Exhibit 1
$[22,000,000]
(AGGREGATE LIQUIDATION AMOUNT)
STERLING BANCORP TRUST I
[ ]% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $10.00 PER PREFERRED SECURITY)
UNDERWRITING AGREEMENT
[ ], 2002
[ ]:00 p.m.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, INCORPORATED
▇▇▇▇, ▇▇▇▇ & CO., LLC
As Representatives of the
Several Underwriters Identified
In Schedule I Hereto,
c/▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
SECTION 1. INTRODUCTION. Sterling Bancorp, a New York corporation and
bank holding company and financial holding company under the Bank Holding
Company Act of 1956, as amended (the "Company"), and Sterling Bancorp Trust I, a
statutory business trust created under the Delaware Business Trust Act (the
"Delaware Act") (the "Trust" and, together with the Company, sometimes the
"Offerors"), propose, upon the terms and subject to the conditions set forth in
this underwriting agreement (this "Agreement") that the Trust issue and sell to
the several underwriters named in Schedule I hereto (each an "Underwriter" and,
collectively, the "Underwriters"), for which ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated
and ▇▇▇▇, ▇▇▇▇ & Co., LLC are acting as representatives (the "Representatives"),
with respect to the proposed issuance and sale by the Trust of its [ ]%
Preferred Securities, with a liquidation amount of $10.00 per Preferred Security
(the "Securities"), the terms of which are more fully described in the
Prospectus (as hereinafter defined). Such Securities will be issued pursuant to
the Amended and Restated Trust Agreement, dated [ ], 2002 (the "Trust
Agreement") among the Company as Depositor and The Bank of New York (Delaware),
as Delaware Trustee and The Bank of New York, as Property Trustee. The Preferred
Securities will be guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and
otherwise (the "Guarantee") pursuant to and to the extent provided by a
Guarantee Agreement (the "Guarantee Agreement"), dated [ ], 2002, between the
Company and The Bank of New York, as Guarantee Trustee (the "Guarantee
Trustee").
The entire proceeds of the sale of the Securities to be issued
pursuant hereto and the common securities of the Trust (the "Common Securities")
will be used to purchase an equivalent dollar amount of junior subordinated
debentures (the "Subordinated Debentures") to be issued by the Company pursuant
to a Junior Subordinated Indenture (the "Indenture"), dated [ ], 2002 between
the Company and The Bank of New York, as Debenture Trustee (the "Debenture
Trustee").
The 2,200,000 Securities proposed to be sold by the Trust are
referred to herein as the "Firm Securities." The Offerors also propose to grant
to the Underwriters an option to purchase up to an additional 300,000
Securities, referred to herein as the "Additional Securities" (and, together
with the Firm Securities, the "Preferred Securities"), if requested by the
Underwriters as provided in Section 3 hereof.
The registration statement on Form S-3 (file nos. 333-[ ] and
333-[ ] under the Securities Act of 1933, as amended (the "Securities Act") with
respect to the Preferred Securities, the Subordinated Debentures and the
Guarantee, as amended at the time it is, or was declared effective by the
Securities and Exchange Commission (the "Commission"), including a form of
prospectus, and, in the event of any amendment thereto after the effective date,
such registration statement as so amended (but only from and after the
effectiveness of such amendment), including a registration statement (if any)
filed pursuant to Rule 462(b) of the rules and regulations of the Commission
under the Securities Act (the "Securities Act Rules and Regulations") increasing
the size of the offering registered under the Securities Act and information (if
any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rules 430A(b) and 434(d) of the Securities Act Rules
and Regulations, is hereinafter called the "Registration Statement." The
prospectus included in the Registration Statement at the time it is, or was
declared effective by the Commission and any related prospectus supplement, or
supplements relating to the Preferred Securities, the Guarantee or the
Subordinated Debentures as previously filed with or promptly hereafter filed
with the Commission pursuant to Rule 424(b) of the Securities Act Rules and
Regulations, is hereinafter called the "Prospectus", except that if any
prospectus filed by the Offerors with the Commission pursuant to Rule 424(b) of
the Securities Act Rules and Regulations or any other such prospectus provided
to the Underwriters by the Offerors for use in connection with the offering of
the Preferred Securities (whether or not required to be filed by the Offerors
with the Commission pursuant to Rule 424(b) of the Securities Act Rules and
Regulations) differs from the prospectus on file at the time the Registration
Statement is, or was declared effective by the Commission, the term "Prospectus"
shall refer to such differing prospectus from and after the time such prospectus
is filed with the Commission or transmitted to the Commission for filing
pursuant to such Rule 424(b) or from and after the time it is first provided to
the Underwriters by the Offerors for such use. The
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term "Preliminary Prospectus" as used herein means the preliminary prospectus
included in any Registration Statement prior to the time it becomes, or became,
effective under the Securities Act and any prospectus subject to completion as
described in Rule 430A of the Securities Act Rules and Regulations. Any
reference to the term "Registration Statement," the Prospectus and the
Preliminary Prospectus shall include the documents incorporated therein by
reference. The terms "supplement" and "amendment" or "amend" as used in this
Agreement shall include all documents subsequently filed by the Company with the
Commission pursuant to the Exchange Act that are deemed to be incorporated by
reference in the Prospectus.
SECTION 2. REPRESENTATIONS, WARRANTIES, AND AGREEMENTS
OF THE OFFERORS.
(a) The Offerors, jointly and severally, represent and warrant
to, and agree with, each of the Underwriters, as of the date hereof, as of the
Closing Date and as of each Option Closing Date (as each such term is defined in
Section 5 hereof), if any, (except in respect of such representations as are
specified as being made as of a particular date) as follows:
(i) The Registration Statement has been prepared by the
Offerors in conformity in all material respects with the requirements of the
Securities Act, the Securities Act Rules and Regulations, the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act") and the rules and
regulations of the Commission under the Trust Indenture Act (the "Trust
Indenture Act Rules and Regulations") and has been filed with the Commission.
The Offerors have prepared and filed such amendments thereto, if any, and such
amended preliminary prospectuses, if any, as may have been required to the date
hereof, and will file such additional amendments thereto and such amended
prospectuses as may hereafter be required. If the Offerors have elected to rely
upon Rule 462(b) of the Securities Act Rules and Regulations to increase the
size of the offering registered under the Securities Act, the Offerors will
prepare and file with the Commission a registration statement with respect to
such increase pursuant to such Rule.
If the Offerors have elected not to rely upon Rule 430A of the
Securities Act Rules and Regulations, the Offerors have prepared and will
promptly file an amendment to the Registration Statement and an amended
prospectus if necessary to complete the Prospectus. If the Offerors have elected
to rely upon Rule 430A of the Securities Act Rules and Regulations, they will
prepare and file a prospectus pursuant to Rule 424(b) that discloses the
information previously omitted from the prospectus in reliance upon Rule 430A.
Copies of the Registration Statement, any amendment thereto and
any Preliminary Prospectus filed with the Commission, including the exhibits,
financial statements and schedules thereto, have been delivered by the Offerors
to the Representatives on behalf of the Underwriters.
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(ii) If the Registration Statement or any post-effective
amendment thereto has been declared effective, the Commission has not issued any
stop order suspending the effectiveness thereof or any order preventing or
suspending the use of any Preliminary Prospectus, the Prospectus, the
Registration Statement or any amendment or supplement thereto, and the
Commission has not instituted or threatened to institute any proceedings with
respect to such an order.
(iii) The Registration Statement, on the date it was or is
declared effective by the Commission, each Preliminary Prospectus, on the date
of the filing thereof with the Commission, and the Prospectus and any amendment
or supplement thereto, on the date of filing thereof with the Commission (or if
not filed, on the date provided by the Offerors to the Underwriters in
connection with offering and sale of the Preferred Securities) at the Closing
Date and at each Option Closing Date, if any, conformed or will conform in all
material respects with the requirements of the Securities Act, the Securities
Act Rules and Regulations, the Trust Indenture Act and the Trust Indenture Act
Rules and Regulations. The Registration Statement, on the date it was or is
declared effective by the Commission, upon the filing or first delivery to the
Underwriters of the Prospectus (or any supplement to the Prospectus) at the
Closing Date and at the Option Closing Date, if any, did not and will not
contain an untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; each Preliminary Prospectus on the date of the filing thereof with
the Commission, and the Prospectus and any amendment or supplement thereto on
the date of filing thereof with the Commission (or if not filed, on the date
provided by the Offerors to the Underwriters in connection with the offering and
sale of the Preferred Securities) at the Closing Date and at each Option Closing
Date, if any, did not and will not include an untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that the
foregoing representation and warranty shall not apply to (i) any statements or
omissions made in reliance upon, and in conformity with, information furnished
in writing to the Offerors by an Underwriter through the Representatives or by
the Delaware Trustee, the Property Trustee, the Guarantee Trustee or the
Debenture Trustee expressly for use therein (as identified in Section 9(b)
hereof) and (ii) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification under the Trust Indenture Act. As of
the date that the Registration Statement was or is declared effective by the
Commission, as of the date that each Preliminary Prospectus was filed with the
Commission, as of the date that the Prospectus and any amendment or supplement
thereto was or is filed with the Commission (or if not filed, on the date
provided by the Offerors to the Underwriters in connection with offering and
sale of the Preferred Securities), at the Closing Date and at each Option
Closing Date, if any, no event has or will have occurred which should have been
set forth in an amendment or supplement to the Registration Statement or the
Prospectus which has not then been set forth in such an amendment or supplement.
The documents incorporated by reference in each Preliminary Prospectus on the
date of the filing thereof with the Commission, and the Prospectus and any
amendment or
4
supplement thereto on the date of filing thereof with the Commission (or if not
filed, on the date provided by the Company to the Underwriters in connection
with the offering and sale of the Securities) or from which information is so
incorporated by reference, including any amendments or supplements thereto, when
such documents became effective or were filed with the Commission, as the case
may be, complied in all material respects with the requirements of the
Securities Act, the Securities Act Rules and Regulations, the Securities
Exchange Act of 1934, as amended, (the "Exchange Act"), the rules and
regulations of the Commission under the Exchange Act (the "Exchange Act Rules
and Regulations"), the Trust Indenture Act, and the Trust Indenture Act Rules
and Regulations, as applicable, and any further documents so filed and
incorporated by reference, including any amendments or supplements thereto, when
such documents become effective or are filed with the Commission, as the case
may be, will comply in all material respects with the requirements of the
Securities Act, the Securities Act Rules and Regulations, the Exchange Act, the
Exchange Act Rules and Regulations, the Trust Indenture Act, and the Trust
Indenture Act Rules and Regulations, as applicable; no such incorporated
document contained or will contain an untrue statement of material fact or
omitted or will omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and when read together
with the other information in each Preliminary Prospectus on the date of the
filing thereof with the Commission, and the Prospectus and any amendment or
supplement thereto on the date of filing thereof with the Commission (or if not
filed, on the date provided by the Company to the Underwriters in connection
with the offering and sale of the Securities), at the Closing Date and at the
Option Closing Date, if any, did not or will not, as the case may be, include an
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of New
York, its jurisdiction of incorporation, and is not required to be qualified as
a foreign corporation for the transaction of business under the laws of any
other jurisdiction in which it owns or leases properties or conducts any
business, and has all power and authority necessary to own or hold its
properties and assets and to conduct the business in which it engages as
described in or contemplated by the Registration Statement and the Prospectus,
except where the failure to so qualify or be in good standing would not result
in Material Adverse Effect. The Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended.
(v) Each of Sterling Banking Corporation, Sterling National
Bank, Sterling Factors Corporation, Sterling National Mortgage Company, Inc.,
Sterling National Servicing, Inc., Sterling Trade Services, Inc., Sterling
National Asia Limited, Hong Kong, Sterling Holding Company of Virginia, Inc. and
Sterling Real Estate Holding Company Inc. (the "Subsidiaries" and each, a
"Subsidiary") has been duly incorporated and is validly existing as a
corporation or national banking association, as the case may be, in good
standing under the laws of the jurisdiction in which it is
5
organized or chartered, as the case may be, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, and has all power
and authority necessary to own or hold its properties and assets and to conduct
the business in which it engages as described in or contemplated by the
Registration Statement and the Prospectus, except where failure to so qualify or
be in good standing would not result in a Material Adverse Effect as hereinafter
defined. All eligible deposit accounts issued by Sterling National Bank (the
"Bank Subsidiary" and, with the Non-bank Subsidiaries, the "Subsidiaries" and,
individually, a "Subsidiary") are insured by the Federal Deposit Insurance
Corporation (the "FDIC") up to the maximum applicable amount in accordance with
applicable law and the rules and regulations of the FDIC and no proceedings for
the termination or revocation of such insurance are pending or, to the best
knowledge of the Offerors, threatened. Except for the Bank Subsidiary, no other
Subsidiary issues or has any outstanding deposit accounts that are eligible
under applicable law and the rules and regulations of the FDIC for FDIC
insurance. The Subsidiaries are all of the direct and indirect subsidiaries of
the Company. The Bank Subsidiary and Sterling Financial Services Company, Inc.
constitute the only "significant subsidiaries" of the Company as defined in Rule
1-02 of Regulation S-X of the Commission.
