EXHIBIT 1.1
$125,000,000
R&G CAPITAL TRUST VI
6.62% CUMULATIVE MONTHLY INCOME TRUST PREFERRED SECURITIES
AGENCY AGREEMENT
November 26, 2004
UBS FINANCIAL SERVICES INCORPORATED OF PUERTO RICO
R-G INVESTMENTS CORPORATION
San ▇▇▇▇, Puerto Rico
Ladies and Gentlemen:
R&G CAPITAL TRUST VI (the "Issuer" or the "Trust"), a statutory trust
created under the Delaware Statutory Trust Act (the "Delaware Act"), proposes to
sell an aggregate principal amount of $125,000,000 of its 6.62% Cumulative
Monthly Income Trust Preferred Securities (the "Preferred Securities") to the
Puerto Rico Conservation Trust Fund ("Conservation Trust"), in connection with
the issuance by Conservation Trust of its 6.00% Secured Notes Due 2034 (the "CT
Notes"). The Preferred Securities shall be dated, shall bear interest at the
rates per annum and shall be subject to mandatory redemption, as described in
the Final Prospectus (as defined below). The CT Notes will be payable solely
from amounts payable by the Trust on the Preferred Securities and the Preferred
Securities will be pledged as collateral to the trustee of the CT Notes. The
Preferred Securities shall be guaranteed by R&G Financial Corporation (the
"Company" or the "Guarantor") with respect to the distributions and amounts
payable upon liquidation and redemption, pursuant to the Preferred Securities
Guarantee Agreement (the "Guarantee Agreement"), to be dated as of the Closing
Date (as defined below), executed and delivered by the Guarantor and Wilmington
Trust Company, a Delaware banking corporation, as trustee (the "Guarantee
Trustee"), for the benefit of the holder of the Preferred Securities. The
proceeds from the sale of the Preferred Securities to the Conservation Trust
will be aggregated with the entire proceeds from the sale by the Issuer to the
Company of the Common Securities of the Issuer (the "Common Securities") and
will be used by the Issuer to purchase the 6.62% subordinated debentures (the
"Debentures") issued by the Company. The Preferred Securities and the Common
Securities will be issued pursuant to the Amended and Restated Declaration of
Trust (the "Declaration"), among the Company and the trustees named therein (the
"Trustees"). The Debentures will be issued pursuant to a Junior Subordinated
Indenture (the "Indenture"), among the Company and Wilmington Trust Company, as
trustee (the "Indenture
Trustee"). You have agreed to act as placement agents (collectively the
"Agents") in connection with the sale of the Preferred Securities to
Conservation Trust, and UBS Financial Services Incorporated of Puerto Rico has
agreed to act as representative (the "Representative") of the underwriters (the
"Underwriters") in connection with the sale of the CT Notes to the public.
References to the Agents shall be deemed to include the Representative in its
role as representative of the Underwriters.
The Issuer and the Company jointly and severally hereby confirm as follows
its agreements with you:
1. Sale of Notes: Compensation of Agents.
(a) The Issuer will sell the Preferred Securities to Conservation
Trust at a purchase price of $121,653,750. Conservation Trust will in turn issue
and sell the CT Notes to the Underwriters in accordance with the terms of a
Purchase Agreement being executed simultaneously herewith (the "Purchase
Agreement"). The CT Notes will be offered by the Underwriters by means of an
offering circular of Conservation Trust (the "Offering Circular") that will
include as an attachment a prospectus supplement and the Base Prospectus of the
Issuer described below. Prior to the date hereof, Conservation Trust and the
Issuer have delivered to the Agents a preliminary offering circular of
Conservation Trust (the "Preliminary Offering Circular") that includes as an
attachment a preliminary prospectus supplement dated November 18, 2004, and the
Base Prospectus of the Issuer.
(b) Because the proceeds from the sale of the Preferred Securities
shall be used to purchase the Debentures from the Company, as compensation for
its services hereunder, the Company will pay to the Agents a nonrefundable fee
equal to $312,500.00, which shall be fully earned upon the delivery of the
Preferred Securities on the Closing Date (as such term is defined below) and
shall be allocated among the Agents in accordance with the percentages set forth
in Schedule 2 opposite the name of each Agent.
2. Delivery and Payment. Delivery of the Preferred Securities shall be
made to Banco Popular de Puerto Rico, as trustee for the CT Notes, against
payment of the purchase price by wire transfer of immediately available funds to
the bank account designated by the Company. Such payment shall be made at 10:00
a.m., New York City time, on the third full business day following the date of
this Agreement, or at such other time on such other date, not later than seven
business days after the date of this Agreement, as may be agreed upon by the
Company and Conservation Trust (such date is hereinafter referred to as the
"Closing Date"). Delivery of the other documents, required to be delivered as
provided herein, shall be made at the offices of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, Banco Popular Center 19th Floor, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇.
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3. Representations and Warranties. Each of the Issuer and the Company,
jointly and severally, represents, warrants and covenants to the Agents and each
of the Underwriters that:
(a) The Company and the Issuer, as co-registrant with the Company,
meet the requirements for use of Form S-3 and a registration statement
(Registration Nos. 333-118920, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and 333-113321-03)
on Form S-3 with respect to the Preferred Securities, including a prospectus
(the "Base Prospectus"), and such amendments to such registration statement as
may have been required to the date of this Agreement, has been prepared by the
Company in conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations of the Securities and
Exchange Commission (the "Rules and Regulations") thereunder, and has been filed
with the Securities and Exchange Commission (the "Commission") and has become
effective. No stop order preventing or suspending the effectiveness of the
registration statement has been issued, and, to the Company's knowledge, no
proceeding for that purpose has been instituted or threatened by the Commission.
A prospectus supplement and a final prospectus containing information to be
omitted at the time of effectiveness by Rule 430A of the Rules and Regulations
has been or will be so prepared and filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations on or before the second business day after
the date hereof (or such earlier time as may be required by the Rules and
Regulations); and the Rules and Regulations do not require the Company to, and,
without the Agents' consent, the Company will not, file a post-effective
amendment after the time of execution of this Agreement and prior to the filing
of such final form of prospectus. The registration statement may be supplemented
by one or more forms of preliminary prospectus supplement, as contemplated by
Rule 430 or Rule 430A of the Rules and Regulations, to be used in connection
with the offering and sale of the Preferred Securities (each a "Preliminary
Prospectus"). Copies of such registration statement, and such amendments, and
each related Preliminary Prospectus and all documents incorporated therein by
reference that were filed with the Commission on or prior to the date of this
Agreement have been delivered to the Agents and their counsel. The term
"Registration Statement" means such registration statement as amended at the
time it becomes or became effective (the "Effective Date"), including financial
statements and all exhibits and any information deemed by virtue of Rule 430A of
the Rules and Regulations to be included in such Registration Statement at the
Effective Date and any prospectus supplement filed thereafter with the
Commission and shall include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). The term "Final Prospectus" means,
collectively, the Base Prospectus together with any prospectus supplement, in
the respective forms they are filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations. Any references herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement, the Base
Prospectus any Preliminary Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date, or the date of any Preliminary Prospectus or the Final
Prospectus, as the case may be, that is incorporated therein by reference. For
purposes of this Agency Agreement, all references to the Registration Statement,
the Final Prospectus, any preliminary prospectus or any amendment or supplement
thereto shall be deemed to include any copy filed with the Commission pursuant
to its Electronic Data Gathering
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Analysis and Retrieval System (▇▇▇▇▇), and such copy shall be identical (except
to the extent permitted by Regulation S-T) to any prospectus delivered to the
Agents for use in connection with the offering of the Preferred Securities by
the Company.
