EXHIBIT 1.2
TAYC CAPITAL TRUST I
(a Delaware statutory trust)
1,600,000 __% Cumulative Trust Preferred Securities
($25 Liquidation Amount per Preferred Security)
UNDERWRITING AGREEMENT
, 2002
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
as Representatives of the several Underwriters
c/o Keefe, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
4th Floor
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
TAYC Capital Trust I, a statutory trust created under the Delaware
Statutory Trust Act (the "Trust"), and ▇▇▇▇▇▇ Capital Group, Inc., a Delaware
corporation (the "Company" and collectively with the Trust, the "Offerors"),
confirm their agreement with ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. ("▇▇▇▇▇ ▇▇▇▇▇▇▇▇"),
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated ("▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇") and each of the
other Underwriters named in Schedule A hereto (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ are
acting as representatives (in such capacity, the "Representatives"), with
respect to the sale by the Trust, and the purchase by the Underwriters, acting
severally and not jointly, of the respective number of __% Preferred Securities
(liquidation amount of $25.00 per preferred security) of the Trust (the
"Preferred Securities") set forth in Schedule A hereto. The Preferred Securities
will be guaranteed by the Company, to the extent described in the Prospectus (as
defined herein), with respect to distributions and payments upon liquidation,
redemption and otherwise pursuant to the guarantee agreement (the "Guarantee"),
to be dated as of _____________, 2002, between the Company and LaSalle Bank
National Association, as Trustee (the "Guarantee Trustee"). The Preferred
Securities issued in book-entry form will be issued to Cede & Co. as nominee of
The Depository Trust Company ("DTC") pursuant to a letter agreement, to be dated
as of the Closing Time (as defined in Section 2(b) hereof) (the "DTC
Agreement"), among the Trust, the Property Trustee (as defined below) and DTC.
The entire proceeds from the sale of the Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities") to purchase $41,200,000
aggregate principal amount of __% Junior Subordinated
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Debentures due _____________, 2032 (the "Subordinated Debentures") issued by the
Company. The Preferred Securities and the Common Securities will be issued
pursuant to the amended and restated trust agreement, to be dated as of
_____________, 2002 (the "Trust Agreement"), among the Company, as depositor,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual, J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual, and ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, an individual, as administrators (the "Administrators"), LaSalle
Bank National Association, a national banking association, as property trustee
(the "Property Trustee"), and Wilmington Trust Company, a Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee," and, together with the
Property Trustee and the Administrators, the "Trustees"), and the holders, from
time to time, of undivided beneficial interests in the assets of the Trust. The
Subordinated Debentures will be issued pursuant to an indenture, to be dated as
of _____________, 2002 (the "Indenture"), between the Company and LaSalle Bank
National Association, as trustee (the "Indenture Trustee"). The Subordinated
Debentures will be purchased by the Trust from the Company pursuant to the terms
of the Trust Agreement. In addition, certain debts and liabilities of the Trust
will be guaranteed by the Company, to the extent described in the Prospectus (as
defined herein), pursuant to an agreement as to expenses and liabilities, to be
dated as of _____________, 2002 (the "Expense Agreement"), between the Company
and the Trust.
The Preferred Securities, the Guarantee and the Subordinated Debentures
are hereinafter collectively referred to as the "Securities."
The Indenture, the Trust Agreement, the Guarantee, the DTC Agreement,
the Expense Agreement and this Agreement are hereinafter referred to
collectively as the "Operative Documents."
The Offerors understand that the Underwriters propose to make a public
offering of the Preferred Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered. It is understood
that the Company and a shareholder of the Company (the "Selling Shareholder")
are concurrently entering into an underwriting agreement, dated the date hereof
(the "Common Stock Underwriting Agreement"), with the several underwriters named
in Schedule A thereto (the "Common Stock Underwriters") providing for the sale
by the Company and the Selling Shareholder of an aggregate of 2,775,000 shares
of Common Stock, par value $.01 per share, of the Company ("Common Stock") and
providing for the grant to the Common Stock Underwriters of an option to
purchase from the Company up to 337,500 additional shares of Common Stock to
cover over-allotments, if any (together with the Common Stock, the "Shares").
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-1 (No. 333-89158) covering
the registration of the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the case may
be, that was omitted from such registration statement at the time it became
effective but that is deemed to
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be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto and schedules thereto, if any, at the time it became effective and
including the Rule 430A Information and the Rule 434 Information, as applicable,
is herein called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the
"Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The final prospectus, in the form first furnished to the Underwriters for use in
connection with the offering, of the Securities is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to the
preliminary prospectus, dated _____________, 2002, together with the Term Sheet
and all references in this Agreement to the date of the Prospectus shall mean
the date of the Term Sheet. For purposes of this Agreement, all references to
the Registration Statement, any preliminary prospectus, the Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Offerors. The Offerors
jointly and severally represent and warrant to each Underwriter as of the date
hereof, as of the Closing Time referred to in Section 2(b) hereof and agrees
with each Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time, the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act, the 1933 Act Regulations and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the rules and regulations under the Trust Indenture Act (the "Trust
Indenture Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement
was issued and at the Closing Time, included or will include an untrue
statement
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of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Offerors will comply with the requirements of Rule 434 and
the Prospectus shall not be "materially different", as such term is
used in Rule 434, from the prospectus included in the Registration
Statement at the time it became effective. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Offerors in writing by any Underwriter through ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ expressly
for use in the Registration Statement or Prospectus. With respect to
the preceding sentence, the Company acknowledges that the only
information furnished in writing by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ on behalf of the
Underwriters expressly for use in the Registration Statement or
Prospectus are the statements in the Prospectus under the caption
"Underwriting".
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T.
(ii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated Subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated Subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with United States generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and the Subsidiaries considered as one
enterprise, or in the earnings or business of the Trust, whether or not
arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the
Company or any of the
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Subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and the Subsidiaries
considered as one enterprise, (C) except for regular quarterly
dividends on the Common Stock and on the Company's Series A 9%
Noncumulative Perpetual Preferred Stock in amounts per share that are
consistent with past practice, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock, and (D) there has not occurred any other
event and there has arisen no set of circumstances required by the 1933
Act or the 1933 Act Regulations to be disclosed in the Registration
Statement or the Prospectus which has not been so set forth in the
Registration Statement or the Prospectus as fairly and accurately
summarized therein.
(v) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has full corporate power
and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and to enter into and
perform its obligations under the Operative Documents to which it is a
party and the Subordinated Debentures and the Guarantee; and the
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect. The Company is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended
(the "BHC Act").
(vi) Good Standing of Subsidiaries. The Company currently has
__ direct and indirect subsidiaries. They are listed on Schedule C
attached hereto and incorporated herein (the "Subsidiaries"). Other
than the Subsidiaries, the Company does not own or control, directly or
indirectly, more than 5% of any class of equity security of any
corporation, association or other entity. Each Subsidiary is a
corporation or banking corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation or organization, as the case may be, has the requisite
power, corporate or otherwise, and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; ▇▇▇▇ ▇▇▇▇▇▇ Bank is duly licensed in the State
of Illinois by the Illinois Commissioner of Banks and Real Estate (the
"ICBRE"); except as otherwise disclosed in the Registration Statement,
all of the issued and outstanding capital stock of each Subsidiary has
been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through a
Subsidiary, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
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(vii) Good Standing of the Trust. The Trust has been duly
created and is validly existing in good standing as a statutory trust
under the Delaware Statutory Trust Act with the power and authority to
own its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Operative Documents to which it is a party and to issue and perform its
obligations under the Preferred Securities and the Common Securities;
the Trust is not a party to or otherwise bound by any material
agreement other than those described in the Prospectus; and based on an
opinion of counsel, the Company believes the Trust is and will, under
current law, be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable as a
corporation.