(vi) The Trust has been duly created and is validly existing
in good standing as a statutory business trust under the Delaware Act, is not
required to be qualified as a foreign corporation for the transaction of
business under the laws of any other jurisdiction and has all power and
authority necessary to own or hold its properties and assets and to conduct the
business in which it is engaged as described in or contemplated by the
Registration Statement and the Prospectus. The Trust has conducted, and will
conduct, no business other than as contemplated by the Trust Agreement and as
described in or contemplated by the Registration Statement and the Prospectus.
The Trust is not a party to or otherwise bound by any agreement other than those
described in the Prospectus. At and after such time as the Company has purchased
Common Securities equal to at least 3% of the total equity of the Trust, the
Trust will be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation and the Trust
is and will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(vii) The Company has all power and authority necessary to
enter into, execute, deliver and perform its obligations under and with respect
to the Indenture, the Trust Agreement and the Guarantee Agreement. All necessary
corporate proceedings of the Company have been duly taken to authorize the
execution, delivery and performance by the Company of its obligations under the
Indenture, the Trust Agreement and the Guarantee Agreement. The Indenture, the
Trust Agreement and the Guarantee Agreement have been duly authorized, and when
executed and delivered by the Company, will be the valid and binding obligations
of the Company, enforceable against the Company, in accordance with their
respective terms (except as such
6
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to or
affecting the enforcement of creditors' rights and by the application of
equitable principles relating to the availability of remedies, and except as
rights to indemnity or contribution may be limited by federal or state
securities laws and the public policy underlying such laws). The Indenture has
been or will be duly qualified under the Trust Indenture Act. The Indenture, the
Trust Agreement and the Guarantee Agreement conform or will conform in all
material respects to the descriptions thereof contained in the Registration
Statement and the Prospectus and are in substantially the forms filed as
exhibits to the Registration Statement.
(viii) The Company has all power and authority necessary to
enter into, execute, deliver and perform its obligations under and with respect
to the Subordinated Debentures. All necessary corporate proceedings of the
Company have been duly taken to authorize the execution, issuance, delivery and
performance by the Company of its obligations under the Subordinated Debentures.
The Subordinated Debentures have been duly authorized and, when issued by the
Company against payment therefor, as contemplated by the Prospectus, will be the
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application relating to or affecting the enforcement of creditors'
rights and by the application of equitable principles relating to the
availability of remedies, and except as rights to indemnity or contribution may
be limited by federal or state securities laws and the public policy underlying
such laws) and will be in the form contemplated by, and entitled to the benefits
provided by, the Indenture. The Subordinated Debentures conform or will conform
in all material respects to the description thereof contained in the
Registration Statement and the Prospectus.
(ix) The Trust has all power and authority necessary to
enter into, execute, deliver and perform its obligations under, and with respect
to, the Preferred Securities. All necessary trust action on the part of the
Trust has been duly taken to authorize the execution, issuance, sale, delivery
and performance by the Trust of its obligations under the Preferred Securities.
The Preferred Securities have been duly authorized by the Trust Agreement, and
when issued by the Trust against payment therefor as contemplated by the
Prospectus, will be validly issued and (subject to the terms of the Trust
Agreement) fully paid and nonassessable undivided beneficial interests in the
assets of the Trust, entitled to the benefits provided by the Trust Agreement.
Good and marketable title to the Preferred Securities will pass to the
Underwriters on the Closing Date, or the applicable Option Closing Date, if any,
free and clear of all liens, security interests, pledges, charges, mortgages or
other defects or encumbrances of any kind or nature. The issuance of the
Preferred Securities is not subject to preemptive or other similar rights, and
holders of Preferred Securities will be entitled to the same limitation of
personal liability under Delaware law as is extended to stockholders of
7
private corporations for profit organized under the General Corporation Law of
the State of Delaware. The Preferred Securities conform or will conform in all
material respects to the descriptions thereof contained in the Registration
Statement and the Prospectus.
(x) The Trust has all power and authority necessary to
enter into, execute, deliver and perform its obligations under, and with respect
to, the Common Securities. All necessary trust action on the part of the Trust
has been duly taken to authorize the execution, issuance, delivery and
performance by the Trust of its obligations under the Common Securities. The
Common Securities have been duly authorized by the Trust Agreement and, when
issued and delivered by the Trust to the Company against payment therefor as
contemplated by the Prospectus, will be validly issued and (subject to the terms
of the Trust Agreement) fully paid undivided beneficial interests in the assets
of the Trust, entitled to the benefits provided by the Trust Agreement. At the
Closing Date, and at the Option Closing Date, if any, all of the issued and
outstanding Common Securities will be directly owned by the Company free and
clear of all liens, security interests, pledges, charges, mortgages or other
defects or encumbrances of any kind or nature. The issuance of the Common
Securities is not subject to preemptive or other similar rights. The Common
Securities conform or will conform in all material respects to the description
thereof contained in the Registration Statement and the Prospectus.
(xi) The Company has the duly authorized capital stock set
forth in the Prospectus. All of the shares of capital stock of the Company
issued and outstanding have been duly and validly authorized and issued, are
fully paid and nonassessable, without personal liability attaching to the
ownership thereof, and none of such shares have been issued or are owned or held
in violation of any preemptive or other similar rights. All of the issued and
outstanding shares of capital stock of each Subsidiary has been duly authorized,
validly issued and are fully paid and nonassessable and all such shares are
held, in the case of the Bank Subsidiary, Sterling Banking Corporation and
Sterling Financial Services Company, Inc., by the Company, in the case of
Sterling Trade Services, Inc., Sterling Factors Corporation, Sterling National
Mortgage Company, Inc., Sterling Holding Company of Virginia, Inc. and Sterling
National Servicing, Inc., by the Bank Subsidiary, in the case of Sterling
National Asia Limited Hong Kong, by the Sterling Trade Services, Inc., and in
the case of Sterling Real Estate Holding Company Inc. by Sterling Holding
Company of Virginia, Inc. free and clear of any liens, security interests,
pledges, charges, mortgages or other defects or encumbrances of any kind or
nature.
(xii) The consolidated financial statements of the Company
and the related notes and schedules thereto included in the Registration
Statement and the Prospectus comply in all material respects with the
requirements of the Securities Act and the Securities Act Rules and Regulations
and, if applicable, the Exchange Act and the Exchange Act Rules and Regulations
at the dates and for the periods indicated, are accurate in all material
respects and fairly present the financial condition, results of
8
operations, stockholders' equity and cash flows, and the other information of
the Company and its consolidated subsidiaries at the respective dates and for
the respective periods specified therein. Such financial statements and the
related notes and schedules thereto have been prepared in all material respects
in accordance with generally accepted accounting principles consistently applied
throughout the periods presented (except as otherwise noted therein) and have
been properly derived from the books and records of the Company, and such
financial statements as are audited have been examined by KPMG LLP, who are
independent public accountants within the meaning of the Securities Act and the
Securities Act Rules and Regulations, as indicated in their reports filed
therewith. The selected financial information and statistical data set forth
under the captions ["Prospectus Summary -- Consolidated Financial Data,"
"Capitalization," "Selected Consolidated Financial Data," "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
"Business"] in the Prospectus (and in documents incorporated by reference into
the Prospectus) in all material respects fairly present the information set
forth therein, have been derived from the financial statements or operating
records of the Company and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration Statement and the
Prospectus. No other financial statements or financial information, except that
which is contained in the Registration Statement or the Prospectus is required,
by Form S-3, the Securities Act Rules and Regulations or otherwise, to be
included in the Registration Statement or the Prospectus.
(xiii) Since the respective dates as of which information is
given in the Prospectus, and except as otherwise may be stated therein or
contemplated thereby: (A) none of the Company, any Subsidiary or the Trust has
entered into any transaction or incurred any liability or obligation, direct,
contingent or otherwise, which is material to the Company and the Subsidiaries,
taken as a whole or to the Trust; (B) there has not been any change in the
outstanding capital stock of the Company or any material increase in the
long-term debt of the Company or any Subsidiary, except indebtedness and deposit
liabilities incurred by the Bank Subsidiary in the ordinary course of its
banking business, or any event or circumstance giving rise to a Material Adverse
Effect (as hereinafter defined) relating to the Company, any Subsidiary or the
Trust; (C) none of the Company, any Subsidiary or the Trust has sustained any
loss or damage (whether or not insured) which has resulted in, or reasonably
could be expected, individually or in the aggregate, to result in, a Material
Adverse Effect to the Company, any Subsidiary or the Trust; (D) there has not
been any material interference with the business of the Company or any
Subsidiary or of the Trust from any labor dispute or court or governmental
action, order or decree; (E) the Company has not paid or declared any dividend
or other distribution with respect to its capital stock except for the stock
dividend to be declared to holders of common stock of record on or about
February 21, 2002 (the "Dividend"); (F) there has not been any change,
contingent or otherwise, in the direct or indirect control of the Company, any
Subsidiary or the Trust and, to the best knowledge of the Offerors, there do not
exist any circumstances which would reasonably be expected to result in such a
change; (G) there is no litigation pending or, to the best knowledge of the
Offerors, threatened against the Company, any
9
Subsidiary or the Trust which is required by the Securities Act and the
Securities Act Rules and Regulations to be set forth in the Registration
Statement or the Prospectus (or any documents incorporated therein by reference)
which has not been so set forth; and (H) there has not occurred any other event,
and there has arisen no set of circumstances required by the Securities Act and
the Securities Act Rules and Regulations to be set forth in the Registration
Statement or the Prospectus, which has not been so set forth. "Material Adverse
Effect" means (i) when used in connection with the Company, any development,
change or effect that is materially adverse to the business, properties, assets,
net worth, financial condition or results of operations of the Company and the
Subsidiaries, taken as a whole and (ii) when used in connection with the Trust,
any development, change or effect that is materially adverse to the business,
properties, assets, net worth, condition (financial or other) or results of
operations of the Trust. None of the Company, any of the Subsidiaries or the
Trust has any material contingent liabilities that are not disclosed in the
Prospectus.
(xiv) Other than as set forth in the Prospectus, there are no
pending actions, suits, proceedings, or investigations or, to the best knowledge
of the Offerors, threatened or contemplated actions, suits or proceedings,
before any court, regulatory body, administrative agency or other governmental
body that (A) challenge the validity of this Agreement, or of any action taken
or to be taken by the Company or the Trust pursuant to or in connection
herewith; (B) are required to be disclosed in the Registration Statement or the
Prospectus which are not so disclosed; (C) if determined adversely to the
Company or the Trust, reasonably could be expected, individually or in the
aggregate, to have a Material Adverse Effect thereon; or (D) reasonably could be
expected to materially and adversely affect the consummation of this Agreement
and the transactions contemplated hereby. Any such proceedings that are set
forth in the Prospectus are fairly and accurately summarized therein.
(xv) Each of the Company and the Trust has all power and
authority to enter into, execute, deliver and perform its obligations under, and
with respect to, this Agreement. All necessary corporate or trust proceedings,
as the case may be, of the Company and the Trust have been duly taken to
authorize the execution, delivery and performance by the Company and the Trust
of this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and the Trust and constitutes a valid and binding
obligation of the Company and of the Trust, enforceable against each in
accordance with its terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application relating to, or affecting, the enforcement of creditors'
rights and by the application of equitable principles relating to the
availability of remedies, and except as rights to indemnity or contribution may
be limited by federal or state securities laws and the public policy underlying
such laws).
