1,500,000 Preferred Securities
PCC Capital I
____% Cumulative Trust Preferred Securities
(Liquidation Amount of $10 per Preferred Security)
UNDERWRITING AGREEMENT
September __, 1997
SANDLER ▇'▇▇▇▇▇ & PARTNERS, ▇.▇.
▇▇▇▇▇ & CO. INCORPORATED
c/o Sandler ▇'▇▇▇▇▇ & Partners, L.P.
Two World Trade Center, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Pacific Crest Capital, Inc., a Delaware corporation (the "Company")
and its financing subsidiary, PCC Capital I, a Delaware business trust (the
"Trust", and hereinafter together with the Company, the "Offerors"), propose
that the Trust issue and sell to the several underwriters listed on Schedule I
hereto (the "Underwriters"), pursuant to the terms of this Agreement, 1,500,000
of the Trust's ____% Cumulative Trust Preferred Securities, with a liquidation
amount of $10 per preferred security (the "Preferred Securities"), to be issued
under the Trust Agreement (as hereinafter defined), the terms of which are more
fully described in the Prospectus (as hereinafter defined). The aforementioned
1,500,000 Preferred Securities to be sold to the Underwriters are herein called
the "Firm Preferred Securities". Solely for the purpose of covering
over-allotments in the sale of the Firm Preferred Securities, the Offerors
further propose that the Trust issue and sell to the Underwriters, at the
Underwriters' option, up to an additional 225,000 Preferred Securities (the
"Option Preferred Securities") upon exercise of the over-allotment option
granted in Section 1 hereof. The Firm Preferred Securities and any Option
Preferred Securities are herein collectively referred to as the "Designated
Preferred Securities". Sandler ▇'▇▇▇▇▇ & Partners, L.P. and ▇▇▇▇▇ & Co.
Incorporated are acting as representatives of the Underwriters and in such
capacity are sometimes herein referred to as the "Representatives."
The Offerors hereby confirm as follows their agreement with each of
the Underwriters in connection with the proposed purchase of the Designated
Preferred Securities. The terms, conditions, covenants and agreements set forth
in this Agreement supersede and preempt the terms, conditions, covenants and
agreements of the parties set forth in any and all other agreements among the
parties hereto relating to the issuance of the Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED SECURITIES;
DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to each of the
Underwriters and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $10 per share (the "Purchase
Price"), the respective number of Firm Preferred Securities set forth opposite
the name of such Underwriter in Schedule I hereto. Because the proceeds from
the sale of the Firm Preferred Securities will be used to purchase from the
Company its Debentures (as hereinafter defined and as described in the
Prospectus), the Company shall pay to each Underwriter a commission of $0.45 per
Firm Preferred Security purchased (the "Firm Preferred Securities Commission").
The Representatives may by notice to the Company amend Schedule I to add,
eliminate or substitute names set forth therein (other than to eliminate the
name of the Representatives) and to amend the number of firm Preferred
Securities to be purchased by any firm or corporation listed thereon, provided
that the total number of Firm Preferred Securities listed on Schedule I shall
equal 1,500,000.
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants to the Underwriters, severally and not jointly,
an option to purchase all or any portion of the 225,000 Option Preferred
Securities, and upon the exercise of such option in accordance with this
Section 1, the Offerors hereby agree that the Trust shall issue and sell to the
Underwriters, severally and not jointly, all or any portion of the Option
Preferred Securities at the same Purchase Price per share paid for the Firm
Preferred Securities. If any Option Preferred Securities are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Trust
that proportion (subject to adjustment as you may determine to avoid fractional
shares) of the number of Option Preferred Securities to be purchased that the
number of Firm Preferred Securities set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to 1,500,000. Because the proceeds from the sale of the
Option Preferred Securities will be used to purchase from the Company its
Subordinated Debentures, the Company shall pay to the Underwriters a commission
of $0.45 per Option Preferred Security for each Option Preferred Security
purchased (the "Option Preferred Securities Commission"). The option hereby
granted (the "Option") shall expire 30 days after the date upon which the
Registration Statement (as hereinafter defined) becomes effective and may be
exercised only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Firm Preferred Securities.
The Option may be exercised in whole or in part at any time (but not more than
once) by you giving notice (confirmed in writing) to the Trust setting forth the
number of Option Preferred Securities as to which the Underwriters are
exercising the Option and the time, date and place for payment and delivery of
certificates for such Option Preferred Securities. Such time and date of
payment and delivery for the Option Preferred Securities (the "Option
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Closing Date") shall be determined by you, but shall not be earlier than two nor
later than five full business days after the exercise of such Option, nor in any
event prior to the Closing Date (as hereinafter defined). The Option Closing
Date may be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities
Commission for the Firm Preferred Securities shall be made at the offices of
Manatt, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, Los Angeles, California 90064, or such other
place as shall be agreed to by you and the Offerors, at 8:00 a.m., Los Angeles
time, on the third (or if the Designated Preferred Securities are priced, as
contemplated by Rule 15c6-1(c) under the 1934 Act (as defined herein), after
4:30 p.m. Eastern Time, on the fourth) full business day following the date
hereof, or at such other time and date as the Representatives and the Offerors
determine pursuant to Rule 15c6-1(a) under the 1934 Act (the "Closing Date").
If the Underwriters exercise the option to purchase any or all of the Option
Preferred Securities, payment of the Purchase Price and Option Preferred
Securities Commission and delivery of certificates for such Option Preferred
Securities shall be made on the Option Closing Date at the offices of Manatt,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, Los Angeles, California, or at such other place as the
Offerors and you shall determine. Such payments shall be made to an account
designated by the Trust by wire transfer or certified or bank cashier's check,
in same day funds, in the amount of the Purchase Price therefor, against
delivery by or on behalf of the Trust to you for the respective accounts of the
several Underwriters of certificates for the Designated Preferred Securities to
be purchased by the Underwriters.
The Agreement contained herein with respect to the timing of the
Closing Date and Option Closing Date is intended to, and does, constitute an
express agreement, as described in Rule 15c6-1(a) and (d) promulgated under the
1934 Act, for a settlement date other than three business days after the date of
the contract.
The Designated Preferred Securities to be purchased by each
Underwriter in book-entry form and in authorized denominations and registered in
the name of the nominee of The Depository Trust Company, shall be delivered by
or on behalf of the Offerors through the facilities of The Depository Trust
Company for the account of such Underwriter, against payment by such Underwriter
or on its behalf of the purchase price therefor by certified or official bank
check or checks or wire transfer of same day funds payable to the order of the
Offerors at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, Los Angeles,
California, at 8:00 a.m., California time, on the Closing Date, and, if
applicable, the Option Closing Date. The place of the closing and the Closing
Date may be varied by agreement among the Underwriters and the Company.
Delivery of the Designated Preferred Securities may be made by credit through
full fast transfer to the accounts at The Depository Trust Company designated by
the Underwriters.
Time shall be of the essence, and delivery of the certificates for the
Designated Preferred Securities at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder.
3
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement among
Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, the Administrative Trustees named therein (collectively, the
"Trustees"), the Company and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust, in substantially the form
heretofore delivered to the Underwriters, said Agreement being hereinafter
referred to as the "Trust Agreement". In connection with the issuance of the
Designated Preferred Securities, the Company proposes (i) to issue its Junior
Subordinated Deferrable Interest Debentures (the "Debentures") pursuant to an
Indenture, dated as of September __, 1997, between the Company and Wilmington
Trust Company, as Trustee (the "Indenture") and (ii) to guarantee certain
payments on the Designated Preferred Securities pursuant to a Guarantee
Agreement between the Company and Wilmington Trust Company, as guarantee trustee
(the "Guarantee"), to the extent described therein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant to each
of the Underwriters that:
(i) The reports filed with the Securities and Exchange
Commission (the "Commission") by the Company under the Securities Exchange
Act of 1934, as amended (the "1934 Act") and the rules and regulations
thereunder (the "1934 Act Regulations") during the two year period ending
on the date hereof, at the time they were filed with the Commission,
complied as to form in all material respects with the requirements of the
1934 Act and the 1934 Act Regulations and did 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, in light of
the circumstances in which they were made, not misleading.
