D&W DRAFT 3/5/97
Cumulative Trust Preferred Securities
CFC Preferred Trust
[ ]% Cumulative Trust Preferred Securities
(Liquidation Preference of $25 per Trust Preferred Security)
PURCHASE AGREEMENT
------------------
, 1997
▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Commercial Federal Corporation, a Nebraska corporation (the
"Company"), as Depositor and as guarantor, and its fiduciary subsidiary, CFC
Preferred Trust, a statutory business trust organized under the Delaware
Business Trust Act (the "Delaware Act") (the "Trust" and together with the
Company, the "Offerors"), propose that the Trust issue and sell to ▇▇▇▇▇ ▇▇▇▇▇▇▇
Inc. (the "Underwriter") an aggregate of __________ of the Trust's ___%
Cumulative Trust Preferred Securities, with a liquidation preference of $25 per
Trust Preferred Security (the "Preferred Securities"), the terms of which are
more fully described in the Prospectus (as hereinafter defined). The Offerors
propose that the Trust issue the Preferred Securities pursuant to an Amended and
Restated Trust Agreement among Wilmington Trust Company, as Delaware Trustee,
▇▇▇▇▇▇ Trust and Savings Bank, as Property Trustee, the administrative trustees
named therein (the "Administrative Trustees") and the Company (the "Trust
Agreement"). The Preferred Securities will be guaranteed by the Company with
respect to distributions and payments upon liquidation, redemption and otherwise
(the "Guarantee") pursuant to a Guarantee Agreement (the "Guarantee Agreement"),
to be dated March __, 1997, between the Company and ▇▇▇▇▇▇ Trust and Savings
Bank, as Guarantee Trustee (the "Guarantee Trustee"), and entitled to the
benefits of certain backup undertakings described in the Prospectus (as defined
herein) with respect to the Company's agreement pursuant to the Expense
Agreement (as defined herein) to pay all expenses relating to administration of
the Trust.
The proceeds of the sale of the Preferred Securities and the Common
Securities (liquidation amount $25.00 per common security (the "Common
Securities")) will be used to purchase junior subordinated deferrable interest
debentures (the "Junior Subordinated Debentures") issued by the Company pursuant
to an Indenture (the "Indenture"), to be dated March __, 1997, between the
Company and ▇▇▇▇▇▇ Trust and Savings Bank, as Debenture Trustee (the "Debenture
Trustee").
The Offerors hereby confirm their agreement with
respect to the sale of the Preferred Securities to the Underwriter.
1. Registration Statement and Prospectus. A registration statement
-------------------------------------
on Form S-3 (File No. 333-____) with respect to the Preferred Securities,
the Guarantee and the Junior Subordinated Debentures, including a
preliminary form of prospectus, has been prepared by the Offerors in conformity
with the requirements of the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations ("Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and the Trust Indenture Act of
1939, as amended (the Trust Indenture Act") and the rules and regulations
thereunder and has been filed with the Commission; and, if the Offerors have
elected to rely upon Rule 462(b) of the Rules and Regulations to increase the
size of the offering registered under the Act, the Offerors will prepare and
file with the Commission a registration statement with respect to such increase
pursuant to Rule 462(b). Copies of such registration statement(s) and
amendments and each related preliminary prospectus have been delivered to the
Underwriter.
If the Offerors have elected not to rely upon Rule 430A of the Rules
and Regulations, the Offerors have prepared and will promptly file an amendment
to the registration statement and an amended prospectus (including a term sheet
meeting the requirements of Rule 434 of the Rules and Regulations) if necessary
to complete the Prospectus. If the Offerors have elected to rely upon Rule 430A
of the Rules and Regulations, they will prepare and file a prospectus (or a term
sheet meeting the requirements of Rule 434) pursuant to Rule 424(b) that
discloses the information previously omitted from the prospectus in reliance
upon Rule 430A. Such registration statement, as amended at the time it is or was
declared effective by the Commission, and, in the event of any amendment thereto
after the effective date and prior to the Closing Date (as hereinafter defined),
such registration statement as so amended (but only from and after the
effectiveness of such amendment), including a registration statement (if any)
filed pursuant to Rule 462(b) of the Rules and Regulations increasing the size
of the offering registered under the Act and information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to
Rules 430A(b) and 434(d) of the Rules and Regulations, is hereinafter called the
"Registration Statement". The prospectus included in the Registration Statement
at the time it is or was declared effective by the Commission and any related
prospectus supplement or supplements specifically relating to the Preferred
Securities, the Guarantee and the Junior Subordinated Debentures as filed with
or promptly hereafter filed with the Commission pursuant to Rule 424(b) under
the Act, is hereinafter called the "Prospectus", except that if any prospectus
(including any term sheet meeting the
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requirements of Rule 434 of the Rules and Regulations provided by the Offerors
for use with a prospectus subject to completion within the meaning of Rule 434
in order to meet the requirements of Section 10(a) of the Rules and Regulations)
filed by the Offerors with the Commission pursuant to Rule 424(b) (and Rule 434,
if applicable) of the Rules and Regulations or any other such prospectus
provided to the Underwriter by the Offerors for use in connection with the
offering of the Preferred Securities (whether or not required to be filed by the
Offerors with the Commission pursuant to Rule 424(b) of the Rules and
Regulations) differs from the prospectus on file at the time the Registration
Statement is or was declared effective by the Commission, the term "Prospectus"
shall refer to such differing prospectus (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations) from and after the time such
prospectus is filed with the Commission or transmitted to the Commission for
filing pursuant to such Rule 424(b) (and Rule 434, if applicable) or from and
after the time it is first provided to the Underwriter by the Offerors for such
use. The term "Preliminary Prospectus" as used herein means the preliminary
prospectus included in any Registration Statement prior to the time it becomes
or became effective under the Act and any prospectus subject to completion as
described in Rule 430A or 434 of the Rules and Regulations.
2. Representations and Warranties of the Company.
---------------------------------------------
(a) The Offerors represent and warrant to, and agree with, the
Underwriter as follows:
(i) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission nor have any proceedings been
instituted or, to the best of the Company's knowledge, threatened for that
purpose. Each Preliminary Prospectus, at the time of filing thereof, 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 the light of the circumstances under which they were made, not
misleading; except that the foregoing shall not apply to statements in or
omissions from the Preliminary Prospectus in reliance upon, and in conformity
with, written information furnished to the Company by or on behalf of the
Underwriter for use in the preparation thereof.
(ii) As of the time the Registration Statement (or any post-effective
amendment thereto, including a registration statement (if any) filed pursuant
to Rule 462(b) of the Rules and Regulations increasing the size of the
offering registered under the Act) is or was declared effective by the
Commission, upon the filing or first delivery to the Underwriter of the
Prospectus (or any supplement to the Prospectus (including any term sheet
meeting the requirements of Rule 434 of the Rules and Regulations)) and at
the Closing Date (as hereinafter defined), (A) the Registration Statement and
Prospectus
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(in each case, as so amended and/or supplemented) conformed or will conform
in all material respects to the requirements of the Act and the Rules and
Regulations and the Registration Statement and Prospectus (in each case as so
amended and/or supplemented) conformed or will conform in all material
respects to the requirements of the Trust Indenture Act and the rules and
regulations thereunder, (B) the Registration Statement (as so amended) did
not or will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) the Prospectus (as so
supplemented) did not or will not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they are or were made, not misleading; except that the foregoing shall
not apply to (i) statements in or omissions from any such document in
reliance upon, and in conformity with, written information furnished to the
Offerors by or on behalf of the Underwriter specifically for use in the
preparation thereof and (ii) that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification ("Form T-1") under
the Trust Indenture Act. If the Registration Statement has been declared
effective by the Commission, no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceeding for that
purpose has been initiated or, to the Offeror's knowledge, threatened by the
Commission.
(iii) The documents of the Company incorporated by reference in the
Registration Statement and the Prospectus, when they were filed with the
Commission conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Registration Statement and the
Prospectus or any further amendment or supplement thereto, when such
documents are filed with the Commission will conform in all material respects
to the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances under
which they were made, not misleading.
