EXHIBIT 1.1
ABC BANCORP
AND
ABC BANCORP CAPITAL TRUST I
3,000,000 PREFERRED SECURITIES*
Plus up to 450,000 additional shares to cover over-allotments, if any.
UNDERWRITING AGREEMENT
November 5, 2001
STERNE, AGEE & ▇▇▇▇▇, INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY, INC.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
ABC Bancorp Capital Trust I (the "Trust"), a Delaware business trust under
the Delaware Business Trust Act (the "Delaware Act"), and ABC Bancorp, a Georgia
corporation (the "Company" and, together with the Trust, the "Offerors"),
confirm their agreement with you (the "Underwriters") to issue and sell to the
Underwriters an aggregate of 3,000,000 shares (the "Underwritten Preferred
Securities") of the Trust's 9% Cumulative Trust Preferred Securities along with
the accompanying guarantees. The Underwritten Preferred Securities are more
fully described in the Registration Statement and the Prospectus hereinafter
mentioned.
For the sole purpose of covering over-allotments in connection with the
sale of the Underwritten Preferred Securities, the Trust proposes to grant to
the Underwriters the option (the "Option"), as described in Section 2 hereof, to
purchase all or any part of 450,000 additional shares of 9% Cumulative Trust
Preferred Securities along with the accompanying guarantees (the "Option
Preferred Securities"). The Underwritten Preferred Securities and the Option
Preferred Securities purchased pursuant to this Underwriting Agreement are
herein called the "Preferred Securities", and the proposed offering of the
Preferred Securities by the Underwriters is hereinafter referred to as the
"Public Offering."
The Preferred Securities will be guaranteed by the Company with respect to
distributions and amounts payable upon liquidation or redemption pursuant to the
terms and conditions set forth in the Preferred Securities Guarantee Agreement
(the "Guarantee") to be dated as of Closing Date (as defined below) executed and
delivered by the Company and Wilmington Trust Company (the "Guarantee Trustee").
The Company and the Trust each understand that the
______________
* Plus up to 450,000 additional shares to cover over-allotments, if any.
Underwriters propose to make a public offering of the Preferred Securities as
soon as they deem advisable after this Underwriting Agreement has been executed
and delivered, and the Trust Agreement (as defined in this Underwriting
Agreement), the Indenture (as defined in this Underwriting Agreement), and the
Guarantee have been qualified under the Trust Indenture Act. 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") and will be used by the Trust to purchase 9% Subordinated
Debentures (the "Debentures") issued by the Company of equal liquidation value.
The Preferred Securities and the Common Securities will be issued pursuant to
the Trust Agreement, to be dated as of the Closing Date (the "Trust Agreement"),
among the Company, as Sponsor, Wilmington Trust Company, as property trustee
(the "Property Trustee"), and the identified administrative trustees (the
"Administrative Trustees" and, together with the Property Trustee, the
"Trustees"), and the holders from time to time of undivided beneficial interests
in the assets of the Trust. The Debentures will be issued pursuant to a
subordinated indenture, to be dated as of Closing Date (the "Indenture"),
between the Company and Wilmington Trust Company, as debenture trustee (the
"Debenture Trustee").
The Preferred Securities, the Guarantee and the Debentures are collectively
referred to in this Underwriting Agreement as the "Securities." The Indenture,
the Trust Agreement and this Underwriting Agreement are collectively referred to
in this Underwriting Agreement as the "Operative Documents."
The Offerors have filed with the Securities and Exchange Commission (the
"Commission"), pursuant to the Securities Act of 1933, as amended (the "Act"),
published rules and regulations adopted by the Commission under the Act (the
"Rules") and the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder (the "Trust Indenture Act"), a registration statement on
Form S-3 ("Form S-3") (File No. 333-69140), including a preliminary prospectus,
relating to the Preferred Securities, and such amendments to such registration
statement as may have been filed with the Commission to the date of this
Underwriting Agreement. The term "preliminary prospectus" means any preliminary
prospectus (as referred to in Rule 430 or Rule 430A of the Rules) included at
any time as a part of the registration statement. The Offerors have furnished
to the Underwriters copies of such registration statement, each amendment to it
filed with the Commission and each preliminary prospectus filed by the Offerors
with the Commission and any other offering materials used by the Offerors. If
such registration statement has not become effective, a further amendment (the
"Final Amendment") to such registration statement, including a form of final
prospectus, if necessary to permit such registration statement to become
effective, will promptly be filed by the Offerors with the Commission. If such
registration statement has become effective, a final prospectus (the "Rule 430A
Prospectus") containing information permitted to be omitted at the time of
effectiveness by Rule 430A will promptly be filed by the Offerors with the
Commission in accordance with the Rules. The registration statement as amended
at the time it becomes or became effective (the "Effective Date"), including
financial statements and all exhibits and any information deemed to be included
by Rule 430A, is called the "Registration Statement." The term "Prospectus"
means the prospectus as first filed with the Commission pursuant to Rule 424(b)
of the Rules, or if no such filing is required, the form of final prospectus
included in the Registration Statement at the Effective Date.
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Any reference herein to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein on or before the Effective Date or
the date of such preliminary prospectus or the Prospectus, as the case may be.
You have advised the Offerors that (a) you are authorized to enter into
this Underwriting Agreement and (b) the Underwriters are willing, acting
severally and not jointly, to purchase the amounts of the Underwritten Preferred
Securities set forth opposite their respective names in Schedule I hereto, plus
their pro rata portion of the Option Preferred Securities if you elect to
exercise the over-allotment Option in whole or in part.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the Offerors
and the Underwriters hereby agree as follows:
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE OFFERORS.
(a) The Offerors jointly and severally represent and warrant to, and agree
with, each Underwriter as follows:
(i) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Georgia, with
full power and authority (corporate and other) to own its properties and
conduct its business as described in the Registration Statement and
Prospectus; each significant subsidiary (as defined by the Act) of the
Company (each, a "Subsidiary" and collectively, the "Subsidiaries") has
been duly incorporated, will be, and is validly existing as a banking
association or corporation, as the case may be, in good standing under the
laws of the jurisdiction of its association or incorporation, as the case
may be, with full power and authority (corporate and other) to own or lease
its properties and conduct its business; the Company and the Subsidiaries
are duly qualified to transact business in all jurisdictions in which the
conduct of their business or the ownership or lease of their properties
requires such qualifications, except where the failure to so qualify would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, properties, business prospects or
results of operations of the Company and its subsidiaries taken as a whole;
and all of the outstanding shares of capital stock of each Subsidiary are
owned by the Company and have been duly and validly authorized and issued,
are fully paid and non-assessable.
(ii) The Trust has been duly created and is validly existing as a
statutory trust in good standing under the Delaware Act with the power and
authority (trust and other) to own its property and conduct its business as
described in the Registration Statement and Prospectus, to issue and sell
the Common Securities to the Company pursuant to the Trust Agreement, to
issue and sell the Preferred Securities, to enter into and perform its
obligations under this Underwriting Agreement and to consummate the
transactions herein contemplated; the Trust has no subsidiaries and is duly
qualified to transact
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business and is in good standing in each jurisdiction in which the conduct
of its business or the ownership of its property requires such
qualification, except to the extent that the failure to be so qualified or
to be in good standing would not have a material adverse effect on the
Trust; the Trust has conducted and will conduct no business other than the
transactions contemplated by this Underwriting Agreement and described in
the Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than this Underwriting Agreement, the Trust Agreement and
the agreements and instruments contemplated by the Trust Agreement and
described in the Prospectus; the Trust has no liabilities or obligations
other than those arising out of the transactions contemplated by this
Underwriting Agreement and the Trust Agreement and described in the
Prospectus; the Trust is not a party to or subject to any action, suit or
proceeding of any nature; the Trust is not, and at the Closing Date or any
Option Closing Date will not be, to the knowledge of the Offerors,
classified as an association taxable as a corporation for United States
federal income tax purposes; and the Trust is, and as of the Closing Date
or any Option Closing Date will be, treated as a consolidated subsidiary of
the Company pursuant to generally accepted accounting principles.
(iii) The capital stock of the Company and the equity securities of the
Trust conform to the description thereof contained in the Prospectus or the
financial information included therein (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). The outstanding shares
of capital stock and equity securities of each Offeror have been duly
authorized and validly issued and are fully paid and nonassessable, and no
such shares were issued in violation of the preemptive or similar rights of
any security holder of an Offeror; no person has any preemptive or similar
right to purchase any shares of capital stock or equity securities of the
Offerors. Except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there are no
outstanding rights, options or warrants to acquire from the Offerors any
securities of the Offerors other than options and warrants issued by the
Company pursuant to its employee benefit plans, and there are no
outstanding securities convertible into or exchangeable for any such
securities and no restrictions upon the voting or transfer of any capital
stock of the Company or equity securities of the Trust pursuant to the
Company's corporate charter or bylaws, the Trust Agreement or any agreement
or other instrument to which an Offeror is a party or by which an Offeror
is bound; provided, however that the holders of the Preferred Securities
will have limited voting rights as described in the Prospectus. As of the
Closing Date (as defined below) and any Option Closing Date (as defined
below), if applicable, and upon application of the estimated net proceeds
of the offering, the Offerors will have the authorized capitalization set
forth under the caption, "Capitalization" in the Prospectus. No further
corporate approval or authority on behalf of the Offerors will be required
for the issuance and sale of the Preferred Securities to be sold by the
Trust as contemplated herein.
