Temecula Valley Bancorp Inc. 1,750,000 Trust Preferred Securities Temecula Valley Statutory Trust VI Temecula Valley Bank Underwriting Agreement
EXHIBIT
1.1
1,750,000
Trust Preferred Securities
Temecula
Valley Statutory Trust VI
Temecula
Valley Bank
December
__, 2007
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Securities, Inc.
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Temecula
Valley Bancorp Inc., a California corporation (the “Company”) will be the holder
of all of the common securities of Temecula Valley Statutory Trust VI, a
Delaware statutory trust (the “Trust”). The Company and the Trust
(together, the “Offerors”) propose that the Trust issue 1,750,000 of its __%
Trust Preferred Securities with a liquidation amount of $10.00 per security
(the
“Firm Securities”) to the underwriters named in Schedule I hereto (the
“Underwriters”), who are acting severally and not jointly and for whom ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. and ▇▇▇▇▇▇▇▇▇▇ Securities, Inc. are acting as
representatives (the “Representatives”).
In
addition, the Offerors have granted to the Underwriters an option to purchase
up
to 262,500 additional __% Trust Preferred Securities (the “Optional
Securities”), exercisable at the Underwriters’ election in accordance with
section 3 herein (the Firm Securities and the Optional Securities that the
Underwriters elect to purchase pursuant to Section 3 hereof are herein
collectively called the “Securities”).
The
Securities will be issued pursuant to a Trust Agreement (the “Trust Agreement”),
as amended and restated, among Wilmington Trust Company as Property Trustee
and
Delaware Trustee, the administrative trustees named therein (the “Administrative
Trustees”) and the Company, that complies with the Trust Indenture Act of 1939,
as amended (the “Trust Indenture Act”).
The
Securities will be guaranteed by the Company with respect to distributions
and
payments upon liquidation, redemption and otherwise (the “Guarantee”) only as
provided in a Guarantee Agreement (the “Guarantee Agreement”) between the
Company and Wilmington Trust Company, as trustee (the “Guarantee
Trustee”).
1
The
proceeds of the sale of the Securities will be used to purchase unsecured junior
subordinated deferrable interest notes (the “Junior Subordinated Notes”) issued
by the Company pursuant to an Indenture (the “Indenture”) between the Company
and Wilmington Trust Company, as trustee (the “Indenture Trustee”).
The
Representatives have advised the Company that the Underwriters propose to make
a
public offering of the Securities as soon as the Representatives deem advisable
after the registration statement hereinafter referred to becomes effective,
if
it has not yet become effective.
1. (a) The
Offerors jointly and severally represent and warrant to, and agree with, each
of
the Underwriters that:
(i) A
registration statement on Form S-3 (File No. _____________) (the “Initial
Registration Statement”) in respect of the Securities, the Guarantee, and the
Junior Subordinated Notes has been filed with the Securities and Exchange
Commission (the “Commission”); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered to
Representatives, and, excluding exhibits thereto, for each of the Underwriters,
have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a “Rule
462(b) Registration Statement”), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the “Act”), which became effective upon
filing, no other document with respect to the Initial Registration Statement
and
any post-effective amendment thereto, has heretofore been filed with the
Commission; the Company has complied to the Commission’s satisfaction with all
requests of the Commission for additional or supplemental information; and
no
stop order suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto, or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (the preliminary prospectus for the
registration of the Securities, the Guarantee and the Junior Subordinated Notes
included in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act, is hereinafter called a “Preliminary Prospectus”; the various
parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are hereinafter
collectively called the “Registration Statement”; and such final prospectus, in
the form first filed pursuant to Rule 424(b) under the Act, is hereinafter
called the “Prospectus”);
(ii) No
order
preventing or suspending the use of any Preliminary Prospectus has been issued
by the Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the Act
and
the rules and regulations of the Commission thereunder, 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 under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
in
writing to the Company by an Underwriter through the Representatives expressly
for use therein;
2
(iii) The
Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement or the Prospectus will conform,
in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and the Trust Indenture Act and the
rules and regulations thereunder; on the effective date and at any Time of
Delivery (as defined in Section 5 hereof), the Registration Statement did
not or will 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; and when filed and at any Time of
Delivery, the Prospectus (together with any supplement thereto) will not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to (A) any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to
the Company by an Underwriter through the Representatives expressly for use
therein or (B) information in those parts of the Registration Statement which
constitute the Statement of Eligibility and Qualification (“Form T-1”) under the
Trust Indenture Act. Each Preliminary Prospectus and the Prospectus
when filed, if filed by electronic transmission, pursuant to ▇▇▇▇▇ (except
as
may be permitted by Regulation S-T under the Act), was identical to the copy
thereof delivered to the Underwriters to use as such in connection with the
offer and sale of the Securities;
(iv) As
of the
Applicable Time, neither (i) any Issuer-Represented General Use Free
Writing Prospectuses issued at or prior to the Applicable Time and the Statutory
Prospectus, all considered together (collectively, the “General Disclosure
Package”), nor (ii) any individual Issuer-Represented Limited-Use Free
Writing Prospectus issued at or prior to the Applicable Time, when considered
together with the General Disclosure Package, included any untrue statement
of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein. As
used in this paragraph and elsewhere in this Underwriting Agreement (the
“Agreement”):
“Applicable
Time” means 4:00 p.m. (Chicago time) on the date of this Agreement.
“Statutory
Prospectus” as of any time means the most recent Preliminary Prospectus that is
included in the Registration Statement immediately prior to the Applicable
Time.
“Issuer-Represented
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 under the Act, relating to the Securities in the form filed or
required to be filed with the Commission or, if not required to be filed, in
the
form retained in the Company’s records pursuant to Rule 433(g) under the
Act.
3
“Issuer-Represented
General Use Free Writing Prospectus” means any Issuer-Represented Free Writing
Prospectus that is intended for general distribution to prospective
investors.
“Issuer-Represented
Limited-Use Free Writing Prospectus” means any Issuer-Represented Free Writing
Prospectus that is not an Issuer-Represented General Use Free Writing
Prospectus;
(v) Each
Issuer-Represented Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the
Securities or until any earlier date that the Company notified or notifies
the
Representatives as described in Section 6(b), did not, does not and will
not include any information that conflicted, conflicts or will conflict with
the
information contained in the Registration Statement; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to
the Company by an Underwriter through the Representatives expressly for use
therein;
(vi) Neither
the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included in each of the General Disclosure
Package and the Prospectus 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, otherwise than as set forth or contemplated in each of the General
Disclosure Package and the Prospectus; and since the respective dates as of
which information is given in the Registration Statement, the General Disclosure
Package and the Prospectus, except as set forth or contemplated in the each
of
the General Disclosure Package and the Prospectus, (A) there has not been
any material adverse change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the
general affairs, management, business prospects, financial position,
stockholders’ equity or results of operations of the Trust and the Company and
its subsidiaries taken as a whole (a “Material Adverse Effect”), (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries, taken as a whole,
and
(C) there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock;
(vii) The
Company and its subsidiaries have good and marketable title in fee simple to
all
real property and good and marketable title to all personal, intangible and
intellectual property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in each of the General
Disclosure Package and the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and proposed
to be
made of such property by the Company and its subsidiaries; and any real property
and buildings and personal, intangible and intellectual property held or used
under lease or license by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases and licenses with such exceptions
as are not material and do not interfere with the use made and proposed to
be
made of such property by the Company and its subsidiaries, and as to which
no
lessor or licensor is in material breach or default and no event has occurred
that with the passage of time or giving of notice would result in a default
by
such lessor or licensor;
4
(viii) The
Company is a registered bank holding company under the Bank Holding Company
Act
of 1956, as amended and has been duly incorporated and is validly existing
as a
corporation in good standing under the laws of the State of California, with
power and authority (corporate and other) to own its properties and conduct
its
business as described in each of the General Disclosure Package and the
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business
so
as to require such qualification, except where the failure to so qualify or
be
in good standing does not have, and could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect;
(ix) Each
subsidiary of the Company either has been duly incorporated and is validly
existing as a corporation or Delaware statutory trust, as the case may be,
in
good standing under the laws of their respective places of incorporation or
organization, as the case may be, and with respect to the Company’s banking
subsidiary, Temecula Valley Bank (the “Bank”), has been duly chartered and is
validly existing as a California-chartered commercial bank, in good standing
under the laws of California, with power and authority (corporate and other)
to
own its properties and conduct its business as described in each of the General
Disclosure Package and the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where the
failure to so qualify or be in good standing does not have, and could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect; the deposit accounts of the Bank are insured up to the
applicable limits by the Federal Deposit Insurance Corporation (the “FDIC”); all
of the issued shares of capital stock of the Bank have been duly authorized
and
validly issued and are fully paid and nonassessable, and are owned, directly
by
the Company, free and clear of any pledge, lien, encumbrance, claim or equity;
and the Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the Bank
and Temecula Valley Statutory Trust II, Temecula Valley Statutory
Trust III, Temecula Valley Statutory Trust IV and Temecula Valley Trust V
(collectively, the “Other Trusts”);
(x) The
Company has an authorized capitalization as set forth in each of the General
Disclosure Package and the Prospectus under the caption “Capitalization,” and
all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and nonassessable and have been
issued in compliance with federal and state securities laws and conform to the
description of the Securities contained in each of the General Disclosure
Package and the Prospectus; and no such shares were issued in violation of
the
