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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 20, 1998
WSFS FINANCIAL CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 0-16668 22-2866913
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(State of other Jurisdiction (Commission (I.R.S. employer
of incorporation) file number) identification no.)
838 Market Street, Wilmington, Delaware 19899
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (302) 792-6000
Not Applicable
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(Former name or former address, if changed since last report)
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Item 5. Other Events
On November 20, 1998, the Registrant's wholly owned subsidiary, WSFS
Capital Trust I (the "Trust"), issued $50,000,000 aggregate liquidation
amount of Floating Rate Cumulative Trust Preferred Securities, representing
undivided beneficial interests in the Trust (the "Trust Preferred
Securities"), at a public offering price of $1,000 per Trust Preferred
Security. Distributions will be paid on the Trust Preferred Securities at
a variable rate, reset quarterly, equal to three-month LIBOR plus 250 basis
points. The Trust Preferred Securities are guaranteed by the Registrant
based on several obligations. The Trust invested the proceeds from such
sale into $51,547,000 aggregate principal amount of Floating Rate Junior
Subordinated Deferrable Interest Debentures due December 1, 2028 of the
Company with the same financial terms and payment obligations as the Trust
Preferred Securities.
Item 7. Financial Statements. Pro Forma Financial Information and
Exhibits.
(a) Financial Statements of Business Acquired. None.
(b) Pro Forma Financial Information. None.
(c) Exhibits. The following exhibits are filed as part of this
report on Form 8-K:
Exhibit No. Description
1.1 Underwriting Agreement, dated November 17, 1998,
among WSFS Financial Corporation, Wilmington
Savings Fund Society, Federal Savings Bank, WSFS
Capital Trust I and Sandler O'Neil & Partners, L.P.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
WSFS FINANCIAL CORPORATION
Date: November 20, 1998 BY: /s/ Marvin N. Schoenhals
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Marvin N. Schoenhals
Chairman, President
and Chief Executive Officer
WSFS CAPITAL TRUST I
50,000 Trust Preferred Securities
Floating Rate Cumulative Trust Preferred Securities
(Liquidation Amount of $1,000 per Trust Preferred Security)
UNDERWRITING AGREEMENT
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November 17, 1998
SANDLER O'NEILL & PARTNERS, L.P.
Two World Trade Center, 104th Floor
New York, New York 10048
Ladies and Gentlemen:
WSFS Financial Corporation, a Delaware corporation (the
"Company"), Wilmington Savings Fund Society, FSB (the "Bank") and the
Company's financing subsidiary, WSFS Capital Trust I, a Delaware business
trust (the "Trust," and hereinafter together with the Company, and the
Bank, the "Offerors"), propose that the Trust issue and sell to Sandler
O'Neill & Partners, L.P. (the "Underwriter"), pursuant to the terms of this
Agreement, 50,000 of the Trust's Floating Rate Cumulative Trust Preferred
Securities, with a liquidation amount of $1,000 per trust preferred
security (the "Trust Preferred Securities"), to be issued under the Trust
Agreement (as hereinafter defined), the terms of which are more fully
described in the Prospectus (as hereinafter defined).
The Offerors hereby confirm as follows their agreement with the
Underwriter in connection with the proposed purchase of the Trust Preferred
Securities. The terms, conditions, covenants and agreements set forth in
this Agreement supersede and preempt the terms, conditions, covenants and
agreements of the parties set forth in any and all other agreements among
the parties hereto relating to the issuance of the Trust Preferred
Securities.
SECTION 1. Sale, Purchase and Delivery of Trust Preferred
Securities; Description of Trust Preferred Securities.
(a) Sale and Purchase of Trust Preferred Securities. On the
basis of the representations, warranties and agreements herein contained,
and subject to the terms and conditions herein set forth, the Offerors
hereby agree that the Trust shall issue and sell to the Underwriter and the
Underwriter agrees to purchase from the Trust, at a purchase price of
$1,000 per Trust Preferred Security (the "Purchase Price"), the Trust
Preferred Securities.
(b) Commission. Because the proceeds from the sale of the Trust
Preferred Securities will be used to purchase from the Company its
Debentures (as hereinafter defined and as described in the Prospectus), the
Company shall pay to the Underwriter a commission of $20 per Trust
Preferred Security purchased (the "Trust Preferred Securities Commission").
The Company shall pay, or cause to be paid, the Trust Preferred Securities
Commission, by wire transfer of immediately available funds to a bank
account designated by you.
(c) Payment and Delivery. The Trust Preferred Securities shall
be issued in the form of one or more fully registered global securities
(the "Global Securities") in book-entry form in such denominations and
registered in the name of the nominee of The Depository Trust Company (the
"DTC") or in such names as the Underwriter may request in writing at least
two business days before the Closing Date. Certificates representing the
Global Securities for the Trust Preferred Securities shall be made
available for examination by the Underwriter and counsel to the Underwriter
not later than 9:30 a.m., New York City time, on the last business day
prior to the Closing Date (as defined below). Payment of the Purchase
Price and delivery of the Trust Preferred Securities shall be made at the
offices of Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New
York, New York 10022, or such other place as shall be agreed to by you and
the Offerors, at 11:00 a.m., New York City time, on November 20, 1998, or
at such other time not more than three full business days thereafter as the
Offerors and you shall determine (the "Closing Date"). Such payments shall
be made to an account designated by the Trust by wire transfer of
immediately available funds, in the amount of the Purchase Price therefor,
against delivery by or on behalf of the Trust to you of certificates
representing the Global Securities for the Trust Preferred Securities to be
purchased. As used herein, "business day" shall mean any day other than a
Saturday, a Sunday or a legal holiday or a day on which banking
institutions or trust companies are authorized or obligated by law to close
in New York City.
(d) Description of Trust Preferred Securities. The Offerors
propose that the Trust issue the Trust Preferred Securities pursuant to an
Amended and Restated Trust Agreement, to be dated as of the Closing Date,
among the Company, Wilmington Trust Company, as property trustee (the
"Property Trustee") and Delaware trustee (the "Delaware Trustee"), and the
administrative trustees named therein (the "Administrative Trustees,"
collectively with the Property Trustee and the Delaware Trustee, the
"Trustees"), in substantially the form heretofore delivered to the
Underwriter, said Agreement being hereinafter referred to as the "Trust
Agreement." In connection with the issuance of the Trust Preferred
Securities, the Company proposes (i) to issue its Floating Rate Junior
Subordinated Deferrable Interest Debentures due 2028 ( the "Debentures")
pursuant to an Indenture, to be dated as of the Closing Date, as amended or
supplemented (the "Indenture"), between the Company and Wilmington Trust
Company, as debenture trustee (the "Debenture Trustee") and (ii) to
guarantee certain payments on the Trust Preferred Securities pursuant to a
Guarantee Agreement, to be dated as of the Closing Date (the "Guarantee"),
between the Company and Wilmington Trust Company, as guarantee trustee (the
"Guarantee Trustee"), to the extent described therein.
SECTION 2. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant to
the Underwriter that:
(i) The reports filed with the Securities and Exchange
Commission (the "Commission") by the Company under the Securities
Exchange Act of 1934, as amended (the "1934 Act") and the rules and
regulations thereunder (the "1934 Act Regulations") during the two
year period ending on the date hereof, at the time they were filed
with the Commission, complied as to form in all material respects with
the requirements of the 1934 Act and the 1934 Act Regulations and did
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading.
(ii) The Offerors have prepared and filed with the
Commission a registration statement on Form S-3, as amended by
Amendment No. 1 (File Numbers 333-56015, 333-56015-01 and 333-56015-
02), for the registration of the Trust Preferred Securities, the
Guarantee and the Debentures under the Securities Act of 1933, as
amended (the "1933 Act"), including the related prospectus subject to
completion, and one or more amendments to such registration statement
may have been so filed, in each case in conformity in all material
respects with the requirements of the 1933 Act, the rules and
regulations promulgated thereunder (the "1933 Act Regulations") and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the rules and regulations thereunder. Copies of such
registration statement, including any amendments thereto, each
Preliminary Prospectus (as defined herein) contained therein and the
exhibits, financial statements and schedules to such registration
statement, as finally amended and revised, have heretofore been
delivered by the Offerors to the Underwriter. After the execution of
this Agreement, the Offerors will file with the Commission (A) if such
registration statement, as it may have been amended, has been declared
by the Commission to be effective under the 1933 Act, a prospectus in
the form most recently included in an amendment to such registration
statement (or, if no such amendment shall have been filed, in such
registration statement), with such changes or insertions as are
required by Rule 430A of the 1933 Act Regulations ("Rule 430A") or
permitted by Rule 424(b) of the 1933 Act Regulations ("Rule 424(b)")
and as have been provided to and not objected to by the Underwriter
prior to (or as are agreed to by the Underwriter subsequent to) the
execution of this Agreement, or (B) if such registration statement, as
it may have been amended, has not been declared by the Commission to
be effective under the 1933 Act, an amendment to such registration
statement, including a form of final prospectus, necessary to permit
such registration statement to become effective, a copy of which
amendment has been furnished to and not objected to by the Underwriter
prior to (or is agreed to by the Underwriter subsequent to) the
execution of this Agreement. As used in this Agreement, the term
"Registration Statement" means such registration statement, as amended
at the time when it was or is declared effective under the 1933 Act,
including (1) all financial schedules and exhibits thereto, (2) all
documents (or portions thereof) incorporated by reference therein
filed under the 1934 Act and (3) any information omitted therefrom
pursuant to Rule 430A and included in the Prospectus (as hereinafter
defined); the term "Preliminary Prospectus" means each prospectus
subject to completion filed with such registration statement or any
amendment thereto including all documents (or portions thereof)
incorporated by reference therein under the 1934 Act (including the
prospectus subject to completion, if any, included in the Registration
Statement and each prospectus filed pursuant to Rule 424(a) under the
1933 Act); and the term "Prospectus" means the prospectus first filed
with the Commission pursuant to Rule 424(b)(1) or (4) or, if no
prospectus is required to be filed pursuant to Rule 424(b)(1) or (4),
the prospectus included in the Registration Statement, in each case
including the financial schedules and all documents (or portions
thereof) incorporated by reference therein under the 1934 Act. The
date on which the Registration Statement becomes effective is
hereinafter referred to as the "Effective Date."
(iii) The documents incorporated by reference in the
Preliminary Prospectus or Prospectus or from which information is so
incorporated by reference, when they became effective or were filed
with the Commission, as the case may be, complied in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and when read together and with the other information in
the Preliminary Prospectus or Prospectus, as the case may be, at the
time the Registration Statement became or becomes effective and at the
Closing Date, did not or will not, as the case may be, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(iv) No order preventing or suspending the use of any
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) has been issued by the Commission, nor has the
Commission, to the knowledge of the Offerors, threatened to issue such
an order or instituted proceedings for that purpose. Each Preliminary
Prospectus, at the time of filing thereof, (A) complied in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and (B) did not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Offerors by the Underwriter
expressly for inclusion in the Prospectus beneath the heading
"Underwriting" (such information referred to herein as the
"Underwriter's Information").
