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EXHIBIT 1
$30,000,000
USBANCORP Capital Trust I
BLUS (SM)
___% Beneficial Unsecured Securities, Series A
(Liquidation Amount $25 per Capital Security)
UNDERWRITING AGREEMENT
April ___, 1998
CIBC Oppenheimer Corp.
Legg Mason Wood Walker Incorporated
On behalf of the Several
Underwriters named in
Schedule I attached hereto.
c/o CIBC Oppenheimer Corp.
Oppenheimer Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
USBANCORP Capital Trust I (the "Trust"), a statutory business trust
created under the Business Trust Act (the "Delaware Act") of the State of
Delaware, and USBANCORP, a corporation organized under the laws of the
Commonwealth of Pennsylvania (the "Company"), propose to sell to you and the
other underwriters named in Schedule I to this Agreement (the "Underwriters"),
for whom you are acting as representatives (the "Representatives"), an aggregate
of shares (the "Firm Capital Securities") of its ___% Beneficial Unsecured
Securities, Series A (liquidation amount $25 per Capital Security) (the "Capital
Securities"). The Trust also proposes to grant to the Underwriters an option to
purchase up to an aggregate of additional Capital Securities (collectively,
the "Option Capital Securities") from the Trust solely for the purpose of
covering over-allotments in connection with the sole of the Firm Capital
Securities. The Firm Capital and the Option Capital Securities are together
called the "Capital Securities".
The Capital Securities will be guaranteed by (the "Company"), with
respect to distributions and amounts payable upon liquidation or redemption of
such Capital Securities (the "Guarantee") pursuant to the Guarantee Agreement
(the "Guarantee Agreement"), to be entered into between the Company and The Bank
of New York, as trustee (the "Guarantee Trustee"), for the benefit of holders
from time to time of the Capital Securities. The Company will be the owner of
all of the beneficial ownership interests represented by the common securities
(the "Common Securities") of the Trust. Proceeds from the sale of Capital
Securities to the Underwriters and from the concurrent sale of Common Securities
to the Company will be used to purchase approximately $30,900,000 aggregate
principal amount of ____% Junior Subordinated Deferrable Interest Debentures,
Series A due June 30, 2028 (the "Debentures") of the Company. The Debentures
will be issued by the Company pursuant to an Indenture (the "Indenture"), to be
entered into between the Company and The Bank of New York, as trustee (the
"Debenture Trustee"). This Agreement, the Indenture, the
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Declaration, and the Guarantee Agreement are referred to collectively as the
"Operative Documents."
1. Sale and Purchase of the Capital Securities.
On the basis of the representations, warranties and agreements
contained in, and subject to the terms and conditions of, this Agreement:
(a) The Trust and the Company agree to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase the respective number of Capital Securities set forth
opposite the name of such Underwriter on Schedule I to this Agreement at a
purchase price of ___% of the liquidation amount thereof (the "Initial
Price").
(b) The Trust and the Company grant to the several Underwriters an
option to purchase, severally and not jointly, all or any part of the
Option Capital Securities at the Initial Price. The number of Option
Capital Securities to be purchased by each Underwriter shall be the same
percentage (adjusted by the Representatives to eliminate fractions) of the
total number of Option Capital Securities to be purchased by the
Underwriters as such Underwriter is purchasing of the Firm Capital
Securities. Such option may be exercised only to cover over-allotments in
the sales of the Firm Capital Securities by the Underwriters and may be
exercised in whole or in part at any time on or before 12:00 noon, New
York City time, on the business day before the Firm Closing Date (as
defined below), and only once thereafter within thirty days after the date
of this Agreement, in each case upon written or telegraphic notice, or
verbal or telephonic notice confirmed by written or telegraphic notice, by
the Representatives to the Trust no later than 12:00 noon, New York City
time, on the business day before the Firm Closing Date (as defined below)
or at least two business days before the Option Closing Date (as defined
below), as the case may be, setting forth the number of Option Capital
Securities to be purchased and the time and date (if other than the Firm
Closing Date (as defined below)) of such purchase.
2. Delivery and Payment. Delivery of the Firm Capital Securities to
the Representatives for the respective accounts of the Underwriters, and payment
of the purchase price by certified or official bank check or checks payable in
same day funds to the Trust, shall take place at the offices of CIBC Oppenheimer
Corp. at Oppenheimer Tower, World Financial Center, New York, New York 10281, at
10:00 a.m., New York City time, on the fifth business day following the date of
this Agreement, or at such time on such other date, not later than ten (10)
business days after the date of this Agreement, as shall be agreed upon by the
Trust and the Representatives (such time and date of delivery and payment are
called the "Firm Closing Date").
In the event the option with respect to the Optional Capital
Securities is exercised, delivery by the Trust of the Optional Capital
Securities to the Representatives for the respective accounts of the
Underwriters and payment of the purchase price by certified or official bank
check or checks payable in New York Clearing House (next day) funds to the Trust
shall take place at the offices of CIBC Oppenheimer Corp. specified above at the
time and on the date (which may be the same date as, but in no event shall be
earlier than, the Firm Closing Date) specified in the notice referred to in
Section 1(b) (such time and date of
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delivery and payment are called the "Optional Closing Date"). The Firm Closing
Date and the Optional Closing Date are called, individually, a "Closing Date"
and, together, the "Closing Dates."
Certificates evidencing the Capital Securities shall be registered
in such names and shall be in such denominations as the Representatives shall
request at least two (2) full business days before the Firm Closing Date or, in
the case of Optional Capital Securities, on the day of notice of exercise of the
option as described in Section l(b) and shall be made available to the
Representatives for checking and packaging, at such place as is designated by
the Representatives, on the full business day before the Firm Closing Date (or
the Optional Closing Date in the case of the Optional Capital Securities).
As compensation for the Underwriters' commitment and in view of the
fact that proceeds from the sale of Capital Securities to the Underwriters will
be used to purchase the Debentures, the Company shall pay, on the Firm Closing
Date or the Option Closing Date, as the case may be to the Underwriters a
commission of ___% of the liquidation amount of the Capital Securities purchased
by the Underwriters on such Closing Date by wire transfer to a bank account
designated by CIBC Oppenheimer Corp.
