ARCADIA FINANCIAL LTD.
$75,000,000
11 1/2% Senior Notes due 2007
UNDERWRITING AGREEMENT
October 3, 1997
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Arcadia Financial Ltd., a Minnesota corporation (the "Company"),
proposes to issue and sell to ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (collectively, the "Underwriters")
an aggregate of $75,000,000 principal amount of 11 1/2% Senior Notes due 2007
(the "Notes" or the "Securities") of the Company. The Notes are to be issued
pursuant to the provisions of an Indenture dated as of March 12, 1997 (the "Base
Indenture"), as supplemented by a Second Supplemental Indenture to be dated as
of the Closing Date (the "Second Supplemental Indenture" and, together with the
Base Indenture, the "Indenture") by and between the Company and the Norwest Bank
Minnesota, National Association, as Trustee (the "Trustee"). This Agreement
and the Indenture are referred to herein collectively as the "Operative
Documents". Capitalized terms used herein but not otherwise defined shall have
the definitions given to such terms in the Indenture.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission"), in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 (No. 333-18027, such registration
statement, in the form it became effective on January 13, 1997 under the Act,
including the exhibits thereto and the documents incorporated or deemed
incorporated by reference therein on or after such effective date, being
hereinafter referred to as the "Shelf Registration Statement"), and related
prospectus, dated March 7, 1997 (the "Base Shelf Prospectus"). We understand
that the Company wishes to distribute to the public in the United States the
Securities. To that end, the Company has filed with the Commission pursuant to
Rule 424(b) under the Act a preliminary prospectus supplement subject to
completion, dated October 1, 1997 (the "Preliminary Prospectus Supplement") to
the Base Shelf Prospectus. We understand that the Company will prepare and file,
without delay, with the Commission pursuant to Rule 424(b) under the Act a final
prospectus supplement (the "Final Prospectus Supplement") in respect of the
distribution of the Securities. The Base Shelf Prospectus, including the
documents incorporated or deemed incorporated by reference therein, as modified
and supplemented by the Final Prospectus Supplement in the form first used to
confirm sales of the Securities, is hereinafter referred to as the "Prospectus."
The Base Shelf Prospectus, including the documents incorporated by reference
therein, as modified and supplemented by the Preliminary Prospectus Supplement
and as the same may be amended or supplemented, is hereinafter referred to as
the "Preliminary Prospectus." The Shelf Registration Statement, at the time it
became effective and, if amended, as amended at the time such amendment becomes
effective, is hereinafter referred to as the "Registration Statement."
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to
issue and sell to the Underwriters, and each of the Underwriters, upon the basis
of the representations and warranties contained in this Agreement, and subject
to its terms and conditions, agrees severally and not jointly, to purchase from
the Company, the aggregate principal amount of Securities set forth opposite
their names on Schedule A hereto, at a purchase price equal to $952.50 per
$1,000 principal amount of the Notes (the "Purchase Price").
3. TERMS OF PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose (i) to make a public offering of the Securities as soon as
in your judgment is advisable and (ii) initially to offer the Securities upon
the terms set forth in the Prospectus.
4. DELIVERY AND PAYMENT. Delivery to the Underwriters of and
payment for the Securities shall be made at 10:00 A.M., New York City time, on
the third business day (the "Closing Date") following the date of the public
offering, at such place as you shall designate. The Closing Date and the
location of delivery of and the form of payment for the Securities may be varied
by agreement between you and the Company.
The Notes in definitive form shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date and shall be made available to you
for inspection not later than 9:30 A.M., New York City time, on the business day
next preceding the Closing Date. The Notes shall be delivered to you on the
Closing Date with any transfer taxes payable upon initial issuance thereof duly
paid by the Company, for the accounts of the several Underwriters, against
payment of the Purchase Price therefor by certified or official bank checks
payable in New York Clearing House funds or similar next-day funds to the order
of the Company.
5. AGREEMENTS OF THE COMPANY. The Company agrees with you:
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(a) To (i) not later than October 5, 1997, prepare and file with the
Commission pursuant to Rule 424(b) of the Act the Prospectus and (ii) as
promptly as practicable following the execution and delivery hereof and
prior to the Closing Date, prepare and file with the Commission one or more
Current Reports on Form 8-K including this Agreement, the Final Prospectus
Supplement and an Exhibit 8 opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ as exhibits
thereto.