(v) At the Effective Date and at all times subsequent
thereto, up to and including the Closing Date, the Registration
Statement and any post-effective amendment thereto (A) complied and
will comply in all material respects with the requirements of the 1933
Act, the 1933 Act Regulations and the Trust Indenture Act (and the
rules and regulations thereunder) and (B) did not and will not contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, not misleading. At the Effective Date and at all times when
the Prospectus is required to be delivered in connection with offers
and sales of Trust Preferred Securities, including, without
limitation, the Closing Date, the Prospectus, as amended or
supplemented, (A) complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the Trust Indenture Act (and the rules and regulations thereunder) and
(B) did not contain and will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty does not apply to
Underwriter's Information or to the Statements of Eligibility of each
of the Property Trustee, the Guarantee Trustee and the Debenture
Trustee on Form T-1 filed as exhibits to the Registration Statement.
(vi) (A) The Company is duly organized, validly
existing and in good standing under the laws of the State of Delaware,
with full corporate and other power and authority to own, lease and
operate its properties and conduct its business as described in and
contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted and is duly registered as
a unitary savings and loan holding company under the Home Owners Loan
Act (the "HOLA").
(B) The Trust has been duly created and is
validly existing as a statutory business trust in good standing under
the Delaware Business Trust Act with the power and authority (trust
and other) to own its property and conduct its business as described
in the Registration Statement and Prospectus, to issue and sell its
common securities (the "Common Securities") to the Company pursuant to
the Trust Agreement, to issue and sell the Trust Preferred Securities,
to enter into and perform its obligations under this Agreement and to
consummate the transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership of its property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Trust; the Trust has
conducted and will conduct no business other than the transactions
contemplated by this Agreement and described in the Prospectus; the
Trust is not a party to or bound by any agreement or instrument other
than this Agreement, the Trust Agreement and the agreements and
instruments contemplated by the Trust Agreement and described in the
Prospectus; the Trust has no liabilities or obligations other than
those arising out of the transactions contemplated by this Agreement
and the Trust Agreement and described in the Prospectus; the Trust is
not a party to or subject to any action, suit or proceeding of any
nature; the Trust is, and at the Closing Date will be, to the
knowledge of the Offerors, 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 as of the Closing Date will be,
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(vii) The Company has no other significant subsidiaries
within the meaning of Rule 1-02 of Regulation S-X under the 1933 Act
other than the Bank and WSFS Credit Corporation ("WSFS Credit",
together with the Bank, the "Subsidiaries"). All the subsidiaries of
the Company are listed on Exhibit A attached hereto. The Company does
not own or control, directly or indirectly, more than 5% of any class
of equity security of any corporation, association or other entity
other than the subsidiaries listed on Exhibit A attached hereto. Each
Subsidiary is a savings and loan institution or corporation duly
incorporated (or created, as the case may be), validly existing and in
good standing under the laws of its respective jurisdiction of
incorporation. Each such Subsidiary has full corporate and other
power and authority to own, lease and operate its properties and to
conduct its business as described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and as
currently being conducted. The deposit accounts of the Bank are
insured by the Bank Insurance Fund administered by the Federal Deposit
Insurance Corporation up to the maximum amount provided by law; and no
proceedings for the modification, termination or revocation of any
such insurance are pending or, to the knowledge of the Offerors,
threatened.
(viii) Each of the Company and the Subsidiaries is duly
qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases
property or conducts its business so as to require such qualification
and in which the failure to so qualify would, individually or in the
aggregate, have a material adverse effect on the condition (financial
or otherwise), earnings, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis.
(ix) (A) The capital stock of the Company and the
equity securities of the Trust conform to the description thereof
contained in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). The outstanding
shares of capital stock and equity securities of each Offeror have
been duly authorized and validly issued and are fully paid and
nonassessable, and no such shares were issued in violation of the
preemptive or similar rights of any security holder of an Offeror; no
person has any preemptive or similar right to purchase any shares of
capital stock or equity securities of the Offerors. Except as
disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there are no
outstanding rights, options or warrants to acquire any securities of
the Offerors, and there are no outstanding securities convertible into
or exchangeable for any such securities and no restrictions upon the
voting or transfer of any capital stock of the Company or equity
securities of the Trust pursuant to the Company's corporate charter or
bylaws, the Trust Agreement or any agreement or other instrument to
which an Offeror is a party or by which an Offeror is bound.
(B) All of the issued and outstanding shares of
capital stock of the Subsidiaries (1) have been duly authorized and
are validly issued, (2) are fully paid and nonassessable and (3)
except as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), are directly owned
by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, restriction upon voting or transfer,
preemptive rights, claim or equity. Except as disclosed in the
Prospectus, there are no outstanding rights, warrants or options to
acquire or instruments convertible into or exchangeable for any
capital stock or equity securities of the Offerors or the
Subsidiaries.
(x) (A) The Trust has all requisite power and
authority to issue, sell and deliver the Trust Preferred Securities in
accordance with and upon the terms and conditions set forth in this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All corporate and trust action required to
be taken by the Offerors for the authorization, issuance, sale and
delivery of the Trust Preferred Securities in accordance with such
terms and conditions has been validly and sufficiently taken. The
Trust Preferred Securities, when delivered in accordance with this
Agreement, will be duly and validly issued and outstanding, will be
fully paid and nonassessable undivided beneficial interests in the
assets of the Trust, will be entitled to the benefits of the Trust
Agreement, will not be issued in violation of or subject to any
preemptive or similar rights, will conform in all material respects to
the description thereof in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and the Trust Agreement and will be entitled
to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the Delaware
General Corporation Law. None of the Trust Preferred Securities,
immediately prior to delivery, will be subject to any security
interest, lien, mortgage, pledge, encumbrance, restriction upon voting
or transfer, preemptive rights, claim, equity or other title defect.
(B) The Debentures have been duly and validly
authorized by the Company, and, when duly and validly executed,
authenticated and issued as provided in the Indenture and delivered to
the Trust pursuant to the Trust Agreement, will constitute valid and
legally binding obligations of the Company, enforceable in accordance
with its terms, except as the enforcement thereof may be limited by
general principles of equity and by bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
rights and remedies of creditors generally, and are entitled to the
benefits of the Indenture and will conform in all material respects to
the description thereof contained in the Prospectus.
(C) The Guarantee has been duly and validly
authorized, and on the Closing Date, when duly and validly executed
and delivered to the Guarantee Trustee for the benefit of the Trust,
will constitute a valid and legally binding obligation of the Company
and will conform in all material respects to the description thereof
contained in the Prospectus.
(D) The agreement as to expenses and liabilities
(the "Expense Agreement") has been duly and validly authorized, and,
when duly and validly executed and delivered to the Company, will
constitute a valid and legally binding obligation of the Company
enforceable in accordance with its terms, except as the enforcement
thereof may be limited by general principles of equity and by
bankruptcy, insolvency, reorganization, receivership, moratorium and
other laws affecting creditors' rights generally, and will conform in
all material respects to the description thereof contained in the
Prospectus.
(xi) The Offerors and the Subsidiaries have complied with
all federal, state and local statutes, regulations, ordinances and
rules applicable to the ownership and operation of their properties or
the conduct of their businesses as described in and contemplated by
the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) and as
currently being conducted except where the failure to so comply would
not have a material adverse effect on the condition, financial or
otherwise, earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis.
(xii) The Offerors and the Subsidiaries have all permits,
easements, consents, licenses, franchises and other governmental and
regulatory authorizations from all appropriate federal, state, local
or other public authorities ("Permits") as are necessary to own and
lease their properties and conduct their businesses in the manner
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted, except where
the failure to have such Permits would not have a material adverse
effect on the condition, financial or otherwise, earnings, affairs,
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis. All such Permits are in full
force and effect and each of the Offerors and the Subsidiaries are in
all material respects complying therewith, and no event has occurred
that allows, or after notice or lapse of time would allow, revocation
or termination thereof or will result in any other material impairment
of the rights of the holder of any such Permit, subject in each case
to such qualification as may be adequately disclosed in the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), except where the failure of such Permits to
be in full force and effect or the lack of such compliance would not
have a material adverse effect on the condition, financial or
otherwise, earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis. Such Permits contain no restrictions that would materially
impair the ability of the Company or the Subsidiaries to conduct their
businesses in the manner consistent with their past practices.
Neither the Offerors nor any of the Subsidiaries has received notice
or otherwise has knowledge of any proceeding or action relating to the
revocation or modification of any such Permit.
(xiii) Neither of the Offerors nor any of the
Subsidiaries is in breach or violation of their corporate charter,
bylaws or other governing documents (including without limitation, the
Trust Agreement). Neither of the Offerors nor any of the Subsidiaries
are, and to the knowledge of the Offerors no other party is, in
violation, breach or default (with or without notice or lapse of time
or both) in the performance or observance of any term, covenant,
agreement, obligation, representation, warranty or condition contained
in (A) any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease, franchise, license, Permit or any other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound, except where such breach, violation or
default would not have a material adverse effect on the condition,
financial or otherwise, earnings, affairs, business, prospects, or
results of operations of the Offerors and the Subsidiaries on a
consolidated basis, and to the knowledge of the Offerors, no other
party has asserted that the Offerors or any of the Subsidiaries is in
such violation, breach or default (provided that the foregoing shall
not apply to defaults by borrowers from the Bank), or (B) except as
disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), any order, decree,
judgment, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having
jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties the breach, violation or default of which could
have a material adverse effect on the condition, financial or
otherwise, earnings, affairs, business, prospects, or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis.