3. Registration Statement and Prospectus; Public Offering. The
Company and the Trust have prepared in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the published
rules and regulations thereunder (the "Rules") adopted by the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
333-_____), including a preliminary prospectus relating to the Capital
Securities, and has filed with the Commission the Registration Statement (as
hereinafter defined) and such amendments thereof as may have been required to
the date of this Agreement. Such Registration Statement has been declared
effective by the Commission, and no further amendments thereto or supplements
thereof have been filled by the Company or the Trust with the Commission. Copies
of such Registration Statement (including all amendments thereof) and of the
related preliminary prospectus have heretofore been delivered by the Company and
the Trust to you. The term "Preliminary Prospectus" means any preliminary
prospectus (as described in Rule 430 of the Rules) included at any time as a
part of the Registration Statement. The Registration Statement as amended at the
time and on the date it became effective (the "Effective Date"), including all
exhibits and information, if any, deemed to be part of the Registration
Statement pursuant to Rule 424(b) and Rule 430A of the Rules, is called the
"Registration Statement." The term "Prospectus" means the prospectus in the form
first used to confirm sales of the Capital Securities (whether such prospectus
was included in the Registration Statement at the time of effectiveness or was
subsequently filed with the Commission pursuant to Rule 424(b) of the Rules).
Reference made herein to the Registration Statement, any Preliminary Prospectus
or the prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Item ___ of Form S-3 under the
Securities Act as of the date of such preliminary Prospectus or Prospectus, as
the case may be.
The Company and the Trust understands that the Underwriters propose
to make a public offering of the Firm Capital Securities and, to the extent
applicable, the Option Capital Securities, as set forth in and pursuant to the
Prospectus, as soon after the date of this Agreement as the Representatives deem
advisable. The Company hereby confirm that the Underwriters and dealers have
been authorized to distribute or cause to be distributed each preliminary
prospectus and are authorized to distribute the Prospectus (as from time to
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time amended or supplemented if the Company furnishes amendments or supplements
thereto to the Underwriters).
4. Representations and Warranties of the Trust and the Company. Each
of the Trust and the Company hereby, jointly and severally, represents and
warrants to, and agrees with, each Underwriter as follows:
(a) On the Effective Date the Registration Statement complied, and
on the date of the Prospectus, on the date any post-effective amendment to
the Registration Statement shall become effective, on the date any
supplement or amendment to the Prospectus is filed with the Commission and
on each Closing Date, the Registration Statement and the Prospectus (and
any amendment thereof or supplement thereto) will comply, in all material
respects, with the applicable provisions of the Securities Act and the
Rules and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission thereunder. The
Registration Statement did not, as of the Effective Date, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and on the other dates referred to above, neither
the Registration Statement nor the Prospectus, nor any amendment thereof
or supplement thereto, will contain any untrue statement of a material
fact or will omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading. When
any related preliminary prospectus was first filed with the Commission
(whether filed as part of the Registration Statement or any amendment
thereto or pursuant to Rule 424(a) of the Rules) and when any amendment
thereof or supplement thereto was first filed with the Commission, such
preliminary prospectus as amended or supplemented complied in all material
respects with the applicable provisions of the Securities Act and the
Rules and did not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading. Notwithstanding the
foregoing, the Company and the Trust make no representation or warranty as
to the paragraph with respect to stabilization on the inside front cover
page of the Prospectus and the statements contained under the caption
"Underwriting" in the Prospectus. The Company and the Trust acknowledge
that the statements referred to in the previous sentence constitute the
only information furnished in writing by the Representatives on behalf of
the several Underwriters specifically for inclusion in the Registration
Statement, any preliminary prospectus or the Prospectus.
(b) The documents incorporated by reference in the Registration
Statement and the Prospectus, when they were wiled with the Commission,
conformed in all material respects to the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements made therein not misleading.
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(c) All contracts and other documents required to be filed as
exhibits to the Registration Statement have been filed with the Commission
as exhibits to the Registration Statement.
(d) The consolidated financial statements of the Company (including
all notes and schedules thereto) included in the Registration Statement
and Prospectus present fairly the financial condition, the results of
operations and cash flows and stockholders' equity and the other
information purported to be shown therein of the Company and its
subsidiaries (as defined in Section 12) at the respective dates and for
the respective periods to which they apply; and such financial statements
have been prepared in conformity with generally accepted accounting
principles, consistently applied throughout the periods involved, and all
adjustments (consisting only of normal recurring adjustments) necessary
for a fair presentation of the results for such periods have been made.
(e) Arthur Andersen LLP, whose reports are filed with the Commission
as a part of the Registration Statement are and, during the periods
covered by their reports, were independent public accountants as required
by the Securities Act and the Rules.
(f) The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended (the "BHC Act"); the
Company and each of United national Bank in Johnstown, Three Rivers Bank
and Trust Company, Community Bancorp, Inc., Community Savings Bank and
USBANCORP Trust Company (collectively, the "Subsidiaries") have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are
qualified to do business and are in good standing as foreign corporations
in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification, and have all corporate power necessary to own or hold their
respective properties, to operate their branches and to conduct the
businesses in which they are engaged; and none of the subsidiaries of the
Company (other than each of the Subsidiaries) is a "significant
subsidiary", as such term is defined in Rule 405 of the Rules. The deposit
accounts of the Subsidiaries are insured by the Bank Insurance Fund of the
Federal Deposit Insurance Corporation ("FDIC") or the Savings Association
Insurance Fund of the FDIC to the fullest extent permitted by law and the
rules and regulations of the FDIC, and no proceedings for the termination
of such insurance are pending or threatened.
(g) The Company and each of the Subsidiaries owns, possesses or has
obtained all governmental licenses, permits, certificates, consents,
orders, approvals and other authorizations required under the laws of the
Commonwealth of Pennsylvania, the United States and any other jurisdiction
in which the Company or the Subsidiaries transact business in order to own
or lease, as the case may be, and to operate its properties and to conduct
its business as presently conducted and as described in the Prospectus;
all of such licenses, permits, certificates, consents, orders, approvals
and authorizations are in full force and effect and neither the Company
nor any of the Subsidiaries has received any notice of proceedings
relating to any revocation or modification thereof.
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(h) The Company and the Subsidiaries each have good and marketable
title in fee simple to all real property and good title to all personal
property owned by it, in each case free and clear of all liens,
encumbrances and defects except such as do not materially affect the value
of such property or do not materially interfere with the use made of such
property by the Company or such Subsidiary; and all real property and
buildings held under lease by the Company or any of the Subsidiaries are
held by them under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made of
such property and buildings by the Company or such Subsidiary.