(b) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of the filing of the Prospectus and of any amendment
of or supplement thereto (including any filing under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), incorporated by
reference therein), (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
Prospectus or the suspension of qualification of the Securities for
offering or sale in any jurisdiction, or the initiation of any proceeding
for such purposes, and (iii) of the happening of any event during the
period referred to in paragraph (e) below which makes any statement of a
material fact made in the Registration Statement or the Prospectus untrue
or which requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement or the use
of the Prospectus, the Company will make every reasonable effort to obtain
the withdrawal or lifting of such order at the earliest possible time.
(c) To furnish to you, without charge, two signed copies of the
Registration Statement as first filed with the Commission and of each
amendment thereto, and two copies of all exhibits filed therewith and all
documents incorporated by reference therein, and to furnish to you such
number of conformed copies of the Registration Statement and of each
amendment thereto and of all documents incorporated by reference in the
Registration Statement and each amendment thereto, without exhibits, as you
may reasonably request.
(d) Not to file any amendment to the Registration Statement or to
make or file any amendment or supplement to the Prospectus of which you
shall not previously have been advised or to which you shall reasonably
object; and to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration Statement or
amendment or supplement to the Prospectus which may be necessary or
advisable in connection with the distribution of the Securities or any
other securities relating thereto, by you, and to use its best efforts to
cause the same to become promptly effective.
(e) From time to time for such period as in the opinion of counsel
for the Company or the Underwriters a prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, to
furnish to each Underwriter and dealer as many copies of the Prospectus
(and of any amendment or supplement to the Prospectus) as such Underwriter
or dealer may reasonably request.
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(f) If during the period specified in paragraph (e) of this Section 5
any event shall occur as a result of which, in the opinion of counsel for
the Company or the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement the Prospectus
to comply with any law, forthwith to prepare and file with the Commission
an appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not in
the light of the circumstances when it is so delivered, be misleading, or
so that the Prospectus will comply with law, and to furnish to each
Underwriter and to such dealers as you shall specify, such number of copies
thereof as such Underwriter or dealers may reasonably request.
(g) Prior to any public offering of the Securities, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Securities for offer and sale by the several
underwriters and by dealers under the state securities or Blue Sky laws of
such jurisdictions as you may request, to continue such qualification in
effect so long as required for distribution of the Securities and to file
such consents to service of process or other documents as may be necessary
in order to effect such registration or qualification.
(h) To make generally available to its stockholders as soon as
reasonably practicable an earnings statement covering a period of at least
twelve months after the "effective date" (as defined in Rule 158 under the
Act) of the Registration Statement (but in no event commencing later than
90 days after such date) which shall satisfy the provisions of Section
11(a) of the Act.
(i) During the period ending five years after the date of this
Agreement, to furnish to you as soon as available a copy of each report or
other publicly available information of the Company required to be
furnished to the holders of the Securities by law or pursuant to the
Indenture or filed with the Commission and such other publicly available
information concerning the Company and its subsidiaries as you may
reasonably request.
(j) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, to pay and be responsible for
all costs, expenses, fees and taxes in connection with or incident to
(i) the preparation, printing, duplicating, filing and distribution under
the Act of the Registration Statement (including financial statements, if
any, and exhibits), each preliminary prospectus and all amendments and
supplements to any of them prior to or during the period specified in
paragraph (e) of this Section 5, (ii) the preparation, printing,
duplicating, filing and distribution of the Preliminary Prospectus,
Prospectus and all amendments or supplements thereto during the period
specified in paragraph (e), (iii) the printing and delivery of this
Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all
other agreements, memoranda, correspondence and other documents printed and
delivered in connection with the offering of the Securities
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(including in each case any disbursements of counsel for the Underwriters
relating to such printing and delivery), (iv) the registration or
qualification of the Securities for offer and sale under the securities or
Blue Sky laws of the several states (including in each case the fees and
disbursements of counsel for the Underwriters relating to such registration
or qualification and memoranda relating thereto), (v) filings and clearance
with the National Association of Securities Dealers, Inc. ("NASD") in
connection with the offering, if any, (vi) the rating of the Securities by
investment rating agencies, (vii) furnishing such copies of the
Registration Statement, the Preliminary Prospectus, the Prospectus and all
amendments and supplements thereto as may be requested for use in
connection with the offering or sale of the Securities by the Underwriters
or by dealers to whom Securities may be sold, (viii) the fees and expenses
of the Trustee and the fees and disbursements of any counsel for the
Trustee in connection with the Notes, and (ix) the performance by the
Company of its other obligations under this Agreement.