(ii) The Offerors have prepared and filed with the Commission a
registration statement on Form S-2 (File Numbers 333-34257 and
333-34257-01) for the registration of the Designated Preferred Securities,
the Guarantee and $17,250,000 aggregate principal amount of Debentures
under the Securities Act of 1933, as amended (the "1933 Act"), including
the related prospectus subject to completion, and one or more amendments to
such registration statement may have been so filed, in each case in
conformity in all material respects with the requirements of the 1933 Act,
the rules and regulations promulgated thereunder (the "1933 Act
Regulations") and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations thereunder. Copies of such
registration statement, including any amendments thereto, each Preliminary
Prospectus (as defined herein) contained therein and the exhibits,
financial statements and schedules to such registration statement, as
finally amended and revised, have heretofore been delivered by the Offerors
to the Representatives. After the execution of this Agreement, the
Offerors will file with the Commission (A) if such registration
4
statement, as it may have been amended, has been declared by the Commission
to be effective under the 1933 Act, a prospectus in the form most recently
included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A of the 1933 Act
Regulations ("Rule 430A") or permitted by Rule 424(b) of the 1933 Act
Regulations ("Rule 424(b)") and as have been provided to and not objected
to by the Representatives prior to (or as are agreed to by the
Representatives subsequent to) the execution of this Agreement, or (B) if
such registration statement, as it may have been amended, has not been
declared by the Commission to be effective under the 1933 Act, an amendment
to such registration statement, including a form of final prospectus,
necessary to permit such registration statement to become effective, a copy
of which amendment has been furnished to and not objected to by the
Representatives prior to (or is agreed to by the Representatives subsequent
to) the execution of this Agreement. As used in this Agreement, the term
"Registration Statement" means such registration statement, as amended at
the time when it was or is declared effective under the 1933 Act, including
(1) all financial schedules and exhibits thereto, (2) all documents (or
portions thereof) incorporated by reference therein filed under the 1934
Act, and (3) any information omitted therefrom pursuant to Rule 430A and
included in the Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each prospectus subject to completion filed with such
registration statement or any amendment thereto including all documents (or
portions thereof) incorporated by reference therein under the 1934 Act
(including the prospectus subject to completion, if any, included in the
Registration Statement and each prospectus filed pursuant to Rule 424(a)
under the 1933 Act); and the term "Prospectus" means the prospectus first
filed with the Commission pursuant to Rule 424(b) or, if no prospectus is
required to be filed pursuant to Rule 424(b), the prospectus included in
the Registration Statement, in each case including the financial schedules
and all documents (or portions thereof) incorporated by reference therein
under the 1934 Act. The date on which the Registration Statement becomes
effective is hereinafter referred to as the "Effective Date."
(iii) The documents incorporated by reference in the
Preliminary Prospectus or Prospectus or from which information is so
incorporated by reference, when they became effective or were filed with
the Commission, as the case may be, complied in all material respects with
the requirements of the 1934 Act and the 1934 Act Regulations, and when
read together and with the other information in the Preliminary Prospectus
or Prospectus, as the case may be, at the time the Registration Statement
became or becomes effective and at the Closing Date and any Option Closing
Date, did not or will not, as the case may be, 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 light of the
circumstances under which they were made, not misleading.
5
(iv) No order preventing or suspending the use of any Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) has been issued by the Commission, nor has the Commission, to
the knowledge of the Offerors, threatened to issue such an order or
instituted proceedings for that purpose. Each Preliminary Prospectus, at
the time of filing thereof, (A) complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and (B) did not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that this representation and
warranty does not apply to statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Offerors by
any of the Underwriters expressly for inclusion in the Prospectus beneath
the heading "Underwriting" (such information referred to herein as the
"Underwriters' Information").
(v) At the Effective Date and at all times subsequent thereto,
up to and including the Closing Date and, if applicable, the Option Closing
Date, the Registration Statement and any post-effective amendment thereto
(A) complied and will comply in all material respects with the requirements
of the 1933 Act, the 1933 Act Regulations and the Trust Indenture Act (and
the rules and regulations thereunder) and (B) did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
not misleading. At the Effective Date and at all times when the Prospectus
is required to be delivered in connection with offers and sales of
Designated Preferred Securities, including, without limitation, the Closing
Date and, if applicable, the Option Closing Date, the Prospectus, as
amended or supplemented, (A) complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and the Trust Indenture Act (and the rules and regulations thereunder) and
(B) did not contain and will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that this
representation and warranty does not apply to the Underwriters' Information
or to the Statements of Eligibility of the Trustee on Form T-1 filed as
exhibits to the Registration Statement.
(vi) (A) The Company is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with full corporate
and other power and authority to own, lease and operate its properties and
conduct its business as described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) and as currently being conducted.
6
(B) The Trust has been duly created and is validly existing
as a statutory business trust in good standing under the Delaware Business
Trust Act with the power and authority (trust and other) to own its
property and conduct its business as described in the Registration
Statement and Prospectus, to issue and sell its common securities (the
"Common Securities") to the Company pursuant to the Trust Agreement, to
issue and sell the Designated Preferred Securities, to enter into and
perform its obligations under this Agreement and to consummate the
transactions herein contemplated; the Trust has no subsidiaries and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or the ownership of its property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Trust; the Trust has conducted and will conduct no business other
than the transactions contemplated by this Agreement and described in the
Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Trust Agreement and the
agreements and instruments contemplated by the Trust Agreement 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 Trust Agreement and described in the Prospectus; the
Trust is not a party to or subject to any action, suit or proceeding of any
nature; the Trust is not, and at the Closing Date or any Option Closing
Date will not be, to the knowledge of the Offerors, classified as an
association taxable as a corporation for United States federal income tax
purposes; and the Trust is, and as of the Closing Date or any Option
Closing Date will be, treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(vii) (A) Pacific Crest Bank (the "Bank") has been duly
organized and is validly existing as an industrial loan company in good
standing under the laws of the State of California. The Bank has full
corporate and other power and authority to own, lease and operate its
properties and to conduct its business as described in and contemplated by
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) and as currently
being conducted. The deposit accounts of the Bank are insured by the Bank
Insurance Fund administered by the Federal Deposit Insurance Corporation up
to the maximum amount provided by law; and no proceedings for the
modification, termination or revocation of any such insurance are pending
or, to the knowledge of the Offerors, threatened.
(B) There are no "significant subsidiaries" of the Company
(as such term is defined in Rule 1-02 of Regulation S-X) other than the
Bank. The subsidiaries of the Company other than the Bank, considered in
the aggregate as a single subsidiary, do not constitute a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X.
7
(viii) Each of the Company and the Bank is duly qualified to
transact business as a foreign corporation and is in good standing in each
other jurisdiction in which it owns or leases property or conducts its
business so as to require such qualification and in which the failure to so
qualify would, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings, business,
prospects or results of operations of the Company and the Bank on a
consolidated basis. All of the issued and outstanding shares of capital
stock of the Bank (A) have been duly authorized and are validly issued, (B)
are fully paid and nonassessable, and (C) except as disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), are directly owned by the Company free and clear
of any security interest, mortgage, pledge, lien, encumbrance, restriction
upon voting or transfer, preemptive rights, claim or equity. Except as
disclosed in the Prospectus, there are no outstanding rights, warrants or
options to acquire or instruments convertible into or exchangeable for any
capital stock or equity securities of the Offerors or the Bank.
(ix) The equity securities of the Trust conform to the
description thereof contained in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus). The equity
securities of the Trust have been duly authorized and validly issued and
are fully paid and nonassessable, and no such securities were issued in
violation of the preemptive or similar rights of any security holder of the
Trust; no person has any preemptive or similar right to purchase any equity
securities of the Trust. Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
there are no outstanding rights, options or warrants to acquire any
securities of the Offerors, and there are no outstanding securities
convertible into or exchangeable for any such securities and no
restrictions upon the voting or transfer of any capital stock of the
Company or equity securities of the Trust pursuant to the Company's
corporate charter or bylaws, the Trust Agreement or any agreement or other
instrument to which an Offeror is a party or by which an Offeror is bound.
(x) (A) All corporate and trust action required to be taken by
the Offerors for the authorization, issuance, sale and delivery of the
Designated Preferred Securities in accordance with such terms and
conditions has been validly and sufficiently taken. The Designated
Preferred Securities, when delivered in accordance with this Agreement
against payment of the consideration set forth herein, will be duly and
validly issued and outstanding, will be fully paid and nonassessable
undivided beneficial interests in the assets of the Trust, will be entitled
to the benefits of the Trust Agreement, will not be issued in violation of
or subject to any preemptive or similar rights, and will conform in all
material respects to the description thereof in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and the Trust Agreement. None of the
Designated Preferred Securities, immediately prior to delivery, will be
subject to any security interest, lien, mortgage, pledge, encumbrance,
8
restriction upon voting or transfer, preemptive rights, claim, equity or
other title defect.
(B) The Debentures have been duly and validly authorized by
the Company, and, when duly and validly executed, authenticated and issued
as provided in the Indenture and delivered to the Trust pursuant to the
Trust Agreement against payment therefore as described in the Registration
Statement, will constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture and will conform in all
material respects to the description thereof contained in the Prospectus.
(C) The Guarantee has been duly and validly authorized by
the Company, and, when duly and validly executed and delivered to the
guarantee trustee for the benefit of the Trust, will constitute a valid and
legally binding obligation of the Company and will conform in all material
respects to the description thereof contained in the Prospectus.