(xvi) None of the Company, any of the Subsidiaries or the
Trust is in default in the performance or observance of any obligation,
agreement, covenant or
10
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease, franchise, license, bond or other evidence of indebtedness or other
agreement or instrument to which it is a party, by which it may be bound or to
which any of its assets, properties or businesses are or may be subject, except
for such defaults that would not, individually or in the aggregate, have a
Material Adverse Effect on the Company or the Trust, as the case may be. The
Company's and the Trust's execution and delivery of this Agreement, and the
Company's execution of the Indenture, the Trust Agreement and the Guarantee
Agreement, and the consummation by the Company and/or the Trust of the
transactions contemplated hereby and thereby, including, without limitation, the
issuance, sale and delivery of the Preferred Securities and the Common
Securities by the Trust and of the Subordinated Debentures by the Company, and
the conduct of their respective businesses as described in or contemplated by
the Registration Statement and the Prospectus, will not violate any provision of
the charter, bylaws or other governing documents of the Company, any Subsidiary,
the Trust Agreement, the Trust's certificate of trust filed with the state of
Delaware on February 1, 2002 (the "Certificate of Trust"), or similar
constructive documents of any of them and will not result in the breach of, or
be in contravention of, constitute a default under, cause (or permit) the
maturation or acceleration of any liability or the termination of any rights
under, or result in the creation or imposition of any lien, security interest,
pledge, charge, mortgage or other defect in or encumbrance upon, any assets,
property or business of the Company, any Subsidiary or the Trust pursuant to the
terms of any material contract, indenture, mortgage, loan agreement, note,
lease, franchise, license, bond, other evidence of indebtedness, or other
agreement or instrument to which the Company, any such Subsidiary or the Trust
is a party, by which it is bound or to which any of its assets, properties or
businesses are subject, or, assuming compliance with the Securities Act, the
Securities Act Rules, the Exchange Act, the Exchange Act Rules and Regulations,
the Trust Indenture Act, the Trust Indenture Act Rules and Regulations,
applicable state securities or Blue Sky laws, any statute, judgment, decree,
order, rule or regulation applicable to the Company, any Subsidiary or the Trust
of any arbitrator, court, regulatory body, administrative agency or other
governmental body, except those, if any, that are described in the Prospectus or
those which would not, individually or in the aggregate, have a Material Adverse
Effect on the Company or the Trust, as the case may be.
(xvii) All executed agreements, or copies of executed
agreements, filed as exhibits to the Registration Statement to which the
Company, any Subsidiary or the Trust is a party, by which any of them is or may
be bound, or to which any of their respective assets, properties or businesses
are or may be subject, have been duly and validly authorized, executed and
delivered by the Company, such Subsidiary or the Trust, as the case may be, and
constitute the legal, valid and binding agreements of the Company, such
Subsidiary or the Trust, enforceable against it in accordance with its terms
(except as such enforceability may be limited by applicable banking laws and
regulations, applicable bankruptcy, insolvency, reorganization or other laws of
general application relating to, or affecting the enforcement of creditors'
rights, and application of equitable principles relating to the availability of
remedies, and except as rights to indemnity or contribution may be limited
11
by federal or state securities laws and the public policy underlying such laws).
The descriptions and summaries contained in the Registration Statement of
contracts and other documents are accurate and fairly present in all material
respects the information required to be disclosed with respect thereto by the
Securities Act and the Securities Act Rules and Regulations, and there are no
contracts, other documents, transactions or circumstances which are required by
the Securities Act and the Securities Act Rules and Regulations to be described
in the Registration Statement, or filed as exhibits thereto, which are not so
described or filed. The exhibits which have been filed are complete and correct
copies of the documents of which they purport to be copies.
(xviii) The Company and each of the Subsidiaries has good and
marketable title in fee simple to all real property and good and marketable
title to all other property and assets owned thereby as set forth in the
Prospectus, in each case free and clear of all liens, security interests,
pledges, charges, mortgages and other defects or encumbrances of any kind or
nature, except such as are described in the Prospectus or such as do not
materially affect the value of any such property, and do not interfere with the
use made, or proposed to be made, of such property by the Company or such
Subsidiary. Any real properties held or used by the Company or any Subsidiary
under lease are held or used under valid, subsisting and enforceable leases,
such leases are in full force and effect, the Company or the Subsidiary, as the
case may be, is not in default in respect of any material terms of any such
lease and enjoys peaceful and undisturbed possession thereunder and, to the best
knowledge of the Offerors, there are no claims that have been asserted by any
party adverse to the Company's or the Subsidiary's right as lessee under any
such lease or affecting or challenging the Company's or the Subsidiary's right
to continue possession of the premises subject to any such lease which,
individually or in the aggregate, would have a Material Adverse Affect on the
Company. No real property owned, held or used by the Company or any Subsidiary
is situated in an area which is or, to the best knowledge of the Offerors, will
be, subject to zoning, use, or building code restrictions that would prohibit
(and no state of facts relating to the actions or inaction of another person or
entity or his or its ownership, leasing, or use of any real or personal property
exists or will exist which would prevent) the continued effective ownership,
holding or use of such real property in the business of the Company or the
Subsidiary as described in or contemplated by the Registration Statement and the
Prospectus.
(xix) All legally required proceedings in connection with
the issuance and sale of the Common Securities, the Preferred Securities, and
the Subordinated Debentures and the Guarantee in accordance with this Agreement
and as contemplated by the Registration Statement and the Prospectus have been
taken and no consent, authorization, approval, order, registration, license,
certificate, declaration or permit of or from, or filing with, any court,
regulatory body, administrative agency or other governmental body, is required
in connection with the execution and delivery of this Agreement, the Indenture,
the Trust Agreement or the Guarantee Agreement, or the issuance and sale of the
Common Securities, the Preferred Securities or the Subordinated Debentures, or
the
12
consummation by each of the Company and the Trust of the transactions
contemplated by this Agreement, the Indenture, the Trust Agreement or the
Guarantee Agreement, except such as have been described in the Prospectus or may
be required, under the Securities Act, the Securities Act Rules and Regulations,
the Exchange Act, the Exchange Act Rules and Regulations, the Trust Indenture
Act, the Trust Indenture Act Rules and Regulations and such as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Preferred Securities by the Underwriters, from the New York
Stock Exchange, Inc. (the "NYSE") to have the Preferred Securities listed
thereon, and by the National Association of Securities Dealers, Inc. (the
"NASD") in connection with the terms and conditions set forth in this Agreement.
No consent of any party to any contract, agreement, mortgage, loan agreement,
note, franchise, lease, bond, other evidence of indebtedness or other agreement
or instrument, or any arrangement or understanding to which the Company or the
Trust is a party, by which either of them may be bound or to which any of their
respective assets, properties or businesses are or may be subject, is required
for the execution, delivery or performance of this Agreement, the Indenture, the
Trust Agreement or the Guarantee Agreement, or the issuance and sale of the
Common Securities, the Preferred Securities or the Subordinated Debentures, or
the consummation by each of the Company and the Trust of the transactions
contemplated by this Agreement, the Indenture, the Trust Agreement or the
Guarantee Agreement.
(xx) None of the Company, any Subsidiary or the Trust, or
the conduct of their respective businesses as described in or contemplated by
the Prospectus, is in violation of any federal, state or local statute,
administrative regulation or other law, the consequence of which violation(s),
individually or in the aggregate, would have a Material Adverse Effect on the
Company or the Trust, as the case may be, or which could in any way,
individually or in the aggregate, impair or delay the consummation of the
transactions contemplated by this Agreement, the Indenture, the Trust Agreement,
or the Guarantee Agreement, or the issuance and sale of the Common Securities,
the Preferred Securities, or of the Subordinated Debentures, or the consummation
by each of the Company and by the Trust of the other transactions contemplated
by this Agreement, the Indenture, the Trust Agreement or the Guarantee
Agreement.
(xxi) None of the Company, any of the Subsidiaries or the
Trust is in violation of any provision of its charter, bylaws, the Trust
Agreement or the Certificate of Trust, as the case may be, or other governing or
constitutive documents; none of the Company, any of the Subsidiaries or the
Trust is (or, as a result of the passage of time or based on its projected plans
of operations, will be) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
agreement, mortgage, loan agreement, note, franchise, lease, bond, other
evidence of indebtedness or other agreement or instrument to which it is a
party, by which it may be bound or to which any of its assets, properties or
businesses are, or may be, subject which, individually or in the aggregate,
would have a Material Adverse Effect on the Company or the Trust, as the case
may be, or which could in any way, individually
13
or in the aggregate, impair or delay the consummation of the transactions
contemplated by this Agreement, the Indenture, the Trust Agreement or the
Guarantee Agreement, or the issuance and sale of the Common Securities, the
Preferred Securities or the Subordinated Debentures, or the consummation by the
Company and the Trust of the other transactions contemplated by this Agreement,
the Indenture, the Trust Agreement or the Guarantee Agreement, and each
contract, agreement, mortgage, loan agreement, note, franchise, lease, bond,
other evidence of indebtedness and other agreement and instrument is in full
force and effect and is a legal, valid and binding obligation of the Company,
the relevant Subsidiary or the Trust, as the case may be.
(xxii) No action has been taken with respect to the Company,
any Subsidiary or the Trust, and, to the best knowledge of the Offerors, no
federal, state or local statute, administrative regulation, or other law has
been enacted, adopted or issued by any governmental agency that suspends the
effectiveness of the Registration Statement, prevents or suspends the use of any
Preliminary Prospectus or the Prospectus or suspends the sale of the Preferred
Securities in any jurisdiction referred to in Section 6(c) hereof. No
injunction, restraining order or order of any nature by a federal or state court
of competent jurisdiction has been issued with respect to the Company, any
Subsidiary or the Trust that could in any way prevent the issuance of the
Preferred Securities, the Common Securities or the Subordinated Debentures,
suspend the effectiveness of the Registration Statement, prevent or suspend the
use of any Preliminary Prospectus or the Prospectus or suspend the sale of the
Preferred Securities in any jurisdiction referred to in Section 6(c) hereof; and
every request of the Commission, or any securities authority or agency of any
jurisdiction, for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) has been complied with in all material
respects.
(xxiii) The statements set forth in the Prospectus under the
captions ["Sterling Bancorp Trust I," "Description of Preferred Securities,"
"Description of Subordinated Debentures," "Description of Guarantee" and
"Relationship Among the Preferred Securities, the Subordinated Debentures, the
Expense Agreement and the Guarantee," "Underwriting" (except, with respect to
statements under the caption "Underwriting" for information furnished in writing
to the Company by the Underwriters through the Representatives expressly for use
therein (as identified in Section 9(b) hereof)), and in the documents
incorporated by reference into the Prospectus under the captions ["Business,"
"Management," "Supervision and Regulation," ] insofar as they purport to
describe the provisions of the laws and the provisions of documents referred to
therein, accurately and fairly summarize such provisions in all material
respects and there are no other provisions of law or of documents which are
required by the Securities Act or the Securities Act Rules and Regulations to be
described therein.
(xxiv) The Company has received, subject to notice of
issuance, approval to have the Preferred Securities listed on the NYSE and the
Company knows of no reason which is likely to adversely affect such approval.
14
(xxv) None of the Company, any of the Subsidiaries or the
Trust is and, after giving effect to the offering and sale of the Preferred
Securities, the Common Securities and the Subordinated Debentures, will not be,
an "investment company" or an "affiliated person" of or a "promoter" or
"principal underwriter" of or an entity "controlled" by an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxvi) To the best of the Offerors' knowledge, each of the
Company, each of the Subsidiaries and the Trust owns, or is licensed or
otherwise has sufficient right to use, the proprietary knowledge, trademarks,
service marks, trade names, trademark registrations, service mark registrations,
logo marks, copyrights and rights (collectively, "Intellectual Property")
necessary for the conduct of its business as described in, or contemplated by,
the Registration Statement and the Prospectus. To the best knowledge of the
Offerors, none of the activities engaged in by the Company, any of the
Subsidiaries or the Trust infringes upon, or otherwise conflicts with,
Intellectual Property rights of others, except where such infringement would not
have, individually or in the aggregate, a Material Adverse Effect. No claims
have been asserted or, to the best knowledge of the Offerors, threatened against
the Company, any of the Subsidiaries or the Trust by any person with respect to
the use of any such Intellectual Property or challenging or questioning the
validity or effectiveness of any such Intellectual Property, except where such
claims if determined adversely, would not have, individually or in the
aggregate, a Material Adverse Effect.
(xxvi) No labor disturbance(s) by, or labor dispute(s) with,
the employees of the Company or any of the Subsidiaries exists or, to the best
knowledge of the Offerors, is threatened or imminent which, individually or in
the aggregate, would have a Material Adverse Effect on the Company.
(xxvii) Each of the administrators under the Trust Agreement
(each of the "Administrators") is an employee of the Company and has been duly
authorized to execute and deliver the Trust Agreement.
(xxviii) To the best knowledge of the Offerors, no hazardous
substances, hazardous wastes, pollutants or contaminants have been deposited or
disposed of in, on or under the properties of the Company, or any of the
Subsidiaries (including properties owned, managed or controlled by a Subsidiary
in connection with its lending activities) during the period in which the
Company or any Subsidiary has owned, occupied, managed, controlled or operated
such properties, in violation of any environmental, safety, health or similar
laws or regulations, orders, decrees or permits relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Regulations"), or any order,
judgment, decree or permit which would require remedial action under any
Environmental Regulations, except for any violations or remedial actions which
would not have, individually or in the aggregate, a Material Adverse Effect on
the Company.