(b) Each part of the Registration Statement (excluding any
prospectus supplement with respect to an offering of securities other that the
Preferred Securities contemplated hereby), when such part became or becomes
effective, each Preliminary Prospectus, on the date of filing thereof with the
Commission, and the Final Prospectus and any amendment or supplement thereto, on
the date of filing thereof with the Commission and at the Closing Date conformed
or will conform in all material respects with the requirements of the Act, the
Trust Indenture Act of 1939 ("Trust Indenture Act") and the Rules and
Regulations thereunder; each part of the Registration Statement (excluding any
prospectus supplement with respect to an offering of securities other than the
offering of the Preferred Securities contemplated hereby), when such part became
or becomes effective, did not or will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; each Preliminary
Prospectus, on the date of filing thereof with the Commission, and the Final
Prospectus, on the date of filing thereof with the Commission and at the Closing
Date, did not or will not include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; the foregoing
shall not apply to the statements in or omissions from any such document in
reliance upon, and in conformity with, written information relating to any
Underwriter furnished to the Company by the Agents, or by any Underwriter
through the Agents, specifically for use in the preparation thereof. The Company
has not distributed any offering material in connection with the offering or
sale of the Preferred Securities other than the Registration Statement, any
Preliminary Prospectus, the Final Prospectus or any other materials, if any,
permitted by the Act.
(c) The documents incorporated by reference in the Registration
Statement, the Final Prospectus (or, if the Final Prospectus is not in
existence, the most recent Preliminary Prospectus) and any amendment or
supplement to such Registration Statement or such Final Prospectus, when they
became or become effective under the Act or were or are filed with the
Commission under the Exchange Act, as the case may be, conformed or will conform
in all material respects with the requirements of the Act, the Trust Indenture
Act, the Exchange Act and the Rules and Regulations thereunder, as applicable.
(d) The Issuer has been duly formed and is validly existing in good
standing as a statutory trust under the Delaware Act with power and authority to
own property and conduct its business as described in the Final Prospectus (or,
if the Final Prospectus is not in existence, the most recent Preliminary
Prospectus). All of the outstanding beneficial interests of the Issuer have been
duly authorized and validly issued and are fully paid and nonassessable
undivided beneficial interests in the assets of the Issuer; the holders of such
beneficial interests of the Issuer have no preemptive or other rights to acquire
Preferred Securities or Common Securities and there are no restrictions on
transfers of the securities.
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(e) The Declaration has been duly authorized; and when the Preferred
Securities are delivered and paid for pursuant to this Agreement on the Closing
Date, the Declaration will have been duly executed and delivered and will
constitute a valid and legally binding instrument enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(f) The Guarantee Agreement has been duly authorized; when the
Preferred Securities are delivered and paid for pursuant to this Agreement on
the Closing Date, the Guarantee Agreement will have been duly executed and
delivered and will constitute a valid and legally binding instrument enforceable
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(g) The Preferred Securities have been duly authorized; when the
Preferred Securities are delivered and paid for pursuant to this Agreement on
the Closing Date, such Preferred Securities will (i) have been validly issued
and fully paid, (ii) represent nonassessable undivided beneficial interest in
the assets of the Issuer, (iii) be entitled to the benefits set forth in the
Declaration and (iv) conform to the description thereof contained in the
Registration Statement, the Final Prospectus and any amendment or supplement to
such Registration Statement; the issuance of the Preferred Securities is not
subject to preemptive or other similar rights; and the holders of the Preferred
Securities will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit incorporated under
the General Corporation Law of the State of Delaware.
(h) The Common Securities have been duly authorized; when the Common
Securities are delivered and paid for pursuant to this Agreement on the Closing
Date, such Common Securities will (i) have been validly issued and fully paid,
(ii) represent nonassessable undivided beneficial interest in the assets of the
Issuer, (iii) be entitled to the benefits set forth in the Declaration and
(iv)conform to the description thereof contained in the Registration Statement,
the Final Prospectus and any amendment or supplement to such Registration
Statement; the issuance of the Common Securities is not subject to preemptive or
other similar rights; and the holders of the Common Securities will be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit incorporated under the General Corporation Law of the
State of Delaware; and at the Closing Date, all of the issued and outstanding
Common Securities of the Issuer will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(i) The only directly or indirectly controlled subsidiaries of the
Company (each, a "Subsidiary" and collectively, the "Subsidiaries") are those
listed on Exhibit A hereto. In addition, each Subsidiary of the Company which is
a "significant subsidiary" as defined in Rule 405 of
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Regulation C of the Rules and Regulations under the Act (each a "Significant
Subsidiary") is listed on Exhibit A hereof. The Company has been and, at the
Closing Date, will be duly organized and validly existing as a corporation under
the laws of the Commonwealth of Puerto Rico and is and, at the Closing Date,
will be in good standing with the Commonwealth of Puerto Rico. The Company is
and will be as of the Closing Date registered with the Board of Governors of the
Federal Reserve System (the "Federal Reserve") as a bank holding company under
the Bank Holding Company Act of 1956 (the "BHCA") and its election to be treated
as a financial holding company under the BHCA is and will remain in full force
and effect. Each of the Subsidiaries is and, at the Closing Date, will be a
corporation duly organized, validly existing and in good standing under the laws
of its respective jurisdiction of incorporation. Each of the Company and its
Subsidiaries is and, at the Closing Date, will be duly qualified and in good
standing as a foreign corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or conduct
of its business or use of its property and assets, makes such qualification
necessary, except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or the earnings,
prospects or business affairs of the Company and its Subsidiaries taken as a
whole (a "Material Adverse Effect").
(j) The outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable and are
not subject to any preemptive or similar rights. The Debentures to be issued and
sold by the Company will be, upon such issuance and payment therefor, duly
authorized, valid, binding and enforceable obligations of the Company. The
Company has, and, upon completion of the sale of the Debentures, will have, an
authorized, issued and outstanding capitalization as set forth in the
Registration Statement and the Final Prospectus (or, if the Final Prospectus is
not in existence, the most recent Preliminary Prospectus in the "As Adjusted"
column).
(k) The consolidated financial statements and the related notes of
the Company included in the Registration Statement or incorporated therein by
reference and the Final Prospectus (or, if the Final Prospectus is not in
existence, the most recent Preliminary Prospectus) present fairly the financial
condition of the Company and its Subsidiaries as of the dates indicated and the
consolidated results of operations, and cash flows of the Company and its
Subsidiaries for the periods covered thereby, all in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis throughout
the entire periods involved. PricewaterhouseCoopers LLP (the "Accountants"), who
have reported on those financial statements and related notes which have been
audited, are independent accountants with respect to the Company and its
Subsidiaries within the meaning of the Act and the applicable and published
rules and regulations.
(l) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorization, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management's general
or specific authorization, and
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(iv) the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(m) Except as set forth in the Registration Statement and the Final
Prospectus, subsequent to the respective dates as of which information is given
in the Registration Statement and the Final Prospectus and prior to the Closing
Date, (i) there has not been, and will not have been, any Material Adverse
Effect, (ii) neither the Company nor any of its Subsidiaries have entered into,
or will have entered into any material transactions other than pursuant to this
Agreement, and (iii) the Company has not, and will not have, paid or declared
any dividends or other distributions of any kind on any class of its capital
stock, except for the payment or declaration of quarterly dividends on the
Company's common stock (the "Common Stock") and the payment and declaration of
monthly dividends on each of the Company's series of outstanding preferred stock
in the ordinary course of its business.
