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EXHIBIT 10
BSB CAPITAL TRUST I
$30,000,000 8.125% Capital Securities
Fully and Unconditionally Guaranteed as to Distributions
and Other Payments by
BSB BANCORP, INC.
PURCHASE AGREEMENT
New York, New York
July 21, 1998
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
Two World Trade Center
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
BSB Bancorp, Inc., a Delaware corporation (the "Company"), and BSB
Capital Trust I, a Delaware statutory business trust (the "Trust"), propose to
sell to you (the "Initial Purchaser") $30,000,000 aggregate liquidation amount
8.125% Capital Securities of the Trust, having a stated liquidation amount of
$1,000 per capital security (the "Capital Securities"), on the terms and
conditions set forth herein.
The Capital Securities will be fully and unconditionally guaranteed
on a subordinated basis by the Company with respect to distributions and amounts
payable upon liquidation, redemption or repayment (the "Guarantee") pursuant to
the Capital Securities Guarantee Agreement (the "Guarantee Agreement"), to be
dated as of the Closing Date specified in Section 3 hereof and executed and
delivered by the Company and Bankers Trust Company, as trustee (the "Guarantee
Trustee"), for the benefit of the holders from time to time of the Capital
Securities. The entire proceeds from the sale of the Capital Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities") and will be used by the Trust to
purchase $30,928,000 principal amount of the 8.125% Junior Subordinated
Deferrable Interest Debentures of the Company (the "Junior Subordinated
Debentures"). The Capital Securities and the Common Securities for the Trust
will be issued pursuant to the Amended and Restated Trust Agreement (the "Trust
Agreement"), to be dated as of the Closing Date among the Company, as Depositor,
Bankers Trust (Delaware), a Delaware corporation (the "Delaware Trustee"),
Bankers Trust Company (the "Property Trustee"), and the holders from time to
time of
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undivided beneficial interests in the assets of the Trust. The Common Securities
will be fully and unconditionally guaranteed on a subordinated basis by the
Company with respect to distributions and amounts payable upon liquidation,
redemption or repayment pursuant to the Guarantee Agreement. The Junior
Subordinated Debentures will be issued pursuant to an Indenture, to be dated as
of the Closing Date, (the "Indenture"), between the Company and Bankers Trust
Company, as trustee (the "Indenture Trustee").
Holders of the Securities (as defined herein) will be entitled to
the benefits of the Registration Rights Agreement, dated the date hereof, among
the Company, the Trust and the Initial Purchaser, on terms reasonably acceptable
to the Company and the Initial Purchaser (the "Registration Rights Agreement").
The Capital Securities, the Guarantee and the Junior Subordinated
Debentures are collectively referred to herein as the "Securities." This
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the
Registration Rights Agreement and the Securities are referred to collectively as
the "Operative Documents." Capitalized terms used herein without definition have
the respective meanings specified in the Final Memorandum (as defined below).
The sale of the Capital Securities to the Initial Purchaser will be
made without registration of any of the Securities under the Securities Act of
1933, as amended (the "Securities Act"), in reliance upon exemptions from the
registration requirements of the Securities Act. The Initial Purchaser has
advised the Company that the Initial Purchaser will offer and sell the Capital
Securities purchased hereunder in accordance with Section 4 hereof as soon as it
deems advisable.
In connection with the sale of the Capital Securities, the Company
and the Trust have prepared a final offering memorandum, dated July 21, 1998
(including any and all exhibits thereto and any information incorporated by
reference therein, the "Final Memorandum"). The Final Memorandum sets forth
certain information concerning the Company, the Trust and the Securities. Each
of the Company and the Trust hereby confirms that it has authorized the use of
the Final Memorandum, and any amendment or supplement thereto, in connection
with the offer and sale of the Securities by the Initial Purchaser. Unless
stated to the contrary, all references herein to the Final Memorandum are to the
Final Memorandum at the Execution Time (as defined below) and are not meant to
include any amendment or supplement, or any information incorporated by
reference therein, subsequent to the Execution Time and any references herein to
the terms "amend," "amendment" or "supplement" with respect to the Final
Memorandum shall be deemed to refer to and include any information filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), subsequent
to the Execution Time which is incorporated by reference therein.
1. Representations and Warranties. The Company and the Trust
jointly and severally represent and warrant to, and agree with, the Initial
Purchaser as set forth below in this Section 1.
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(a) The Company is duly incorporated and validly existing
as a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease, and operate its properties and
conduct its business substantially as described in the Final Memorandum; the
Company is duly registered under the Bank Holding Company Act of 1956, as
amended; the Company has no subsidiaries except those described in the Final
Memorandum (each a "Subsidiary"); the Company owns, directly or indirectly,
beneficially and of record all of the outstanding capital stock of each
Subsidiary free and clear of any claim, lien, encumbrance or security interest,
except as described in the Final Memorandum. The Company and each of its
Subsidiaries is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which any of them own or lease
properties, has an office, or in which the business conducted by any of them
makes such qualification necessary, except where the failure to so qualify would
not be reasonably likely to have a material adverse effect on the financial
condition, business, assets, properties, results of operations, or net worth of
the Company and its Subsidiaries taken as a whole, or on the ability of the
Company and the Trust to consummate the transactions contemplated by this
Agreement ("Material Adverse Effect"); and no proceeding has been instituted in
any jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit
or curtail, such power and authority or qualification.
(b) The Trust Agreement has been duly authorized by the
Company and, on the Closing Date, will have been duly executed and delivered by
the Company and the Administrators (as defined in the Trust Agreement) of the
Trust, and, assuming due authorization, execution and delivery by the Delaware
Trustee and the Property Trustee, be a valid and binding obligation of the
Company and such Administrators, enforceable against them in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity ("Bankruptcy and
Equity"). Each of the Administrators of the Trust is an employee of the Company
and has been duly authorized by the Company to execute and deliver the Trust
Agreement.
(c) Each of the Guarantee Agreement, and the Indenture has
been duly authorized by the Company and, on the Closing Date will have been duly
executed and delivered by the Company, and, assuming due authorization,
execution and delivery by the Guarantee Trustee, in the case of the Guarantee,
and by the Indenture Trustee, in the case of the Indenture, will be a valid and
binding obligation of the Company enforceable against it in accordance with its
terms, subject to Bankruptcy and Equity.