(k) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against holders of the Securities.
(l) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company
prior to the Closing Date and to satisfy all conditions precedent to the
delivery of the Securities.
(m) During the period when the Prospectus is required to be delivered
under the Act or the Exchange Act, to file all documents required to be
filed with the Commission pursuant to Sections 13, 14 or 15 of the Exchange
Act within the time periods required by the Exchange Act and the rules and
regulations thereunder.
(n) Not to take any action with respect to the Securities in
violation of Regulation M under the Exchange Act.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) At the time of the effectiveness of the Registration Statement or
the effectiveness of any post-effective amendment to the Registration
Statement, at the date of the Prospectus, when any supplement to or
amendment of the Prospectus is filed with the Commission, when any document
filed under the Exchange Act is filed and at the Closing Date, the
Registration Statement and the Prospectus and any amendments thereof and
supplements thereto complied and will comply in all material respects with
the applicable provisions of the Act and the Exchange Act and the
respective rules and regulations thereunder and, after giving effect to the
application of Rule 412 under the Act, do not and will not contain an
untrue statement of a material fact and do not and will not omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein (i) in the case of the Registration Statement,
not misleading and (ii) in the case of the Prospectus, in
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light of the circumstances under which they were made, not misleading. No
representation and warranty is made in this paragraph (a), however, with
respect to any information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter expressly for use in
connection with the preparation thereof. The Base Indenture has been
qualified under and will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended, and the rules
and regulations thereunder (collectively, the "TIA"). At the Closing Date,
the Second Supplemental Indenture will have been qualified under and will
conform in all material respects to the requirements of the TIA.
(b) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the requisite
corporate power and authority to carry on its business as it is currently
being conducted and to own, lease and operate its properties, and each is
duly qualified and is in good standing as a foreign corporation authorized
to do business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not, singly or in the aggregate,
have a material adverse effect on the business, results of operations,
condition (financial or otherwise) or prospects of the Company and its
subsidiaries, taken as a whole.
(c) The Company has full corporate power and authority to execute,
deliver and perform its obligations under each of the Operative Documents
and to consummate the transactions contemplated thereby, including, without
limitation, all requisite corporate authority and power to authorize,
issue, sell and deliver the Securities as contemplated by this Agreement.
(d) This Agreement has been duly authorized and validly executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms (assuming the due execution and delivery hereof by you and
except as rights to indemnity and contribution hereunder may be limited by
applicable law), subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general application
affecting creditors' or secured creditors' rights (including, without
limitation, applicable fraudulent transfer laws), and subject to the effect
of general principles of equity (including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing) and other similar
doctrines affecting the enforceability of agreements generally (regardless
of whether considered in a proceeding in equity or at law), and subject,
insofar as related to the indemnity and contribution provisions, to the
effect of federal and state securities laws and public policy related
thereto.
(e) The Notes have been duly authorized by the Company and, on the
Closing Date, will have been duly executed by the Company and will conform
in all
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material respects to the description thereof in the Prospectus. When the
Notes are issued, authenticated and delivered in accordance with the
Indenture and paid for in accordance with the terms of this Agreement, the
Notes will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms and entitled
to the benefits of the Indenture, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws of general
application affecting creditors' or secured creditors' rights (including,
without limitation, applicable fraudulent transfer laws), and subject to
the effect of general principles of equity (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing) and
other similar doctrines affecting the enforceability of agreements
generally (regardless of whether considered in a proceeding in equity or at
law).
(f) The Base Indenture and the Second Supplemental Indenture have
been duly authorized by the Company and, on the Closing Date, will have
been duly executed by the Company and will conform in all material respects
to the description thereof in the Prospectus. When the Base Indenture and
the Second Supplemental Indenture have been duly executed and delivered,
the Base Indenture and the Second Supplemental Indenture will be valid and
legally binding agreements of the Company, enforceable against the Company
in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws of general
application affecting creditors' or secured creditors' rights (including,
without limitation, applicable fraudulent transfer laws), and subject to
the effect of general principles of equity (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing) and
other similar doctrines affecting the enforceability of agreements
generally (regardless of whether considered in a proceeding in equity or at
law).