(n) The Company and each of its Subsidiaries have good and
marketable title to all properties and assets described in the Registration
Statement, including the documents incorporated by reference therein, and the
Final Prospectus (or, if the Final Prospectus is not in existence, the most
recent Preliminary Prospectus), as owned by it, free and clear of all liens,
security interests, restrictions, pledges, encumbrances, charges, equities,
claims, easements, leases and tenancies (collectively, "Encumbrances") other
than those described in the Registration Statement, or in the documents
incorporated by reference therein, and Final Prospectus (or, if the Final
Prospectus is not in existence, the most recent Preliminary Prospectus) or those
that will not have a Material Adverse Effect. The Company and each of its
Subsidiaries have valid, subsisting and enforceable leases for the properties
and assets described in the Registration Statement, or in the documents
incorporated by reference therein, and Final Prospectus (or, if the Final
Prospectus is not in existence, the most recent Preliminary Prospectus) as
leased by them, free and clear of all Encumbrances, other than those described
in the Registration Statement, or in the documents incorporated by reference
therein, and the Final Prospectus (or, if the Final Prospectus is not in
existence, the most recent Preliminary Prospectus), or those that will not have
a Material Adverse Effect.
(o) Neither the Issuer nor the Company is and, after giving effect
to the offering and sale of the Preferred Securities and the Debentures and the
application of the proceeds thereof as described in the Final Prospectus,
neither of them will be, required to be registered under the Investment Company
Act of 1940, as amended (the "Investment Company Act").
(p) Except as set forth in the Registration Statement, or
incorporated therein by reference, and the Final Prospectus (or, if the Final
Prospectus is not in existence, the most recent Preliminary Prospectus), there
are no actions, suits, arbitrations, claims, governmental or other proceedings
(formal or informal), or investigations pending or threatened against or
affecting the Company or any of its Subsidiaries, or, to the knowledge of the
Company, any directors, executive officers or shareholders of the Company or any
of its Subsidiaries in their respective capacities as
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such, or any of the properties or assets owned or leased by the Company or any
of its Subsidiaries, before or by any federal, state or Commonwealth of Puerto
Rico court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign (collectively, a "Governmental Body"),
wherein an unfavorable ruling, decision or finding would have a Material Adverse
Effect and would be required to be disclosed in the Registration Statement and
the Final Prospectus (or, if the Final Prospectus is not in existence, the most
recent Preliminary Prospectus). Neither the Company nor any Significant
Subsidiary is in violation of, or in default with respect to, any law, rule, or
regulation, or any order, judgment, or decree, except as described in the Final
Prospectus (or, if the Final Prospectus is not in existence, the most recent
Preliminary Prospectus) or when such violations or defaults, in the aggregate,
do not now have and can reasonably be expected in the future not to have a
Material Adverse Effect; nor is the Company or any Significant Subsidiary
presently required under any order, judgment or decree to take any action in
order to avoid any such violation or default.
(q) The Company and each of its Significant Subsidiaries have and,
at the Closing Date will have all governmental licenses, permits, consents,
orders, approvals, franchises, certificates and other authorizations
(collectively, "Licenses") necessary to carry on their respective businesses and
own or lease their respective properties as contemplated in the Registration
Statement and the Final Prospectus (or, if the Final Prospectus is not in
existence, the most recent Preliminary Prospectus). The Company and each of its
Significant Subsidiaries have and, at the Closing Date, will have complied in
all material respects with all laws, regulations and orders applicable to it or
its business, assets and properties, except for such violations, individually or
in the aggregate which are not reasonably expected to have a Material Adverse
Effect. Neither the Company nor any of its Significant Subsidiaries is, nor, at
the Closing Date, will be in default (nor has any event occurred which, with
notice or lapse of time or both, would constitute a default) in the due
performance and observation of any term, covenant or condition of any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement or other evidence of indebtedness, lease, contract or
other agreement or instrument (collectively, a "contract or other agreement") to
which they are a party or by which their respective properties are bound or
affected, the violation of which would individually or in the aggregate have a
Material Adverse Effect. There are no governmental proceedings or actions
pending or threatened for the purpose of suspending, modifying or revoking any
License held by the Company or its Significant Subsidiaries.
(r) No consent, approval, authorization or order of, or any filing
or declaration with, any Governmental Body is required for the consummation of
the transactions contemplated by this Agreement or in connection with the
issuance and sale of the Preferred Securities by the Issuer or in connection
with the issuance and sale of Debentures by the Company, except such as have
been obtained and such as may be required under the bylaws and rules of the
National Association of Securities Dealers, Inc. (the "NASD") in connection with
the purchase and distribution of the Preferred Securities.
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(s) Both the Issuer and the Company have full power (corporate and
other) and authority to enter into this Agreement and to carry out all the terms
and provisions hereof to be carried out by it. This Agreement has been duly
authorized, executed and delivered by each of the Issuer and the Company and
constitutes a valid and binding agreement of each of them and is enforceable
against any of them in accordance with its terms, except as rights to indemnity
and contribution which may be limited by federal, state or Commonwealth of
Puerto Rico securities laws or the public policy underlying such laws. Except as
disclosed in the Registration Statement and the Final Prospectus (or, if the
Final Prospectus is not in existence, the most recent Preliminary Prospectus),
the execution, delivery and the performance of this Agreement and the
consummation of the transactions contemplated hereby will not result in the
creation or imposition of any Encumbrance upon any of the properties or assets
of the Issuer, the Company or any of the Significant Subsidiaries pursuant to
the terms or provisions of, or result in a breach or violation of, or conflict
with any of the terms or provisions of, or constitute a default under, or give
any other party a right to terminate any of the Issuer's or the Company's
obligations under, or result in the acceleration of any obligation under, (i)
the Certificate of Incorporation or By-laws of the Company, in each case as
amended, or the Declaration or (ii) any contract or other agreement to which the
Issuer, the Company or any of the Significant Subsidiaries is a party or by
which it or any of the respective assets or properties are bound or affected,
the violation of which would individually or in the aggregate have a Material
Adverse Effect, or (iii) any judgment, ruling, decree, order, law, statute, rule
or regulation of any Governmental Body applicable to the Issuer, the Company or
any of the Significant Subsidiaries or their respective businesses or
properties, the violation of which would individually or in the aggregate have a
Material Adverse Effect.
(t) No statement, representation, or warranty made by each of the
Issuer and the Company in this Agreement or made in any certificate or document
required by this Agreement to be delivered to the Agents was or will be, when
made, inaccurate, untrue or incorrect in any material respect.
(u) Neither the Issuer, the Company nor, to the knowledge of the
Company, any of its directors, or executive officers, has taken, nor will he,
she or it, take directly or indirectly, any action designed, or which might
reasonably be expected in the future, to cause or result in, under the Act or
otherwise, or which has constituted, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Preferred
Stock or otherwise.
(v) Neither the Issuer, the Company nor any of its Subsidiaries is
involved in any collective labor dispute with its employees nor is any such
dispute threatened or imminent.