(iv) The consolidated financial statements of the Company and its
subsidiaries, together with the notes thereto, contained in or incorporated
by reference in the Registration Statement, Preliminary Prospectus and
Prospectus comply in all material respects with the requirements of the Act,
the Rules and Regulations and the Exchange Act and fairly present the
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financial position of the Company and its subsidiaries as of the dates
indicated and the results of operations and changes in financial position for
the periods therein specified; said consolidated financial statements have
been prepared in conformity with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise
stated in the Registration Statement and Prospectus); and the supporting
schedules incorporated by reference in the Registration Statements present
fairly the information required to be stated therein. No other financial
statements or schedules are required to be included or incorporated by
reference in the Registration Statement or the Prospectus. The financial
information included in the Preliminary Prospectus and Prospectus under the
caption "Summary Consolidated Financial Information" presents fairly the
information purported to be shown therein at the dates and for the periods
indicated.
(v) The Company has been duly organized and is validly existing as
a corporation under the laws of the State of Nebraska, is duly registered as
a savings and loan holding company under Section 10 of the Home Owners' Loan
Act, as amended, and is qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the ownership or leasing of
properties or the conduct of its business requires such qualification, except
where failure to be so qualified would not have a material adverse effect
upon the Company's business, condition (financial or otherwise) or
properties. Each Significant Subsidiary of the Company, as defined below, has
been duly incorporated or organized and is in good standing under the laws of
its jurisdiction of incorporation or organization and is qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction in which the ownership or leasing of properties or the conduct
of its business requires such qualification, except where failure to be so
qualified would not have a material adverse effect upon such Significant
Subsidiary's business, condition (financial or otherwise) or properties. The
"Significant Subsidiaries" of the Company are: Commercial Federal Bank, a
Federal Savings Bank (the "Bank"), duly organized and validly existing as a
federal savings bank chartered under the Home Owners Loan Act, 12 U.S.C. (S)
1464; Commercial Federal Mortgage Corporation, a Nebraska corporation;
Commercial Federal Investment Services, Inc., a Nebraska corporation;
Commercial Federal Investment Corporation, a Nebraska corporation; Commercial
Federal Insurance Corporation, a Nebraska corporation; Commercial Federal
Service Corporation, a Nebraska corporation; and Commercial Marketing, Inc.,
a Nebraska corporation. The subsidiaries of the Company which are not
Significant Subsidiaries are not individually or in the aggregate, material
to the financial condition, results of operations, business or business
prospects of the Company and its subsidiaries, taken as a whole. The Company
and each of its subsidiaries has all requisite power and
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authority (corporate and other) to own its properties and conduct its
business as it is currently being carried on and as described in the
Prospectus. The Bank is a member in good standing of the Federal Home Loan
Bank of Topeka, the Bank's savings accounts are insured by the Savings
Association Insurance Fund of the Federal Deposit Insurance Corporation
("FDIC") up to the maximum applicable amount in accordance with the rules and
regulations of the FDIC, and no proceedings for the termination or revocation
of such membership or insurance are pending, or to the knowledge of the
Company, contemplated. The Company owns all of the outstanding capital stock
of the Bank, free of any liens, claims charges or encumbrances. The Company
or one of its subsidiaries owns all of the outstanding capital stock of the
Company's subsidiaries, free of any liens, claims charges or encumbrances.
(vi) Deloitte & Touche LLP, who certified the financial statements and
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus, are independent public accountants
as required by the Act and the Rules and Regulations.
(vii) The Trust has been duly created and is validly existing in good
standing as a business trust under 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 to enter into and perform its
obligations under this Agreement, the Preferred Securities, the Common
Securities and the Trust Agreement 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
Company's condition (financial or otherwise), earnings, business, prospects,
assets, results of operations or properties taken as a whole; 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 generally accepted
accounting principles.
(viii) Since the respective dates as of which information is given
in the Registration Statement, the Preliminary Prospectus and the Prospectus,
and except as otherwise disclosed therein or in the documents incorporated
therein by reference, (i) there has been no material adverse change in the
condition (financial or otherwise) of the Company, the Trust or its or their
subsidiaries, or in the financial results, business affairs or business
prospects of the Trust, the Company or its subsidiaries, whether or not
arising in the ordinary course of business, (ii) there have been no
transactions entered into
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by the Company, its Significant Subsidiaries or the Trust which would
materially effect the Company, the Significant Subsidiaries or the Trust,
(iii) there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock or on any class of
capital stock of a subsidiary, except regular quarterly cash dividends
declared by the Board of Directors of the Company and paid by the Company in
the ordinary course of business in accordance with the dividend policy
established by the Board of Directors, (iv) neither the Company, the Trust
nor any subsidiary has incurred, other than in the ordinary course of
business, any material liabilities or obligations, direct or contingent, and
(v) there has not been (A) any change in the capital stock of the Company or
any subsidiary (except for options granted pursuant to or shares of common
stock issued pursuant to the employee benefit plans of, or as compensation to
the directors of, the Company and the Bank described in the documents
incorporated by reference in the Registration Statement, or any issuance of
options, warrants, convertible securities or other rights to purchase capital
stock of the Company or any subsidiary), or (B) any material increase in the
short-term or long-term debt (including capitalized lease obligations) of the
Company or any subsidiary except indebtedness and deposit liabilities
incurred by the Bank in the ordinary course of its banking business. Neither
the Trust, the Company nor any of its subsidiaries has any material
contingent liabilities which are not disclosed in the Prospectus or in the
Registration Statement.
(ix) Except as set forth in the Registration Statement, the
Preliminary Prospectus and the Prospectus or in the documents incorporated
therein by reference, there is not pending or, to the knowledge of the Trust
or the Company, threatened or contemplated, any action, suit or proceeding to
which the Trust, the Company or any subsidiary of the Company is a party or
to which either of their assets may be subject, before or by any court or
governmental agency, authority or body, domestic or foreign, or any
arbitrator, which might result in any material adverse change in the
condition (financial or otherwise) of the Trust, the Company or any
subsidiary of the Company, or in the financial results, business affairs or
business prospects of the Trust or the Company and its subsidiaries, taken as
a whole or the disposition of which would materially and adversely affect the
consummation of this Agreement.
(x) There are no contracts or documents of the Trust, the Company or
any subsidiary of the Company that are required to be filed or incorporated
by reference as exhibits to the Registration Statement by the Act or by the
Rules and Regulations which contracts or documents have not been so filed or
incorporated by reference as required.
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(xi) The execution, delivery and performance by the Company and/or the
Trust, as the case may be, of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement and the Expense Agreement and the
consummation of the transactions contemplated hereby and thereby, including
the issuance, sale and delivery of the Preferred Securities by the Trust and
the Junior Subordinated Debentures by the Company, will not (i) conflict with
or result in a breach of any of the terms and provisions of, or constitute a
default (or an event which with notice or lapse of time, or both, would
constitute a default) or require, except for such consents as have been
obtained and are currently in effect, consent under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Trust, the Company or any of its subsidiaries pursuant to
the terms of, any agreement, instrument, franchise, license, permit or other
instrument to which the Trust, the Company or any of its subsidiaries is a
party or by which any of such companies or their respective properties or
assets may be bound or violate or conflict with any judgment, decree, order,
statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over the Trust, the Company or
any of its subsidiaries or any of their respective properties or assets,
which conflicts, breaches, defaults, violations or liens would, in the
aggregate, have a material adverse effect on the Trust, the Company and its
subsidiaries, taken as a whole, or (ii) violate or conflict with any
provision of the certificate of incorporation, charter, by-laws or other
governing documents of the Company or any of its subsidiaries or the Trust's
Trust Agreement or its certificate of trust filed with the state of Delaware
on _______________, 1997 (the "Certificate of Trust"). No consent, approval,
authorization, order, registration, filing, qualification, license or permit
of or with any court or any public, governmental or regulatory agency or body
having jurisdiction over the Trust, the Company or any of its subsidiaries or
any of their respective properties or assets is required for the execution,
delivery and performance of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement and the Expense Agreement and the
consummation of the transactions contemplated hereby and thereby, including
the issuance, sale and delivery of the Preferred Securities by the Trust and
the Junior Subordinated Debentures by the Company, except such as may be
required under the Act, the qualification of the Indenture, the Trust
Agreement and the Guarantee Agreement under the Trust Indenture Act, and the
consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required under state
securities or Blue Sky laws. Each of the Indenture, the Trust Agreement and
the Guarantee Agreement conform in all material respects to the descriptions
thereof contained in the Registration Statement, the Preliminary Prospectus
and the Prospectus.