15
(xxix) Each of the Company, each of the Subsidiaries and the
Trust is in compliance with all applicable federal or state laws and the rules
and regulations thereunder, applicable thereto including, without limitation,
all such laws, rules and regulations relating to discrimination in the hiring,
promotion or pay of employees, any applicable federal or state wages and hours
law, and the provisions of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), applicable to their respective businesses, except where
such noncompliance would not, individually or in the aggregate, have a Material
Adverse Effect on the Company or the Trust, as the case may be.
(xxx) The employee benefit plans, including employee welfare
benefit plans, of the Company and each of the Subsidiaries (the "Employee
Plans") have been operated in compliance with the applicable provisions of
ERISA, the Internal Revenue Code of 1986, as amended (the "Code"), all
regulations, rulings and announcements promulgated or issued thereunder and all
other applicable governmental laws and regulations (except to the extent such
noncompliance would not, individually or in the aggregate, have a Material
Adverse Effect on the Company). No reportable event under Section 4043(b) of
ERISA or to the best of the Offerors' knowledge, any prohibited transaction
under Section 406 of ERISA has occurred with respect to any employee benefit
plan maintained by the Company or any of the Subsidiaries and, except where such
occurrence would not have individually or in the aggregate, a Material Adverse
Effect on the Company. There are no pending or, to the Offerors' best knowledge,
threatened claims by, or on behalf of, any Employee Plan, any employee or
beneficiary covered under any such Plan or any governmental authority or
otherwise involving such Plans or any of their respective fiduciaries (other
than for routine claims for benefits and, except where such occurrence would not
have individually or in the aggregate, a Material Adverse Effect on the
Company). All Employee Plans that are group health plans have been operated in
compliance with the group health plan continuation coverage requirements of
Section 4980B of the Code in all material respects.
(xxxi) Each of the Company, each of the Subsidiaries and the
Trust has all power and authority necessary, has obtained, maintained in effect
and holds all consents, authorizations, approvals, orders, registrations,
licenses, certificates, declarations and permits of and from, and has made all
declarations and filings with all courts, regulatory bodies, administrative
agencies, or other governmental bodies, necessary to own, lease, license and use
its assets and properties and conduct its business in the manner described in or
contemplated by the Registration Statement and Prospectus, except where such
failure to obtain any such consents or make such filings would not have,
individually or in the aggregate, a Material Adverse Effect. None of the
Company, any of the Subsidiaries or the Trust has received any notice of
proceedings relating to the use of its assets and properties as to the conduct
of its business, and, to the best knowledge of the Offerors, no governmental
body is considering limiting, suspending, modifying or revoking, any such
consent, authorization, approval, order, registration, license certificate,
declaration or permit which, individually or in the aggregate, if the subject of
an unfavorable determination, would have a Material Adverse Effect on the
Company. None of the Company, any of the Subsidiaries or the Trust is party to
or otherwise subject to any consent decree, memorandum of understanding, written
16
commitment or other supervisory agreement with the Board of Governors of the
Federal Reserve System or any Federal Reserve Bank (the "Federal Reserve"), the
Comptroller of the Currency, the FDIC, or any other federal or state authority
or agency responsible for the supervision, regulation or insurance of depository
institutions, mortgage companies and their subsidiaries and holding companies
(any "Bank Regulator"). None of the Company, any of the Subsidiaries or the
Trust has received any notice of, and to the best knowledge of the Offerors, has
not been threatened with, and/or has not been sued and is not under
investigation with respect to a violation, or a possible violation, of any
provision of any law, regulation, license, permit or order, except such
violation(s) as would not, individually, or in the aggregate, have a Material
Adverse Effect on the Company or the Trust, as the case may be.
(xxxii) The Bank Subsidiary is in good standing with the
Comptroller of the Currency and the New York State Banking Department and no
other Bank Regulator has jurisdiction over the Bank Subsidiary. Sterling Banking
Corporation is in good standing with the Banking Department of the State of New
York and no other Bank Regulator has jurisdiction over the Sterling Banking
Corporation. The activities of the Company, the Bank Subsidiary and Sterling
Banking Corporation are permitted under applicable federal and state banking
laws, rules and regulations. Except for the Company, the Bank Subsidiary and
Sterling Banking Corporation, no Subsidiary is subject to regulation by a Bank
Regulator. Each of the Company, the Bank Subsidiary and Sterling Banking
Corporation have all necessary approvals, including approvals of each Bank
Regulator having jurisdiction over it. Each of the Company, the Bank Subsidiary
and Sterling Banking Corporation has filed with the appropriate governmental
authorities each and every statement, report, information or form required to be
filed by it pursuant to any applicable law, regulation, license, permit or
order, except where the failure(s) to so file would not, individually or in the
aggregate, have a Material Adverse Effect on the Company; all such filings or
submissions were in compliance in all material respects with applicable laws and
regulations when filed; and no deficiencies have been asserted by any regulatory
commission, agency or authority with respect to such filings or submissions,
except where the failure(s) to so file or cure would not, individually or in the
aggregate, have such a Material Adverse Effect on the Company. No report or
application filed by the Company, the Bank Subsidiary or Sterling Banking
Corporation with any Bank Regulator (each such report or application, together
with all exhibits thereto, a "Regulatory Report"), as of the date it was filed,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein, or necessary to make the statements therein
not misleading when made, or failed to comply with the applicable requirements
of the applicable Bank Regulators, as the case may be.
(xxxiii) The books, records, accounts and systems of internal
accounting controls of the Company and of each of the Subsidiaries comply in all
respects with the requirements of Section 13(b)(2) of the Exchange Act, except
where the failure(s) to so comply would not, individually or in the aggregate,
have a Material Adverse Effect on the Company.
17
(xxxiv) None of the Company, any of the Subsidiaries or the
Trust or any of their respective officers, directors, trustees or affiliates
(within the meaning of the Securities Act Rules and Regulations) has taken,
directly or indirectly, any action designed to, or that might reasonably be
expected to, result in stabilization or manipulation of the price of any
securities of the Company or the Trust.
(xxxv) None of the Company, any of the Subsidiaries, or the
Trust or any other person associated with or acting on behalf of the Company,
any of the Subsidiaries or the Trust has distributed or will distribute any
prospectus or other offering material in connection with the offering or sale of
the Preferred Securities other than a Preliminary Prospectus, Prospectus or
other materials permitted by the Securities Act and the Securities Act Rules and
Regulations to be distributed by the Company and the Trust.
(xxxvi) The minute books of the Company are current and
contain a correct record of all corporate action reflected therein as taken by
the Boards of Directors and shareholders of the Company and a correct and
complete record of the ratification by the Boards of Directors of the Company of
all corporate action taken by such Boards for which such minute books do not
contain a record, and all signatures contained therein are true signatures of
the persons whose signatures they purport to be.
(xxxvii) Except as described in the Prospectus, to the best
knowledge of the Offerors there is no loss or threatened loss of any one or more
customers, suppliers, or accounts of the Company or any of the Subsidiaries
which loss(es) would, individually or in the aggregate, have a Material Adverse
Effect on the Company.
(xxxviii) Except pursuant to this Agreement, the Company has
not incurred, directly or indirectly, any liability for a fee, commission or
other compensation or reimbursement on account of the employment of a broker,
finder agent, investment adviser or otherwise in connection with the
transactions contemplated by this Agreement, the Indenture, the Trust Agreement,
or the Guarantee Agreement.
(xxxix) There are no business relationships or related party
transactions of the nature described in Item 404 of Regulation S-K of the
Commission involving the Company, any of the Subsidiaries or the Trust and any
person referred to in Items 401 or 404 of Regulation S-K, except as required to
be described, and as so described, in the Prospectus (or the documents
incorporated by reference into the Prospectus).
(xl) The conditions for use of Form S-3 by the Offerors for
offering of the Preferred Securities on the terms set forth in this Agreement,
as set forth in the General Instructions thereto, have been satisfied.
(xli) The Company and each of the Subsidiaries maintains
insurance of the types and in amounts which the Company reasonably believes to
be
18
adequate for the conduct of their respective businesses and the value of their
prospective properties, and in such amounts and with such deductibles as are
customary for companies in the same or similar businesses, all of which
insurance is in full force and effect.
(xlii) No Tax Event, Capital Treatment Event or Investment
Company Event (as each such term is defined in the Indenture) has occurred.
(b) Any certificate signed by any officer of the Company or
Administrator of the Trust, and delivered to the Representatives or to counsel
to the Underwriters, shall be deemed a representation and warranty by the
Company and each of the Subsidiaries or of the Trust, as the case may be, to the
Underwriters as to the matters covered thereby.
SECTION 3. PURCHASE OF SECURITIES BY THE UNDERWRITERS. On the basis of
the representations, warranties, covenants and agreements herein contained, and
subject to the terms and conditions herein set forth, the Trust agrees to issue
and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Trust, the respective number of
Firm Securities set forth opposite the name of each such Underwriter in Schedule
I hereto at a purchase price of $10.00per Firm Security (the "Purchase Price").
As compensation to the Underwriters for their commitments hereunder and in view
of the fact that the proceeds of the sale of the Preferred Securities (together
with the entire proceeds from the sale by the Trust to the Company of the Common
Securities) will be used to purchase the Subordinated Debentures, on the Closing
Date the Company hereby agrees to pay to the Representatives, on behalf of the
several Underwriters, a commission of $0.375 per Firm Security ($825,000 in the
aggregate).
On the basis of the representations, warranties, covenants and
agreements herein contained, and subject to the terms and conditions herein set
forth, the Offerors agree to issue and sell to each of the Underwriters, and
each of the Underwriters shall have the one-time right to purchase from the
Trust, severally and not jointly, up to an aggregate of 300,000 Additional
Securities at the Purchase Price. Additional Securities may be purchased as
provided in Section 5 hereof solely for the purpose of covering over-allotments,
if any, made in connection with the offering of the Firm Securities. If the
Representatives, on behalf of the Underwriters, elect to exercise such option,
you shall so notify the Company in writing not later than 30 days after the date
of this Agreement, which notice shall specify the number of Option Securities to
be purchased by the Underwriters and the date on which such Option Securities
are to be purchased. Such date may be the same as the Closing Date (as defined
below) but not earlier than the Closing Date nor later than 10 business days
after the date of such notice. If any Additional Securities are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase the number of
Additional Securities that bears the same proportion to the total number of
Additional Securities to be purchased as the number of Firm
19
Securities set forth opposite the name of such Underwriter in Schedule I bears
to the total number of Firm Securities. As compensation to the Underwriters for
their commitments hereunder and in view of the fact that the proceeds of the
sale of the Preferred Securities (together with the entire proceeds from the
sale by the Trust to the Company of the Common Securities) will be used to
purchase the Subordinated Debentures, on the Option Closing Date the Company
hereby agrees to pay to the Representatives, on behalf of the several
Underwriters, a commission of $0.375 per Additional Security purchased on the
Option Closing Date (up to an aggregate of $112,500).
SECTION 4. OFFERING OF THE PREFERRED SECURITIES BY THE UNDERWRITERS.
The Company and the Trust are advised that the Underwriters propose to make a
public offering of the Firm Securities, on the terms and conditions set forth in
the Registration Statement from time to time as and when the Representatives
deem advisable after the Registration Statement becomes effective. Because the
NASD is expected to view the Firm Securities as interests in a direct
participation program, the offering of the Preferred Securities is being made in
compliance with the applicable provisions of Rule 2810 of the NASD's Conduct
Rules.
SECTION 5. DELIVERY OF AND PAYMENT FOR THE PREFERRED SECURITIES.
(a) Delivery to the Underwriters of, and payment to the Trust for,
the Firm Securities shall be made at 10:00 a.m., New York, NY time, on the third
(or if the Firm Securities are priced, as contemplated by Rule 15c6-1(c) under
the Exchange Act, after 4:30 p.m., on the fourth) full business day (such time
and date being referred to as the "Closing Date") following the date of the
initial public offering of the Firm Securities as advised to the Representatives
by the Company, at such place as the Representatives shall designate.
(b) Delivery to the Underwriters of, and payment for, any
Additional Securities to be purchased by the Underwriters shall be made at such
place as the Representatives shall designate, at 10:00 a.m., New York, NY time,
on such date or dates (individually, an "Option Closing Date" and collectively,
the "Option Closing Dates"), which may be the same as the Closing Date, but
shall, in no event, be earlier than the Closing Date, as shall be specified in a
written notice from the Representatives to the Offerors of the Underwriters'
determination to purchase a number, specified in said notice, of Additional
Securities. Any such notice may be given at any time within thirty (30) calendar
days after the effective date of this Agreement.