(d) The Capital Securities, the Exchange Securities (as
defined in the Registration Rights Agreement) and the Common Securities have
been duly authorized by the Trust Agreement and, when issued and delivered
against payment therefor on the Closing Date to the Initial Purchaser, in the
case of the Capital Securities, and to the Company, in the case of the Common
Securities, or, in the case of the Exchange Securities, when issued and
delivered in accordance with the Registration Rights Agreement in exchange for
Capital Securities, will be validly issued and represent undivided beneficial
interests in the assets of the Trust. The issuance of none of the Capital
Securities, the Exchange Securities or the Common Securities is subject to
preemptive or other similar rights. On the Closing Date, all of the
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issued and outstanding Common Securities will be directly owned by the Company
free and clear of any pledge, security interest, claim, lien or other
encumbrance.
(e) The Junior Subordinated Debentures have been duly
authorized by the Company and, at the Closing Date, will have been duly executed
and delivered to the Indenture Trustee for authentication in accordance with the
Indenture, and, when authenticated in the manner provided for in the Indenture
and delivered against payment therefor by the Trust as described in the Final
Memorandum, will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, subject to Bankruptcy and Equity.
(f) Each of this Agreement and the Registration Rights
Agreement has been duly authorized, executed and delivered by the Company and
the Trust.
(g) The Securities, the Common Securities and the Operative
Documents will on the Closing Date conform in all material respects to the
descriptions thereof contained in the Final Memorandum.
(h) Neither the Trust nor the Company or any Subsidiary,
is, or with the giving of notice or lapse of time or both will be, in
violation or breach of, or in default under, nor will the execution or delivery
of, or the performance and consummation of the transactions contemplated by
this Agreement (including the offer, sale, or delivery of the Capital
Securities), conflict with, or result in a violation or breach of, or
constitute a default under, any provision of the organizational documents of
the Trust or the Certificate of Incorporation or Bylaws (as amended or
restated) of the Company, or other governing documents of the Trust, the
Company or any Subsidiary, or of any provision of any agreement, contract,
mortgage, deed of trust, lease, loan agreement, indenture, note, bond, or other
evidence of indebtedness, or other material agreement or instrument to which
the Trust, the Company or any Subsidiary is a party or by which any of them is
bound or to which any of their properties is subject, except for such
conflicts, violations, breaches and defaults which would not be reasonably
likely to have a Material Adverse Effect nor will the performance by the
Company or the Trust of their obligations hereunder violate any rule,
regulation, order, or decree, applicable to the Trust, the Company or any
Subsidiary of any court or any regulatory body, administrative agency, or other
governmental body having jurisdiction over the Trust, the Company or any
Subsidiary or any of their respective properties, or any order of any court or
governmental agency or authority entered in any proceeding to which the Trust,
the Company or any Subsidiary was or is now a party or by which it is bound,
except those violations, if any, described in the Final Memorandum or which
would not be reasonably likely to have a Material Adverse Effect. No consent,
approval, filing, authorization, registration, qualification, or order,
including with or by any bank regulatory agency, is required for the execution,
delivery, and performance of this Agreement or the consummation of the
transactions contemplated by this Agreement (other than such that have been
obtained or made, or those which the failure to obtain or make would not be
reasonably likely to have a Material Adverse Effect), except for compliance
with the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the Blue Sky Laws applicable to
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the offering of the Capital Securities by the Initial Purchaser. This Agreement
constitutes a valid and binding obligation of the Company and the Trust and is
enforceable against the Company and the Trust in accordance with its terms.
(i) Other than as disclosed in the Final Memorandum, there
is no material litigation or governmental proceeding, action, or investigation
pending or, to the knowledge of the Trust or the Company, threatened, to which
the Trust, the Company or any Subsidiary is or may be a party or to which
property owned or leased by the Company or any Subsidiary is or may be subject,
or related to environmental or discrimination matters, or which questions the
validity of this Agreement or any action taken or to be taken pursuant hereto.
(j) Either the Company or a Subsidiary, as the case may be,
has good and marketable title in fee simple to all items of real property and
good title to all the personal properties and assets reflected as owned by the
Company or a Subsidiary in the Final Memorandum, in each case clear of all
liens, mortgages, pledges, charges, or encumbrances of any kind or nature except
those, if any, reflected in the financial statements described above (or
elsewhere in the Final Memorandum) or which are not material to the Company and
its Subsidiaries taken as a whole; all properties held or used by the Company or
a Subsidiary under leases, licenses, franchises or other agreements are held by
them under valid, existing, binding, and enforceable leases, franchises,
licenses, or other agreements with respect to which it is not in material
default.
(k) All documents delivered or to be delivered by the
Company, the Trust or any of their representatives in connection with the
issuance and sale of the Capital Securities were on the dates on which they were
delivered, or will be on the dates on which they are to be delivered, true,
complete, and correct in all material respects. The Incorporated Documents, when
they were or are filed with the Securities and Exchange Commission (the
"Commission"), as the case may be, complied or will comply, as the case may be,
in all material respects with the applicable requirements of the Securities Act
and the Exchange Act, as applicable.
(l) The Company and each Subsidiary have filed all
necessary federal and all state and foreign income and franchise tax returns
and paid all taxes shown as due thereon, except those being contested in good
faith; and no tax deficiency has been asserted or threatened against the
Company or any Subsidiary that would be reasonably likely to have a Material
Adverse Effect, except as described in the Final Memorandum.
(m) The Company or a Subsidiary owns or possesses adequate
rights to use all trademarks, service marks, trade names, trademark
registrations, servicemark registrations, copyrights, and licenses necessary for
the conduct of the business of the Company and the Subsidiaries or ownership of
their respective properties, and neither the Company nor any Subsidiary has
received notice of conflict with the asserted rights of others in respect
thereof which has not been resolved.
(n) The Company and each Subsidiary have in place and
effective such policies of insurance, with limits of liability in such amounts,
as are normal and prudent
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in the ordinary scope of business similar to that of the Company and such
Subsidiary in the respective jurisdiction in which they conduct business.