(i) There is no action, suit, investigation or proceeding,
governmental or otherwise, pending or, to the Company's best knowledge,
threatened or contemplated (and the Company does not know of any basis
therefor) to which the Company or any of its Subsidiaries is or may be a
party or of which the business or property of the Company or any of its
Subsidiaries is or may be subject in either case that is material to the
Company and its Subsidiaries, taken as a whole, or which is required to be
disclosed in the Prospectus.
(j) Except as disclosed in or contemplated by the Registration
Statement and the Prospectus, subsequent to 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
business, financial condition, management or results of operations of the
Company and its Subsidiaries whether or not arising from transactions in
the ordinary course of business, and neither the Company nor any of its
Subsidiaries has sustained any material loss or interference with its
assets, businesses or properties from fire, explosion, earthquake, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order or
decree.
(k) Except as may be disclosed in the Prospectus, the business of
the Company and the Subsidiaries has been conducted in all material
respects in compliance with all applicable laws, rules and regulations of
the Commonwealth of Pennsylvania, the United States and any other
jurisdiction in which the Company or any of the Subsidiaries transact
business, and of any regulatory agency or authority therein, which laws
are material to the operations of the Company. Neither the Company nor any
of the Subsidiaries is in violation in any material respect of any term or
provision of its charter or by-laws or other governing documents or of any
franchise, license, permit, judgment, decree, order, statute, rule,
regulation, directive, policy or guideline to which it or its property may
be subject, except for such violations which could not, individually or in
the aggregate, have a material adverse effect on the Company.
(l) No default exists, and no event has occurred which with notice
or lapse of time or both would constitute a default, in the due
performance and observance of any term, covenant or condition by the
Company or any of the Subsidiaries of any material agreement, indenture,
mortgage, deed of trust, note or any other material agreement or material
instrument to which the Company or any of the Subsidiaries is a party or
by which any of them or their respective properties or businesses may be
bound.
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(m) Neither the execution, delivery and performance of this
Agreement by the Company and the Trust nor the consummation of any of the
transactions contemplated hereby (including, without limitation, the
issuance by the Company of the Guarantee and the Debentures and the issue
by the Trust of the Capital Securities) will conflict with or result in
the breach or violation of any term or provision of, or constitute a
default (or an event which with notice or lapse of time or both would
constitute a default) under, or require any consent or waiver under, or
result in the creation or imposition of any lien, charge, claim,
encumbrance or security interest on any properties or assets of the
Company or any of the Subsidiaries pursuant to the terms of, any material
agreement, indenture, mortgage or other material agreement or material
instrument to which the Company or any of its Subsidiaries is a party or
by which the Company or any of its Subsidiaries is bound or to which any
of the property or assets of the Company or any of its Subsidiaries is
subject, nor will such actions violate the charter or by-laws or other
governing document of the Company or any of its Subsidiaries or any
applicable law, rule, regulation, decision, order or decree of any court
or governmental agency or governmental authority having jurisdiction over
the Company or any of its Subsidiaries or any of their properties, except
for such violations which will not have a material effect on the Company.
(n) No consent, approval, authorization or order of, or filing,
registration, or qualification with, any governmental agency or authority
is required in connection with the execution and delivery by the Company
of this Agreement or the consummation of the transactions contemplated
hereby (including without limitation the issuance by the Company of the
Guarantee and the debentures and the issue by the Trust of the Capital
Securities), except (A) as may be required under the Securities Act and
the Rules, the Exchange Act, or the Blue Sky laws of the various states of
the United States in connection with any sales of Capital Securities
therein or (B) as have already been obtained or made.
(o) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules which have not been
described in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the Rules.
(p) The Company's capitalization is as set forth in the Prospectus;
all of the issued shares of capital stock of each of the Subsidiaries of
the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, equities or claims
of any third parties; and no holder of any security of the Company has the
right to have any security owned by such holder included in the
Registration Statement or to require the Company to register any security
owned by such holder.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
described therein, (i) there has not been any material adverse change in
the assets or properties, business, results of operations, prospects or
condition (financial or otherwise), of the Company or any of its
Significant Subsidiaries, whether or not arising from transactions in the
ordinary course of business; (ii) neither the Company nor any of its
Significant Subsidiaries has
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sustained any material loss or interference with its assets, businesses or
properties (whether owned or leased) from fire, explosion, earthquake,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or any court or legislative or other governmental action,
order or decree; and (iii) and since the date of the latest balance sheet
included in the Registration Statement and the Prospectus, except as
reflected therein, neither the Company nor any of its Significant
Subsidiaries has (x) issued any securities or incurred any liability or
obligation, direct or contingent, for borrowed money, except such
liabilities or obligations incurred in the ordinary course of business,
(y) entered into any transaction not in the ordinary course of business,
or (z) declared or paid any dividend or made any distribution on any
shares of its respective stock or redeemed, purchased or otherwise
acquired or agreed to redeem, purchase or otherwise acquire any shares of
its respective stock.
(r) There is no document or contract of a character required to be
described in the Registration Statement or Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required. Each agreement listed in the Exhibits to the Registration
Statement is in full force and effect and is valid and enforceable by and
against the Company or the Trust, as the case may be, in accordance with
its terms, assuming the due authorization, execution and delivery thereof
by each of the other parties thereto. Neither the Trust, the Company, nor
to the best of the Company's knowledge, any other party, is in default in
the observance or performance of any term or obligation to be performed by
it under any such agreement, and no event has occurred which with notice
or lapse of time or both would constitute such a default, in any such case
which default or event would have a material adverse effect on the assets
or properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company. No default exists, and no event
has occurred which with notice or lapse of time or both would constitute a
default, in the due performance and observance of any term, covenant or
condition, by the Trust or the Company, as the case may be, of any other
agreement or instrument to which the Trust or the Company, as the case may
be, is a party or by which it or its properties or business may be bound
or affected which default or event would have a material adverse effect on
the assets or properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company.
(s) The Company is not in violation of any term or provision of its
charter or by-laws; the Trust is not in violation of its certificate of
Trust or Declaration; and neither the Trust, the Company nor any of the
Company's subsidiaries is in violation of any franchise, license, permit,
judgment, decree, order, statute, rule or regulation, where the
consequences of such violation would have a material adverse effect on the
assets or properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company and its subsidiaries,
taken as a whole.