(iv) (A) The Trust has all requisite power and authority to issue,
sell and deliver the Preferred Securities in accordance with and upon
the terms and conditions set forth in this Underwriting Agreement and
the Trust Agreement. All corporate and trust action required to be
taken by the Offerors for the authorization, issuance, sale and
delivery of the Preferred Securities in accordance
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with such terms and conditions has been validly and sufficiently
taken. The Preferred Securities, when delivered in accordance with
this Underwriting Agreement, will be duly and validly issued and
outstanding, will be fully paid and nonassessable undivided beneficial
interests in the assets of the Trust, will be entitled to the benefits
of the Trust Agreement, will not be issued in violation of or subject
to any preemptive or similar rights, and will conform in all material
respects to the description thereof in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and the Trust Agreement. None of the
Preferred Securities, immediately prior to delivery, will be subject
to any security interest, lien, mortgage, pledge, encumbrance,
restriction upon voting or transfer, preemptive rights, claim, equity
or other defect.
(B) The Debentures have been duly and validly authorized and,
when duly and validly executed, authenticated and issued as provided
in the Indenture and delivered to the Trust pursuant to the Trust
Agreement, will constitute valid and legally binding obligations of
the Company entitled to the benefits of the Indenture and will conform
in all material respects to the description thereof contained in the
Prospectus.
(C) The Guarantee has been duly and validly authorized and, when
duly and validly executed and delivered to the Guarantee Trustee for
the benefit of the Trust, will constitute a valid and legally binding
obligation of the Company and will conform in all material respects to
the description thereof contained in the Prospectus.
(D) The Agreement as to Expenses and Liabilities (the "Expense
Agreement") has been duly and validly authorized and, when duly and
validly executed and delivered by the Company, will constitute a valid
and legally binding obligation of the Company and will conform in all
material respects to the description thereof contained in the
Prospectus.
(v) Any preliminary prospectus, the Prospectus and the Registration
Statement have been prepared by the Offerors in conformity with the
requirements of the Act and the Rules, including Form S-3 and the Trust
Indenture Act. The Registration Statement has been filed with the
Commission under the Act.
(vi) Neither the Commission nor any other agency, body, authority,
court or arbitrator of competent jurisdiction has, by order or otherwise,
prohibited or suspended the use of any preliminary prospectus or the
Prospectus relating to the proposed offering of the Preferred Securities or
instituted proceedings for that purpose. The Registration Statement, the
Prospectus and any preliminary prospectus and any amendments or supplements
thereto at the time they became or become effective or were filed or are
filed with the Commission contained or will contain all statements which
are required to be stated therein by, and in all material respects
conformed or will conform to the requirements of, the Act, the Rules and
the Trust Indenture Act. Neither the Registration
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Statement, nor any preliminary prospectus nor any amendment thereto, and
neither the Prospectus nor any supplement thereto, as of its date contained
any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading; provided, however, that the Offerors make no representations or
warranties as to information contained in or omitted from the Registration
Statement or any preliminary prospectus or the Prospectus, or any such
amendment or supplement, in reliance upon, and in conformity with, written
information furnished to the Offerors by or on behalf of any Underwriter,
expressly for use in the preparation thereof.
(vii) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules as set forth in the
Registration Statement, present fairly the consolidated financial position
and the consolidated results of operations of the Company and the
Subsidiaries consolidated, at the indicated dates and for the indicated
periods. Such financial statements have been prepared in accordance with
generally accepted principles of accounting, consistently applied
throughout the periods involved, and all adjustments necessary for a fair
presentation of results for such periods have been made. The Summary
Consolidated Financial Data and the Selected Consolidated Financial Data
included in the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited and
unaudited financial statements from which they were derived.
(viii) There is no action or proceeding pending or, to the knowledge
of the Offerors, threatened against the Offerors or any Subsidiary before
any court or administrative or governmental agency or other body which, if
determined adversely to the Offerors on any such Subsidiary, would
individually or in the aggregate (A) result in any material adverse change
in the condition (financial or otherwise), or in the earnings, business,
affairs, properties, business prospects or results of operations, of the
Offerors and the Subsidiaries taken as a whole, whether or not arising in
the ordinary course of business, or (B) affect the performance of this
Underwriting Agreement or the consummation of the transactions herein
contemplated, except as disclosed in the Registration Statement and for
which the Company maintains a reserve in an amount which is adequate to
cover potential liabilities.
(ix) The Company and each Subsidiary has good and marketable title to
all of the material properties and assets reflected in the financial
statements hereinabove described or as described in the Prospectus as being
owned by them, subject to no lien, mortgage, pledge, charge or encumbrance
of any kind, except those securing indebtedness described in such financial
statements or as described in the Prospectus or which do not materially
affect the present or proposed use of such properties or assets. The
Company and the Subsidiaries occupy their leased properties under valid,
subsisting and binding leases with only such exceptions as in the aggregate
are not material and do not interfere with the conduct of the business of
the Company.
(x) Except as otherwise set forth in the Prospectus, the Company and
each Subsidiary have filed all Federal, State and foreign tax returns which
have been required
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to be filed and have paid all taxes indicated by said returns and all
assessments received by them or any of them to the extent that such taxes
have become due.
(xi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, as they may be amended or
supplemented, (A) there has not been any material adverse change in the
condition (financial or otherwise), or in the earnings, business, affairs,
properties, business prospects or results of operations of either of the
Offerors and/or the Subsidiaries taken as a whole nor do the Offerors have
knowledge of any such change that is threatened, (B) there has not been any
transaction entered into by either of the Offerors or the Subsidiaries that
is material to the earnings, business, affairs, properties, business
prospects or operations of the Offerors or the Trust, other than
transactions in the ordinary course of business and changes and
transactions contemplated by the Registration Statement and the Prospectus,
as they may be amended or supplemented, and (C) there has not been any
material change in the capital stock, long term debt or material
liabilities of the Offerors. Neither of the Offerors nor any of the
Subsidiaries have any material contingent obligations which are not
disclosed in the Registration Statement and the Prospectus.
(xii) Neither the Offerors nor any of the Subsidiaries individually or
in the aggregate are in breach or violation of or default under any
indenture, mortgage, deed of trust, lease, contract, note or other
agreement or instrument to which it is a party or by which it or any of its
properties is bound and which default may result in a material adverse
change in the condition (financial or otherwise) or in the earnings,
business, affairs, properties, business prospects or results of operations
of either of the Offerors and/or the Subsidiaries taken as a whole. The
consummation of the transactions contemplated by this Underwriting
Agreement, the Trust Agreement, the Guarantee and the Expense Agreement and
the fulfillment of the terms thereof will not result in a breach or
violation of any of the material terms and provisions of, or constitute a
default under, (A) any indenture, mortgage, deed of trust, lease, contract,
note or other agreement or instrument to which the Offerors or any
Subsidiary is a party that is material to the Company and its Subsidiaries
taken as a whole, or (B) the Offerors' charter or bylaws, or (C) any law,
decree, order, rule, writ, injunction or regulation applicable to the
Offerors or any Subsidiary of a court or of any regulatory body or
administrative agency or other governmental body having jurisdiction.
(xiii) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery
by the Offerors of this Underwriting Agreement, the Trust Agreement, the
Guarantee and the Expense Agreement and performance of their obligations
thereunder (except the registration of the Preferred Securities, under the
Act (which, if the Registration Statement is not effective as of the time
of execution hereof, shall be obtained as provided in this Agreement), such
additional steps as may be necessary to qualify the Preferred Securities
for public offering by the Underwriters under state securities or Blue Sky
laws, and the clearance of the Public Offering with the National
Association of Securities Dealers, Inc.) have been obtained or made and is
in full force and effect.
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(xiv) The Offerors and each Subsidiary hold all material licenses,
authorizations, charters, certificates and permits from governmental
authorities which are necessary to the conduct of their respective
businesses, and neither the Offerors nor any Subsidiary has received notice
of any proceeding relating to the revocation or modification of any of such
licenses, authorizations, charters, certificates or permits. The Offerors
and the Subsidiaries own or otherwise possess rights to use the licenses,
inventions, copyrights, trademarks, service marks and trade names presently
employed by them in connection with the businesses now operated by them,
and, to the best knowledge of the Company, neither the Offerors nor any
Subsidiary has infringed, nor have the Offerors received any notice of
infringement of or conflict with, asserted rights of others with respect to
any of the foregoing.