(xiv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by
this Agreement, the Trust Agreement, the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) do not and will not conflict with,
result in the creation or imposition of any material lien, claim,
charge, encumbrance or restriction upon any property or assets of the
Offerors or the Subsidiaries or the Trust Preferred Securities
pursuant to, constitute a breach or violation of, or constitute a
default under, with or without notice or lapse of time or both, any of
the terms, provisions or conditions of the charter or bylaws of the
Company or the Subsidiaries, the Trust Agreement, the Guarantee, the
Indenture, any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease, franchise, license, Permit or any other
agreement or instrument to which the Offerors or the Subsidiaries is a
party or by which any of them or any of their respective properties
may be bound or any order, decree, judgment, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the
Offerors or the Subsidiaries or any of their respective properties
which conflict, creation, imposition, breach, violation or default
would have either singly or in the aggregate a material adverse effect
on the condition, financial or otherwise, earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis. No authorization, approval,
consent or order of, or filing, registration or qualification with,
any person (including, without limitation, any court, governmental
body or authority) is required in connection with the transactions
contemplated by this Agreement, the Trust Agreement, the Indenture,
the Guarantee, the Registration Statement and the Prospectus (or such
Preliminary Prospectus), except such as may be required under the 1933
Act, and such as may be required under state securities laws in
connection with the purchase and distribution of the Trust Preferred
Securities by the Underwriter. No authorization, approval, consent or
order of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body or
authority) is required in connection with the transactions
contemplated by this Agreement, the Trust Agreement, the Indenture,
the Guarantee, the Registration Statement and the Prospectus, except
such as have been obtained under the 1933 Act, and such as may be
required under state securities laws or Interpretations or Rules of
the National Association of Securities Dealers, Inc. ("NASD") in
connection with the purchase and distribution of the Trust Preferred
Securities by the Underwriters.
(xv) The Offerors have all requisite corporate or trust
power and authority to enter into this Agreement and this Agreement
has been duly and validly authorized, executed and delivered by the
Offerors and constitutes the legal, valid and binding agreement of the
Offerors, enforceable against the Offerors in accordance with its
terms, except as the enforcement thereof may be limited by general
principles of equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally and except as any
indemnification or contribution provisions thereof may be limited
under applicable securities laws. Each of the Indenture, the Trust
Agreement, the Guarantee and the Expense Agreement has been duly
authorized by the Company, and, when executed and delivered by the
Company on the Closing Date, each of said agreements will constitute a
valid and legally binding obligation of the Company and will be
enforceable against the Company in accordance with its terms, except
as the enforcement thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting
creditors' rights generally and except as any indemnification or
contribution provisions thereof may be limited under applicable
securities laws. The Administrative Trustees of the Trust are
officers of the Company and have been duly authorized by the Company
to execute and deliver the Trust Agreement. The Trust Agreement has
been duly authorized and, when executed and delivered by the Company
and the Trustees, will constitute the valid and legally binding
instrument of the Company and the Trustees, enforceable in accordance
with its terms. Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act and
will conform in all material respects to the description thereof
contained in the Prospectus.
(xvi) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good title to
all personal property owned by them and material to their business, in
each case free and clear of all security interests, liens, mortgages,
pledges, encumbrances, restrictions, claims, equities and other
defects except such as are referred to in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) or such as do not materially affect the value of such
property in the aggregate and do not materially interfere with the use
made or proposed to be made of such property; and all of the leases
under which the Company or the Subsidiaries hold real or personal
property are valid, existing and enforceable leases and in full force
and effect with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of such
real or personal property, and neither the Company nor any of the
Subsidiaries is in default in any material respect of any of the terms
or provisions of any leases.
(xvii) KPMG Peat Marwick LLP, who have certified certain
of the consolidated financial statements of the Company and the
Subsidiaries including the notes thereto, included or incorporated by
reference in the Registration Statement and Prospectus, are
independent public accountants with respect to the Company and the
Subsidiaries, as required by the 1933 Act and the 1933 Act
Regulations.
(xviii) The consolidated financial statements including
the schedules and notes thereto, included by incorporation or
otherwise in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) with respect to the Company and the Subsidiaries comply in
all material respects with the 1933 Act and the 1933 Act Regulations
and present fairly the consolidated financial position of the Company
and the Subsidiaries as of the dates indicated and the consolidated
results of operations, cash flows and stockholders' equity of the
Company and the Subsidiaries for the periods specified and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis. The selected and summary consolidated
financial data concerning the Offerors and the Subsidiaries included
in the Registration Statement and the Prospectus (or such Preliminary
Prospectus) comply in all material respects with the 1933 Act and the
1933 Act Regulations, present fairly the information set forth
therein, and have been compiled on a basis consistent with that of the
consolidated financial statements of the Offerors and the Subsidiaries
in the Registration Statement and the Prospectus (or such Preliminary
Prospectus). The Company had an outstanding capitalization as set
forth under "Capitalization" in the Prospectus as of the date
indicated therein and there has been no material change therein since
such date except as disclosed in the Prospectus. The other financial,
statistical and numerical information included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus) comply
in all material respects with the 1933 Act and the 1933 Act
Regulations, present fairly the information shown therein, and to the
extent applicable have been compiled on a basis consistent with the
consolidated financial statements of the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or such
Preliminary Prospectus).
(xix) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), except as otherwise stated therein:
(A) neither of the Offerors nor any of the
Subsidiaries have sustained any loss or interference with its
business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree which is material to the
condition (financial or otherwise), earnings, business, prospects
or results of operations of the Offerors and the Subsidiaries on
a consolidated basis;
(B) there has not been any material adverse
change in, or any development which is reasonably likely to have
a material adverse effect on, the condition (financial or
otherwise), earnings, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis, whether or not arising in the ordinary course of business;
(C) neither of the Offerors nor any of the
Subsidiaries have incurred any liabilities or obligations, direct
or contingent, or entered into any material transactions, other
than in the ordinary course of business which is material to the
condition (financial or otherwise), earnings, business, prospects
or results of operations of the Offerors and the Subsidiaries on
a consolidated basis;
(D) neither of the Offerors have declared or paid
any dividend or distribution and neither of the Offerors nor any
of the Subsidiaries have become delinquent in the payment of
principal or interest on any outstanding borrowings; and
(E) there has not been any change in the capital
stock, equity securities, long-term debt, obligations under
capital leases or, other than in the ordinary course of business,
short-term borrowings of the Offerors or the Subsidiaries.
(xx) Except as set forth in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), no charge, investigation, action, suit
or proceeding is pending or, to the knowledge of the Offerors,
threatened, against or involving the property or assets of the
Offerors or the Subsidiaries or any of their respective properties
before or by any court or any regulatory, administrative or
governmental official, commission, board, agency or other authority or
body, or any arbitrator, wherein an unfavorable decision, ruling or
finding could reasonably be expected to have a material adverse effect
on the consummation of this Agreement or the transactions contemplated
herein or the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis or which is required to be
disclosed in the Registration Statement or the Prospectus (or such
Preliminary Prospectus) and is not so disclosed.
(xxi) There are no contracts or other documents required to
be filed as exhibits to the Registration Statement by the 1933 Act or
the 1933 Act Regulations or the Trust Indenture Act (or any rules or
regulations thereunder) which have not been filed as exhibits or
incorporated by reference to the Registration Statement, or that are
required to be summarized in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) that are not
so summarized.
(xxii) Neither of the Offerors has taken, directly or
indirectly, any action designed to result in or which has constituted
or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Offerors to facilitate the sale or resale of the Trust Preferred
Securities, and neither of the Offerors is aware of any such action
taken or to be taken by any officer, director, trustee or 5% or more
stockholder of the Offerors.
(xxiii) The Offerors and the Subsidiaries own, or possess
adequate rights to use, all patents, copyrights, trademarks, service
marks, trade names and other rights necessary to conduct the
businesses now conducted by them in all material respects or as
described in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and neither the
Offerors nor the Subsidiaries have received any notice of infringement
or conflict with asserted rights of others with respect to any
patents, copyrights, trademarks, service marks, trade names or other
rights which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis, and the Offerors do not know of
any basis for any such infringement or conflict.
(xxiv) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), no labor dispute involving the Company or the
Subsidiaries exists or, to the knowledge of the Offerors, is imminent
which might be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis or which is required to be
disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). Neither the
Company nor any of the Subsidiaries have received notice of any
existing or threatened labor dispute by the employees of any of its
principal suppliers, customers or contractors which might be expected
to have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated
basis.
(xxv) The Offerors and the Subsidiaries have properly
prepared and timely filed all necessary federal, state, local and
foreign tax returns which are required to be filed and have paid all
taxes shown as due thereon and have paid all other taxes and
assessments to the extent that the same shall have become due, except
such as are being contested in good faith or where the failure to so
timely and properly prepare and file would not have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis. The Offerors have no knowledge
of any tax deficiency which has been or might be assessed against the
Offerors or the Subsidiaries which, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis.
(xxvi) Each of the material contracts, agreements and
instruments described or referred to in the Registration Statement or
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and each contract, agreement and
instrument filed as an exhibit to the Registration Statement is in
full force and effect and is the legal, valid and binding agreement of
the Offerors or the Subsidiaries, enforceable in accordance with its
terms, except as the enforcement thereof may be limited by general
principles of equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally. Except as disclosed in the
Prospectus (or such Preliminary Prospectus), to the knowledge of the
Offerors, no other party to any such agreement is (with or without
notice or lapse of time or both) in breach or default in any material
respect thereunder.
(xxvii) No relationship, direct or indirect, exists
between or among the Offerors or the Subsidiaries, on the one hand,
and the directors, officers, trustees, stockholders, customers or
suppliers of the Offerors or the Subsidiaries, on the other hand,
which is required to be described in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) which is not adequately described
therein.
(xxviii) No person has the right to request or require the
Offerors or the Subsidiaries to register any securities for offering
and sale under the 1933 Act by reason of the filing of the
Registration Statement with the Commission or the issuance and sale of
the Trust Preferred Securities except as adequately disclosed in the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus).
(xxix) Except as described (or referred to) in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), there are no contractual encumbrances or
restrictions or material legal restrictions, on the ability of the
Subsidiaries (A) to pay dividends or make any other distributions on
its capital stock or to pay any indebtedness owed to the Offerors, (B)
to make any loans or advances to, or investments in, the Offerors or
(C) to transfer any of its property or assets to the Offerors.
(xxx) Neither of the Offerors is, and following the
consummation of the transactions contemplated hereby and the
application of the net proceeds as described in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus), an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "Investment Company Act").
(xxxi) The Offerors have not distributed and will not
distribute prior to the Closing Date any prospectus in connection with
the Offering (as hereinafter defined), other than a Preliminary
Prospectus, the Prospectus, the Registration Statement and the other
materials permitted by the 1933 Act and the 1933 Act Regulations and
reviewed by the Underwriter.
(xxxii) The Company and each Subsidiary have in place and
effective such policies of insurance, with limits of liability in such
amounts, as are normal and prudent in the ordinary scope of business
similar to that of the Company and such Subsidiary in the respective
jurisdiction in which they conduct business.