(o) The Company and each Subsidiary have and hold and, at
the Closing Date, are operating in compliance with, and have fulfilled and
performed all of their material obligations with respect to, all permits,
certificates, franchises, grants, easements, consents, licenses, approvals,
charters, registrations, authorizations, and orders (collectively, "Permits")
required under all laws, rules, and regulations in connection with their
respective businesses, and all of such Permits are in full force and effect
except where the failure to have, hold, fulfill or perform such obligations
would not be reasonably likely to have a Material Adverse Effect; and to the
Company's knowledge, there is no pending proceeding, and neither the Company nor
any Subsidiary has received notice of any threatened proceeding, relating to the
revocation or modification of any such Permits. Neither the Company nor any
Subsidiary is (by virtue of any action, omission to act, contract to which it is
a party or by which it is bound, or any occurrence or state of facts whatsoever)
in violation of any applicable federal, state, municipal, or local statutes,
laws, ordinances, rules, regulations and/or orders issued pursuant to foreign,
federal, state, municipal, or local statutes, laws, ordinances, rules, or
regulations (including those relating to any aspect of banking, bank holding
companies, environmental protection, occupational safety and health, and equal
employment practices) heretofore or currently in effect, except such violation
that has been fully cured or satisfied without recourse or that is not
reasonably likely to have a Material Adverse Effect.
(p) The deposits of BSB Bank & Trust Company are insured by
the Federal Deposit Insurance Corporation ("FDIC") up to the legal limits.
(q) The Final Memorandum, at the date hereof, does not and
at the Closing Date will not (and any amendment or supplement thereto, at the
date thereof and at the Closing Date, will not), contain any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company and the Trust make no
representation or warranty as to the information contained in or omitted from
the Final Memorandum, or any amendment or supplement thereto, in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of the Initial Purchaser specifically for inclusion therein.
(r) Neither the Company nor the Trust, nor any of their
Affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act
("Regulation D")), nor any person acting on its or their behalf has, directly or
indirectly, made offers or sales of any security, or solicited offers to buy any
security, under circumstances that would require the registration of any of the
Securities under the Securities Act.
(s) Neither the Company nor the Trust, nor any of their
Affiliates, nor any person acting on its or their behalf has engaged in any form
of general solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of any of the Securities. Neither the
Company nor any Affiliate has engaged in any distribution of any of the
Securities or entered into any agreement with respect to the
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distribution of any of the Securities except with the Initial Purchaser. The
Company has not offered or sold, and will not offer or sell, any of the
Securities, except as contemplated by this Agreement.
(t) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Securities Act.
(u) Neither the Company nor the Trust is an "investment
company," or an entity "controlled" by an "investment company," in each case
within the meaning of Section 3(c) of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), without regard to Section 3(c) of the
Investment Company Act.
(v) The Company is subject to and in full compliance with
the reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
(w) Neither the Company nor the Trust has paid or agreed to
pay to any person any compensation for soliciting another to purchase any of the
Securities (except as contemplated by this Agreement).
(x) 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. 3801, et seq. (the "Business Trust Act") with the trust power and
authority to own property and to conduct its business substantially as described
in the Final Memorandum and to enter into and perform its obligations under the
Operative Documents. The Trust is duly qualified to transact business as a
foreign entity and is in good standing in each jurisdiction in which such
qualification is necessary, except where the failure to so qualify or be in good
standing would not be reasonably likely to have a material adverse effect on the
financial condition, business, assets, properties, results of operation, or net
worth of the Trust. The Trust is not a party to or otherwise bound by any
agreement other than the Operative Documents. The Trust is and will, under
current law, be classified for federal income tax purposes as a grantor trust
and not as an association taxable as a corporation.
(y) The consolidated financial statements (including the
notes thereto) and schedules of the Company and its consolidated subsidiaries
appended to or included or incorporated by reference in the Final Memorandum
comply as to form in all material respects with the requirements of the
Securities Act and fairly present in all material respects, in accordance with
generally accepted accounting principles, the financial position of the Company
and its consolidated subsidiaries, and the results of operations and changes in
financial condition as of the dates and for the periods therein specified,
subject, in the case of interim financial statements, to normal, recurring
year-end adjustments. Such consolidated financial statements and schedules have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise noted
therein).
(z) Since the respective dates as of which information is
provided in the Final Memorandum, except as otherwise specifically stated
therein, there has been no
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material adverse change or development (resulting from litigation or otherwise)
with respect to the indebtedness of the Company or any Subsidiary (except as may
result from the closing of the transactions contemplated by this Agreement), or
the financial condition, capital stock, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business (a "Material Adverse Change").
(aa) The provisions of any employee benefit plan ("Benefit
Plan") as defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), in which the Company or any Subsidiary is a
participating employer are in compliance with ERISA and applicable provisions of
the Internal Revenue Code of 1986, as amended (the "Code"), in all material
respects, and neither the Company nor any Subsidiary is in violation of ERISA or
applicable provisions of the Code. The Company, each Subsidiary, or the plan
sponsor thereof, as the case may be, has duly and timely filed the reports
required to be filed by ERISA in connection with the maintenance of any Benefit
Plans in which the Company or any Subsidiary is a participating employer, and no
facts, including any "reportable event" as defined by ERISA and the regulations
thereunder, exist in connection with any Benefit Plan in which the Company or
any Subsidiary is a participating employer which might constitute grounds for
the termination of such plan by the Pension Benefit Guaranty Corporation or for
the appointment by the appropriate U.S. District Court of a trustee to
administer any such plan or result in a material liability to the Company or any
Subsidiary under Title IV of ERISA.
