Exhibit 1.1
______________________________________________________________________________
______________________________________________________________________________
INDEPENDENCE COMMUNITY BANK CORP.
(a Delaware corporation)
Senior Notes Due 2010
PURCHASE AGREEMENT
Dated: September 16, 2005
______________________________________________________________________________
______________________________________________________________________________
INDEPENDENCE COMMUNITY BANK CORP.
(a Delaware corporation)
$250,000,000
Senior Notes Due 2010
PURCHASE AGREEMENT
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September 16, 2005
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
as Representative of the several Underwriters
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
Independence Community Bank Corp., a Delaware corporation
(the "Company"), confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇
▇▇▇▇▇") and each of the other Underwriters named in Schedule A
hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as
representative (in such capacity, the "Representative"), with
respect to the issue and sale by the Company and the purchase by
the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of
$250,000,000 aggregate principal amount of the Company's Senior
Notes Due 2010 (the "Securities"). The Securities are to be
issued pursuant to an indenture dated as of September 23, 2005
(the "Indenture") between the Company and JPMorgan Chase Bank,
N.A., as trustee (the "Trustee"). The term "Indenture," as used
herein, includes the Officer's Certificate (as defined in the
Indenture) establishing the form and terms of the Securities
pursuant to Section 3.01 of the Indenture.
The Company understands that the Underwriters propose to
make a public offering of the Securities as soon as the
Representative deems advisable after this Agreement has been
executed and delivered and the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
Form S-3 (No. 333-125865), including the related preliminary
prospectus or prospectuses, covering the registration of the
Securities under the Securities Act of 1933, as amended (the
"1933 Act"). Promptly after execution and delivery of this
Agreement, the Company will prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the
rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations. The information included
in such prospectus that was omitted from such registration
statement at the time it became effective but that is deemed to
be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to
as "Rule 430A Information." Each prospectus used before such
registration statement became
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effective, and any prospectus that omitted the Rule 430A Information,
that was used after such effectiveness and prior to the execution and
delivery of this Agreement, is herein called a "preliminary prospectus."
Such registration statement, including the exhibits and any schedules
thereto, at the time it became effective, and including the
documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act at such time and the Rule 430A
Information, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933
Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus in the form first
furnished to the Underwriters for use in connection with the
offering of the Securities, including the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act at the time of the execution of this Agreement, is
herein called the "Prospectus." For purposes of this Agreement,
all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included"
or "stated" in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the
Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934 (the "1934
Act") which is incorporated by reference in the Registration
Statement, such preliminary prospectus or the Prospectus, as the
case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date
hereof, as of the Closing Time referred to in Section 2(b)
hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto has become
effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement, any Rule 462(b)
Registration Statement or any post-effective amendment thereto
has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any
Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time,
the Registration Statement, the Rule 462(b) Registration
Statement and any amendments and supplements thereto
complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations
and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"),
and 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. Neither the Prospectus nor any
amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued
and at the Closing Time, included or will include an untrue
statement of a
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material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
The representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto) or to the
Prospectus (or any amendment or supplement thereto).
Each preliminary prospectus and the prospectus filed as
part of the Registration Statement as originally filed or as
part of any amendment thereto complied when so filed in all
material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together with the other information
in the Prospectus, at the time the Registration Statement became
effective, at the time the Prospectus was issued and at the
Closing Time, 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.
(iii) Independent Accountants. The accounting firm which
certified the financial statements and supporting schedules
included in the Registration Statement is an independent
registered public accounting firm as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial
position of the Company and its consolidated subsidiaries at the
dates indicated and the statement of operations, changes in
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles in the United States
("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected
financial data included in the Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a "Material Adverse Effect"),
(B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and
(C) except for regular quarterly dividends on the common stock,
par value 0.01 per share, of the Company (the "Common Stock") in
amounts per share that are consistent with past practice, there
has been no
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dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under
this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse
Effect; The Company is duly registered as a savings and loan
holding company under the Home Owner's Loan Act, as amended
("HOLA"). The deposit accounts of Independence Community Bank
(the "Bank") are insured by the FDIC to the fullest extent
permitted by law and the rules and regulations of the FDIC, and
no proceedings for the termination of such insurance are pending
or, to the Company's knowledge, threatened.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02
of Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital
stock of each such Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by
the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim
or equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such Subsidiary. The only
subsidiaries of the Company are the subsidiaries listed on
Schedule C hereto.