(xv) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Certified Public Accountants and Consultants,
LLC has certified certain of the financial statements filed with the
Commission and included as part of the Registration Statement and
Prospectus, are independent public accountants within the meaning of the
Act, the Rules and Regulation S-X of the Commission and Rule 101 of the
Code of Professional Ethics of the American Institute of Certified Public
Accountants.
(xvi) There are no agreements, contracts or other documents of a
character required to be described in the Registration Statement or the
Prospectus or required by Form S-3 to be filed or incorporated by reference
as exhibits to the Registration Statement which are not described or filed
as required.
(xvii) No labor dispute exists or is imminent with the Company's
employees or with employees of any Subsidiary which could materially
adversely affect the condition (financial or otherwise), earnings,
business, affairs, properties, business prospects or results of operations
of the Offerors.
(xviii) Except as contemplated by Section 2 hereof and as disclosed in
the Prospectus and permitted by the Rules, the Offerors have not
(themselves or through any person) taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected
to, cause or result in a violation of Section 5 of the Act or Regulation M
under the Exchange Act ("Regulation M") or in stabilization or manipulation
of the price of the Company's common stock or the Preferred Securities.
(xix) This Underwriting Agreement has been duly authorized, executed
and delivered by the Offerors and is enforceable against the Offerors in
accordance with its terms, except as the enforcement hereof or thereof may
be limited by general principles of equity and by bankruptcy, insolvency,
reorganization, receivership, fraudulent transfer, moratorium or other laws
relating to or affecting creditors rights generally, and except as the
indemnification and contribution provisions hereof may be limited under
applicable laws and public policy and certain remedies may not be available
in the case of a non-material breach.
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(xx) Each of the Indenture, the Trust Agreement, the Guarantee and the
Expense Agreement has been duly authorized by the Company, and, when
executed and delivered by the Company on the Closing Date, each of said
agreements will constitute a valid and legally binding obligation of the
Company and will be enforceable against the Company in accordance with its
terms, except as the enforcement hereof or thereof may be limited by
general principles of equity and by bankruptcy, insolvency, reorganization,
receivership, fraudulent transfer, moratorium or other laws relating to or
affecting creditors rights generally, and except as the indemnification and
contribution provisions hereof may be limited under applicable laws and
public policy and certain remedies may not be available in the case of a
non-material breach. Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act and will
conform in all material respects to the description thereof contained in
the Prospectus.
(xxi) Neither of the Offerors nor any Subsidiary is in violation of
any law, ordinance, governmental rule or regulation or court decree to
which it may be subject, which violation might have a material adverse
effect on the condition (financial or otherwise), earnings, business,
affairs, properties, business prospects or the results of operations of
either of the Offerors and/or the Subsidiaries taken as a whole. The
Preferred Securities have been approved for quotation on the American Stock
Exchange subject to official notice of issuance.
(b) Any certificate signed by any officer or trustee of the Trust or the
Company, as the case may be and delivered to you or counsel for the Underwriters
shall be deemed a representation and warranty by the Trust or the Offerors to
the Underwriters as to the matters covered thereby.
2. PURCHASE, SALE AND DELIVERY OF THE UNDERWRITTEN PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and covenants 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 agrees, severally and not jointly, to purchase, at a price of $10
per share, the number of the Underwritten Preferred Securities set forth
opposite the name of each Underwriter in Schedule I attached hereto, subject to
adjustment in accordance with Section 10 hereof. Each Underwriter shall be
entitled to a commission ("Commission") from the Company of $0.35 per share sold
by such Underwriter.
(b) Payment for the Underwritten Preferred Securities shall be made by
certified or bank cashier's checks in clearing house funds (which will be next
day funds) or, upon mutual agreement of the parties, by wire transfer of U.S.
Funds to a designated account of the Trust drawn to the order of the Trust
against book entry delivery of the Preferred Securities to the Underwriters.
The Commission for the Underwritten Preferred Securities shall be paid by the
Company to the Underwriters by certified or bank cashier's checks in clearing
house funds (which will be next day funds) or, upon mutual agreement of the
parties, by wire transfer of U.S. Funds to a designated account of the
Underwriters at the same time as payment is made for the
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Underwritten Preferred Securities. Payment and delivery will be made at such
place as shall be agreed upon by the Underwriters and the Trust, at 10:00 A.M.,
Eastern Time, on November 8, 2001 or at such other time and date not later than
six (6) days after the Effective Date as you and the Offerors shall agree upon,
such time and date of payment being herein referred to as the "Closing Date."
Appropriate documentation regarding the Underwritten Preferred Securities will
be delivered as the Underwriters request in writing not later than the second
full business day prior to the Closing Date, and will be made available for
inspection at such location as the Underwriters may reasonably request, at least
one full business day prior to the Closing Date.
(c) In addition, on the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Trust hereby grants an Option to the
Underwriters to purchase the Option Preferred Securities at the price per share
as set forth in the first paragraph of this Section 2. The Option may be
exercised in whole or in part (but only once) at any time upon written notice
(or oral notice, subsequently confirmed in writing) given not less than thirty
(30) days following the date of this Underwriting Agreement, by you to the Trust
setting forth the number of Option Preferred Securities as to which the
Underwriters are exercising the Option and the names and denominations in which
the Option Preferred Securities are to be registered. Closing of the purchase
of the Option Preferred Securities, if any, shall occur no later than four (4)
business days following the date upon which notice of exercise of the Option is
given to the Trust ("Option Closing Date"). The number of Option Preferred
Securities to be purchased by each Underwriter shall be in the same proportion
as the total number of Underwritten Preferred Securities being purchased by such
Underwriter bears to the total number of Underwritten Preferred Securities being
purchased by all Underwriters as a group, as more particularly indicated on
Schedule I, subject to adjustment in accordance with Section 10 and as adjusted
by you in such manner to avoid fractional shares. The Option may be exercised
only to cover over-allotments in the sale of the Underwritten Preferred
Securities by the Underwriters. You may cancel such Option at any time prior to
its expiration by giving written notice (or oral notice, subsequently confirmed
in writing) of such cancellation to the Offerors. To the extent, if any, that
the Option is exercised, payment for the Option Preferred Securities shall be
made at such closing by a certified or bank cashier's check in clearing house
funds (which will be next day funds) or, upon mutual agreement of the parties,
by wire transfer of U.S. Funds to a designated account of the Trust, drawn to
the order of the Trust. The Commission for the Option Preferred Securities
shall be paid by the Company to the Underwriters by certified or bank cashier's
checks in clearing house funds (which will be next day funds) or, upon mutual
agreement of the parties, by wire transfer of U.S. Funds to a designated account
of the Underwriters at the same time as payment is made for the Option Preferred
Securities.
3. OFFERING BY THE UNDERWRITERS.
It is understood that the Public Offering of the Underwritten Preferred
Securities is to be made as soon as the Underwriters deem it advisable to do so
after the Registration Statement has become effective. The Underwritten
Preferred Securities are to be initially offered to the public at the public
offering price set forth in the Prospectus. The Underwriters may from time to
time thereafter change the public offering price and other selling terms. To
the extent, if at all, that
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any Option Preferred Securities are purchased pursuant to Section 2 hereof, the
Underwriters will offer them to the public on the foregoing terms.
4. COVENANTS OF THE OFFERORS.
(a) The Offerors jointly and severally covenant and agree with the
Underwriters that:
(i) The Offerors will use their best efforts to cause the Registration
Statement to become effective and will not, either before or after
effectiveness, file any amendment thereto or supplement to the Prospectus
(including a Prospectus filed pursuant to Rule 424(b) which differs from
the Prospectus on file at the time the Registration Statement becomes
effective) of which the Underwriters shall not previously have been advised
and furnished with a copy or to which the Underwriters shall have
reasonably objected in writing or which is not in compliance with the Act
or Rules.
(ii) The Offerors will advise the Underwriters promptly of any request
of the Commission or other securities regulatory agency ("Other Securities
Regulator") for amendment of the Registration Statement or for supplement
to the Prospectus or for any additional information, or of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or of the institution
of any proceedings for that purpose, or comparable action taken or
initiated by any Other Securities Regulator, and the Offerors will use
their best efforts to prevent the issuance of any stop order preventing or
suspending the use of the Prospectus and to obtain as soon as possible the
lifting thereof, if issued.
(iii) The Offerors will cooperate with the Underwriters in endeavoring
to qualify the Preferred Securities for sale under the securities laws of
such jurisdictions (including foreign jurisdictions) as the Underwriters
reasonably may have designated in writing, and will make such applications,
file such documents and furnish such information as may be reasonably
required for that purpose; provided, however, the Offerors shall not be
required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction where it is not so qualified or
required to file such a consent. The Offerors will, from time to time,
prepare and file such statements, reports, and other documents, as are or
may be required to continue such qualifications in effect for so long a
period as the Underwriters may reasonably request for distribution of the
Preferred Securities.