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(xii) This Agreement has been duly and validly authorized, executed
and delivered by the Company and the Trust and is a valid and binding
obligation of the Company and the Trust, enforceable against the Company and
the Trust in accordance with its terms, except as enforceability thereof may
be limited by bankruptcy, insolvency, reorganization or similar laws relating
to or affecting the rights of creditors generally and by equitable principles
and except as obligations of the Company and the Trust under the
indemnification provisions hereof may be limited under federal or state
securities laws.
(xiii) Each of the Company and the Trust has all requisite corporate
power and authority to execute, deliver and perform its obligations under the
Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement. All necessary corporate proceedings of the Company and the Trust
have been duly taken to authorize the execution, delivery and performance by
each of the Company and the Trust of the Indenture, the Trust Agreement, the
Guarantee Agreement and the Expense Agreement, as the case may be. The
Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement have been duly authorized, and when executed and delivered by the
Company and/or the Trust, as the case may be, will be a valid and binding
obligation of the Company and/or the Trust, as the case may be, enforceable
against the Company and/or the Trust, as the case may be, in accordance with
its terms, except as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws relating to or affecting the
rights of creditors generally and by equitable principles.
(xiv) The authorized capital stock of the Company is as set forth
under the caption "Capitalization" in the Registration Statement, the
Preliminary Prospectus and the Prospectus. All of the outstanding shares of
capital stock have been duly authorized, validly issued and are fully paid
and nonassessable. Neither the filing of the Registration Statement nor the
offering or sale of the Preferred Securities or the Junior Subordinated
Debentures, as contemplated by this Agreement, gives rise to any rights,
other than those which have been waived or satisfied, for or relating to the
registration of any shares of capital stock or other securities of the
Company. All of the issued and outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized, validly issued and are
fully paid and nonassessable.
(xv) The Junior Subordinated Debentures have been duly authorized
by the Company and at the Closing Date will have been duly executed by the
Company and, when authenticated in the manner provided for in the Indenture
and delivered against payment therefor as described in the
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Prospectus, 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, will be in the form contemplated
by, and entitled to the benefits of, the Indenture and will conform in all
material respects to the statements relating thereto in the Prospectus.
(xvi) The Common Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and 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; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Date 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, mortgage, pledge, lien,
encumbrance, claim or equity.
(xvii) The Preferred 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 non-assessable undivided beneficial interests in the Trust,
will be entitled to the benefits of the Trust Agreement and will in all
material respects conform to the statements relating thereto contained in the
Prospectus; the issuance of the Preferred Securities is not subject to
preemptive or other similar rights; and holders of Preferred Securities will
be entitled to the same limitation of personal liability under Delaware law
as extended to stockholders of private corporations for profit.
(xviii) The Indenture, the Trust Agreement, the Guarantee Agreement
and the Expense Agreement are in substantially the respective forms filed as
exhibits to the Registration Statement.
(xix) The Company's obligations under the Guarantee are subordinated
and junior in right of payment to all "Senior Debt" (as defined in the
Indenture) of the Company.
(xx) The Junior Subordinated Debentures are subordinate and junior in
right of payment to all "Senior Debt" of the Company.
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(xxi) Each of the Administrative Trustees of the Trust is an employee
of the Company and has been duly authorized by the Company to execute and
deliver the Trust Agreement.
(xxii) Neither the Company, the Trust nor any subsidiary of the
Company is in violation of any law, ordinance, governmental rule or
regulation or court decree to which it is subject nor has it failed to obtain
any license, certificate, permit, franchise or other governmental
authorization, registration, acceptance or approval necessary to the
ownership, leasing or operation of its property or to the conduct of its
business as it is currently being carried on and as described in the
Preliminary Prospectus or the Prospectus, which violation or failure to
obtain would have a material adverse effect on the condition (financial or
otherwise) of the Company and its subsidiaries, or on the financial results,
business affairs or business prospects of the Company and its subsidiaries,
taken as a whole.
(xxiii) Neither the Company nor any subsidiary of the Company is in
violation of its respective articles of incorporation, charter or bylaws or
other governing documents; the Trust is not in violation of its Trust
Agreement or its Certificate of Trust or other governing documents; None of
the Company, the Trust or any subsidiary of the Company is in violation or
default of any term of any contract, license, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the Company,
the Trust or any such subsidiary is a party or by which it is bound, or to
which any of the property or assets of the Company, the Trust or any such
subsidiary is subject, where any such default, breach or violation would
have, individually or in the aggregate, a material adverse effect on the
Company or any subsidiary of the Company, on the performance of this
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the
Expense Agreement, the Junior Subordinated Debentures or the Preferred
Securities.
(xiv) The Company and its subsidiaries have good title to all
properties owned by them that are material to the Company and its
subsidiaries, taken as a whole, in each case free and clear of all liens,
encumbrances and defects, except (i) as do not materially interfere with the
use made of such properties, (ii) referred to in the Registration Statement,
the Preliminary Prospectus and the Prospectus (including the notes to the
financial statements included or incorporated by reference therein), or (iii)
as could not reasonably be expected, singly or in the aggregate, to have a
material adverse effect on the business, results of operations, conditions
(financial or otherwise) or business prospects of the Company and the
subsidiaries, taken as a whole.
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(xxv) The Company maintains insurance of the type and in the amounts
generally deemed adequate for its business and consistent with insurance
maintained by similar companies in similar businesses.
(xxvi) Each of the Trust and the Company has filed all federal, state,
local and foreign income and franchise tax returns required to be filed and
are not in default in the payment of any taxes which were payable pursuant to
said returns or any assessments with respect thereto.
(xxvii) The Company, the Trust and the Significant Subsidiaries have
all necessary consents, approvals, authorizations, orders, registrations,
qualifications, licenses and permits of and from all public, regulatory or
governmental agencies and bodies, material to the ownership of their
respective properties and conduct of their respective businesses as now being
conducted and as described in the Registration Statement and the Prospectus,
and no such consent, approval, authorization, order, registration,
qualification, license or permit contains a materially burdensome restriction
not adequately disclosed in the Registration Statement and the Prospectus.
The conduct of the business of the Company, the Trust and each of the
Significant Subsidiaries is in compliance in all material respects with all
applicable federal, state, local and foreign laws and regulations, except
where failure to be so in compliance would not materially adversely affect
the condition, business or results of operation of the Company, the Trust and
the Significant Subsidiaries taken as a whole.
(xxviii) The Offerors have not distributed and will not distribute any
prospectus or other offering material in connection with the offering and
sale of the Preferred Securities and the Common Stock other than any
Preliminary Prospectus or the Prospectus or other materials permitted by the
Act to be distributed by the Offerors.
(xxix) None of the Trust, the Company or any Subsidiary is an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or an
"investment adviser" within the meaning of the Investment Advisers Act of
1940, as amended.
(xxx) The proceeds from the sale of the Preferred Securities will
constitute "tier 1" capital (as defined in 12 C.F.R. Part 325).
(xxxi) Neither the Company, the Trust nor any of its officers,
directors (as defined in the Rules and Regulations) has taken or will take,
directly or indirectly, prior to the termination of the offering contemplated
by this Agreement, any action designed to stabilize or manipulate the price
of any
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security of the Company or the Trust, or which has caused or resulted in, or
which might in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of the Company or
the Trust, to facilitate the sale or resale of any of the Preferred
Securities.
(xxxii) The Offerors have complied with all the provisions of Florida
Statutes Section 517.075 (Chapter 92-198, Laws of Florida). Neither of the
Offerors nor any of their affiliates is presently doing business with the
government of Cuba or with any person or affiliate located in Cuba.
(b) Any certificate signed by any officer of the Company or a trustee
of the Trust and delivered to the Underwriter or to counsel for the Underwriter
shall be deemed a representation and warranty by the Company to the Underwriter
as to the matters covered thereby.