(t) Neither the execution, delivery and performance of the Operative
Documents by the Trust and the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation, the
issuance and sale by the Trust of the Capital Securities) will give rise
to a right to terminate or accelerate the due date of any payment due
under, or conflict with or result in the breach of any term or provision
of, or constitute a default (or an event which with notice or lapse of
time or both would constitute a default) under, or require any consent or
waiver under, or result in the execution or imposition of any lien, charge
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or encumbrance upon any properties or assets of the Trust, the Company or
any of the Company's Subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust or other agreement or instrument to which the
Trust, the Company or any of the Company's Subsidiaries is a party or by
which it or any of its properties or businesses is bound, and no
franchise, license, permit, judgment, decree, order, statute, rule or
regulation applicable to the Trust, the Company or any of the Company's
Subsidiaries violate any provision of the charter or by-laws of the
Company or any of its Subsidiaries, the Trust Agreement or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Trust, the Company or any of the Company's
Subsidiaries or any of their properties or assets.
(u) The Capital Securities and the Common Securities have been duly
and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued, fully paid
and non-assessable; and the Capital Securities and the Common Securities,
when issued and delivered, will conform in all material respects to the
descriptions thereof contained in the Prospectus.
(v) The Indenture has been duly authorized, and when duly executed
by the proper officers of the Company (assuming due execution and delivery
by the Indenture Trustee) and delivered by the Company will constitute a
valid and binding agreement of the Company enforceable against the Company
in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; and the
Junior Subordinated Debentures have been duly authorized, and, when duly
executed, authenticated, issued and delivered as contemplated in the
Indenture, will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable in accordance
with their terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing; and the Junior
Subordinated Debentures, when issued and delivered, will conform in all
material respects to the description thereof contained in the Prospectus.
(w) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act
with the trust power and authority to own property and conduct its
business as described in the Prospectus, and has conducted and will
conduct no business other than the transactions contemplated by this
Agreement as described in the Prospectus; the Trust is not a party to or
bound by any agreement or instrument other than this Agreement, the
Amended and Restated Trust Agreement (the "Trust Agreement") among the
Company, The Bank of New York, as property trustee (the "Property
Trustee"), The Bank of New York (Delaware), as Delaware trustee (the
"Delaware Trustee") and the individuals named therein as the Regular
Trustees (the "Regular Trustees", and together with the Property Trustee
and the Delaware Trustees, the "Trustees"), and the agreements and
instruments contemplated by the Declaration and described in the
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Prospectus; the Trust has no liabilities or obligations other than those
arising out of the transactions contemplated by this Agreement and the
agreements and instruments contemplated by the Declaration and described
in the Prospectus; and the Trust is not a party to or subject to any
action, suit or proceeding of any nature.
(x) The Trust Agreement has been duly authorized by the Company and,
when duly executed and delivered by the Company and the Trustees, will be
a valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting the rights of creditors
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing, and will conform in all material respects to the description
thereof contained in the Prospectus. Each of the Regular Trustees is an
employee of the Company and has been duly authorized by the Company to
serve in such capacity and to execute and deliver the Declaration.
(y) The Guarantee Agreement has been duly authorized and, when duly
executed and delivered by the proper officers of the Company and the
Guarantee Trustee, will constitute a valid and legally binding agreement
of the Company enforceable against the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; and the Guarantee Agreement, when
executed and delivered, will conform in all material respects to the
description thereof contained in the Prospectus.
(z) This Agreement has been duly authorized, executed and delivered
by each of the Company and the Trust.
(aa) No transaction has occurred between or among the Company on the
one hand, and any of its officers or directors or any affiliate or
affiliates of any such officer or director on the other hand that is
required to be described in and is not described in the Registration
Statement and the Prospectus.
(ab) Neither the Trust, the Company nor any of the Company's
subsidiaries has taken, nor will they take, directly or indirectly, any
action designed to or which might reasonably be expected to cause or
result in, or which has constituted or which might reasonably be expected
to constitute, the stabilization or manipulation of the price of the
Capital Securities to facilitate the sale or resale of any of such Capital
Securities.
(ac) Neither the Trust nor the Company nor any subsidiary of the
Company is an "investment company" within the meaning of such term under
the Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
5. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters under this Agreement are several and not joint. The respective
obligations of
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the Underwriters to purchase the Capital Securities are subject to each of the
following terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 6(a)(i) of this Agreement.
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect and no
order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information
on the part of the Commission (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to
the satisfaction of the Representatives.
(c) The representations and warranties of the Trust and the Company
contained in this Agreement and in the certificates delivered pursuant to
Section 5(g) shall be true and correct when made and on and as of each
Closing Date as if made on such date and each of the Trust and the Company
shall have performed all covenants and agreements and satisfied all the
conditions contained in this Agreement required to be performed or
satisfied by it at or before such Closing Date.
(d) The Representatives shall have received at the time this
Agreement is executed and on each Closing Date a signed letter from Arthur
Andersen LLP addressed to the Representatives and dated, respectively, the
date of this Agreement and each such Closing Date, in form and substance
reasonably satisfactory to the Representatives.
(e) The Representatives shall have received on each Closing Date
from Stevens & Lee, counsel to the Company and the Trust, an opinion,
addressed to the Representatives and dated such Closing Date, and stating
in effect that:
(f) The Company is duly registered as a bank holding company under
the BHC Act and the Company and each of its Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, and have all corporate power necessary to own or hold
their respective properties, to operate their branches and conduct the
business in which they are engaged as described in the Prospectus;
(g) The Company's capitalization is as set forth in the Prospectus;
and all of the issued shares of capital stock of each of the Subsidiaries
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable and, to the best of such counsel's
knowledge, are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims; and no holder of any
security of the Company has the right, under the Company's certificate of
incorporation or by-laws or any agreement or instrument known to such
counsel, to have any security owned by such holder included in the
Registration Statement or to
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require the Company to register under the Securities Act any security
owned by such holder.
(h) The Registration Statement was declared effective under the
Securities Act at the time and on the date specified in such counsel's
opinion and to the best knowledge of such counsel, no stop order or other
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose are pending before the
Commission under the Securities Act.
(i) The Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Company prior to such
Closing Date (other than the financial statements and related notes and
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and the Rules; and the documents incorporated by reference
in the Prospectus (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), when
they were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
(j) The Company and the Trust meet all the conditions necessary for
the use of Form S-3 in connection with the issuance and sale of the
Capital Securities, the Guarantee and the Junior Debentures.