(viii) Capitalization. The shares of issued and outstanding
capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any
securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization of the Indenture. The Indenture has been
duly authorized by the Company and duly qualified under the 1939 Act
and, when duly executed and delivered by the Company and the
Trustee, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
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(xi) Authorization of the Securities. The Securities have
been duly authorized and, at the Closing Time, will have been duly
executed by the Company and, when authenticated, issued and
delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as
provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement
of creditors' rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law),
and will be in the form contemplated by, and entitled to the
benefits of, the Indenture.
(xii) Description of the Securities and the Indenture.
The Securities and the Indenture will conform in all material
respects to the respective statements relating thereto contained
in the Prospectus and will be in substantially the respective
forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(xiii) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its certificate of
incorporation, restated organization certificate, articles of
incorporation or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is
subject (collectively, "Agreements and Instruments") except for
such defaults that would not result in a Material Adverse Effect;
and the execution, delivery and performance of this Agreement,
the Indenture and the Securities and the consummation of the
transactions contemplated herein and in the Registration
Statement (including the issuance and sale of the Securities and
the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds")
and compliance by the Company with its obligations hereunder and
under the Indenture and the Securities have been duly authorized
by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary pursuant
to, the Agreements and Instruments (except for such conflicts,
breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not result in a Material Adverse Effect),
nor will such action result in any violation of the provisions of
the certificate of incorporation, restated organization
certificate, articles of incorporation or by-laws of the Company
or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(xiv) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any subsidiary, which is required to
be disclosed in the Registration Statement (other than as
disclosed therein), or which might
5
result in a Material Adverse Effect, or which might materially and
adversely affect the properties or assets thereof or the consummation
of the transactions contemplated in this Agreement or the performance
by the Company of its obligations hereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or
any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, could not result in a Material
Adverse Effect.
(xv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement,
the Prospectus or the documents incorporated by reference therein
or to be filed as exhibits thereto which have not been so
described and filed as required.
(xvi) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or
any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(xvii) Absence of Manipulation. Neither the Company nor any
affiliate of the Company has taken, nor will the Company or any
affiliate take, directly or indirectly, any action which is
designed to or which has constituted or which would be expected
to cause or result in stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale
of the Securities.
(xviii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority
or agency is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the
offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement
or for the due execution, delivery or performance of the
Indenture by the Company, except such as have been already
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws and except for the
qualification of the Indenture under the 1939 Act.
(xix) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except where the failure so to
possess would not, singly or in the aggregate, result in a
Material Adverse Effect; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly
or in the aggregate, result in a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and
effect would not, singly or in the aggregate, result in a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of
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proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(xx) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the
Prospectus or (b) do not, singly or in the aggregate, materially
affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the
Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in
the Prospectus, are in full force and effect, and neither the Company
nor any subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Company
or any subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xxi) Investment Company Act. The Company is not required,
and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be required, to register as,
an "investment company" under the Investment Company Act of 1940,
as amended (the "1940 Act").
(xxii) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or
mold (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have
all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries
and (D) there are no events or circumstances that would
reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(b) Officer's Certificates. Any certificate signed by any
officer of the Company or any of its subsidiaries delivered to
the Representative or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
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SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company,
at the price set forth in Schedule B, the aggregate principal
amount of Securities set forth in Schedule A opposite the name of
such Underwriter, plus any additional principal amount of
Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery
of certificates for, the Securities shall be made at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon
by the Representative and the Company, at 9:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date
hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representative and
the Company (such time and date of payment and delivery being
herein called "Closing Time"). ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and
not as representative of the Underwriters, also agrees to
reimburse the Company for certain of the Company's expenses
related to the offering and sale of the Securities in the amount
of $100,000 at such Closing Time.