(xxxiii) The provisions of any employee pension benefit
plan ("Pension Plan") as defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), in which
the Company or any Subsidiary is a participating employer are in
substantial compliance with ERISA, and neither the Company nor any
Subsidiary is in violation of ERISA. The Company, each Subsidiary, or
the plan sponsor thereof, as the case may be, has duly and timely
filed the reports required to be filed by ERISA in connection with the
maintenance of any Pension Plans in which the Company or any
Subsidiary is a participating employer, and no facts, including any
"reportable event" as defined by ERISA and the regulations thereunder,
exist in connection with any Pension Plan in which the Company or any
Subsidiary is a participating employer which might constitute grounds
for the termination of such plan by the Pension Benefit Guaranty
Corporation or for the appointment by the appropriate U.S. District
Court of a trustee to administer any such plan. The provisions of any
employee benefit welfare plan, as defined in Section 3(1) of ERISA, in
which the Company or any Subsidiary is a participating employer, are
in substantial compliance with ERISA, and the Company, any Subsidiary,
or the plan sponsor thereof, as the case may be, has duly and timely
filed the reports required to be filed by ERISA in connection with the
maintenance of any such plans.
SECTION 3. Offering by the Underwriter. After the Registration
Statement becomes effective or, if the Registration Statement is already
effective, after this Agreement becomes effective, the Underwriter proposes
to offer the Trust Preferred Securities for sale to the public upon the
terms and conditions set forth in the Prospectus. The Underwriter may from
time to time thereafter reduce the public offering price and change the
other selling terms, provided the proceeds to the Trust shall not be
reduced as a result of such reduction or change.
The Underwriter may reserve and sell such of the Trust Preferred
Securities purchased by the Underwriter as the Underwriter may elect to
dealers chosen by it (the "Selected Dealers") at the public offering price
set forth in the Prospectus less the applicable Selected Dealers'
concessions set forth therein, for re-offering by Selected Dealers to the
public at the public offering price. The Underwriter may allow, and
Selected Dealers may re-allow, a concession set forth in the Prospectus to
certain other brokers and dealers.
SECTION 4. Certain Covenants of the Offerors. The Offerors
jointly and severally covenant with the Underwriter as follows:
(a) Effectiveness of Registration Statement. The Offerors shall
use their best efforts to cause the Registration Statement and any
amendments thereto, if not effective at the time of execution of this
Agreement, to become effective as promptly as possible. If the
Registration Statement has become or becomes effective pursuant to
Rule 430A and information has been omitted therefrom in reliance on
Rule 430A, then the Offerors will prepare and file in accordance with
Rule 430A and Rule 424(b), copies of the Prospectus or, if required by
Rule 430A, a post-effective amendment to the Registration Statement
(including the Prospectus) containing all information so omitted and will
provide evidence satisfactory to the Underwriter of such timely filing.
(b) Continued Compliance with Securities Laws. The Offerors
shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, has become
effective, or when the Prospectus or any supplement to the Prospectus
or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the
Commission;
(iii) of any request of the Commission to amend or
supplement the Registration Statement, any Preliminary Prospectus or
the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or
other regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, or suspending
the qualification of any of the Trust Preferred Securities for
offering or sale in any jurisdiction or the institution or threat of
institution of any proceedings for any of such purposes. The Offerors
shall use their best efforts to prevent the issuance of any such stop
order or of any other such order and if any such order is issued, to
cause such order to be withdrawn or lifted as soon as possible.
(c) Delivery of Registration Statements and Prospectuses. The
Offerors shall furnish to the Underwriter, from time to time and without
charge, as soon as available, as many copies as the Underwriter may
reasonably request of (i) the registration statement as originally filed
and of all amendments thereto, in executed form, including exhibits,
whether filed before or after the Registration Statement becomes effective,
(ii) all exhibits and documents incorporated therein or filed therewith,
(iii) all consents and certificates of experts in executed form, (iv) each
Preliminary Prospectus and all amendments and supplements thereto and
(v) the Prospectus, and all amendments and supplements thereto.
(d) Filing of Amendments and Supplements. During the time when
a prospectus is required to be delivered under the 1933 Act, the Offerors
shall comply to the best of their ability with the 1933 Act and the 1933
Act Regulations and the 1934 Act and the 1934 Act Regulations so as to
permit the completion of the distribution of the Trust Preferred Securities
as contemplated herein and in the Trust Agreement and the Prospectus. The
Offerors shall not file any amendment to the registration statement as
originally filed or to the Registration Statement and shall not file any
amendment thereto or make any amendment or supplement to any Preliminary
Prospectus or to the Prospectus of which you shall not previously have been
advised in writing and provided a copy a reasonable time prior to the
proposed filings thereof or to which you or counsel to the Underwriter
shall object. If it is necessary, in the Company's reasonable opinion or
in the reasonable opinion of the Company's counsel to amend or supplement
the Registration Statement or the Prospectus in connection with the
distribution of the Trust Preferred Securities, the Offerors shall
forthwith amend or supplement the Registration Statement or the Prospectus,
as the case may be, by preparing and filing with the Commission (provided
you or counsel to the Underwriter does not reasonably object), and
furnishing to you, such number of copies as you may reasonably request of
an amendment or amendments of, or a supplement or supplements to, the
Registration Statement or the Prospectus, as the case may be (in form and
substance reasonably satisfactory to you and counsel to the Underwriter).
If any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus to correct an untrue statement of a material fact
or to include a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or
if for any reason it is necessary at any time to amend or supplement the
Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the
Offerors shall, subject to the second sentence of this subsection (d),
forthwith amend or supplement the Prospectus by preparing and filing with
the Commission, and furnishing to you, such number of copies as you may
reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Prospectus (in form and substance satisfactory to you
and counsel to the Underwriter) so that, as so amended or supplemented, the
Prospectus shall not contain an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(e) Blue Sky Qualifications. The Offerors shall cooperate with
you in order to qualify the Trust Preferred Securities for offering and
sale under the securities or blue sky laws of such jurisdictions as you may
reasonably request and shall continue such qualifications in effect so long
as may be advisable for distribution of the Trust Preferred Securities;
provided, however, that the Offerors shall not be required to qualify to do
business as a foreign corporation or file a general consent to service of
process in any jurisdiction in connection with the foregoing (except with
respect to the offering and sale of the Trust Preferred Securities). The
Offerors shall file such statements and reports as may be required by the
laws of each jurisdiction in which the Trust Preferred Securities have been
qualified as above. The Offerors will notify you immediately of, and
confirm in writing, the suspension of qualification of the Trust Preferred
Securities or threat thereof in any jurisdiction.
(f) Delivery of Earnings Statement. The Offerors shall make
generally available to their security holders in the manner contemplated by
Rule 158 of the 1933 Act Regulations, and furnish to you, as soon as
practicable, but in any event not later than 15 months after the Effective
Date, a consolidated earnings statement of the Offerors conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) Use of Proceeds. The Offerors shall use the proceeds from
the sale of the Trust Preferred Securities to be sold by the Trust
hereunder in the manner specified in the Prospectus under the caption "Use
of Proceeds."
(h) Delivery of Corporate Documents. For five years from the
Effective Date, the Offerors shall furnish to the Underwriter copies of all
reports and communications (financial or otherwise) furnished by the
Offerors to the holders of the Trust Preferred Securities as a class,
copies of all reports and financial statements filed with or furnished to
the Commission (other than portions for which confidential treatment has
been obtained from the Commission) or with any national securities exchange
or the Nasdaq National Market and such other documents, reports and
information concerning the business and financial conditions of the
Offerors as the Underwriter may reasonably request, other than such
documents, reports and information which the Offerors have a legal
obligation not to reveal to the Underwriter.
(i) Restriction on Sale of Securities. For a period of 180 days
from the Effective Date, the Offerors shall not, directly or indirectly,
offer for sale, sell or agree to sell or otherwise dispose of any Trust
Preferred Securities other than pursuant to this Agreement, any other
beneficial interests in the assets of the Trust or any securities of the
Trust or the Company that are substantially similar to the Trust Preferred
Securities or the Debentures, including any guarantee of such beneficial
interests or substantially similar securities, or securities convertible
into or exchangeable for or that represent the right to receive any such
beneficial interest or substantially similar securities, without the prior
written consent of the Underwriter.
(j) Ordinary Course of Business. During the period beginning on
the date hereof and ending on the Closing Date, except as described in or
contemplated by the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any action)
which will result in the Offerors or the Subsidiaries incurring any
material liability or obligation, direct or contingent, or enter into any
material transaction, except in the ordinary course of business, and there
will not be any material change in the capital stock, or any material
increase in long-term debt, obligations under capital leases or short-term
borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(k) Restriction on Trust Preferred Securities. The Offerors
shall not, for a period of 180 days after the date hereof, without the
prior written consent of the Underwriter, purchase, redeem or call for
redemption, or prepay or give notice of prepayment (or announce any
redemption or call for redemption, or any repayment or notice of
prepayment) of any of the Trust Preferred Securities.
(l) Regulation M. The Offerors shall not take, directly or
indirectly, any action designed to result in or which has constituted or
which might reasonably be expected to cause or result in a violation of the
Commission's Regulation M and the Offerors are not aware of any such action
taken or to be taken by any affiliate of the Offerors.
(m) Public Communications. Prior to the Closing Date, the
Offerors will not issue any press release or other communication directly
or indirectly or hold any press conference with respect to the Offerors,
the Subsidiaries or the offering of the Trust Preferred Securities (the
"Offering") without your prior written consent which consent shall not be
unreasonably withheld.
(n) Best Efforts. The Offerors will use their best efforts to
satisfy or cause to be satisfied the conditions to the obligations of the
Underwriter in Section 6 hereof.
(o) Blue Sky Undertakings. The Trust shall comply in all
respects with the undertakings given by the Trust in connection with the
qualification, registration or exemption of the Trust Preferred Securities
for offering and sale under the blue sky laws.
SECTION 5. Payment of Expenses. Whether or not this Agreement
is terminated or the sale of the Trust Preferred Securities to the
Underwriter is consummated, the Company covenants and agrees that it will
pay or cause to be paid (directly or by reimbursement) all costs and
expenses incident to the performance of the obligations of the Offerors
under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of
the initial registration statement, the Preliminary Prospectus or
Prospectuses, the Registration Statement and the Prospectus and any
amendments or supplements thereto, and the printing, delivery and shipping
of this Agreement and any other underwriting documents (including, without
limitation, selected dealers agreements), the certificates for the Trust
Preferred Securities and the preliminary and final blue sky memoranda and
any legal investment surveys and any supplements thereto;
(b) all fees, expenses and disbursements of the Offerors'
counsel and accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Trust Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as
you may request, including all filing fees and reasonable fees and
disbursements of counsel to the Underwriter in connection therewith,
including, without limitation, in connection with the preparation of the
preliminary and final blue sky memoranda and any legal investment surveys
and any supplements thereto;
(d) all fees and expenses incurred in connection with filings
made with the NASD;
(e) the cost of furnishing to you copies of the initial
registration statements, any Preliminary Prospectus, the Registration
Statement and the Prospectus and all amendments or supplements thereto;
(f) the costs and charges of any transfer agent or registrar and
the fees and disbursements of counsel to any transfer agent or registrar;
(g) all costs and expenses (including stock transfer taxes)
incurred in connection with the issuance and delivery of the Trust
Preferred Securities to the Underwriter;
(h) all expenses incident to the preparation, execution and
delivery of the Trust Agreement, the Indenture and the Guarantee; and
(i) all other costs and expenses incident to the performance of
the obligations of the Company hereunder and under the Trust Agreement that
are not otherwise specifically provided for in this Section 5.