(viii) Capitalization of Company. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectus under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to the Common Stock Underwriting Agreement,
and subsequent issuances or purchases pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options referred
to in the Prospectus). The shares of issued and outstanding capital
stock, including the Shares to be purchased by the Common Stock
Underwriters, have been duly authorized and validly issued and are
fully paid and non-assessable; none of the outstanding shares of
capital stock, including the Shares to be purchased by the Common Stock
Underwriters, was issued in violation of or are otherwise subject to
any preemptive or other similar rights of any securityholder of the
Company.
(ix) Authorization of Agreement. All necessary corporate
action has been duly and validly taken by each of the Offerors to
authorize the execution, delivery and performance of this Agreement.
This Agreement has been duly authorized, executed and delivered by the
Offerors and constitutes a valid and binding obligation of the
Offerors, enforceable against the Offerors in accordance with its
terms, except as the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles.
(x) Authorization of Common Securities. 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 in
accordance with the terms of the Trust Agreement and as described in
the Prospectus, will be validly issued and will represent undivided
beneficial interests in the assets of the Trust and will conform to all
statements relating thereto contained in the Prospectus; the
certificates evidencing the Common Securities are in due and proper
form under Delaware law; the issuance of the Common Securities is not
subject to preemptive or other similar rights; and at the Closing Time,
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.
(xi) Authorization of Preferred Securities. As of the Closing
Time, the Preferred Securities will have been duly authorized by the
Trust Agreement and, when issued and delivered against payment therefor
in accordance with the Trust Agreement and this
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Agreement, will be validly issued and fully paid and non-assessable
undivided beneficial interests in the assets of the Trust and will
conform to all statements relating thereto contained in the Prospectus
and the issuance of the Preferred Securities will not be subject to
preemptive or other similar rights.
(xii) Authorization of Trust Agreement. All necessary
corporate action has been duly and validly taken by the Company to
authorize the execution, delivery and performance of the Trust
Agreement. The Trust Agreement has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by
the Company and the Trustees, and assuming due authorization, execution
and delivery of the Trust Agreement by the Trustees, the Trust
Agreement will, at the Closing Time, be a valid and binding obligation
of the Offerors, enforceable against the Offerors in accordance with
its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles; and at the Closing Time, the Trust Agreement will
have been duly qualified under the Trust Indenture Act.
(xiii) Authorization of Guarantee. All necessary corporate
action has been duly and validly taken by the Company to authorize the
execution, delivery and performance of the Guarantee. The Guarantee has
been duly authorized by the Company and, at the Closing Time, the
Guarantee will have been duly executed and delivered by the Company and
will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles; and at
the Closing Time, the Guarantee will have been duly qualified under the
Trust Indenture Act.
(xiv) Authorization of Indenture. All necessary corporate
action has been duly and validly taken by the Company to authorize the
execution, delivery and performance of the Indenture. The Indenture has
been duly authorized by the Company and, at the Closing Time, will have
been duly executed and delivered by the Company and will constitute a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles; and at the
Closing Time, the Indenture will have been duly qualified under the
Trust Indenture Act.
(xv) Authorization of Subordinated Debentures. All necessary
corporate action has been duly and validly taken by the Company to
authorize the execution and delivery of the Subordinated Debentures.
The Subordinated Debentures have been duly authorized by the Company
and, at the Closing Time, will have been duly executed by the Company
and, when authenticated in the manner provided for in the Indenture and
delivered against payment therefor in accordance with the terms of the
Trust Agreement and as described in the Prospectus, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforceability
thereof may
7
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles; and the Subordinated Debentures
will be in the form contemplated by, and entitled to the benefits of,
the Indenture and will conform to all statements relating thereto
contained in the Prospectus.
(xvi) Authorization of Expense Agreement. All necessary
corporate action has been duly and validly taken by the Company to
authorize the execution, delivery and performance of the Expense
Agreement. The Expense Agreement has been duly authorized by the
Company and, at the Closing Time, will have been duly executed and
delivered by the Company and will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles.
(xvii) Authorization of Administrators. Each of the
Administrators of the Trust is an officer of the Company and has been
duly authorized by the Company to execute and deliver the Trust
Agreement.
(xviii) Description of Operative Documents. The Operative
Documents described in the Prospectus conform to all statements
relating thereto contained in the Prospectus.
(xix) Absence of Defaults and Conflicts. Neither the Trust,
the Company nor any Subsidiary is in violation of any provision of its
charter, by-laws or the Trust Agreement or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound, or to
which any of its property or assets is subject, including, without
limitation, the agreements described in paragraph (xxii) below
(collectively, the "Agreements and Instruments") except for such
defaults that have been waived or suspended as described in the
Prospectus or that would not, singly or in the aggregate, result in a
Material Adverse Effect; and the execution and delivery of the
Operative Documents by the Trustees or the Company, as the case may be,
the consummation of the transactions contemplated in the Operative
Documents, in the Common Stock Underwriting Agreement and in the
Registration Statement (including (i) the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities
as described in the Prospectus under the caption "Use of Proceeds" and
(ii) the issuance and sale of the Shares and the use of the proceeds
from the sale of the Shares as described in the prospectus relating
thereto under the caption "Use of Proceeds") and compliance by the
Offerors with the terms of the Operative Documents to which they are a
party, and compliance by the Company with its obligations under the
Common Stock Underwriting Agreement, have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) 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
8
Subsidiary pursuant to, any of the Agreements and Instruments (except
for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company or any Subsidiary or the Trust
Agreement or the certificate of trust of the Trust filed with the State
of Delaware on May 23, 2002 (the "Trust Certificate"), or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Trust, the Company or any
Subsidiary (including the rules, regulations and requirements of the
United States Federal Reserve System (the "Federal Reserve") and the
banking laws and regulations of the State of Illinois and the banking
laws and regulations of other applicable jurisdictions) or any of their
assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Trust, the
Company or any Subsidiary, provided that the Company's obligations
pursuant to the Settlement Agreements do not constitute "Repayment
Events" for purposes of this Agreement. Each of the Agreements and
Instruments is in full force and effect and is valid and enforceable by
and against the Trust, the Company or any of the Subsidiaries, as the
case may be, and, to the knowledge of the Company, the other parties
thereto, in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles.
(xx) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any Subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any Subsidiary's principal suppliers or customers, which, in either
case, may reasonably be expected to result in a Material Adverse
Effect.