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the
Company, against delivery to the Representative for the
respective accounts of the Underwriters of certificates for the
Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative, for its account,
to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to
purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative
of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased
by any Underwriter whose funds have not been received by the
Closing Time, but such payment shall not relieve such Underwriter
from its obligations hereunder.
(c) Denominations; Registration. Certificates for the
Securities shall be in such denominations ($1,000 or integral
multiples thereof) and registered in such names as the
Representative may request in writing at least one full business
day before the Closing Time. The Securities will be made
available for examination and packaging by the Representative in
The City of New York not later than 10:00 A.M. (Eastern time) on
the business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with
the requirements of Rule 430A and will notify the Representative
immediately, and confirm the notice in writing, (i) when any post-
effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or any document
incorporated by reference therein or for additional information,
and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such
purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b)
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was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company will make
every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Filing of Amendments. The Company will give the
Representative notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing
under Rule 462(b)) or any amendment, supplement or revision to
either the prospectus included in the Registration Statement at
the time it became effective or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish
the Representative with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the
Representative or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Representative and counsel for
the Underwriters, without charge, signed copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to
the Representative, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The
copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each
Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act, such
number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. The Prospectus and
any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations and the 1939 Act and the 1939
Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement
and in the Prospectus. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist
as a result of which it is necessary, in the opinion of counsel
for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light
of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities
laws of such
9
states and other jurisdictions as the Representative may designate
and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so
qualified or so subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject. The Company
will also supply the Underwriters with such information as is
necessary for the determination of the legality of the Securities
for investment under the laws of such jurisdictions as the
Underwriters may request.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable
an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of
the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner
specified in the Prospectus under "Use of Proceeds".
(i) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act,
will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters, the Indenture and
such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities,
(iii) the preparation, issuance and delivery of the certificates
for the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f)
hereof, including filing fees and the reasonable documented fees
and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery
to the Underwriters of copies of each preliminary prospectus and
of the Prospectus and any amendments or supplements thereto,
(vii) the preparation, printing and delivery to the Underwriters
of copies of the Blue Sky Survey and any supplement thereto,
(viii) the fees and expenses of the Trustee, including the fees
and disbursements of counsel for the Trustee in connection with
the Indenture and the Securities, and (ix) any fees payable in
connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated
by the Representative in accordance with the provisions of
Section 5 or Section 9(a)(i) hereof, the Company shall reimburse
the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for
the Underwriters. Upon request of the Company, the Underwriters
shall document their out-of -pocket expenses.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the several Underwriters hereunder are subject to
the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer
of the Company or any subsidiary of the
10
Company delivered pursuant to the provisions hereof, to the performance
by the Company of its covenants and other obligations hereunder, and to
the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has
become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied
with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information
shall have been filed with the Commission in accordance with Rule
424(b) (or a post-effective amendment providing such information
shall have been filed and declared effective in accordance with
the requirements of Rule 430A).
(b) Opinion of Counsel for Company. At Closing Time, the
Representative shall have received the favorable opinion, dated
as of Closing Time, of ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.,
counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit A hereto and to such further effect
as counsel to the Underwriters may reasonably request. In giving
such opinion such counsel may rely, as to all matters governed by
the laws of jurisdictions other than the law of the State of New
York and the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Representative. Such counsel may
also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(c) Opinion of Counsel for Underwriters. At Closing Time,
the Representative shall have received the favorable opinion, dated
as of Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel
for the Underwriters, together with signed or reproduced copies
of such letter for each of the other Underwriters with respect to
the matters set forth in clauses (i), (vii) through (xi),
inclusive, and the penultimate paragraph of Exhibit A hereto. In
giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the
State of New York and the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to the Representative. Such
counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as
of which information is given in the Prospectus, any material
adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and
the Representative shall have received a certificate of the
President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties
in Section 1(a) hereof are true and correct with the same force
and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or
prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are
pending or, to their knowledge, contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Representative shall have received from
Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to the Representative, together with
signed or reproduced copies of such letter for
11
each of the other Underwriters containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and
the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the
Representative shall have received from Ernst & Young LLP a
letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days
prior to Closing Time.