(c) The Preferred Securities will be delivered by the Trust to the
Underwriters on the Closing Date or the applicable Option Closing Date, as the
case may be, against payment of the Purchase Price therefor by wire transfer of
same-day funds, payable to the order of the Trust to an account designated
thereby. Delivery of the Preferred Securities may be made by credit through full
fast transfer to the accounts at The Depository Trust Company designated by the
Representatives. The Preferred
20
Securities shall be represented in the form of one or more fully registered
global notes (the "Global Notes") in book-entry form registered in the name of
the nominee of The Depository Trust Company. The Global Note(s) representing the
Preferred Securities shall be made available for examination by the
Representatives not later than 10:00 a.m., New York, NY time, on the last
business day prior to the Closing Date or the applicable Option Closing Date, as
the case may be, with any transfer taxes payable upon initial issuance or the
transfer thereof duly paid by the Company for the respective accounts of the
Underwriters against payment of the Purchase Price therefor.
(d) The documents to be delivered on the Closing Date or on an
Option Closing Date, as the case may be, by or on behalf of the parties hereto
pursuant to Section 8 hereof, including the cross-receipt for the Preferred
Securities to be purchased and any additional documents requested by the
Underwriters, will be delivered at the offices of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇,
LLP, Suite ▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
location as the Representatives may designate (the "Closing Location").
(e) A meeting will be held at the Closing Location at 2:00 p.m.,
New York, NY time, on the business day next preceding Closing Date and each
Option Closing Date, if any, or at such other time(s) as is mutually agreed upon
by the parties hereto, at which meeting(s) the final drafts of the documents to
be delivered pursuant to the preceding paragraph will be available for review by
the parties hereto.
SECTION 6. COVENANTS OF THE COMPANY AND THE TRUST. The Offerors,
jointly and severally, covenant and agree with each of the Underwriters as
follows:
(a) The Offerors will use their respective best efforts to cause
the Registration Statement, if not effective at the time of execution of this
Agreement, to become effective as promptly as practicable thereafter. If
required, the Offerors will file the Prospectus, and any amendments or
supplements thereto, with the Commission in the manner, and within the time
period, required by Rule 424(b) under the Securities Act. During any time when a
prospectus relating to the Preferred Securities is required to be delivered
under the Securities Act, each of the Offerors will comply in all material
respects with all requirements imposed by the Securities Act and the Securities
Act Rules and Regulations to the extent necessary to permit the continuance of
sales of, or dealings in, the Preferred Securities in accordance with the
provisions hereof and as contemplated by the Registration Statement and the
Prospectus. With respect to any registration statement, prospectus, amendment
(including any post-effective amendment), or supplement to be filed with the
Commission in connection with the Preferred Securities, the Offerors will
provide a copy of each such document to the Representatives a reasonable time
prior to the date such document is proposed to be filed with the Commission. Any
such registration statement, prospectus, amendment or supplement, when filed,
will comply in all material respects with the Securities Act and the Securities
Act Rules and Regulations. In the event that the Registration Statement is
effective at the
21
time of execution of this Agreement, but the total number of Preferred
Securities subject to this Agreement exceeds the number of Preferred Securities
covered by the Registration Statement, the Offerors promptly will file with the
Commission on the date hereof a registration statement pursuant to Rule 462(b)
of the Rules and Regulations in accordance with the requirements of such Rule
and will make payment of the filing fee therefor in accordance with the
requirements of Rule 111(b) of the Rules and Regulations.
(b) The Offerors will advise the Representatives promptly and, if
requested by the Representatives, will confirm such advice in writing (i) when
the Registration Statement, as amended, has become effective; (ii) if the
provisions of Rule 430A of the Securities Act Rules and Regulations will be
relied upon, when the Prospectus has been filed in accordance with said Rule
430A; (iii) when any post-effective amendment to the Registration Statement
becomes effective; (iv) of any request made by the Commission for amendments or
supplements to the Registration Statement, any Preliminary Prospectus or
Prospectus or additional information; (v) of the issuance by the Commission, any
state securities commission or any other regulatory authority of any stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto, preventing or suspending the use of any Preliminary
Prospectus or Prospectus, any amendment or supplement thereto, or preventing or
suspending the qualification of the securities for offering or sale in any
jurisdiction, or the institution or threat of any investigation or proceedings
for any such purposes by the Commission, any state securities commission or any
other regulatory authority; and (vi) of the receipt of any comments from the
Commission regarding the Registration Statement, any post-effective amendment
thereto, the Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto. The Offerors will use their best efforts to prevent the
issuance of any stop order by the Commission, and if at any time the Commission
shall issue any stop order, the Offerors will use their best efforts to obtain
the withdrawal of such stop order at the earliest possible moment.
(c) The Offerors will cooperate with the Representatives, the
Underwriters and counsel to the Underwriters in qualifying or registering the
Preferred Securities for sale, or obtaining an exemption therefrom, under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall
designate, and will continue such qualifications or registrations or exemptions
in effect so long as requested by the Representatives to complete the
distribution of the Preferred Securities. Notwithstanding the foregoing, neither
of the Offerors shall be required to qualify as a foreign corporation or to file
a general consent to service of process in any such jurisdiction where it is not
presently qualified.
(d) The Offerors consent to the use of the Prospectus (and any
amendment or supplement thereto) by the Underwriters and all dealers to whom the
Preferred Securities may be sold, in connection with the offering or sale of the
Preferred Securities, and for such period of time thereafter as the Prospectus
is required by law to be delivered in connection therewith. If, at any time when
a prospectus relating to the
22
Preferred Securities is required under the Securities Act to be delivered in
connection with sales of the securities by an underwriter or dealer, any event
occurs as a result of which the Prospectus, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading, or if it
becomes necessary at any time to amend or supplement the Prospectus to comply
with the Securities Act or the Securities Act Rules and Regulations, the
Offerors promptly will so notify the Representatives and will prepare and file
with the Commission an amendment to the Registration Statement or an amendment
or supplement to the Prospectus which will correct such statement or omission or
effect such compliance. The Offerors will provide a copy of each such amendment
or supplement to the Representatives a reasonable time prior to the date on
which it is proposed to be filed with the Commission.
(e) As soon as practicable, but in any event not later than
forty-five (45) calendar days after the end of the twelve (12) month period
beginning on the day after the end of the fiscal quarter of the Offerors during
which the effective date of the Registration Statement occurs (ninety (90)
calendar days in the event that such quarter is the last fiscal quarter), the
Offerors, to the extent not exempt pursuant to the Securities Act, the
Securities Act Rules and Regulations or the exemptive authority of the
Commission, will make generally available to their security holders, in the
manner specified in Rule 158(b) of the Securities Act Rules and Regulations, and
will deliver to the Representatives, an earnings statement which will be in the
detail required by, and will otherwise comply with, the provisions of Section
11(a) of the Securities Act and Rule 158(a) of the Securities Act Rules and
Regulations, which statement need not be audited unless required by the
Securities Act or the Securities Act Rules and Regulations, covering a period of
at least twelve (12) consecutive months after the effective date of the
Registration Statement.
(g) The Offerors will furnish, without charge, to the
Representatives or on the Representatives' order, at such place as the
Representatives may designate, copies of each Preliminary Prospectus, the
Registration Statement and any amendments thereto, any registration statement
filed pursuant to Rule 462(b) (of which copies two (2) will include all
financial statements and exhibits) and the Prospectus, and all amendments and
supplements thereto, in each case as soon as available and in such quantities as
the Representatives may reasonably request.
(h) Each of the Offerors will use its best efforts to cause the
Preferred Securities to be duly approved for listing on the NYSE, subject to
notice of issuance, prior to the Closing Date and to cause the Preferred
Securities to remain listed for at least thirty-six (36) months thereafter.
(i) None of the Offerors, any of the Subsidiaries or any of their
officers, directors, trustees or affiliates, (within the meaning of the
Securities Act Rules
23
and Regulations) will take, directly or indirectly, any action designed to, or
which might reasonably be expected to, cause or result in stabilization or
manipulation of the price of any securities of the Offerors.
(j) The Offerors will apply the net proceeds from the sale of the
Common Securities, the Preferred Securities and the Subordinated Debentures in
the manner, and for the purposes, set forth in the Prospectus. Pending
application of the net proceeds of the sale of the Common Securities, the
Preferred Securities and the Subordinated Debentures in such manner, the
Offerors will operate their businesses in such manner, and for such purposes,
and each will invest such net proceeds in such securities so as not to become an
"investment company" as such term is defined under the Investment Company Act.
(k) To the extent not exempt pursuant to the Securities Act, the
Securities Act Rules and Regulations or the exemptive authority of the
Commission, each of the Offerors will timely file all such reports, forms or
other documents as may be required from time to time, under the Securities Act,
the Securities Act Rules and Regulations, the Exchange Act and the Exchange Act
Rules and Regulations, and all such reports, forms and documents so filed will
comply as to form and substance with the applicable requirements under the
Securities Act, the Securities Act Rules and Regulations, the Exchange Act and
the Exchange Act Rules and Regulations which may from time to time be applicable
thereto. Each of the Offerors shall comply with the provisions of all
undertakings contained in the Registration Statement.
(l) Neither of the Offerors shall, prior to the exercise in full
or expiration of the Underwriters' option to purchase Additional Securities,
offer, sell, contract to sell or otherwise dispose of any securities issued or
guaranteed by the Trust or the Company that, in the reasonable judgment of the
Representatives are substantially similar to the Preferred Securities, without
the prior written consent of the Representatives.
(m) The Offerors will not, prior to the exercise in full or
termination or expiration of the Underwriters' option to purchase the Additional
Securities, incur any material liability or obligation, direct or contingent, or
enter into any material transaction, other than in the ordinary course of
business, except as described in or contemplated by the Registration Statement
and the Prospectus.
(n) Neither of the Offerors shall enter into any contractual
agreement with respect to the distribution of the Preferred Securities except
for the arrangements with the Underwriters pursuant hereto.
(o) Each of the Offerors will use its best efforts to comply, or
cause to be complied, with the conditions to the Underwriters' obligations set
forth in Section 8 hereof.
24
SECTION 7. EXPENSES.
(a) If the Underwriters purchase the Firm Securities in accordance
with the terms of this Agreement, the Company shall pay all costs, expenses and
fees incident to the performance of its obligations, and those of the Trust,
under this Agreement including, without limitation, the costs and expenses
associated with (i) the printing and filing of the Registration Statement as
originally filed and any amendments and exhibits thereto; (ii) the filing fee of
the NASD and expenses relating to any review of the offering and listing of the
Preferred Securities on the NYSE; (iii) all costs and expenses incurred in
connection with the preparation, issuance and delivery of the Preferred
Securities to the Underwriters; (iv) the fees and disbursements of the Trust's
and the Company's counsel and accountants; (v) all costs and expenses in
connection with the qualification of the Preferred Securities under state
securities laws in accordance with the provisions of Section 6(c), including
filing fees and the reasonable fees and disbursements of counsel to the
Underwriters in connection therewith and in connection with the preparation of
the preliminary and final Blue Sky memoranda up to $10,000; (vi) the fees and
expenses of the Property Trustee, the Delaware Trustee, the Indenture Trustee,
and the Guarantee Trustee, and any agent of the Property Trustee, the Delaware
Trustee, the Indenture Trustee, and the Guarantee Trustee, and the fees and
disbursements of Trustees' counsel, in connection with the Trust Agreement and
the issuance and delivery of the Preferred Securities.
(b) If the purchase of the Firm Securities as herein contemplated
is not consummated for any reason other than the Underwriters' default under
this Agreement or by reason of Section 11(a) hereof, the Company shall pay all
costs, expenses and fees incident to the performance of its obligations, and
those of the Trust, under this Agreement and shall reimburse the several
Underwriters for their reasonable out-of-pocket expenses (including but not
limited to counsel fees and disbursements) in connection with any investigation
made by them, and any preparation made by them in respect of marketing of the
Firm Securities or in contemplation of the performance by them of their
obligations hereunder; provided, however, that in no event shall the amount of
such reimbursement exceed $125,000 in the aggregate.