(xxi) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company or the Trust, threatened, against or
affecting the Company or any Subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which, singly or in the aggregate, might reasonably be
expected to result in a Material Adverse Effect, or which, singly or in
the aggregate, might reasonably be expected to materially and adversely
affect the properties or assets thereof or which might materially and
adversely affect the consummation of the transactions contemplated in
the Operative Documents or the Common Stock Underwriting Agreement or
the performance by the Company or the Trust of its obligations
thereunder, as applicable; all pending legal or governmental
proceedings to which the Trust, the Company or any Subsidiary is a
party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
9
(xxii) Accuracy of Material Agreements; Exhibits. There is no
franchise, contract or other document of a character required to be
described in the Registration Statement or the Prospectus, or to be
filed as an exhibit to the Registration Statement, which is not
described or filed as required by the 1933 Act, the 1933 Act
Regulations, the Trust Indenture Act or the Trust Indenture Act
Regulations. Each description of a contract, document or other
agreement in the Registration Statement and the Prospectus accurately
reflects the terms of the underlying contract, document or agreement.
(xxiii) Possession of Intellectual Property. The Company and
the Subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of the Subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of the
Subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xxiv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company or
the Trust of its obligations under the Operative Documents or, with
respect to the Company, under the Common Stock Underwriting Agreement,
in connection with the offering, issuance or sale of the Securities
under the Operative Documents or of the Shares under the Common Stock
Underwriting Agreement or the consummation of the transactions
contemplated by the Operative Documents, the Common Stock Underwriting
Agreement or the Prospectus, except such as have been already obtained
or as may be required under the 1933 Act, the 1933 Act Regulations, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), the rules
and regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), Trust Indenture Act, the Trust Indenture Act Regulations
or state securities laws.
(xxv) Possession of Licenses and Permits. The Trust, the
Company and the Subsidiaries possess such certificates, authorities,
permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and
the Subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force
10
and effect, except when the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the
Company nor any of the Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xxvi) Compliance with Applicable Laws. The Trust, the Company
and the Subsidiaries have complied and are in compliance in all
material respects with all federal, state and local statutes,
regulations, ordinances and rules as now in effect and applicable to
the ownership and operation of their properties or the conduct of their
businesses as described in the Prospectus and as currently being
conducted. None of the Trust, the Company or any Subsidiary engages,
directly or indirectly, in any activity prohibited by the Federal
Reserve, the BHC Act, other federal banking or consumer protection laws
or the regulations promulgated thereunder or the banking or consumer
protection laws and regulations of the State of Illinois or the banking
or consumer protection laws and regulations of other applicable
jurisdictions. Except as described in the registration Statement and
the Prospectus, none of the Trust, the Company or any Subsidiary is
subject to a directive from the Federal Deposit Insurance Corporation
(the "FDIC"), the Federal Reserve, the ICBRE or any other governmental
authority to make any material changes in the method of conducting its
business and no such directive is pending or, to the knowledge of the
Company, threatened by such authorities. None of the Trust, the Company
or any Subsidiary is subject to any cease-and-desist order, prompt
correction action directive, civil money penalty, orders of
prohibition, consent order, written agreement, memorandum of
understanding, or other enforcement actions or supervisory agreements
issued by the Federal Reserve, the FDIC, the ICBRE or any other federal
or state bank regulatory agency to which the Trust, the Company or any
Subsidiary is subject.
(xxvii) Title to Property. The Company and the Subsidiaries
have good and marketable title to all real property owned by the
Company and the Subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectus or (b) do not,
singly or in the aggregate, materially affect the value of such
property and do not materially interfere with the use made and proposed
to be made of such property by the Company or any of the Subsidiaries;
and all of the leases and subleases material to the business of the
Company and the Subsidiaries, considered as one enterprise, and under
which the Company or any of the Subsidiaries holds properties described
in the Prospectus, are in full force and effect, and neither the
Company nor any Subsidiary has any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the
Company or any Subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company
or such Subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xxviii) Investment Company Act. Neither the Trust nor the
Company is, and upon the issuance and sale of the Securities as
contemplated herein and of the Shares as
11
contemplated in the Common Stock Underwriting Agreement and the
application of the net proceeds therefrom as described in the
Prospectus neither the Trust nor the Company will be, an "investment
company" or an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended
(the "1940 Act").
(xxix) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of the Subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and the Subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of the
Subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
the Subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xxx) Registration Rights. There are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
(xxxi) Tax Matters. The Company and each Subsidiary has filed
all material tax returns required to be filed, which returns are true
and correct in all material respects, and neither the Company nor any
Subsidiary is in default in the payment of any taxes, including
penalties and interest, assessments, fees and other charges, shown
thereon due or otherwise assessed, other than those being contested in
good faith and for which adequate reserves have been provided or those
currently payable without interest which were payable pursuant to said
returns or any assessments with respect thereto.
(xxxii) Insurance. The Company and the Subsidiaries maintain
insurance of the types and in the amounts required by rules and
regulations of the Federal Reserve, the FDIC and the ICBRE and, to the
knowledge of the Company, consistent with insurance coverage maintained
by similar companies and businesses, all of which insurance is in full
force and effect; the Company and the Subsidiaries are insured by
insurers of recognized financial
12
responsibility; all policies of insurance and fidelity or surety bonds
insuring the Company or any of the Subsidiaries or the Company's or the
Subsidiaries' respective businesses, assets, employees, officers and
directors are in full force and effect; the Company and each of the
Subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; and neither the Company nor any
Subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect. Neither
the Company nor any Subsidiary has been denied any insurance coverage which
it has sought or for which it has applied. The deposit accounts of ▇▇▇▇
▇▇▇▇▇▇ Bank are insured by the Bank Insurance Fund administered by the FDIC
up to the maximum amount provided by law; and no proceedings for the
modification, termination or revocation of any such insurance are pending
or, to the knowledge of the Company, threatened.
(xxxiii) Accounting Controls. The books, records and accounts of the
Trust, the Company and the Subsidiaries accurately and fairly reflect, in
reasonable detail, the transactions in, and dispositions of, the assets of,
and the results of operations of, the Trust, the Company and the
Subsidiaries. The Trust, the Company and the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed with management's general and specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of the Company's consolidated financial statements in
conformity with GAAP and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general and
specific authorizations; and (iv) the reported accountability of the assets
of the Trust, the Company and the Subsidiaries is compared with existing
assets at reasonable intervals and appropriate action is taken with respect
to any differences.
(xxxiv) Fees. Other than as contemplated by this Agreement and except
as disclosed in the Registration Statement, there is no broker, finder or
other party that is entitled to receive from the Trust, the Company or any
Subsidiary any brokerage or finder's fee or any other fee, commission or
payment as a result of the transactions contemplated by this Agreement.
(xxxv) No Change in Capital Adequacy. Immediately following the
consummation of the transactions contemplated by this Agreement and the
Common Stock Underwriting Agreement, the Company's applicable regulatory
ratios will be at or above the "Adequately Capitalized" level as determined
under the capital adequacy guidelines of the Federal Reserve. Immediately
following the restructuring of the Company's indebtedness pursuant to the
terms and conditions of that certain commitment letter, dated July 1, 2002,
between the Company and LaSalle Bank National Association and as described
in the Prospectus (the "Debt Restructuring"), the Company's applicable
regulatory ratios will be at or above the "Well Capitalized" level as
determined under the capital adequacy guidelines of the Federal Reserve.