preemptive or similar rights of any security holder of the Company; and no
person has any preemptive or similar right to purchase any shares of capital
stock or equity securities of the Company;
(xi) The
unissued Securities to be issued and sold by the Company to the Underwriters
hereunder have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued
and
fully paid and nonassessable and will conform to the description of the
Securities contained in each of the General Disclosure Package and the
Prospectus;
(xii) The
Trust
has been duly created and is validly existing in good standing as a business
trust under the Delaware Business Trust Act (the “Delaware Act”) with full trust
power and authority to own property and to conduct its business as described
in
the Registration Statement and Prospectus and is authorized to do business
in
each jurisdiction in which such qualification is required, except where the
failure to so qualify would not have a material adverse effect on the Trust’s
condition (financial or otherwise) or results of operations taken as a
whole;
5
(xiii) The
Trust
has conducted and will conduct no business other than the transactions
contemplated by the Trust Agreement and described in the Prospectus; the Trust
is not a party to or otherwise bound by any agreement other than those described
in the Prospectus; the Trust is and will be classified for United States federal
income tax purposes as a grantor trust and not as an association taxable as
a
corporation; and the Trust is and will be treated as a consolidated subsidiary
of the Company pursuant to GAAP;
(xiv) The
Trust
Agreement, the Indenture and the Guarantee Agreement have been duly qualified
under the Trust Indenture Act;
(xv) The
Junior Subordinated Notes are in the form contemplated by the Indenture, have
been duly authorized, executed and delivered by the Company and, when
authenticated by the Indenture Trustee in the manner provided for in the
Indenture and delivered against payment therefore, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement thereof
may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles of
equity;
(xvi) Except
as
described in each of the General Disclosure Package and the Prospectus,
(A) there are no outstanding rights (contractual or otherwise), warrants or
options to acquire, or instruments convertible into or exchangeable for,
agreements or understandings with respect to the sale or issuance of, or
restrictions upon the voting or transfer of any shares of capital stock of
or
other equity interest in the Company, the Junior Subordinated Notes, the common
securities of the Trust held by the Company (the “Common Securities”) or the
Securities and (B) there are no contracts, agreements or understandings
between the Company and any person granting such person the right to require
the
Company to file a registration statement under the Act or otherwise register
any
securities of the Company owned or to be owned by such
person. Neither the filing of the Registration Statement nor the
registration of the Securities, the Guarantee or the Junior Subordinated Notes
gives rise to any rights for or relating to the registration of any capital
stock or other securities of the Company or the Trust;
(xvii) The
issue
and sale of the Securities by the Offerors and the compliance by the Company,
the Bank, and the Trust with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not conflict with
or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any contract, indenture, mortgage, deed of trust,
loan agreement, note, lease or other agreement or 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 (collectively, the “Agreements and
Instruments”), nor will any such action (A) result in any violation of the
provisions of the articles of incorporation or other organizational documents
or
bylaws of the Company or any of its subsidiaries or any law, statute or any
order, rule or regulation of any federal, state, local or foreign court,
arbitrator, regulatory authority or governmental agency or body (each, a
“Governmental Entity”) having jurisdiction over the Company or any of its
subsidiaries or any of their properties, assets, liabilities or credit or
deposit-gathering practices or (B) constitute a Repayment Event (as defined
below) under, or result in the creation or imposition of any lien, charge or
other encumbrance upon any assets or operations of the Company or any subsidiary
pursuant to, any of the Agreements and Instruments; and no consent, approval,
authorization, order, registration or qualification of or with any such
Governmental Entity is required for the issue and sale of the Securities or
the
consummation by the Company of the transactions contemplated by this Agreement,
except the registration under the Act effected or to be effected under the
Registration Statement, and as may be required under the rules and regulations
of the Financial Industry Regulatory Authority (“FINRA”) and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters; provided however, that
the
Company makes no representations whatsoever with respect to the satisfaction
of
requirements of FINRA, as the making and content of the filings with FINRA
are
the sole responsibility of the Underwriters. As used herein, a
“Repayment Event” means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on
such
holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any
subsidiary;
6
(xviii) Neither
the Company nor any of its subsidiaries is (A) in violation of its articles
of incorporation or charter, as applicable, or bylaws or (B) in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any of the Agreements and Instruments, except with
respect to subsection (B) for such default that would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect;
(xix) The
financial statements included in each of the Registration Statement, the General
Disclosure Package and the Prospectus, together with the supporting schedules,
if any, and notes, present fairly the consolidated financial condition of the
Company and its subsidiaries at the dates indicated and the consolidated results
of operations and cash flows of the Company and its subsidiaries for the periods
specified. Such financial statements and supporting schedules, if
any, have been prepared in conformity with generally accepted accounting
principles (“GAAP”) applied on a consistent basis throughout the periods
involved. The selected financial data and the summary financial
information included in each of the Registration Statement, the General
Disclosure Package and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement, the General
Disclosure Package and the Prospectus;
(xx) Each
of
the Company and its subsidiaries maintains a system of accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management’s general or specific authorization,
(B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset
accountability, (C) access to assets is permitted only in accordance with
the management’s general or specific authorization and (D) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences;
(xxi) The
Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) and 15d-15(e) under the
Act). Such disclosure controls and procedures (A) are designed
to ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company’s chief executive
officer and its chief financial officer by others within those entities to
allow
timely decisions regarding disclosures, (B) have been evaluated for
effectiveness as of the end of the most recent fiscal quarter and (C) are
effective to perform the functions for which they were
established. Neither the Company’s independent registered public
accounting firm nor the Audit Committee of the Board of Directors of the Company
has been advised of (1) any significant deficiencies or material weaknesses
in the design or operation of internal control over financial reporting which
are reasonably likely to adversely affect the Company’s ability to record,
process, summarize, and report financial data or (2) any fraud, whether or
not material, that involves management employees or other employees who have
a
role in the Company’s internal control over financial
reporting. Since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no changes in internal
control over financial reporting that have materially affected, or are
reasonably likely to materially affect the Company’s internal control over
financial reporting;
7
(xxii) Neither
the Company nor any of its subsidiaries is subject or is party to, or has
received any notice or advice that any of them may become subject or party
to
any investigation with respect to, any corrective, suspension or
cease-and-desist order, agreement, consent agreement, memorandum of
understanding or other regulatory enforcement action, proceeding or order with
or by, or is a party to any commitment letter or similar undertaking to, or
is
subject to any directive by, or has been a recipient of any supervisory letter
from, or has adopted any board resolutions at the request of, any Regulatory
Agency (as defined below) that currently relates to or restricts in any material
respect the conduct of their business or that in any manner relates to their
capital adequacy, credit policies or practices, deposit-gathering or retention,
or management (each, a “Regulatory Agreement”), nor has the Company or any of
its subsidiaries been advised by any Regulatory Agency that it is considering
issuing or requesting any such Regulatory Agreement. There is no
unresolved violation, criticism or exception by any Regulatory Agency with
respect to any report or statement relating to any examinations of the Company
or any of its subsidiaries or any of their assets or liabilities which, in
the
reasonable judgment of the Company, is expected to result in a Material Adverse
Effect. As used herein, the term “Regulatory Agency” means any
Governmental Entity having supervisory or regulatory authority with respect
to
the Company or any of its subsidiaries, including, but not limited to, any
federal or state agency charged with the supervision or regulation of depositary
institutions or holding companies of depositary institutions, or engaged in
the
insurance of depositary institution deposits, or the United States Small
Business Administration (the “SBA”);
(xxiii) Except
as
disclosed in each of the General Disclosure Package and the Prospectus, the
Company and its subsidiaries are conducting their respective businesses in
compliance with all statutes, laws, rules, regulations, judgments, decisions,
directives, orders and decrees of any Governmental Entity (including, without
limitation, all regulations and orders of, or agreements with, the California
Department of Financial Institutions, the Board of Governors
of Federal Reserve System (the “FRB”), the FDIC and SBA) applicable
to them, except where the failure to so possess or comply would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect;
(xxiv) Other
than as set forth in each of the General Disclosure Package and the Prospectus,
there are no legal or governmental actions, suits, investigations or proceedings
before or by any Governmental Entity, now pending or, to the best of the
Company’s knowledge, threatened or contemplated by Governmental Entities or
threatened by others, to which the Company or any of its subsidiaries is a
party
or of which any property or asset of the Company or any of its subsidiaries
is
the subject (A) that are required to be disclosed in the Registration
Statement by the Act or by the rules and regulations of the Commission
thereunder and not disclosed therein or (B) which, if determined adversely
to the Company or any of its subsidiaries, would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and there
are no contracts or documents of the Company or any of its subsidiaries that
are
required to be described in the Registration Statement or to be filed as
exhibits thereto by the Act or by the rules and regulations of the Commission
thereunder which have not been so described and filed;
8
(xxv) Each
of
the Company and its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, “Governmental Licenses”) issued
by the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by the Company or its
subsidiaries; the Company and its subsidiaries are in compliance with the terms
and conditions of all such Governmental Licenses, except where the failures
so
to comply would not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect; all of the Governmental Licenses
are
valid and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in
full