(w) The Company has filed all applicable foreign, federal, state and
Commonwealth of Puerto Rico tax returns that are required to be filed or has
requested extensions thereof and has paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except for any failure to file which
would not have a Material Adverse Effect.
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(x) The Company meets the requirements for use of Rule 415 under the
Rules and Regulations under the Act.
(y) The deposit accounts of R&G Premier Bank, a Subsidiary of the
Company ("R&G Premier") and R-G Crown Bank, a Subsidiary of the Company ("R-G
Crown"), are insured by the Federal Deposit Insurance Corporation ("FDIC") to
the legal maximum, and no proceeding for the termination or revocation of such
insurance is pending or threatened. R&G Premier and R-G Crown are members in
good standing of the Federal Home Loan Bank of New York and the Federal Home
Loan Bank of Atlanta, respectively.
(z) None of the Issuer, the Company or its Significant Subsidiaries,
or any of their respective directors or executive officers, is subject to any
order or directive of, or party to any agreement with, any regulatory agency
having jurisdiction with respect to its business or operations except as
disclosed in the Final Prospectus (or, if the Final Prospectus is not in
existence, the most recent Preliminary Prospectus).
(aa) The Company is engaged in trade or business in the Commonwealth
of Puerto Rico. The Company derived more than 20% of its gross income from
sources within the Commonwealth of Puerto Rico for the three year period ending
with the close of the Company's taxable year ended on December 31, 2003.
4. Agreements of the Company and the Issuer. Each of the Company and the
Issuer jointly and severally agree with the Agents and each of the Underwriters
as follows:
(a) The Company will cause the Prospectus Supplement to be filed as
contemplated by Section 3(a) hereof (but only if the Agents have not reasonably
objected thereto by notice to the Company after having been furnished a copy
within a reasonable time prior to filing) and will notify the Agents promptly of
such filing. The Company and the Issuer will not during such period as the Final
Prospectus is required by law to be delivered in connection with sales of the CT
Notes by any underwriter or dealer (the "Prospectus Delivery Period"), file any
amendment or supplement to the Registration Statement or the Final Prospectus,
unless a copy thereof shall first have been submitted to the Agents within a
reasonable period of time prior to the filing thereof and the Agents shall not
have objected thereto in good faith.
(b) The Company and the Issuer will use their best efforts to cause
the Registration Statement to remain effective through the completion of the
Underwriters' distribution of the CT Notes, and will notify the Agents promptly,
and will confirm such advice in writing, (i) of the preparation and filing
(subject to Section 4(a)) of any post-effective amendment and when any such
post-effective amendment to the Registration Statement becomes effective, (ii)
of any request by the Commission for amendments or supplements to the
Registration Statement or the Final Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order
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suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose or the threat thereof, (iv) of the suspension
of the qualification or registration of the Preferred Securities for offering or
sale in the Commonwealth of Puerto Rico, or of the initiation or threat of any
proceeding for any such purpose, (v) of the happening of any event during the
Prospectus Delivery Period that in the judgment of the Company or the Issuer
makes any statement made in the Registration Statement or the Final Prospectus
untrue or that requires the making of any changes in the Registration Statement
or the Final Prospectus in order to make the statements therein, in light of the
circumstances in which they are made, not misleading, and (vi) of receipt by the
Company or any representative or attorney of the Company of any other
communication from the Commission relating to the Company, the Registration
Statement, any preliminary prospectus or the Final Prospectus. If at any time
the Commission or any jurisdiction shall threaten to issue, or shall issue, any
order suspending the effectiveness of the Registration Statement or suspending
the qualification or registration of the Preferred Securities for sale in any
jurisdiction, the Company and the Issuer will make every reasonable effort to
prevent the issuance of such order and, if such an order should be issued, to
obtain the withdrawal of such order at the earliest possible moment. The Company
and the Issuer will use their best efforts to comply with the provisions of and
make all requisite filings with the Commission pursuant to Rule 430A and to
notify the Agents promptly of all such filings.
(c) If, at any time when a Final Prospectus relating to the
Preferred Securities is required to be delivered under the Act, any event occurs
as a result of which, in the judgment of the Company or the Issuer or in the
opinion of counsel to the Underwriters, the Final Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or the
Registration Statement, as then amended or supplemented, would include any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Final Prospectus or the
Registration Statement to comply with the Act or the Rules and Regulations
thereunder, the Company will promptly notify the Agents thereof and, subject to
Section 4(b) hereof, will prepare and file with the Commission, at the Company's
expense, an amendment to the Registration Statement or an amendment or
supplement to the Final Prospectus that corrects such statement or omission or
effects such compliance.
(d) The Company will furnish to the Agents, without charge, two
signed copies of the Registration Statement and of any post-effective amendment
thereto, including financial statements and schedules, and all exhibits thereto
and will furnish to the Agents, without charge, for transmittal to each of the
Underwriters, copies of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules but without
exhibits.
(e) The Company and the Issuer will comply with all the provisions
of all undertakings contained in the Registration Statement.
11
(f) During the Prospectus Delivery Period, the Company will promptly
furnish to the Underwriters, without charge, as many copies of each preliminary
prospectus, the Final Prospectus and any amendment or supplement thereto as the
Underwriters may from time to time reasonably request. The Company consents to
the use of the Final Prospectus, as amended or supplemented from time to time,
by the Underwriters and by all dealers to whom the CT Notes may be sold, both in
connection with the offering or sale of the CT Notes and, thereafter, during the
Prospectus Delivery Period; if during the Prospectus Delivery Period any event
shall occur which in the judgment of the Company or counsel to the Underwriters
should be set forth in the Final Prospectus in order to make any statement
therein, in the light of the circumstances under which it was made, not
misleading, or if, in the reasonable opinion of counsel to the Underwriters, it
is necessary to supplement or amend the Final Prospectus to comply with law, the
Company will forthwith prepare and duly file with the Commission an appropriate
supplement or amendment thereto. Except as required by the Exchange Act or the
Rules and Regulations thereunder, the Company shall not file any document under
the Exchange Act before the termination of the Prospectus Delivery Period if
such document would be deemed to be incorporated by reference into the Final
Prospectus to which the Agents reasonably object.
(g) During the period of five years commencing on the Closing Date,
the Company will furnish to the Agents, and each other Underwriter who may so
request, copies of such financial statements and other periodic and special
reports as the Company may from time to time distribute generally to the holders
of any class of its capital stock, and will furnish to the Agents, and each
other Underwriter who may so request, a copy of each annual or other report it
shall be required to file with the Commission.
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than ninety (90) days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations) covering a twelve-month period beginning not later than the first
day of the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
(i) The Company and the Issuer will apply the net proceeds from the
offering and sale of the Preferred Securities and the Debentures, respectively,
in the manner set forth in the Final Prospectus under "Use of Proceeds."
(j) The Company and the Issuer will enter into a Supplement to
Agency Agreement in the form attached hereto as Exhibit B.