13
(xxxvi) Absence of Manipulation. Neither the Company nor, to its
knowledge, any of its officers, directors or affiliates has taken, and at
the Closing Date, neither the Company nor, to its knowledge, any of its
officers, directors or affiliates will have taken, directly or indirectly,
any action which has constituted, or might reasonably be expected to
constitute, the stabilization or manipulation of the price of sale or
resale of the Securities.
(xxxvii) No Unauthorized Use Of Prospectus. The Company has not
distributed and, prior to the later to occur of (i) the Closing Time and
(ii) completion of the distribution of the Securities, will not distribute
any prospectus (as such term is defined in the 1933 Act and the 1933 Act
Regulations) in connection with the offering and sale of the Securities
other than the Registration Statement, any preliminary prospectus, the
Prospectus or other materials, if any, permitted by the 1933 Act or by the
1933 Act Regulations and approved by the Representatives.
(xxxviii) No Illegal Payments. To the knowledge of the Company,
neither the Company nor any of Subsidiary nor any employee or agent of the
Company or any Subsidiary has made any payment of funds of the Company or
any Subsidiary or received or retained any funds in violation of any law,
rule or regulation, which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectus.
(xxxix) Sales of Securities. All offers and sales of capital stock of
the Company prior to the date hereof were at all relevant times duly
registered or exempt from the registration requirements of the 1933 Act and
the 1933 Act Regulations and were duly registered or subject to an
available exemption from the registration requirements of the applicable
state securities or Blue Sky laws.
(xl) Registration and Listing. The Preferred Securities are registered
pursuant to Section 12(g) of the 1934 Act. The Preferred Securities have
been duly authorized for quotation on the Nasdaq National Market, subject
only to official notice of issuance. Neither the Trust nor the Company has
taken any action designed to, or likely to have the effect of, terminating
the registration of the Preferred Securities under the 1934 Act or
delisting the Preferred Securities from the Nasdaq National Market, nor has
the Trust or Company received any notification that the Commission or the
Nasdaq National Market is contemplating terminating such registration or
listing.
(xli) No Association with NASD. There are no affiliations with the
National Association of Securities Dealers, Inc. (the "NASD") among the
Company's officers, directors or, to the knowledge of the Company, any
stockholder of the Company, except as set forth in the Registration
Statement or otherwise disclosed in writing to the Representatives.
(xlii) Related Party Transactions. No transaction has occurred between
or among the Company and any of its officers or directors or five percent
stockholders or any affiliate or affiliates of any such officer or director
or five percent stockholders that is required to be described in and is not
described in the Registration Statement and the Prospectus.
14
(b) Officer's and Administrator's Certificates. Any certificate signed by
any officer of the Company or any of the Subsidiaries or by any Administrator of
the Trust delivered to the Representatives or to counsel for the Underwriters
pursuant to the terms of this Agreement shall be deemed a representation and
warranty by the Company or the Trust, as applicable, to each Underwriter as to
the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Purchase and Sale of Securities. On the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Trust agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Trust, at the price per Preferred Security set forth in Schedule B (the
"Purchase Price"), that number of Preferred Securities set forth in Schedule A
opposite the name of such Underwriter, plus any additional number of Preferred
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof, subject, in each case, to such adjustments
among the Underwriters as the Representatives in their sole discretion shall
make to eliminate any sales or purchases of fractional securities. As
compensation to the Underwriters for their commitments hereunder, and in
consideration of the fact that the proceeds of the sale of the Preferred
Securities will be used by the Trust to purchase the Subordinated Debentures of
the Company, the Company hereby agrees to pay to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, for the
accounts of the several Underwriters, the commission per preferred security set
forth in Schedule B (the "Underwriters' Commission").
(b) Payment. Payment of the Purchase Price and the Underwriters' Commission
and delivery of certificates for the Preferred Securities shall be made at the
offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois), ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon
by the Representatives and the Company, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representatives and the Company
(such time and date of payment and delivery being herein called "Closing Time").
It is understood and agreed that the Closing Time shall occur simultaneously
with the "Closing Time" under the Common Stock Underwriting Agreement.
Payment of the Purchase Price shall be made to the Trust by wire transfer
of immediately available funds to a bank account designated by the Trust,
against delivery to the Representatives for the respective accounts of the
Underwriters of certificates for the Preferred Securities to be purchased by
them. It is understood that each Underwriter has authorized the Representatives,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Preferred Securities which it has agreed to purchase.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Preferred Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
15
Payment of the Underwriters' Commission shall be made to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
for the accounts of the several Underwriters, by wire transfer of immediately
available funds to the bank account designated by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
(c) Denominations; Registration. The Preferred Securities shall be
represented by a global certificate issued in the name of Cede & Co., as nominee
for DTC and such global certificate shall be available for examination no later
than 10:00 A.M. (Eastern Time) on the business day prior to the Closing Time.
SECTION 3. Covenants of the Offerors. The Offerors covenant with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Offerors, subject to Section 3(b), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Representatives
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission, (iii) of any request by
the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Offerors will use
their best efforts to cause the Registration Statement, if not effective at the
time of execution of this Agreement, and any amendments thereto, to become
effective as promptly as possible. The Offerors will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as shall be necessary
to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the event
that it was not, they will promptly file such prospectus. The Offerors will make
every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Offerors will give the Representatives notice
of their intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment, supplement
or revision to either the prospectus included in the Registration Statement at
the time it became effective or to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, will furnish the Representatives with copies of
any such documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Offerors have furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed
16
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters pursuant to this Section 3(c) will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Offerors have delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Offerors hereby consent to the
use of such copies for purposes permitted by the 1933 Act. The Offerors will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters pursuant to this Section 3(d)
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(e) Continued Compliance with Securities Laws. The Offerors will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Offerors will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Offerors will use their best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Offerors shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the
17
Offerors will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Registration Statement and any
Rule 462(b) Registration Statement.
(g) Rule 158. The Offerors will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Trust and the Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) Listing. The Offerors will use their best efforts to effect and
maintain the quotation of the Preferred Securities on the Nasdaq National Market
and will file with the Nasdaq National Market all documents and notices required
by the Nasdaq National Market of companies that have securities that are traded
in the over-the-counter market and quotations for which are reported by the
Nasdaq National Market.
(j) Restriction on Sale of Securities. During a period of 180 days from the
date of the Prospectus, the Company will not, without the prior written consent
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (i) directly or indirectly, offer, sell, offer to sell,
contract to sell, pledge, grant any option to purchase or otherwise sell or
dispose (or announce any offer, sale, offer of sale, contract of sale, pledge,
grant of any option to purchase or other sale or disposition) of any securities
that are substantially similar to the Preferred Securities, or any security
convertible into, or exchangeable or exercisable for, Preferred Securities or
securities substantially similar thereto, (ii) file any registration statement
under the 1933 Act with respect to any of the foregoing or (iii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Preferred Securities or any security substantially similar to the Preferred
Securities, whether any such swap or transaction is to be settled by delivery of
Preferred Securities or securities substantially similar thereto, in cash or
other otherwise. The foregoing sentence shall not apply to the Securities to be
sold hereunder.
