall
be deemed to be in the same proportion as, (x) the total proceeds from the
offering before deducting expenses received by the Trust and the Company, as set
forth in the table on the cover page of the Prospectus, bear to (y) the
underwriting discounts received by the Underwriters, as set forth in the table
on the cover page of the Prospectus. The relative fault of the Trust and the
Company on the one hand and the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission relates to
information supplied by the Trust and the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages and liabilities referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any claim
or action.
(e) The Trust, the Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in subsection (d)(i)
and, if applicable (ii), above. Notwithstanding the provisions of this Section
9, no Underwriter shall be required to contribute any amount in excess of the
underwriting discounts applicable to the Capital Securities purchased by such
Underwriter hereunder, and (ii) the Trust and the Company shall be liable and
responsible for any amount in excess of such underwriting discount; provided,
however, that 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. For purposes of this Section 9, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each person, if any, who controls the Trust or the
Company within the meaning of the Section 15 of the Securities Act or Section
20(a) of the Exchange Act, each officer of the Trust or of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Trust and the Company, subject in
each case to clauses (i) and (ii) in the immediately preceding sentence of this
Section 9. Any party entitled to contribution will, promptly after receipt of
notice of
31
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 9, notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties from whom
contribution may be sought shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
10. SURVIVAL: The indemnity and contribution agreements and the
covenants, warranties and representations of the Trust and the Company contained
in this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, or any person who
controls any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, or by or on behalf of the Trust, the Company,
its directors and officers, or any person who controls the Trust or the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and shall survive any termination of this Agreement or the sale
and delivery of the Capital Securities. The Trust, the Company and each
Underwriter agree promptly to notify the others of the commencement of any
litigation or proceeding against it and, in the case of the Trust, against any
of its trustees, and in the case of the Company, against any of the Company's
officers and directors, in connection with the sale and delivery of the Capital
Securities, or in connection with the Registration Statement or Prospectus.
11. NOTICES: Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered to Friedman,
Billings, ▇▇▇▇▇▇ & Co., Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Syndicate Department; if to the Trust or the Company, shall be
sufficient in all respects if delivered to the Company at the offices of the
Company at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Secretary.
12. GOVERNING LAW; HEADINGS: THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES. The section headings in this Agreement
have been inserted as a matter of convenience of reference and are not a part of
this Agreement.
13. PARTIES AT INTEREST: The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Trust, the Company, and the
controlling persons, directors and officers referred to in Sections 9 and 10
hereof, and their respective successors, assigns, executors and administrators.
No other person, partnership, association or corporation (including a purchaser,
as such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
32
14. COUNTERPARTS AND FACSIMILE SIGNATURES: This Agreement may be signed
by the parties in counterparts which together shall constitute one and the same
agreement among the parties. A facsimile signature shall constitute an original
signature for all purposes.
33
If the foregoing correctly sets forth the understanding among the
Trust, the Company and the Underwriters, please so indicate in the space
provided below for the purpose, whereupon this Agreement shall constitute a
binding agreement among the Trust, the Company and the Underwriters.
Very truly yours,
HAVEN CAPITAL TRUST II
By:___________________________
Name:_____________________
Title:____________________
HAVEN BANCORP INC.
By:___________________________
Name:_____________________
Title:____________________
ACCEPTED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN:
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
FIRST ALBANY CORPORATION
LADENBURG ▇▇▇▇▇▇▇▇ & CO. INC.
Acting severally on behalf of themselves and as
representatives of the several Underwriters named in
Schedule I annexed hereto.
By: FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
By:___________________________________
Name:____________________________
Title:___________________________
34
SCHEDULE I
NUMBER OF INITIAL NUMBER OF OPTION
CAPITAL SECURITIES TO SECURITIES TO BE
UNDERWRITER BE PURCHASED PURCHASED
----------------------------------------------------- --------------------- ----------------
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc................
First Albany Corporation.............................
Ladenburg ▇▇▇▇▇▇▇▇ & Co. Inc.........................
Total 0,000,000
---------
---------
SCHEDULE II
Fee payable pursuant to Section 2(c) of Underwriting Agreement:
-----------------------------------------------------------------------------------------------------------------
Spread between dividend rate and --% --% --% --% --% --% --% --% --%
30 Year Benchmark
-----------------------------------------------------------------------------
Underwriter's Discount 3.50% 3.50% 3.50% 3.38% 3.25% 3.13% 3.00% 3.00% 3.00%
-----------------------------------------------------------------------------
Implied Dividend Rate --% --% --% --% --% --% --% --% --%
-----------------------------------------------------------------------------
30 Year Benchmark on 2/18/99 5.37%
SCHEDULE III
Pursuant to Section 2(c), sales of Capital Securities for the following
eight institutional investors will be subject to a 60% reduction in the fee
payable to the Representatives.
[To be provided by Haven Bancorp]
SCHEDULE IV
Direct and Indirect Subsidiaries of Haven Bancorp Inc.
Place of Parent Percentage
Name Incorporation Company Owned by Parent
---- ------------- ------- ---------------
CFS Bank Federally chartered stock Haven 100%
savings bank Bancorp
Columbia Preferred Capital Corp. Delaware N/A 80% CFS Bank
20% CFS Bank
Employees
CFS Investments, Inc. New York CFS Bank 100%
CFS Insurance Agency, Inc. New York Haven 100%
Bancorp
CFS Travel, Inc. New York Haven 100%
Bancorp
Columbia Resources Corp. New York CFS Bank 100%