3. Purchase, Sale and Delivery of Preferred Securities; Advisory Fee.
------------------------------------------------------------------
On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Trust agrees to issue and sell ________ Preferred Securities to the Underwriter,
and the Underwriter agrees to purchase the Preferred Securities from the Trust
at a purchase price per Preferred Security of $25.00 per share. As compensation
to the Underwriter for its commitments hereunder and in view of the fact that
the proceeds of the sale of the Preferred Securities (together with the entire
proceeds from the sale by the Trust to the Company of the Common Securities)
will be used to purchase the Junior Subordinated Debentures, the Company hereby
agrees to pay at the Closing Date to the Underwriter, a commission per Preferred
Security equal in amount to _________ percent (___%) of the gross proceeds from
the sale of the Preferred Securities to be delivered by the Trust hereunder at
the Closing Date.
The Preferred Securities will be delivered by the Company to the
Underwriter against payment of the purchase price therefor by certified or
official bank check or wire transfer of same day funds payable to the Company at
the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or such other location as may be mutually acceptable, at
9:00 a.m. Central time on the third (or if the Preferred Securities are priced,
as contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m.
Eastern time, on the fourth) full business day following the date hereof, or at
such other time and date as the Underwriter and the Company determine pursuant
to Rule 15c6-1(a) under the Exchange Act, such time and date of delivery being
herein referred to as the "Closing Date." Delivery of the Preferred Securities
may be made by credit through full fast transfer to the accounts at The
Depository Trust Company designated by the Underwriter. Certificates
representing the Preferred Securities, in definitive form (unless otherwise
requested by the Underwriter) and in such denominations and
-13-
registered in such names as the Underwriter may request upon at least two
business days' prior notice to the Company shall be prepared and will be made
available for checking and packaging, not later than 10:30 a.m., Central time,
on the business day next preceding the Closing Date at the offices of ▇▇▇▇▇
▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, or such other location as may be mutually acceptable.
Nothing herein contained shall constitute the Underwriter an
unincorporated association or partner with either or both Offerors.
4. Covenants.
---------
(a) The Offerors jointly and severally covenant and
agree with the Underwriter as follows:
(i) If the Registration Statement has not already been declared
effective by the Commission, the Company will use its best efforts to cause
the Registration Statement and any post-effective amendments thereto to
become effective as promptly as possible; the Company will notify the
Underwriter promptly, and with respect to (ii) through (iv) below shall
confirm the notice in writing, (i) of the time when the Registration
Statement or any post-effective amendment to the Registration Statement has
become effective, (ii) any supplement to the Prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) has been
filed, (iii) of the receipt of any comments from the Commission, and (iv) of
any request by the Commission for any amendment or supplement to the
Registration Statement or Prospectus or additional information; if the
Company has elected to rely on Rule 430A of the Rules and Regulations, the
Company will prepare and file a Prospectus (or term sheet within the meaning
of Rule 434 of the Rules and Regulations) containing the information omitted
therefrom pursuant to Rule 430A of the Rules and Regulations with the
Commission within the time period required by, and otherwise in accordance
with the provisions of, Rules 424(b), 430A and 434, if applicable, of the
Rules and Regulations; if the Company has elected to rely upon Rule 462(b) of
the Rules and Regulations to increase the size of the offering registered
under the Act, the Company will prepare and file a registration statement
with respect to such increase with the Commission within the time period
required by, and otherwise in accordance with the provisions of, Rule 462(b);
the Offerors will prepare and file with the Commission, promptly upon the
Underwriter's request, any amendments or supplements to the Registration
Statement or Prospectus (including any term sheet within the meaning of Rule
434 of the Rules and Regulations) that, in the Underwriter's opinion, may be
necessary or advisable in connection with the Underwriter's distribution of
the Preferred Securities; and the Offerors will not file any amendment or
-14-
supplement to the Registration Statement or Prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) to which
the Underwriter shall reasonably object by notice to the Company after having
been furnished a copy a reasonable time prior to the filing.
(ii) The Offerors will advise the Underwriter, promptly after they
shall receive notice or obtain knowledge thereof, and shall confirm such
notice, in writing, of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement, of the suspension
of the qualification of the Preferred Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for any
such purpose; and the Offerors will promptly use their best efforts to
prevent the issuance of any stop order or to obtain its withdrawal if such a
stop order should be issued.
(iii) Within the time during which a prospectus (including
any term sheet within the meaning of Rule 434 of the Rules and Regulations)
relating to the Preferred Securities is required to be delivered under the
Act, the Offerors will comply as far as it is able with all requirements
imposed upon it by the Act, as now and hereafter amended, and by the Rules
and Regulations, as from time to time in force, so far as necessary to permit
the continuance of sales of or dealings in the Preferred Securities as
contemplated by the provisions hereof and the Prospectus. If during such
period any event occurs as a result of which the Prospectus would include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such period it is necessary, in
the written opinion of counsel to the Underwriter, to amend the Registration
Statement or supplement the Prospectus to comply with the Act, the Offerors
will promptly notify the Underwriter and will amend the Registration
Statement or supplement the Prospectus (in form and substance reasonably
satisfactory to counsel for the Underwriter and at the expense of the
Company) so as to correct such statement or omission or effect such
compliance.
(iv) The Offerors will use their best efforts to qualify the Preferred
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as you may reasonably
designate; provided that no such qualification shall be required in any
jurisdiction where, as a result thereof, the Offerors would become subject to
service of general process or to qualification to do business as a foreign
corporation. In each jurisdiction in which the Preferred Securities have been
so qualified, the Offerors will file such statements and reports as may be
required to be filed by it by the laws of such jurisdiction to continue such
-15-
qualification in effect for a period of not less than one year from
the effective date of the Registration Statement.
(v) The Offerors will furnish to the Underwriter signed copies of the
Registration Statement as originally filed (including all exhibits filed
therewith), a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits), each of the
Preliminary Prospectuses, the Prospectus, and all amendments and supplements
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations) to such documents, in each case as soon as available and in such
quantities as the Underwriter may from time to time reasonably request.
(vi) For so long as any of the Preferred Securities remain
outstanding, the Company will furnish to the Underwriter, copies of all
annual reports, quarterly reports and current reports filed by the Company
with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms
as may be designated by the Commission, and of such other documents, proxy
statements, reports and information as are furnished by the Company to its
stockholders generally.
(vii) The Company will make generally available to its security
holders and holders of the Preferred Securities as soon as practicable, but
in any event not later than 18 months after the "effective date of the
Registration Statement" (as defined in Rule 158(c) of the Rules and
Regulations), an earnings statement (which need not be audited) complying
with Section 11(a) of the Act and the Rules and Regulations (including at the
option of the Company Rule 158).
(viii) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is prevented from becoming
effective under the provisions of Section 8(a) hereof or is terminated, will
pay or cause to be paid all costs and expenses incident to the performance of
the obligations of each Offeror hereunder, including, without limitation, (A)
all expenses (including transfer taxes allocated to the respective
transferees) incurred in connection with the issuance, transfer and delivery
to the Underwriter of the Preferred Securities, (B) all expenses and fees
(including, without limitation, fees and expenses of each Offeror's
accountants and counsel but, except as otherwise provided below, not
including fees of the Underwriter's counsel) in connection with the
preparation printing, filing, delivery, and shipping of the Registration
Statement (including the financial statements therein and all amendments,
schedules, and exhibits thereto), the Preferred Securities, each Preliminary
Prospectus, the Prospectus, and any amendment thereof or supplement thereto,
and the printing, delivery, and shipping of this Agreement and other
underwriting documents, including
-16-
Blue Sky Memoranda and any legal investment survey requested by the
Underwriter, and the Indenture, (C) all filing fees and fees and
disbursements of the Underwriter's counsel incurred in connection with the
qualification of the Preferred Securities for offering and sale by the
Underwriter or by dealers under the securities or blue sky laws of the states
and other jurisdictions which the Underwriter shall designate, (D) the fees
and expenses of any transfer agent or registrar, (E) the filing fees incident
to any required review by the National Association of Preferred Securities
Dealers, Inc. ("NASD") of the terms of the sale of the Preferred Securities,
(E) listing fees, if any, (G) the fees and expenses of the Debenture Trustee,
including the fees and disbursements of counsel for the Debenture Trustee in
connection with the Indenture and Junior Subordinated Debentures, (H) the
fees and expenses of the Property Trustee, including the fees and
disbursements of counsel for the Property Trustee in connection with the
Trust Agreement and the Certificate of Trust, (I) rating agency fees, if any,
and (J) all other costs and expenses incident to the performance of the
Offerors' obligations hereunder that are not otherwise specifically provided
for herein. If the sale of the Preferred Securities provided for herein is
not consummated by reason of action by either Offeror pursuant to Section
8(a) hereof which prevents this Agreement from becoming effective, or by
reason of any failure, refusal or inability on the part of either Offeror to
perform any agreement on its part to be performed, or because any other
condition of the Underwriter's obligations hereunder required to be fulfilled
by either Offeror is not fulfilled, the Company will reimburse the
Underwriter for all out-of-pocket disbursements (including, without
limitation, fees and disbursements of counsel for the Underwriter) incurred
by the Underwriter in connection with its investigation, preparing to market
and marketing the Preferred Securities or in contemplation of performing
their obligations hereunder. Neither Offeror shall in any event be liable to
the Underwriter for loss of anticipated profits from the transactions covered
by this Agreement.