(g) All of the issued and outstanding shares of capital stock of, or
other ownership interests in, each subsidiary of the Company have been duly
and validly authorized and issued, and all of the shares of capital stock
of, or other ownership interests in, each subsidiary of the Company are
owned, directly or through its subsidiaries, by the Company. All such
shares of capital stock are fully paid and nonassessable, and, except as
otherwise set forth in the Registration Statement or the Prospectus, are
owned free and clear of any security interest, mortgage, pledge, claim,
lien or encumbrance (each, a "Lien"). Except as otherwise set forth in the
Registration Statement or the Prospectus, there are no outstanding
subscriptions, rights, warrants, options, calls, convertible securities,
commitments of sale or Liens related to or entitling any person, other than
the Company, to purchase or otherwise to acquire any shares of the capital
stock of, or other ownership interest in, any subsidiary of the Company.
(h) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws or in default in the performance of
any obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any other agreement,
indenture or instrument material to the
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conduct of the business of the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by
which it or any of its subsidiaries or their respective property is bound.
(i) The execution, delivery and performance of the Operative
Documents do not, and the issuance of the Securities by the Company will
not, require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental body
(except as such may be required under the Act or other securities or Blue
Sky laws) and do not and will not conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the charter or by-
laws of the Company or any material agreement, indenture or other
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective properties
are bound, or violate or conflict with any laws, administrative regulations
or rulings or court decrees applicable to the Company or any of its
subsidiaries or their respective properties.
(j) Except as otherwise set forth in the Registration Statement or
the Prospectus, there are no material legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any of their respective property is the subject, and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated. No contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be
incorporated by reference or filed as an exhibit to the Registration
Statement is not so described, incorporated or filed as required.
(k) Except as otherwise set forth in the Registration Statement or
the Prospectus, neither the Company nor any of its subsidiaries has
violated any law applicable to it or its business, including, but not
limited to, any Environmental Laws, any federal or state law relating to
discrimination in the hiring, promotion or pay of employees, any applicable
federal or state wages and hours laws, any provisions of the Employee
Retirement Income Security Act or the rules and regulations promulgated
thereunder, and any federal or state usury or consumer credit laws, which
in each case or in the aggregate could have a material adverse effect on
the business, results of operations, condition (financial or otherwise) or
prospects of the Company and its subsidiaries, taken as a whole.
(l) All tax returns required to be filed by the Company or any of its
subsidiaries in any jurisdiction have been filed, other than those filings
being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided or those currently payable without penalty or interest.
(m) No authorization, approval or consent or order of, or filing
with, any court or governmental body or agency is necessary in connection
with the transactions
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contemplated by this Agreement, except such as may be required by the NASD
or state securities or Blue Sky laws or regulations or have been obtained
and made under the Act and the TIA. Neither the Company nor any of its
affiliates is presently doing business with the government of Cuba or with
any person or affiliate located in Cuba.
(n) The Company and each of its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and operate
its respective properties and to conduct its business; the Company and each
of its subsidiaries has fulfilled and performed all of its material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such permit; and, except as described in the
Prospectus, such permits contain no restrictions that are materially
burdensome to the Company and its subsidiaries, taken as a whole.
(o) Except as otherwise set forth in the Registration Statement or
Prospectus or such as are not material to the business, results of
operations, condition (financial or otherwise) or prospects of the Company
and its subsidiaries, taken as a whole, the Company and each of its
subsidiaries has good and marketable title, free and clear of all Liens,
claims, encumbrances and restrictions except Liens for taxes not yet due
and payable, to all property and assets described in the Registration
Statement or Prospectus as being owned by it. All leases to which the
Company or any of its subsidiaries is a party are valid and binding and no
default has occurred or is continuing thereunder which might have any
material adverse effect on the business, results of operations, condition
(financial or otherwise) or prospects of the Company and its subsidiaries,
taken as a whole, and the Company and its subsidiaries enjoy peaceful and
undisturbed possession under all such leases to which any of them is a
party as lessee with such exceptions as do not materially interfere with
the use made by the Company or such subsidiary.
(p) The Company and each of its subsidiaries maintain insurance
(subject to customary deductibles and retentions) with responsible
insurance companies in such amounts and against such risks as is
customarily carried by responsible companies engaged in similar businesses.
(q) Ernst & Young LLP are independent public accountants with respect
to the Company as required by the Act.
(r) The financial statements, together with related schedules and
notes forming part of or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of operations
and changes in financial position of the Company and its consolidated
subsidiaries on the basis stated therein at the respective dates or for the
respective periods to which they apply; such statements and
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related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and
statistical information and data set forth in the Registration Statement
and the Prospectus (and any amendment or supplement thereto) is, in all
material respects, accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company.