Any certificate signed by any officer of the Company and delivered
to the Initial Purchaser or to counsel for the Initial Purchaser pursuant to the
terms of this Agreement shall be deemed a representation and warranty by the
Company to the Initial Purchaser as to the matters covered thereby.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company and the Trust jointly and severally agree to sell to the Initial
Purchaser, and the Initial Purchaser agrees to purchase from the Company and
the Trust, the Capital Securities with an aggregate stated liquidation amount
of $30,000,000 at a purchase price equal to 100% of the stated liquidation
amount thereof. As compensation to the Initial Purchaser for its commitments
hereunder and in view of the fact that the proceeds from the sale of the
Capital Securities will be used to purchase Junior Subordinated Debentures of
the Company, the Company will pay, on the Closing Date concurrently with the
purchases and sales pursuant to the preceding sentence, to the Initial
Purchaser, a commission per Capital Security equal to 2.25% of the stated
liquidation amount thereof. Any payment pursuant to this Section 2 shall be
made by wire transfer in immediately available funds to the U.S. account
designated in writing by the party entitled to receive such payment.
3. Delivery and Payment. Delivery of and payment for the
Capital Securities shall be made at 9:30 AM, New York City time, on July 24,
1998, or such later date as the Initial Purchaser shall designate, which date
and time may be postponed by agreement between the Initial Purchaser, on the
one hand, and the Company and the Trust, on the other hand, (such date and time
of delivery and payment for the Capital Securities being herein
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called the "Closing Date").
Delivery of the Capital Securities shall be made at such location,
and in such names and denominations, as the Initial Purchaser shall designate at
least one business day in advance of the Closing Date. The Company and the Trust
agree to have the Capital Securities available for inspection and checking by
the Initial Purchaser in New York, New York, not later than 1:00 PM on the
business day prior to the Closing Date. The closing for the purchase and sale of
the Capital Securities shall occur at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or such other place as the parties
hereto shall agree.
4. Offering by the Initial Purchaser. It is understood that the
Initial Purchaser proposes to offer the Capital Securities for sale as set forth
in the Final Memorandum. The Initial Purchaser represents and warrants to and
agrees with the Company and the Trust that:
(a) It has not offered or sold, and will not offer or sell,
any of the Securities except to those it reasonably believes to be (i) qualified
institutional buyers (as defined in Rule 144A under the Securities Act) and
that, in connection with each such sale, it has taken or will take reasonable
steps to ensure that the purchaser of any Capital Securities is aware that such
sale is being made in reliance on Rule 144A or (ii) other institutional
"accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D).
(b) Neither it nor any person acting on its behalf has made
or will make offers or sales of any of the Securities by means of any form of
general solicitation or general advertising (within the meaning of Regulation
D).
(c) The Initial Purchaser will deliver to each purchaser of
the Capital Securities, in connection with its original placement of the Capital
Securities, a copy of the Final Memorandum as amended and supplemented at the
date of such delivery.
5. Covenants. The Company and the Trust covenant with the
Initial Purchaser that:
(a) The Company and the Trust will furnish to the Initial
Purchaser and to counsel for the Initial Purchaser, without charge, during the
period referred to in paragraph (c) below, as many copies of the Final
Memorandum and any amendments and supplements thereto as it may reasonably
request. The Company will pay the expenses of printing or other production of
all documents relating to the offering.
(b) Neither the Company nor the Trust will amend or
supplement the Final Memorandum, other than by filing documents under the
Exchange Act which are incorporated by reference therein, without the prior
written consent of the Initial Purchaser; provided, however, that, prior to the
completion of the distribution of the Capital Securities by the Initial
Purchaser (as determined by the Initial Purchaser), neither the Company nor the
Trust will file any document under the Exchange Act which is incorporated by
reference in the Final Memorandum unless, prior to such proposed filing, the
Company or the Trust has
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furnished the Initial Purchaser with a copy of such document for its review and
the Initial Purchaser has not reasonably objected to the filing of such
document, except that the Company can file any such document under the Exchange
Act which counsel to the Company shall advise the Company is required in order
to comply with applicable law. The Company and the Trust will promptly advise
the Initial Purchaser when any document filed under the Exchange Act which is
incorporated by reference in the Final Memorandum shall have been filed with the
Commission.
(c) If at any time prior to the completion of the
distribution of the Capital Securities by the Initial Purchaser (as determined
by the Initial Purchaser), any event occurs as a result of which the Final
Memorandum, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it should be necessary to amend or supplement the
Final Memorandum to comply with applicable law, the Company and the Trust will
promptly notify the Initial Purchaser of the same and, subject to the
requirements of paragraph (b) of this Section 5, will prepare and provide to the
Initial Purchaser pursuant to paragraph (a) of this Section 5 an amendment or
supplement which will correct such statement or omission or effect such
compliance.
(d) The Company and the Trust, in cooperation with the
Initial Purchaser, will arrange for the qualification of the Capital Securities
for sale by the Initial Purchaser under the laws of such jurisdictions as the
Initial Purchaser may designate and will maintain such qualifications in effect
so long as required for the sale of the Capital Securities; provided, however,
that neither the Company nor the Trust shall be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to general service of process or to taxation in
any jurisdiction where it is not now so subject. The Company or the Trust, as
the case may be, will promptly advise the Initial Purchaser of the receipt by
the Company or the Trust, as the case may be, of any notification with respect
to the suspension of the qualification of the Capital Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(e) On or prior to the second anniversary of the Closing
Date, neither the Company nor the Trust will, nor will either of them permit any
of its Affiliates to, resell any Capital Securities that have been acquired by
any of them.
(f) Neither the Company nor the Trust will, nor will either
of them permit any of its Affiliates, nor any person acting on its or their
behalf, to, directly or indirectly, make offers or sales of any security, or
solicit offers to buy any security, under circumstances that would require the
registration of any of the Securities under the Securities Act.
(g) Neither the Company nor the Trust will, nor will either
of them permit any of its Affiliates, nor any person acting on its or their
behalf, to, engage in any form of general solicitation or general advertising
(within the meaning of Regulation D) in
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connection with any offer or sale of the any of the Securities. Neither the
Company nor any Affiliates will engage in any distribution of any of the
Securities or enter into any agreement with respect to the distribution of any
of the Securities, except with the Initial Purchaser. The Company will not offer
or sell any of the Securities, except as contemplated by this Agreement.