In addition to such expenses to be borne by the Company, the
Company agrees to reimburse the Underwriter, upon request made from time to
time, for its reasonable out-of-pocket expenses incurred in connection with
its engagement hereunder, regardless of whether the offering is
consummated, including, without limitation, legal fees and expenses,
marketing, syndication and travel expenses up to a maximum of $125,000.
If the sale of Trust Preferred Securities contemplated by this
Agreement is not completed for any reason whatsoever (other than as a
result of the Underwriter's refusal to proceed, without cause), whether or
not such termination is allowable hereunder, the Company will pay you your
accountable out-of-pocket expenses, up to a maximum of $125,000, in
connection herewith or in contemplation of the performance of your
obligations hereunder, including without limitation, travel expenses,
reasonable fees, expenses and disbursements of counsel or other out-of-
pocket expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any investigation
of the Offerors and the Subsidiaries, or any preparation for the marketing,
purchase, sale or delivery of the Trust Preferred Securities, in each case
following presentation of reasonably detailed invoices therefor.
SECTION 6. Conditions of the Underwriter's Obligations. The
obligations of the Underwriter to purchase and pay for the Trust Preferred
Securities are subject, in your sole discretion, to the accuracy of and
compliance with the representations and warranties and agreements of the
Offerors herein as of the date hereof and as of the Closing Date to the
accuracy of the written statements of the Offerors made pursuant to the
provisions hereof, to the performance by the Offerors of their covenants
and obligations hereunder and to the following additional conditions:
(a) Effectiveness of Registration Statement. If the
Registration Statement or any amendment thereto filed prior to the Closing
Date has not been declared effective prior to the time of execution hereof,
the Registration Statement shall become effective not later than 11:00
a.m., New York City time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may
agree to in writing. If required, the Prospectus and any amendment or
supplement thereto shall have been timely filed in accordance with Rule
424(b) and Rule 430A under the 1933 Act and Section 4(a) hereof. No stop
order suspending the effectiveness of the Registration Statement or any
amendment or supplement thereto shall have been issued under the 1933 Act
or any applicable state securities laws and no proceedings for that purpose
shall have been instituted or shall be pending, or, to the knowledge of the
Offerors or the Underwriter, shall be contemplated by the Commission or any
state authority. Any request on the part of the Commission or any state
authority for additional information (to be included in the Registration
Statement or Prospectus or otherwise) shall have been disclosed to you and
complied with to your satisfaction and to the satisfaction of your counsel.
(b) Absence of Misstatements or Omissions. The Underwriter
shall not have advised the Company at or before the Closing Date that the
Registration Statement or any post-effective amendment thereto, or the
Prospectus or any amendment or supplement thereto, contains an untrue
statement of a fact which, in your reasonable opinion, is material or omits
to state a fact which, in your reasonable opinion, is material and is
required to be stated therein or is necessary to make statements therein
(in the case of the Prospectus or any amendment or supplement thereto, in
light of the circumstances under which they were made) not misleading.
(c) Corporate and Legal Matters. All corporate proceedings and
other legal matters incident to the authorization, form and validity of
this Agreement, the Trust Agreement, and the Trust Preferred Securities,
and the authorization and form of the Registration Statement and
Prospectus, other than financial statements and other financial data, and
all other legal matters relating to this Agreement and the transactions
contemplated hereby or by the Trust Agreement shall be reasonably
satisfactory in all respects to counsel to the Underwriter, and the
Offerors and the Subsidiaries shall have furnished to such counsel all
documents and information relating thereto that they may reasonably request
to enable them to pass upon such matters.
(d) Opinion of Outside Counsel to the Offerors. Housley
Kantarian & Bronstein, P.C., counsel to the Offerors, shall have furnished
to you their signed opinion, dated the Closing Date, in form and substance
reasonably satisfactory to counsel to the Underwriter, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware,
and is duly registered as a savings and loan holding company under the
HOLA. Each of the Subsidiaries is duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of
incorporation. Each of the Company and the Subsidiaries has full
corporate power and authority to own or lease its properties and to
conduct its business as such business or properties are described in
the Prospectus in all material respects. The Company and each
Subsidiary are qualified to do business as foreign corporations, or
exempt from such qualification, under the corporation laws of each
jurisdiction which requires such qualification, wherein it owns or
leases material properties or conducts material business that is set
forth on Annex A to such opinion. All outstanding shares of capital
stock of the Subsidiaries have been duly authorized and validly issued
and are fully paid and nonassessable and, to the best of such
counsel's knowledge, except as disclosed in the Prospectus, there are
no outstanding rights, options or warrants to purchase any such shares
or securities convertible into or exchangeable for any such shares.
(ii) The capital stock, Debentures and Guarantee of the
Company and the equity securities of the Trust conform to the
description thereof contained in the Prospectus in all material
respects. The authorized capital stock of the Company as of June 30,
1998 is as set forth under the caption "Capitalization" in the
Prospectus, has been duly authorized and, assuming the receipt of full
and adequate consideration therefor by the Company, have been validly
issued. To the best of such counsel's knowledge, there are no
outstanding rights, options or warrants to purchase, no other
outstanding securities convertible into or exchangeable for, and no
commitments, plans or arrangements to issue, any shares of capital
stock of the Company or equity securities of the Trust, except as
described in the Prospectus.
(iii) The issuance, sale and delivery of the Trust
Preferred Securities and Debentures in accordance with the terms and
conditions of this Agreement and the Indenture have been duly
authorized by all necessary actions of the Company. The Trust
Preferred Securities will conform in all material respects to the
description thereof in the Registration Statement, the Prospectus and
the Trust Agreement. There are no preemptive or other rights to
subscribe for or to purchase, and other than as disclosed in the
Prospectus no restrictions upon the voting or transfer of, any shares
of capital stock or equity securities of the Offerors pursuant to the
corporate charter, bylaws or other governing documents (including
without limitation, the Trust Agreement) of the Offerors, or, to the
best of such counsel's knowledge, any agreement or other instrument to
which either the Offerors is a party or by which any of the Offerors
may be bound.
(iv) The Company has all requisite corporate power to
enter into and perform its obligations under this Agreement, and this
Agreement has been duly and validly authorized, executed and delivered
by the Company and constitutes the legal, valid and binding
obligations of the Company enforceable in accordance with its terms,
except as the enforcement hereof or thereof may be limited by general
principles of equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally, and except as the
indemnification and contribution provisions hereof may be limited
under applicable laws.
(v) Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act, has
been duly authorized, executed and delivered by the Company, and is a
valid and legally binding obligation of the Company enforceable in
accordance with its terms, except as the enforcement thereof may be
limited by general principles of equity and by bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
rights and remedies of creditors generally.
(vi) The Debentures have been duly authorized, executed,
authenticated and delivered by the Company, are entitled to the
benefits of the Indenture and are legal, valid and binding obligations
of the Company enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by
general principles of equity and by bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
rights and remedies of creditors generally.
(vii) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally
binding obligation of the Company enforceable in accordance with its
terms, except as the enforcement thereof may be limited by general
principles of equity and by bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and
remedies of creditors generally.
(viii) To the best of such counsel's knowledge, neither
of the Offerors nor any of the Subsidiaries is in breach or violation
of, or default under, with or without notice or lapse of time or both,
its corporate charter, bylaws or governing document (including without
limitation, the Trust Agreement). To the best knowledge of such
counsel, after due inquiry, the execution, delivery and performance of
this Agreement, the Trust Agreement, the Guarantee Agreement, the
Expense Agreement and the Indenture, the issue and sale of the Trust
Preferred Securities and the Debentures, the compliance by the Company
with the provisions of the Trust Preferred Securities, the Debentures,
the Indenture and this Agreement do not and will not conflict with,
result in the creation or imposition of any material lien, claim,
charge, encumbrance or restriction upon any property or assets of the
Offerors or the Subsidiaries or the Trust Preferred Securities, or
constitute a material breach or violation of, or constitute a material
default under, with or without notice or lapse of time or both, any of
the terms, provisions or conditions of the charter, bylaws or
governing document (including without limitation, the Trust Agreement)
of the Offerors or the Subsidiaries, or to the best of such counsel's
knowledge, any material contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease, franchise, license or any other
agreement or instrument to which either Offeror or the Subsidiaries is
a party or any order, decree, judgment, franchise, license, Permit,
rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality known to such counsel having
jurisdiction over the Offerors or the Subsidiaries which, in each
case, is material to the Offerors and the Subsidiaries on a
consolidated basis.
(ix) To the best of such counsel's knowledge, holders of
securities of the Offerors either do not have any right that, if
exercised, would require the Offerors to cause such securities to be
included in the Registration Statement or have waived such right. To
the best of such counsel's knowledge, neither the Offerors nor any of
the Subsidiaries is a party to any agreement or other instrument which
grants rights for or relating to the registration of any securities of
the Offerors except the registration rights granted to persons
pursuant to the Registration Rights Agreement, dated as of September
18, 1992, as amended, by and between Star States Corporation, John W.
Rollins and Michele M. Rollins, and the Registration Rights Agreement,
dated as of September 18, 1992, as amended, by and between Star States
Corporation, Thrift Investors, L.P. and Quad-C, Inc.
(x) Except as set forth in the Registration Statement and
the Prospectus, to the best of such counsel's knowledge, no action,
suit or proceeding at law or in equity is pending or threatened in
writing to which the Offerors or the Subsidiaries is or may be a party
or against or affecting any of their properties, before or by any
court or governmental official, commission, board or other
administrative agency, authority or body, or any arbitrator, wherein
an unfavorable decision, ruling or finding could reasonably be
expected to have a material adverse effect on the issuance and sale of
the Trust Preferred Securities as contemplated herein or the condition
(financial or otherwise), earnings, affairs, business, or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis or which is required to be disclosed in the Registration
Statement or the Prospectus and is not so disclosed.