(s) Neither the Company nor any of its subsidiaries is (a) an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or
(b) a "holding company" or a "subsidiary company" of a holding company, or
an "affiliate" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(t) No holder of any security of the Company has any right that has
not been effectively waived to require registration of any security of the
Company in connection with the offering contemplated hereby.
(u) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(v) The documents incorporated by reference in the Prospectus, at the
time they were filed with the Commission, complied in all material respects
with the requirements of the Exchange Act and the rules and regulations of
the Commission under the Exchange Act.
7. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless (i) each of the Underwriters and (ii) each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20(a) of
the Exchange Act) any of the Underwriters (any of the persons referred to
in this clause (ii) being hereinafter referred to as a "controlling
person") (any person referred to in clause (i) or (ii) may hereinafter be
referred to as an "Indemnified Person") to the fullest extent lawful, from
and against any and all losses, claims, damages, liabilities, judgments,
actions and expenses (including without limitation and as incurred,
reimbursement of all reasonable costs of investigating, preparing, pursuing
or defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to any Indemnified Person) directly
or indirectly caused by, related to, based upon, arising out of or in
connection with any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (including any amendment or supplement thereto) or
the Preliminary Prospectus or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus and the Preliminary
Prospectus, in the light of the circumstances under which they were made)
not misleading, except insofar as such losses, claims, damages, liabilities
or expenses are caused by, related to, based upon, arising out of or in
connection with an untrue statement or omission or alleged untrue statement
or
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omission that is made in reliance upon and in conformity with information
relating to any of the Underwriters furnished in writing to the Company by
such Underwriter, expressly for use in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement thereto)
or the Preliminary Prospectus. The Company shall notify you promptly of
the institution, threat or assertion of any claim, proceeding (including
any governmental investigation) or litigation in connection with the
matters addressed by this Agreement which involves the Company or an
Indemnified Person.
(b) In case any action or proceeding shall be brought or asserted
against any of the Indemnified Persons with respect to which indemnity may
be sought against the Company, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Indemnified Persons and payment of all fees
and expenses. Any Indemnified Person shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company, (ii) the Company
shall have failed to assume the defense and employ counsel or (iii) the
named parties to any such action (including any impleaded parties) include
both such Indemnified Person and the Company and such Indemnified Person
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Company (in which case the Company shall not have the
right to assume the defense of such action on behalf of such Indemnified
Person, it being understood, however, that the Company shall not, in
connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) for
all such Indemnified Persons, which firm shall be designated in writing by
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, and that all such fees
and expenses shall be reimbursed as they are incurred). The Company shall
not be liable for any settlement of any such action effected without
written consent but if settled with the written consent of the Company, the
Company agrees to indemnify and hold harmless any Indemnified Person from
and against any loss, claim, damage, liability or expense by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested the Company to reimburse the
Indemnified Person for fees and expenses of counsel to which the
Indemnified Person is entitled by the second sentence of this paragraph,
the Company agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by the Company of the
aforesaid request and (ii) the Company shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of
such settlement. The Company shall not, without the prior written consent
of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity
11
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person
from all liability on claims that are the subject matter of such
proceeding.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, any person controlling the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act to
the same extent as the foregoing indemnity from the Company to each of the
Indemnified Persons, but only with reference to information relating to
such Underwriter furnished in writing by or on behalf of you expressly for
use in the Registration Statement, the Prospectus or the Preliminary
Prospectus. In case any action shall be brought against the Company, any
of its directors, any such officer or any person controlling the Company
based on the Registration Statement, the Prospectus or the Preliminary
Prospectus and in respect of which indemnity may be sought against any
Underwriter, the Underwriter shall have the rights and duties given to the
Company (except that if the Company shall have assumed the defense thereof
such Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), and
the Company, its directors, any such officers and any person controlling
the Company shall have the rights and duties given to the Underwriter, by
paragraph (b) of this Section 7.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and judgments (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other hand from
the offering of the Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Underwriters
in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Underwriters shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company, and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the
public of the Securities, in each case as set forth in the table on the
cover page of the First Prospectus Supplement. The relative fault of the
Company and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
12
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this paragraph (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or judgments referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter (or its related Indemnified
Persons) shall be required to contribute, in the aggregate, any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligation to contribute
pursuant to this paragraph (d) are several in proportion to the respective
principal amount of Securities purchased by each of the Underwriters
hereunder and not joint.