(h) So long as any of the Securities are outstanding and
are "restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, each of the Company and the Trust will, during any period in
which it is not subject to and in compliance with Section 13 or 15(d) of the
Exchange Act or it is not exempt from such reporting requirements pursuant to
and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each
holder of such restricted securities and to each prospective purchaser (as
designated by such holder) of such restricted securities, upon the request of
such holder or prospective purchaser, any information required to be provided
by Rule 144A(d)(4) under the Securities Act. This covenant is intended to be
for the benefit of the holders, and the prospective purchasers designated by
such holders, from time to time of such restricted securities. The information
provided by the Company and the Trust pursuant to this Section 5(h) will not,
at the date thereof, contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(i) Each of the Company and the Trust will cooperate with
the Initial Purchaser and use its best efforts to permit the Capital Securities
to be eligible for clearance and settlement through the electronic book-entry
system of The Depository Trust Company.
(j) Neither the Company nor the Trust will, until 90 days
following the Closing Date, without the prior written consent of the Initial
Purchaser, offer, sell, contract to sell, grant any option to purchase or
otherwise dispose of, directly or indirectly (other than the Exchange
Securities), (i) any Capital Securities or other securities of the Trust other
than the sale of the Common Securities to the Company and the sale of the
Capital Securities to the Initial Purchaser, in each case as contemplated by
this Agreement, (ii) any securities that are substantially similar to the
Securities or (iii) any other securities convertible into, or exercisable or
exchangeable for, any of (i) or (ii), or enter into an agreement, or announce an
intention, to do any of the foregoing.
(k) Except as reflected in or contemplated by the Final
Memorandum, since the respective dates as of which information is given in the
Final Memorandum and prior to the Closing Date:
(i) neither the Company nor any Subsidiary will incur
any material liabilities or obligations, direct or contingent, or enter into any
material transaction not in the ordinary course of business without the prior
consent of the Initial Purchaser; and
(ii) neither the Company nor any Subsidiary will pay
or declare any dividend or other distribution with respect to its capital
stock and neither the
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Company nor any Subsidiary will become delinquent in the payment of principal or
interest on any outstanding debt obligations; and
(l) The Company agrees to pay (i) the costs incident to the
authorization, issuance, sale and delivery of the Capital Securities and any
taxes payable in that connection; (ii) the costs incident to the preparation and
printing of the Final Memorandum and any amendments or supplements thereto;
(iii) the costs of distributing the Final Memorandum and any amendments or
supplements thereto; (iv) the fees and expenses of qualifying the Capital
Securities under the securities laws of the several jurisdictions as provided in
Section 5(d) hereof and of preparing, printing and distributing Preliminary and
Supplemental Blue Sky Memoranda (including related reasonable fees and expenses
of counsel to the Initial Purchaser); (v) all fees and expenses, if any,
incurred in connection with the admission of such Securities for trading in
PORTAL; (vi) the fees and expenses of the Property Trustee (as defined in the
Trust Agreement), the Guarantee Trustee and the Indenture Trustee; and (vii)
all other costs and expenses incident to the performance of the obligations of
the Company and the Trust.
6. Conditions to the Obligations of the Initial Purchaser. The
obligations of the Initial Purchaser to purchase the Capital Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company and the Trust contained herein as of the date and time that this
Agreement is executed (the "Execution Time") and the Closing Date, to the
accuracy of the statements of the Company and the Trust made in any Capital
Securities pursuant to the provisions hereof, to the performance by the Company
and the Trust of their obligations hereunder and to the following additional
conditions:
(a) The Company shall have furnished to the Initial
Purchaser on the Closing Date, except as otherwise expressly provided below:
(i) An opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. counsel to
the Company, dated as of the Closing Date, in form and substance substantially
in the form attached hereto as Exhibit A.
(ii) The favorable opinion, dated the Closing Date, of
White & Case, counsel to the Property Trustee and the Delaware Trustee,
substantially in the form attached hereto as Exhibit B.
(iii) The favorable opinion, dated the Closing Date, of
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special Delaware counsel to the Company and
the Trust, substantially to the effect and in the form attached hereto as
Exhibit C.
(iv) The favorable opinion, dated the Closing Date, of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Delaware Trustee,
substantially to the effect and in the form attached hereto as Exhibit D.
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(v) The favorable opinion, dated the Closing Date, of
▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Initial Purchaser as to such matters as the
Initial Purchaser shall reasonably request.
In rendering such opinions specified in clause (a)(i), (ii) or (v)
above, counsel may rely upon an opinion or opinions, each dated the Closing
Date, of other counsel retained by them or the Company as to laws of any
jurisdiction other than the United States or the State of New York, provided
that (A) such reliance is expressly authorized by each opinion so relied upon
and a copy of each such opinion is delivered to the Initial Purchaser, and (B)
counsel shall state in their opinion that they believe that they and the Initial
Purchaser are justified in relying thereon. Insofar as such opinions involve
factual matters, such counsel may rely, to the extent such counsel deems proper,
upon certificates of officers of the Company, its subsidiaries and the Trust and
certificates of public officials.
(b) At the time this Agreement is executed and also on the
Closing Date, there shall be delivered to the Initial Purchaser a letter
addressed to the Initial Purchaser from PricewaterhouseCoopers LLP, the
Company's independent accountants, the first letter to be dated the date of this
Agreement and the second letter to be dated the Closing Date, which shall be in
form and substance reasonably satisfactory to the Initial Purchaser and shall
contain information as of a date within five days of the date of such letter.
There shall not have been any change set forth in any letter referred to in this
subsection (b) that makes it impracticable or inadvisable in the reasonable
judgment of the Initial Purchaser proceed with the public offering or purchase
of the Capital Securities as contemplated hereby.