force and effect would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and neither the Company nor any
of
its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would reasonably be expected to result in a Material Adverse
Effect;
(xxvi) The
statistical and market related data contained in each of the General Disclosure
Package, the Prospectus or the Registration Statement are based on or derived
from sources which the Company believes are reliable and accurate;
(xxvii) This
Agreement, the Indenture, the Trust Agreement, and the Guarantee Agreement
have
been duly authorized, executed and delivered by the Company and/or the Trust,
as
the case may be, and constitutes a valid, legal and binding obligation of the
Company and/or the Trust, as the case may be, enforceable in accordance with
their respective terms, except as rights to indemnity hereunder may be limited
by federal or state securities laws and except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting
the
rights of creditors generally and subject to general principles of equity and,
with respect to Section 9 hereof, by the public policy underlying the federal
or
state securities laws;
(xxviii) The
Common Securities have been duly authorized by the Trust Agreement and, when
issued and delivered by the Trust to the Company against payment therefore
as
described in the Prospectus, will be validly issued and (subject to the terms
of
the Trust Agreement) fully paid and nonassessable undivided beneficial interests
in the assets of the Trust and will conform to all statements relating thereto
contained in the Prospectus; and at the Closing Date or the Option Closing
Date,
as the case may be, all of the issued and outstanding Common Securities of
the
Trust will be directly owned by the Company free and clear of any security
interest, pledge, lien, encumbrance, claim or equity;
9
(xxix) The
Securities have been duly authorized by the Trust Agreement and, when issued
and
delivered pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued and fully paid and nonassessable undivided
beneficial interests in the Trust, will be entitled to the benefits of the
Trust
Agreement and will conform to the statements relating thereto contained in
the
Prospectus;
(xxx) Each
of
the Administrative Trustees of the Trust is an officer or director of the
Company and has been duly authorized by the Company to execute and deliver
the
Trust Agreement;
(xxxi) Neither
the Company nor any affiliate of the Company nor any person acting on their
behalf has taken, nor will the Company or any affiliate or any person acting
on
their behalf take, directly or indirectly, any action which is designed to
or
which has constituted or which would be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities;
(xxxii) The
Company is not and, after giving effect to the offering and sale of the
Securities, and after receipt of payment for the Securities and the application
of such proceeds as described in each of the General Disclosure Package and
the
Prospectus, will not be an “investment company” or an entity “controlled” by an
“investment company”, as such terms are defined in the Investment Company Act of
1940, as amended (the “Investment Company Act”);
(xxxiii) ▇▇▇▇▇
▇▇▇▇▇▇ & Co. LLP, who have certified the 2005, 2006 and 2007 financial
statements and supporting schedules of the Company and its subsidiaries,
included in the Registration Statement, the General Disclosure Package and
the
Prospectus is an independent registered public accounting firm as required
by
the Act and the rules and regulations of the Commission thereunder, and such
accountants are not in violation of the auditor independence requirements of
the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 with respect to the Company;
(xxxiv) No
labor
problem or dispute with the employees of the Company or any of its subsidiaries
exists or, to the Company’s knowledge, is threatened or imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or its subsidiaries’ principal suppliers, contractors or
customers, that could have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business, except as set forth in
each of the General Disclosure Package and the Prospectus;
(xxxv) The
Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts
as
are prudent and customary in the business in which they are engaged; all
policies of insurance insuring the Company or any of its subsidiaries are in
full force and effect; the Company and its subsidiaries are in compliance with
the terms of such policies and instruments in all material respects; and there
are no claims by the Company or any of its subsidiaries under any such policy
or
instrument as to which any insurance company is denying liability or defending
under a reservation of rights clause; neither the Company nor any such
subsidiary has been refused any insurance coverage sought or applied for; and
neither the Company nor any such subsidiary has any reason to believe that
it
will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may
be
necessary to continue its business at a cost that would not have a Material
Adverse Effect, except as set forth or contemplated in each of the General
Disclosure Package and the Prospectus;
10
(xxxvi) The
Offerors have filed all foreign, federal, state and local tax returns that
are
required to be filed or are eligible for, and have requested, extensions
thereof, except as set forth or contemplated in each of the General Disclosure
Package and the Prospectus and have paid all taxes required to be paid by either
of them and any other assessment, fine or penalty levied against either of
them,
to the extent that any of the foregoing is due and payable, except for any
such
assessment, fine or penalty that is currently being contested in good faith
or
as would not have a Material Adverse Effect, except as set forth or contemplated
in each of the General Disclosure Package and the Prospectus;
(xxxvii) The
Bank
is not currently prohibited, directly or indirectly, from paying any dividends
to the Company, from making any other distribution on its capital stock and
no
subsidiary of the Company is prohibited, directly or indirectly, from repaying
to the Company any loans or advances to such subsidiary from the Company or
from
transferring any of such subsidiary’s property or assets to the Company or any
other subsidiary of the Company, except as set forth or contemplated in each
of
the General Disclosure Package and the Prospectus;
(xxxviii) Any
“employee benefit plan” (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) established or maintained by
the Company, any of the subsidiaries or their “ERISA Affiliates” (as defined
below) is in compliance in all material respects with ERISA; “ERISA Affiliate”
means, with respect to the Company or any subsidiary, any member of any group
of
organizations described in Section 414(b), (c), (m) or (o) of the
Internal Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the “Code”) of which the Company or such subsidiary
is a member; no “reportable event” (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any “employee benefit plan”
established or maintained by the Company, any of the subsidiaries or any of
their ERISA Affiliates; no “employee benefit plan” established or maintained by
the Company, any of the subsidiaries or any of their ERISA Affiliates, if such
“employee benefit plan” were terminated, would have any “amount of unfunded
benefit liabilities” (as defined under ERISA); none of the Company, its
subsidiaries nor any of their ERISA Affiliates has incurred or reasonably
expects to incur any liability under (A) Title IV of ERISA with respect to
termination of, or withdrawal from, any “employee benefit plan” or
(B) Sections 412, 4971, 4975 or 4980B of the Code; each “employee
benefit plan” established or maintained by the Company, any of the subsidiaries
or any of their ERISA Affiliates that is intended to be qualified under
Section 401(a) of the Code is so qualified and nothing has occurred
whether by action or failure to act, which would cause the loss of such
qualification;
(xxxvii) Neither
the Trust, the Company nor any of its subsidiaries nor, to the knowledge of
the
Company, any director, officer, agent, employee or other person associated
with
or acting on behalf of the Trust or Company or any of its subsidiaries has
(A) used any Trust or Company funds for any unlawful contribution, gift,
entertainment or other unlawful expenses relating to political activity;
(B) made any direct or indirect unlawful payment of Trust or Company funds
to any foreign or domestic government official or employee; (C) violated or
is in violation of any provision of the Foreign Corrupt Practices Act of 1977
with regard to the Trust or Company or its subsidiaries; (D) made any
bribe, rebate, payoff, influence payment, kickback or other unlawful payment
with regard to Trust or Company funds or activities; or (E) made any
payment of funds to the Trust or Company or any of its subsidiaries or received
or retained funds from the Trust or Company or any of its subsidiaries in
violation of any law, rule or regulation, which payment, receipt or retention
of
funds is of a character required to be disclosed in each of the General
Disclosure Package and the Prospectus, that is not described in each of the
General Disclosure Package and the Prospectus as required;
11
(xxxviii) The
operations of the Trust, the Company and its subsidiaries are and have been
conducted at all times in material compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes
of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced
by
any governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Trust, the Company or any
of
its subsidiaries with respect to the Money Laundering Laws is pending or, to
the
best knowledge of the Company, threatened;
(xxxix) No
relationship, direct or indirect, exists between or among the Trust, the Company
or any of its subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries,
on the other, that is required by the Act to be described in each of the General
Disclosure Package and the Prospectus and that is not so described;
(xl) Except
as
described in each of the General Disclosure Package and the Prospectus, there
are no material off-balance sheet transactions, arrangements, obligations
(including contingent obligations), or any other relationships with
unconsolidated entities or other persons, that may have a material current
or
future effect on the Trust or the Company’s financial condition, changes in
financial condition, results of operations, liquidity, capital expenditures,
capital resources, or significant components of revenues or
expenses;
(xli) None
of
the the Trust, the Company, any of its subsidiaries or, to the knowledge of
the
Company, any director, officer, agent, employee or Affiliate of the Trust or
the
Company or any of its subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Department
of
the Treasury (“OFAC”), and neither the Trust nor the Company will knowingly use
the proceeds of the offering of the Securities hereunder, or lend, contribute
or
otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC;
(xlii) The
likelihood that payments on the Securities will be deferred is remote, and
the
Company does not currently plan, anticipate, or intend any such
deferral;
(xliii) No
payments on any securities issued by or to any of the Other Trusts have been
deferred, and the likelihood that payments on any securities issued by or to
any
of the Other Trusts will be deferred is remote, and neither the
Company nor any of the Other Trusts plan, anticipate, or intend any such
deferral;
12
(xliv) No
event
of default, breach, or fact or circumstance that itself or with the passage
of
time or giving of notice could result in a breach or event of default under
any
agreement related to any outstanding security issued by or to any of the Other
Trusts has occurred or is continuing;
(xlv) No
statement, representation, warranty or covenant made by the Company in this
Agreement or made in any certificate or document required by this Agreement
to
be delivered to you was or will be, when made, inaccurate, untrue or
incorrect;
(xlvi) At
the
time of filing the Registration Statement relating to the Securities and at
the
date hereof, the Company was not and is not an “ineligible issuer,” as defined
in Rule 405, including the Company or any of its subsidiaries in the preceding
three years not having been convicted of a felony or misdemeanor or having
been
made the subject of a judicial or administrative decree or order as described
in
Rule 405.