8. CONDITIONS TO UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters to purchase the Securities under this Agreement are subject to
the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date. The
Company shall have performed or complied with all of its obligations and
agreements herein contained and required to be performed or complied with
by it at or prior to the Closing Date.
(b) At the Closing Date no stop order suspending the effectiveness of
the Registration Statement or the use of the Prospectus shall have been
issued and no proceedings for that purpose shall have been commenced or
shall be pending before or contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading, nor
shall any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the direction
of the possible change in the rating accorded any of the Company's
securities (including the Securities) by any "nationally recognized
statistical rating organization," as such term is defined for purposes of
Rule 436(g) under the Act.
13
(d) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance of the
Securities; and no injunction, restraining order or order of any nature by
a federal or state court of competent jurisdiction shall have been issued
as of the Closing Date which would prevent the issuance of the Securities.
(e) (i) Except as disclosed in the Registration Statement or the
Prospectus, from the date of the latest balance sheet included or
incorporated by reference in the Registration Statement and the Prospectus
until the date of the Final Prospectus Supplement, there shall not have
been any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, affairs or business prospects, whether or
not arising in the ordinary course of business, of the Company, (ii) from
the date of the latest balance sheet included or incorporated by reference
in the Registration Statement and the Prospectus until the date of the
Final Prospectus Supplement, there shall not have been any adverse change,
or any development involving a prospective material adverse change, in the
capital stock or in the long-term debt of the Company from that set forth
in the Registration Statement and the Prospectus, (iii) the Company and its
subsidiaries shall have no liability or obligation, direct or contingent,
which is material to the Company and its subsidiaries, taken as a whole,
other than those reflected in the Registration Statement and the Prospectus
and (iv) on the Closing Date you shall have received a certificate dated
the Closing Date, signed by the President and Chief Executive Officer and
the Executive Vice President and Chief Financial Officer of the Company,
confirming, as of the Closing Date, the matters set forth in paragraphs
(a), (b), (c), (d) and (e) of this Section 8.
(f) You shall have received on the Closing Date opinions
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of ▇▇▇▇▇▇ & Whitney LLP, special counsel to the Company and, with
respect to those matters identified with an asterisk (*), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
III, Senior Vice President, Corporate Counsel and Secretary of the Company,
to the effect that:
(i) each of the Company, Arcadia Receivables Finance Corp.
("ARFC"), Arcadia Receivables Finance Corp. II ("ARFC II") and Arcadia
Receivables Conduit Corp. ("ARCC") has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation and has the corporate power and
authority required to carry on its business as described in the
Registration Statement and the Prospectus and to own, lease and
operate its properties, and all of the outstanding shares of capital
stock of ARFC, ARFC II and ARCC have been duly authorized and validly
issued and are fully paid and nonassessable. The Company is the sole
registered owner of such shares, and such counsel has no knowledge of
any security interest, claim, lien, encumbrance or adverse interest of
any nature affecting such shares, except as set forth in such opinion
or the Prospectus;
14
*(ii) the Company and each of its subsidiaries is duly qualified
and in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
*(iii) all of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and non-
assessable, and are owned by the Company, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any
nature, except as set forth in such opinion.