(xi) No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is
required in connection with the issuance, distribution and sale of the
Trust Preferred Securities and the Debentures pursuant to this
Agreement, the Trust Agreement, the Guarantee Agreement, the Expense
Agreement, the Indenture, the Registration Statement and the
Prospectus, except such as have been obtained under the 1933 Act and
the Trust Indenture Act, and except such as may be required under
state securities laws or Interpretations or Rules of the NASD in
connection with the purchase and distribution of the Trust Preferred
Securities by the Underwriter, as to which no opinion need be
rendered.
(xii) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the financial statements
or other financial or statistical data included therein or omitted
therefrom and Underwriter's Information and the Statements of
Eligibility of each of the Property Trustee, the Guarantee Trustee and
the Debenture Trustee on Form T-1 filed as exhibits to the
Registration Statement, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations as of their
respective dates of effectiveness and in each case at the Closing
Date.
(xiii) To the best of such counsel's knowledge, there are
no contracts, agreements, leases or other documents of a character
required to be disclosed in the Registration Statement or Prospectus
or to be filed as exhibits to the Registration Statement that are not
so disclosed or filed.
(xiv) The statements under the captions, "Description of
Trust Preferred Securities," "Description of Junior Subordinated
Debentures," "Description of Guarantees," "Relationship Among the
Trust Preferred Securities, the Junior Subordinated Debentures and the
Guarantees," and "ERISA Considerations" in the Prospectus (or
incorporated therein by reference), insofar as such statements
constitute a summary of legal and regulatory matters, documents,
instruments or proceedings referred to therein are accurate in all
material respects, other than financial and statistical data as to
which said counsel expresses no opinion or belief.
(xv) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective under
the 1933 Act; any required filing of the Prospectus pursuant to Rule
424(b) has been made within the time period required by Rule 424(b);
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for a stop order are pending or threatened by the
Commission.
(xvi) Except as set forth (or referred to) in the
Prospectus, to the best of such counsel's knowledge, there are no
contractual encumbrances or restrictions, or material legal
restrictions on the ability of the Subsidiaries (A) to pay dividends
or make any other distributions on its capital stock or to pay
indebtedness owed to the Offerors, (B) to make any loans or advances
to, or investments in, the Offerors or (C) to transfer any of its
property or assets to the Offerors.
(xvii) The Trust is not regulated or required to be
registered as an "investment company" as defined in the Investment
Company Act.
In giving the above opinion, such counsel may state that, insofar
as such opinion involves factual matters, they have relied upon
certificates of officers of the Offerors including, without limitation,
certificates as to the identity of any and all material contracts,
indentures, mortgages, deeds of trust, loans or credit agreements, notes,
leases, franchises, licenses or other agreements or instruments, and all
material permits, easements, consents, licenses, franchises and government
regulatory authorizations, for purposes of paragraphs (viii), (xiii) and
(xvii) hereof and certificates of public officials. In giving the above
opinion, such counsel may state that insofar as such opinion relates to
matters of New York law, they have relied upon the opinion of Skadden,
Arps, Slate, Meagher & Flom LLP and as to matters of Delaware law, other
than the Delaware General Corporation Law, they have relied upon the
opinion of Richards, Layton & Finger, P.A.
Such counsel shall also state in a separate letter that, in
connection with the preparation of the Registration Statement and
Prospectus, such counsel has participated in conferences with officers and
representatives of the Offerors and with their independent public
accountants and with you and your counsel, at which conferences such
counsel made inquiries of such officers, representatives and accountants
and the contents of the Registration Statement and Prospectus were
discussed in detail and based on such conferences, nothing has come to the
attention of such counsel to cause it to believe (A) that the Registration
Statement or any amendment thereto (except for the financial statements and
related schedules and statistical data included therein or omitted
therefrom or Underwriter's Information, as to which such counsel need
express no view), at the time the Registration Statement or any such
amendment became effective, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or (B) that the
Prospectus or any amendment or supplement thereto (except for the financial
statements and related schedules and statistical data included therein or
omitted therefrom or Underwriter's Information, as to which such counsel
need express no view), at the time the Registration Statement became
effective (or, if the term "Prospectus" refers to the prospectus first
filed pursuant to Rule 424(b) of the 1933 Act Regulations, at the time the
Prospectus was issued), at the time any such amended or supplemented
Prospectus was issued and at the Closing Date, contained or contains any
untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (C) that there is any amendment to the
Registration Statement required to be filed that has not already been
filed.
(e) Opinion of Special Delaware Counsel to the Offerors.
Richards, Layton & Finger, P.A., as special Delaware counsel to the Company
and the Trust, shall have furnished to you their signed opinion, dated as
of Closing Date, in form and substance satisfactory to counsel to the
Underwriter, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, 12 Del. C. sections 3801 et seq. (the "Delaware
Act"), with the business trust power and authority to (a) own its
property and conduct its business as described in the Prospectus, (b)
execute and deliver, and perform its obligations under, this Agreement
and (c) issue and perform its obligations under the Trust Preferred
Securities. All filings required under the laws of the State of
Delaware with respect to the creation and valid existence of the Trust
as a business trust have been made.
(ii) The Trust Agreement constitutes a legal, valid and
binding obligation of the Company and the Trustees of the Trust and is
enforceable against the Company and the Trustees in accordance with
its terms.
(iii) Under the Trust Agreement and the Delaware Act, all
necessary trust action has been taken on the part of the Trust to duly
authorize the execution and delivery of this Agreement by the Trust
and the performance of its obligations hereunder.
(iv) The Trust Preferred 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 this Agreement and as described in the Prospectus, will
be validly issued and (subject to the terms of the Trust Agreement)
fully paid and non-assessable undivided beneficial interests in the
assets of the Trust. The holders of the Trust Preferred Securities
will be entitled to the benefits of the Trust Agreement and will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
Delaware General Corporation Law. Such opinion may note that the
holders of the Trust Preferred Securities may be required to make
payment or provide indemnity or security as set forth in the Trust
Agreement.
(v) Under the Trust Agreement and the Delaware Act, the
issuance of the Trust Preferred Securities is not subject to
preemptive rights.
(vi) The issuance and sale by the Trust of the Trust
Preferred Securities and the Common Securities, the purchase by the
Trust of the Debentures, the execution, delivery and performance by
the Trust of this Agreement, and the consummation by the Trust of the
transactions contemplated by this Agreement will not (a) violate any
of the provisions of the Certificate of Trust or the Trust Agreement
or (b) violate any applicable Delaware law or administrative
regulation.
(vii) The issuance, sale and delivery of the Debentures,
the execution, delivery and performance by the Company of this
Agreement, and the consummation by the Company of the transactions
contemplated by this Agreement will not violate any applicable
Delaware law or administrative regulation.
(viii) No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
Delaware court or Delaware governmental authority or agency (other
than as may be required under the securities or blue sky laws of the
State of Delaware as to which such counsel may express no opinion) is
necessary or required to be obtained by the Trust solely in connection
with the due authorization, execution and delivery of this Agreement
by the Trust or the offering, issuance, sale or delivery of the Trust
Preferred Securities by the Trust in accordance with the Trust
Agreement and the Prospectus.
(ix) To such counsel's knowledge, there are no actions,
suits or proceedings pending or judgments outstanding against the
Trust in any court or agency or instrumentality of the United States
of America that relate to or place or may place in question the
validity or enforceability of this Agreement or the issuance and sale
of the Trust Preferred Securities and the Common Securities by the
Trust or the purchase of the Debentures by the Trust.
(x) The Common Securities have been duly authorized by
the Trust Agreement and are duly and validly issued undivided
beneficial interests in the assets of the Trust and are entitled to
the benefits of the Trust Agreement.
Such opinion may state that it is limited to the laws of the
State of Delaware and that the opinion expressed in paragraph (ii) above is
subject to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) principles of equity,
including applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at law), and
(iii) the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
(f) Opinion of Counsel to Wilmington Trust Company. Richards,
Layton & Finger, P.A., counsel to Wilmington Trust Company (the "Trust
Company") shall have furnished to you their signed opinion, dated the
Closing Date, in form and substance reasonably satisfactory to counsel to
the Underwriter, to the effect that:
(i) The Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation under the laws of
the State of Delaware.
(ii) The Trust Company, as Debenture Trustee, has the
requisite power and authority to execute, deliver and perform its
obligations under the Indenture, and has taken all necessary corporate
action to authorize the execution, delivery and performance by it of
the Indenture.
(iii) The Trust Company, as Guarantee Trustee, has the
requisite power and authority to execute, deliver and perform its
obligations under the Guarantee Agreement, and has taken all necessary
corporate action to authorize the execution, delivery and performance
by it of the Guarantee.
(iv) The Trust Company, as Property Trustee, has the
requisite power and authority to execute and deliver the Trust
Agreement, and has taken all necessary corporate action to authorize
the execution and delivery of the Trust Agreement.
(v) Each of the Indenture and the Guarantee Agreement has
been duly executed and delivered by the Trust Company, as Debenture
Trustee and Guarantee Trustee, respectively, and constitutes a legal,
valid and binding obligation of the Indenture Trustee and the
Guarantee Trustee, respectively, enforceable against the Debenture
Trustee and the Guarantee Trustee, respectively in accordance with its
respective terms, except that certain payment obligations may be
enforceable solely against the assets of the Trust and except that
such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation, fraudulent conveyance and
transfer of other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and by the effect of
applicable public policy on the enforceability of provisions relating
to indemnification or contribution.
(vi) The Debentures delivered on the Closing Date have been
duly authenticated by the Trust Company, as Debenture Trustee, in
accordance with the terms of the Indenture.
(g) Opinion of Counsel to the Underwriter. Skadden, Arps,
Slate, Meagher & Flom LLP, counsel to the Underwriter, shall have furnished
you their signed opinion, dated the Closing Date, with respect to the
sufficiency of all corporate procedures and other legal matters relating to
this Agreement, the validity of the Trust Preferred Securities, the
Registration Statement, the Prospectus and such other related matters as
you may reasonably request and there shall have been furnished to such
counsel such documents and other information as they may request to enable
them to pass on such matters. In giving such opinion, such counsel may
rely as to matters of fact upon statements and certifications of officers
of the Offerors and of other appropriate persons.
(h) Opinion of Special Tax Counsel for the Offerors. At the
Closing Time, the Underwriter shall have received an opinion, dated as of
the Closing Time, of Housley Kantarian & Bronstein, P.C., special tax
counsel to the Offerors, substantially to the effect that (i) the Trust
will be classified as a grantor trust for United States federal income tax
purposes and (ii) the statements set forth in the Prospectus under the
caption "Certain Federal Income Tax Consequences" constitute, in all
material respects, a fair and accurate summary of the United States federal
income tax consequences of the ownership and disposition of the Trust
Preferred Securities under current law. Such opinion may be conditioned
on, among other things, the initial and continuing accuracy of the facts,
financial and other information, covenants and representations set forth in
certificates of Trustees of the Trust, officers of the Company and its
subsidiaries and certificates of public officials.