(b) The
Bank
represents and warrants to, and agrees with, each of the Underwriters
that:
(i) The
Bank
has been duly chartered and is validly existing in good standing under the
laws
of the state of California, with power and authority (corporate and other)
to
own its properties and conduct its business as described in each of the General
Disclosure Package and the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is subject to
no
material liability or disability by reason of the failure to be so qualified
in
any such jurisdiction;
(ii) Neither
the Bank nor any of its subsidiaries are in violation of its charter, bylaws
or
other charter documents or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which the Bank or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the property
of
the Bank or any of its subsidiaries is subject; and
(iii) The
execution, delivery and performance of this Agreement by the Bank and the
compliance by the Bank with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not conflict with
or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Bank or any of its
subsidiaries is a party or by which the Bank or any of its subsidiaries is
bound
or to which any of the property or assets of the Bank or any of its subsidiaries
is subject, nor will such action result in any violation of the provisions
of
the charter of the Bank or any statute or any order, rule or regulation of
any
court or governmental agency or body having jurisdiction over the Bank or any
of
its subsidiaries or any of its properties.
2. The
Representatives, on behalf of the several Underwriters, represent and warrant
to
the Company that the information set forth (a) on the cover page of the
Prospectus with respect to price, underwriting discount and terms of the
offering, (b) the legends concerning stabilizing and passive market making
activities on the inside front cover page of the Prospectus, and (c) under
“Underwriting” in the Prospectus was furnished in writing to the Company by and
on behalf of the Underwriters specifically for use in connection with the
preparation of the Registration Statement and is correct and complete in all
material respects.
13
3. Subject
to the terms and conditions herein set forth, (a) the Offerors agree to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Offerors the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule I
hereto and (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Securities as provided below, the
Offerors agree to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Offerors
that portion of the number of Optional Securities as to which such election
shall have been exercised (to be adjusted by you so as to eliminate fractional
shares) determined by multiplying such number of Optional Securities by a
fraction, the numerator of which is the maximum number of Optional Securities
which such Underwriter is entitled to purchase as set forth opposite the name
of
such Underwriter in Schedule I hereto and the denominator of which is the
maximum number of Optional Securities that all of the Underwriters are entitled
to purchase hereunder.
The
Offerors hereby grant to the Underwriters the right to purchase at their
election up to 262,500 Optional Securities for the sole purpose of covering
overallotments in the sale of the Firm Securities. Any such election
to purchase Optional Securities may be exercised only by written notice from
the
Representatives to the Offerors, given within a period of 30 calendar days
after
the date of this Agreement, setting forth the aggregate number of Optional
Securities to be purchased and the date on which such Optional Securities are
to
be delivered, as determined by the Representatives but in no event earlier
than
the First Time of Delivery (as defined in Section 5 hereof) or, unless the
Representatives and the Offerors otherwise agree in writing, earlier than two
or
later than ten business days after the date of such notice.
It
is
understood that each Underwriter has authorized the Representatives for such
Underwriter’s account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Firm Securities and the Optional Securities, if
any,
which such Underwriter has agreed to purchase. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
& ▇▇▇▇▇▇, Inc. and/or ▇▇▇▇▇▇▇▇▇▇ Securities, Inc., individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Firm Securities or the Optional
Securities, if any, to be purchased by any Underwriter whose funds have not
been
received by ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. or ▇▇▇▇▇▇▇▇▇▇ Securities,
Inc., respectively, by the relevant Time of Delivery but such payment shall
not
relieve such Underwriter from its obligations hereunder.
4. Upon
the
authorization by the Representatives of the release of the Firm Securities,
the
several Underwriters propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Prospectus, including the compensation
to
the Underwriters described therein.
5. (a) The
Securities to be purchased by each Underwriter hereunder, in definitive form,
and in such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours prior notice to
the
Offerors, shall be delivered by or on behalf of the Offerors to the
Representatives, through the facilities of the Depository Trust Company (“DTC”),
for the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal (same
day) funds to the account specified by the Company, to the Representatives
at
least forty-eight hours in advance. The Offerors will cause the
certificates representing the Securities to be made available for checking
and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of DTC or its designated custodian
(the “Designated Office”). The time and date of such delivery and
payment shall be, with respect to the Firm Securities, 9:30 a.m., Chicago Time,
on December __, 2007 or such other time and date as the
Representatives and the Company may agree upon in writing, and, with respect
to
the Optional Securities, 9:30 a.m., Chicago time, on the date specified by
the
Representatives in the written notice given by the Representatives of the
Underwriters’ election to purchase such Optional Securities, or such other time
and date as the Representatives and the Offerors may agree upon in
writing. Such time and date for delivery of the Firm Securities is
herein called the “First Time of Delivery,” such time and date for delivery of
the Optional Securities, if not the First Time of Delivery, is herein called
the
“Second Time of Delivery,” and each such time and date for delivery is herein
called a “Time of Delivery.”
14
(b) The
documents to be delivered at each Time of Delivery, or at such time as otherwise
to be delivered in accordance with the Representatives’ instructions, by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the
cross receipt for the Securities and any additional documents requested by
the
Underwriters pursuant to Section 8(k) hereof, will be delivered at the
offices of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Closing Location”), and the Securities will
be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at 2:00
p.m., Chicago Time, on the Chicago Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 5, “Chicago Business
Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in Chicago are generally authorized
or
obligated by law or executive order to close.
6. The
Offerors agree with each of the Underwriters:
(a) To
prepare the Prospectus in a form approved by the Representatives and agree
to
file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission’s close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus which
shall be disapproved by the Representatives promptly after reasonable notice
thereof; to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representatives with copies
thereof; to advise the Representatives, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus,
Issuer-Represented Free Writing Prospectus or Prospectus, of the suspension
of
the qualification of the Securities for offering or sale in any jurisdiction,
of
the initiation or threatening of any proceeding for any such purpose, or of
any
request by the Commission for the amending or supplementing of the Registration
Statement, any Preliminary Prospectus, any Issuer-Represented Free Writing
Prospectus or Prospectus or for additional information; and, in the event of
the
issuance of any stop order or of any order preventing or suspending the use
of
any Preliminary Prospectus, Issuer-Represented Free Writing Prospectus or
Prospectus or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order;
15
(b) If
at any
time following issuance of an Issuer-Represented Free Writing Prospectus there
occurred or occurs an event or development as a result of which such
Issuer-Represented Free Writing Prospectus conflicted or would conflict with
the
information contained in the Registration Statement or included or would include
an untrue statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in the light
of
the circumstances prevailing at that subsequent time, not misleading, the
Offerors have notified or will notify promptly the Representatives so that
any
use of such Issuer-Represented Free Writing Prospectus may cease until it is
amended or supplemented and the Offerors have promptly amended or will promptly
amend or supplement such Issuer-Represented Free Writing Prospectus to eliminate
or correct such conflict, untrue statement or omission; provided, however,
that
this covenant shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by
an Underwriter through the Representatives expressly for use
therein;
(c) The
Offerors jointly and severally represent and agree that, unless they obtain
the
prior written consent of the Representatives, and each Underwriter represents
and agrees that, unless it obtains the prior written consent of each of the
Offerors and the Representatives, they have not made and will not make any
offer
relating to the Securities that would constitute an “issuer free writing
prospectus,” as defined in Rule 433 under the Act, or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405 under the Act,
required to be filed with the Commission. Any such free writing
prospectus consented to by the Offerors and the Representatives are hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Offerors
represent that they have treated or agree that they will treat each Permitted
Free Writing Prospectus as an “issuer free writing prospectus,” as defined in
Rule 433, and have complied and will comply with the requirements of Rule 433
applicable to any Permitted Free Writing Prospectus, including timely filing
with the Commission where required, legending and record keeping. The
Offerors represent that they have satisfied the conditions in Rule 433 to avoid
a requirement to file with the Commission any electronic road show;
(d) Promptly
from time to time to take such action as the Representatives may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as the Representatives may request and to comply
with
such laws so as to permit the continuance of sales and dealings therein in
such
jurisdictions for as long as may be necessary to complete the distribution
of
the Securities, provided that in connection therewith the Offerors shall not
be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(e) Prior
to
10:00 a.m., Chicago Time, on the Chicago Business Day next succeeding the date
of this Agreement and from time to time, to furnish the Underwriters with copies
of the Prospectus in Chicago in such quantities as the Representatives may
from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the time
of
issue of the Prospectus in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or,
if
for any other reason it shall be necessary during such period to amend or
supplement the Prospectus in order to comply with the Act, to notify the
Representatives and upon the Representatives’ request to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any Underwriter
is
required to deliver a prospectus in connection with sales of any of the
Securities at any time nine months or more after the time of issue of the
Prospectus, upon ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.’s request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as
many
copies as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the
Act;
16
(f) To
make
generally available to its securityholders as soon as practicable, but in any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an
earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder (including, at the option of the Company, Rule
158);
(g) During
the period beginning from the date hereof and continuing to and including the
date 180 days after the date of the Prospectus, not to, and not to allow any
of
its directors or executive officers to, offer, sell, agree to sell, contract
to
sell hypothecate, pledge, grant any option to purchase, make any short sale,
or
otherwise dispose of or hedge, directly or indirectly, except as provided
hereunder any securities of the Company that are substantially similar to the
Securities, including, but not limited to, any securities that are convertible
into or exchangeable for, or that represent the right to receive Securities
or
publicly announce an intention to effect any such transaction, without ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.’s prior written consent; provided, however,
that if: (1) during the last 17 days of such 180-day period
the Company issues an earnings release or material news or a material event
relating to the Company occurs; or (2) prior to the expiration of such
180-day period, the Company announces that it will release earnings results
during the 16-day-period beginning on the last day of such 180-day period,
the
restrictions imposed by this Section 6(g) shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material
event;
(h) To
furnish to their securityholders, as soon as practicable after the end of each
fiscal year, an annual report (including a balance sheet and statements of
income, stockholders’ equity and cash flows of the Company or the Trust, as the
case may be, and its consolidated subsidiaries certified by an independent
registered public accounting firm) and, as soon as practicable after the end
of
each of the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the effective date of the Registration Statement), to
make
available to their securityholders consolidated summary financial information
of
the Company or the Trust, as the case may be, in reasonable detail;
(i) During
a
period of five years from the effective date of the Registration Statement,
to
furnish to the Representatives copies of all reports or other communications
(financial or other) furnished to the Security holders, and to deliver to the
Representatives (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the Company
is
listed; and (ii) such additional information concerning the business and
financial condition of the Company and the Trust as the Representatives may
from
time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Trust, the Company and
its
subsidiaries are consolidated in reports furnished to its securityholders
generally or to the Commission);
17
(j) To
use
the net proceeds received by them from the sale of the Securities pursuant
to
this Agreement in the manner specified in each of the General Disclosure Package
and the Prospectus under the caption “Use of Proceeds”;
(k) If
the
Offerors elect to rely on Rule 462(b), the Offerors shall file a Rule
462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 p.m., Chicago time, on the date of this Agreement, and the
Offerors shall at the time of filing either pay to the Commission the filing
fee
for the Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the
Act;
(l) To
use
their best efforts to list for quotation the Securities on the Global Market
of
the National Association of Securities Dealers Automated Quotations System
(“NASDAQ”);
(m) During
the period beginning on the date hereof and ending on the later of the fifth
anniversary of the First Time of Delivery or the date on which the Underwriters
receive full payment in satisfaction of any claim for indemnification or
contribution to which they may be entitled pursuant to Section 9 of this
Agreement, neither the Trust, the Company nor the Bank shall, without the prior
written consent of the Representatives, take or permit to be taken any action
that could result in the Company’s or the Bank’s common stock becoming subject
to any security interest, mortgage, pledge, lien or encumbrance; provided,
however, that this covenant shall be null and void if the California Department
of Financial Institutions, the FDIC, or any other federal or state agency having
jurisdiction over the Bank, by regulation, policy statement or interpretive
release or by written order or written advice addressed to the Bank and
specifically addressing the provisions of Section 9 hereof, permits
indemnification of the Underwriters by the Bank as contemplated by such
provisions;
(n) To
file
with the Commission such information on Form 10-K or Form 10-Q as may be
required by Rule 463 under the Act; and
(o) To
comply, and to use its best efforts to cause the Company’s directors and
officers and the Trust’s trustees, in their capacities as such, to comply, in
all material respects, with all effective applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations
thereunder.