(iv) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws of general application affecting
creditors' or secured creditors' rights (including, without
limitation, applicable fraudulent transfer laws), and subject to the
effect of general principles of equity (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing)
and other similar doctrines affecting the enforceability of agreements
generally (regardless of whether considered in a proceeding in equity
or at law), and subject, insofar as related to the indemnity and
contribution provisions, to the effect of federal and state securities
laws and public policy related thereto;
(v) the Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the
terms of this Agreement, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms and entitled to the benefits of the
Indenture, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general
application affecting creditors' or secured creditors' rights
(including, without limitation, applicable fraudulent transfer laws),
and subject to the effect of general principles of equity (including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing) and other similar doctrines affecting the
enforceability of agreements generally (regardless of whether
considered in a proceeding in equity or at law);
(vi) the Base Indenture and the Second Supplemental Indenture,
assuming due authorization, execution and delivery thereof by the
Trustee, constitute valid and legally binding agreements of the
Company, enforceable against the Company in accordance with their
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws of
15
general application affecting creditors' or secured creditors' rights
(including, without limitation, applicable fraudulent transfer laws),
and subject to the effect of general principles of equity (including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing) and other similar doctrines affecting the
enforceability of agreements generally (regardless of whether
considered in a proceeding in equity or at law);
(vii) the Securities and the Indenture conform in all material
respects to the description thereof contained in the Final Prospectus
Supplement under the caption "Description of Notes" and in the Base
Shelf Prospectus under the captions "Description of Debt Securities"
and "Description of Senior Debt Securities";
(viii) the Registration Statement has become effective under the
Act; any required filings of the Base Shelf Prospectus, the
Preliminary Prospectus and the Final Prospectus Supplement pursuant to
Rule 424(b) have been made in the manner and within the time period
required by Rule 424(b); the Final Prospectus Supplement has been
filed with the Commission as an exhibit to a Current Report on
Form 8-K of the Company; the Base Indenture and the Second
Supplemental Indenture have been qualified under and conform in all
material respects to the requirements of the TIA, and to the knowledge
of such counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings therefor have been instituted or are pending or
contemplated under the Act;
*(ix) neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws and, to the best of
such counsel's knowledge after due inquiry, neither the Company nor
any of its subsidiaries is in default in the performance of any
obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness, or in any other agreement,
indenture or instrument, in each case which is material to the Company
and its subsidiaries, taken as a whole, to which the Company or any of
its subsidiaries is a party or by which it or any of its subsidiaries
or their respective property is bound;
(x) the execution, delivery and performance of the Operative
Documents do not, and the issuance of the Securities will not, require
any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body
(except as such may be required under the Act or other securities or
Blue Sky laws) and do not and will not conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the
charter or by-laws of the Company or any agreement, indenture or other
instrument which has been identified to such counsel as material and
to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or their respective properties
are bound, or violate or conflict with any laws, administrative
16
regulations or rulings or court decrees applicable to the Company or
any of its subsidiaries or their respective properties.
(xi) such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of their respective property
is subject which is required to be described in the Registration
Statement or the Prospectus and is not so described, or of any
contract or other document which is required to be described in the
Registration Statement or the Prospectus or is required to be filed as
an exhibit to the Registration Statement which is not described or
filed as required;
*(xii) to the best of such counsel's knowledge, after due
inquiry, except as otherwise set forth in the Registration Statement
or the Prospectus, neither the Company nor any of its subsidiaries has
violated any law applicable to it or its business, including, but not
limited to, any Environmental Laws, any federal or state law relating
to discrimination in the hiring, promotion or pay of employees, any
applicable federal or state wages and hours laws, nor any provisions
of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, and any federal or state usury or
consumer credit laws, which in each case could individually or in the
aggregate have any material adverse effect on the business, results of
operations, condition (financial or otherwise) or prospects of the
Company and its subsidiaries, taken as a whole;
*(xiii) to the best of such counsel's knowledge, after due
inquiry, except as otherwise set forth in the Registration Statement
or the Prospectus or such as are not material to the business, results
of operations, condition (financial or otherwise) or prospects of the
Company and its subsidiaries, taken as a whole, the Company and each
of its subsidiaries has good and marketable title, free and clear of
all liens, claims, encumbrances and restrictions, except liens for
taxes not yet due and payable, to all property and assets described in
the Registration Statement as being owned by it;
*(xiv) to the best of such counsel's knowledge, after due
inquiry, except as otherwise set forth in the Registration Statement
or the Prospectus, all leases to which the Company or any of its
subsidiaries is a party are valid and binding and no default has
occurred or is continuing thereunder, which might have any material
adverse effect on the business, results of operations, condition
(financial or otherwise) or prospects of the Company and its
subsidiaries, taken as a whole, and the Company and its subsidiaries
enjoy peaceful and undisturbed possession under all such leases to
which any of them is a party as lessee with such exceptions as do not
materially interfere with the use made by the Company or such
subsidiary;
17
*(xv) except as otherwise set forth in the Registration Statement
or the Prospectus, the Company and each of its subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation,
under any Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its business in the
manner described in the Prospectus; except as otherwise set forth in
the Registration Statement or the Prospectus, to the best of such
counsel's knowledge, after due inquiry, the Company and each of its
subsidiaries has fulfilled and performed all of its material
obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of
the rights of the holder of any such permit, subject in each case to