(k) To the best knowledge of such counsel, the businesses of the
Company and the Subsidiaries have been conducted in all material respects
in compliance with all applicable laws, rules and regulations of the
Commonwealth of Pennsylvania, the United States and any other
jurisdictions in which the Company or any of the Subsidiaries transact
business, which laws are material to the operations of the Company. To the
best knowledge of such counsel, neither the Company nor any of the
Subsidiaries is in violation of or conflict with any term or provision of
its charter or by-laws or other governing documents and neither the
Company nor any of the Subsidiaries is in violation of any franchise,
license, permit, judgment, decree, order, statute, rule, regulation,
directive, policy or guideline to which it or its property may be subject,
except for such violations which could not, individually or in the
aggregate, have a material adverse effect on the Company.
(l) To the best knowledge of such counsel, no default exists, and no
event has occurred which with notice or lapse of time or both would
constitute a default, in the due performance and observance of any term,
covenant or condition by the Company or any of the Subsidiaries of any
material agreement, indenture, mortgage, deed of trust, note or any other
material agreement or material instrument to which the Company or any of
the Subsidiaries is a party or by which it or its properties or businesses
may be bound.
(i) Neither the execution, delivery and performance of the
Agreement or the Operative Documents by the Trust and the Company
nor the consummation of any of the transactions contemplated hereby
or thereby (including, without limitation, the issuance and sale by
the Company of the Junior Debentures and the Guarantee and by the
Trust of the Capital Securities) will give rise to a right to
terminate or accelerate the due date of
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any payment due under, or conflict with or result in the breach of
any term or provision of, or constitute a default (or an event which
with notice or lapse of time or both would constitute a default)
under, or require any consent or waiver under, or result in the
execution or imposition of any lien, charge or encumbrance upon any
properties or assets of the Trust, the Company or any of the
Company's Subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust or other agreement or instrument to which
the Trust, the Company or any of the Company's Subsidiaries is a
party or by which it or any of its properties or businesses is
bound, and no franchise, license, permit, judgment, decree, order,
statute, rule or regulation applicable to the Trust, the Company or
any of the Company's subsidiaries violate any provision of the
charter or by-laws of the Company or any of its subsidiaries, the
Trust Agreement or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over
the Trust, the Company or any of the Company's Subsidiaries or any
of their properties or assets.
(ii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by the Company.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution
and delivery thereof by the Indenture Trustee) constitutes a valid
and binding agreement of the Company enforceable against the Company
in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; and the Junior Subordinated Debentures have
been duly authorized, executed, issued and delivered by the Company
as contemplated in the Indenture and (assuming due authentication by
the Indenture Trustee) constitute valid and binding obligations of
the Company entitled to the benefits of the Indenture and
enforceable in accordance with their terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(v) The Guarantee Agreement has been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery by the Guarantee Trustee, constitutes a valid
and legally binding obligation of the Company enforceable against
the Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
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considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(vi) The statements contained in the Prospectus under the
caption "Certain United States Federal Income Tax Consequences" are
accurate in all material respects and constitute a fair summary of
the matters set forth therein;
(vii) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in
the Prospectus or filed as exhibits to the Registration Statements
by the Securities Act or by the Rules and Regulations which have not
been described or filed as exhibits to the Registration Statements
or incorporated therein by reference as permitted by the Rules and
Regulations.
(viii) The statements in the Prospectus under the captions
"Description of Series A Capital Securities," "Description of Series
A Subordinated Debentures," "Description of Series A Guarantee," and
"Relationship Among the Series A Capital Securities, the Series A
Subordinated Debentures and the Series A Guarantee," insofar as such
statements constitute a summary of documents referred to therein or
matters of law, are fair summaries in all material respects and
accurately present the information called for with respect to such
documents and matters. All contracts and other documents required to
be filed as exhibits to, or described in, the Registration Statement
have been so filed with the Commission or are fairly described in
the Registration Statement, as the case may be.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company and
public officials and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the laws of
the Commonwealth of Pennsylvania and the federal laws of the United States of
America; provided that such counsel shall state that in their opinion the
Underwriters and they are justified in relying on such other opinions. Copies of
such certificates and other opinions shall be furnished to the Representatives
and counsel for the Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent certified public accountants of the Company, at which conferences
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus (except as
specified in the foregoing opinion), on the basis of the foregoing, no facts
have come to the attention of such counsel which lead such counsel to believe
that the Registration Statement at the time it became effective (except with
respect to the financial statements and notes and schedules thereto and other
financial data, as to which such counsel need express no belief) contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus as amended or supplemented (except with respect to the
financial statements and notes schedules thereto and other financial data, as to
which such counsel need make no
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statement), as of its issue date and at the date of such opinion, contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(m) Richards Layton & Finger shall have furnished to the
Representatives its written opinion, as special Delaware counsel to the
Trust and the Company, addressed to the Underwriters and dated the Firm
Closing Date, in form and substance satisfactory to the Representatives,
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 Act, and all
filings required under the laws of the State of Delaware with
respect to the creation and valid existence of the Trust as a
business trust have been made;
(ii) Under the Delaware Act and the Trust Agreement the Trust
has the trust power and authority to own its property and conduct
its business as set forth in the Trust Agreement;
(iii) The Trust Agreement constitutes a valid and binding
obligation of the Company and the Trustees, and is enforceable
against the Company and the Trustees in accordance with its terms,
subject, as to enforcement, to the effect upon the Trust Agreement
of (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent transfer and other similar
laws relating to 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;
(iv) Under the Delaware Act and the Trust Agreement, the Trust
has the trust power and authority (i) to execute and deliver, and to
perform its obligations under, the Operative Documents and (ii) to
issue and perform its obligations under the Capital Securities and
the Common Securities;
(v) Under the Delaware Act and the Trust Agreement, the
execution and delivery by the Trust of this Agreement, and the
performance by the Trust of its obligations hereunder, have been
duly authorized by all necessary trust action on the part of the
Trust;
(vi) The Capital Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust and are
entitled to the benefits of the Trust Agreement. The holders of the
Capital Securities, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. Such counsel may
note that the holders of Capital Securities may be obligated,
pursuant to the Declaration, (i) to provide indemnity and/or
security in connection with and pay taxes or governmental
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charges arising from transfers or exchanges of certificates of
Capital Securities and the issuance of replacement certificates of
Capital Securities, and (ii) to provide security or indemnity in
connection with requests of or directions to the Property Trustee to
exercise its rights and powers under the Trust Agreement;
(vii) Under the Delaware Act and the Trust Agreement, the
issuance of the Capital Securities is not subject to preemptive
rights;
(viii) The issuance and sale by the Trust of the Capital
Securities and Common Securities, the execution, delivery and
performance by the Trust of the Operative Documents, the
consummation by the Trust of the transactions contemplated hereby
and compliance by the Trust with its obligations hereunder, and the
performance by the Company, as depositor, of its obligations under
the Trust Agreement (A) do not violate (i) any of the provisions of
the certificate of trust of the Trust or the Trust Agreement or (ii)
any applicable Delaware law or administrative regulation (except
that such counsel need express no opinion with respect to the
securities laws of the State of Delaware) and (B) do not require any
consent, approval, license, authorization or validation of, or
filing or registration with, any Delaware legislative,
administrative or regulatory body under the laws or administrative
regulations of the State of Delaware (except that such counsel need
express no opinion with respect to the securities laws of the state
of Delaware); and
(ix) Assuming that the Trust derives no income from or in
connection with sources within the State of Delaware and has no
assets, activities (other than maintaining the Delaware Trustee and
the filing of documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware, the holders of the
Capital Securities (other than those holders of Capital Securities
who reside or are domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of Delaware solely
as a result of their participation in the Trust, and the Trust will
not be liable for any income tax imposed by the State of Delaware.