18
7. The
Offerors covenant and agree with the several Underwriters that the Company
will
pay or cause to be paid the following: (i) Underwriters’ counsel fees and
expenses, such reimbursement amount not to exceed $50,000; (ii) the fees,
disbursements and expenses of the Offerors’ counsel and accountants in
connection with the registration of the Securities, the Junior Subordinated
Notes, the Guarantee, and the Indenture under the Act and all other expenses
in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, any Permitted Free Writing Prospectus
and
the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (iii) the
cost of printing or producing any agreement among Underwriters, this Agreement,
any Blue Sky memorandum, closing documents (including any compilations thereof)
and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iv) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws, including the fees and disbursements of counsel for the Underwriters
in
connection with such qualification and in connection with any Blue Sky survey;
(v) all fees and expenses in connection with listing the Securities on
NASDAQ; (vi) the filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, securing any required review
by
the FINRA of the terms of the sale of the Securities; (vii) the cost of
preparing any Security certificates; (viii) the cost and charges of any
transfer agent or registrar; and (ix) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
8. The
obligations of the Underwriters hereunder, as to the Securities to be delivered
at each Time of Delivery, shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Offerors herein are, at and as of such Time of Delivery, true and correct,
the
condition that the Offerors shall have performed all of their obligations
hereunder theretofore to be performed, and the following additional
conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with
Section 6(a) hereof (or a post-effective amendment shall have been
filed and declared effective in accordance with the requirements of
Rule 430A); if the Offerors has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 p.m.,
Chicago Time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on
the
part of the Commission shall have been complied with to the Representatives’
reasonable satisfaction; and the FINRA shall have raised no objection to the
fairness and reasonableness of the underwriting terms and
arrangements;
(b) ▇▇▇▇,
Forward, ▇▇▇▇▇▇▇▇ & Scripps LLP, counsel for the Underwriters, shall have
furnished to the Representatives such written opinion or opinions, dated as
of
such Time of Delivery, with respect to the incorporation of the Company and
the
Trust Agreement, the validity of the Securities, the Trust Agreement, the
Indenture, the Guarantee Agreement, the Registration Statement, and the
Prospectus as amended or supplemented, and with respect to other related matters
as the Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, shall have furnished to the
Representatives their written opinion (a draft of such opinion is attached
as
Annex I hereto), dated such Time of Delivery, in form and substance
satisfactory to the Representatives, to the effect set forth in Annex I hereto
and to such further effect as counsel to the Underwriters may reasonably
request;
19
(d) Manatt,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP or its successor, tax counsel for the Company, shall
have furnished to the Representatives their written opinion (a draft of such
opinion is attached as Annex II hereto), dated such Time of Delivery, in form
and substance satisfactory to the Representatives, to the effect set forth
in
Annex II hereto and to such further effect as counsel to the Underwriters may
reasonably request;
(e) ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, counsel for Wilmington Trust Company, as Property Trustee
and Delaware Trustee under the Trust Agreement, Indenture Trustee under the
Indenture, and Guarantee Trustee under the Guarantee Agreement, and special
Delaware counsel to the Offerors, shall have furnished to the Representatives
their written opinions (drafts of such opinions are attached as Annex III
hereto), dated such Time of Delivery, in form and substance satisfactory to
the
Representatives, to the effect set forth in Annex III hereto and to such further
effect as counsel to the Underwriters may reasonably request;
(f) On
the
date of the Prospectus at a time prior to the execution of this Agreement,
at
9:30 a.m., Chicago Time, on the effective date of any post-effective amendment
to the Registration Statement filed subsequent to the date of this Agreement
and
also at each Time of Delivery, ▇▇▇▇▇, ▇▇▇▇▇▇ & Co. shall have furnished to
the Representatives a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to the Representatives, to the
effect that they are independent public accountants with respect to the Trust,
the Company and the Company’s subsidiaries within the meaning of the Act and the
related rules and regulations and containing statements and information of
the
type ordinarily included in accountants’ “comfort letters” to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus (and the documents filed under
the Act incorporated by reference therein setting forth financial information
of
the Company);
(g) (i) Neither
the Trust, the Company nor any of its subsidiaries shall have sustained since
the date of the latest audited financial statements included in each of the
General Disclosure Package and the Prospectus 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, otherwise than as set forth or contemplated in the Prospectus, and
(ii) since the respective dates as of which information is given in each of
the General Disclosure Package and the Prospectus there shall not have been
any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
stockholders’ equity or results of operations of the Trust, the Company and its
subsidiaries, otherwise than as set forth or contemplated in each of the General
Disclosure Package and the Prospectus, the effect of which, in any such case
described in Clause (i) or (ii), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities being delivered
at
such Time of Delivery on the terms and in the manner contemplated in each of
the
General Disclosure Package and the Prospectus;
20
(h) On
or
after the date hereof (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) under the Act, 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;
(i) On
or
after the date hereof there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange or on NASDAQ; (ii) a suspension or
material limitation in trading in the Company’s securities on NASDAQ;
(iii) a general moratorium on commercial banking activities declared by
either Federal or California authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by
the
United States of a national emergency or war or a material adverse change in
general economic, political or financial conditions, including without
limitation as a result of terrorist activities after the date hereof (or the
effect of international conditions on the financial markets in the United States
shall be such), or any other calamity or crisis, if the effect of any such
event
specified in this Clause (iv) in the judgment of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc. makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered at such Time of
Delivery on the terms and in the manner contemplated in the
Prospectus;
(j) The
Securities to be sold at such Time of Delivery shall have been duly listed
for
quotation on the NASDAQ Global Market;
(k) The
Offerors shall have complied with the provisions of
Section 5(b) hereof with respect to the furnishing of prospectuses as
delivered in accordance with the Representatives’ instructions; and
(l) The
Offerors shall have furnished or caused to be furnished to the Representatives
at such Time of Delivery certificates of officers of the Company, the Bank
and
trustees of the Trust satisfactory to the Representatives as to the accuracy
of
the representations and warranties of the Company, the Bank and the Trust herein
at and as of such Time of Delivery, as to the performance by the Company and
Trust of all of their obligations hereunder to be performed at or prior to
such
Time of Delivery, as to the matters set forth in subsections (a) and
(g) of this Section and as to such other matters as the
Representatives may reasonably request.