(D) The Expense Agreement (the "Expense Agreement") has
been duly and validly authorized by the Company, and, when duly and validly
executed and delivered to the Company, will constitute a valid and legally
binding obligation of the Company and will conform in all material respects
to the description thereof contained in the Prospectus.
(xi) The Offerors and the Bank have complied with all
federal, state and local statutes, regulations, ordinances and rules
applicable to the ownership and operation of their properties or the
conduct of their businesses as described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and as currently being
conducted except where the failure to so comply would not have a material
adverse effect on the condition, financial or otherwise, earnings, affairs,
business, prospects or results of operations of the Offerors and the Bank
on a consolidated basis.
(xii) The Offerors and the Bank have all permits, easements,
consents, licenses, franchises and other governmental and regulatory
authorizations from all appropriate federal, state, local or other public
authorities ("Permits") as are necessary to own and lease their properties
and conduct their businesses in the manner described in and contemplated by
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) and as currently
being conducted, except where the failure to have such Permits would not
have a material adverse effect on the condition, financial or otherwise,
earnings, affairs, business, prospects or results of operations of the
Offerors and the Bank on a consolidated basis. All such Permits are in
full force and effect and each of the Offerors and the Bank are in all
material respects complying therewith, and no event has occurred that
allows, or after notice or lapse of time
9
would allow, revocation or termination thereof or will result in any other
material impairment of the rights of the holder of any such Permit, subject
in each case to such qualification as may be adequately disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), except where the failure of such Permits to be in
full force and effect or the lack of such compliance would not have a
material adverse effect on the condition, financial or otherwise, earnings,
affairs, business, prospects or results of operations of the Offerors and
the Bank on a consolidated basis. Such Permits contain no restrictions
that would materially impair the ability of the Company or the Bank to
conduct their businesses in the manner consistent with their past
practices. Neither the Offerors nor any of the Bank has received notice or
otherwise has knowledge of any proceeding or action relating to the
revocation or modification of any such Permit.
(xiii) Neither of the Offerors nor the Bank is in breach or
violation of their corporate charter, by-laws or other governing documents
(including without limitation, the Trust Agreement). Neither of the
Offerors nor the Bank is, and to the knowledge of the Offerors no other
party is, in violation, breach or default (with or without notice or lapse
of time or both) in the performance or observance of any term, covenant,
agreement, obligation, representation, warranty or condition contained in
(A) any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any other agreement
or instrument to which it is a party or by which it or any of its
properties may be bound, except where such breach, violation or default
would not have a material adverse effect on the condition, financial or
otherwise, earnings, affairs, business, prospects, or results of operations
of the Offerors and the Bank on a consolidated basis, and to the knowledge
of the Offerors, no other party has asserted that the Offerors or the Bank
is in such violation, breach or default (provided that the foregoing shall
not apply to defaults by borrowers from the Bank), or (B) except as
disclosed in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), any order, decree, judgment, rule or
regulation of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the Offerors
or the Bank or any of their respective properties the breach, violation or
default of which could have a material adverse effect on the condition,
financial or otherwise, earnings, affairs, business, prospects, or results
of operations of the Offerors and the Bank on a consolidated basis.
(xiv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus in not in existence, the most recent
Preliminary Prospectus) do not and will not conflict with, result in the
creation or imposition of any material lien, claim, charge, encumbrance or
restriction upon any property or assets of the Offerors or the Bank or the
Designated Preferred Securities pursuant to, constitute a breach or
violation of, or constitute a default under, with or without notice or
lapse of time or both, any
10
of the terms, provisions or conditions of the charter or by-laws of the
Company or the Bank, the Trust Agreement, the Guarantee, the Indenture, any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, franchise, license, permit or any other agreement or
instrument to which the Offerors or the Bank is a party or by which any of
them or any of their respective properties may be bound or any order,
decree, judgment, rule or regulation of any court, arbitrator, government,
or governmental agency or instrumentality, domestic or foreign, having
jurisdiction over the Offerors or the Bank or any of their respective
properties which conflict, creation, imposition, breach, violation or
default would have either singly or in the aggregate a material adverse
effect on the condition, financial or otherwise, earnings, affairs,
business, prospects or results of operations of the Offerors and the Bank
on a consolidated basis. No authorization, approval, consent or order of,
or filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is required
to be obtained by the Offerors in connection with the transactions
contemplated by this Agreement, the Trust Agreement, the Indenture, the
Guarantee, the Registration Statement and the Prospectus (or such
Preliminary Prospectus), except such as may be required under the 1933 Act,
the Trust Indenture Act or the Nasdaq National Market and such as may be
required under state securities laws in connection with the purchase and
distribution of the Designated Preferred Securities by the Underwriters.
(xv) The Offerors have all requisite corporate power and
authority to enter into this Agreement and this Agreement has been duly and
validly authorized, executed and delivered by the Offerors and constitutes
the legal, valid and binding agreement of the Offerors, enforceable against
the Offerors in accordance with its terms, except as the enforcement
thereof may be limited by general principles of equity and by bankruptcy or
other laws relating to or affecting creditors' rights generally and except
as any indemnification or contribution provisions thereof may be limited
under applicable securities laws. Each of the Indenture, the Trust
Agreement, the Guarantee and the Expense Agreement has been duly authorized
by the Company, and, when executed and delivered by the Company on the
Closing Date, each of said agreements will constitute a valid and legally
binding obligation of the Company and will be enforceable against the
Company in accordance with its terms, except as the enforcement thereof may
be limited by general principles of equity and by bankruptcy or other laws
relating to or affecting creditors' rights generally and except as any
indemnification or contribution provisions thereof may be limited under
applicable securities laws. Each of the Indenture, the Trust Agreement and
the Guarantee has been duly qualified under the Trust Indenture Act and
will conform in all material respects to the description thereof contained
in the Prospectus.
(xvi) The Company and the Bank have good and marketable title
in fee simple to all real property and good title to all personal property
owned by them and material to their business, in each case free and clear
of all security interests,
11
liens, mortgages, pledges, encumbrances, restrictions, claims, equities and
other defects except such as are referred to in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) or
such as do not materially affect the value of such property in the
aggregate and do not materially interfere with the use made or proposed to
be made of such property; and all of the leases under which the Company or
the Bank hold real or personal property are valid, existing and enforceable
leases and in full force and effect with such exceptions as are not
material and do not materially interfere with the use made or proposed to
be made of such real or personal property, and neither the Company nor the
Bank is in default in any material respect of any of the terms or
provisions of any leases.
(xvii) Deloitte & Touche LLP, who have certified the
consolidated financial statements of the Company and the Bank including the
notes thereto, included in the Registration Statement and Prospectus, are
independent public accountants with respect to the Company and the Bank, as
required by the 1933 Act and the 1933 Act Regulations.
(xviii) The consolidated financial statements including the
notes thereto, included by incorporation or otherwise in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) with respect to the Company and the
Bank comply in all material respects with the 1933 Act and the 1933 Act
Regulations and present fairly the consolidated financial position of the
Company and the Bank as of the dates indicated and the consolidated results
of operations, cash flows and shareholders' equity of the Company and the
Bank for the periods specified and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis.
The selected and summary consolidated financial data concerning the Company
and the Bank included in the Registration Statement and the Prospectus (or
such Preliminary Prospectus) comply in all material respects with the 1933
Act and the 1933 Act Regulations, present fairly the information set forth
therein, and have been compiled on a basis consistent with that of the
consolidated financial statements of the Company and the Bank in the
Registration Statement and the Prospectus (or such Preliminary Prospectus).
The other financial, statistical and numerical information included in the
Registration Statement and the Prospectus (or such Preliminary Prospectus)
comply in all material respects with the 1933 Act and the 1933 Act
Regulations, present fairly the information shown therein, and to the
extent applicable have been compiled on a basis consistent with the
consolidated financial statements of the Company and the Bank included in
the Registration Statement and the Prospectus (or such Preliminary
Prospectus).
(xix) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
except as otherwise stated therein:
12
(A) neither of the Offerors nor the Bank have sustained any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which is
material to the condition (financial or otherwise), earnings,
business, prospects or results of operations of the Offerors and the
Bank on a consolidated basis;
(B) there has not been any material adverse change in, or
any development which is reasonably likely to have a material adverse
effect on, the condition (financial or otherwise), earnings, business,
prospects or results of operations of the Offerors and the Bank on a
consolidated basis, whether or not arising in the ordinary course of
business;
(C) neither of the Offerors nor the Bank have incurred any
liabilities or obligations, direct or contingent, or entered into any
material transactions, other than in the ordinary course of business
which is material to the condition (financial or otherwise), earnings,
business, prospects or results of operations of the Offerors and the
Bank on a consolidated basis;
(D) neither of the Offerors have declared or paid any
dividend, and neither of the Offerors nor the Bank have become
delinquent in the payment of principal or interest on any outstanding
borrowings; and
(E) there has not been any change in the capital stock,
equity securities, long-term debt, obligations under capital leases
or, other than in the ordinary course of business, short-term
borrowings of the Offerors or the Bank.