(c) On the Closing Date, a certificate signed by the
Chairman of the Board, the President, a Vice Chairman of the Board or any
Executive or Senior Vice President and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the signers
of such certificate have carefully examined the Final Memorandum and this
Agreement and that:
(i) The representations and warranties of each of the
Company and the Trust in this Agreement are true and correct in all material
respects on and as of the Closing Date, with the same effect as if made on the
Closing Date, and each of the Company and the Trust has complied in all material
respects with all the agreements and satisfied in all material respects all the
conditions on its part to be performed or satisfied at or prior to the Closing
Date; and
(ii) Each of the respective signatories of the
certificate has carefully examined the Final Memorandum, and any amendments or
supplements thereto, and, to his knowledge, such documents contain all material
statements and information required to be made therein, and neither the Final
Memorandum nor any amendment or supplement thereto includes any untrue statement
of a material fact or omits 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 and, since the date of
the Final Memorandum, no
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event has occurred that was required to be set forth in an amended or
supplemented Final Memorandum that has not been so set forth; provided, however,
that no
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representation need be made as to information contained in or omitted from the
Final Memorandum or any amendment or supplement in reliance upon and in
conformity with written information furnished to the Company and the Trust by
the Initial Purchaser; and
(iii) Since the date of the Final Memorandum, there has
not been any Material Adverse Change or a development involving a prospective
Material Adverse Change of the Company and its Subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of business,
except as disclosed in the Final Memorandum as heretofore amended or (but only
if the Initial Purchaser expressly consents thereto in writing) as disclosed in
an amendment or supplement thereto delivered to the Initial Purchaser after the
execution of this Agreement; since such date and except as so disclosed or in
the ordinary course of business, neither the Company nor any Subsidiary has
incurred any liability or obligation, direct or indirect, or entered into any
transaction that is material to the Company or such Subsidiary, as the case may
be, not contemplated in the Final Memorandum; since such date and except as so
disclosed there has not been any change in the outstanding capital stock of the
Company, or any change that is material to the Company and its Subsidiaries
taken as a whole in the short-term debt or long-term debt of the Company or any
Subsidiary; since such date and except as so disclosed, neither the Company nor
any of its Subsidiaries have incurred any material contingent obligations, and
no material litigation is pending or, to their knowledge threatened against the
Company or any Subsidiary; since such date and except as so disclosed, no labor
problem exists or is imminent with employees of the Company or any Subsidiary
that would be reasonably likely to have a Material Adverse Effect; and, since
such date and except as so disclosed, neither the Company nor any of its
Subsidiaries have sustained any material loss or interference from any strike,
fire, flood, windstorm, accident or other calamity (whether or not insured) or
from any court or governmental action, order, or decree.
(d) Subsequent to the Execution Time, there shall not have
been any decrease in the ratings of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Securities Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such
ratings that does not indicate the direction of a possible change.
(e) Prior to the Closing Date, the Company and the Trust
shall have furnished to the Initial Purchaser such further information,
certificates and documents as the Initial Purchaser may reasonably request.
(f) At the Closing Date, each of the Operative Documents
shall have been duly authorized, executed and delivered by each party thereto,
and copies thereof shall have been delivered to the Initial Purchaser.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions, certificates and documents mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Initial Purchaser and counsel for the
Initial Purchaser, this Agreement and all obligations of the Initial Purchaser
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Initial
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Purchaser. Notice of such cancellation shall be given to the Company and the
Trust in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the offices of counsel for the Initial Purchaser on the Closing
Date.
7. Reimbursement of Initial Purchaser's Expenses. If the sale
of the Capital Securities provided for herein is terminated or indefinitely
suspended because any condition to the obligations of the Initial Purchaser set
forth in Section 6 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company or the Trust to perform any agreement
herein or comply with any provision hereof other than by reason of a default by
the Initial Purchaser, the Company will reimburse the Initial Purchaser upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by it in connection
with the proposed purchase and sale of the Capital Securities. Any such
termination or suspension shall be without liability of any party to the other
except that the provisions of this Section 7, and Sections 5(k) and 8 shall
remain effective and shall apply.
8. Indemnification and Contribution. (a) The Company and the
Trust agree jointly and severally to indemnify and hold harmless the Initial
Purchaser, the directors, officers, employees and agents of the Initial
Purchaser and each person who controls the Initial Purchaser within the meaning
of either the Securities Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Final Memorandum, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state 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, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company and the
Trust will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company and the Trust by or on behalf of the Initial Purchaser specifically
for inclusion therein; and provided, further, that the Company and the Trust
will not be liable under the provisions of this Section 8 with respect to the
Final Memorandum to the extent that any such loss, claim, damage or liability
results from the fact that the Initial Purchaser sold Capital 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 Final Memorandum (as then amended or
supplemented if the Company shall have furnished such amendments or supplements
thereto to the Initial Purchaser prior to the written confirmation of such sale)
if the Final Memorandum (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or liability. This indemnity
agreement will be in addition to any liability which the
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Company or the Trust may otherwise have.
(b) The Company agrees to indemnify the Trust against all
loss, liability, claim, damage and expense whatsoever, as due from the Trust
under Section 8(a) hereunder.
(c) The Initial Purchaser agrees to indemnify and hold
harmless the Company and the Trust, each of their directors, trustees, officers
and each person who controls the Company or the Trust within the meaning of
either the Securities Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company and the Trust to the Initial Purchaser, but
only with reference to written information relating to the Initial Purchaser
furnished to the Company and the Trust by or on behalf of the Initial Purchaser
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
the Initial Purchaser may otherwise have. The Company and the Trust acknowledge
that the statements set forth in the final paragraph of the cover page, on the
inside front cover regarding Stabilization, and the statements regarding the
Initial Purchaser set forth in the second, third, sixth and seventh paragraphs
under the heading "Plan of Distribution" in the Final Memorandum constitute the
only information furnished in writing by or on behalf of the Initial Purchaser
for inclusion in the Final Memorandum, and the Initial Purchaser confirms that
such statements are correct.
(d) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve the indemnifying party from liability under paragraph (a), (b)
or (c) above unless and to the extent that the indemnifying party did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a), (b)
or (c) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of one such separate counsel (in
addition to local counsel) if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to
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the indemnifying party, (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph
(a), (b) or (c) of this Section 8 is unavailable to or insufficient to hold
harmless any indemnified party for any reason, the Company, the Trust and the
Initial Purchaser agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company, the Trust and the Initial Purchaser may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Trust and by the Initial Purchaser from the offering of the
Capital Securities; provided, however, that in no case shall the Initial
Purchaser be responsible for any amount in excess of the underwriting discount
or commission applicable to the Capital Securities purchased by the Initial
Purchaser hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company, the Trust and the Initial
Purchaser shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company and the
Trust and of the Initial Purchaser in connection with the statement or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company and the Trust shall be deemed
to be equal to the total net proceeds from the offering of the Capital
Securities (before deducting expenses), and benefits received by the Initial
Purchaser shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth in the Final Memorandum. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company, the Trust or the
Initial Purchaser. The Company, the Trust and the Initial Purchaser agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (e), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls the
Initial Purchaser within the meaning of either the Securities Act or the
Exchange Act and each director, officer, employee and agent of the Initial
Purchaser shall have the same rights to contribution as the Initial Purchaser,
and each person who controls the Company or the Trust within the meaning of
either the Securities Act or the Exchange Act, each officer of the Company and
each director of the Company and each trustee or administrator of the Trust
shall have the same rights to contribution as the Company and the
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Trust, subject in each case to applicable terms and conditions of this paragraph
(e).