9. (a) The
Trust, the Company and the Bank, jointly and severally, shall indemnify and
hold
harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject, under the
Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the General Disclosure Package, the
Prospectus or any individual Issuer-Represented Limited-Use Free Writing
Prospectus, when considered together with the General Disclosure Package, or
any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that neither the
Trust, the Company nor the Bank shall be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, the General
Disclosure Package, the Prospectus or any individual Issuer-Represented
Limited-Use Free Writing Prospectus, when considered together with the General
Disclosure Package, or any such amendment or supplement in reliance upon and
in
conformity with written information furnished to the Offerors by any Underwriter
through the Representatives expressly for use therein (provided that the
Offerors and the Underwriters hereby acknowledge and agree that the only
information that the Underwriters have furnished to the Offerors specifically
for inclusion in any Preliminary Prospectus, the Registration Statement, the
General Disclosure Package, the Prospectus or any individual Issuer-Represented
Limited-Use Free Writing Prospectus, when considered together with the General
Disclosure Package, or any amendment or supplement thereto, are (i) the
price and proceeds figures appearing in the Prospectus in the section entitled
“Underwriting,” (ii) the section entitled “Underwriting” relating to the
Underwriters’ reservation of the right to withdraw, cancel or modify the offer
contemplated by this Agreement and to reject orders in whole or in part, and
(iii) the section entitled “Underwriting” relating to stabilization
transactions, over-allotment transactions, syndicate covering transactions
and
penalty bids in which the Underwriters may engage (collectively, the
“Underwriters’ Information”). Notwithstanding the foregoing, the
indemnification provided for in this paragraph (a) shall not apply to
the Bank to the extent that such indemnification by the Bank is found in a
final
judgment by a court of competent jurisdiction to constitute a covered
transaction under Section 23A of the Federal Reserve Act.
21
(b) Each
Underwriter shall indemnify and hold harmless the Offerors against any losses,
claims, damages or liabilities to which the Offerors may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the General Disclosure Package, the
Prospectus, or any individual Issuer-Represented Limited-Use Free Writing
Prospectus, when considered together with the General Disclosure Package, or
any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the General Disclosure Package, the
Prospectus or any individual Issuer-Represented Limited-Use Free Writing
Prospectus, when considered together with the General Disclosure Package, or
any
such amendment or supplement, in reliance upon and in conformity with written
information furnished to the Offerors by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Offerors
for
any legal or other expenses reasonably incurred by the Offerors in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly
after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to
any indemnified party otherwise than under such subsection. In case
any such action 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 therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection
with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out
of
such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
22
(d) If
the
indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein,
then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or
actions in respect thereof) in such proportion as is appropriate to reflect
the
relative benefits received by the Offerors on the one hand and the Underwriters
on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted
by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also
the relative fault of the Offerors on the one hand and the Underwriters on
the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as
well
as any other relevant equitable considerations. The relative benefits
received by the Offerors on the one hand and the Underwriters on the other
shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Offerors bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Offerors on the one hand or the Underwriters on
the
other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Offerors and the Underwriters agree that it would not be just and equitable
if
contributions pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the
equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions
in
respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it
and
distributed to the public were offered to the public exceeds the amount of
any
damages which such Underwriter has otherwise been required to pay by reason
of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
23
(e) The
obligations of the Trust, the Company and the Bank under this Section 9
shall be in addition to any liability which the Trust, the Company and the
Bank
may otherwise have and shall extend, upon the same terms and conditions, to
each
person, if any, who controls (within the meaning of the Act) any Underwriter,
or
any of the respective partners, directors, officers and employees of any
Underwriter or any such controlling person; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the
same terms and conditions, to each director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about
to
become a director of the Company), each officer of the Company or trustee of
the
Trust who signs the Registration Statement and to each person, if any, who
controls the Trust, the Company or the Bank, as the case may be, within the
meaning of the Act.
10. (a) If
any Underwriter shall default in its obligation to purchase the Securities
which
it has agreed to purchase hereunder at a Time of Delivery, the Representatives
may in the Representatives’ discretion arrange for the Representatives or
another party or other parties to purchase such Securities on the terms
contained herein. If within thirty-six hours after such default by
any Underwriter the Representatives does not arrange for the purchase of such
Securities, then the Offerors shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Securities on such
terms. In the event that, within the respective prescribed periods,
the Representatives notifies the Offerors that the Representatives have so
arranged for the purchase of such Securities, or the Offerors notify the
Representatives that the Offerors have so arranged for the purchase of such
Securities, the Representatives or the Offerors shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and
the
Offerors agree to file promptly any amendments to the Registration Statement
or
the Prospectus which in the Representatives’ opinion may thereby be made
necessary. The term “Underwriter” as used in this Agreement shall include any
person substituted under this Section with like effect as if such person
had originally been a party to this Agreement with respect to such
Securities.
(b) If,
after
giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Offerors
as provided in subsection (a) above, the aggregate number of such
Securities which remains unpurchased does not exceed one-tenth of the aggregate
number of all the Securities to be purchased at such Time of Delivery, then
the
Offerors shall have the right to require each non-defaulting Underwriter to
purchase the number of shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Securities which such Underwriter agreed to purchase hereunder) of the
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
24
(c) If,
after
giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Offerors
as provided in Section 10(a) hereof, the aggregate number of such
Securities which remains unpurchased exceeds one-tenth of the aggregate number
of all the Securities to be purchased at such Time of Delivery, or if the
Offerors shall not exercise the right described in
Section 10(b) hereof to require non-defaulting Underwriters to
purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Time of Delivery, the obligations
of
the Underwriters to purchase and of the Company to sell the Optional Securities)
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Offerors, except for the expenses to be borne by the Offerors
as provided in Section 7 hereof and the indemnity and contribution
agreements in Section 9 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
11. The
respective indemnities, agreements, representations, warranties and other
statements of the Offerors, the Bank and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Offerors
or the Bank, or any officer or director or controlling person of the Company
or
the Bank or trustee of the Trust, and shall survive delivery of and payment
for
the Securities.
12. If
this
Agreement is terminated pursuant to Section 10 hereof, neither the Offerors
nor the Bank shall then be under any liability to any Underwriter except as
provided in Sections 7 (in the case of the Offerors) and 9 (in the case of
the Offerors and the Bank) hereof; but, if for any other reason, any Securities
are not delivered by or on behalf of the Offerors as provided herein, the
Offerors will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses, including fees and disbursements of counsel, incurred
by
the Underwriters in connection with the transactions contemplated hereby,
including, without limitation, marketing, syndication and travel expenses
incurred by the Underwriters in making preparations for the purchase, sale
and
delivery of the Securities not so delivered, but the Offerors shall then be
under no further liability to any Underwriter except as provided in
Sections 7 and 9 hereof.
13. In
all
dealings hereunder, the Representatives shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon
any
statement, request, notice or agreement on behalf of any Underwriter made or
given by the Representatives.
All
statements, requests, notices and agreements hereunder shall be in writing,
and
if to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to the Representatives at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Syndicate Manager; and
if
to the Company, the Trust, or to the Bank shall be delivered or sent
by mail to the address of the Offerors set forth in the Registration Statement,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; provided, however, that any notice to an
Underwriter pursuant to Section 9(c) hereof shall be delivered or sent
by mail or facsimile transmission to such Underwriter at its address or
facsimile number set forth in its Underwriters’ Questionnaire, which address or
facsimile number will be supplied to the Offerors by the Representatives upon
request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
25
14. This
Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Offerors, the Bank and, to the extent provided in
Sections 9 and 11 hereof, the officers and directors of the Company and of
the Bank, the trustees of the Trust and each person who controls the Company,
the Bank, the Trust or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of
the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
15. Time
shall be of the essence of this Agreement. As used herein, the term
“business day” shall mean any day when the Commission’s office in Washington,
D.C. is open for business.
16. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Illinois.
17. This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
If
the
foregoing is in accordance with your understanding, please sign and return
to us
four counterparts hereof, and upon the acceptance hereof by you, on behalf
of
each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters, the Offerors
and the Bank.
[signature
pages follow]
//
//
//
//
//
//
26
Accepted
as of the date
hereof:
By:_____________________
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title: President,
Chief Executive Officer, and Chairman of the Board
TEMECULA
VALLEY BANK
By:____________________
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title: President
[Signatures
continued on following page]
27
Accepted
as of the date hereof:
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
As
Representative of the Several Underwriters named in Schedule I
hereto
By: ___________________________
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title: President
and Chief Executive Officer
▇▇▇▇▇▇▇▇▇▇
SECURITIES, INC.