(n) The Representatives shall have received on each Closing
Date a certificate, addressed to the Representatives and dated such
Closing Date, of the chief executive or chief operating officer and
the chief financial officer or chief accounting officer of the
Company to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus and
this Agreement and that the representations and warranties of the
Company and the Trust in this Agreement are true and correct on and
as of such Closing Date with the same effect as if made on such
Closing Date and the Company and the Trust has each performed all
covenants and agreements and satisfied all conditions contained in
this Agreement required to be performed or satisfied by it at or
prior to such Closing Date.
(o) The Representatives shall have received on each Closing
Date a certificate, addressed to the Representatives and dated such
Closing Date, of the chief executive or chief operating officer and
the chief financial officer or chief accounting officer of the
Company tot he effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus
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and this Agreement and that the representations and warranties of
the Company and the Trust in this Agreement are true and correct on
and as of such Closing Date with the same effect as if made on such
Closing Date and the Company and the Trust has performed all
covenants and agreements and satisfied all conditions contained in
this Agreement required to be performed or satisfied by it at or
prior to such Closing Date.
(p) All proceedings taken in connection with the sale of the
Firm Capital Securities and the Option Capital Securities as herein
contemplated shall be reasonably satisfactory in form and substance
to the Representatives and their counsel and the Underwriters shall
have received from Simpson Thacher & Bartlett a favorable opinion,
addressed to the Representatives and dated such Closing Date, with
respect to the Capital Securities the Registration Statement and the
Prospectus, and such other related matters, as the Representatives
may reasonably request, and the Company shall have furnished to
Simpson Thacher & Bartlett such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(q) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities.
6. Covenants of the Trust and the Company.
(a) Each of the Trust and the Company covenants and agrees as
follows:
(i) To prepare the Prospectus in a form approved by the
Representatives and file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than 10:00 A.M. on the day
following the execution and delivery of this Agreement, and shall
promptly advise the Representatives (A) when any amendment to the
Registration Statement shall have become effective, (B) of any
request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information, (C)
of the prevention or suspension of the use of any preliminary
prospectus or the Prospectus or of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose, and (D) of the receipt by the Trust or the Company of
any notification with respect to the suspension of the qualification
of the Capital Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
Neither the Trust nor the Company shall file any amendment of the
Registration Statement or supplement to the Prospectus unless the
Trust or the Company has furnished the Representatives a copy for
its review prior to filing and shall not file any such proposed
amendment or supplement to which the Representatives
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reasonably object. Each of the Trust and the Company shall use its
best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the Capital
Securities is required to be delivered under the Securities Act and
the Rules, any event occurs as a result of which the Prospectus as
then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend
or supplement the Prospectus to comply with the Securities Act or
the Rules, to promptly shall prepare and file with the Commission,
subject to the second sentence of paragraph (i) of this Section
6(a), an amendment or supplement which shall correct such statement
or omission or an amendment which shall effect such compliance.
(iii) To make generally available to its security holders and
to the Representatives as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of
the fiscal quarter of the Company during which the Effective Date
occurs (or 90 days if such 12-month period coincides with the
Company's fiscal year), an earning statement (which need not be
audited) of the Company, covering such 12-month period, which shall
satisfy the provisions of Section 11(a) of the Securities Act or
Rule 158 of the Rules.
(iv) To furnish to the Representatives and counsel for the
Underwriters, without charge, (i) signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof)
and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and all amendments thereof (ii) copies of
any document incorporated by reference in the Prospectus (including
exhibits thereto) and, (iii) so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Securities Act or
the Rules, as many copies of any preliminary prospectus and the
Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request. Delivery of the Prospectus
shall be no later than 10:00 A.M. New York City time of the day
following execution and delivery of this Agreement.
(v) To cooperate with the Representatives and their counsel in
endeavoring to qualify the Capital Securities for offer and sale
under the laws of such jurisdictions as the Representatives may
designate and shall maintain such qualifications in effect so long
as required for the distribution of the Capital Securities;
provided, however, that neither the Trust nor the Company shall be
required in connection therewith, as a condition thereof, to qualify
as a foreign corporation or to execute a general consent to service
of process in any jurisdiction or subject itself to taxation as
doing business in any jurisdiction.
(vi) For a period of five years after the date of this
Agreement, to supply to the Representatives, and to each other
Underwriter who may so request in writing, copies of such financial
statements and other periodic and
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special reports as the Company may from time to time distribute
generally to the holders of any class of its capital stock and to
furnish to the Representatives a copy of each annual or other report
it shall be required to file with the Commission.
(vii) Without the prior written consent of CIBC Oppenheimer
Corp., on behalf of the Representatives, for a period of 180 days
after the date of this Agreement, not to offer, issue, sell,
contract to sell or otherwise dispose of any additional securities
of the Trust or the Company substantially similar to the Capital
Securities or any securities convertible into or exchangeable for or
that represent the right to receive any such similar securities.