(iv) The Offerors will deliver to, or upon the order of, the
Underwriters, from time to time, as many copies of any preliminary
prospectus as the Underwriters may reasonably request. The Offerors will
deliver to, or upon the order of, the Underwriters on the Effective Date
and thereafter from time to time during the period when delivery of a
Prospectus is required under the Act as many copies of the Prospectus in
final form, or as thereafter amended or supplemented, as the Underwriters
may reasonably request. The Offerors will deliver to the Underwriters, at
or before the Closing Date, one signed copy of the Registration Statement
and all amendments thereto, including all exhibits filed
11
therewith, and will deliver to the Underwriters such number of copies of
the Registration Statement, and of all amendments thereto, as the
Underwriters may reasonably request.
(v) If during the period in which a Prospectus is required by law to
be delivered by an Underwriter or dealer any event shall occur as a result
of which, in the judgment of the Offerors or in the opinion of counsel for
the Underwriters, with the concurrence of the Offerors and its counsel, it
becomes necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances existing at the
time the Prospectus is delivered to a purchaser, not misleading, or, if it
is necessary at any time to amend or supplement the Prospectus to comply
with any law, the Offerors promptly will notify the Underwriters and,
subject to the Underwriters' prior review, prepare and file with the
Commission and any appropriate Other Securities Regulator an appropriate
amendment or supplement to the Prospectus so that the Prospectus as so
amended or supplemented will not, in light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply with the
law.
(vi) The Offerors will make generally available to their security
holders in the manner contemplated by Rule 158(b) under the Act, as soon as
it is practicable to do so, but in any event not later than the forty-fifth
(45th) day after the fiscal quarter first occurring one year after the
Effective Date, a consolidated earnings statement of the Offerors (which
need not be audited) in reasonable detail covering a period of at least
twelve (12) consecutive months beginning after the Effective Date, which
earnings statement shall satisfy the requirements of Section 11(a) of the
Act and will advise you in writing when such Statement has been so made
available.
(vii) The Offerors will, for a period of three (3) years from the
Closing Date, deliver to the Underwriters copies of annual reports and
information furnished by the Offerors to their stockholders or filed with
any securities exchange pursuant to the requirements of such exchange or
with the Commission pursuant to the Act or the Exchange Act, as amended.
The Offerors will deliver to the Underwriters similar reports with respect
to any significant subsidiaries, as that term is defined in the Rules,
which are not consolidated in the Offerors' financial statements.
(viii) As soon as the Offerors are advised thereof, they will advise
the Underwriters, and confirm the advice in writing, that the Registration
Statement and any amendments shall have become effective.
(ix) The Offerors will use the net proceeds from the sale of the
Preferred Securities and the Debentures in the manner forth in the
Prospectus under the caption "Use of Proceeds."
(x) Other than as permitted by the Act and the Rules, the Offerors
will not distribute any prospectus or offering materials in connection with
the offering and sale of the Preferred Securities.
12
(xi) The Offerors will maintain a transfer agent and, if necessary
under the jurisdiction of incorporation of the Offerors, a registrar for
the Preferred Securities and will use their best efforts to establish and
maintain the listing of the Preferred Securities (and, subject to
distribution thereof, the Debentures) on the American Stock Exchange.
(xii) Except as contemplated hereby or by the Prospectus, the Offerors
will not, for a period of 180 days after the Effective Date of the
Registration Statement, offer to sell, contract to sell, sell or otherwise
dispose of any shares of the Preferred Securities or securities convertible
into shares of the Preferred Securities without your prior written consent.
Furthermore, the Offerors will cause each executive officer and director of
the Offerors (as set forth in the Prospectus) to furnish to you, on or
prior to the execution of this Underwriting Agreement, a letter or letters,
in form and substance satisfactory to counsel for Underwriters, pursuant to
which each such person shall agree not to offer for sale, sell, distribute
or otherwise dispose of any shares of Preferred Securities of the Offerors
during the 180 days following the Effective Date, except with your written
consent; provided, however, that nothing herein shall prevent such persons
from transferring or assigning their shares of the Preferred Securities
pursuant to a bona fide gift or pledge transaction.
The foregoing covenants and agreements shall apply to any successor of the
Offerors, including, without limitation, any entity into which the Offerors
might convert or merge.
5. COSTS AND EXPENSES.
(a) Expenses.
The Company, as borrower under the Debentures, will pay all expenses
incident to the performance of its, and the Trust's, obligations under this
Underwriting Agreement, including (i) the preparation, printing and any filing
of the Registration Statement (including financial statements and any schedules
or exhibits and any document incorporated therein by reference) and of each
amendment or supplement thereto, (ii) the preparation, printing and delivery to
the Underwriters of this Underwriting Agreement, the Operative Documents and
such other documents as may be required in connection with the offering,
purchase, sale and delivery of the Preferred Securities, (iii) the preparation,
issuance and delivery of the certificates for the Preferred Securities to the
Underwriters, including any stock or other 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) rating agency fees, (vi) the fees and
expenses of any trustee appointed under any of the Operative Documents,
including the fees and disbursements of counsel for such trustees in connection
with the Operative Documents, (vii) the qualification of the Preferred
Securities under state blue sky laws, including filing fees and the reasonable
fees and actual accountable disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, if any, (viii) the printing and delivery to
the Underwriters of copies of each preliminary prospectus and of the Prospectus
and any amendments or supplements thereto, if any, (ix) the preparation,
printing and delivery supplement thereto, if any, (x) the fees and expenses of
any transfer agent or registrar
13
for the Preferred Securities, (xi) the filing fees incident to the review by the
NASD Regulation, Inc. of the terms of the Underwriters' compensation for the
sale of the Preferred Securities, (xii) the fees and expenses incurred in
connection with the listing of the Preferred Securities on the American Stock
Exchange and, if applicable, the Debentures on a national securities exchange or
automated quotation system, (xiii) the fees and expenses of the Indenture
Trustee, including the fees and disbursements of counsel for the Indenture
Trustee in connection with the Indenture and the Debentures, (xiv) the fees and
expenses of the Property Trustee, including the fees and disbursements of
counsel for the Property Trustee in connection with the Trust Agreement and the
Certificate of Trust, (xv) the fees and expenses of the Guarantee Trustee, (xvi)
any fees and expenses in connection with the rating of the Preferred Securities
and the Debentures, and (xvii) the cost and charges of qualifying the Preferred
Securities with the Depositary Trust Company. It is understood, however, that,
except as provided in this Section 5, Section 8 and Section 12 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
other counsel, stock transfer taxes on resale of any of the Preferred Securities
by them, and any advertising expenses relating to the offer and sale of the
Preferred Securities.
(b) Termination of Agreement.
If the transactions contemplated by this agreement shall not have been
consummated on or before December 31, 2001 for any reason other than the
termination of this Agreement by the Offerors by reason of the default of the
Underwriters under the provisions of Section 10 hereof, the Offerors shall
reimburse the Underwriters for all of their actual accountable out-of-pocket
costs and expenses, including reasonable attorneys' fees and out-of-pocket
expenses reasonably incurred in connection with investigating, marketing and
proposing to market the Preferred Securities or in contemplation of performing
their obligations hereunder, up to a maximum reimbursement of $50,000. The
Offerors shall not in any event be liable to any of the Underwriters for damages
on account of loss of anticipated profits from the sale by them of the Preferred
Securities.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the Underwriters are subject to the accuracy, as of the
Closing Date, of the representations and warranties of the Offerors contained
herein, and to the performance by the Offerors of their respective obligations
hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not later than
10:30 A.M., Eastern Time, on December 24, 2001, unless a later time and date is
agreed to by the Underwriters, and no stop order or other order suspending the
effectiveness thereof or the qualification of the Preferred Securities under the
state securities or Blue Sky laws of any jurisdiction shall have been issued,
and no proceeding for that purpose shall have been taken or, to the knowledge of
the Offerors, shall be contemplated or threatened by the Commission or any Other
Securities Regulator. If the Offerors have elected to rely upon Rule 430A of
the Rules, the price of the Preferred Securities and any price-related
information previously omitted from the effective Registration Statement
pursuant to such Rule 430A shall have been transmitted to the Commission for
filing Pursuant to Rule 424(b) of the Act within the prescribed time period, and
prior to the Closing Date the Offerors shall have provided evidence satisfactory
to the
14
Underwriters of such timely filing, or a post-effective amendment providing such
information shall have been promptly filed and declared effective in accordance
with the requirements of Rule 430A under the Act. All requests for additional
information on the part of the Commission or any other government or regulatory
authority with jurisdiction (to be included in the Registration Statement or
Prospectus or otherwise) shall be complied with to the satisfaction of the
Commission or such authorities.