As
Representative of the Several Underwriters named in Schedule I
hereto
By:____________________________
Name:
Title:
[Signatures
continued on following page]
28
Accepted
as of the date
hereof:
TEMECULA
VALLEY STATUTORY TRUST VI
By
WILMINGTON TRUST COMPANY, Indenture Trustee
By
_________________________
Its
_______________________
29
SCHEDULE I
|
Underwriter
|
Total
Number of Firm Securities to be Purchased
|
Number
of Optional Securities to be Purchased if Maximum Option
Exercised
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
|
||
|
▇▇▇▇▇▇▇▇▇▇
Securities, Inc.
|
||
|
Total
|
1,750,000
|
262,500
|
Schedule
I
ANNEX
I
Opinion
of Company Counsel
(i) The
Company
is a registered bank holding company under the Bank Holding Company Act of
1956,
as amended; has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of California, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus;
(ii) The
Company
has an authorized capitalization as set forth in the Prospectus under the
heading “Capitalization”, and all of the issued shares of capital stock of the
Company (including the Securities being delivered at such Time of Delivery)
have
been duly and validly authorized and issued and are fully paid and
nonassessable; and the Securities conform to the description of the Securities
contained in the Prospectus;
(iii) Except
as
described in the Prospectus, (A) there are no outstanding rights (contractual
or
otherwise), warrants or options to acquire, or instruments convertible into
or
exchangeable for, or agreements or understandings with respect to the sale
or
issuance of, any shares of capital stock of or other equity interest in the
Company; and (B) there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the Act or otherwise register any
securities of the Company owned or to be owned by such person;
(iv) The
Company
has been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which
it
owns or leases properties or conducts any business so as to require such
qualification, or is subject to any liability or disability by reason of failure
to be so qualified in any jurisdiction, except where such failure to be so
qualified would not have a Material Adverse Effect;
(v) Each
subsidiary of the Company either has been duly incorporated and is validly
existing as a corporation or a statutory business trust or has been duly
chartered and is validly existing as a California state-chartered bank, in
each
case in good standing under the laws of the jurisdiction of its organization,
with power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus, and has been duly qualified as
a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject
to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction; the activities of the Bank are activities permitted
to
subsidiaries of a California state-chartered bank under applicable law and
the
rules and regulations of the California Department of Financial Institutions
and
the deposit accounts of the Bank are insured up to the applicable limits by
the
FDIC; all of the issued and outstanding capital stock of each subsidiary of
the
Company has been duly authorized and validly issued and is fully paid and
nonassessable, and is owned, directly by the Company free and clear of any
pledge, lien, encumbrance, claim or equity;
Annex
I-1
(vi) To
the best
of such counsel’s knowledge, the Company and its subsidiaries have good and
marketable title to all real property owned by them, in each case free and
clear
of all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property and
do
not interfere with the use made and proposed to be made of such property by
the
Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its 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 and proposed to be made of such property
and
buildings by the Company and its subsidiaries;
(vii) Except
as
disclosed in the Prospectus, the Company and its subsidiaries are conducting
their respective businesses in compliance in all material respects with all
laws, rules, regulations, decisions, directives and orders (including, without
limitation, all regulations and orders of, or agreements with, the FDIC, the
FRB, the California Department of Financial Institutions, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act, Equal Credit Opportunity Act, the Fair Housing Act, the Community
Reinvestment Act, the Home Mortgage Disclosure Act and all other applicable
fair
lending laws or other laws relating to discrimination and the Bank Secrecy
Act
and Title III of the USA Patriot Act) and neither the Company nor any of its
subsidiaries has received any communication from any Governmental Entity
asserting that the Company or any of its subsidiaries is not in material
compliance with any statute, law, rule, regulation, decision, directive or
order; there is no action, suit, investigation or proceeding before or by any
Governmental Entity now pending or, to the knowledge of such counsel, threatened
or contemplated against or affecting the Company or any of its subsidiaries
(A) that is required to be disclosed in the Registration Statement and not
disclosed therein, (B) that could result, individually or in the aggregate,
in any Material Adverse Effect, (C) that could materially and adversely
affect the properties, assets, leasehold interests or licenses of the Company
and its subsidiaries, considered as one enterprise, or (D) that could
adversely affect the consummation of the transactions contemplated in this
Agreement; all pending legal or governmental proceedings to which the Company
or
any of its subsidiaries is a party or of which any of their property is the
subject, which are not described in the Registration Statement, including
ordinary routine litigation incidental to their respective businesses, either
individually or in the aggregate, would not have a Material Adverse
Effect;
(viii) This
Agreement has been duly authorized, executed and delivered by the Company,
the
Trust and the Bank;
(ix) The
issue and
sale of the Securities being delivered at such Time of Delivery by the Company
and the compliance by the Company, the Trust and the Bank, with all of the
provisions of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation of any
of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known
to such counsel 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 action result in any violation of the provisions of the
Articles of Incorporation or Bylaws of the Company or any statute or any
order, rule or regulation known to such counsel of any court or Governmental
Entity;
(x) No
consent,
approval, authorization, order, registration or qualification of or with any
court or Governmental Entity is required for the issue and sale of the
Securities or the consummation by the Company of the transactions contemplated
by this Agreement, except the registration under the Act of the Securities,
and
except as may be required under the rules and regulations of the FINRA and
such
consents, approvals, authorizations, registrations or qualifications as may
be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
Annex
I-2
(xi) Neither
the
Company nor any of its subsidiaries is in violation of its certificate of
incorporation or charter (as applicable) or bylaws or, to such counsel’s
knowledge, in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound;
(xii) The
statements set forth in the Prospectus under the captions “Description of the
Securities,” “Description of the Junior Subordinated Notes,” “Book-Entry
System,” “Description of the Guarantee,” “Relationship Among the Trust Preferred
Securities, Junior Subordinated Notes and the Guarantee,” “Regulation,”
“Underwriting,” and “ERISA Considerations” [Add Section re relationship with
Other Trusts] in the Prospectus, insofar as such statements constitute a summary
of documents referred to therein or matters of law, are accurate and
complete;
(xiii0 To
the best
of such counsel’s knowledge, each of the Company and its subsidiaries possess
all Governmental Licenses and have made all filings, applications and
registrations with all Governmental Entities that are required in order to
permit the Company or such subsidiary to conduct its business as presently
conducted, except where the failure to possess such Governmental License or
to
have made such filing, application or registration would not, individually
or in
the aggregate, have a Material Adverse Effect; all of the Governmental Licenses
are valid and in full force and effect, except where the invalidity of such
Governmental Licenses to be in full force and effect, individually or in the
aggregate, would not have a Material Adverse Effect; and neither the Company
nor
any of its subsidiaries has received any notice of proceedings relating to
the
revocation or modification of any such Governmental Licenses which, individually
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect;
(xiv) To
the best
of such counsel’s knowledge, neither the Company nor any of its subsidiaries is
a party to or subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a commitment letter, supervisory
letter or similar submission to, any Governmental Entity charged with the
supervision or regulation of depository institutions, their credit or
deposit-gathering activities, or engaged in the insurance of deposits (including
the FDIC and the SBA) or the supervision or regulation of it or any of its
subsidiaries and neither the Company nor any of its subsidiaries has been
advised by any such Governmental Entity that such Governmental Entity is
contemplating issuing or requesting (or is considering the appropriateness
of
issuing or requesting) any such order, decree, agreement, memorandum of
understanding, commitment letter, supervisory letter or similar
submission;
(xv) Neither
the
Trust nor the Company are, and after giving effect to the offering and sale
of
the Securities, will not be, an “investment company” or an entity “controlled”
by an “investment company”, as such terms are defined in the Investment Company
Act;
(xvi) 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; and they have no reason to believe
that any such documents, when such documents were so filed, contained an 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 when such documents were so filed, not
misleading;
Annex
I-3
(xvii) The
Registration Statement and the Prospectus and any further amendments and
supplements thereto made by the Company prior to such Time of Delivery (other
than the financial statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all material respects
with
the requirements of the Act and the rules and regulations thereunder; and such
counsel does not know of any contracts or other agreements of a character
required to be incorporated by reference into the Prospectus or required to
be
filed as an exhibit to the Registration Statement or required to be described
in
the Registration Statement or Prospectus which are not filed or incorporated
by
reference or described as required;
(xviii) The
Company
is in compliance with the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act,
the
rules and regulations of the Commission thereunder and the corporate governance
and other rules and regulations of NASDAQ;
(xix) The
Registration Statement has become effective under the Act, and, to the best
knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have
been instituted or are pending or contemplated under the Act;
(xx) The
holders
of the Company’s outstanding securities are not entitled to any preemptive or
other rights to subscribe for the Junior Subordinated Notes or the Securities
under the Company’s bylaws and, to the knowledge of such counsel, no such rights
exist under any other agreement or arrangement;
(xxi) All
of the
issued and outstanding Common Securities of the Trust are owned by the Company
and, to the best of such counsel’s knowledge, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable
right;
(xxii) The
Trust
Agreement, the Indenture and the Guarantee have been duly qualified under the
Trust Indenture Act;
(xxiii) The
Junior
Subordinated Notes are in the form contemplated by the Indenture, have been
duly
authorized, executed and delivered by the Company and, when authenticated by
the
Indenture Trustee in the manner provided for in the Indenture and delivered
against payment therefor, will constitute valid and binding obligations of
the
Company, enforceable against the Company in accordance with their terms, except
to the extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally
and
subject to general principles of equity;
(xxiv) The
Junior
Subordinated Notes are subordinate and junior in right of payment to all Senior
Indebtedness (as defined in the Indenture) of the Company;
Annex
I-4
(xxv) To
the best
of such counsel’s knowledge and information after due inquiry, (A) the Trust is
not required to be authorized to do business in any jurisdiction other than
Delaware, except where the failure to be so authorized would not have a material
adverse effect on the Trust’s condition (financial or otherwise) or results of
operations taken as a whole; and (B) the Trust is not a party to or otherwise
bound by any material agreement other than those described in the
Prospectus;
(xxvi) The
Trust
Agreement has been duly executed and delivered by the Administrative
Trustees;
(xxvii) No
[Capital
Treatment Event] (as defined in the Indenture) has occurred;
(xxviii) The
Offerors
satisfy all of the requirements of the Act for use of Form S-3 for the offering
of Securities contemplated by this Agreement;
(xxix) The
Company
has full corporate power and authority and the Trust has full trust power and
authority to enter into this Agreement, the Indenture, the Trust Agreement,
and
the Guarantee Agreement, as applicable, and to issue the Junior Subordinated
Notes and to effect the transactions contemplated by this Agreement, the
Indenture, the Trust Agreement, and the Guarantee Agreement, as applicable,
and
each of this Agreement, the Indenture, the Trust Agreement, and the Guarantee
Agreement has been duly authorized, executed and delivered by the Company and
the Trust, as applicable, and constitutes a valid, legal and binding obligation
of the Company and the Trust, as applicable, enforceable in accordance with
its
terms (except as rights to indemnity hereunder may be limited by federal or
state securities laws and except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the rights
of
creditors generally and subject to general principles of equity). The
execution, delivery and performance of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement, the Securities, the Common Securities,
and
the Junior Subordinated Notes and the consummation of the transactions herein
or
therein contemplated will not, to the best of such counsel’s knowledge, result
in a breach or violation of any of the terms and provisions of, or constitute
a
default under, any statute, rule or regulation, any lease, contract, indenture,
mortgage, loan agreement or other agreement or instrument known to such counsel
to which the Company, the Trust or any of the Company’s subsidiaries is a party
or by which it is bound or to which any of its property is subject, the
Company’s or any of its subsidiaries’ charter or bylaws, or the Certificate of
Trust or any permit, judgment, order or decree known to such counsel of any
court or governmental agency or body having jurisdiction over the Company,
the
Trust or any of the Company’s subsidiaries or any of their respective
properties, except for any breach, violation or default which would not have
a
material adverse effect on the Company or the Trust; and no consent, approval,
authorization, order of, designation, declaration or filing by or with, any
court or any regulatory, administrative or governmental agency or body is
required for the execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement, the Common Securities,
the Securities, or the Junior Subordinated Notes, or for the consummation of
the
transactions contemplated hereby or thereby, including the issuance or sale
of
the Junior Subordinated Notes by the Company and the Common Securities and
Securities by the Trust, except (A) such as may be required under the Act,
which
have been obtained or made, and (B) the qualification of the Trust Agreement,
the Guarantee Agreement and the Indenture under the Trust Indenture Act and
the
regulations thereunder, all of which have been effected. The filing of the
Registration Statement and the registration of the Junior Subordinated Notes,
the Guarantee and the Securities under the Act does not give rise to any rights
for or relating to the registration of any shares of capital stock or other
securities of the Company;
Annex
I-5
In
addition, such counsel shall state that nothing has come to such counsel’s
attention that would lead such counsel to believe that the Registration
Statement (except for financial statements and schedules and other financial
or
statistical data included therein, as to which counsel need make no statement),
at the time it became effective, or that the General Disclosure Package as
of
the Applicable Time, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make
the
statements therein not misleading or that the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Time of
Delivery (except for financial statements and schedules and other financial
or
statistical data included therein, as to which counsel need make no statement),
at the time the Registration Statement became effective and at such Time of
Delivery, included or includes an untrue statement of a material fact or omitted
or omits 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.