(i) Accountant's Comfort Letter. On the date of this Agreement
and on the Closing Date, the Underwriter shall have received from KPMG Peat
Marwick LLP a letter, dated as of the date of this Agreement and the
Closing Date, respectively, in form and substance satisfactory to the
Underwriter, confirming that they are independent public accountants with
respect to the Company, within the meaning of the 1933 Act and the 1933 Act
Regulations, and stating in effect that:
(i) In their opinion, the consolidated financial
statements of the Company audited by them and included in the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1933
Act Regulations.
(ii) On the basis of the procedures specified by the
American Institute of Certified Public Accountants as described in SAS
No. 71, "Interim Financial Information," inquiries of officials of the
Company responsible for financial and accounting matters, and such
other inquiries and procedures as may be specified in such letter,
which procedures do not constitute an audit in accordance with U.S.
generally accepted auditing standards, nothing came to their attention
that caused them to believe that, if applicable, the unaudited interim
consolidated financial statements of the Company included in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and 1933 Act Regulations or are not in conformity with U.S. generally
accepted accounting principles applied on a basis substantially
consistent, except as noted in the Registration Statement, with the
basis for the audited consolidated financial statements of the Company
included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting
an audit in accordance with U.S. generally accepted auditing
standards, consisting of a reading of the unaudited interim financial
statements and other information referred to below, a reading of the
latest available unaudited condensed consolidated financial statements
of the Company, inspection of the minute books of the Company since
the date of the latest audited financial statements of the Company
included in the Registration Statement, inquiries of officials of the
Company responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) as of a specified date not more than five
days prior to the date of such letter, there have been any
changes in the consolidated capital stock of the Company, any
increase in the consolidated debt of the Company, any decreases
in consolidated total assets or stockholders equity of the
Company, or any changes, decreases or increases in other items
specified by the Underwriters, in each case as compared with
amounts shown in the latest unaudited interim consolidated
statement of financial condition of the Company included in the
Registration Statement except in each case for changes, increases
or decreases which the Registration Statement specifically
discloses, have occurred or may occur or which are described in
such letter; and
(B) for the period from the date of the latest
unaudited interim consolidated financial statements included in
the Registration Statement to the specified date referred to in
Clause (iii)(A), there were any decreases in the consolidated
interest income, net interest income, or net income of the
Company or in the per share amount of net income of the Company,
or any changes, decreases or increases in any other items
specified by the Underwriter, in each case as compared with the
comparable period of the preceding year and with any other period
of corresponding length specified by the Underwriter, except in
each case for increases or decreases which the Registration
Statement discloses have occurred or may occur, or which are
described in such letter.
(iv) In addition to the audit referred to in their report
included in the Registration Statement and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (ii) and (iii) above, they have carried out certain
specified procedures, not constituting an audit in accordance with
U.S. generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Underwriter which are derived from the general accounting records and
consolidated financial statements of the Company which appear in the
Registration Statement specified by the Underwriter in the
Registration Statement, and have compared such amounts, percentages
and financial information with the accounting records and the material
derived from such records and consolidated financial statements of the
Company and have found them to be in agreement.
In the event that the letters to be delivered referred to above
set forth any such changes, decreases or increases as specified in Clauses
(iii)(A) or (iii)(B) above, or any exceptions from such agreement specified
in Clause (iv) above, it shall be a further condition to the obligations of
the Underwriter that the Underwriter shall have determined, after
discussions with officers of the Company responsible for financial and
accounting matters, that such changes, decreases, increases or exceptions
as are set forth in such letters do not (x) reflect a material adverse
change in the items specified in Clause (iii)(A) above as compared with the
amounts shown in the latest unaudited consolidated statement of financial
condition of the Company included in the Registration Statement, (y)
reflect a material adverse change in the items specified in Clause (iii)(B)
above as compared with the corresponding periods of the prior year or other
period specified by the Underwriter, or (z) reflect a material change in
items specified in Clause (iv) above from the amounts shown in the
Preliminary Prospectus distributed by the Underwriter in connection with
the offering contemplated hereby or from the amounts shown in the
Prospectus.
(j) Company Certificates. At the Closing Date, you shall have
received certificates of the chief executive officer and the chief
financial and accounting officer of the Company, which certificates shall
be deemed to be made on behalf of the Company dated as of the Closing Date,
evidencing satisfaction of the conditions of Section 6(a) and stating that
(i) the representations and warranties of the Company set forth in
Section 2(a) hereof are accurate as of the Closing Date and that the
Offerors have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to such Closing Date;
(ii) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change in the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Offerors and
the Subsidiaries on a consolidated basis; (iii) since such dates there has
not been any material transaction entered into by the Offerors or the
Subsidiaries other than transactions in the ordinary course of business;
and (iv) they have carefully examined the Registration Statement and the
Prospectus as amended or supplemented and nothing has come to their
attention that would lead them to believe that either the Registration
Statement or the Prospectus, or any amendment or supplement thereto as of
their respective effective or issue dates, contained, and the Prospectus as
amended or supplemented at such Closing Date contains, any untrue statement
of a material fact, or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and (v)
covering such other matters as you may reasonably request. The officers'
certificate of the Company shall further state that no stop order affecting
the Registration Statement is in effect or, to their knowledge, threatened.
(k) Trust Certificate. At the Closing Date, you shall have
received a certificate of an Administrative Trustee of the Trust to the
effect that to the best of his or her knowledge based upon a reasonable
investigation, the representations and warranties of the Trust in this
Agreement are true and correct as though made on and as of the Closing
Date; the Trust has complied with all the agreements and satisfied all the
conditions required by this Agreement to be performed or satisfied by the
Trust on or prior to the Closing Date and since the most recent date as of
which information is given in the Prospectus, except as contemplated by the
Prospectus, the Trust has not incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business and there has not been
any material adverse change in the condition (financial or otherwise) of
the Trust.
(l) Counterparts. On the Closing Date, you shall have received
duly executed counterparts of the Trust Agreement, the Guarantee, the
Indenture and the Expense Agreement.
(m) NASD. The NASD shall not have objected to the Underwriter's
participation in such offering.
(n) Blue Sky Laws. The Trust Preferred Securities, the
Guarantee and the Debentures shall have been qualified or registered for
sale, or subject to an available exemption from such qualification or
registration, under the blue sky laws of such jurisdictions as shall have
been reasonably specified by the Underwriter.
(o) Additional Documents. Prior to the Closing Date, the
Offerors shall have furnished to you and counsel to the Underwriter all
such other documents, certificates and opinions as they have reasonably
requested.
All opinions, certificates, letters and other documents shall be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you. The Offerors shall furnish you
with conformed copies of such opinions, certificates, letters and other
documents as you shall reasonably request.
If any of the conditions referred to in this Section 6 shall not
have been fulfilled when and as required by this Agreement, this Agreement
and all of the Underwriter's obligations hereunder may be terminated by you
on notice to the Company at, or at any time before, the Closing Date. Any
such termination shall be without liability of the Underwriter to the
Offerors.
SECTION 7. Indemnification and Contribution.
(a) Indemnification of Underwriter. The Company, the Trust and
the Bank jointly and severally agree to indemnify and hold harmless (x) the
Underwriter, (y) each of the Underwriter's directors, partners, officers
and agents and (z) each person, if any, who controls the Underwriter within
the meaning of the 1933 Act, as follows:
(i) against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation
and reasonable attorney fees and expenses), joint or several, arising
out of or based upon any untrue statement or alleged untrue statement
of a material fact made by the Company or the Trust contained in the
Registration Statement, any Preliminary Prospectus or the Prospectus,
or in any amendment or supplement thereto;
(ii) against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation
and reasonable attorney fees and expenses), joint or several, arising
out of or based upon any blue sky application or other document
executed by the Company or the Trust specifically for that purpose or
based upon written information furnished by the Company or the Trust
filed in any state or other jurisdiction in order to qualify any of
the Trust Preferred Securities under the securities laws thereof (any
such application, document or information being hereinafter referred
to as a "Blue Sky Application");
(iii) against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation
and reasonable attorney fees and expenses), joint or several, arising
out of or based upon any omission or alleged omission to state a
material fact in the registration statement as originally filed or the
Registration Statement, or in any amendment or supplement thereto, or
in any Blue Sky Application required to be stated therein or necessary
to make the statements therein not misleading;
(iv) against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation
and reasonable attorney fees and expenses), joint or several, arising
out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus or the
Prospectus, or in any amendment or supplement thereto, or arising out
of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and
(v) against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation
and reasonable attorney fees and expenses), joint or several, arising
out of or based upon the enforcement of this indemnification provision
or the contribution provisions of Section 7(d);
and shall reimburse each such indemnified party for any
reasonable legal or other expenses as incurred, but in no event less
frequently than 30 days after each invoice is submitted, incurred by them
in connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage,
liability or action, notwithstanding the possibility that payments for such
expenses might later be held to be improper, in which case such payments
shall be promptly refunded; provided, however, that the Offerors shall not
be liable in any such case to the extent, but only to the extent, that any
such losses, claims, damages, liabilities and expenses arise out of or are
based upon any untrue statement or omission or allegation thereof that has
been made or omitted in reliance upon and in conformity with the
Underwriter's Information; provided, that the indemnification contained in
this paragraph with respect to any Preliminary Prospectus shall not inure
to the benefit of the Underwriter (or of its directors, partners, officers,
and agents or of any person controlling the Underwriter) to the extent any
such losses, claims, damages, liabilities or expenses directly results from
the fact that the Underwriter sold Trust Preferred Securities to a person
to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as amended or
supplemented if any amendments or supplements thereto shall have been
furnished to you in sufficient time to distribute same with or prior to the
written confirmation of the sale involved), if required by law, and if such
loss, claim, damage, liability or expense would not have arisen but for the
failure to give or send such person such document. The foregoing indemnity
agreement is in addition to any liability the Company or the Trust may
otherwise have to any such indemnified party.
(b) Indemnification of Offerors, Directors and Officers. The
Underwriter agrees to indemnify and hold harmless each Offeror, each of its
directors, each of its officers and trustees who signed the Registration
Statement and each person, if any, who controls an Offeror within the
meaning of the 1933 Act, to the same extent as required by the foregoing
indemnity from the Company to the Underwriter, but only with respect to the
Underwriter's Information or information relating to the Underwriter
furnished in writing to an Offeror through the Underwriter by or on behalf
of it expressly for use in any Blue Sky Application. The foregoing
indemnity agreement is in addition to any liability which the Underwriter
may otherwise have to any such indemnified party.