(xx) Except as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Offerors, threatened,
against or involving the property or assets of the Offerors or the Bank or
any of their respective properties before or by any court or any
regulatory, administrative or governmental official, commission, board,
agency or other authority or body, or any arbitrator, wherein an
unfavorable decision, ruling or finding could reasonably be expected to
have a material adverse effect on the consummation of this Agreement or the
transactions contemplated herein or the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Offerors and the Bank on a consolidated basis or which is required to be
disclosed in the Registration Statement or the Prospectus (or such
Preliminary Prospectus) and is not so disclosed.
(xxi) There are no contracts or other documents required to
be filed as exhibits to the Registration Statement by the 1933 Act or the
1933 Act
13
Regulations or the Trust Indenture Act (or any rules or regulations
thereunder) which have not been filed as exhibits or incorporated by
reference to the Registration Statement, or that are required to be
summarized in the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) that are not so summarized.
(xxii) Neither of the Offerors has taken, directly or
indirectly, any action designed to result in or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Offerors to facilitate the
sale or resale of the Designated Preferred Securities, and neither of the
Offerors is aware of any such action taken or to be taken by any officer,
director, trustee or 5% or more shareholder of the Offerors.
(xxiii) The Offerors and the Bank own, or possess adequate
rights to use, all patents, copyrights, trademarks, service marks, trade
names and other rights necessary to conduct the businesses now conducted by
them in all material respects or as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) and
neither the Offerors nor the Bank have received any notice of infringement
or conflict with asserted rights of others with respect to any patents,
copyrights, trademarks, service marks, trade names or other rights which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Offerors and the Bank on a consolidated
basis, and the Offerors do not know of any basis for any such infringement
or conflict.
(xxiv) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), no
labor dispute involving the Company or the Bank exists or, to the knowledge
of the Offerors, is imminent which might be expected to have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Offerors and
the Bank on a consolidated basis or which is required to be disclosed in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). Neither the Company nor the Bank have received
notice of any existing or threatened labor dispute by the employees of any
of its principal suppliers, customers or contractors which might be
expected to have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Bank on a consolidated basis.
(xxv) The Offerors and the Bank have properly prepared and
timely filed all necessary federal, state, local and foreign tax returns
which are required to be filed and have paid all taxes shown as due thereon
and have paid all other taxes and assessments to the extent that the same
shall have become due, except such as
14
are being contested in good faith or where the failure to so timely and
properly prepare and file would not have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Offerors and the Bank on a consolidated
basis. The Offerors have no knowledge of any tax deficiency which has been
or might be assessed against the Offerors or the Bank which, if the subject
of an unfavorable decision, ruling or finding, would have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Offerors and
the Bank on a consolidated basis.
(xxvi) Each of the material contracts, agreements and
instruments described or referred to in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and each contract, agreement and instrument filed
as an exhibit to the Registration Statement is in full force and effect and
is the legal, valid and binding agreement of the Offerors or the Bank,
enforceable in accordance with its terms, except as the enforcement thereof
may be limited by general principles of equity and by bankruptcy or other
laws relating to or affecting creditors' rights generally. Except as
disclosed in the Prospectus (or such Preliminary Prospectus), to the
knowledge of the Offerors, no other party to any such agreement is (with or
without notice or lapse of time or both) in breach or default in any
material respect thereunder.
(xxvii) No relationship, direct or indirect, exists between or
among the Offerors or the Bank, on the one hand, and the directors,
officers, trustees, shareholders, customers or suppliers of the Offerors or
the Bank, on the other hand, which is required to be described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) which is not adequately
described therein.
(xxviii) No person has the right to request or require the
Offerors or the Bank to register any securities for offering and sale under
the 1933 Act by reason of the filing of the Registration Statement with the
Commission or the issuance and sale of the Designated Preferred Securities
except as disclosed in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xxix) The Designated Preferred Securities have been approved
for quotation on the Nasdaq National Market subject to official notice of
issuance.
(xxx) Except as described (or referred to) in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no contractual encumbrances or restrictions or
material legal restrictions, on the ability of the Bank (A) to pay
dividends or make any other distributions on its capital stock or to pay
any indebtedness owed to the Offerors, (B) to make any loans or advances
15
to, or investments in, the Offerors or (C) to transfer any of its property
or assets to the Offerors.
(xxxi) Neither of the Offerors is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxxii) The Offerors have not distributed and will not distribute
prior to the Closing Date any prospectus in connection with the Offering,
other than a Preliminary Prospectus, the Prospectus, the Registration
Statement and the other materials permitted by the 1933 Act and the 1933
Act Regulations and reviewed by the Representatives.
3. OFFERING BY THE UNDERWRITERS. After the Registration Statement
becomes effective or, if the Registration Statement is already effective, after
this Agreement becomes effective, the Underwriters propose to offer the Firm
Preferred Securities for sale to the public upon the terms and conditions set
forth in the Prospectus. Because the NASD is expected to view the Preferred
Securities as interests in a direct participation program, the offering of the
Preferred Securities is being made in compliance with the applicable provisions
of Rule 2810 of the NASD's Conduct Rules. The Underwriters may from time to
time thereafter reduce the public offering price and change the other selling
terms, provided the proceeds to the Trust shall not be reduced as a result of
such reduction or change.
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by it (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow,
a concession set forth in the Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS. The Offerors jointly and
severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the time
of execution of this Agreement, to become effective as promptly as possible. If
the Registration Statement has become or becomes effective pursuant to Rule 430A
and information has been omitted therefrom in reliance on Rule 430A, then, the
Offerors will prepare and file in accordance with Rule 430A and Rule 424(b)
copies of the Prospectus or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including the Prospectus) containing
all information so omitted and will provide evidence satisfactory to the
Representatives of such timely filing.
16
(b) The Offerors shall notify you immediately, and confirm such
notice in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when the
Prospectus or any supplement to the Prospectus or any amended Prospectus
has been filed;
(ii) of the receipt of any comments or requests from the
Commission;
(iii) of any request of the Commission to amend or supplement
the Registration Statement, any Preliminary Prospectus or the Prospectus or
for additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, or suspending the
qualification of any of the Designated Preferred Securities for offering or
sale in any jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Offerors shall use their best
efforts to prevent the issuance of any such stop order or of any other such
order and if any such order is issued, to cause such order to be withdrawn
or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time
without charge, as soon as available, as many copies as the Underwriters may
reasonably request of (i) the registration statement as originally filed and of
all amendments thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective, (ii) all exhibits
and documents incorporated therein or filed therewith, (iii) all consents and
certificates of experts in executed form, (iv) each Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply to the best of their ability with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Designated
Preferred Securities as contemplated herein and in the Trust Agreement and the
Prospectus. The Offerors shall not file any amendment to the registration
statement as originally filed or to the Registration Statement and shall not
file any amendment thereto or make any amendment or supplement to any
Preliminary Prospectus or to the Prospectus of which you shall not previously
have been advised in writing and provided a copy a reasonable time prior to the
proposed filings thereof or to which you or counsel to the Underwriters shall
object. If it is necessary, in the Company's
17
reasonable opinion or in the reasonable opinion of the Company's counsel to
amend or supplement the Registration Statement or the Prospectus in connection
with the distribution of the Designated Preferred Securities, the Offerors shall
forthwith amend or supplement the Registration Statement or the Prospectus, as
the case may be, by preparing and filing with the Commission (provided you or
counsel to the Underwriters does not reasonably object), and furnishing to you,
such number of copies as you may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Registration Statement or
the Prospectus, as the case may be (in form and substance reasonably
satisfactory to you and counsel to the Underwriters). If any event shall occur
as a result of which it is necessary to amend or supplement the Prospectus to
correct an untrue statement of a material fact or to include a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or if for any reason it is necessary at
any time to amend or supplement the Prospectus to comply with the 1933 Act and
the 1933 Act Regulations, the Offerors shall, subject to the second sentence of
this subsection (d), forthwith amend or supplement the Prospectus by preparing
and filing with the Commission, and furnishing to you, such number of copies as
you may reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Prospectus (in form and substance satisfactory to you and
counsel to the Underwriters) so that, as so amended or supplemented, the
Prospectus shall not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel to the
Underwriters in order to qualify the Designated Preferred Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
you may reasonably request and shall continue such qualifications in effect so
long as may be advisable for distribution of the Designated Preferred
Securities; provided, however, that the Offerors shall not be required to
qualify to do business as a foreign corporation or file a general consent to
service of process in any jurisdiction in connection with the foregoing. The
Offerors shall file such statements and reports as may be required by the laws
of each jurisdiction in which the Designated Preferred Securities have been
qualified as above. The Offerors will notify you immediately of, and confirm in
writing, the suspension of qualification of the Designated Preferred Securities
or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than 16 months
after the Effective Date, a consolidated earnings statement of the Offerors
conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner
specified in the Prospectus under the caption "Use of Proceeds."