SECTION 8. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations
of each Underwriter to purchase and pay for the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule I on the Closing Date,
and the ratable portion of any Additional Securities on any Option Closing Date,
are subject to the continuing accuracy of the representations and warranties of
the Offerors contained herein as of the date hereof, as of the Closing Date and
as of any such Option Closing Date, as the case may be, as if they had been made
on, and as of, the Closing Date or any such Option Closing Date; the accuracy,
on, and as of, the Closing Date or any such Option Closing Date, of the
statements of officers or trustees of the Offerors, as the case may be, made
pursuant to the provisions hereof; the performance by the Offerors, on and
25
as of the Closing Date or any such Option Closing Date, of their respective
covenants and agreements hereunder; and the following additional conditions:
(a) The Registration Statement shall have been declared effective,
and the Prospectus (containing the information omitted pursuant to Rule 430(A))
shall have been filed with the Commission not later than the Commission's close
of business on the second business day following the date hereof or such later
time and date to which the Representatives shall have consented. No stop order
suspending the effectiveness of the Registration Statement, or any
post-effective amendment thereto, or any order preventing or suspending the use
of any Prospectus, or any amendment or supplement thereto, shall have been
issued, and no proceedings for that purpose shall have been instituted or shall
be pending or, to the best knowledge of the Offerors or the Representatives,
shall be contemplated or threatened by the Commission. The Offerors shall have
complied with any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise). No stop
orders suspending the sale of the Preferred Securities in any jurisdiction
referred to in Section 6(c) shall have been issued, and no proceedings for that
purpose shall have been instituted or shall be pending or, to the best knowledge
of the Offerors or the Representatives, shall be contemplated or threatened by
the officials of any such jurisdiction.
(b) The Representatives shall not have advised the Offerors that
the Registration Statement contains an untrue statement of fact which, in the
Representatives' opinion, is material, or omits to state a fact which, in the
Representatives' opinion, is material and is required to be stated therein or is
necessary to make the statements therein not misleading, or that the Prospectus,
or any supplement thereto, contains an untrue statement of fact which, in the
Representatives' opinion, is material, or omits to state a fact which, in the
Representatives' opinion, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) On or prior to the Closing Date, and the Option Closing Date,
if any, the Representatives shall have received from counsel to the Underwriter,
such opinion or opinions with respect to the issuance and sale of the Common
Securities, the Preferred Securities and the Subordinated Debentures, the
Registration Statement and the Prospectus and such other related matters as the
Representatives reasonably may request, and such counsel shall have received
such documents and other information as it requests to enable it to pass upon
such matters.
(d) On the Closing Date, and the Option Closing, if any, the
Representatives shall receive:
(i) The favorable opinion, dated as of the Closing Date or
the Option Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Company,
substantially in the form and substance of Exhibit A-1 attached hereto, and the
favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., General Counsel of the Company,
substantially in the form of
26
Exhibit A-2 attached hereto. In rendering such opinion, each counsel may state
that it is passing only on matters of New York, Delaware and United States
federal law. In rendering such opinion, each counsel may rely upon an opinion or
opinions, each dated the Closing Date or Option Closing Date, of other counsel
retained by it, the Company or the Trust 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 Underwriter and (B) counsel to the Company shall
state in its opinion that it and the Underwriters 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 and
trustees of the Company, any of the Subsidiaries and the Trust, as the case may
be, and certificates of public officials.
(ii) The favorable opinion, dated the Closing Date or the
Option Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel to The Bank of
New York, as the Delaware Trustee, the Property Trustee, the Debenture Trustee
and the Guarantor Trustee, substantially in the form and substance of Exhibit B
attached hereto.
(iii) The favorable opinion, dated the Closing Date or the
Option Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware
counsel to the Company and the Trust, substantially in the form and substance of
Exhibit C attached hereto.
In rendering the opinions contemplated by clauses (ii) and (iii) above,
counsel may rely upon an opinion or opinions, each dated the Closing Date or
such Option Closing Date, of other counsel retained by it or the Company as to
laws of any jurisdiction other than the United States or the State of Delaware,
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 Representatives
and (B) counsel shall state in its opinion that it believes that it and the
Underwriters 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 and trustees of the Company, any of the
Subsidiaries and the Trust, as the case may be, and certificates of public
officials, provided that copies of all such opinions shall be attached to the
opinion.
(e) On or prior to the Closing Date and each Option Closing Date,
if any, counsel to the Underwriters shall have been furnished such documents,
certificates and opinions as they may reasonably request in order to evidence
the accuracy, completeness or satisfaction of any of the representations or
warranties of the Company or the Trust or conditions herein contained.
(f) On the date hereof the Representatives shall have received a
"cold comfort" letter from KPMG LLP, independent certified public accountants,
dated such date and addressed to the Underwriters, in form and substance
satisfactory to the
27
Representatives, with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(g) On the Closing Date, and each Option Closing Date, if any, the
Representatives shall have received from KPMG LLP a letter, dated as of the such
date, to the effect that they reaffirm the statements made in the letter
furnished pursuant to Section 8(f).
(h) On the Closing Date and each Option Closing Date, if any, the
Underwriters shall have received a certificate, dated such date, of the
President and the principal financial or accounting officer of the Company to
the effect that each such person has carefully examined the Registration
Statement and the Prospectus, and any amendments or supplements thereto, and
this Agreement, and that, to the best of such officer's knowledge:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects, as if made on, and
as of, the Closing Date or the applicable Option Closing Date, as the case may
be, and the Company has complied with all agreements and covenants and satisfied
all conditions contained in this Agreement on its part to be performed or
satisfied at or prior to the Closing Date or such Option Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or post-effective amendment thereto or suspending the use
of any Prospectus or amendment or supplement thereto or the qualification of the
Preferred Securities for offering or sale has been issued, and no proceedings
for that purpose have been instituted or are pending or, to the best knowledge
of each such person, are contemplated or threatened under the Securities Act or
any applicable state securities or Blue Sky statute, and any and all filings
required by Rule 424, Rule 430A and Rule 462(b) have been timely made;
(iii) the Registration Statement and Prospectus and, if any,
each amendment and each supplement thereto, contain all statements and
information required by the Securities Act or the Securities Act Rules and
Regulations to be included therein, and neither the Registration Statement or
the Prospectus, 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 not misleading; and
(iv) Since the respective dates as of which information is
given in the Prospectus, and except as otherwise may be stated therein or
contemplated thereby: (A) none of the Company, any Subsidiary or the Trust has
entered into any transaction or incurred any liability or obligation, direct,
contingent or otherwise, which is material to the Company and the Subsidiaries,
taken as a whole or to the Trust; (B) there has not been any
28
change in the outstanding capital stock of the Company or any material increase
in the long-term debt of the Company or any Subsidiary, except indebtedness and
deposit liabilities incurred by the Bank Subsidiary in the ordinary course of
its banking business, or any event or circumstance giving rise to a Material
Adverse Effect (as hereinafter defined) relating to the Company, any Subsidiary
or the Trust; (C) none of the Company, any Subsidiary or the Trust has sustained
any loss or damage (whether or not insured) which has resulted in, or reasonably
could be expected, individually or in the aggregate, to result in, a Material
Adverse Effect to the Company, any Subsidiary or the Trust; (D) there has not
been any material interference with the business of the Company or any
Subsidiary or of the Trust from any labor dispute or court or governmental
action, order or decree; (E) the Company has not paid or declared any dividend
or other distribution with respect to its capital stock except for the Dividend;
(F) there has not been any change, contingent or otherwise, in the direct or
indirect control of the Company, any Subsidiary or the Trust and, to the best
knowledge of the Offerors, there do not exist any circumstances which would
reasonably be expected to result in such a change; (G) there is no litigation
pending or, to the best knowledge of the Offerors, threatened against the
Company, any Subsidiary or the Trust which is required by the Securities Act and
the Securities Act Rules and Regulations to be set forth in the Registration
Statement or the Prospectus (or any documents incorporated therein by reference)
which has not been so set forth; and (H) there has not occurred any other event,
and there has arisen no set of circumstances required by the Securities Act and
the Securities Act Rules and Regulations to be set forth in the Registration
Statement or the Prospectus, which has not been so set forth.
References to the Registration Statement and the Prospectus in this
Section 8(h) are to such documents as amended and supplemented at the date of
the certificate required hereby.
(i) On the Closing Date, and each Option Closing Date, if
any, the Underwriters shall have received a certificate, dated the Closing Date,
of the Administrators to the effect that each such Administrator has carefully
examined the Registration Statement and the Prospectus, and any amendments or
supplements thereto, and this Agreement, and that to the best of such
Administrators' knowledge:
(A) the representations and warranties of the Trust in this
Agreement are true and correct in all material respects, as if made on, and as
of, the Closing Date and each Option Closing Date, if any, and the Trust has
complied with all agreements and covenants and satisfied all conditions
contained in this Agreement on its part to be performed or satisfied at or prior
to the Closing Date or such Option Closing Date;
(B) no stop order suspending the effectiveness of the
Registration Statement, or any post-effective amendment thereto, suspending the
use of any Prospectus, or any amendment or supplement thereto, or suspending the
qualification of the Preferred Securities for offering or sale has been issued,
and no proceedings for
29
that purpose have been instituted or are pending or, to the best knowledge of
each such person, are contemplated or threatened under the Securities Act or any
applicable state securities or Blue Sky statute, and any and all filings
required by Rule 424, Rule 430A and Rule 462(b) have been timely made; and
(C) the Registration Statement and Prospectus and, if any,
each amendment and supplement thereto, contain all statements and information
required by the Securities Act and the Rules and the Securities Act Regulations
to be included therein, and neither the Registration Statement or the Prospectus
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 not misleading.
References to the Registration Statement and the Prospectus in
this Section 8(i) are to such documents as amended and supplemented at the date
of the certificate required hereby.
(j) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus up to and including the
Closing Date or the applicable Option Closing Date, as the case may be, there
has not been a material adverse change in the business or financial condition of
the Company and its subsidiaries considered as one enterprise, or the Trust, as
the case may be that, in each case in the judgment of the Representatives, makes
it impractical or inadvisable to make or consummate the public offering, sale or
delivery of the Preferred Securities on the terms and in the manner contemplated
in the Prospectus and the Registration Statement.
(k) Prior to the Closing Date, the Preferred Securities shall have
been duly authorized for listing, subject to notice of issuance, on the NYSE.
(l) Prior to the Closing Date, the Preferred Securities shall have
been qualified under the securities or Blue Sky laws of such jurisdictions as
the Representatives shall have designated or an exemption therefrom shall be
available;
(m) Prior to the Closing Date, the legality and sufficiency of the
authorization, issuance and sale or transfer and sale of the Preferred
Securities hereunder, the execution and delivery of this Agreement and all
corporate proceedings and other legal matters incident thereto, and the form of
the Registration Statement and the Prospectus (except financial statements)
shall have been approved by counsel to the Underwriters exercising reasonable
judgment.
(n) Prior to the Closing Date, the NASD, upon review of the terms
of the public offering of the Preferred Securities contemplated hereby, shall
have indicated that it has no objection to the underwriting arrangements
pertaining to the sale of the
30
Preferred Securities and the Underwriters' participation in the sale of the
Preferred Securities as so contemplated.
All opinions, certificates, letters and documents to be
furnished by the Offerors will comply with the provisions hereof only if they
are reasonably satisfactory in all material respects to the Representatives and
to counsel for the Underwriters. The Offerors shall furnish the Underwriters
with manually signed or conformed copies of such opinions, certificates, letters
and documents in such quantities as the Representatives reasonably request. The
certificates delivered under this Section 8 shall constitute representations,
warranties and agreements of the Offerors as to all matters set forth therein as
fully and effectively as if such matters had been set forth in Section 2 of this
Agreement.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at the Closing Date or any Option Closing Date is not so
satisfied or waived by the Representatives, in their discretion, this Agreement,
at the Representatives' election, will terminate upon notification to the
Offerors without liability on the part of any Underwriter (including the
Representatives), or the Offerors, except for the expenses to be paid by the
Company pursuant to Section 7 hereof and except to the extent provided in
Section 9 hereof.
SECTION 9. INDEMNIFICATION.