(g) Maintenance of Rating. At Closing Time, the Securities
shall be rated at least Baa3 by ▇▇▇▇▇'▇ Investor's Service Inc.
and BBB by Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-
▇▇▇▇, Inc. , and the Company shall have delivered to the
Representative a letter dated the Closing Time, from each such
rating agency, or other evidence satisfactory to the
Representative, confirming that the Securities have such ratings;
and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Securities
or any of the Company's other securities or the Bank's securities
by any "nationally recognized statistical rating agency", as that
term is defined by the Commission for purposes of Rule 436(g)(2)
under the 1933 Act, and no such organization shall have publicly
announced that it has under surveillance or review its rating of
the Securities or any of the Company's other securities or the
Bank's securities.
(h) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance
and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representative and
counsel for the Underwriters.
(i) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required
to be fulfilled, this Agreement may be terminated by the
Representative by notice to the Company at any time at or prior
to Closing Time, and such termination shall be without liability
of any party to any other party except as provided in Section 4
and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter, its affiliates, as
such term is defined in Rule 501(b) under the 1933 Act (each, an
"Affiliate"), its selling agents and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, or the omission or
alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
12
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto), including the
Rule 430A Information or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or
any amendment thereto), including the Rule 430A Information, or
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the
case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇
▇▇▇▇▇, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate
at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof
13
(whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding
or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a) (ii) effected
without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements
or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one
hand and the Underwriters on the other hand in connection with
the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Company and
the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of the Securities as
set forth on the cover of the Prospectus.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above
in this Section 7 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon
any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities
underwritten by it and
14
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act and each Underwriter's
Affiliates and selling agents shall have the same rights to
contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the
Company. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the
principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to
Survive. All representations, warranties and agreements
contained in this Agreement or in certificates of officers of the
Company or any of its subsidiaries submitted pursuant hereto,
shall remain operative and in full force and effect regardless of
(i) any investigation made by or on behalf of any Underwriter or
its Affiliates or selling agents, any person controlling any
Underwriter, its officers or directors or any person controlling
the Company, and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to
Closing Time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which
information is given in the Prospectus (exclusive of any
supplement thereto), any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in
national or international political, financial or economic
conditions, in each case the effect of which is such as to make
it, in the judgment of the Representative, impracticable or
inadvisable to market the Securities or to enforce contracts for
the sale of the Securities, or (iii) if trading in any securities
of the Company has been suspended or materially limited by the
Commission or the Nasdaq National Market, or if trading generally
on the American Stock Exchange or the New York Stock Exchange or
in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by any of
said exchanges or by such system or by order of the Commission,
the National Association of Securities Dealers, Inc. or any other
governmental authority, or a material disruption has occurred in
commercial banking or securities settlement, or (iv) a material
disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, or (v) if
a banking moratorium has been declared by either Federal or New
York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 6, 7 and 8 shall survive
such termination and remain in full force and effect.
15
SECTION 10. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at Closing Time to
purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the
Representative shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however,
the Representative shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the aggregate principal amount of the Securities to be purchased
hereunder, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased
hereunder, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the
Company shall have the right to postpone Closing Time for a
period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any
other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter
under this Section 10.