(k) Reporting Requirements. The Offerors, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(l) Financial Statements. Prior to the Closing Time, the Company shall
furnish to the Underwriters as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the Company and the
Subsidiaries, for any periods subsequent to the periods covered by the financial
statements appearing in the Registration Statement and the Prospectus.
(m) Debt Restructuring. The Company shall use all commercially reasonable
efforts to consummate the Debt Restructuring as soon as practicable following
the Closing Time.
18
(n) DTC Eligibility. The Offerors will cooperate with the Underwriters and
use their best efforts to permit the Preferred Securities to be eligible for
clearance and settlement through the facilities of DTC.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses
incident to the performance of the Offerors obligations under the Operative
Documents, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of the Operative Documents, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Preferred Securities,
(iii) the preparation, issuance and delivery of the certificates for the
Preferred Securities to the Underwriters, including any transfer taxes and any
stamp or other duties payable upon the sale, issuance or delivery of the
Preferred Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the qualification of the
Preferred Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheet and of the Prospectus and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii)
the fees and expenses of the Trustees and any transfer agent or registrar for
the Preferred Securities, (ix) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the
review by the NASD of the terms of the sale of the Preferred Securities, (x) the
fees and expenses incurred in connection with the inclusion of the Preferred
Securities in the Nasdaq National Market, (xi) the costs and expenses relating
to investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Preferred Securities, including, without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such
consultant and. (xii) other fees and expenses of counsel to the Underwriters
incurred in connection with the transactions contemplated by the Operative
Agreements and the Common Stock Underwriting Agreement in an amount not to
exceed $75,000.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
(c) Allocation of Expenses. The provisions of this Section shall not affect
any agreement that the Company may make for the sharing of such costs and
expenses.
19
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
or an Administrator of the Trust delivered pursuant to the provisions hereof, to
the performance by the Offerors of their covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Offerors. At Closing Time, the Representatives
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect set forth
in Exhibit A hereto and to such further effect as counsel to the Underwriters
may reasonably request.
(c) Opinion of Special Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, special counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit B hereto and to such further effect as counsel to
the Underwriters may reasonably request.
(d) Opinion of Special Delaware Counsel for Offerors. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the
Offerors, in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit C hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(e) Opinion of Special Tax Counsel for Offerors. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, special tax counsel for the Offerors, in
form and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters to
the effect set forth in Exhibit D hereto and to such further effect as counsel
to the Underwriters may reasonably request.
20
(f) Opinion of Counsel for LaSalle Bank National Association. At Closing
Time, the Representatives shall have received the favorable opinion, dated as of
Closing Time, of _____________, counsel for LaSalle Bank National Association,
as Indenture Trustee under the Indenture, as Guarantee Trustee under the
Guarantee and as Property Trustee under the Trust Agreement, in form and
substance satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit E hereto and to such further effect as counsel to
the Underwriters may reasonably request.
(g) Opinion of Counsel for Wilmington Trust Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of _____________, counsel for Wilmington Trust Company, as Delaware
Trustee under the Trust Agreement, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters to the effect set forth in Exhibit F hereto
and to such further effect as counsel to the Underwriters may reasonably
request.
(h) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois), counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters in form and substance satisfactory to the
Underwriters.
(i) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Trust or the Company and the Subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, and the Representatives shall
have received a certificate of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the Company and a
certificate of an Administrator of the Trust, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time,
(iii) the Offerors have complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to Closing Time,
and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(j) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from KPMG LLP a letter, dated
such date, in form and substance satisfactory to the Representatives, together
with signed or reproduced copies of such letter for each of the other
Underwriters containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
consolidated financial statements and certain financial information contained in
the Registration Statement and the Prospectus.
(k) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from KPMG LLP a letter, dated as of Closing Time, to the effect
that they reaffirm the
21
statements made in the letter furnished pursuant to subsection (j) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
(l) Approval of Listing. At Closing Time, the Preferred Securities shall
have been approved for inclusion in the Nasdaq National Market, subject only to
official notice of issuance.
(m) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(n) Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Preferred Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Offerors in connection with the issuance and sale of the Preferred
Securities as herein contemplated shall be reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(o) Closing of Common Stock Offering. The closing of the purchase of the
Shares to be issued and sold by the Company pursuant to the Common Stock
Underwriting Agreement shall occur concurrently with the closing of the purchase
of the Securities to be issued and sold pursuant to the Operative Documents.
(p) Termination of Agreement. If any condition specified in this
Section or any condition specified in the Common Stock Underwriting Agreement
shall not have been fulfilled when and as provided in this Agreement and the
Common Stock Underwriting Agreement, as the case may be, this Agreement may be
terminated by the Representatives by notice to the Company at any time at or
prior to Closing Time and such termination shall be without liability of any
party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
22
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that the foregoing indemnity agreement (i) shall not apply to
any loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); and (ii)
with respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any loss, liability, claim, damage or
expense purchased Preferred Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
liabilities, claims, damages or expenses, unless such failure is the result of
noncompliance by the Company with Section 3(d) hereof. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Indemnification of Company, Directors, Officers, Trust and
Administrators. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, the Trust and each of its Administrators who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ expressly
23
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and the Underwriters on the other hand from the offering of the Preferred
Securities pursuant to this Agreement or (ii) if the allocation
24
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Offerors on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand in connection with the offering of the Preferred
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the Preferred Securities as set forth on such cover.
The relative fault of the Offerors on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Offerors or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall 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 damages which
such Underwriter has otherwise been required to pay by reason of any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, each Administrator of the Trust who signed the
Registration
25
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Underwriters' respective obligations
to contribute pursuant to this Section 7 are several in proportion to the number
of Preferred Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of the Subsidiaries or in
certificates of Administrators of the Trust submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or controlling person, or by or on
behalf of the Company or the Trust, and shall survive delivery of the Preferred
Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Trust or the Company and the Subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the reasonable judgment of the
Representatives, impracticable to market the Preferred Securities or to enforce
contracts for the sale of the Preferred Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the Nasdaq National Market, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the NASD
or any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal, New York or Illinois authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time to purchase the Preferred Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the
26
Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number
of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either (i) the Representatives or (ii) the Company shall have
the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Default by the Trust. If the Trust shall fail at Closing Time
to sell the number of Securities that it is obligated to sell hereunder, then
this Agreement shall terminate without any liability on the part of any
nondefaulting Underwriter; provided, however, that the provisions of Sections 1,
4, 6, 7 and 8 shall remain in full force and effect. No action taken pursuant to
this Section shall relieve the Trust or the Company from liability, if any, in
respect of such default.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at c/o Keefe, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention
of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.; notices to the Company or the Trust shall be
directed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of Mr. J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
SECTION 13. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Company and the Trust and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Trust and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
the Trust and their respective successors, and said controlling persons and
officers and directors and
27
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Preferred Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Company and the Trust in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇ CAPITAL GROUP, INC.
By
--------------------------------
Name:
-----------------------------
Title:
----------------------------
TAYC Capital Trust I
By: ▇▇▇▇▇▇ Capital Group, Inc.,
as depositor
By
--------------------------------
Name:
-----------------------------
Title:
----------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
By:
-----------------------------------------
Name:
---------------------------------------
28
Title:
-------------------------------------
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
29
SCHEDULE A
Number of
Name of Underwriter Preferred
Securities
----------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.............................