(b) The Underwriters shall have received on the Closing Date and any Option
Closing Date the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Offerors, dated
the Closing Date and any Option Closing Date, addressed to the Underwriters in
form and substance satisfactory to Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
counsel to the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Georgia with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; each of the Subsidiaries is
validly existing as a state or national banking corporation or association
in good standing under the laws of the jurisdiction of its organization,
and has corporate power and authority to own its properties and conduct its
business as described in the Prospectus; each of the Company and the
Subsidiaries is duly qualified to transact business in all jurisdictions in
which the conduct of its business or the location of the properties owned
or leased by it requires such qualification; and all of the outstanding
shares of capital stock of the Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable, and except as set forth
in the Prospectus and the Registration Statement and except for directors'
qualifying shares, if any, to the best knowledge of such counsel, no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into any
shares of capital stock or of ownership interests in the Subsidiaries are
outstanding.
(ii) The Debentures and Guarantee of the Company and the Preferred
Securities of the Trust conform in all material respects to the description
thereof contained in the Prospectus. The common stock of the Company
authorized and issued as set forth under the caption "Capitalization" in
the Prospectus, has been duly authorized and validly issued, and is fully
paid and nonassessable. To the best knowledge of such counsel, there are
no outstanding rights, options or warrants to purchase from the Company, no
other outstanding securities convertible into or exchangeable for, and no
commitments, plans or arrangements to issue, any shares of capital stock of
the Company or equity securities of the Trust, except as described in the
Prospectus in connection with the Company's employee benefit plans.
(iii) The Registration Statement has become effective under the Act
and, to the best knowledge of such counsel, no stop order proceedings with
respect thereto have been instituted or are pending or threatened under the
Act.
(iv) The Registration Statement, all preliminary prospectuses, the
Prospectus and each amendment or supplement thereto comply as to form in
all material respects with the requirements of the Act and the Rules,
except that such counsel need express no
15
opinion as to the financial statements, schedules and other statistical and
financial information included therein.
(v) The statements under the captions "Capitalization," "Description
of the Preferred Securities," "Description of the Debentures," "Description
of Guarantee," "Relationship Among the Preferred Securities, the Debentures
and the Guarantee," "Federal Income Tax Consequences," and "ERISA
Considerations" in the Prospectus and "Supervision and Regulation," as
incorporated in the Prospectus from the Company's Form 10-K for the year
ended December 31, 2000, insofar as such statements constitute a summary of
legal and regulatory matters and consequences, documents, instruments or
proceedings referred to therein, fairly and accurately summarize the
matters purported to be summarized therein.
(vi) To the best knowledge of such counsel, except as set forth in the
Registration Statement and Prospectus, no holders of Preferred Securities
or other securities of the Offerors have registration rights with respect
to such securities.
(vii) To the best knowledge of such counsel, (A) there are no
contracts or documents required to be filed as exhibits to the Registration
Statement or described in the Registration Statement or Prospectus which
are not so filed or described as required, and (B) such contracts and
statements as are summarized in the Registration Statement or Prospectus
are fairly summarized in all material respects as required.
(viii) To the best knowledge of such counsel, there are no legal,
regulatory or administrative proceedings pending or threatened against the
Offerors or any Subsidiary which may be material to the earnings, business,
affairs, properties, business prospects or operations of either of the
Offerors and/or the Subsidiaries taken as a whole except as set forth in
the Prospectus.
(ix) The Company has all requisite corporate power and authority to
issue, sell and deliver the Debentures in accordance with and upon the
terms and conditions set forth in this Underwriting Agreement and the
Indenture as described in the Prospectus. All corporate action required to
be taken by the Company for the authorization, issuance, sale and delivery
of the Debentures in accordance with such terms and conditions has been
validly and sufficiently taken. The Preferred Securities conform in all
material respects to the description thereof in the Registration Statement,
the Prospectus and the Trust Agreement. The Preferred Securities have been
approved for quotation on the American Stock Exchange subject to official
notice of issuance. There are no preemptive or, to the best knowledge of
such counsel, other rights to subscribe for or to purchase, and other than
as disclosed in the Prospectus, no restrictions upon the voting or transfer
of, any shares of capital stock or equity securities of the Offerors or the
Subsidiaries pursuant to the articles of incorporation, charter, bylaws or
other governing documents or the Trust Agreement of the Offerors or the
Subsidiaries, or, to such counsel's knowledge, any agreement or other
instrument to which either Offeror or any of the Subsidiaries is a party or
by which either Offeror or any of the Subsidiaries may be bound; provided,
however
16
that the holders of the Preferred Securities will have limited voting
rights as described in the Prospectus.
(x) The Company has all requisite corporate power to enter into and
perform its obligations under this Underwriting Agreement, and this
Underwriting Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding
obligations of the Company enforceable in accordance with its terms, except
as the enforcement hereof or thereof may be limited by general principles
of equity and by bankruptcy, insolvency, reorganization, receivership,
fraudulent transfer, moratorium or other laws relating to or affecting
creditors rights generally, and except as the indemnification and
contribution provisions hereof may be limited under applicable laws and
public policy and certain remedies may not be available in the case of a
non-material breach.
(xi) Each of the Indenture, the Trust Agreement and the Guarantee has
been duly qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company. Each of the Indenture
and Guarantee is a valid and legally binding obligation of the Company
enforceable in accordance with its terms, except as the enforcement hereof
or thereof may be limited by general principles of equity and by
bankruptcy, insolvency, reorganization, receivership, fraudulent transfer,
moratorium or other laws relating to or affecting creditors rights
generally, and except as the indemnification and contribution provisions
hereof may be limited under applicable laws and public policy and certain
remedies may not be available in the case of a non-material breach.
(xii) The Debentures have been duly authorized, executed,
authenticated and delivered by the Company, are entitled to the benefits of
the Indenture and, assuming due authentication of such Debentures by the
Trustee, are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to
the effect of bankruptcy, insolvency, reorganization, receivership,
fraudulent transfer, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of equity and
public policy.
(xiii) The Expense Agreement has been duly authorized, executed and
delivered by the Company, and is a valid and legally binding obligation of
the Company enforceable in accordance with its terms, subject to the effect
of bankruptcy, insolvency, reorganization, receivership, fraudulent
transfer, moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity and public policy.
(xiv) To such counsel's knowledge, neither of the Offerors nor any of
the Subsidiaries is in breach or violation of, or default under, with or
without notice or lapse of time or both, its articles of incorporation,
charter, bylaws or other governing documents or the Trust Agreement. The
execution, delivery and performance of this Underwriting Agreement and the
consummation of the transactions contemplated by this Underwriting
Agreement, the Indenture, the Guarantee, the Expense Agreement and the
17
Trust Agreement do not and will not conflict with, result in the creation
or imposition of any lien, claim, charge, encumbrance or restriction upon
any property or assets of the Offerors or any of the Subsidiaries or the
Preferred Securities pursuant to, or constitute a breach or violation of,
or constitute a default under, with or without notice or lapse of time or
both, any of the terms, provisions or conditions of the articles of
incorporation, charter, bylaws or other governing document or the Trust
Agreement of the Offerors or the Subsidiaries, or to such counsel's
knowledge, (i) any material contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease, franchise, license or any other
agreement or instrument to which either Offeror or the Subsidiaries is a
party or by which any of them or any of their respective properties may be
bound or (ii) any order, decree, judgment, franchise, license, permit, rule
or regulation of any court, arbitrator, government, or governmental agency
or instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties. No authorization, approval, consent or order of, or
filing, registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required under
Georgia or Delaware law (other than required by the securities or blue sky
laws of such states as to which counsel need express no opinion) in
connection with the transactions contemplated by this Underwriting
Agreement or in connection with the purchase and distribution of the
Preferred Securities by the Underwriters.
(xv) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body is necessary in connection with the execution and
delivery of this Underwriting Agreement and the Trust Agreement and the
consummation of the transactions therein contemplated (other than required
by state securities and Blue Sky laws as to which such counsel need express
no opinion) except such as have been obtained or made, specifying the same.
(xvi) To the best of such counsel's knowledge, the Offerors and the
Subsidiaries hold all material licenses, certificates and permits from
governmental authorities that are necessary for the conduct of their
respective businesses.
(xvii) Except as set forth in the Prospectus, to such counsel's
knowledge, there are no contractual encumbrances or restrictions or legal
restrictions (excluding any encumbrances or restrictions of general
application to state banks contained in laws, rules and regulations of
applicable regulatory authorities) on the ability of the Subsidiaries (A)
to pay dividends or make any other distributions on its capital stock or to
pay indebtedness owed to the Company, (B) to make any loans or advances to,
or investments in, the Company or (C) to transfer any of its property or
assets to the Company.
(xviii) The Trust will be classified for United States federal income
tax purposes as a grantor trust and not as an association taxable as a
corporation for United States federal income tax purposes, and as a result,
each beneficial owner of Preferred Securities (a "Securityholder") will be
treated as owning an undivided beneficial interest in the Debentures.