(viii) On or before completion of this offering the Company
and the Trust shall make all filings required under applicable
securities laws and by the NASDAQ National Market System
(b) Each of the Trust and the Company agrees to pay, or reimburse if
paid by the Representatives, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated, all costs and
expenses incident to the public offering of the Capital Securities and the
performance of the obligations of the Trust and the Company under this
Agreement including those relating to: (i) the preparation, printing,
filing and distribution of the Registration Statement including all
exhibits thereto, each preliminary prospectus, the Prospectus, all
amendments and supplements to the Registration Statement and the
Prospectus, and the printing, filing and distribution of this Agreement;
(ii) the preparation and delivery of certificates for the Capital
Securities to the Underwriters; (iii) the registration or qualification of
the Capital Securities for offer and sale under the securities or Blue Sky
laws of the various jurisdictions referred to in Section 6(a)(iv),
including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such registration and qualification and
the preparation, printing, distribution and shipment of preliminary and
supplementary Blue Sky memoranda; (iv) the furnishing (including costs of
shipping and mailing) to the Representatives and to the Underwriters of
copies of each preliminary prospectus, the Prospectus and all amendments
or supplements to the Prospectus, and of the several documents required by
this Section to be so furnished, as may be reasonably requested for use in
connection with the offering and sale of the Capital Securities by the
Underwriters or by dealers to whom Capital Securities may be sold; (v) the
furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of all reports and
information required by Section 6(a)(v); (vi) inclusion of the Capital
Securities in quotation on the NASDAQ National Market System and (vii) all
transfer taxes, if any, with respect to the sale and delivery of the
Capital Securities by the Trust to the Underwriters. Subject to the
provisions of Section 9, the Underwriters agree to pay, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of the
obligations of the Underwriters under this Agreement not payable by the
Company or the Trust pursuant to the preceding sentence, including,
without limitation, the fees and disbursements of counsel for the
Underwriters.
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7. Indemnification.
(a) The Trust and the Company agree, jointly and severally, to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all
losses, claims, damages and liabilities, joint or several (including any
reasonable investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted), to which they, or any of them, may become subject
under the Securities Act, the Exchange Act or other Federal or state law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Prospectus or
any amendment thereof or supplement thereto, or arise out of or are 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
not misleading; provided, however, that such indemnity shall not inure to
the benefit of any Underwriter (or any person controlling such
Underwriter) on account of any losses, claims, damages or liabilities
arising from the sale of the Capital Securities to any person by such
Underwriter if such untrue statement or omission or alleged untrue
statement or omission was made in such preliminary prospectus, the
Registration Statement or the Prospectus, or such amendment or supplement,
in reliance upon and in conformity with information furnished in writing
to the Company by the Representatives on behalf of any Underwriter
specifically for use therein. This indemnity agreement will be in addition
to any liability which the Trust and the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Trust and the Company, each person, if any, who
controls the Trust or the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each director of the
Company, and each officer of the Trust or of the Company who signs the
Registration Statement, to the same extent as the foregoing indemnity from
the Trust and the Company to each Underwriter, but only insofar as such
losses, claims, damages or liabilities arise out of or are based upon any
untrue statement or omission or alleged untrue statement or omission which
was made in any preliminary prospectus, the Registration Statement or the
Prospectus, or any amendment thereof or supplement thereto, contained in
the last paragraph of the cover page, in the paragraph relating to
stabilization on the inside front cover page of the Prospectus and the
statements contained in the last paragraph under the caption
"Underwriting" in the Prospectus.
(c) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 7(a) or 7(b) shall be available to
any party who shall fail to give notice as provided in this Section 7(c)
if the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to
give such notice
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but the omission so to notify such indemnifying party of any such action,
suit or proceeding shall not relieve it from any liability that it may
have to any indemnified party for contribution or otherwise than under
this Section. In case any such action, suit or proceeding shall be brought
against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and the approval by the
indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses, except
as provided below and except for the reasonable costs of investigation
subsequently incurred by such indemnified party in connection with the
defense thereof. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
employment of counsel by such indemnified party has been authorized in
writing by the indemnifying parties, (ii) the indemnified party shall have
reasonably concluded that there may be a conflict of interest between the
indemnifying parties and the indemnified party in the conduct of the
defense of such action (in which case the indemnifying parties shall not
have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying parties shall not have
employed counsel to assume the defense of such action within a reasonable
time after notice of the commencement thereof, in each of which cases the
fees and expenses of counsel shall be at the expense of the indemnifying
parties. An indemnifying party shall not be liable for any settlement of
any action, suit, proceeding or claim effected without its written
consent.
8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 7(a) is due in accordance with its terms but for any reason is held to
be unavailable from the Trust or the Company, each of the Trust, the Company,
and the Underwriters shall contribute to the aggregate losses, claims, damages
and liabilities (including any investigation, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claims asserted, but after deducting any
contribution received by the Trust or the Company from persons other than the
Underwriters, such as persons who control the Trust or the Company within the
meaning of the Securities Act, officers of the Trust or of the Company who
signed the Registration Statement and directors of the Company, who may also be
liable for contribution) to which the Trust, the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Trust and the Company on the one hand and the
Underwriters on the other from the offering of the Capital Securities or, if
such allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 7 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Trust and the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Trust, the
Company and the Underwriters shall be deemed to be in the same proportion as (x)
the total proceeds from the offering before deducting expenses) received by the
Trust and the Company, as set forth in the table on the cover page
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of the Prospectus, bear to (y) the underwriting discounts received by the
Underwriters, as set forth in the table on the cover page of the Prospectus. The
relative fault of the Trust and the Company or the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact related to information supplied by the Trust
and the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Trust, the Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 8, (i) in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount applicable to
the Capital Securities purchased by such Underwriter hereunder, and (ii) the
Trust and the Company shall be liable and responsible for any amount in excess
of such underwriting discount; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act shall have the
same rights to contribution as such Underwriter, and each person, if any, who
controls the Trust or the Company within the meaning of the Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, each officer of the Trust
or of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the Trust
and the Company, subject in each case to clauses (i) and (ii) in the immediately
preceding sentence of this Section 8. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section, notify such party
or parties from whom contribution may be sought, but the omission so to notify
such party or parties from whom contribution may be sought shall not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have hereunder or otherwise than under this Section. No party
shall be liable for contribution with respect to any action, suit, proceeding or
claim settled without its written consent. The Underwriter's obligations to
contribute pursuant to this Section 8 are several in proportion to their
respective underwriting commitments and not joint.