18
(h) For five years from the Effective Date, the Offerors shall
furnish to the Representatives copies of all reports and communications
(financial or otherwise) furnished by the Offerors to the holders of the
Designated Preferred Securities as a class, copies of all reports and financial
statements filed with or furnished to the Commission (other than portions for
which confidential treatment has been obtained from the Commission) or with any
national securities exchange or the Nasdaq National Market.
(i) For a period of 180 days from the Effective Date, the Offerors
shall not, directly or indirectly, offer for sale, sell or agree to sell or
otherwise dispose of any Designated Preferred Securities other than pursuant to
this Agreement, any other beneficial interests in the assets of the Trust or any
securities of the Trust or the Company that are substantially similar to the
Designated Preferred Securities or the Debentures, including any guarantee of
such beneficial interests or substantially similar securities, or securities
convertible into or exchangeable for or that represent the right to receive any
such beneficial interest or substantially similar securities, without the prior
written consent of the Representatives.
(j) The Offerors shall use their best efforts to cause the Designated
Preferred Securities to become quoted on the Nasdaq National Market and to
remain so quoted for at least five years from the Effective Date or for such
shorter period as may be specified in a written consent of the Representatives,
provided this shall not prevent the Company from redeeming the Designated
Preferred Securities pursuant to the terms of the Trust Agreement. If the
Designated Preferred Securities are exchanged for Debentures, the Company will
use its best efforts to have the Debentures promptly listed on the Nasdaq
National Market or other organization on which the Designated Preferred
Securities are then listed, and to have the Debentures promptly registered under
the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriters'
option to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriters shall elect to purchase, except as described in
or contemplated by the Prospectus, neither the Offerors nor the Bank shall take
any action (or refrain from taking any action) which will result in the Offerors
or the Bank incurring any material liability or obligation, direct or
contingent, or enter into any material transaction, except in the ordinary
course of business, and there will not be any material change in the capital
stock, or any material increase in long-term debt, obligations under capital
leases or short-term borrowings of the Offerors and the Bank on a consolidated
basis.
(l) The Offerors shall not, for a period of 180 days after the date
hereof, without the prior written consent of the Representatives, purchase,
redeem or call for
19
redemption, or prepay or give notice of prepayment (or announce any redemption
or call for redemption, or any repayment or notice of prepayment) of any of the
Designated Preferred Securities, except for a redemption following a Tax Event,
Capital Treatment Event or Investment Company Event as described in the
Registration Statement.
(m) The Offerors shall not take, directly or indirectly, any action
designed to result in or which has constituted or which might reasonably be
expected to cause or result in a violation of the Commission's Regulation M and
the Offerors are not aware of any such action taken or to be taken by any
affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Offerors will not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the
Offerors, the Bank or the offering of the Designated Preferred Securities (the
"Offering") without your prior consent.
5. PAYMENT OF EXPENSES. Whether or not this Agreement is terminated or
the sale of the Designated Preferred Securities to the Underwriters is
consummated, the Company covenants and agrees that it will pay or cause to be
paid (directly or by reimbursement) all costs and expenses incident to the
performance of the obligations of the Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, the Preliminary Prospectus or Prospectuses, the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements), the certificates for the Designated Preferred Securities and the
Preliminary and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto, provided that notwithstanding the foregoing, the
Company shall not be responsible for the fees of counsel to the Underwriters;
(b) all fees, expenses and disbursements of the Offerors' counsel and
accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as you may
request, including all filing fees and fees and disbursements of counsel to the
Company in connection therewith, including, without limitation, in connection
with the preparation of the Preliminary and Final Blue Sky Memoranda;
(d) all fees and expenses incurred in connection with filings made
with the NASD;
20
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on the Nasdaq National Market;
(f) the cost of furnishing to you copies of the initial registration
statements, any Preliminary Prospectus, the Registration Statement and the
Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel to any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated
Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution and delivery
of the Trust Agreement, the Indenture and the Guarantee; and
(j) all other costs and expenses incident to the performance of the
obligations of the Company hereunder and under the Trust Agreement that are not
otherwise specifically provided for in this Section 5.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Firm Preferred Securities and,
following exercise of the option granted by the Offerors in Section 1 of this
Agreement, the Option Preferred Securities, are subject, in your sole
discretion, to the accuracy of and compliance with the representations and
warranties and agreements of the Offerors herein as of the date hereof and as of
the Closing Date (or in the case of the Option Preferred Securities, if any, as
of the Option Closing Date), to the accuracy of the written statements of the
Offerors made pursuant to the provisions hereof, to the performance by the
Offerors of their covenants and obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not been declared effective
prior to the time of execution hereof, the Registration Statement shall become
effective not later than 11:00 a.m., New York time, on the first business day
following the time of execution of this Agreement, or at such later time and
date as you may agree to in writing. If required, the Prospectus and any
amendment or supplement thereto shall have been timely filed in accordance with
Rule 424(b) and Rule 430A under the 1933 Act and Section 4(a) hereof. No stop
order suspending the effectiveness of the Registration Statement or any
amendment or supplement thereto shall have been issued under the 1933 Act or any
applicable state securities laws and no proceedings for that purpose shall have
been instituted or shall be pending, or, to the knowledge of the Offerors or the
Representatives, shall be contemplated by the Commission or any state authority.
Any request on the part of the Commission or any state authority for additional
information (to be included in the
21
Registration Statement or Prospectus or otherwise) shall have been disclosed to
you and complied with to your satisfaction and to the satisfaction of counsel to
the Underwriters.
(b) No Underwriter shall have advised the Company at or before the
Closing Date (and, if applicable, the Option Closing Date) that the Registration
Statement or any post-effective amendment thereto, or the Prospectus or any
amendment or supplement thereto, contains an untrue statement of a fact which,
in your opinion, is material or omits to state a fact which, in your opinion, is
material and is required to be stated therein or is necessary to make statements
therein (in the case of the Prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Trust Agreement, and the
Designated Preferred Securities, and the authorization and form of the
Registration Statement and Prospectus, other than financial statements and other
financial data, and all other legal matters relating to this Agreement and the
transactions contemplated hereby or by the Trust Agreement shall be reasonably
satisfactory in all respects to counsel to the Underwriters, and the Offerors
and the Bank shall have furnished to such counsel all documents and information
relating thereto that they may reasonably request to enable them to pass upon
such matters.
(d) ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP counsel to the Offerors, shall
have furnished to you their signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, in form and substance reasonably satisfactory
to counsel to the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware. The
Bank is duly incorporated, validly existing and in good standing under the
laws of the State of California. Each of the Company and the Bank has full
corporate power and authority to own or lease its properties and to conduct
its business as such business is described in the Prospectus and is
currently conducted in all material respects. All outstanding shares of
capital stock of the Bank have been duly authorized and validly issued and
are fully paid and nonassessable and, to the best of such counsel's
knowledge, except as disclosed in the Prospectus, there are no outstanding
rights, options or warrants to purchase any such shares or securities
convertible into or exchangeable for any such shares.
(ii) The Debentures and Guarantee of the Company and the equity
securities of the Trust conform to the description thereof contained in the
Prospectus, or incorporated by reference therein, in all material respects.
The capital stock of the Company authorized and issued as of June 30, 1997
is as set forth under the caption "Capitalization" in the Prospectus, has
been duly authorized and validly
22
issued, and is fully paid and nonassessable. To the best of such counsel's
knowledge, there are no outstanding rights, options or warrants to
purchase, no other outstanding securities convertible into or exchangeable
for, and no commitments, plans or arrangements to issue, any equity
securities of the Trust, except as described in the Prospectus.
(iii) The issuance, sale and delivery of the Debentures in
accordance with the terms and conditions of this Agreement and the
Indenture have been duly authorized by all necessary actions of the
Company. The Designated Preferred Securities have been approved for
quotation on the Nasdaq National Market subject to official notice of
issuance.
(iv) The Company has all requisite corporate power to enter into
and perform their obligations under this Agreement, and this Agreement has
been duly and validly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company
enforceable in accordance with its terms, except as the enforcement hereof
or thereof may be limited by general principles of equity and by bankruptcy
or other laws relating to or affecting creditors' rights generally
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and certain remedies
may not be available in the case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and the Guarantee
has been duly qualified under the Trust Indenture Act, has been duly
authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies
of creditors generally and of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(vi) The Debentures have been duly authorized, executed and
delivered by the Company, and when authenticated by the Indenture Trustee
in the manner provided for in the Indenture and delivered against payment
therefore will be entitled to the benefits of the Indenture and are legal,
valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(vii) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally binding
obligation of the
23
Company enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(viii) To the best of such counsel's knowledge, neither of the
Offerors nor the Bank is in breach or violation of, or default under, with
or without notice or lapse of time or both, its corporate charter, by-laws
or governing document (including without limitation, the Trust Agreement).