(ix) The Offerors will apply the net proceeds from the sale of the
Preferred Securities to be sold by the Trust hereunder for the purposes set
forth in the Prospectus under the caption "Use of Proceeds" and will file
such reports with the Commission with respect to the sale of the Preferred
Securities and the application of the proceeds therefrom as may be required
in accordance with Rule 463 of the Rules and Regulations.
(x) The Offerors have not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted, the stabilization or
manipulation of the price of any security of either Offeror to facilitate the
sale or resale of the Preferred Securities, and has not effected any sales of
Common Stock which
-17-
are required to be disclosed in response to Item 701 of Regulation S-K under
the Act which have not been so disclosed in the Registration Statement.
(xi) Neither Offeror will incur any liability for any finder's or
broker's fee or agent's commission in connection with the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xii) The Offerors will inform the Florida Department of Banking and
Finance at any time prior to the consummation of the distribution of the
Preferred Securities by the Underwriter if it commences engaging in business
with the government of Cuba or with any person or affiliate located in Cuba.
Such information will be provided within 90 days after the commencement
thereof or after a change occurs with respect to previously reported
information.
(xii) The Offerors will not claim the benefit of any usury laws
against any holder of the Preferred Securities.
5. Conditions of Underwriter's Obligations. The obligations of the
---------------------------------------
Underwriter hereunder are subject to the accuracy, as of the date hereof and at
the Closing Date (as if made at the Closing Date), of and compliance with all
representations, warranties and agreements of the Offerors contained herein, to
the performance by each Offeror of its obligations hereunder and to the
following additional conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., Central time, on the date of this Agreement, or such later time
and date as the Underwriter shall approve and all filings required by Rules 424,
430A and 434 of the Rules and Regulations shall have been timely made; no stop
order suspending the effectiveness of the Registration Statement or any
amendment thereof shall have been issued and no proceedings for the issuance of
such an order shall have been initiated or threatened; and any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to the
Underwriter's reasonable satisfaction.
(b) The Underwriter shall not have advised the Company or the Trust
that the Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations), contains an untrue statement of fact which, in the
Underwriter's reasonable opinion, is material, or omits to state a fact which,
in the Underwriter's opinion, is material and is required to be stated therein
or necessary
-18-
to make the statements therein not misleading, and such misstatement or omission
has not been corrected.
(c) Except as contemplated in the Prospectus or the Registration
Statement, subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, none of the Trust or the
Company shall have incurred any material liabilities or obligations, direct or
contingent, or entered into any material transactions, or declared or paid any
dividends or made any distribution of any kind with respect to its capital
stock, except regular quarterly cash dividends declared by the Board of
Directors of the Company and paid by the Company in the ordinary course of
business in accordance with the dividend policy established by the Board of
Directors; and there shall not have been any change in the capital stock (other
than a change in the number of outstanding shares of Common Stock due to the
issuance of shares pursuant to any employee benefit plan of, or as compensation
to the directors of, the Company and the Bank), or any material change in the
short-term or long-term debt, including capitalized lease obligations (except
such increases as are incurred in the ordinary course of business and are not
material to the condition, financial or otherwise, of the Company and its
subsidiaries considered as a whole), of the Company or its subsidiaries, or any
issuance of options, warrants, convertible securities or other rights to
purchase the capital stock of the Company or any of its subsidiaries (except for
securities granted pursuant to the Company's employee benefit plans), or any
material adverse change or any development involving a prospective material
adverse change in condition (financial or otherwise), financial results,
business affairs or business prospects of the Trust or the Company and its
subsidiaries, taken as a whole, that, in the Underwriter's judgment, makes it
impractical or inadvisable to offer or deliver the Preferred Securities on the
terms and in the manner contemplated in the Prospectus.
(d) On the Closing Date, there shall have been furnished to the
Underwriter the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, P.C., counsel for
the Company, dated the Closing Date and addressed to the Underwriter, to the
effect that:
(i) Each of the Company and each of its significant Subsidiaries has
been duly organized and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation or organization. The
Company is duly registered as a savings and loan holding company under
Section 10 of the Home Owner's Act, as amended ("HOLA"). The Bank has been
duly organized and is validly existing as a federal savings bank chartered
under HOLA. Each of the Company and its Significant Subsidiaries has the
corporate power and authority to own its properties and conduct its business
as currently being carried on and as described in the Registration Statement
and Prospectus, and is duly qualified to do business as a foreign corporation
-19-
and is in good standing in each jurisdiction in which its ownership or lease
of property or the conduct of its business makes such qualification necessary
and in which the failure to so qualify would have a material adverse effect
upon the business, condition (financial or otherwise) or properties of the
Company and its Significant Subsidiaries, taken as a whole.
(ii) The statements in the Prospectus under the caption "Description
of the Preferred Securities", "Description of Junior Subordinated
Debentures", "Description of Guarantee", and "Relationship among the
Preferred Securities, the Junior Subordinated Debentures and the Guarantee",
insofar as such statements constitute matters of law applicable to the
Offerors or summaries of documents, fairly present the information required
to be included therein in all material respects. All of the issued and
outstanding shares of the capital stock of the Company is set forth in the
Prospectus under the caption "Capitalization" and have been duly authorized
and validly issued and are fully paid and nonassessable. All of the
outstanding capital stock of the Bank is owned by the Company, and such
capital stock is not subject to any security interest, other encumbrance or
adverse claim
(iii) All of the issued and outstanding shares of capital stock of
each Significant Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable. All of such shares of the Significant
Subsidiaries, other than the Bank, are owned free and clear of all perfected
and, to the best of such counsel's knowledge, other liens, encumbrances,
equities, claims, security interests, voting trusts or other defects of title
whatsoever.
(iv) All of the issued and outstanding Common Securities of the Trust
are owned by the Company, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equitable right.
(v) Each of the Trust Agreement, the Indenture and the Guarantee
Agreement has been duly qualified under the Trust Indenture Act.
(vi) The Junior Subordinated Debentures are in the form contemplated
by the Indenture, have been duly authorized, executed and delivered by the
Company and, when authenticated by the Debenture 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.
-20-
(vii) The Junior Subordinated Debentures are subordinate and junior in
right of payment to all Senior Debt (as defined in the Indenture) of the
Company.
(viii) Neither the Company nor the Trust is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the 1940 Act.
(ix) To the best of such counsel's knowledge and information after due
inquiry, the Trust is not required to be authorized to do business in any
other jurisdiction and the Trust is not a party to or otherwise bound by any
agreement other than those described in the Prospectus.
(x) Each of the Trust Agreement, the Guarantee Agreement, the
Indenture and the Expense Agreement has been duly authorized, executed and
delivered by the Company and the Administrative Trustees, as the case may be,
and will constitute valid and binding obligations of the Company and the
Administrative Trustees, as the case may be, enforceable against the Company
and the Administrative Trustees, as the case may be, 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.
(xi) This Agreement has been duly authorized, executed and delivered
by the Company.
(xii) The Registration Statement has become effective under the Act
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of such counsel,
threatened by the Commission.
(xiii) The descriptions in the Registration Statement and Prospectus
of statutes, legal and governmental proceedings or rulings, contracts and
other documents are accurate in all material respects and fairly present the
information required to be shown; and such counsel does not know of any
statutes or legal or governmental proceedings required to be described in the
Prospectus that are not described as required, or of any contracts or
documents of a character required to be described in the Registration
Statement or Prospectus or included as exhibits to the Registration Statement
that are not described or included as required.