18
In rendering the opinion above, such counsel may rely as to all matters
governed by Delaware law on the opinion of counsel referred to in paragraph (c)
of this Section 6. In addition to the matters set forth above, such opinion
shall also include a statement to the effect that in its capacity as counsel to
the Offerors, such counsel has participated in conferences with officers and
other Underwriters of the Offerors and Underwriters of the Underwriters and
their counsel, during which the contents of the Registration Statement and the
Prospectus were discussed and reviewed and, although it is not passing judgment
upon, and does not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, on the basis of the information that was developed in the course of
the performance of the services referred to above, nothing has come to the
attention of such firm which leads it to believe that the Registration Statement
or any amendment thereto at the time the Registration Statement or amendment
became effective or the Prospectus or any amendment or supplement thereto as of
their respective dates contains an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading (except that such counsel need express no view as to financial
statements, schedules and other financial information and statistical data
included therein). With respect to such statement, such firm may state that
their belief is based upon the procedures set forth therein, but is without
independent check and verification.
(c) The Underwriters shall have received on the Closing Date and any Option
Closing Date the opinion of Morris, James, Hitchens & ▇▇▇▇▇▇▇▇ LLP, special
Delaware counsel to the Offerors, dated the Closing Date and any Option Closing
Date, as the case may be, addressed to the Underwriters in form and substance
satisfactory to Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Underwriters,
to the effect that:
The Operative Agreements to which the Trust is a party as well as certain
other documents, each as set forth in the opinion are herein referred to as the
"Operative Documents".
(i) The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Business Trust Act (the
"Delaware Act"), and under the Trust Agreement and the Delaware Act, has
the trust power and authority to conduct its business as described in the
Prospectus.
(ii) The Trust Agreement constitutes a legal, valid and binding
obligation of the Property Trustee enforceable against the Property Trustee
in accordance with the terms thereof.
(iii) The Trust Agreement constitutes a legal, valid and binding
obligation of the Depositor and the Administrative Trustees, enforceable
against the Depositor and the Administrative Trustees in accordance with
its terms.
(iv) The Trust has the requisite trust power and authority to (a)
execute and deliver, and to perform its obligations under, the Operative
Documents, and (b) perform its obligations under such Operative Documents.
19
(v) Each of the Operative Documents to which the Trust is a party
constitutes a valid and binding obligation of the Trust, enforceable
against the Trust in accordance with the terms thereof.
(vi) The Preferred Securities have been duly authorized by the Trust
under the Trust Agreement, and the Preferred Securities, when duly issued,
executed and authenticated pursuant to this Agreement in accordance
therewith, will be validly issued, fully paid and nonassessable and will
evidence undivided beneficial interests in the assets of the Trust and will
be entitled to the benefits of the Trust Agreement.
(vii) The Common Securities have been duly authorized by the Trust
Agreement, and the Common Securities, when duly issued, executed and
authenticated to the Company in accordance with the Trust Agreement and the
Common Purchase Agreement and delivered and paid for in accordance
therewith, will be, validly issued, fully paid and nonassessable and will
evidence beneficial undivided interests in the assets of the Trust and will
be entitled to the benefits of the Trust Agreement.
(viii) Neither the execution, delivery or performance by the Trust of
the Operative Documents, the consummation by the Trust of the transactions
contemplated thereby, nor compliance by the Trust with any of the terms and
provisions thereof, (a) violates the Trust Agreement, or, to the best of
our knowledge, contravenes or will contravene any provision of, or
constitutes a default under, or results in any breach of, or results in the
creation of any lien (other than as permitted under the Operative
Documents) upon property of the Trust under, any indenture, mortgage,
chattel mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each case
known to us, to which it is a party or by which it is bound or (b) violates
any applicable Delaware law governing the Trust, or, to the best of our
knowledge, any judgment or order of any court or other tribunal, in each
case known to us, applicable to or binding on it.
(ix) No consent, approval, order or authorization of, giving of notice
to, or registration with, or taking of any other action in respect of, any
Delaware governmental authority regulating the Trust is required for the
execution, delivery, validity or performance of, or the carrying out by,
the Trust of any of the transactions contemplated by the Operative
Documents, other than any such consent, approval, order, authorization,
registration, notice or action as has been duly obtained, given or taken.
(x) The holders of the Preferred Securities, will be entitled to the
same limitation of personal liability extended to shareholders of domestic
corporations organized under the laws of the State of Delaware.
Such opinion may state that it is limited to the laws of the State of
Delaware and the opinion expressed in paragraph (iii) above is subject to the
effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
20
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(d) The Underwriters shall have received on the Closing Date and any Option
Closing Date the opinion of Morris, James, Hitchens & ▇▇▇▇▇▇▇▇ LLP, special
counsel to the Wilmington Trust Company, as the Property Trustee, Indenture
Trustee and the Guarantee Trustee, dated as of Closing Date and any Option
Closing Date, as the case may be, addressed to the Underwriters in form and
substance satisfactory to Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the
Underwriters, to the effect that:
The Operative Agreements to which Wilmington Trust Company is party as well
as certain other documents each set forth in the opinion are herein referred to
as the "Operative Documents".
(i) Wilmington Trust Company is a Delaware banking corporation,
validly formed under the laws of the State of Delaware, is authorized to
transact the business of banking under the laws of the state and has the
requisite corporate and trust power and authority (a) to execute, deliver
and perform its obligations under the Operative Documents to which it is a
party in its individual capacity and (b) as Property Trustee (on behalf of
the Trust), Indenture Trustee and Guarantee Trustee, as the case may be, to
execute, deliver and perform its obligations under the Operative Documents
to which the Property Trustee (on behalf of the Trust), Indenture Trustee
and the Guarantee Trustee, as the case may be, is a party.
(ii) Wilmington Trust Company, individually, and in its capacity as
Property Trustee, Guarantee Trustee and Indenture Trustee, as the case may
be, has duly authorized, executed and delivered the Operative Documents to
which the Property Trustee, Indenture Trustee and the Guarantee Trustee, as
the case may be, is party. Each of the Indenture and the Guarantee
constitutes a valid and binding obligation of Wilmington Trust Company,
individually and in its capacity as Indenture Trustee and as Guarantee
Trustee, as the case may be, enforceable in accordance with the terms
thereof.
(iii) The Debentures delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
(iv) Neither the execution, delivery or performance by Wilmington
Trust Company or the Trustees, as the case may be, of the Operative
Documents, the consummation by Wilmington Trust Company or the Trustees, as
the case may be, of the transactions contemplated thereby, nor compliance
by Wilmington Trust Company or the Trustees, as the case may be, with any
of the terms and provisions thereof, (a) requires any approval of its
stockholders, or, to the best of our knowledge, any consent or approval of
or the giving of notice to any holders of any indebtedness or obligations
(or any trustees for such holders) of it known to us, (b) violates its
charter documents or by-laws, or, to the best of our knowledge, contravenes
or will contravene any provision of,
21
or constitutes a default under, or results in any breach of, or results in
the creation of any lien (other than as permitted under the Operative
Documents) upon its property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or credit
agreement, license or other agreement or instrument, in each case known to
us, to which it is a party or by which it is bound or (c) violates any
applicable State law governing the banking or trust powers of Wilmington
Trust Company or the Trustees, as the case may be, or, to the best of our
knowledge, any judgment or order of any court or other tribunal, in each
case known to us, applicable to or binding on it. No consent, approval,
order or authorization of, giving of notice to, or registration with, or
taking of any other action in respect of, any state governmental authority
regulating the banking or trust powers of Wilmington Trust Company or the
Trustees, as the case may be, is required for the execution, delivery,
validity or performance of, or the carrying out by, Wilmington Trust
Company or the Trustees, as the case may be, of any of the transactions
contemplated by the Operative Documents, other than any such consent,
approval, order, authorization, registration, notice or action as has been
duly obtained, given or taken.
Such opinion may state that it is limited to the laws of the State of
Delaware and the opinion expressed in paragraph (iii) above is subject to the
effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(e) The Underwriters shall have received from Powell, Goldstein, ▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, counsel to the Underwriters, an opinion dated the Closing Date,
substantially to the effects specified in subparagraphs (iii) and (iv) of
paragraph (b) of this Section 6, and that the Company is a validly organized and
existing corporation under the laws of the State of Georgia. In rendering such
opinion, Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP may rely as to all matters
governed other than by the Federal laws on the opinion of counsel referred to in
paragraph (b) of this Section 6. In addition to the matters set forth above,
such opinion shall also include a statement to the effect that nothing has come
to the attention of such counsel which leads them to believe that the
Registration Statement, the Prospectus or any amendment or supplement thereto as
of their respective dates contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading (except that such counsel need express no view as to
financial statements, schedules and other financial information included
therein). With respect to such statement, such firm may state that their belief
is based upon the procedures set forth therein, but is without independent check
and verification.
(f) The Underwriters shall have received at or prior to the Closing Date
from Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP a memorandum or summary, in form and
substance satisfactory to the Underwriters, with respect to the qualification
for offering and sale by the
22
Underwriters of the Underwritten Preferred Securities under the securities laws
of such states and foreign jurisdictions as the Underwriters may reasonably have
requested.