9. Termination. This Agreement may be terminated with respect to the
Capital Securities to be purchased on a Closing Date by the Representatives by
notifying the Trust and the Company at any time:
(a) in the absolute discretion of the Representatives at or before
any Closing Date: (i) if on or prior to such date, any domestic or
international event or act or occurrence has materially disrupted, or in
the opinion of the Representatives will in the future materially disrupt,
the securities markets; (ii) if there has occurred any new outbreak or
material escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States of America is such
as to make it, in the judgment of the Representatives, inadvisable to
proceed with the offering; (iii) if there shall be such a material adverse
change in general financial, political or economic conditions or the
effect of international conditions on the financial markets in the United
States of America is such as to make it, in the judgment of the
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Representatives, inadvisable or impracticable to market the Capital
Securities; (iv) if trading in the Capital Securities has been suspended
by the Commission or trading generally on the New York Stock Exchange,
Inc. or on the American Stock Exchange, Inc. has been suspended or
limited, or minimum or maximum ranges for prices for securities shall have
been fixed, or maximum ranges for prices for securities have been
required, by said exchanges or by order of the Commission, the National
Association of Securities Dealers, Inc., or any other governmental or
regulatory authority; or (v) if a banking moratorium has been declared by
any state or Federal authority, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as required
by this Agreement.
If this Agreement is terminated pursuant to any of its provisions,
neither the Trust nor the Company shall be under any liability to any
Underwriter, and no Underwriter shall be under any liability to the Trust and
the Company, except that (y) if this Agreement is terminated by the
Representatives or the Underwriters because of any failure, refusal or inability
on the part of the Trust or the Company to comply with the terms or to fulfill
any of the conditions of this Agreement, the Trust or the Company will reimburse
the Underwriters for all out-of-pocket expenses (including the reasonable fees
and disbursements of their counsel) incurred by them in connection with the
proposed purchase and sale of the Capital Securities or in contemplation of
performing their obligations hereunder and (z) no Underwriter who shall have
failed or refused to purchase the Capital Securities agreed to be purchased by
it under this Agreement, without some reason sufficient hereunder to justify
cancellation or termination of its obligations under this Agreement, shall be
relieved of liability to the Trust the Company or to the other Underwriters for
damages occasioned by its failure or refusal.
10. Substitution of Underwriters. If one or more of the Underwriters
shall fail (other than for a reason sufficient to justify the cancellation or
termination of this Agreement under Section 9) to purchase on any Closing Date
the Capital Securities agreed to be purchased on such Closing Date by such
Underwriter or Underwriters, the Representatives may find one or more substitute
underwriters to purchase such Capital Securities or make such other arrangements
as the Representatives may deem advisable or one or more of the remaining
Underwriters may agree to purchase such Capital Securities in such proportions
as may be approved by the Representatives, in each case upon the terms set forth
in this Agreement. If no such arrangements have been made by the close of
business on the business day following such Closing Date,
(a) if the number of Capital Securities to be purchased by the
defaulting Underwriters on such Closing Date shall not exceed 10% of the
Capital Securities that all the Underwriters are obligated to purchase on
such Closing Date, then each of the nondefaulting Underwriters shall be
obligated to purchase such Capital Securities on the terms herein set
forth in proportion to their respective obligations hereunder; provided,
that in no event shall the maximum number of Capital Securities that any
Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 10 by more than one ninth of such number of
Capital Securities without the written consent of such Underwriter, or
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(b) if the number of Capital Securities to be purchased by the
defaulting Underwriters on such Closing Date shall exceed 10% of the
Capital Securities that all the Underwriters are obligated to purchase on
such Closing Date, then the Company and Trust shall be entitled to an
additional business day within which it may, but is not obligated to, find
one or more substitute underwriters reasonably satisfactory to the
Representatives to purchase such Capital Securities upon the terms set
forth in this Agreement.
In any such case, either the Representatives, the Trust or the
Company shall have the right to postpone the applicable Closing Date for a
period of not more than five (5) business days in order that necessary changes
and arrangements (including any necessary amendments or supplements to the
Registration Statement or Prospectus) may be effected by the Representatives,
the Trust and the Company. If the number of Capital Securities to be purchased
on such Closing Date by such defaulting Underwriter or Underwriters shall exceed
10% of the Capital Securities that all the Underwriters are obligated to
purchase on such Closing Date, and none of the nondefaulting Underwriters, the
Trust or the Company shall make arrangements pursuant to this Section within the
period stated for the purchase of the Capital Securities that the defaulting
Underwriters agreed to purchase, this Agreement shall terminate with respect to
the Capital Securities to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Trust and the Company and
without liability on the part of the Trust and the Company, except in both cases
as provided in Sections 6(b), 7, 8 and 9. The provisions of this Section shall
not in any way affect the liability of any defaulting Underwriter to the Trust,
the Company or the nondefaulting Underwriters arising out of such default. A
substitute underwriter hereunder shall become an Underwriter for all purposes of
this Agreement.
11. Miscellaneous. The respective agreements, representations,
warranties, indemnities and other statements of the Trust and the Company or
their officers and of the Underwriters set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwrite, the Trust or the Company or any of the
officers, directors or controlling persons referred to in Sections 7 and 8
hereof, and shall survive delivery of and payment for the Capital Securities.
The provisions of Sections 6(b), 7, 8 and 9 shall survive the termination or
cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Trust and the Company, and each of their respective successors
and assigns, and, to the extent expressed herein, for the benefit of persons
controlling any of the Underwriters, the Trust or the Company, and directors and
officers of the Trust and the Company, and each of their respective successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include
any purchaser of Capital Securities from any Underwriter merely because of such
purchase.
All notices and communications hereunder shall be in writing and
mailed or delivered or by telephone or telegraph if subsequently confirmed in
writing, (a) if to the Representatives, c/o CIBC Oppenheimer Corp., Oppenheimer
Tower, World Financial Center, New York, New York 10281 Attention: ____________,
(b) if to the Trust or the Company, to the address of the Company set forth on
the cover page of the Registration Statement, Attention: Secretary.
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This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflict of
laws.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement among
us.
Very truly yours,
USBANCORP CAPITAL TRUST I
By__________________________________
Name:
Title:
USBANCORP, INC.
By__________________________________
Name:
Title:
Confirmed:
CIBC OPPENHEIMER CORP.
LEGG MASON WOOD WALKER
Acting severally on behalf of itself and as representative of the several
Underwriters named in Schedule I annexed hereto.
By CIBC OPPENHEIMER CORP.
By____________________________
Name:
Title:
26
SCHEDULE I
Maximum Number of
Number of Firm Optional Capital
Capital Securities Securities Which
Securities Underwriter to be Purchased May Be Purchased
- ---------------------- --------------- ----------------
CIBC Oppenheimer Corp.
Legg Mason Wood Walker
Incorporated
--------- -------
1,200,000 180,000
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