such qualification as may be set forth in the Prospectus; and, except
as described in the Registration Statement or the Prospectus, such
permits contain no restrictions that are materially burdensome to the
Company or any of its subsidiaries;
(xvi) neither the Company nor any of its subsidiaries is (a) an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, or (b) a "holding company" or a "subsidiary company" of a
holding company, or an "affiliate" thereof within the meaning of the
Public Utility Holding Company Act of 1935, as amended;
(xvii) to the best of such counsel's knowledge, no holder of any
security of the Company has any right that has not expired or been
exercised or effectively waived to require registration of any
security of the Company in connection with the offering contemplated
hereby; and
(xviii) the Registration Statement and the Prospectus (other than
the financial statements and schedules and other financial and
statistical information and data included therein or incorporated by
reference therein, as to which no opinion need be expressed) comply as
to form in all material respects with the requirements of the Act; the
documents incorporated and deemed incorporated by reference in the
Prospectus when filed with the Commission under the Exchange Act,
complied as to form in all material respects with the requirements of
the Exchange Act; and nothing came to their attention which would lead
them to believe that the Registration Statement (other than the
financial statements and schedules and other financial and statistical
information and data, as aforesaid), when such Registration Statement
became effective, 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, or, that the
Prospectus, as of the date of such opinion (except for financial
statements and schedules and other financial and statistical
information and data, as aforesaid) contains any untrue statement of a
material fact or omits to state a material fact necessary in order
18
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In connection with the matters covered by clause (xviii), such counsel
may state that their statements and belief are based upon their participation in
the preparation of the Registration Statement and the Prospectus and review and
discussion of the contents thereof, but are without independent check or
verification except as specified.
(g) You shall have received on the Closing Date an opinion, dated the
Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, in form
and substance satisfactory to the Underwriters, and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall
have received such papers and information as it reasonably requests to
enable it to pass upon the matters contained in such opinion.
The opinions of ▇▇▇▇▇▇ & Whitney LLP and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ described in
paragraphs (f) and (g) of this Section 8 shall be rendered to you at the request
of the Company and shall so state therein.
(h) You shall have received letters on and as of the date hereof and
on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the former), in form and
substance satisfactory to you, from Ernst & Young LLP, independent public
accountants, with respect to the financial statements and certain financial
information contained and incorporated by reference in the Registration
Statement and the Prospectus.
(i) The Company shall not have failed at or prior to the Closing Date
to perform or comply in any material respect with any of the agreements
herein contained and required to be performed or complied with by the
Company at or prior to the Closing Date.
(j) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have been furnished with such documents
and opinions, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in this Section 8 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(k) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may
reasonably request.
9. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement
shall become effective upon the execution of this Agreement by the parties
hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by written notice to the Company if any of the following has
occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the
19
Prospectus, any adverse change or development involving a prospective adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries, taken as a whole, or the earnings, affairs, or business prospects
of the Company and its subsidiaries, taken as a whole, whether or not arising in
the ordinary course of business, which would, in your judgment, make it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus, (ii) any outbreak or escalation of hostilities
or other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere that,
in your judgment, is material and adverse and would, in your judgment, make it
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities on the terms and in the manner contemplated in
the Prospectus, (iii) the suspension or limitation of trading generally in
securities on the New York Stock Exchange, the American Stock Exchange or the
National Association of Securities Dealers Automated Quotation System National
Market or limitation on prices for securities on any such exchange or national
market, (iv) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority which, in your judgment, materially and adversely
affects, or will materially and adversely affect, the business or operations of
the Company or any subsidiary of the Company, (v) the declaration of a banking
moratorium by either federal or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which, in your judgment, has a material adverse
effect on the financial markets in the United States and would, in your
judgment, make it impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities.
10. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to Arcadia
Financial Ltd., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
and (b) if to you, to you c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, its officers and directors and
of the Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Securities, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of the Underwriters or by or on behalf of
the Company or the officers or directors of the Company, (ii) acceptance of the
Securities and payment for them hereunder and (iii) termination of this
Agreement.
If this Agreement shall be terminated by the Underwriters pursuant to
clause (i) of the second paragraph of Section 9 hereof or because of any failure
or refusal on the part of the Company to comply with the terms or to fulfill any
of the conditions of this Agreement, the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by it.
20
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Securities from any of the several Underwriters merely because of
such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
21
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
ARCADIA FINANCIAL LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
---------------------------------------
Title: Senior Vice President
--------------------------------------
Accepted and agreed to as
of the date first written above:
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Senior Vice President
-----------------------------
22
SCHEDULE A
Aggregate Principal
Amount of Notes
Underwriter to be Purchased
----------- -------------------
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation $52,500,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 22,500,000
-----------
Total: $75,000,000
23