(g) At the time this Agreement is executed and at the Closing Date and the
Option Closing Date, as the case may be, the Underwriters shall have received a
letter, addressed to the Underwriters, and in form and substance reasonably
satisfactory to Underwriters, from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Certified Public
Accountants and Consultants, LLC, independent public accountants for the
Company, dated the date of delivery:
(i) confirming that they are, and during the period covered by their
report(s) included in the Registration Statement and the Prospectus were,
independent certified public accountants with respect to the Company within
the meaning of the Act and the published Rules and Regulations and stating
that the disclosure under the heading entitled "Experts" in the
Registration Statement is correct insofar as it relates to them;
(ii) stating that, in their opinion, the financial statements and the
footnotes thereto of the Company included in the Registration Statement
examined by them comply in form and in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations;
(iii) stating that, on the basis of procedures (but not an examination
made in accordance with generally accepted auditing standards) consisting
of a reading of the latest available unaudited interim consolidated
financial statement of the Company (with an indication of the date of the
latest available unaudited interim financial statements), a reading of the
latest available minutes of the shareholders and Boards of Directors of the
Company and committees of such Board of Directors, inquiries to certain
officers and other employees of the Company responsible for financial and
accounting matters, and other specified procedures and inquiries, nothing
has come to their attention that caused them to believe that: (A) any
unaudited financial statements and schedules of the Company included in the
Registration Statement and Prospectus do not comply in form and in all
material respects with the applicable accounting requirements of the Act
and the Exchange Act and the related published rules and regulations under
the Act or the Exchange Act or are not fairly presented in conformity with
generally accepted accounting principles (except to the extent that certain
footnote disclosures regarding any stub period may have been omitted in
accordance with the applicable rules and regulations of the Commission
under the Exchange Act) applied on a basis consistent with that of the
audited financial statements appearing therein, (B) there was any change in
the capital stock or long-term debt of the Company or any decrease in the
net current assets or shareholders' equity of the Company as of the date of
the latest available monthly financial statements of the Company as of a
specified date not more than five business days prior to the date of such
letter, each as compared with the amounts shown in the September 30, 2001
balance sheet included or incorporated by reference in the Registration
Statement and Prospectus, other than as properly described in the
Registration Statement and Prospectus or any change or decrease (which
shall be set forth therein) which, in the sole discretion of the
Underwriters, the Underwriters shall accept), or (C) that there was a net
decrease in consolidated net interest income, consolidated net
23
income of the Company during the period from September 30, 2001 to the date
of the latest available monthly financial statements of the Company or to a
specified date not more than five business days prior to the date of such
letter, each as compared to the corresponding period in 2000, other than as
properly described in the Registration Statement and Prospectus or any
decrease (which shall be set forth therein) which, at the sole discretion
of the Underwriters, the Underwriters shall accept; and
(iv) stating that they have compared specific numerical data and
financial information pertaining to the Company set forth in the
Registration Statement (including, but not limited to, the number of
shareholders of the Company and the number of issued and outstanding shares
of the common stock of the Company as of September 30, 2001), which have
been specified by the Underwriters prior to the date of this Agreement, to
the extent that such data and information may be derived from the general
accounting records of the Company, and excluding any questions requiring
any interpretation by legal counsel with results obtained from the
application of specified readings, inquiries, and other appropriate
procedures (which procedures do not constitute an examination in accordance
with generally accepted auditing standards) set forth in the letter, and
found them to be in agreement.
(h) The Underwriters shall have received on the Closing Date and any Option
Closing Date a certificate of the Chairman of the Board of Directors and the
Chief Financial Officer of the Company, respectively, to the effect that, as of
the Closing Date and any Option Closing Date:
(i) (A) the representations and warranties of the Company in this
Underwriting Agreement are true and correct on and as of the Closing Date
and any Option Closing Date, as the case may be, and (B) the Company has
complied with all the agreements and has satisfied all of the conditions on
its part to be performed or satisfied at or prior to the Closing Date and
any Option Closing Date, as the case may be;
(ii) (A) the Registration Statement has become effective under the
Act; (B) no stop order suspending the effectiveness of the Registration
Statement or the use or effectiveness of the Prospectus has been issued;
(C) no proceedings for such purpose have been taken or, to his knowledge,
are contemplated by the Commission or any Other Securities Regulator; and
(D) all requests for additional information on the part of the Commission
or any Other Securities Regulator have been complied with; and
(iii) he has carefully examined the Registration Statement and the
Prospectus and, in his opinion, since the Effective Date, no event has
occurred which should have been set forth in a supplement to or an
amendment to the Prospectus which has not been so set forth in such
supplement or amendment.
(i) The Underwriters shall have received from an authorized representative
of the Trust on the Closing Date, a certificate dated as of the Closing Date, to
the effect as follows:
24
(i) the representations and warranties of the Trust in this
Underwriting Agreement are true and correct as though made on and as of the
Closing Date (and, if applicable, the Option Closing Date);
(ii) the Trust has complied with all the agreements and satisfied all
the conditions required by this Underwriting Agreement to be performed or
satisfied by the Trust on or prior to the Closing Date and since the most
recent date as of which information is given in the Prospectus, except as
contemplated by the Prospectus, the Trust has not incurred any liabilities
or obligations, direct or contingent, or entered into any transactions not
in the ordinary course of business and there has not been any adverse
change in the condition (financial or otherwise) of the Trust.
(j) The Offerors shall have furnished to the Underwriters such additional
information and further certificates and documents confirming the
representations and warranties contained herein and related matters as the
Underwriters may reasonably have requested.
(k) On the Closing Date, the Underwriters shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
(l) Since the respective dates as of which information is given in the
Prospectus, there shall not have occurred any material adverse change in the
condition (financial or otherwise), or in the earnings, business, affairs,
properties, business prospects or results of operations of the Offerors or any
Subsidiary, whether or not arising in the ordinary course of business.
The opinions and certificates mentioned in this Underwriting Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects satisfactory to the Underwriters and Powell, Goldstein,
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Underwriting Agreement to
be fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Underwriters by notifying the Offerors of such termination in writing or by
confirmed telefax at or prior to the Closing Date. In such event, the Offerors,
and the Underwriters shall not be under any obligation to each other (except to
the extent provided in Sections 5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE OFFERORS.
The obligations of the Offerors to sell and deliver the Preferred
Securities are subject to the conditions that (a) at or before 10:30 A.M.,
Eastern Time, on December 24, 2001, or such later time and date as the Offerors
and the Underwriters may from time to time consent to in writing or by confirmed
telefax, the Registration Statement shall have become effective, and (b) at the
Closing Date no stop order suspending the effectiveness of the Registration
Statement shall have been issued or proceedings therefor initiated or
threatened. If either of the conditions hereinabove provided for in this
Section 7 shall not have been fulfilled when and as required by
25
this Underwriting Agreement to be fulfilled, this Underwriting Agreement may be
terminated by the Offerors by notifying the Underwriters of such termination in
writing or by confirmed telefax at or prior to the Closing Date.
8. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Act, the Rules and the Exchange Act from and against any and
all losses, claims, damages, liabilities, joint or several, and all expenses
(including costs of investigation and legal expenses) to which such Underwriter
or such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise out of or are based upon any material
breach of any representation, warranty, agreement or covenant of the Offerors
herein, or any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statement therein not misleading;
and the Offerors will reimburse each Underwriter and each such controlling
person for legal and other expenses incurred in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding;
provided, however, that the Offerors will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement, or alleged untrue statement, or omission or alleged
omission made in the Registration Statement, any preliminary prospectus, the
Prospectus, or such amendment or supplement, in reliance upon or in conformity
with written information furnished to the Offerors by or through the
Underwriters specifically for use in the preparation thereof; and provided
further that the Offerors will not be liable to any Underwriter in respect of
any Preliminary Prospectus or any amendment or supplement to any Preliminary
Prospectus to the extent that (A) the Prospectus did not contain the untrue
statement or alleged untrue statement or omission or alleged omission giving
rise to such loss, claim, damage or liability, (B) the Prospectus was not sent
or given to the purchaser of the Preferred Securities in question at or prior to
the written confirmation of the sale of such Preferred Securities to such
person, and (C) the failure to deliver such Prospectus was not the result of
non-compliance by the Offerors with its obligations under Section 4(a)(iv)
hereof. This indemnity agreement will be in addition to any liability which the
Offerors may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Offerors, each of
their directors, each of their officers who have signed the Registration
Statement, and each person, if any, who controls the Offerors, within the
meaning of the Act, the Rules and the Exchange Act, from and against any losses,
claims, damages, liabilities or expenses to which the Offerors or any such
director, officer, or controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon any material
breach of any agreement of the Underwriters herein, or any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state
26
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made; and will reimburse any legal or other expenses reasonably incurred by
the Offerors or any such director, officer, or controlling person in connection
with investigating or defending any such loss, claim, damage, liability, action
or proceeding; provided, however, that each Underwriter will be liable in such
case only to the extent that such untrue statement, or alleged untrue statement
or omission or alleged omission has been made in the Registration Statement, any
preliminary prospectus, the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Offerors by or through the Underwriters expressly for use in the preparation
thereof. This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action or proceeding, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action or proceeding is brought against any
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof with counsel satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. Notwithstanding
the foregoing, the indemnified party, at any time after such assumption of
defense by the indemnifying party, shall be entitled to participate in such
defense and to engage separate counsel (at the indemnifying party's expense) if,
in the indemnified party's reasonable belief, a conflict of interest exists with
counsel engaged by the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 8 is for
any reason held to be unavailable to an indemnified party under subsection (a),
(b) or (c) above in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each applicable indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and expenses (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 or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the parties in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities, 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 shall be deemed to be in the same proportion
as the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Offerors bears to the
underwriting discounts and commissions
27
received by the Underwriters. The relative fault of a party shall be determined
by reference to, among other things, whether the true or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by each party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any such action or claim. The
Offerors and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8, 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 that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute shall be several in proportion to their respective
underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
preliminary prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements of the Offerors and officers
or trustees of the Offerors herein or in certificates delivered pursuant hereto,
and the indemnity and contribution agreements contained in Section 8 hereof,
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriters or any controlling
person, or by or on behalf of the Offerors or any of their officers, trustees,
directors or controlling persons, and shall survive delivery of the Underwritten
Preferred Securities and, if applicable, the Option Preferred Securities to the
Underwriters or termination of this Underwriting Agreement.