(k) The Company will, for each taxable year, up to and including the
taxable year when all interest on and principal of the Debentures are paid in
full, not later than the 120th day following the close of each such taxable
year, beginning with the first taxable year ending after the original issuance
of the Debentures (1) furnish to the Trustee and the Company's independent
12
accountants a certificate (the "Source of Income Certificate") addressed to the
trustee of the CT Notes and the Company's independent accountants: (i) stating,
for the three immediately preceding taxable years of the Company (or for such
part of such period as may be applicable), the percentage of the Company's gross
income that was derived from sources within the Commonwealth of Puerto Rico
under the general sourcing rules of the United States Internal Revenue Code as
in effect on the date of the original issuance of the Debentures (the "Code");
(ii) stating the percentage of the Company's gross income that was attributable
to the active conduct of (A) its trade or business in the Commonwealth of Puerto
Rico and (B) any trade or business outside the Commonwealth of Puerto Rico, in
each case as determined under Section 861(c)(1)(B) of the Code; (iii) making an
assertion as to whether or not the Company has met the following tests (the
"Source of Income Tests"): that (x) during the three taxable years (or for such
part of such period as may be applicable) immediately preceding the taxable year
during which interest is paid on the Debentures, more than 20% of the Company's
total gross income was attributable to its trade or business in the Commonwealth
of Puerto Rico, as determined under Section 861(c)(1)(B) of the Code, as in
effect on the date of the original issuance of the Debentures, and was derived
from sources within the Commonwealth of Puerto Rico under the general source of
income rules of the Code, as in effect on the date of original issuance of the
Debentures; and (y) no part of the interest paid on the Debentures was treated,
under the Code, as paid by a trade or business of the Company conducted outside
the Commonwealth of Puerto Rico, such determination to be made in accordance
with Section 884(f)(1)(A) of the Code and Treas. Regs. Section
1.884-4(b)(1)(i)(A) or (B) issued thereunder, as in effect on the date of
original issuance of the Debentures; and (iv) making an assertion as to whether
the Company has taken any other action which shall cause interest on the
Debentures to become subject to federal income taxation for individuals who are
bona fide residents of the Commonwealth of Puerto Rico for the entire taxable
year or to corporations organized under the laws of the Commonwealth of Puerto
Rico.
(l) The Company and the Issuer acknowledge that, pursuant to Section
609 of the trust agreement between Conservation Trust and Banco Popular de
Puerto Rico, as trustee (the "Trustee"), under which the CT Notes are issued and
secured (the "Trust Agreement"), Conservation Trust and the Trustee have
assigned to the holders of the CT Notes their rights against the Issuer and the
Company under United States federal and applicable state securities laws with
respect to the Preferred Securities. Accordingly, purchasers of the CT Notes may
proceed directly against the Issuer and the Company to enforce those rights
without first proceeding against Conservation Trust, the Trustee or any other
entity. The Company and the Issuer acknowledge, for the benefit of the holders
of the CT Notes, the existence of such assignment and agree not to contest its
enforceability.
5. Agreement of the Agents.
The Agents acknowledge that, pursuant to Section 609 of the Trust
Agreement, Conservation Trust and the Trustee have assigned to the holders of
the CT Notes their rights against the Agents under United States federal and
applicable state securities laws with respect to the Preferred Securities.
Accordingly, purchasers of the CT Notes may proceed directly against the Agents
to
13
enforce those rights without first proceeding against Conservation Trust, the
Trustee or any other entity. The Agents acknowledge, for the benefit of the
holders of the CT Notes, the existence of such assignment and agree not to
contest its enforceability.
6. Expenses.
(a) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, the Company will pay, or
reimburse if paid by the Agents, all costs and expenses incidental to the
performance of the obligations of the Company under this Agreement, including,
but not limited to, costs and expenses of or relating to (i) the preparation and
filing by the Company of the Registration Statement and exhibits thereto, each
Preliminary Prospectus prior to or during the period specified in the first
sentence of Section 4(f) but not exceeding nine (9) months after the Effective
Date, the Final Prospectus and any amendment or supplement to the Registration
Statement or the Final Prospectus, (ii) furnishing (including costs of shipping
and mailing) such copies of the Registration Statement, the Final Prospectus and
any Preliminary Prospectus, and all amendments and supplements thereto, as may
be requested for use in connection with the offering and sale of the CT Notes by
the Underwriters or by dealers to whom CT Notes may be sold, (iii) any filings
required to be made by the Underwriters with the NASD, (iv) counsel and
accountants to the Company, and (v) the reasonable fees and disbursements of the
trustee for the Notes, including its legal expenses; it being understood that
the Company and Conservation Trust will share the costs of printing the
Preliminary Offering Circular and the Offering Circular (including the Final
Prospectus) and all amendments thereto.
(b) If the transactions contemplated by this Agreement are not
consummated or if this Agreement is terminated by the Company pursuant to any of
the provisions hereof, the Company will reimburse the Agents and the
Underwriters for all of their accountable out-of-pocket fees and expenses
(including the fees, disbursements and other charges of their counsel, not to
exceed $ ) incurred by them in connection herewith.
7. Conditions to the Obligations of the Underwriters. The obligations of
each Underwriter under the Purchase Agreement and the consummation of the
transaction contemplated hereunder are subject to the following conditions:
(a) All filings required under Rule 424 and 430A of the Rules and
Regulations to be made by the Company and the Issuer prior to the Closing shall
have been made by the Company or the Issuer, as the case may be.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the qualification
or registration of the Preferred Securities under the securities or blue sky
laws of the Commonwealth of Puerto Rico shall be in effect, and no proceeding
for such purposes shall be
14
pending before or threatened or contemplated by the Commission or the
authorities of the Commonwealth of Puerto Rico, (iii) any request for additional
information on the part of the staff of the Commission or any such authorities
shall have been complied with to the satisfaction of the staff of the Commission
or such authorities, and (iv) after the date hereof no amendment or supplement
to the Registration Statement or the Final Prospectus shall have been filed
unless a copy thereof was first submitted to and approved by the Agents, and the
Agents shall have received certificates, dated the Closing Date and signed by
the Chief Executive Officer or President of the Company and the Chief Financial
Officer of the Company (who may, as to proceedings threatened, rely upon the
best of their information and belief), to the effect of the foregoing clauses
(i), (ii) and (iii).
(c) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, (i) there shall not have
been a Material Adverse Effect, and (ii) the Company shall not have sustained
any loss or interference with its business, assets or properties from fire,
explosion, flood or other casualty, or from any labor dispute or any court or
legislative or other governmental action, order or decree, which is not set
forth in the Registration Statement or the Final Prospectus.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, there shall have been no
litigation or other proceeding instituted against the Company or the Issuer or,
to the knowledge of the Company, any of their respective executive officers or
directors in their capacities as such, or any of its assets or properties,
before or by any Governmental Body in which litigation or proceeding an
unfavorable ruling, decision or finding would have a Material Adverse Effect.
(e) Each of the representations and warranties of each of the Issuer
and the Company contained herein shall be true and correct at the Closing Date,
as if made on such date, and all covenants and agreements herein contained to be
performed on the part of the Company and all conditions herein contained to be
fulfilled or complied with by the Company at or prior to the Closing Date, shall
have been fully performed, fulfilled or complied with.
(f) The Agents shall have received opinions from ▇▇▇▇▇▇ ▇▇▇▇▇ LLP
and ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Company, each dated as of the
Closing Date, in form and substance satisfactory to the Agents.
(g) The Agents shall have received an opinion, dated the Closing
Date, from ▇▇▇▇▇▇ ▇▇▇▇▇, special United States tax counsel to the Company, in
form and substance satisfactory to counsel to the Agents, to the effect that it
confirms its opinion set forth in the Final Prospectus.
(h) The Agents shall have received an opinion, dated the Closing
Date, from ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, which
opinion shall be satisfactory in all respects to the Agents.