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated................
-----------
Total...................................................
===========
Sch A-1
SCHEDULE B
TAYC CAPITAL TRUST I
1,600,000 __% Cumulative Trust Preferred Securities
($25 Liquidation Amount per Preferred Security)
1. The initial public offering price per Preferred Security, determined as
provided in said Section 2, shall be $25.00.
2. The purchase price per Preferred Security to be paid by the several
Underwriters shall be $25.00.
3. The commission per Preferred Security to be paid to the several
Underwriters by the Company shall be $ .
Sch B-1
SCHEDULE C
LIST OF SUBSIDIARIES
Sch C-1
Exhibit A
FORM OF OPINION OF OFFERORS' COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware. Other than
the subsidiaries set forth on Schedule C to the Underwriting Agreement (each, a
"subsidiary" and collectively, the "Subsidiaries"), the Company does not own or
control, directly or indirectly, more than 5% of any class of equity security of
any corporation, association or other entity.
(ii) The Company has full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Operative
Documents to which it is a party and the Subordinated Debentures and the
Guarantee.
(iii) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction listed on Schedule C to
the Underwriting Agreement.
(iv) The Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the "BHC Act"). ▇▇▇▇ ▇▇▇▇▇▇ Bank
is duly licensed in the State of Illinois by the Illinois Commissioner of Banks
and Real Estate (the "ICBRE").
(v) The authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectus under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to the Common Stock Underwriting
Agreement and subsequent issuances and purchases pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectus or pursuant
to the exercise of convertible securities or options referred to in the
Prospectus). The shares of issued and outstanding capital stock, including the
Shares to be purchased by the Common Stock Underwriters, have been duly
authorized and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock, including the Shares to be purchased by the
Common Stock Underwriters, was issued in violation of or are otherwise subject
to any preemptive or other similar rights of any securityholder of the Company.
(vi) Each Subsidiary is a corporation or banking corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, as the case may be, has the
requisite power, corporate or otherwise, and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction Schedule C to the Underwriting Agreement; except
as otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
validly
A-1
issued, is fully paid and non-assessable and, to the best of our knowledge, is
owned by the Company, directly or through a Subsidiary, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
Subsidiary.
(vii) All necessary corporate action has been duly and validly taken by the
Company to authorize the execution, delivery and performance of the Underwriting
Agreement. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
the enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles and except as to
those provisions relating to indemnities for liabilities arising under the 1933
Act as to which no opinion need be expressed.
(viii) All necessary corporate action has been duly and validly taken by
the Company to authorize the execution, delivery and performance of the Trust
Agreement. The Trust Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles. Each of the Administrators of the
Trust is an officer of the Company and has been duly authorized by the Company
to execute and deliver the Trust Agreement.
(ix) All necessary corporate action has been duly and validly taken by the
Company to authorize the execution, delivery and performance of the Guarantee.
The Guarantee has been duly authorized, executed and delivered by the Company
and constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as the enforceability
hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles. The Guarantee has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(x) All necessary corporate action has been duly and validly taken by the
Company to authorize the execution, delivery and performance of the Indenture.
The Indenture has been duly authorized, executed and delivered by the Company
and constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as the enforceability
hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles. The Indenture has been duly qualified under the
Trust Indenture Act.
(xi) The Subordinated Debentures have been duly authorized and executed by
the Company and, when authenticated in the manner provided for in the Indenture
and delivered against payment therefor in accordance with the terms of the Trust
Agreement and as described in the Prospectus, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of
A-2
creditors' rights generally and by general equitable principles; and the
Subordinated Debentures are in the form contemplated by, and entitled to the
benefits of, the Indenture and conform to all statements relating thereto
contained in the Prospectus.
(xii) All necessary corporate action has been duly and validly taken by the
Company to authorize the execution, delivery and performance of Expense
Agreement. The Expense Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(xiii) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to the best of our knowledge, no
stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
(xiv) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information, the Rule 434 Information, as applicable,
the Prospectus, excluding the documents incorporated by reference therein, and
each amendment or supplement to the Registration Statement and Prospectus,
excluding the documents incorporated by reference therein, as of their
respective effective or issue dates (other than the financial statements and
supporting schedules and other statistical and operating data included therein
or omitted therefrom, as to which we need express no opinion) complied as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
(xv) The form of certificate used to evidence the Preferred Securities
complies with the requirements of the Nasdaq National Market.
(xvi) To the best of our knowledge and other than as described in the
Prospectus, there is not pending or threatened any action, suit, proceeding,
inquiry or investigation, to which the Trust, the Company or any Subsidiary is a
party, or to which the property of the Company or any Subsidiary is subject,
before or brought by any court or governmental agency or body, domestic or
foreign, which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated in the Operative Documents or the Common Stock Underwriting
Agreement or the performance by the Company or the Trust of its obligations
thereunder, as applicable.
(xvii) The information in the Prospectus under "Description of the Trust
Preferred Securities," "Description of the Debentures," "Description of the
Guarantee," "Supervision and Regulation," "Management," "Material United States
Federal Income Tax Consequences" and "Certain Relationships and Related
Transactions" and in the Registration Statement under Item 15, to the extent
that it constitutes matters of law, summaries of legal matters, the Company's
charter and
A-3
bylaws, legal proceedings or legal conclusions, has been reviewed by us and is
complete and correct in all material respects and accurately presents the
information called for with respect to such information.
(xviii) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(xix) All descriptions in the Registration Statement of contracts and other
documents to which the Company or the Subsidiaries are a party are accurate in
all material respects; there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to therein or filed as
exhibits thereto, and the descriptions thereof or references thereto are correct
in all material respects.
(xx) To the best of our knowledge, neither the Company nor any Subsidiary
is in violation of any provision of its charter or by-laws and, except as
described in the Prospectus, none of the Trust, the Company or any Subsidiary is
in default in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument that is described
or referred to in the Registration Statement or the Prospectus or filed or
incorporated by reference as an exhibit to the Registration Statement and each
such agreement or instrument is in full force and effect and is valid and
enforceable by and against the Trust, the Company or any of the Subsidiaries, as
the case may be, and, to the best of our knowledge, the other parties thereto,
in accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles.
(vii) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign (other than under the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the 1934 Act Regulations, the Trust Indenture Act and
the Trust Indenture Act Regulations, which have been obtained, or as may be
required under the securities or blue sky laws of the various states, as to
which we need express no opinion) is necessary or required in connection with
the due authorization, execution and delivery of the Operative Documents or the
Common Stock Underwriting Agreement or for the offering, issuance, sale or
delivery of the Securities or the Shares.