SECTION 11. Tax Disclosure. Notwithstanding any other
provision of this Agreement, immediately upon commencement of
discussions with respect to the transactions contemplated hereby,
the Company (and each employee, representative or other agent of
the Company) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of
the transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are
provided to the Company relating to such tax treatment and tax
structure. For purposes of the foregoing, the term "tax
treatment" is the purported or claimed federal income tax
treatment of the transactions contemplated hereby, and the term
"tax structure" includes any fact that may be relevant to
understanding the purported or claimed federal income tax
treatment of the transactions contemplated hereby.
SECTION 12. Company Acknowledgement. The Company acknowledges
and agrees that (i) the purchase and sale of the Securities pursuant to
this Agreement, including the determination of the public offering price
of the Securities and any related discounts and commissions, is an
arm's-length commercial transaction between the Company, on the one hand,
and the several Underwriters, on the other hand, (ii) in connection with
the offering contemplated hereby and the process leading to such
transaction each Underwriter is and has been acting solely as a principal
and is not the agent or fiduciary of the Company, or its stockholders,
creditors, employees or any other party, (iii) no Underwriter has assumed
or will assume an advisory or fiduciary responsibility in favor of the
Company with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or
is currently advising the Company on other matters) and no Underwriter
has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (iv) the Underwriters and their respective affiliates may be
engaged in a broad range of transactions that involve interests that
differ from those of the Company, and (v) the
16
Underwriters have not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company
has consulted its own legal, accounting, regulatory and tax advisors to
the extent it deemed appropriate.
SECTION 13. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
to the Representative at 4 World Financial Center, New York, New
York 10080, attention of Debt Capital Markets, Financial
Institutions Group (Fax: ▇▇▇-▇▇▇-▇▇▇▇); and notices to the
Company shall be directed to it at address of the Company set
forth in the Registration Statement, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Senior Vice President, Secretary and General Counsel (Fax: (718)
▇▇▇-▇▇▇▇).
SECTION 14. Parties. This Agreement shall each inure to the
benefit of and be binding upon the Underwriters and the Company
and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and
7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company
and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
SECTION 16. TIME. TIME SHALL BE OF THE ESSENCE OF THIS
AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 17. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be
an original, but all such counterparts shall together constitute
one and the same Agreement.
SECTION 18. Effect of Headings. The Section headings herein
are for convenience only and shall not affect the construction
hereof.
17
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement between the Underwriters and the Company
in accordance with its terms.
Very truly yours,
INDEPENDENCE COMMUNITY BANK CORP.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Executive Vice President and
Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Managing Director
----------------------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in Schedule A
hereto.
18
SCHEDULE A
Principal
Amount of
Name of Underwriter Securities
------------------- ----------
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated...................................... $175,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc................................. 25,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.......................... 25,000,000
▇▇▇▇▇▇▇ O'Neil & Partners, L.P............................. 25,000,000
===========
Total.................................................. $250,000,000
===========
Sch A-1
SCHEDULE B
INDEPENDENCE COMMUNITY BANK CORP.
$250,000,000 Senior Notes Due 2010
1. The initial public offering price of the Securities shall be
99.899% of the principal amount thereof, plus accrued interest, if any,
from the date of issuance.
2. The purchase price to be paid by the Underwriters for the
Securities shall be 99.299% of the principal amount thereof.
3. The interest rate on the Securities shall be 4.9% per annum.
4. The Securities are not redeemable prior to their maturity.
Sch B-1
SCHEDULE C
Independence Community Bank
BNB Capital Trust
BNB Investment Corp.
Broad National Realty Corp.
Broad Horizons Inc.
Bronatoreo, Inc.
ICB Leasing Corp.
ICM Capital L.L.C.
Independence Community Commercial Reinvestment Corp.
Independence Community Insurance Agency
Independence Community Investment Corp.
Independence Community Realty Corp.
Michamm Corp.
Renaissance Asset Corporation
SIB Financial Services Corporation
SIB Investment Corporation
SIB Mortgage Corp.
Statewide Financial Services
Staten Island Funding Corporation
Wiljo Development Corp.
Sch C-1