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Initial Purchaser, by notice given to the
Company and the Trust prior to delivery of and payment for the Capital
Securities, if prior to such time (i) trading in any of the Company's securities
shall have been suspended by the Commission or NASDAQ or trading in securities
generally on the NASDAQ National Market System shall have been suspended or
limited or minimum prices shall have been established on the NASDAQ National
Market System, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the judgment of the Initial
Purchaser, impracticable or inadvisable to proceed with the offering or delivery
of the Capital Securities as contemplated by the Final Memorandum (exclusive of
any supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company and the Trust or their respective officers or trustees and of the
Initial Purchaser set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
the Initial Purchaser, the Company or the Trust or any of the officers,
directors or trustees, administrators or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Capital
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Initial Purchaser, will be
mailed, delivered or telegraphed and confirmed to it at Two World Trade Center,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; if sent to
the Company or the Trust, will be mailed, delivered or telegraphed and confirmed
to it at ▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telephone number
(▇▇▇) ▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
12. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO PRINCIPLES OF CONFLICTS OF LAW.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Trust and the Initial Purchaser.
Very truly yours,
BSB BANCORP, INC.
By:
-------------------------
Name:
Title:
BSB CAPITAL TRUST I
By:BSB BANCORP, INC.
as Depositor
By:
-------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
By:
--------------------------
Name:
Title:
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EXHIBIT A
The opinion of special counsel to the Company to be delivered
pursuant to Section 6(a)(i) of the Purchase Agreement shall be substantially to
the effect that:
1. The Company is a corporation existing and in good standing
under the laws of the State of Delaware with requisite corporate power and
authority to own its properties and conduct its business as described in the
Final Memorandum, except for such power and authority the absence of which would
not have a material adverse effect on the Company, and is registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended.
2. The Company and each Subsidiary have been duly incorporated
or organized and are validly existing as corporations or banking associations
in good standing under the laws of the jurisdiction of organization, with full
corporate power and authority to own, lease, and operate their respective
properties and conduct their respective businesses as described in the Final
Memorandum; the Company and each Subsidiary are qualified to do business as
foreign corporations under the corporation laws of each jurisdiction in which
the Company or such Subsidiary, as the case may be, owns or leases properties,
has an office, or in which business is conducted and such qualification is
required, except where the failure to so qualify would not have a material
adverse effect.
3. The Company has full corporate power and authority to
execute, deliver, and perform the Purchase Agreement; the Purchase Agreement
has been duly authorized, executed and delivered by the Company, and
constitutes a legal, valid, and binding obligation of the Company and is
enforceable against each of the Company and the Trust in accordance with its
terms.
4. The Trust Agreement has been duly authorized, executed and
delivered by the Company, and is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
5. The Guarantee Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.
6. The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust Indenture
Act, and is a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms.
7. The Junior Subordinated Debentures have been duly authorized,
executed and delivered by the Company and when duly authenticated in accordance
with the Indenture and delivered and paid for in accordance with the Junior
Subordinated Debenture
A-1
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Purchase Agreement to be dated as of July __, 1998, by and between the Company
and the Trust, will be valid and binding obligations of the Company, entitled to
the benefits of the Indenture and enforceable against the Company in accordance
with their terms.
8. The Trust is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
9. The statements set forth in the Final Memorandum under the
captions "Supervision, Regulation and Other Matters," "Description of Capital
Securities," "Description of Junior Subordinated Debentures," "Description of
Guarantee" and "Relationship Among the Capital Securities, the Junior
Subordinated Debentures and the Guarantee," insofar as they purport to describe
legal conclusions or provisions of the laws referred to therein, fairly
summarize the legal matters described therein.
10. To the extent that the summary set forth in the Final
Memorandum under the caption "Certain Federal Income Tax Consequences"
constitutes matters of law or purports to describe certain provisions of the
U.S. federal income tax laws, it is an accurate summary in all material
respects of the matters discussed therein, subject to the assumptions and
conditions described therein.
11. Neither the issue and sale of the Capital Securities or the
Junior Subordinated Debentures, the execution and delivery of the Operative
Documents by the Company or the Trust, the consummation of any other of the
transactions contemplated in any Operative Document nor the fulfillment of the
terms thereof will conflict with, result in a breach or violation of, or
constitute a default under any New York or United States law or regulation
applicable to the Company or the Trust (other than state securities laws (as to
which such counsel need express no opinion)).
12. Such counsel has no reason to believe that the Final
Memorandum (other than the financial statements and financial and statistical
data included therein, as to which no opinion need be rendered), at the
Execution Time, contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements contained
therein, in the light of the circumstances under which they were made not
misleading.
13. To such counsel's knowledge, except as disclosed in the Final
Memorandum, there are no material legal or governmental proceedings pending to
which the Company or any Subsidiary is a party or of which any property of the
Company or any Subsidiary is the subject which are required to be disclosed in
the Final Memorandum or which would affect the consummation of the transactions
contemplated in the Purchase Agreement, the Indenture or the Capital Securities;
and to such counsel's knowledge there are no proceedings which are threatened by
governmental authorities or others.
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23
14. To such counsel's knowledge there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described in the Final Memorandum other than those described
therein or incorporated by reference thereto, and such instruments as are
summarized in the Final Memorandum are fairly summarized in all material
respects.