Annex
I-6
ANNEX
II
Opinion
of Offerors Tax Counsel
(1) the
Trust will be classified for United States federal income tax purposes as a
grantor trust and not as an association or publicly traded partnership taxable
as a corporation;
(2) for
United States federal income tax purposes, the Securities will constitute
indebtedness of the Company; and
(3) the
statements set forth in the Registration Statement under the caption “Certain
United States Federal Income Tax Consequences,” subject to the qualifications
set forth therein and in this letter, to the extent they describe United States
federal income tax laws or legal conclusions, constitute accurate summaries
of
the matters described therein in all material respects.
Annex
II-1
ANNEX
III
Opinions
of Trustee Counsel
(i) Wilmington
Trust is duly incorporated and validly existing as a banking corporation with
trust powers in good standing under the laws of the State of
Delaware.
(ii) Wilmington
Trust has the power and authority to execute, deliver and perform its
obligations under the Trustee Documents.
(iii) The
execution and delivery of the Trustee Documents, and the performance by
Wilmington Trust of its obligations thereunder, have been duly authorized by
all
necessary corporate action on the part of Wilmington Trust.
(iv) The
Declaration of Trust is a legal, valid and binding obligation of Wilmington
Trust, enforceable against Wilmington Trust, in accordance with its terms.
To
the extent that each of the Indenture and the Guarantee is a legal, valid and
binding obligation of Wilmington Trust under the laws by which such agreement
is
expressly governed, each of the Indenture and the Guarantee constitute legal,
valid and binding obligations of Wilmington Trust, enforceable against
Wilmington Trust, in accordance with the terms thereof.
(v) Neither
the execution, delivery and performance by Wilmington Trust of the Trustee
Documents, nor the consummation of any of the transactions by Wilmington Trust
contemplated thereby, requires the consent or approval of, the withholding
of
objection on the part of, the giving of notice to, the filing, registration
or
qualification with, or the taking of any other action in respect of, any
governmental authority or agency under the laws of the State of Delaware or
the
federal laws of the United States of America governing the trust powers of
Wilmington Trust, other than the filing of the Certificate of Trust on behalf
of
the Trust (which Certificate of Trust has been duly filed).
(vi) Neither
the execution, delivery and performance by Wilmington Trust of the Trustee
Documents, nor the consummation of any of the transactions by Wilmington Trust
contemplated thereby, is in violation of the charter or bylaws of Wilmington
Trust or of the laws of the State of Delaware or of the federal laws of the
United States of America governing the trust powers of Wilmington Trust or,
to
our knowledge, without independent investigation, of any indenture, mortgage,
bank credit agreement, note or bond purchase agreement, long-term lease, license
or other agreement or instrument to which it is a party or by which it is bound
or, to our knowledge, without independent investigation, of any judgment or
order applicable to Wilmington Trust.
(vii) To
our
knowledge, without independent investigation, there are no proceedings pending
or threatened against Wilmington Trust in any court or before any governmental
authority, agency or arbitration board or tribunal which, individually or in
the
aggregate, would have a material adverse effect on the right, power and
authority of Wilmington Trust to enter into or perform its obligations under
the
Trustee Documents.
(viii) The
Debentures have been duly authenticated and delivered by Wilmington Trust,
as
Trustee, in accordance with the Indenture.
Annex
III-1
(ix) The
Trust
has been duly created and is validly existing in good standing as a statutory
trust under the Delaware Statutory Trust Act (12 Del. C. § 3801, et seq.) (the
“Act”). All filings required under the laws of the State of Delaware with
respect to the creation and valid existence of the Trust as a statutory trust
have been made.
(x) Under
the
Declaration of Trust and the Act, the Trust has the trust power and authority
to
(A) execute and deliver the Operative Documents, (B) perform its obligations
under such Operative Documents and (C) issue the Trust Securities.
(xi) The
execution and delivery by the Trust of the Operative Documents, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary trust action on the part of the Trust.
(xii) The
Declaration of Trust constitutes a legal, valid and binding obligation of the
Company, the Trustees and the Administrators, and is enforceable against the
Company, the Trustees and the Administrators, in accordance with its
terms.
(xiii) Each
of
the Operative Documents constitutes a legal, valid and binding obligation of
the
Trust, enforceable against the Trust, in accordance with its terms.
(xiv) The
Capital Securities have been duly authorized for issuance by the Declarationof
Trust, and, when duly executed and delivered to and paid for by the purchasers
thereof in accordance with the Declaration of Trust and the Underwriting
Agreement, the Capital Securities will be validly issued, fully paid and,
subject to the qualifications set forth in paragraph 8 below, nonassessable
undivided beneficial interests in the assets of the rust and will entitle the
Capital Securities Holders to the benefits of the Declaration of Trust. The
issuance of the Capital Securities is not subject to preemptive or other similar
rights under the Act or the Declaration of Trust.
(xv) The
Common Securities have been duly authorized for issuance by the Declaration
of
Trust and, when duly executed and delivered to the Company as Common Security
Holder in accordance with the Declaration of Trust, will be validly issued,
fully paid and, subject to paragraph 8 below and Section 9.1(b) of the
Declaration of Trust (which provides that the Holder of the Common Securities
are liable for debts and obligations of Trust), nonassessable undivided
beneficial interests in the assets of the Trust and will entitle the Common
Security Holder to the benefits of the Declaration of Trust. The issuance of
the
Common Securities is not subject to preemptive or other similar rights under
the
Act or the Declaration of Trust.
(xvi) Under
the
Declaration of Trust and the Act, 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. We note
that the Holders of the Capital Securities and the Holder of the Common
Securities may be obligated, pursuant to the Declaration of Trust, (A) to
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Capital Security
Certificates and the issuance of replacement Capital Security Certificates,
and
(B) to provide security or indemnity in connection with requests of or
directions to the Institutional Trustee to exercise its rights and powers under
the Declaration of Trust.
Annex
III-2
(xvii) Neither
the execution, delivery and performance by the Trust of the Operative Documents,
nor the consummation by the Trust of any of the transactions contemplated
thereby, requires the consent or approval of, the authorization of, the
withholding of objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other action in respect
of, any governmental authority or agency of the State of Delaware, other than
the filing of the Certificate of Trust with the Secretary of State (which
Certificate of Trust has been duly filed).
(xviii) Neither
the execution, delivery and performance by the Trust of the Operative Documents,
nor the consummation by the Trust of the transactions contemplated thereby,
is
in violation of the Declaration of Trust or of any law, rule or regulation
of
the State of Delaware applicable to the Trust.
(xix) The
Trust
will not be subject to any tax, fee or governmental charge imposed under the
laws of the State of Delaware. A Capital Security Holder not
otherwise subject to income tax by the State of Delaware will not be subject
to
income taxes imposed by the State of Delaware solely as a result of its
ownership of a Capital Security.
Annex
III-3