The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement and the
Trust Agreement do not and will not conflict with, result in the creation
or imposition of any material lien, claim, charge, encumbrance or
restriction upon any property or assets of the Offerors or the Bank or the
Designated Preferred Securities pursuant to, or constitute a material
breach or violation of, or constitute a material default under, with or
without notice or lapse of time or both, any of the terms, provisions or
conditions of the charter, by-laws or governing document (including without
limitation, the Trust Agreement) of the Offerors or the Bank, or to the
best of such counsel's knowledge, any material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease, franchise,
license or any other agreement or instrument to which either Offeror or the
Bank is a party or, to the best of such counsel's knowledge, any order,
decree, judgment, franchise, license, Permit, rule or regulation of any
court, arbitrator, government, or governmental agency or instrumentality
known to such counsel having jurisdiction over the Offerors or the Bank
which, in each case, is material to the Offerors and the Bank on a
consolidated basis. No authorization, approval, consent or order of, or
filing, registration or qualification with, any person, any court or
governmental body or authority is required in connection with the
transactions contemplated by this Agreement, the Trust Agreement, the
Registration Statement and the Prospectus, except such as have been
obtained under the 1933 Act, the Trust Indenture Act and the applicable
rules and regulations thereunder, and state securities laws, and except
such as may be required under Interpretations or Rules of the NASD in
connection with the purchase and distribution of the Designated Preferred
Securities by the Underwriters, as to which no opinion need be rendered.
(ix) To the best of such counsel's knowledge, holders of
securities of the Offerors either do not have any right that, if exercised,
would require the Offerors to cause such securities to be included in the
Registration Statement or have waived such right. To the best of such
counsel's knowledge, neither the Offerors nor the Bank is a party to any
agreement or other instrument which grants rights for or relating to the
registration of any securities of the Offerors.
(x) Except as set forth in the Registration Statement and the
Prospectus, to the best of such counsel's knowledge, no action, suit or
proceeding is
24
pending or threatened in writing against or affecting the Offerors or the
Bank or any of their properties, before or by any court or governmental
official, commission, board or other administrative agency, authority or
body, or any arbitrator, wherein an unfavorable decision, ruling or finding
could reasonably be expected to have a material adverse effect on the
consummation of this Agreement or the issuance and sale of the Designated
Preferred Securities as contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, or results of operations of the
Offerors and the Bank on a consolidated basis or which is required to be
disclosed in the Registration Statement or the Prospectus and is not so
disclosed.
(xi) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the financial statements or
other financial or statistical data included therein or omitted therefrom,
Underwriters' Information and the Statements of Eligibility of the Trustee
on Form T-1 filed as exhibits to the Registration Statement, as to which
such counsel need express no opinion) comply as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
as of their respective dates of effectiveness.
(xii) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character required to
be disclosed in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so disclosed or filed.
(xiii) The statements in the Prospectus under the captions,
"Description of the Trust Preferred Securities", "Description of Junior
Subordinated Debentures", "Description of the Guarantee", "Expense
Agreement" and "Relationship Among the Trust Preferred Securities, the
Junior Subordinated Debentures and the Guarantee" insofar as such
statements constitute matters of law applicable to the Offerors or
summaries of documents fairly present the information required to be
included therein in all material respects.
(xiv) The statements set forth in the Prospectus under the
captions "Certain Federal Income Tax Consequences" and "ERISA
Considerations" constitute fair and accurate summaries of the matters
addressed therein, based upon current law and the assumptions stated or
referred to therein.
(xv) Such counsel has been advised by the staff of the Commission
that the Registration Statement has become effective under the 1933 Act;
any required filing of the Prospectus pursuant to Rule 424(b) has been made
within the time period required by Rule 424(b); to the best of such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for a stop order
are pending or threatened by the Commission.
25
(xvi) Except as set forth (or referred to) in the Prospectus,
or incorporated by reference therein, to the best of such counsel's
knowledge, there are no contractual encumbrances or restrictions, or
material legal restrictions on the ability of the Bank (A) to pay dividends
or make any other distributions on its capital stock or to pay indebtedness
owed to the Offerors, (B) to make any loans or advances to, or investments
in, the Offerors or (C) to transfer any of its property or assets to the
Offerors.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Offerors including, without limitation, certificates as to the
identity of any and all material contracts, indentures, mortgages, deeds of
trust, loans or credit agreements, notes, leases, franchises, licenses or other
agreements or instruments, and all material permits, easements, consents,
licenses, franchises and government regulatory authorizations, for purposes of
paragraphs (viii), (xiii) and (xvii) hereof and certificates of public
officials. In giving such opinion, other than paragraph (i), such counsel may
rely as to matters of Delaware law upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
described herein. In giving the opinion in paragraph (iv), such counsel may
assume that the laws of California are the same as the laws of New York and that
the substantive laws of California would be applied to the interpretation of
this Agreement.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representative of the Offerors
and with their independent public accountants and with you and your counsel,
at which conferences such counsel made inquiries of such officers,
representative and accountants and discussed in detail the contents of the
Registration Statement and Prospectus and such counsel has no reason to
believe (A) that the Registration Statement or any amendment thereto (except
for the financial statements and related schedules and statistical data
included therein or omitted therefrom or Underwriters' Information or the
Statements of Eligibility of the Trustee on Form T-1 filed as exhibits to the
Registration Statement, as to which such counsel need express no opinion), at
the time the Registration Statement or any such amendment became effective,
contained any untrue statement of a material fact or omitted to state any
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 or (B) that the Prospectus or any amendment or
supplement thereto (except for the financial statements and related schedules
and statistical data included therein or omitted therefrom or Underwriters'
Information or the
26
Statements of Eligibility of the Trustee on Form T-1 filed as exhibits to the
Registration Statement, as to which such counsel need express no opinion), at
the time the Registration Statement became effective (or, if the term
"Prospectus" refers to the prospectus first filed pursuant to Rule 424(b) of the
1933 Act Regulations, at the time the Prospectus was issued), at the time any
such amended or supplemented Prospectus was issued, at the Closing Date and, if
applicable, the Option Closing Date, contained or contains any untrue statement
of a material fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading or (C)
that there is any amendment to the Registration Statement required to be filed
that has not already been filed.
(e) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to such counsel, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, 12
DEL. C. Sections 3801 ET SEQ. (the "Delaware Act"), with the trust power
and authority to (a) own its property and conduct its business as described
in the Prospectus, (b) execute and deliver, and perform its obligations
under, this Agreement, and (c) issue and perform its obligations under the
Preferred Securities.
(ii) The Trust Agreement constitutes a valid and binding
obligation of the Company and the trustees of the Trust, and is enforceable
against the Company and the trustees of the Trust, in accordance with its
terms.
(iii) Under the Trust Agreement and the Delaware Act, all
necessary trust action has been taken on the part of the Trust to duly
authorize the execution and delivery of this Agreement by the Trust and the
performance of its obligations hereunder.
(iv) The Preferred Securities have been duly authorized for
issuance by the Trust Agreement and, when issued and delivered in
accordance with the terms of the Trust Agreement and this Agreement and as
described in the Prospectus, will be validly issued and (subject to
paragraph (v) below) fully paid and non-assessable undivided beneficial
interests in the assets of the Trust. The holders of the Preferred
Securities will be entitled to the benefits of the Trust Agreement (subject
to the limitations set forth in paragraph (ii) above).
(v) The holders of Preferred Securities in their capacity as
such, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the Delaware General Corporation Law. Such opinion may note that the
holders of the Preferred Securities may be
27
required to make payment or provide indemnity or security as set forth in
the Trust Agreement.
(vi) Under the Trust Agreement and the Delaware Act, the issuance
of the Preferred Securities is not subject to preemptive rights.
(vii) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation by the
Trust of the transactions contemplated by this Agreement do not (a) violate
any of the provisions of the Certificate of Trust or the Trust Agreement or
(b) violate any applicable Delaware law or administrative regulation.
(viii) Assuming that the Trust derives no income from or
connected with services provided within the State of Delaware and has no
assets, activities (other than having a Delaware trustee as required by the
Delaware Act and the filing of documents with the Secretary of State of the
State of Delaware) or employees in the State of Delaware, no filing with,
or authorization, approval, consent, license, order, registration,
qualification or decree of, any Delaware court or Delaware governmental
authority or agency (other than as may be required under the securities or
blue sky laws of the State of Delaware as to which such counsel may express
no opinion) is necessary or required to be obtained by the Trust solely in
connection with the due authorization, execution and delivery of this
Agreement by the Trust or the offering, issuance, sale or delivery of the
Preferred Securities by the Trust in accordance with the Trust Agreement
and the Prospectus.