(c) Actions against Parties; Notification. If any action or
claim shall be brought or asserted against any indemnified party or any
person controlling an indemnified party in respect of which indemnity may
be sought from the indemnifying party, such indemnified party or
controlling person shall promptly notify the indemnifying party in writing,
and the indemnifying party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to
notify the indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under such paragraph,
and further, shall only relieve it from liability under such paragraph to
the extent prejudiced thereby. Any indemnified party or any such
controlling person shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
or such controlling person unless (i) the employment thereof has been
specifically authorized by the indemnifying party in writing, (ii) the
indemnifying party has failed to assume the defense or to employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties
to any such action (including any impleaded parties) include both such
indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised
by counsel that there may be one or more legal defenses available to it
that are different from or in addition to those available to the
indemnifying party (in which case, if such indemnified party or controlling
person notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action on
behalf of such indemnified party or such controlling person); it being
understood, however, that the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any
local counsel) separate from their own counsel at any time and for all such
indemnified parties and controlling persons, which firm shall be designated
in writing by the indemnified party. Each indemnified party and each
controlling person, as a condition of such indemnity, shall use reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. The indemnifying party shall not be liable for any
settlement of any such action, suit or proceeding effected without its
written consent, but if settled with such written consent or if there be a
final judgment for the plaintiff in any such action, suit or proceeding,
the indemnifying party agrees to the extent provided by this Section 7 to
indemnify and hold harmless any indemnified party and any such controlling
person from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
An indemnifying party shall not, without the prior written
consent of each indemnified party, settle, compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnity may be sought hereunder (whether
or not such indemnified party or any person who controls such indemnified
party within the meaning of the 1933 Act is a party to such claim, action,
suit or proceeding), unless such settlement, compromise or consent includes
a release of each such indemnified party reasonably satisfactory to each
such indemnified party and each such controlling person from all liability
arising out of such claim, action, suit or proceeding and does not include
a statement as to or an admission of fault, culpability or a failure to act
by or on behalf of an indemnified party or unless the indemnifying party
shall confirm in a written agreement with each indemnified party, that
notwithstanding any federal, state or common law, such settlement,
compromise or consent shall not alter the right of any indemnified party or
controlling person to indemnification or contribution as provided in this
Agreement.
(d) Contribution. If the indemnification provided for in this
Section 7 is unavailable or insufficient to hold harmless an indemnified
party under paragraphs (a) or (b) hereof in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Offerors on the one hand and the Underwriter on the other from the
offering of the Trust Preferred Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Offerors
on the one hand and the Underwriter on the other in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Offerors on the one
hand and the Underwriter on the other shall be deemed to be in the same
proportion as the total proceeds from the offering of the Trust Preferred
Securities (before deducting expenses) received by the Offerors bear to the
total underwriting discounts, commissions and compensation received by the
Underwriter, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Offerors on the one hand and of
the Underwriter on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Offerors or by the Underwriter and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Offerors and
the Underwriter agree that it would not be just and equitable if
contribution pursuant to this paragraph (d) were determined by pro rata
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in the first sentence of this
paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this paragraph (d), the
Underwriter shall not be required to contribute any amount in excess of the
underwriting discount received by it. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
Neither party shall be liable for contribution for claims settled
without such party's consent, provided such consent shall not be
unreasonably withheld, conditioned or delayed.
For purposes of this paragraph (d), each person who controls the
Underwriter within the meaning of Section 15 of the 1933 Act, the partners,
directors, officers, employees and agents of the Underwriter shall have the
same rights to contribution as the Underwriter, and each person who
controls an Offeror within the meaning of Section 15 of the 1933 Act, each
officer and trustee of an Offeror who shall have signed the Registration
Statement and each director of an Offeror shall have the same rights to
contribution as the Offerors subject in each case to the preceding
sentence. The obligations of the Offerors under this paragraph (d) shall
be in addition to any liability which the Offerors may otherwise have and
the obligations of the Underwriter under this paragraph (d) shall be in
addition to any liability that the Underwriter may otherwise have.
(e) Survival of Indemnification and Contribution Provisions.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Offerors set forth in this
Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of the Underwriter or its
partners, directors, officers, employees or agents (or any person
controlling the Underwriter) or by or on behalf of the Offerors, or their
directors, trustees or officers (or any person controlling an Offeror),
(ii) acceptance of any Trust Preferred Securities and payment therefor
hereunder and (iii) any termination of this Agreement. A successor of the
Underwriter or its partners, directors, officers, employees or agents, or
of an Offeror, or its directors, trustees or officers (or of any person
controlling the Underwriter or an Offeror) shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
SECTION 8. Termination.
(a) Termination; General. You shall have the right to terminate
this Agreement at any time at or prior to the Closing Date without
liability on the part of the Underwriter to the Offerors, if:
(i) Either Offeror shall have failed, refused, or been
unable to perform any agreement on its part to be performed under this
Agreement, or any of the conditions referred to in Section 6 shall not
have been fulfilled, when and as required by this Agreement;
(ii) The Offerors or any of the Subsidiaries shall have
sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree which in the judgment of the Underwriter materially
impairs the investment quality of the Trust Preferred Securities;
(iii) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus,
any materially adverse change in, or any development which is
reasonably likely to have a material adverse effect on, the condition
(financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries on a
consolidated basis, whether or not arising in the ordinary course of
business;
(iv) Any event shall have occurred or shall exist that
makes untrue or incorrect in any material respect any statement or
information contained in the Registration Statement or that is not
reflected in the Registration Statement but should be reflected
therein to make the statements or information contained therein not
misleading in any material respect; or
(v) There has occurred any outbreak of hostilities or
other calamity or crisis or material change in general economic,
political or financial conditions, or internal conditions, the effect
of which on the financial markets of the United States is such as to
make it, in your reasonable judgment, impracticable to market the
Trust Preferred Securities or enforce contracts for the sale of the
Trust Preferred Securities;
(vi) Trading generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been
suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been
required, by any of said exchanges or market system or by the
Commission or any other governmental authority; or trading of any
securities of the Company on any exchanges or in the over-the-counter
market shall have been suspended;
(vii) A banking moratorium shall have been declared by
either federal, New York or Delaware authorities; or
(viii) Any action shall have been taken by any government
in respect of its monetary affairs which, in your reasonable judgment,
has a material adverse effect on the United States securities markets.
(b) Liabilities. If this Agreement shall be terminated pursuant
to this Section 8, the Offerors shall not then be under any liability to
the Underwriter except that the provisions of Sections 5 and 7 hereof shall
survive any termination of this Agreement.
SECTION 9. Effective Date of Agreement. If the Registration
Statement is not effective at the time of execution of this Agreement, this
Agreement shall become effective on the Effective Date at the time the
Commission declares the Registration Statement effective. The Company
shall immediately notify the Underwriter when the Registration Statement
becomes effective.
If the Registration Statement is effective at the time of
execution of this Agreement, this Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
Until such time as this Agreement shall have become effective, it
may be terminated by the Offerors, by notifying the Underwriter, or by you,
by notifying either Offeror, except that the provisions of Sections 5 and 7
shall at all times be effective.
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery. The representations, warranties, indemnities, agreements
and other statements of the Offerors and their officers and trustees set
forth in or made pursuant to this Agreement and the agreements of the
Underwriter contained in Section 7 hereof shall remain operative and in
full force and effect regardless of any investigation made by or on behalf
of the Offerors or controlling persons of either Offeror, or by or on
behalf of the Underwriter or controlling persons of the Underwriter or any
termination or cancellation of this Agreement and shall survive delivery of
and payment for the Trust Preferred Securities.
SECTION 11. Notices. Except as otherwise provided in this
Agreement, all notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand,
mailed by registered or certified mail, return receipt requested, or
transmitted by any standard form of telecommunication and confirmed.
Notices to the Underwriter shall be directed to Sandler O'Neill & Partners,
L.P., Two World Trade Center, New York, New York 10048, Attention:
Catherine A. Lawton, Principal and General Counsel, with a copy to Skadden,
Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York
10022, Attention: Vincent J. Pisano, Esq.; notices to the Offerors shall be
directed to WSFS Financial Corporation, 838 Market Street, Wilmington, DE
19899, Attention: Mark A. Turner, with a copy to Housley Kantarian &
Bronstein, P.C., 1220 19th Street, NW, Suite 700, Washington, DC 20036,
Attention: James C. Stewart, Esq.
SECTION 12. Parties. The Agreement herein set forth is made
solely for the benefit of the Underwriter and the Offerors and, to the
extent expressed, directors, trustees and officers of the Offerors,
partners, directors, officers, employees and agents of the Underwriter, any
person controlling the Offerors or the Underwriter, and their respective
successors and assigns. No other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns"
shall not include any purchaser, in his or her status as such purchaser,
from the Underwriter of the Trust Preferred Securities.
SECTION 13. Governing Law. This Agreement shall be governed
by the laws of the State of New York, without giving effect to the choice
of law or conflicts of law principles thereof.
SECTION 14. Counterparts. This Agreement may be executed in
one or more counterparts, and when a counterpart has been executed by each
party hereto all such counterparts taken together shall constitute one and
the same Agreement.
SECTION 15. Effect of Headings. The Section headings herein are
for convenience only and shall not affect the construction hereof.
SECTION 16. Other Agreements. To the extent that the provisions
in Section 7 of this Agreement conflict with the provisions in the Section
entitled "Indemnification" set forth in the engagement letter, dated April
9, 1998, between the Underwriter and the Company, the provisions in this
Agreement shall control.
[Remainder of page intentionally left blank]
If the foregoing is in accordance with the your understanding of
our agreement, please sign and return to us a counterpart hereof,
whereupon this shall become a binding agreement between the Company, the
Trust and you in accordance with its terms.
Very truly yours,
WSFS FINANCIAL CORPORATION
By:________________________________________
Name:
Title:
WILMINGTON SAVINGS FUND
SOCIETY, FSB
By:________________________________________
Name:
Title:
WSFS CAPITAL TRUST I
By:________________________________________
Name: Marvin N. Schoenhals
Title: Administrative Trustee
By:________________________________________
Name: Mark A. Turner
Title: Administrative Trustee
By:________________________________________
Name: David J. Martin
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of November 17, 1998.
BY: SANDLER O'NEILL & PARTNERS, L.P.
BY: Sandler O'Neill & Partners Corp.,
the sole general partner
By:____________________________________
Name: Catherine A. Lawton
Title: Vice President
EXHIBIT A
LIST OF SUBSIDIARIES
-------------------
Subsidiaries of the Company
---------------------------
Wilmington Savings Fund Society, FSB
WSFS Capital Trust I
Subsidiaries of the Bank
------------------------
WSFS Credit Corporation
838 Investment Group, Inc.
Community Credit Corporation
Star States Development Company (inactive)