(xiv) The Bank is a member of the Federal Home Loan Bank of Topeka and
exit is an institution with deposit accounts insured by the FDIC to the
-21-
full extent allowed by law and, to our actual knowledge, no proceedings for
the termination or revocation of such insurance are pending or threatened.
(xv) To our actual knowledge, there is no action, suit or proceeding
before or by any federal court or federal governmental agency or body,
domestic or foreign, or any arbitrator, now pending or threatened in writing
against or affecting the Company, the Trust or any Significant Subsidiary
which is required to be disclosed in the Registration Statement (other than
as disclosed therein), and other than those which individually or in the
aggregate would not have a material adverse effect on the Company or which
would not materially and adversely affect the consummation of this Agreement.
(xvi) To the best of such counsel's knowledge, neither the Company nor
any of the Significant Subsidiaries is in violation of its articles of
incorporation, charter or bylaws; the Trust is not in violation of its Trust
Agreement or its Certificate of Trust or other governing documents; none of
the Company, the Trust or any Significant Subsidiary is in default under any
material contract, license, indenture, mortgage, loan agreement, note, lease
or other agreement or instrument to which the Company, the Trust or any such
Significant Subsidiary is a party or by which it is bound, or to which any of
the property or assets of the Company, the Trust or any Significant
Subsidiary is subject, which violation or default would have a material
adverse effect on the Company.
(xvii) The documents incorporated by reference in the Registration
Statement and the Prospectus or any further amendment or supplement thereto
made by the Company (other than the financial statements, other financial
data 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.
(xviii) The execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement, the Preferred
Securities, the Common Securities, the Junior Subordinated Debentures and the
Guarantee Agreement and the consummation of the transactions herein or
therein contemplated will not conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any material property or assets of the Company, the Trust or
any Significant Subsidiary pursuant to (A) any statute, rule or regulation of
the United States or the State of Nebraska, or any statute, contract,
license, indenture, mortgage, loan agreement, note, lease or other agreement
or
-22-
instrument known to us or to which the Company, the Trust or any Significant
Subsidiary is bound or to which any of the material property or assets of the
Company, the Trust or any such Significant Subsidiary is subject, or (B) the
charter or bylaws of the Company or any Significant Subsidiary, or the
Trust's Certificate of Trust, or (C) any applicable law, administrative
regulation or administrative or court decree known to such counsel the
violation of which would have a material adverse effect on the Company and
its Significant Subsidiaries, taken as a whole; and no consent, approval,
authorization or order of, or filing with, any court 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
Expense Agreement, the Preferred Securities, the Junior Subordinated
Debentures, or the Guarantee or for the consummation of the transactions
contemplated hereby or thereby, including the issuance or sale of the Junior
Subordinated Debentures by the Company and the Common Securities and
Preferred Securities by the Trust, except (a) such as may be required under
the Act, which has been obtained, or under state securities or blue sky laws,
and (b) the qualification of the Trust Agreement, the Guarantee Agreement and
the Indenture under the Trust Indenture Act and the rules and regulations
thereunder.
(xix) The Registration Statement and the Prospectus, and any amendment
thereof or supplement thereto (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations), comply as to form in all material
respects with the requirements of the Act and the Rules and Regulations; and
on the basis of conferences with officers of the Company, examination of
documents referred to in the Registration Statement and Prospectus and such
other procedures as such counsel deemed appropriate, nothing has come to the
attention of such counsel that causes such counsel to believe that the
Registration Statement or any amendment thereof, at the time such
Registration Statement became effective and as of the Closing Date (including
any Registration Statement filed under Rule 462(b) of the Rules and
Regulations), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus (as of their
respective dates and as of the Closing Date), as amended or supplemented,
includes any untrue statement of material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; it being understood that such
counsel need express no opinion as to the financial statements or other
financial data included in any of the documents mentioned in this clause.
In rendering such opinion such counsel may rely (i) as to matters of
law other than Nebraska and federal law, upon the opinion or opinions of local
-23-
counsel provided that the extent of such reliance is specified in such opinion
and that such counsel shall state that such opinion or opinions of local counsel
are satisfactory to them and that they believe they and the Underwriter are
justified in relying thereon and (ii) as to matters of fact, to the extent such
counsel deems reasonable upon certificates of officers of the Company and its
subsidiaries and of public officials provided that the extent of such reliance
is specified in such opinion.
(e) On the Closing Date, there shall have been furnished to the
Underwriter the opinion of ▇▇▇▇▇▇▇▇ & Touche LLP, tax advisor to the Offerors,
dated the Closing Date and addressed to the Underwriter, to the effect that:
(i) The statements set forth in the Prospectus under the caption
"Certain Federal Income Tax Consequences" constitute a fair and accurate
summary of the matters addressed therein, based upon current law and the
assumptions stated or referred to therein.
(ii) Under current law, the Trust will be classified for United States
federal income tax purposes as a grantor trust and not as an association
taxable as a corporation; accordingly, for United States federal income tax
purposes each beneficial owner of Preferred Securities will be treated as
owning an undivided beneficial interest in the Junior Subordinated
Debentures, and stated interest on the Junior Subordinated Debentures
generally will be included in income by a holder of Preferred Securities at
the time such interest income is paid or accrued in accordance with such
▇▇▇▇▇▇'s regular method of tax accounting.
(iii) For federal income tax purposes, (a) the Junior Subordinated
Debentures will constitute indebtedness of the Company and (b) the interest
on the Junior Subordinated Debentures will be deductible by the Company on an
economic accrual basis in accordance with Section 163(e) of the Internal
Revenue Code of 1986, as amended, and Treasury Regulation Section 1.163-7.
(f) The favorable opinion, dated as of Closing Date, of _____________,
counsel to ▇▇▇▇▇▇ Trust and Savings Bank, as Property Trustee under the Trust
Agreement, Debenture Trustee under the Indenture, and Guarantee Trustee under
the Guarantee Agreement, in form and substance satisfactory to counsel for
the Underwriter, to the effect that:
(i) ▇▇▇▇▇▇ Trust and Savings Bank is duly incorporated and is validly
existing in good standing as a banking corporation under the laws of the
State of Illinois.
-24-
(ii) ▇▇▇▇▇▇ Trust and Savings Bank has the power and authority to
execute, deliver and perform its obligations under the Trust Agreement, the
Indenture and the Guarantee Agreement.
(iii) Each of the Trust Agreement, the Indenture and the Guarantee
Agreement have been duly authorized, executed and delivered by ▇▇▇▇▇▇ Trust
and Savings Bank and constitutes a legal, valid and binding obligation of
▇▇▇▇▇▇ Trust and Savings Bank, enforceable against ▇▇▇▇▇▇ Trust and Savings
Bank, in accordance with its terms.
(iv) The execution, delivery and performance by ▇▇▇▇▇▇ Trust and
Savings Bank of the Trust Agreement, the Indenture and the Guarantee
Agreement do not conflict with or constitute a breach of the charter or by-
laws of ▇▇▇▇▇▇ Trust and Savings Bank.
(v) No consent, approval or authorization of, or registration with or
notice to, any governmental authority or agency of the State of Illinois or
the United States of America governing the banking or trust powers of ▇▇▇▇▇▇
Trust and Savings Bank is required for the execution, delivery or performance
by the ▇▇▇▇▇▇ Trust and Savings Bank of the Trust Agreement, the Indenture
and the Guarantee Agreement.
(g) The favorable opinion, dated as of Closing Date, of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, as special Delaware counsel for the Offerors, in form and
substance satisfactory to counsel for the Underwriter, to the effect that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act, and all filings required
as of the date hereof under the Delaware Act with respect to the creation and
valid existence of the Trust as a business trust have been made.
(ii) Under the Trust Agreement and the Delaware Act, the Trust has the
trust power and authority to own property and to conduct its business, all as
described in the Prospectus.
(iii) The Trust Agreement constitutes a valid and binding obligation
of the Company and each of the Property Trustee and the Administrative
Trustees, and is enforceable against the Company and each of the Property
Trustee and the Administrative Trustees, in accordance with its terms.