(ix) After due inquiry on September __, 1997, limited to, and
solely to the extent disclosed thereupon, court dockets for active cases in
the Court of Chancery of the State of Delaware in and for New Castle
County, Delaware, of the Superior Court of the State of Delaware in and for
New Castle County, Delaware, and of the United State District Court sitting
in the State of Delaware, we are not aware of any legal or governmental
proceeding pending against the Trust.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance, transfer and
other similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(f) ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., counsel to the
Underwriters, shall have furnished you their signed opinion, dated the Closing
Date or the Option Closing Date, as
28
the case may be, with respect to the sufficiency of all corporate procedures and
other legal matters relating to this Agreement, the validity of the Designated
Preferred Securities, the Registration Statement, the Prospectus and such other
related matters as you may reasonably request and there shall have been
furnished to such counsel such documents and other information as they may
request to enable them to pass on such matters. In giving such opinion, ▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. may rely as to matters of fact upon statements
and certifications of officers of the Offerors and of other appropriate persons
and may rely as to matters of law, other than law of the United States, and upon
the opinions of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representatives shall have received
from Deloitte & Touche LLP a letter, dated the date of this Agreement and the
Closing Date (and, if applicable, the Option Closing Date), respectively, in
form and substance satisfactory to the Representatives, confirming that they are
independent public accountants with respect to Company, within the meaning of
the 1933 Act and the 1933 Act Regulations, and stating in effect that:
(i) In their opinion, the consolidated financial statements of
the Company audited by them and included in the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information", inquiries of officials of the Company
responsible for financial and accounting matters, and such other inquiries
and procedures as may be specified in such letter, which procedures do not
constitute an audit in accordance with U.S. generally accepted auditing
standards, nothing came to their attention that caused them to believe
that, if applicable, the unaudited interim consolidated financial
statements of the Company included in the Registration Statement do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and 1933 Act Regulations or are not in
conformity with U.S. generally accepted accounting principles applied on a
basis substantially consistent, except as noted in the Registration
Statement, with the basis for the audited consolidated financial statements
of the Company included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company,
inspection of the minute books of the Company since the date of the latest
audited financial statements of the Company included in the Registration
Statement, inquiries of officials of the Company responsible for financial
and accounting matters and
29
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) as of a specified date not more than five business days
prior to the date of such letter, there have been any changes in the
consolidated capital stock of the Company, any increase in the
consolidated debt of the Company, any decreases in consolidated total
assets or shareholders equity of the Company, or any changes,
decreases or increases in other items specified by the Underwriters,
in each case as compared with amounts shown in the latest unaudited
interim consolidated statement of financial condition of the Company
included in the Registration Statement except in each case for
changes, increases or decreases which the Registration Statement
specifically discloses, have occurred or may occur or which are
described in such letter; and
(B) for the period from the date of the latest unaudited
interim consolidated financial statements included in the Registration
Statement to the specified date referred to in Clause (iii)(A), there
were any decreases in the consolidated interest income, net interest
income, or net income of the Company or in the per share amount of net
income of the Company, or any changes, decreases or increases in any
other items specified by the Representatives, in each case as compared
with the comparable period of the preceding year and with any other
period of corresponding length specified by the Underwriters, except
in each case for increases or decreases which the Registration
Statement discloses have occurred or may occur, or which are described
in such letter.
(iv) In addition to the audit referred to in their report
included in the Registration Statement and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (ii) and (iii) above, they have carried out certain specified
procedures, not constituting an audit in accordance with U.S. generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Underwriters which are derived
from the general accounting records and consolidated financial statements
of the Company which appear in the Registration Statement specified by the
Underwriters in the Registration Statement, and have compared such amounts,
percentages and financial information with the accounting records and the
material derived from such records and consolidated financial statements of
the Company have found them to be in agreement.
In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases as specified in Clauses (iii)(A)
or (iii)(B) above, or any exceptions from such agreement specified in Clause
(iv) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
Clause (iii)(A) above as compared with the amounts
30
shown in the latest unaudited consolidated statement of financial condition of
the Company included in the Registration Statement, (y) reflect a material
adverse change in the items specified in Clause (iii)(B) above as compared with
the corresponding periods of the prior year or other period specified by the
Representatives, or (z) reflect a material change in items specified in Clause
(iv) above from the amounts shown in the Preliminary Prospectus distributed by
the Underwriters in connection with the offering contemplated hereby or from the
amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received certificates of the chief executive officer and the
chief financial and accounting officer of the Company, which certificates shall
be deemed to be made on behalf of the Company dated as of the Closing Date and,
if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (i) the representations and
warranties of the Company set forth in Section 2(a) hereof are accurate as of
the Closing Date and, if applicable, the Option Closing Date, and that the
Offerors have complied with all agreements and satisfied all conditions on their
part to be performed or satisfied at or prior to such Closing Date; (ii) since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material adverse change in
the condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Offerors and the Bank on a consolidated basis;
(iii) since such dates, except as otherwise disclosed in the Registration
Statement and the Prospectus, there has not been any material transaction
entered into by the Offerors or the Bank other than transactions in the ordinary
course of business; and (iv) they have carefully examined the Registration
Statement and the Prospectus as amended or supplemented and nothing has come to
their attention that would lead them to believe that either the Registration
Statement or the Prospectus, or any amendment or supplement thereto as of their
respective effective or issue dates, contained, and the Prospectus as amended or
supplemented at such Closing Date (and, if applicable, the Option Closing Date),
contains any untrue statement of a material fact, or omits to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(i) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received a certificate of an authorized representative of the
Trust to the effect that to the best of his or her knowledge based upon a
reasonable investigation, the representations and warranties of the Trust in
this Agreement are true and correct as though made on and as of the Closing Date
(and, if applicable, the Option Closing Date); the Trust has complied with all
the agreements and satisfied all the conditions required by this Agreement to be
performed or satisfied by the Trust on or prior to the Closing Date and since
the most recent date as of which information is given in the Prospectus, except
as contemplated by the Prospectus, the Trust has not incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise) of the Trust.
31
(j) On the Closing Date, you shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
(k) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities, shall not have objected to the Underwriters'
participation in such offering.
(l) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to you and counsel to the Underwriters
all such other documents and certificates as they have reasonably requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
If any of the conditions referred to in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all of
the Underwriters' obligations hereunder may be terminated by you on notice to
the Company at, or at any time before, the Closing Date or the Option Closing
Date, as applicable. Any such termination shall be without liability of the
Underwriters to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter, each of its directors, partners, officers and agents,
and each person, if any, who controls any Underwriter within the meaning of the
1933 Act, against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and reasonable attorney fees and
expenses), joint or several, arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact made by the Company or
the Trust contained in the Registration Statement, any Preliminary Prospectus or
the Prospectus, or in any amendment or supplement thereto, (ii) any blue sky
application or other document executed by the Company or the Trust specifically
for that purpose or based upon written information furnished by the Company or
the Trust filed in any state or other jurisdiction in order to qualify any of
the Designated Preferred Securities under the securities laws thereof (any such
application, document or information being hereinafter referred to as a "Blue
Sky Application"), (iii) any omission or alleged omission to state a material
fact in the registration statement as originally filed or the Registration
Statement, any Preliminary Prospectus or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application required to be stated therein
or necessary to make the statements therein not misleading, and against any and
all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation and attorney fees), joint or several, arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus or the Prospectus, or in any amendment
or supplement thereto, or arising out of or based upon any omission or alleged
omission to state
32
therein 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 or (iv) the enforcement of this indemnification provision
or the contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any reasonable legal or other expenses as incurred, but in
no event less frequently than 30 days after each invoice is submitted, incurred
by them in connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; PROVIDED, HOWEVER, that the Offerors shall not be liable in any such
case to the extent, but only to the extent, that any such losses, claims,
damages, liabilities and expenses arise out of or are based upon any untrue
statement or omission or allegation thereof that has been made or omitted in
reliance upon and in conformity with the Underwriters' Information; PROVIDED,
that the indemnification contained in this paragraph with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or of
any person controlling any Underwriter) to the extent any such losses, claims,
damages, liabilities or expenses directly results from the fact that such
Underwriter sold Designated Preferred Securities to a person to whom there was
not sent or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus (as amended or supplemented if any amendments or supplements
thereto shall have been furnished to you in sufficient time to distribute same
with or prior to the written confirmation of the sale involved), if required by
law, and if such loss, claim, damage, liability or expense would not have arisen
but for the failure to give or send such person such document. The foregoing
indemnity agreement is in addition to any liability the Company or the Trust may
otherwise have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each Offeror, each of its directors, each of its officers and
trustees who signed the Registration Statement and each person, if any, who
controls an Offeror within the meaning of the 1933 Act, to the same extent as
required by the foregoing indemnity from the Company to each Underwriter, but
only with respect to the Underwriters' Information or information relating to
such Underwriter furnished in writing to an Offeror through such Underwriter by
or on behalf of it expressly for use in a Blue Sky Application. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to any such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; PROVIDED, HOWEVER, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof,
33
but the fees and expenses of such counsel shall be at the expense of such
indemnified party or such controlling person unless (i) the employment thereof
has been specifically authorized by the indemnifying party in writing, (ii) the
indemnifying party has failed to assume the defense or to employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both such indemnified
party or such controlling person and the indemnifying party and such indemnified
party or such controlling person shall have been advised by counsel that there
may be one or more legal defenses available to it that are different from or in
addition to those available to the indemnifying party (in which case, if such
indemnified party or controlling person notifies the indemnifying party in
writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action on behalf of such indemnified party or such
controlling person); it being understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) separate from their own counsel at any time and for all such
indemnified parties and controlling persons, which firm shall be designated in
writing by the indemnified party (and, if such indemnified parties are
Underwriters, by you, as Representatives). Each indemnified party and each
controlling person, as a condition of such indemnity, shall use reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. The indemnifying party shall not be liable for any settlement
of any such action effected without its written consent, but if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall not alter the
right of any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each 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, claims,
damages, liabilities
34
or expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Offerors on the one hand and the Underwriters on the
other from the offering of the Designated Preferred Securities or (ii) 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
Offerors on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Offerors on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors
bear to the total underwriting discounts, commissions and compensation
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Offerors on the one
hand and of the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Offerors or by the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Offerors and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this paragraph (d) were determined by pro rata
allocation or by any other method of allocation that 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 and expenses referred to in the first sentence of this paragraph
(d) shall be deemed to include, subject to the limitations set forth above,
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 paragraph (d), no Underwriter shall be
required to contribute any amount in excess of the underwriting discount
received by it. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
Neither party shall be liable for contribution for claims settled
without such party's consent, provided such consent shall not be unreasonably
withheld, conditioned or delayed.