(xxii) The execution, delivery and performance of the Operative Documents
and the consummation of the transactions contemplated in the Operative
Documents, in the Common Stock Underwriting Agreement and in the Registration
Statement (including (i) the issuance and sale of the Securities and the use of
the proceeds from the sale of the Securities as described in the Prospectus
under the caption "Use of Proceeds" and (ii) the issuance and sale of the Shares
and the use of the proceeds from the sale of the Shares as described in the
prospectus relating thereto under the caption "Use of Proceeds") and compliance
by the Offerors with the terms of the Operative Documents to which they are a
party, and compliance by the Company with its obligations under the Common Stock
Underwriting Agreement, do not and will not, whether with or without the giving
of notice or lapse of time or both, conflict with or constitute a breach of, or
default or Repayment
A-4
Event (as defined in Section 1(a)(x) of the Underwriting Agreement) 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 Subsidiary pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to us, to which the Trust, the
Company or any Subsidiary is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Trust, the Company or any
Subsidiary is subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a Material Adverse Effect), nor will
such action result in any violation of the provisions of the charter or by-laws
of the Company or any Subsidiary, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Trust, the Company or any Subsidiary (including the rules, regulations
and requirements of the United States Federal Reserve System (the "Federal
Reserve") and the banking laws and regulations of the State of Illinois and the
banking laws and regulations of other applicable jurisdictions) or any of their
respective properties, assets or operations.
(xxiii) To the best of our knowledge, the Trust, the Company and the
Subsidiaries have complied and are in compliance in all material respects with
all federal, state and local statutes, regulations, ordinances and rules as now
in effect and applicable to the ownership and operation of their properties or
the conduct of their businesses as described in the Prospectus and as currently
being conducted except where the failure so to comply would not, singly or in
the aggregate, have a Material Adverse Effect. To the best of our knowledge,
none of the Trust, the Company or any Subsidiary engages, directly or
indirectly, in any activity prohibited by the Federal Reserve, the BHC Act,
other federal banking or consumer protection laws or the regulations promulgated
thereunder or the banking or consumer protection laws and regulations of the
State of Illinois or the banking or consumer protection laws and regulations of
other applicable jurisdictions, which would result in a Material Adverse Effect.
(xxiv) To the best of our knowledge, and other than as described in the
Prospectus, none of the Trust, the Company or any Subsidiary is subject to a
directive from the Federal Deposit Insurance Corporation (the "FDIC"), the
Federal Reserve, the ICBRE or any other governmental authority to make any
material changes in the method of conducting its business and no such directive
is pending or threatened by such authorities. To the best of our knowledge, none
of the Trust, the Company or any Subsidiary is subject to any cease-and-desist
order, prompt correction action directive, civil money penalty, orders of
prohibition, consent order, written agreement, memorandum of understanding, or
other enforcement actions or supervisory agreements issued by the Federal
Reserve, the FDIC, the ICBRE or any other federal or state bank regulatory
agency to which the Trust, the Company or any Subsidiary is subject.
(xxv) Neither of the Offerors is an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
(xxvi) All offers and sales of capital stock of the Company prior to the
date hereof were at all relevant times duly registered or exempt from the
registration requirements of the Securities Act and were duly registered or
subject to an available exemption from the registration requirements of the
applicable state securities or Blue Sky laws.
A-5
(xxvii) To the best of our knowledge, no holder of any security of the
Company has the right to have any security owned by such holder included in the
Registration Statement or to demand registration of any security owned by such
holder during the period ending 180 days after the date of this Agreement, which
rights have not been waived.
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (except for financial statements and
schedules and other financial data included or incorporated by reference therein
or omitted therefrom, as to which we need make no statement), at the time such
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which we need make
no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The Preferred
Securities have been approved for listing on the Nasdaq National Market.
Wherever we indicate that our opinion with respect to the existence or
absence of facts is, to the best of our knowledge, our opinion is based solely
on the knowledge, after reasonable investigation, of the attorneys in this firm
who have been involved in representing the Company.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). Nothing contained in the preceding sentence
shall prevent counsel from making assumptions and qualifications which are
customary in transactions of this type.
A-6
Exhibit B
FORM OF OPINION OF COMPANY'S SPECIAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The description of the legal proceedings arising out of the split-off
transactions, and the effect of the settlement thereof (the "Split-Off Legal
Proceedings"), each as included in the Prospectus under the heading "Litigation
and Settlement," complies in all material respects with Item 103 of Regulation
S-K.
(ii) Each of the settlement agreements and amendments described in the
Prospectus under the heading "Litigation and Settlement" (the "Settlement
Agreements") have been duly authorized, executed and delivered by the Company
and is in full force and effect and is valid and enforceable against the Company
and, to our knowledge, against the other parties thereto, in accordance with its
terms, except as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles.
In the course of our representation of the Company in respect of the
Split-Off Legal Proceedings and the negotiation and execution of the Settlement
Agreements, nothing has come to our attention that causes us to believe that,
the description of the Split-Off Legal Proceedings and the Settlement Agreements
included in the Registration Statement or any amendment thereto under the
heading "Litigation and Settlement," at the time such Registration Statement or
any such amendment became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements constituting such description not misleading or
that, the description of the Split-Off Legal Proceedings and the Settlement
Agreements included in the Prospectus or any amendment or supplement thereto
under the heading "Litigation and Settlement" at the time the Prospectus was
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements constituting such description, in the light of the circumstances
under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
B-1
Exhibit C
FORM OF OPINION OF COMPANY'S SPECIAL DELAWARE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)
(i) The Trust has been duly created and is validly existing in good
standing as a statutory trust under the Delaware Statutory Trust Act, and all
filings required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a statutory trust have been made.
(ii) Under the Delaware Statutory Trust Act and the Trust Agreement, the
Trust has the trust power and authority to own its property and to conduct its
business as described in the Prospectus.
(iii) The Trust Agreement constitutes a legal, valid and binding obligation
of the Trust and the Administrators, and is enforceable against Trust and the
Administrators, and, to the best of our knowledge, the other parties thereto, in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles.
(iv) Under the Delaware Statutory Trust Act and the Trust Agreement, the
Trust has the trust power and authority to (a) execute and deliver, and perform
its obligations under, the Operative Documents to which it is a party and (b)
issue and perform its obligations under the Preferred Securities and the Common
Securities.
(v) Under the Delaware Statutory Trust Act and the Trust Agreement, the
execution and delivery by the Trust of the Operative Documents to which it is a
party, and the performance by the Trust of its obligations thereunder, have been
duly authorized by all necessary action on the part of the Trust.
(vi) The Preferred Securities have been duly authorized by the Trust
Agreement and, when duly issued, executed and authenticated in accordance with
the Trust Agreement and delivered and paid for in accordance with the
Underwriting Agreement, will be, subject to the qualifications set forth in
paragraph (viii) below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust and will entitle holders of the Preferred
Securities to the benefits of the Trust Agreement. The issuance of the Preferred
Securities is not subject to preemptive rights under the Delaware Statutory
Trust Act or the Trust Agreement.
(vii) The Common Securities have been duly authorized by the Trust
Agreement and, when issued, executed and authenticated in accordance with the
Trust Agreement and delivered and paid for in accordance with the Trust
Agreement, will be validly issued undivided beneficial interests in the assets
of the Trust. The issuance of the Common Securities is not subject to preemptive
rights under the Delaware Statutory Trust Act or the Trust Agreement.
C-1
(viii) The holders of the Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the Delaware General Corporation Law.
Such counsel may note that the holders of the Preferred Securities may be
obligated, pursuant to the Trust Agreement, to (a) provide indemnity and/or
security in connection with, and pay taxes or governmental charges arising from,
transfers or exchanges of Preferred Securities and the issuance of replacement
Preferred Securities Certificates and (b) provide security or indemnity in
connection with requests of or directions to the Property Trustee to exercise
its rights and powers under the Trust Agreement.