(iv) Under the Trust Agreement and the Delaware Act, the Trust has the
trust power and authority (i) to execute and deliver, and to perform its
obligations under, this Agreement, and (ii) to issue, and to perform its
obligations under, the Preferred Securities and the Common Securities.
-25-
(v) Under the Trust Agreement and the Delaware Act, the execution and
delivery by the Trust of this Agreement, and the performance by the Trust of
its obligations under this Agreement, have been duly authorized by all
necessary trust action on the part of the Trust.
(vi) Under the Delaware Act, the certificate attached to the Trust
Agreement as Exhibit E is an appropriate form of certificate to evidence
ownership of the Preferred Securities. The Preferred Securities and the
Common Securities have been duly authorized by the Trust Agreement and are
duly and validly issued and, subject to the qualifications hereinafter
expressed in this paragraph (vi), fully paid and non-assessable undivided
beneficial interests in the assets of the Trust. The respective holders of
the Preferred Securities and the Common 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
respective holders of the Preferred Securities and the Common Securities may
be obligated, pursuant to the Trust Agreement, to make certain payments under
the Trust Agreement.
(vii) Under the Trust Agreement and the Delaware Act, the issuance of
the Preferred Securities and the Common Securities is not subject to
preemptive or similar rights.
(viii) The issuance and sale by the Trust of the Preferred Securities
and the Common Securities, the purchase by the Trust of the Junior
Subordinated Debentures, the execution, delivery and performance by the Trust
of this Agreement and the Guarantee Agreement, the consummation by the Trust
of the transactions contemplated by this Agreement and compliance by the
Trust with its obligations under this Agreement do not violate (a) any of the
provisions of the Certificate of Trust or the Trust Agreement, or (b) any
applicable Delaware law or Delaware administrative regulation.
(h) On the Closing Date, there shall have been furnished such opinion
or opinions from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, dated the
Closing Date and addressed to the Underwriter, with respect to the formation of
the Company, the validity of the Preferred Securities, the Indenture, the
Guarantee Agreement, this Agreement, the Registration Statement, the Prospectus
and other related matters as the Underwriter reasonably may request, and such
counsel shall have received such papers and information as they request to
enable them to pass upon such matters.
-26-
(i) On the Closing Date the Underwriter shall have received a letter
from Deloitte and Touche LLP, independent certified public accountants, dated
the Closing Date and addressed to the Underwriter, in form and substance
satisfactory to the Underwriter, confirming that they are independent public
accountants within the meaning of the Act and the Rules and Regulations and
are in compliance with the applicable requirements relating to the
qualifications of accountants under Rule 241 of Regulation S-X of the
Commission, that the Trust is and will be treated as a consolidated
Subsidiary of the Company pursuant to generally accepted accounting
principles, and stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date of such letter), the
conclusions and findings of each said firm with respect to the financial
information and other matters covered by its letter delivered to the
Underwriter concurrently with the execution of this Agreement, and the effect
of the letter so to be delivered on the Closing Date shall be to confirm the
conclusions and findings set forth in such prior letter.
(j) On the Closing Date, there shall have been furnished to the
Underwriter, a certificate, dated the Closing Date and addressed to the
Underwriter, signed by the President or the Chief Executive Officer and by a
Vice President, Secretary and Treasurer of the Company, to the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct, in all material respects, as if made at and
as of the Closing Date, and the Offerors have complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) No stop order or other order suspending the effectiveness of the
Registration Statement or any amendment thereof or the qualification of the
Preferred Securities for offering or sale has been issued, and no proceeding
for that purpose has been instituted or, to the best of their knowledge, is
contemplated by the Commission or any state or regulatory body: and
(iii) The signers of said certificate have carefully examined the
Registration Statement and the Prospectus, and any amendments thereof or
supplements thereto (including any term sheet within the meaning of Rule 434
of the Rules and Regulations), and (A) such documents contain all statements
and information required to be included therein, the Registration Statement,
or any amendment thereof, does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented, does not include any untrue
statement of material fact or omit to state a material fact necessary to
-27-
make the statements therein, in light of the circumstances under which they
were made, not misleading, (B) since the effective date of the Registration
Statement, there has occurred no event required to be set forth in an
amended or supplemented prospectus which has not been so set forth, (C)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Trust, the Company
nor any of its Subsidiaries has incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, not in the ordinary course of business, or declared or paid
any dividends or made any distribution of any kind with respect to its
capital stock (except regular quarterly cash dividends declared by the Board
of Directors of the Company and paid by the Company in the ordinary course
of business in accordance with the dividend policy established by the Board
of Directors, and there has not been any change in the capital stock of the
Company), and except as disclosed in the Prospectus, there has not been any
change in the capital stock (other than a change in the number of
outstanding shares of Common Stock due to the issuance of shares upon the
exercise of outstanding stock options), or any material change in the short-
term or long-term debt (including capitalized lease obligations) of the
Company, or any issuance of options, warrants, convertible securities or
other rights to purchase the capital stock of the Company, (except for
securities granted pursuant to or shares of common stock issued pursuant to
the employee benefit plans of, or as compensation to the directors of, the
Company and the Bank), or any material adverse change, in condition
(financial or otherwise) of the Company, or in the financial results,
business affairs or business prospects of the Company, and the Company has
not sustained any material loss or damage to its property or material
interference with its business whether or not any of the foregoing is
insured, and (D) except as stated in the Registration Statement and the
Prospectus, there is not pending, or, to the knowledge of the Company or the
Trust, threatened or contemplated, any action, suit or proceeding to which
the Trust, the Company or any of its Subsidiaries is a party before or by
any court or governmental agency, authority or body, or any arbitrator,
which might result in any material adverse change in the condition
(financial or otherwise) of the Company, or in the financial results,
business affairs or business prospects of the Company.
(k) On the Closing Date, there shall have been furnished to the
Underwriter, a certificate, dated the Closing Date and addressed to the
Underwriter, signed by the Administrative Trustees, to the effect that:
(i) The representations and warranties of the Trust in this Agreement
are true and correct, in all material respects, as if made at and as of the
Closing Date, and the Trust has complied with all the agreements and
-28-
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) No stop order or other order suspending the effectiveness of the
Registration Statement or any amendment thereof or the qualification of the
Preferred Securities for offering or sale has been issued, and no proceeding
for that purpose has been instituted or, to the best of their knowledge, is
contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the
Registration Statement and the Prospectus, and any amendments thereof or
supplements thereto (including any term sheet within the meaning of Rule 434
of the Rules and Regulations), and (a) such documents contain all statements
and information required to be included therein, the Registration Statement,
or any amendment thereof, does not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Prospectus,
as amended or supplemented, does not include any untrue statement of material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, (B) since the effective date of the Registration Statement, there
has occurred no event required to be set forth in an amended or supplemented
prospectus which has not been so set forth, (C) subsequent to the respective
dates as of which information is given in the Registration Statement and the
Prospectus, the Trust has not incurred any material liabilities or
obligations, direct or contingent, or entered into any material transactions,
not in the ordinary course of business, or declared or paid any dividends or
made any distribution of any kind with respect to its preferred securities,
and except as disclosed in the Prospectus, there has not been any change in
the preferred securities, or any material change in the short-term or long-
term debt, or any issuance of options, warrants, convertible securities or
other rights to purchase the preferred securities, of the Trust or any
material adverse change or any development involving a prospective material
adverse change (whether or not arising in the ordinary course of business),
in condition (financial or otherwise) of the Trust, or in the financial
results, business affairs or business prospects of the Trust, and the Trust
has not sustained any material loss or damage to its property or material
interference with its business, whether or not any of the foregoing is
insured, and (D) except as stated in the Registration Statement and the
Prospectus, there is not pending, or, to the knowledge of the Trust,
threatened or contemplated, any action, suit or proceeding to which the Trust
is a party before or by any court or governmental agency, authority or body,
or any arbitrator, which might result in any material adverse change in the
-29-
condition (financial or otherwise), business, prospects or results of
operations of the Trust.
(l) The Company shall have furnished to the Underwriter and to the
Underwriter's counsel such additional documents, certificates and evidence as
the Underwriter or they may have reasonably requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in form
and substance to the Underwriter and the Underwriter's counsel.