(a) The Offerors agree, jointly and severally, to indemnify and
hold harmless each Underwriter, and its officers, directors, partners, employees
and agents and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any and all losses, claims, damages, liabilities or expenses whatsoever
(which shall include, for all purposes of this Section 9, but not be limited to,
attorneys' fees and any and all fees and expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever and any and all amounts paid in settlement),
joint or several (and actions in respect thereof), to which such Underwriter,
officer, director, partner, employee, agent, counsel or controlling person may
become subject, under the Securities Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement or the Prospectus or any Preliminary Prospectus, or
any Blue Sky application or other document executed by the Offerors specifically
for the purposes of qualifying, or based upon written information furnished by
the Offerors in any state or other jurisdiction in order to qualify, any or all
of the Preferred Securities under the securities or Blue Sky laws thereof (any
such application, document or information being hereinafter called a "Blue Sky
Application"), 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 not
31
misleading, and will reimburse, as incurred, expenses of such Underwriter,
partner, employee, agent or controlling person in connection with investigating,
defending or appearing as a third party witness in connection with any such
loss, claim, damage, liability, expense or action; provided, however, that
neither of the Offerors will be liable in any such case to the extent that any
such loss, claim, damage, liability, expense or action arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in any of such documents in reliance upon and in conformity with
information furnished in writing to the Offerors on behalf of such Underwriter
through the Representatives expressly for use therein (as identified in Section
9(b) hereof); and provided, further, that such indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage, liability or action purchased Preferred
Securities which are the subject thereof to the extent that any such loss,
claim, damage, liability or action (i) results from the fact that such
Underwriter failed to send or give a copy of the Prospectus to such person at or
prior to the confirmation of the sale of such Preferred Securities to such
person in any case where such delivery is required by the Securities Act or (ii)
arises out of or is based upon an untrue statement or omission of a material
fact contained in such Preliminary Prospectus that was corrected in the
Prospectus, unless such failure resulted from non-compliance by the Offerors
with Section 6(d) hereof. The indemnity agreement in this Section 9(a) shall be
in addition to any liability which the Offerors may otherwise have.
(b) Each of the Underwriters agrees severally, but not jointly, to
indemnify and hold harmless the Offerors, each of their respective directors or
trustees, as the case may be, each of their respective officers or
Administrators, as the case may be, who has signed the Registration Statement,
their respective employees and agents and each person, if any, who controls
either of the Offerors within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all losses, claims, damages,
liabilities or expenses whatsoever (which shall include, for all purposes of
this Section 9, but not be limited to, attorneys' fees and any and all fees and
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever and any and all
amounts paid in settlement), (and actions in respect thereof) to which the
Offerors or any such director, trustee, Administrator, officer, employee, agent
or controlling person may become subject, under the Securities Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or the Prospectus or any
Preliminary Prospectus, or in any Blue Sky Application, or arise out of or are
based upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with information
32
furnished in writing by the Underwriters through the Representatives to the
Offerors expressly for use therein. The Company and the Trust acknowledge that
the statements with respect to the public offering of the Preferred Securities
set forth under the caption "Underwriting" and the stabilization legend in the
Prospectus have been furnished by the Underwriters to the Offerors expressly for
use therein and constitute the only information furnished in writing by or on
behalf of the Underwriters for inclusion in the Prospectus. The indemnity
agreement contained in this Section 9(b) shall be in addition to any liability
which the Underwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against one or more
indemnifying parties under this Section 9, notify such indemnifying party or
parties of the commencement thereof; but the failure so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under Section 9(a) or Section 9(b) to the
extent that the indemnifying party was not actually prejudiced by such omission.
In case any such action is brought against an indemnified party and it notifies
an indemnifying party or parties of the commencement thereof, the indemnifying
party or parties against which a claim is to be made will be entitled to
participate therein and, to the extent that it or they may wish, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party has
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 the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assume such legal defenses and otherwise
to participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, which approval shall not be
unreasonably denied or delayed, the indemnifying party will not be liable to
such indemnified party under this Section 9 for any legal or other expenses
(other than the reasonable costs of investigation) subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party has employed such counsel in connection with the assumption of
such different or additional legal defenses in accordance with the proviso to
the immediately preceding sentence, (ii) the indemnifying party has not employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action, or (iii) the indemnifying party has authorized in writing the employment
of counsel for the indemnified party at the expense of the indemnifying party.
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) at the same time
for all such indemnified parties and that all such fees and
33
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, in the case of parties indemnified pursuant
to Section 9(a), and by the Company, in the case of parties indemnified pursuant
to Section 9(b). No indemnifying party shall be liable in the event of any
settlement of any such action effected without its consent except as provided in
Section 9(e) hereof.
(d) If the indemnification provided for in this Section 9 is
unavailable or insufficient to hold harmless an indemnified party under Section
9(a) or Section 9(b) above in respect of any losses, claims, damages,
liabilities or expenses (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) (i) in such proportion as is
appropriate to reflect the relative benefits received by each of the
contributing parties, on the one hand, and the party to be indemnified, on the
other hand, from the offering of the Preferred Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c)
above and the indemnifying party was actually prejudiced by such omission, then
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 each of the
contributing parties, on the one hand, and the party to be indemnified, on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, if applicable, the extent that the
indemnifying party was actually prejudiced by the failure of the indemnified
party to give the notice required under subsection (c) above, as well as any
other relevant equitable considerations. In any case where the Company and/or
the Trust is a contributing party and the Underwriters are the indemnified
party, the relative benefits received by the Company and/or the Trust on the one
hand, and the Underwriters, on the other hand, shall be deemed to be in the same
proportion as the total net proceeds from the initial offering and issuance of
the Preferred Securities (before deducting expenses) bear to the total
underwriting compensation received by the Underwriters hereunder, in each case
as set forth in the table on the cover page of the Prospectus. Relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company and/or
the Trust or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses (or actions in
respect thereof) referred to above in this Section 9(d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9(d), the Underwriters shall not
be required to contribute any amount in excess of the underwriting discounts
applicable to the Preferred Securities purchased by the Underwriters hereunder.
The Underwriters' obligations to contribute pursuant to this Section 9(d) are
several in proportion to their respective underwriting obligations, and not
joint. No person guilty of
34
fraudulent misrepresentations (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 9(d),
(i) each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter and (ii) each director of the
Company, each trustee of the Trust, each officer of the Company or trustee of
the Trust who has signed the Registration Statement, and each person, if any,
who controls the Company or the Trust within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as the Company or the Trust, as the case may be. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect to which claim for
contribution may be made against another party or parties under this Section
9(d), notify such party or parties from whom contribution may be sought, but the
omission so to notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation (x) it or
they may have hereunder or otherwise than under this Section 9(d) or (y) to the
extent that such party or parties were not actually prejudiced by such omission.
The contribution agreement set forth above shall be in addition to any
liabilities which any indemnifying party may otherwise have.
(e) No indemnifying party shall, without the prior written consent
of the indemnified parties, settle, compromise or consent to the entry of any
judgement 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 9 (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 and 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 the
failure to act by or on behalf of any indemnified party.
SECTION 10. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY. The
representations, warranties, agreements, covenants, indemnities and statements
contained shall remain in full force and effect, regardless of (a) any
termination of this Agreement; (b) any investigation made by or on behalf of the
Underwriters or by or on behalf of any person controlling the Underwriters, or
by or on behalf of the Offerors; and (c) delivery of and payment for the
Preferred Securities.
SECTION 11. EFFECTIVE DATE AND TERMINATION.
(a) This Agreement shall become effective at 9:00 a.m., New York,
NY time, on the first business day following the date hereof, or at such earlier
time after the Registration Statement becomes effective as the Representatives,
in their sole discretion, shall release the Preferred Securities for the sale to
the public, unless prior to
35
such time the Representatives shall have received written notice from the
Company on behalf of itself and the Trust that they elect that this Agreement
shall not become effective, or the Representatives shall have given written
notice to the Offerors that the Representatives on behalf of the Underwriters
elects that this Agreement shall not become effective; provided, however, that
the provisions of this Section 11 and of Section 7 and Section 9 hereof shall at
all times be effective. For purposes of this Section 11(a), the Preferred
Securities to be purchased hereunder shall be deemed to have been so released
upon the earlier of notification by the Representatives to securities dealers
releasing such Preferred Securities for offering or the release by the
Representatives for publication of the first newspaper advertisement which is
subsequently published relating to the Preferred Securities.
(b) This Agreement (except for the provisions of Sections 7 and 9
hereof) may be terminated by the Representatives by written notice to the
Company and the Trust in the event that either of the Offerors has failed to
comply in any respect with any of the provisions of this Agreement required on
its part to be complied with at or prior to the Closing Date or any Option
Closing Date, or if any of the representations or warranties of the Offerors are
not accurate in any respect or if the covenants, agreements or conditions of, or
applicable to, the Offerors herein contained have not been complied with in any
respect or satisfied within the time specified or the Closing Date or any Option
Closing Date, as the case may be, or if prior to the Closing Date or Option
Closing Date:
(i) the Company, any of the Subsidiaries or the Trust shall
have sustained a loss by strike, fire, flood, accident or other calamity of such
a character, as to interfere materially with the conduct of the business and
operations of the Company and its Subsidiaries considered as one enterprise, or
the Trust, as the case may be, regardless of whether or not such loss was
insured;
(ii) trading in the securities of the Company or in
securities generally on the New York Stock Exchange shall have been suspended or
a material limitation on such trading shall have been imposed or minimum or
maximum prices shall have been established on either such exchange or market;
(iii) a general banking moratorium shall have been declared
by New York, Delaware or United States authorities;
(iv) there shall have been an outbreak or escalation of
hostilities between the United States and any foreign power or an outbreak or
escalation of any other insurrection or armed conflict involving the United
States if the effect of any such event in the judgment of the Representatives
makes it impractical or inadvisable to proceed with the public offering or the
delivery of the Preferred Securities on the terms and in the manner contemplated
in the Prospectus;
36
(v) there shall have occurred any material adverse market
conditions involving the United States, or any change in national political,
financial or economic conditions, the effect of which in the judgment of the
Representatives makes it impractical or inadvisable to proceed with the public
offering or the delivery of the Preferred Securities on the terms and in the
manner contemplated in the Prospectus;
(vi) the Company's independent public accountants shall have
imposed qualifications in certifying to material items including, without
limitation, information in the footnotes to the financial statements or matters
incident to the issuance and sale of the Common Securities, the Preferred
Securities or the Subordinated Debentures; or
(vii) there shall have been a material adverse change in the
business or financial condition of the Company and its Subsidiaries considered
as one enterprise, or the Trust, as the case may be that, in each case, in the
judgment of the Representatives, makes it impracticable or inadvisable to make
or consummate the public offering, sale or delivery of the Preferred Securities
on the terms and in the manner contemplated in the Prospectus and the
Registration Statement.
(c) Termination of this Agreement shall be without liability
of any party to any other party other than as provided in Sections 7 and 9
hereof.
SECTION 12. SUBSTITUTION OF UNDERWRITERS. If one or more of the
Underwriters shall fail or refuse (otherwise than for a reason sufficient to
justify the termination of this Agreement under the provisions of Section 8 or
11 hereof) to purchase and pay for the number of Preferred Securities agreed to
be purchased by such Underwriter or Underwriters upon tender of such number of
Preferred Securities in accordance with the terms hereof, and the number of such
Preferred Securities shall not exceed ten percent (10%) of the Preferred
Securities required to be purchased on the Closing Date, then, each of the
non-defaulting Underwriters shall purchase and pay for (in addition to the
number of such Preferred Securities which it has severally agreed to purchase
hereunder) its proportionate share (based on the monetary obligations of the
several Underwriters hereunder on account of the purchase of Preferred
Securities, excluding the Preferred Securities allocable to the defaulting
Underwriter or Underwriters) which the defaulting Underwriter or Underwriters
shall have so failed or refused to purchase on such Closing Date. In such case,
the Representatives, on behalf of the Underwriters, shall have the right to
postpone the Closing Date to a date not exceeding seven (7) full business days
after the date originally fixed as such Closing Date pursuant to the terms
hereof in order that any necessary changes in the Registration Statement, the
Prospectus or any other documents or arrangements may be made.
If one or more of the Underwriters shall fail or refuse (otherwise
than for a reason sufficient to justify the termination of this Agreement under
the provisions of Section 8 or 11 hereof) to purchase and pay for the number of
Preferred Securities agreed
37
to be purchased by such Underwriter or Underwriters upon tender to the
Representatives on behalf thereof of such Preferred Securities in accordance
with the terms hereof and the number of such Preferred Securities shall equal or
exceed ten percent (10%) of the Preferred Securities required to be purchased by
all the Underwriters on the Closing Date (unless within forty-eight (48) hours
after such default arrangements to the satisfaction of the Representatives shall
have been made for the purchase of the defaulted Preferred Securities by an
Underwriter or Underwriters) and subject to the provisions of Section 11(b)
hereof, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or on the part of the Company or the Trust except as
otherwise provided in Sections 7 and 9 hereof. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 12. Nothing in this Section 12, and no action taken hereunder, shall
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
SECTION 13. DEFAULT BY THE COMPANY OR THE TRUST. If the Trust shall
fail at the Closing Date to sell and deliver the number of Preferred Securities
which it is obligated to sell hereunder or the Company fails to deliver the
number of Subordinated Debentures required to be delivered pursuant to the Trust
Agreement, then this Agreement shall terminate without any liability on the part
of any non-defaulting party. Nothing in this Section 13 shall relieve the Trust
or the Company so defaulting from liability, if any, in respect of such default.