(ix) No authorization, approval, consent or order of any Delaware court or
any Delaware governmental authority or Delaware agency is required to be
obtained by the Trust solely in connection with the execution, delivery or
performance by the Trust of the Operative Documents, or the consummation by the
Trust of the transactions contemplated thereby or the issuance and sale of the
Preferred Securities.
(x) None of the execution and delivery by the Trust of the Operative
Documents, or the issuance and sale of the Preferred Securities by the Trust in
accordance with the terms of the Operative Documents and as contemplated by the
Registration Statement (including the issuance and sale of the Preferred
Securities and Common Securities and the use of the proceeds therefrom as
described in the Prospectus under "Use of Proceeds" and compliance by the Trust
with its obligations under the Underwriting Agreement) or the consummation by
the Trust of the other transactions contemplated thereby, (a) violate any
applicable Delaware laws, or (b) conflict with the Certificate of Trust or the
Trust Agreement.
(xi) Such counsel has reviewed the statements in the Registration Statement
under Item 15 as they relate to the Trust and to the extent that such statements
purport to summarize certain provisions of Delaware law, the Certificate of
Trust or the Trust Agreement, such statements are complete and correct in all
material respects and accurately present the information called for with respect
to such information.
C-2
Exhibit D
FORM OF OPINION OF COMPANY'S SPECIAL TAX COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(e)
D-1
Exhibit E
FORM OF OPINION OF COUNSEL FOR THE INDENTURE TRUSTEE,
GUARANTEE TRUSTEE AND PROPERTY TRUSTEE
TO BE DELIVERED PURSUANT TO SECTION 5(f)
(i) LaSalle Bank National Association is duly incorporated and is validly
existing as a national banking association with trust powers under the laws of
United States.
(ii) The Indenture Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture and has taken
all necessary action to authorize the execution, delivery and performance by it
of the Indenture.
(iii) The Guarantee Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Guarantee, and has taken
all necessary action to authorize the execution, delivery and performance by it
of the Guarantee.
(iv) The Property Trustee has the requisite power and authority to execute
and deliver and perform its obligations under the Trust Agreement, and has taken
all necessary action to authorize the execution, delivery and performance by it
of the Trust Agreement.
(v) Each of the Indenture, the Guarantee and Trust Agreement has been duly
executed and delivered by the Indenture Trustee, the Guarantee Trustee and the
Property Trustee, respectively, and constitutes a legal, valid and binding
obligation of the Indenture Trustee, the Guarantee Trustee and the Property
Trustee, respectively, enforceable against the Indenture Trustee, the Guarantee
Trustee and the Property Trustee, respectively, in accordance with its terms,
except as enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(vi) No consent, approval or authorization of, or registration with or
notice to, any state or federal trust or banking authority is required for the
execution, delivery and performance of the Indenture by the Indenture Trustee,
of the Guarantee by the Guarantee Trustee or of the Trust Agreement by the
Property Trustee.
(vii) The Subordinated Debentures delivered on the date hereof have been
duly authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
E-1
Exhibit F
FORM OF OPINION OF COUNSEL FOR THE DELAWARE TRUSTEE
TO BE DELIVERED PURSUANT TO
SECTION 5(g)
(i) Wilmington Trust Company is a Delaware banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
the State of Delaware with all necessary power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, the
Trust Agreement.
(ii) The execution, delivery and performance by the Delaware Trustee of the
Trust Agreement has been duly authorized by all necessary corporate action on
the part of the Delaware Trustee. The Trust Agreement has been duly executed and
delivered by the Delaware Trustee and constitutes the legal, valid and binding
obligations of the Delaware Trustee, enforceable against the Delaware Trustee in
accordance with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles.
(iii) No consent, approval or authorization of, or registration with or
notice to, any banking or trust authority of the State of Delaware or federal
banking authority is required for the execution, delivery or performance by the
Delaware Trustee of the Trust Agreement.
F-1
Annex A
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(j)]
We are independent certified public accountants with respect to the Company
within the meaning of the 1933 Act and the applicable published 1933 Act
Regulations:
(i) in our opinion, the audited financial statements and the related
financial statement schedules included in the Registration Statement and the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the published 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in accordance with
generally accepted auditing standards) consisting of a reading of the unaudited
interim consolidated financial statements of the Company for the three month
periods ended March 31, 2002 and March 31, 2001 and the three and six month
periods ended June 30, 2002 and 2001 included in the Registration Statement and
the Prospectus (collectively, the "Interim Financials"), a reading of the
minutes of all meetings of the stockholders and directors of the Company and its
subsidiaries since December 31, 2001, inquiries of certain officials of the
Company and its subsidiaries responsible for financial and accounting matters, a
review of interim financial information in accordance with standards established
by the American Institute of Certified Public Accountants in Statement on
Auditing Standards No. 71, Interim Financial Information ("SAS 71"), with
respect to the three month periods ended March 31, 2002 and March 31, 2001 and
the three and six month periods ended June 30, 2002 and 2001 and such other
inquiries and procedures as may be specified in such letter, nothing came to our
attention that caused us to believe that:
(A) at a specified date not more than five days prior to the date of
this Agreement, there was any increases in the current liabilities and the
long-term liabilities of the Company and its subsidiaries or any decreases
in net assets or working capital or the stockholders' equity in the Company
and its subsidiaries, in each case as compared with amounts shown in the
latest balance sheet included in the Registration Statement, except in each
case for changes, decreases or increases that the Registration Statement
discloses have occurred or may occur; or
(B) for the period from March 31, 2002 to June 30, 2002 and for the
period from March 31, 2002 to a specified date not more than five days
prior to the date of this Agreement, there was any decrease in net interest
income or in the total or per share amounts of net income, in each case as
compared with the comparable period in the preceding year, except in each
case for any decreases that the Registration Statement discloses have
occurred or may occur;
(iii) Based upon the procedures set forth in clause (ii) above and a
reading of the Selected Financial Data included in the Registration Statement
and a reading of the financial statements from which such data were derived,
nothing came to our attention that caused us to believe that the Selected
Financial Data included in the Registration Statement do not comply as to form
in all
Annex A-1
material respects with the disclosure requirements of Item 301 of Regulation S-K
of the 1933 Act, that the amounts included in the Selected Financial Data are
not in agreement with the corresponding amounts in the audited consolidated
financial statements for the respective periods or that the financial statements
not included in the Registration Statement from which certain of such data were
derived are not in conformity with generally accepted accounting principles;
(iv) we have compared the information in the Registration Statement under
selected captions with the disclosure requirements of Regulation S-K of the 1933
Act and on the basis of limited procedures specified herein. Nothing came to our
attention that caused us to believe that this information does not comply as to
form in all material respects with the disclosure requirements of Items 302, 402
and 503(d), respectively, of Regulation S-K; and
(v) in addition to the procedures referred to in clause (ii) above, we have
performed other procedures, not constituting an audit, with respect to certain
amounts, percentages, numerical data and financial information appearing in the
Registration Statement, which are specified herein, and have compared certain of
such items with, and have found such items to be in agreement with, the
accounting and financial records of the Company.
Annex A-2