15. No approval, authorization, consent, registration,
qualification or other order of any public board or body is required in
connection with the execution and delivery of the Purchase Agreement, the Trust
Agreement, the Guarantee Agreement, and the Indenture or the issuance and sale
of the Capital Securities or the consummation by the Company of the other
transactions contemplated by the Purchase Agreement, the Trust Agreement, the
Guarantee Agreement, or the Indenture, except such as have been obtained under
the Securities Act, the Exchange Act and the Trust Indenture Act or such as may
be required under the blue sky or securities laws of various states in
connection with the offering and sale of the Capital Securities (as to which
such counsel need express no opinion).
16. The execution and delivery of the Purchase Agreement, the
Trust Agreement, the Guarantee Agreement, and the Indenture, the issue and sale
of the Capital Securities and the Junior Subordinated Debentures, the compliance
by the Company with the provisions of the Capital Securities, the Junior
Subordinated Debentures, the Indenture and the Purchase Agreement and the
consummation of the transactions herein and therein contemplated will not
constitute a breach of, or default under, the articles of incorporation or
by-laws of the Company or a breach or default under any contract, indenture,
mortgage, loan agreement, note, lease or other instrument known to such counsel
to which either the Company or any Subsidiary is a party or by which either of
them or any of their respective properties may be bound except for such breaches
as would not have a material adverse effect on the Company and its Subsidiaries
considered as one enterprise, nor will such action result in a violation on the
part of the Company or any Subsidiary of any applicable law or regulation or of
any administrative, regulatory or court decree known to such counsel.
17. None of the Trust Agreement, the Indenture or the Guarantee
Agreement requires qualification under the Trust Indenture Act of 1939, as
amended, for the offer and sale of the Capital Securities to the Initial
Purchaser or the initial reoffer and resale of the Capital Securities by the
Initial Purchaser solely in the manner contemplated by the Offering Memorandum
and the Purchase Agreement.
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EXHIBIT B
The opinion of counsel to the Property Trustee and the Delaware
Trustee to be delivered pursuant to Section 6(a)(ii) of the Purchase Agreement
shall be substantially to the effect that:
1. The Property Trustee is duly incorporated and is validly
existing in good standing as a banking corporation with trust powers under the
laws of the State of New York.
2. The Indenture Trustee has the requisite power and authority
to execute, deliver and perform its obligations under the Indenture, and has
taken all necessary corporate action to authorize the execution, delivery and
performance by it of the Indenture.
3. The Guarantee Trustee has the requisite power and authority
to execute, deliver and perform its obligations under the Guarantee Agreement,
and has taken all necessary corporate action to authorize the execution,
delivery and performance by it of the Guarantee Agreement.
4. The Property Trustee has the requisite power and authority to
execute and deliver the Trust Agreement, and has taken all necessary corporate
action to authorize the execution and delivery of the Trust Agreement.
5. Each of the Trust Agreement, the Indenture and the Guarantee
Agreement has been duly executed and delivered by the Property Trustee, the
Indenture Trustee and the Guarantee Trustee, respectively, and constitutes a
legal, valid and binding obligation of the Property Trustee, the Indenture
Trustee and the Guarantee Trustee, respectively, enforceable against the
Property Trustee, the Indenture Trustee and the Guarantee Trustee, respectively
in accordance with its respective terms, except that certain payment obligations
may be enforceable solely against the assets of the Trust and except that such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation, fraudulent conveyance and transfer or other similar
laws affecting the enforcement of creditors' rights generally, and by general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and by the
effect of applicable public policy on the enforceability of provisions relating
to indemnification or contribution.
6. The Subordinated Debentures delivered on the date hereof have
been duly authenticated by the Indenture Trustee in accordance with the terms of
the Indenture.
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EXHIBIT C
The opinion of counsel, as special Delaware counsel to the Company
and the Trust to be delivered pursuant to Section 6(a)(iii) of the Purchase
Agreement shall be substantially to the effect that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, and all
filings required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust under the Delaware
Business Trust Act have been made.
2. Under the Delaware Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority to own its property and
to its conduct its business, all as described in the Final Memorandum under the
caption "BSB Capital Trust I."
3. The Trust Agreement constitutes a valid and binding
obligation of the Company and the Trustees, and is enforceable against the
Company and the Trustees, in accordance with its terms.
4. Under the Delaware Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority (i) to execute and
deliver, and to perform its obligations under, the Purchase Agreement, and (ii)
to issue and perform its obligations under the Capital Securities and the
Common Securities.
5. Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Trust of the Purchase Agreement,
and the performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary trust action on the part of the Trust.
6. The Capital Securities have been duly authorized by the Trust
Agreement and are duly and validly issued and, subject to the qualifications set
forth herein, fully paid and nonassessable undivided beneficial interests in the
assets of the Trust and are entitled to the benefits of the Trust Agreement. The
Holders, as beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware. We note that the Holders may be obligated to make payments and
provide indemnity and/or security as set forth in the Trust Agreement.
7. Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Capital Securities and Common Securities is not
subject to preemptive rights.
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8. The Common Securities have been duly authorized by the Trust
Agreement and are duly and validly issued undivided beneficial interests in the
assets of the Trust and are entitled to the benefits of the Trust Agreement.
9. The issuance and sale by the Trust of the Capital Securities
and Common Securities, the purchase by the Trust of the Junior Subordinated
Debentures, the execution, delivery and performance by the Trust of the Purchase
Agreement, the consummation by the Trust of the transactions contemplated by the
Purchase Agreement and the compliance by the Trust with its obligations
thereunder are not prohibited by (i) any of the provisions of the Certificate of
Trust or the Trust Agreement or (ii) any applicable Delaware statute or
administrative regulation.
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EXHIBIT D
The opinion of counsel, as special Delaware counsel to Delaware
Trustee to be delivered pursuant to Section 6(a)(iv) of the Purchase Agreement
shall be substantially to the effect that:
1. Delaware Trustee is duly incorporated and is validly existing
in good standing as a banking corporation with trust powers under the laws of
the State of Delaware.
2. The Delaware Trustee has the requisite power and authority to
execute and deliver the Trust Agreement, and has taken all necessary corporate
action to authorize the execution and delivery of the Trust Agreement.