SECTION 14. NOTICES. All communications hereunder shall be in writing
and if sent to the Representatives shall be mailed or delivered or sent by
facsimile transmission and confirmed by letter to ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Incorporated at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
(facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇) or, if sent to the Company or the Trust,
shall be mailed or delivered or sent by facsimile transmission and confirmed by
letter to the Company at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇).
SECTION 15. SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the Company, the Trust and each Underwriter and the
respective successors and legal representatives thereof, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person, except
that the representations, warranties, indemnities and contribution agreements of
the Company and the Trust contained in this Agreement shall also be for the
benefit of the officers, directors, partners, employees and agents of each
Underwriter and any person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and except that the Underwriters' indemnity and contribution
agreements shall also be for the benefit of the directors of the Company, the
trustees of the Trust, the officers of the Company who have
38
signed the Registration Statement on behalf of the Company or in the Company's
role as Depositor under the Trust Agreement, the Administrators of the Trust,
their respective employees and agents, and any person or persons, if any, who
control the Company or the Trust within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act. No purchaser of Preferred
Securities from the Underwriters will be deemed a successor because of such
purchase.
SECTION 16. APPLICABLE LAW; JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to the choice of law or conflict of law principles
thereof. Each party hereto consents to the jurisdiction of each court in which
any action is commenced seeking indemnity or contribution pursuant to Section 9
above and agrees to accept, either directly or through an agent, service of
process of each such court.
SECTION 17. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, and all of
which together shall be deemed to be one and the same instrument.
39
* * * * * * *
If the foregoing is in accordance with your understanding, please sign
and return to us three (3) counterparts hereof, and upon your acceptance hereof,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and the Trust in accordance with the terms hereof.
Very truly yours,
STERLING BANCORP
By: ________________________________
Name:
Title:
STERLING BANCORP TRUST I
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
AS DEPOSITOR
By: ________________________________
Name:
Title:
ACCEPTED AS OF THE DATE HEREOF
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, INCORPORATED
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BY: ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, INCORPORATED
ON BEHALF OF EACH OF THE UNDERWRITERS
By: ________________________________
Name:
Title:
▇▇▇▇, ▇▇▇▇ & CO., LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
40
LIVINGSTON, NJ 07039-5817
BY: ▇▇▇▇, ▇▇▇▇ & CO., LLC
ON BEHALF OF EACH OF THE UNDERWRITERS
By: ________________________________
Name:
Title:
41
SCHEDULE I
NUMBER OF PREFERRED SECURITIES TO BE
PURCHASED BY EACH UNDERWRITER
Number of Preferred Securities to be
Name of Underwriter Percentage Purchased from the Trust
-------------------------------------- ---------- ------------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated
▇▇▇▇, ▇▇▇▇ & Co., LLC
EXHIBIT A-1 TO
UNDERWRITING AGREEMENT
The opinion of counsel to the Company to be delivered pursuant to
Section 8(d)(i)(A) of the Underwriting Agreement shall be substantially to the
effect that:
(1) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(2) The Indenture and the Guarantee Agreement have been duly
authorized, executed and delivered by the Company and duly qualified
under the Trust Indenture Act of 1939, as amended, and constitute valid
and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(3) The Expense Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(4) The Trust Agreement has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939, as amended.
(5) The ___% Junior Subordinated Deferrable Interest Debentures of the
Company, issued and sold to the Issuer pursuant to the Indenture and
the Trust Agreement in an aggregate principal amount of $_________,
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 Trust Agreement, will constitute
valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(6) The filing of the Registration Statement or any amendment thereto
and the execution and delivery by the Company of the Guarantee, the
Underwriting Agreement, the Indenture, the Trust Agreement and the
Expense Agreement do not, and the issuance of the Junior Subordinated
Debentures being issued at the Closing Date in accordance with the
Indenture, the sale by the Company of the Junior Subordinated
Debentures as contemplated in the Prospectus and the performance by the
Company of its obligations under the Trust Agreement, the Indenture,
the Guarantee, the Expense Agreement, the Underwriting Agreement and
the Junior Subordinated Debentures will not, violate the Company's
Certificate of Incorporation, as amended, or By-laws, in each case as
in effect at the date hereof, or violate any existing Federal law of
the United States or law of the State of New York applicable to the
Company; provided, however, that we express no opinion with respect to
antifraud laws, fraudulent transfer laws, the Employee Retirement
Income Security Act of 1974 and related laws and laws that restrict
transactions between United States persons and citizens or residents of
certain foreign countries; and provided, further, that insofar as
performance by the Company of its obligations under the Indenture, the
Trust Agreement, the Underwriting Agreement, the Guarantee, the Expense
Agreement and the Junior Subordinated Debentures is concerned, we
express no opinion as to bankruptcy, insolvency, reorganization,
moratorium and similar laws of Federal applicability relating to or
affecting creditors' rights.
(7) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company, as the case may be, on
or prior to the date hereof under the Federal laws of the United States
and the laws of the State of New York, for the issuance, sale and
delivery by the Company to the Trust of the Junior Subordinated
Debentures, for the issuance and sale by the Trust of the Trust
Preferred Securities and the execution and delivery by the Company of
the Guarantee, the Underwriting
44
Agreement, the Indenture, the Trust Agreement and the Expense
Agreement, have been obtained or made.
(8) The Trust is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(9) We do not know of any documents that are required to be filed as
exhibits to the Registration Statement and are not so filed or of any
documents that are required to be summarized in the Prospectus and are
not so summarized.
(10) [Standard S&C Registration Statement Letter]
45
EXHIBIT A-2 TO
UNDERWRITING AGREEMENT
The opinion of the General Counsel of the Company to be delivered
pursuant to Section 8(d)(i) of the Underwriting Agreement shall be substantially
to the effect that:
1. The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of New York. The Bank
has been duly organized and is an existing national banking association in good
standing under the laws of the United States. Each of the Company and the Bank
has the corporate power and authority to own its properties and conduct its
business as described in the Prospectus, dated _______, 2002. Neither the
Company nor the Bank is required to be qualified as a foreign corporation for
the transaction of business under the laws of any other jurisdiction in which it
owns or leases properties or conducts any business, except where the failure to
so qualify or be in good standing would not result in a Material Adverse Effect.
The Company is duly registered as a financial holding company under the Bank
Holding Company Act of 1956, as amended.
2. The filing of the Registration Statement or any amendment
thereto and the execution and delivery by the Company of the Guarantee, the
Underwriting Agreement, the Indenture, the Trust Agreement and the Expense
Agreement do not, and the issuance of the Junior Subordinated Debentures being
issued at the Closing Date in accordance with the Indenture, the sale by the
Company of the Junior Subordinated Debentures as contemplated in the Prospectus
and the performance by the Company of its obligations under the Trust Agreement,
the Indenture, the Guarantee, the Expense Agreement, the Underwriting Agreement
and the Junior Subordinated Debentures will not, result in a
default under, or breach of, any material agreement or debt instrument to which
the Company or any of its Subsidiaries is a party, as in effect at the date
hereof.
3. The statements set forth in the Registration Statement under
the caption "Regulatory Considerations", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate.
4. Other than as set forth in the Prospectus, there are no pending
proceedings or investigations or, to the best knowledge of counsel, threatened
proceedings or investigations, before any court or other government body that
are required to be disclosed in the Registration Statement or Prospectus which
are not so disclosed.
5. All eligible deposit accounts issued by the Bank are insured by
the FDIC up to the maximum applicable amount in accordance with applicable law
and the rules and regulations of the FDIC.
6. The Bank is in good standing with the Comptroller of the
Currency; the Company is in good standing with the Federal Reserve Board; and
Sterling Banking Corporation is in good standing with the Banking Department of
the State of New York. The activities of the Company, the Bank Subsidiary and
Sterling Banking Corporation are permitted under applicable federal and state
banking laws, rules and regulations.
A-2
EXHIBIT B TO
UNDERWRITING AGREEMENT
The opinion of counsel to the Property Trustee and the Delaware Trustee
under the Trust Agreement, the Indenture Trustee under the Indenture and the
Guarantee Trustee under the Guarantee to be delivered pursuant to Section
8(d)(ii) of the Underwriting Agreement shall be substantially to the effect
that:
(A) [Trust Company] has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware.
(B) [Trust Company] has all power and authority necessary to
execute, deliver and perform its obligations as Property Trustee under the Trust
Agreement, Indenture Trustee under the Indenture and Guarantee Trustee under the
Guarantee Agreement and has taken all necessary action to authorize the
execution, delivery and performance, by it, of the Trust Agreement, the
Indenture and the Guarantee Agreement.
(C) Each of the Trust Agreement, the Indenture and the Guarantee
Agreement has been duly authorized, executed and delivered by [Trust Company]
and constitutes a legal, valid and binding obligation of [Trust Company],
enforceable against [Trust Company], in accordance with its terms.
(D) The execution, delivery and performance by [Trust Company] of
the Trust Agreement, the Indenture and the Guarantee Agreement do not conflict
with, or constitute a breach of, the charter or by-laws of [Trust Company].
(E) No consent, approval or authorization of, or registration with
or notice to, any governmental authority or agency of the State of Delaware or
the United States of America governing the banking or trust powers of [Trust
Company] is required for the execution, delivery or performance by [Trust
Company] of the Trust Agreement, the Indenture and the Guarantee Agreement.
(F) The Junior Subordinated Debentures delivered on the Closing
Date (or an Option Closing Date, as the case may be) have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
EXHIBIT C TO
UNDERWRITING AGREEMENT
The opinion of special Delaware counsel to the Company and the Trust to
be delivered pursuant to Section 8(d)(iii) of the Underwriting Agreement shall
be substantially to the effect that:
(A) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act, and all filings
required as of the date hereof under the Delaware Act with respect to the
creation and valid existence of the Trust as a business trust have been made.
(B) Under the Trust Agreement and the Delaware Act, the Trust has
all trust power and authority necessary to own property and to conduct its
business, all as described in the Prospectus.
(C) The Trust Agreement constitutes a valid and binding obligation
of the Company and each of the Property Trustee, the Delaware Trustee and each
of the Administrative Trustees, and is enforceable against the Company and each
of the Property Trustee, the Delaware Trustee and each of the Administrative
Trustees, in accordance with its terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application relating to or affecting the enforcement of
creditors' rights and by the application of equitable principles relating to the
availability of remedies).
(D) Under the Trust Agreement and the Delaware Act, the Trust has
the trust power and authority (i) to execute and deliver, and to perform its
obligations under, the Underwriting Agreement and (ii) to issue, and to perform
its obligations under, the Preferred Securities and the Common Securities.
(E) Under the Trust Agreement and the Delaware Act, the execution
and delivery by the Trust of the Underwriting Agreement, and the performance by
it of its obligations thereunder, have been duly authorized by all necessary
trust action on the part of the Trust.
(F) Under the Delaware Act and the Trust Agreement, the
certificate attached to the Trust Agreement as Exhibit D is an appropriate form
of certificate to evidence ownership of the Preferred Securities. The Preferred
Securities have been duly authorized by the Trust Agreement and are duly and
validly issued and, subject to the qualifications set forth herein, are fully
paid and nonassessable undivided beneficial interests in the assets of the
Trust. The holders of Preferred Securities, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the holders of Preferred
Securities may be obligated, pursuant to the Trust Agreement, to (a) provide
indemnity
and/or security in connection with and pay taxes or governmental charges arising
from transfers or exchanges of Preferred Securities Certificates and the
issuance of replacement Preferred Securities Certificates, and (b) provide
security or indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights or powers under the Trust Agreement.
(G) The Common Securities have been duly authorized for issuance
by the Trust Agreement and, when issued, delivered and paid for in accordance
with the terms of the Trust Agreement and as described in the Prospectus, will
be validly issued fully paid undivided beneficial interests in the assets of the
Trust.
(H) Under the Trust Agreement and the Delaware Act, the issuance
of the Preferred Securities and the Common Securities is not subject to
preemptive or similar rights.
(I) The issuance and sale by the Trust of the Preferred Securities
and the Common Securities, the purchase by the Trust of the Subordinated
Debentures, the execution, delivery and performance by the Trust of the
Underwriting Agreement, the consummation by the Trust of the transactions
contemplated by the Underwriting Agreement and the Prospectus and compliance by
the Trust with its obligations under the Underwriting Agreement do not violate
(i) any of the provisions of the Certificate of Trust or the Trust Agreement or
(ii) any applicable Delaware law or administrative regulation.
C-2