6. Indemnification and Contribution.
---------------------------------
(a) The Offerors agree to indemnify and hold harmless the Underwriter
against any losses, claims, damages or liabilities to which the Underwriter may
become subject, under the Act or otherwise (including in settlement of any
litigation if such settlement is effected with the written consent of the
Company), 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 the Registration Statement,
including the information deemed to be a part of the Registration Statement at
the time of effectiveness pursuant to Rules 430A and 434(d) of the Rules and
Regulations, if applicable, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations), 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 the Underwriter for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such loss,
claim, damage, liability or action; provided, however, that the Offerors shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Offerors by or on behalf of the Underwriter
specifically for use in the preparation thereof; and provided further that the
Offerors shall not be liable to the Underwriter under the indemnity agreement in
this subsection (a) with respect to any Preliminary Prospectus to the extent
that any such loss, claim, damage or liability of the Underwriter results from
the fact that the Underwriter sold Preferred Securities to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus or a copy of the Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if the
Offerors have previously furnished copies thereof to the Underwriter and the
loss, claim, damage or liability of the Underwriter results from an untrue
-30-
statement or omission of a material fact contained in the Preliminary Prospectus
or the Prospectus, as the case may be, which was corrected in the Prospectus (or
the Prospectus as amended or supplemented).
(b) The Underwriter will indemnify and hold harmless the Company and
the Trust against any losses, claims, damages or liabilities to which the
Company and the Trust may become subject, under the Act or otherwise (including
in settlement of any litigation, if such settlement is effected with the
Underwriter's written consent), 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 the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations), 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 the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter for use
in the preparation thereof, and will reimburse the Company and the Trust for any
legal or other expenses reasonably incurred by the Company and the Trust in
connection with investigating or defending against any such loss, claim, damage,
liability or action.
(c) The Company agrees to indemnify the Trust against all loss,
liability, claim damage and expense whatsoever, which may become due from the
Trust under subsection (a).
(d) 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 the indemnifying party from any liability
that it may have to any indemnified party. 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 in, 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, and after notice from the
indemnifying party to such indemnified party of the indemnifying party's
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense
-31-
thereof other than reasonable costs of investigation; provided, however, that
if, in the sole judgment of the indemnified party, it is advisable for the
indemnified party to be represented by separate counsel other than counsel for
the indemnified party, the indemnified party shall have the right to employ a
single counsel to represent the indemnified party, in which event the reasonable
fees and expenses of such separate counsel shall be borne by the indemnifying
party. An indemnifying party shall not be obligated under any settlement
agreement relating to any action under this Section 6 to which it has not agreed
in writing.
(e) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company or the Trust on the one hand and the Underwriter on the other
from the offering of the Preferred Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Trust on the one hand
and the Underwriter on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Trust on the one hand and the Underwriter 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 Company bear to the total
underwriting discounts and commissions received by the Underwriter, 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
Company, the Trust or the Underwriter and the parties' relevant intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, the Trust and the Underwriter agree
that it would not be just and equitable if contributions pursuant to this
subsection (e) were to be determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to in the first sentence of this subsection (e). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or claim
which is the subject of this subsection (e). Notwithstanding the provisions of
this subsection (e), the Underwriter shall not be required to contribute any
amount in excess of the amount by which the total price at which the Preferred
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any
-32-
damages that 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.
(f) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company and the Trust may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Underwriter within the meaning of the Act; and the obligations of
the Underwriter under this Section 6 shall be in addition to any liability that
the Underwriter 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), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company or
the Trust within the meaning of the Act.
7. Representations and Agreements to Survive Delivery.
--------------------------------------------------
All representations, warranties, and agreements of the Offerors herein or in
certificates delivered pursuant hereto, and the agreements of the Offerors and
the Underwriter contained in Section 6 hereof shall remain operative and in full
force and effect regardless of any investigation made by the Underwriter or on
the Underwriter's behalf or any controlling person thereof, or the Company or
any of its officers, directors, or controlling persons or the Trust or any if
its trustees, or controlling persons and shall survive delivery of, and payment
for, the Preferred Securities to and by the Underwriter hereunder.
8. Effective Date of this Agreement and Termination.
------------------------------------------------
(a) This Agreement shall become effective at 10:00 a.m., Central time,
on the first full business day following the effective date of the Registration
Statement, or at such earlier time after the effective time of the Registration
Statement as the Underwriter in its discretion shall first release the Preferred
Securities for sale to the public; provided, that if the Registration Statement
is effective at the time this Agreement is executed, this Agreement shall become
effective at such time as the Underwriter in its discretion shall first release
the Preferred Securities for sale to the public. For the purpose of this
Section, the Preferred Securities shall be deemed to have been released for sale
to the public upon release by the Underwriter of the publication of a newspaper
advertisement relating thereto or upon release by the Underwriter of telexes
offering the Preferred Securities for sale to securities dealers, whichever
shall first occur. By giving notice as hereinafter specified before the time
this Agreement becomes effective, the Underwriter, the Trust or the Company may
prevent this Agreement from
-33-
becoming effective without liability of any party to any other party, except
that the provisions of Section 4(a)(viii) and Section 6 hereof shall at all
times be effective.
(b) The Underwriter, shall have the right to terminate this Agreement,
by notice as hereinafter specified, at any time at or prior to the Closing Date
(i) if there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition (financial or otherwise) of the
Company, or in the financial results, business affairs or business prospects of
the Company, whether or not arising in the ordinary course of business, or (ii)
if either Offeror shall have failed, refused or been unable, at or prior to such
Closing Date, to perform any agreement on its part to be performed hereunder, or
(iii) if any other condition of the Underwriter's obligations hereunder required
to be fulfilled by the Offerors is not fulfilled, or (iv) if there has occurred
any material adverse change in the financial markets in the United States or any
outbreak or the escalation of major hostilities involving the United States or
the declaration by the United States of a national emergency, war, or other
calamity or crisis, the effect of which is such as to make it, in your
reasonable judgment, impracticable or inadvisable to market the Preferred
Securities or to enforce contracts for the sale of the Preferred Securities, or
(v) if trading in the Preferred Securities has been suspended by the Commission,
or if trading generally on either the American Stock Exchange or the New York
Stock Exchange has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
either of said Exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal, New
York or Nebraska authorities. If this Agreement is terminated pursuant to this
Section 8(b), such termination shall be without liability of any party to any
other party except that the provisions of Section 4(n) and Section 6 hereof
shall at all times be effective.
(c) If the Underwriter elect to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section, the
Company shall be notified promptly by the Underwriter by telephone or telegram,
confirmed by letter. If the Trust or the Company elects to prevent this
Agreement from becoming effective, the Underwriter shall be notified by the
Trust or the Company by telephone or telegram, confirmed by letter.
9. Default by the Company. If the Trust shall fail at the Closing Date
----------------------
to sell and deliver the number of Preferred Securities which it is obligated to
sell hereunder or the Company fails to deliver the number of Junior Subordinated
Debentures required to be delivered pursuant to the Trust Agreement, then this
Agreement shall terminate without any liability on the part of any non-
defaulting party. No action taken pursuant to this Section shall relieve the
Trust or the Company so defaulting from liability, if any, in respect of such
default.
-34-
10. Information Furnished by Underwriter. The statements
------------------------------------
set forth in the last paragraph of the cover page and under the caption
"Underwriting" in any Preliminary Prospectus and in the Prospectus constitute
the written information furnished by the Underwriter or on its behalf referred
to in Section 2 and Section 6 hereof.
11. Notices. Except as otherwise provided herein, all
-------
communications hereunder shall be in writing or by telegraph and, if to the
Underwriter, shall be mailed, telegraphed or delivered to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.,
▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; if to
the Company, shall be mailed, telegraphed or delivered to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer; if to the
Trust, shall be mailed, telegraphed or delivered to it c/o Commercial Federal
Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Chief
Executive Officer. All notices given by telegram shall be promptly confirmed by
letter. Any party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new address for
such purpose.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure
----------------------------------------
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 6. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Preferred Securities
from the Underwriter.
13. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Minnesota.
[Signature Page Follows]
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Please sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement between the Company
and the Underwriter in accordance with its terms.
Very truly yours,
COMMERCIAL FEDERAL CORPORATION
By
---------------------
Its
-----------------
CFC PREFERRED TRUST
By
---------------------
Its
-----------------
Confirmed as of the date first
above mentioned.
▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By
---------------------
Managing Director
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