15
(i) The Agents shall have received an opinion, dated the Closing
Date of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to the Issuer,
in form and substance reasonably satisfactory to the Agents.
(j) Concurrently with the execution and delivery of this Agreement,
the Accountants shall have furnished to the Agents a letter, dated the date of
its delivery (the "Original Letter"), addressed to the Agents and in form and
substance satisfactory to the Agents, to the effect that:
(i) they are independent accountants within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) in their opinion, the consolidated financial statements
of the Company and its Subsidiaries audited by them and incorporated by
reference in the Final Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act, the
Exchange Act and the Rules and Regulations thereunder with respect to
registration statements on Form S-3;
(iii) on the basis of procedures (but not an audit in
accordance with Public Company Accounting Oversight Board (PCAOB)
standards) consisting of (a) reading the minutes of meetings of the
stockholders and the Board of Directors of the Company and its
Subsidiaries since December 31, 2003 as set forth in the minute books
through a specified date not more than five business days prior to the
date of delivery of the Original Letter; (b) reading the unaudited interim
financial data for the period from the date of the latest balance sheet
incorporated by reference in the Final Prospectus to the date of the
latest available interim financial data; and (c) making inquiries of
certain officials of the Company who have responsibility for financial and
accounting matters regarding the specific items for which representations
are requested below; nothing has come to their attention (as of a date not
more than five business days prior to the date of the delivery of such
letter) as a result of the foregoing procedures that caused them to
believe that: (1) at the date of the latest available interim financial
data and at a specified date not more than five business days prior to the
date of delivery of the Original Letter there was any change in the
capital stock, deposits or any increase in long-term debt or any decreases
in total assets or consolidated stockholders' equity (only as to the
latest interim financial data) of the Company and its Subsidiaries as
compared with amounts shown in the December 31, 2003 balance sheet
incorporated by reference in the Final Prospectus and (2) for the period
from December 31, 2003, to the latest interim financial data available
which should be no later than forty (40) days prior to the date of
delivery of the Original Letter, there were any decreases, as compared
with the corresponding period in the preceding year, in consolidated net
interest income, other income, income before taxes or in the total or per
share amounts of net income, except in all instances for changes or
decreases which the Registration Statement discloses have occurred or may
occur, or they shall state any specific changes or decreases; and
16
(iv) they have compared specific amounts expressed in dollars
(or percentages derived from such dollar amounts) and other financial
information contained or incorporated by reference in the Final Prospectus
or Prospectus Supplement, which has been obtained from accounting records
that are subject to the internal controls of the Company's accounting
system or which has been derived directly from such accounting records and
analysis or computation, with the results obtained from inquiries or
reading of such general accounting records and other procedures specified
in such letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results.
At the Closing Date, the Accountants shall have furnished to
the Agents a letter, dated the date of its delivery, which shall confirm, on the
basis of a review in accordance with the procedures set forth in the Original
Letter, that nothing has come to their attention during the period from the date
of the Original Letter referred to in the prior sentence to a date (specified in
the letter) not more than five business days prior to the Closing Date, which
would require any change in the Original Letter if it were required to be dated
and delivered at the Closing Date.
In the event that the letters referred to above set forth any
such changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (A) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Agents deem such explanation unnecessary, and (B) such changes, decreases or
increases do not, in the sole judgment of the Agents, make it impractical or
inadvisable to proceed with the purchase and delivery of the Preferred
Securities as contemplated by the Registration Statement and the Final
Prospectus, as amended as of the date hereof.
(k) At the Closing Date, there shall be furnished to the Agents an
officer's certificate, dated the date of its delivery, signed by each of the
Chief Executive Officer or President and the Chief Financial Officer of the
Company and the Administrative Trustees of the Trust, in form and substance
satisfactory to the Agents, to the effect that to the best of their knowledge:
(i) Each signer of such certificate has carefully examined the
Registration Statement and the Final Prospectus and (A) as of the date of
such certificate, (x) the Registration Statement does not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, and (y) the Final Prospectus does not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and (B) since the Effective Date no event has occurred as a
result of which it is necessary to amend or supplement the Final
Prospectus in order to make the statements therein not untrue or
misleading in any material respect;
17
(ii) Each of the representations and warranties of the each of
the Issuer and the Company contained in this Agreement, were, when
originally made, and are, at the time such certificate is delivered, true
and correct in all respects; each of the covenants required herein to be
performed by any of them on or prior to the date of such certificate has
been duly, timely and fully performed and each condition herein required
to be complied with, on or prior to the delivery of such certificate has
been duly, timely and fully complied with; and
(iii) No stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and no
order directed at any document incorporated by reference in the
Registration Statement or any amendment thereto or the Final Prospectus
has been issued, and no proceedings for that purpose have been instituted
or threatened or, to the best of the Company's knowledge, are contemplated
by the Commission.
(l) The Company and the Issuer shall have furnished to the Agents
such certificates, letters and other documents, in addition to those
specifically mentioned herein, as the Agents may have reasonably requested as to
the accuracy and completeness at the Closing Date, of any statement in the
Registration Statement or the Final Prospectus, as to the accuracy at the
Closing Date of the representations and warranties of the Company, as to the
performance by the Company of its obligations hereunder, or as to the
fulfillment of the conditions concurrent and precedent to the obligations
hereunder of the Underwriters.
(m) The Agents shall have received copies, duly certified by the
Secretary or an Assistant Secretary of the Company of the resolutions or other
corporate actions adopted or taken by the Company in connection with the
transactions contemplated herein.
(n) The Agents shall have received a copy of the certificate of
incorporation of the Company, as amended, certified as of a recent date by the
appropriate officer of the Commonwealth, together with certificates dated as of
a recent date from the Secretary of State of the Commonwealth of Puerto Rico as
to the existence and good standing of the Company under the laws of the
Commonwealth of Puerto Rico and copies of the by-laws of the Company certified
by the Secretary or an Assistant Secretary of the Company. The Agents shall
further have received a copy of the Declaration, the Indenture and the Guarantee
Agreement relating to the Issuer.
(o) The Underwriters shall have received such other documentation,
certificates and opinions as may be reasonably required by the Underwriters.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in form
and substance to the Agents. The Company will furnish you with such conformed
copies of such opinions, certificates, letters and other documents as the Agents
shall reasonably request.