For purposes of this paragraph (d), each person who controls an
Underwriter within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Underwriter, and each person who controls an
Offeror within the meaning of Section 15 of the 1933 Act, each officer and
trustee of an Offeror who shall have signed the Registration Statement and each
director of an Offeror shall have the same rights to contribution as the
Offerors subject in each case to the preceding sentence. The obligations of the
Offerors under this paragraph (d) shall be in addition to any liability which
the Offerors may otherwise have and the obligations of the Underwriters under
this paragraph (d) shall be in addition to any liability that the Underwriters
may otherwise have.
35
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Offerors set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Underwriter or any person
controlling an Underwriter or by or on behalf of the Offerors, or their
directors, trustees or officers (or any person controlling an Offeror),
(ii) acceptance of any Designated Preferred Securities and payment therefor
hereunder and (iii) any termination of this Agreement. A successor of any
Underwriter or of an Offeror, or its directors, trustees or officers (or of any
person controlling an Underwriter or an Offeror) shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 7.
(f) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust under
this Section 7.
8. TERMINATION. You shall have the right to terminate this Agreement at
any time at or prior to the Closing Date or, with respect to the Underwriters'
obligation to purchase the Option Preferred Securities, at any time at or prior
to the Option Closing Date, without liability on the part of the Underwriters to
the Offerors, if:
(a) Either Offeror shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Offerors or the Bank shall have sustained any material loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree which in the judgment of the
Representatives materially impairs the investment quality of the Designated
Preferred Securities;
(c) There has been since the respective dates as of which information
is given in the Registration Statement or the Prospectus, any materially adverse
change in, or any development which is reasonably likely to have a material
adverse effect on, the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and the Bank on a
consolidated basis, whether or not arising in the ordinary course of business;
(d) There has occurred any outbreak of hostilities or other calamity
or crisis or material change in general economic, political or financial
conditions, or internal conditions, the effect of which on the financial markets
of the United States is such as to make it, in your reasonable judgment,
impracticable to market the Designated Preferred Securities or enforce contracts
for the sale of the Designated Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have
36
been required, by any of said exchanges or market system or by the Commission or
any other governmental authority; or
(f) A banking moratorium shall have been declared by either federal
or California authorities.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except that
the provisions of Sections 5 and 7 hereof shall survive any termination of this
Agreement.
9. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase Designated Preferred Securities
hereunder, the other Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Designated Preferred
Securities which such defaulting Underwriter or Underwriters agreed but failed
to purchase; PROVIDED, HOWEVER, that the non-defaulting Underwriters shall be
under no obligation to purchase such Designated Preferred Securities if the
aggregate number of Designated Preferred Securities to be purchased by such
non-defaulting Underwriters shall exceed 110% of the aggregate underwriting
commitments set forth in SCHEDULE I hereto, and PROVIDED FURTHER, that no
non-defaulting Underwriter shall be obligated to purchase Designated Preferred
Securities to the extent that the number of such Designated Preferred Securities
is more than 110% of such Underwriter's underwriting commitment set forth in
SCHEDULE I hereto.
In the event that the non-defaulting Underwriters are not obligated
under the above paragraph to purchase the Designated Preferred Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representatives may in their discretion arrange for one or more of the
Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representatives do not arrange for the purchase of such
Designated Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representatives to purchase such Designated Preferred
Securities on such terms.
In the event that the Representatives or the Company does not arrange
for the purchase of any Designated Preferred Securities to which a default
relates as provided above, this Agreement shall be terminated unless the parties
otherwise agree.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Preferred Securities
of a defaulting Underwriter or Underwriters as provided in this Section 9, (i)
you shall have the right to postpone the Closing Date for a period of not more
than five full business days, in order to effect any changes that, in the
reasonable opinion of counsel to the Underwriters or the Company, may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file any amendments
to the Registration
37
Statement or supplements to the Prospectus which, in its reasonable opinion, may
thereby be made necessary and (ii) the respective numbers of Designated
Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of any liability it may have for damages
occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 9 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except that the provisions of Section 5 and Section
7 hereof shall survive any termination of this Agreement.
10. EFFECTIVE DATE OF AGREEMENT. If the Registration Statement is not
effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time the Commission declares the
Registration Statement effective. The Company shall immediately notify the
Underwriters when the Registration Statement becomes effective.
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. New York time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Representatives shall
release the Designated Preferred Securities for initial public offering. The
Representatives shall notify the Offerors immediately after they have taken any
action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may
be terminated by the Offerors, by notifying the Representatives, or by you, as
Representatives of the several Underwriters, by notifying either Offeror, except
that the provisions of Sections 5 and 7 shall at all times be effective.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. The
representations, warranties, indemnities, agreements and other statements of the
Offerors and their officers and trustees set forth in or made pursuant to this
Agreement and the agreements of the Underwriters contained in Section 7 hereof
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Offerors or controlling persons of
either Offeror, or by or on behalf of the Underwriters or controlling persons of
the Underwriters or any termination or cancellation of this Agreement and shall
survive delivery of and payment for the Designated Preferred Securities.
12. NOTICES. Except as otherwise provided in this Agreement, all notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if delivered by hand, mailed by registered or certified
mail, return receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to either Offeror shall be sent to
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
(with a copy to ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇); and notices
to the Underwriters shall be sent to ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ & Partners, L.P., Two World
Trade Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ (with a copy to ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
38
L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Esq.). In all dealings with the Company under this Agreement, ▇▇▇▇▇▇▇
▇'▇▇▇▇▇ & Partners, L.P. shall act as representative of and on behalf of the
several Underwriters, and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of the Underwriters, made or
given by ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ & Partners, L.P. on behalf of the Underwriters, as if
the same shall have been made or given in writing by the Underwriters.
13. PARTIES. The Agreement herein set forth is made solely for the
benefit of the Underwriters and the Offerors and, to the extent expressed,
directors, trustees and officers of the Offerors, any person controlling the
Offerors or the Underwriters, and their respective successors and assigns. No
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser,
in his or her status as such purchaser, from the Underwriters of the Designated
Preferred Securities.
14. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of New York, without giving effect to the choice of law or conflicts of
law principles thereof.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
[Remainder of page intentionally left blank]
39
If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
PACIFIC CREST CAPITAL, INC.
By:
Name:
Title:
PCC CAPITAL I
By:
Name:
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of September __, 1997.
SANDLER ▇'▇▇▇▇▇ & PARTNERS, ▇.▇.
▇▇▇▇▇ & CO. INCORPORATED
By: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ & Partners, L.P.
By: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ & Partners Corp.,
the sole general partner
By:
Name:
Title:
For itself and as a Representative of the several Underwriters named in Schedule
I hereto.
40
SCHEDULE I
Underwriter No. of Preferred Securities
----------- ---------------------------
Sandler ▇'▇▇▇▇▇ & Partners, L.P. . . . . . . . . . . . _______
Sutro & Co., Incorporated. . . . . . . . . . . . . . . _______
Total . . . . . . . . . . . . . . . . . . . . . . 1,500,000
41