10. DEFAULT BY UNDERWRITERS.
If any Underwriter shall default in its obligations to purchase Preferred
Securities hereunder, the other Underwriter shall be obligated to purchase the
Preferred Securities which such defaulting Underwriter agreed but failed to
purchase; provided, however, that the non-
28
defaulting Underwriter shall be under no obligation to purchase such Preferred
Securities to the extent that the number of such Preferred Securities is more
than 110% of the Underwriter's underwriting commitment set forth in Schedule I.
In the event that both Underwriters default or the non-defaulting
Underwriter is not obligated under the above paragraph to purchase the Preferred
Securities which the defaulting Underwriter agreed but failed to purchase, the
Underwriters may in their discretion arrange for another party or parties to
purchase such Preferred Securities on the terms contained herein. If within one
business day after such default the Underwriters do not arrange for the purchase
of such Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Underwriters to purchase such Preferred Securities on such
terms.
In the event that the Underwriters or the Company do not arrange for the
purchase of any Preferred Securities to which a default relates as provided
above, this Agreement shall be terminated.
If the remaining Underwriter or substituted underwriters are required
hereby or agree to take up all or a part of the Preferred Securities of a
defaulting Underwriter or Underwriters as provided in this Section 10, (i) you
shall have the right to postpone the Closing Date for a period of not more than
seven (7) days, in order to effect any changes that, in the opinion of counsel
for the Underwriters or the Company, may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
agreements, and the Company agrees promptly to file any amendments to the
Registration Statement or supplements to the Prospectus which, in its opinion,
may thereby be made necessary and (ii) the respective numbers of Preferred
Securities to be purchased by the remaining Underwriter or obligation for all
purposes of this Agreement. Nothing herein contained shall relieve any
defaulting Underwriter of any liability it may have for damages occasioned by
its default hereunder.
11. NOTICES.
All communications hereunder shall be in writing and, except as otherwise
provided herein, will be mailed, delivered or telefaxed and confirmed as
follows: if to the Underwriters, to Sterne, Agee & ▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇; with a
copy to ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Sixteenth
Floor, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; if to the Offerors, to
ABC Bancorp, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇; with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇, ▇▇▇▇ International Tower, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇;
if to any of the Trustees, to the following addresses as applicable:
Administrative Trustees: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and
Property Trustee: Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administration - ABC Bancorp Capital Trust I. All notices hereunder shall be
effective upon receipt by the party to which it is addressed.
29
12. TERMINATION.
This Underwriting Agreement may be terminated by notice to the Offerors or
the Underwriters, as the case may be, as follows:
(a) by the Offerors or the Underwriters at any time prior to the earlier
of (i) the time the Underwritten Preferred Securities are released by
the Underwriters for sale; or (ii) 1:30 P.M., Eastern Time, on the
first business day following the Effective Date;
(b) by the Underwriters as provided in Section 6 of this Underwriting
Agreement;
(c) by the Offerors as provided in Section 7 of this Underwriting
Agreement;
(d) by the Offerors or the Underwriters as provided in Section 10 of this
Underwriting Agreement;
(e) by the Underwriters at any time prior to the Closing Date or the
Option Closing Date, as the case may be, by giving notice to the
Company, and, if exercised, the Over-allotment Option, at any time
prior to the Option Closing Date, by giving notice to the Offerors in
the event of the following: (i) if any domestic or international
event, act, or occurrence has materially and adversely disrupted, or,
in the reasonable opinion of the Underwriters, will in the immediate
future materially and adversely disrupt, the securities markets; or
(ii) if there shall have been a general suspension of, or a general
limitation on prices for, trading in securities on the New York Stock
Exchange or the American Stock Exchange or in the over-the-counter
market; or (iii) if there shall have been an outbreak or increase in
the level of major hostilities or other national or international
calamity if the effect of any such event, in the reasonable opinion of
the Underwriters, will in the immediate future materially and
adversely disrupt the securities markets; or (iv) if a banking
moratorium has been declared by a state or federal authority; or (v)
if a moratorium in foreign exchange trading by major international
banks or persons has been declared; or (vi) if there shall have been a
material interruption in the mail service or other means of
communication within the United States; or (vii) if the Company shall
have sustained a material or substantial loss by fire, flood,
accident, hurricane, earthquake, theft, sabotage, or other calamity or
malicious act, whether or not such loss shall have been insured, or
from any labor dispute or court or government action, order, or
decree, otherwise than as disclosed in or contemplated by the
Prospectus, which will, in the reasonable opinion of the Underwriters,
make it inadvisable to proceed with the offering, sale, or delivery of
the Underwritten Preferred Securities or the Option Preferred
Securities, as the case may be; or (viii) if any material governmental
restrictions shall have been imposed on trading in securities in
general, which restrictions are not in effect on the date hereof; or
(ix) if there shall be passed by the Congress of the United States or
by any state legislature any act or measure, or adopted by any
governmental body or authoritative accounting institute or board, or
any governmental executive, any orders, rules, or regulations, which
the Underwriters
30
reasonably believe likely to have a material adverse effect on the
business, financial condition, or financial statements of the Company
or the market for the Preferred Securities.
(f) All notifications of termination of this Underwriting Agreement by the
Underwriters or the Offerors shall be made to the other parties
promptly by telephone, telex, or telegram, confirmed by letter.
(g) Notwithstanding any election hereunder or any termination of this
Underwriting Agreement, and whether or not this Underwriting Agreement
is otherwise carried out, the provisions of Sections 5(a), 6, 8, 10
and 13 shall not be in any way affected by such election or
termination or failure to carry out the terms of this Underwriting
Agreement or any part hereof.
13. SUCCESSORS.
This Underwriting Agreement has been and is made solely for the
benefit of the Underwriters, the Offerors and their respective successors,
executors, administrators, heirs, and assigns, and the officers, directors and
controlling persons referred to herein, and no other person will have any right
or obligation hereunder. The term "Successors" shall not include any purchaser
of the Preferred Securities merely because of such purchase.
14. MISCELLANEOUS.
(a) The reimbursement, indemnification and contribution agreements
contained in this Underwriting Agreement and the representations, warranties and
covenants of the Offerors in this Underwriting Agreement shall remain in full
force and effect regardless of (a) any termination of this Underwriting
Agreement, (b) any investigation made by or on behalf of the Underwriters or
controlling person or (c) delivery of any payment for the Preferred Securities
under this Underwriting Agreement.
(b) This Underwriting Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(c) This Underwriting Agreement shall be governed by, and construed in
accordance with, the laws of the State of Georgia applicable to contracts made
and performed within such State.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Offerors and the
Underwriters in accordance with its terms.
Very truly yours,
ABC BANCORP ABC BANCORP CAPITAL TRUST I
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chairman and Chief Executive Officer Administrative Trustee
The foregoing Underwriting Agreement is hereby confirmed and accepted as of
the date first above written.
STERNE, AGEE & ▇▇▇▇▇, INC.,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chairman and Chief Executive Officer
▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Title: Managing Director
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SCHEDULE I
TOTAL NUMBER OF
PREFERRED SECURITIES
UNDERWRITERS TO BE PURCHASED
---------------------------------- ---------------------
Sterne, Agee & ▇▇▇▇▇, Inc......... 1,500,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc...... 1,500,000
---------
Total........................ 3,000,000
33