18
8. Indemnification and Contribution.
(a) Each of the Issuer and the Company, joint and severally, agree
to indemnify and hold harmless the Agents, each Underwriter, the directors,
officers and employees of the Agents or each Underwriter and each person, if
any, who controls the Agents or each Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages or liabilities, joint or several (and actions in respect
thereof), to which they, or any of them, may become subject under the Act or
other federal, state or Commonwealth of Puerto Rico statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement made by the Company or the
Issuer in Section 3 of this Agreement, (ii) any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
any Preliminary Prospectus, or the Final Prospectus, or any amendment or
supplement to the Registration Statement or such Final Prospectus, or under the
headings "Summary - R&G Capital Trust VI," "Summary - R&G Financial
Corporation," "Summary - Trust Preferred Securities" and "R&G Financial" in the
Preliminary Offering Circular and Offering Circular, or (iii) the omission or
alleged omission to state in the Registration Statement, any Preliminary
Prospectus, or the Final Prospectus, or any amendment or supplement to the
Registration Statement or such Final Prospectus, or under the headings "Summary
- R&G Capital Trust VI," "Summary - R&G Financial Corporation," "Summary - Trust
Preferred Securities" and "R&G Financial" in the Preliminary Offering Circular
and Offering Circular a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse, as incurred,
the Agents and each Underwriter and each such other person for any legal or
other expenses reasonably incurred by such Agents or Underwriter or such other
person in connection with investigating defending or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action;
provided, however, that the Company and the Issuer will not be liable in any
such case to the extent that any such loss, claim, damage or liability is based
solely upon an untrue statement or omission or alleged untrue statement or
omission in any of such documents made in reliance upon and in conformity with
information relating to the Agents or any Underwriter furnished in writing to
the Company by the Agents on behalf of any Underwriter expressly for inclusion
therein, or for any information contained in the Preliminary Offering Circular
or Offering Circular for the CT Notes other than under the headings identified
above and other than in the Preliminary Prospectus or Final Prospectus for the
Preferred Securities attached to the Preliminary Offering Circular or the
Offering Circular, provided, further, that such indemnity with respect to any
Preliminary Prospectus or Preliminary Offering Circular shall not inure to the
benefit of any Underwriter (or any such other person) from whom the person
asserting any such loss, claim, damage, liability or action purchased Preferred
Securities or CT Notes which are the subject thereof to the extent that any such
loss, claim, damage or liability (i) results from the fact that such Underwriter
failed to send or give a copy of the Final Prospectus and Offering Circular (as
amended or supplemented) to such person at or prior to the confirmation of the
sale of such Preferred Securities or CT Notes to such person in any case where
such delivery is required by the Act and (ii) arises out of or is based upon an
untrue statement or omission of a material fact contained in such Preliminary
Prospectus or Preliminary Offering
19
Circular that was corrected in the Final Prospectus and Offering Circular (or
any amendment or supplement thereto), unless such failure to deliver the Final
Prospectus and Offering Circular (as amended or supplemented) was the result of
noncompliance by the Company with Section 4(f). This indemnity agreement will be
in addition to any liability that the Company might otherwise have. The Company
will not, without the prior written consent of the Agents and each Underwriter,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not such Underwriter or any person who
controls such Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act is a party to each claim, action, suit or proceeding),
unless such settlement, compromise or consent includes an unconditional release
of each Underwriter and each such other person from all liability arising out of
such claim, action, suit or proceeding.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless each of the Company and the Issuer, the directors, officers and
employees of the Company and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
from and against any losses, claims, damages or liabilities (or actions in
respect thereof) to which any of them may become subject under the Act or other
federal, state or Commonwealth of Puerto Rico statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, or the Final Prospectus, any
amendment or supplement to the Registration Statement or such Final Prospectus,
or under the headings "Plan of Distribution" in the Preliminary Offering
Circular and Offering Circular or material fact required to be stated therein or
(ii) the omission or the alleged omission to state in the Registration
Statement, any Preliminary Prospectus or the Final Prospectus, any amendment or
supplement to the Registration Statement or the Final Prospectus or under the
headings "Plan of Distribution" in the Preliminary Offering Circular and
Offering Circular, a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Agents expressly for use therein; and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by any of them in connection with
investigating or defending any such loss, claim, damage, liability or any action
in respect thereof. The Company acknowledges that, for all purposes under this
Agreement, the statements relating to the Underwriters set forth under the
heading "Plan of Distribution" in the Final Prospectus and in the Offering
Circular constitute the only information relating to any Underwriter furnished
in writing to the Company by the Agents on behalf of the Underwriters expressly
for inclusion in the Registration Statement, any Preliminary Prospectus, the
Final Prospectus, the Preliminary Offering Circular or the Offering Circular.
This indemnity agreement will be in addition to any liability that each
Underwriter might otherwise have.
20
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
or parties under this Section 8, notify such indemnifying party or parties of
the commencement thereof, but the omission so to notify the indemnifying party
or parties will not relieve it or them from any liability which it or they may
have to any indemnified party under the foregoing provisions of this Section 8
or otherwise unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. If any
such action is brought against an indemnified party and it notifies an
indemnifying party or parties of its commencement, the indemnifying party or
parties against which a claim is made will be entitled to participate therein
and, to the extent that it or they may wish, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party; provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or other
expenses other than reasonable costs of investigation subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
reasonable fees and expenses of more than one separate counsel (in addition to
the fees and expenses of local counsel necessary in connection with any such
proceedings) in any one action or separate but substantially similar actions in
the same jurisdiction arising out of the same general allegations or
circumstances, designated by the Agents in the case of paragraph (a) of this
Section 8, representing the indemnified parties under paragraph (a) who are
parties to such action or actions), or (ii) the indemnifying party has
authorized in writing the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the written consent of the indemnifying party, unless such
indemnified party waived its rights under this Section 8 in which case the
indemnified party may effect such a settlement without such consent.
(d) If the indemnification provided for in the foregoing paragraphs
of this Section 8 is unavailable or insufficient to hold harmless an indemnified
party under paragraph (a), (b) or (c) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) (i) in such proportion as is appropriate to reflect
the relative benefits received by the
21
indemnifying party or parties, on the one hand, and the indemnified party, on
the other, from the offering of the Preferred Securities or (ii) if, but only
if, the allocation provided by the foregoing clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand, and the indemnified party, on
the other, in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Issuer, on
the one hand, and the Underwriters, on the other, shall be deemed to be in the
same proportion as the total proceeds from the offering of the Preferred
Securities (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters in
connection with the sale of the CT Notes. Relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Agents on behalf of the Underwriters,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purposes) or by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities (or actions in
respect thereof) referred to above in this Section 8(d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Underwriter shall be
required to contribute any amount in excess of the total underwriting discounts
received by it with respect to the CT Notes purchased by such Underwriter under
this Agreement, less the aggregate amount of any damages that such Underwriter
has otherwise been required to pay in respect of the same or any substantially
similar claim. No person found guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) will be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint. For purposes of this Section 8(d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act will have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, will
have the same rights to contribution as the Company, subject in each case to the
provisions of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made under this Section 8(d), notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other
obligation(s) it or they may have hereunder or otherwise than under this
paragraph (d) or to the extent that such party or parties
22
were not adversely affected by such omission. The contribution agreement set
forth above shall be in addition to any liabilities which any indemnifying party
may otherwise have. No party will be liable for contribution with respect to any
action or claim settled without its written consent (which consent will not be
unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of each of the Company and the
Issuer contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of the
Underwriters, (ii) acceptance of any of the Preferred Securities or the CT Notes
and payment therefor or (iii) any termination of this Agreement.
9. Termination. This Agreement may be terminated by the Agents at any time
prior to the Closing Date, by notice to the Company, without liability on the
part of the Agents or any Underwriter to the Company if, prior to delivery and
payment for the Preferred Securities, in the sole judgment of the Agents, (i)
trading in the common stock or the preferred stock of the Company or securities
generally shall have been suspended by the Commission or by The Nasdaq Stock
Market, Inc. or the New York Stock Exchange, Inc. (the "NYSE"), (ii) minimum or
maximum prices shall have been established for the common stock or the preferred
stock of the Company or securities generally on either the National Association
of Securities Dealers Automated National Market Quotation System ("NASDAQ") or
the NYSE, or additional material governmental restrictions, not in force on the
date of this Agreement, shall have been imposed upon trading in securities
generally by any of such market or exchange or by order of the Commission or any
court or other Governmental Authority, (iii) a general banking moratorium shall
have been declared by the United States, New York State, or Commonwealth of
Puerto Rico authorities, or (iv) any material adverse change in the financial or
securities markets in the United States or any outbreak or material escalation
of hostilities or declaration by the United States of a national emergency or
war or other calamity or crisis shall have occurred, the effect of any of which
is such as to make it, in the sole judgment of the Agents, impracticable or
inadvisable to market the CT Notes on the terms and in the manner contemplated
by the Offering Circular. Any termination pursuant to Section 9 shall be without
liability of any party to any other party except as provided in Sections 6(a)
and 8.
10. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of each of the Company, its
officers, the Issuer, and the several Underwriters set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Company, any of its officers or directors, any Underwriter or
any controlling person referred to in Section 8 hereof and (ii) delivery of and
payment for the Preferred Securities. The respective agreements, covenants,
indemnities and other statements set forth in Sections 7 and 9 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
23
11. Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Company, at the office of the Company, ▇▇▇ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Executive Vice President and Chief Financial Officer, or (b) if to the
Underwriters, to UBS Financial Services Incorporated of Puerto Rico, 250 ▇▇▇▇▇
▇▇▇▇▇▇ Avenue, 9th Floor, Hato Rey, Puerto Rico 00918, Attention: . Any
such notice shall be effective only upon receipt. Any notice under Section 8 or
9 may be made by telex or telephone, but if so made shall be subsequently
confirmed in writing.
12. Successors. This Agreement shall inure to the benefit of, and shall be
binding upon the Agents, the several Underwriters, the Company, the Issuer and
their respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of each of the Company and the Issuer contained in Section 8 of
this Agreement shall also be for the benefit of any person or persons who
control the Agents or any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act and (ii) the indemnities of the
Underwriters contained in Section 8 of this Agreement shall also be for the
benefit of the directors of the Company, the officers of the Company who have
signed the Registration Statement and any person or persons who control the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act. No purchaser of CT Notes from any Underwriter shall be deemed a
successor because of such purchase. This Agreement shall not be assignable by
either party hereto without the prior written consent of the other party.
13. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PUERTO RICO, WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
24
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
R&G FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
R&G CAPITAL TRUST VI
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Administrative Trustee
Confirmed as of the date first above mentioned:
UBS FINANCIAL SERVICES INCORPORATED OF PUERTO RICO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
25
R-G INVESTMENTS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: President
Each acting on its behalf as Agent in the placement of
the Preferred Securities with Conservation Trust and as
Underwriters in connection
with the sale of the CT Notes.
26
SCHEDULE 1
UNDERWRITERS
NAME CT NOTES TO BE PURCHASED
---- ------------------------
UBS Financial Services Incorporated of Puerto Rico....................... $ 62,500,000
R-G Investments Corporation.............................................. 62,500,000
Total.................................................................... $ 125,000,000
=================
Sch. 1-1
EXHIBIT A
LIST OF SUBSIDIARIES
1. R&G Mortgage Corp.
2. R&G Premier Bank of Puerto Rico
3. The Mortgage Store of Puerto Rico
4. Continental Capital Corp.
5. Home & Property Insurance Corporation
6. R-G Investments Corporation
7. R&G Acquisition Holdings Corporation
8. R-G Crown Bank
9. R&G Capital Trust I
10. R&G Capital Trust II
11. R&G Capital Trust III
12. R&G Capital Trust IV
13. R&G Capital Trust V
14. R&G Capital Trust VI
15. R&G Capital Trust VII
16. R&G Capital Trust VIII
17. R&G International Corp.
LIST OF SIGNIFICANT SUBSIDIARIES
1. R&G Mortgage Corp.
2. R&G Premier Bank of Puerto Rico
3. R-G Crown Bank
A-1
EXHIBIT B
SUPPLEMENT TO AGENCY AGREEMENT
SUPPLEMENT TO AGENCY AGREEMENT dated November 26, 2004, among R&G
Financial Corporation ("R&G Financial"), R&G Capital Trust VI ("Trust VI"), the
Puerto Rico Conservation Trust Fund ("Conservation Trust"), and UBS Financial
Services of Puerto Rico and R-G Investments Corporation (the "Agents"), as
agents in connection with the sale of Trust VI's 6.62% Cumulative Monthly Income
Trust Preferred Securities (the "Preferred Securities") to Conservation Trust,
and as underwriters in connection with the purchase by such underwriters of
Conservation Trust's Secured Notes due 2034 (the "CT Notes").
Reference is made to the Agency Agreement dated as of the date hereof (the
"Agency Agreement") between R&G Financial, Trust VI and the Agents, which is
hereby incorporated by reference as if fully set forth herein, and to the
Purchase Agreement dated as of the date hereof (the "Purchase Agreement")
between Conservation Trust and the Agents which is hereby incorporated by
reference as if fully set forth herein. In consideration of the agreements,
representations and agreements contained herein, the parties agree as follows:
1. Subject to compliance by R&G Financial and Trust VI with its
agreements, and subject to the fulfillment of the conditions, set forth in the
Agency Agreement, Conservation Trust hereby agrees to purchase the Preferred
Securities on the Closing Date set forth in the Agency Agreement at a purchase
price equal to $121,653,750.
2. R&G Financial and Trust VI hereby agree with Conservation Trust and
with the Agents that Conservation Trust shall have the benefit of the
representations and warranties made by R&G Financial and Trust VI in the Agency
Agreement.
3. Conservation Trust hereby agrees with R&G Financial and Trust VI that
they shall have the benefit of the representations and warranties made by
Conservation Trust in subsections (a) through (j), (m) and (o) the Section 4 of
the Purchase Agreement. In addition to these, the Conservation Trust represents
and warrants to R&G Financial and Trust VI the following:
(a) Conservation Trust has, and at the date of the Closing Date will
have, full right, power and authority to enter into this Supplement to
Agency Agreement and to acquire the Preferred Securities on the Closing
Date as set forth in the Agency Agreement;
(b) All authorizations, approvals, licenses, consents and orders of,
or filings, registrations, or qualifications with, any governmental or
regulatory authority which are required to be obtained by Conservation
Trust for the consummation of the transactions contemplated by the Agency
Agreement have been or will be duly and validly obtained or performed on
or before the Closing Date and, as to those already obtained, are in full
force;
B-1
(c) This Supplement to Agency Agreement, when executed and delivered
by the corresponding parties thereto, will constitute valid and legally
binding obligations of Conservation Trust, enforceable against
Conservation Trust in accordance with their respective terms, except as
such enforceability may be limited by bankruptcy, insolvency, or other
similar laws affecting creditors' rights generally or by general
principles of equity; and
(d) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of Conservation Trust,
threatened, against or affecting Conservation Trust, which may adversely
affect the consummation of the transactions contemplated in the Agency
Agreement or the performance by Conservation Trust of its obligations
under this Supplement to Agency Agreement.
[SIGNATURE PAGE FOLLOWS]
B-2
In witness whereof, the parties have caused this supplement to be executed
by its duly authorized representatives as of the date first written above.
R&G FINANCIAL CORPORATION
By: __________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
R&G CAPITAL TRUST VI
By: __________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Administrative Trustee
PUERTO RICO CONSERVATION TRUST FUND
By: __________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
UBS FINANCIAL SERVICES INCORPORATED OF PUERTO RICO
By: __________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
By: __________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
R-G INVESTMENTS CORPORATION
By: __________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: President