Temecula Valley Bancorp Inc. 1,750,000 Trust Preferred Securities Temecula Valley Statutory Trust VI Temecula Valley Bank Underwriting Agreement
1,750,000
Trust Preferred Securities
Temecula
Valley Statutory Trust VI
Temecula
Valley Bank
January
__, 2008
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▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Securities, Inc.
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▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
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Ladies
and Gentlemen:
Temecula
Valley Bancorp Inc., a California corporation (the “Company”) will be the holder
of all of the common securities of Temecula Valley Statutory Trust VI, a
Delaware statutory trust (the “Trust”). The Company and the Trust
(together, the “Offerors”) propose that the Trust issue 1,750,000 of its __%
Trust Preferred Securities with a liquidation amount of $10.00 per security
(the
“Firm Securities”) to the several underwriters named in Schedule I hereto (the
“Underwriters”), who are acting severally and not jointly and for whom ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. and ▇▇▇▇▇▇▇▇▇▇ Securities, Inc. are acting as
representatives (the “Representatives”).
In
addition, the Offerors have granted to the Underwriters an option to purchase
up
to 262,500 additional __% Trust Preferred Securities (the “Optional
Securities”), exercisable at the Underwriters’ election in accordance with
section 3 herein (the Firm Securities and the Optional Securities that the
Underwriters elect to purchase pursuant to Section 3 hereof are herein
collectively called the “Securities”).
The
Securities will be issued pursuant to a Trust Agreement (the “Trust Agreement”),
as amended and restated, among Wilmington Trust Company as Property Trustee
and
Delaware Trustee, the administrative trustees named therein (the “Administrative
Trustees”) and the Company, that complies with the Trust Indenture Act of 1939,
as amended (the “Trust Indenture Act”).
The
Securities will be guaranteed by the Company with respect to distributions
and
payments upon liquidation, redemption and otherwise (the “Guarantee”) only as
provided in a Guarantee Agreement (the “Guarantee Agreement”) between the
Company and Wilmington Trust Company, as trustee (the “Guarantee
Trustee”).
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The
proceeds of the sale of the Securities will be used to purchase unsecured junior
subordinated deferrable interest notes (the “Junior Subordinated Notes”) issued
by the Company pursuant to an Indenture (the “Indenture”) between the Company
and Wilmington Trust Company, as trustee (the “Indenture Trustee”).
The
Representatives have advised the Company that the Underwriters propose to make
a
public offering of the Securities as soon as the Representatives deem advisable
after the registration statement hereinafter referred to becomes effective,
if
it has not yet become effective.
1. (a) The
Offerors jointly and severally represent and warrant to, and agree with, each
of
the Underwriters that:
(i) A
registration statement on Form S-3 (File No. 333-147877) (the “Initial
Registration Statement”) in respect of the Securities, the Guarantee, and the
Junior Subordinated Notes has been filed with the Securities and Exchange
Commission (the “Commission”); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered to
Representatives, and, excluding exhibits thereto, for each of the Underwriters,
have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a “Rule
462(b) Registration Statement”), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the “Act”), which became effective upon
filing, no other document with respect to the Initial Registration Statement
and
any post-effective amendment thereto, has heretofore been filed with the
Commission; the Company has complied with all requests of the Commission for
additional or supplemental information; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto, or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or threatened
by
the Commission (the preliminary prospectus for the registration of the
Securities, the Guarantee and the Junior Subordinated Notes included in the
Initial Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act, is
hereinafter called a “Preliminary Prospectus”; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including the information contained in the
form of final prospectus filed with the Commission pursuant to Rule 424(b)
under
the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule
430A
under the Act to be part of the Initial Registration Statement at the time
it
was declared effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the “Registration Statement”; and such
final prospectus, in the form first filed pursuant to Rule 424(b) under the
Act,
is hereinafter called the “Prospectus”);
(ii) No
order
preventing or suspending the use of any Preliminary Prospectus has been issued
by the Commission and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the Act
and
the rules and regulations of the Commission thereunder, and did not contain
an
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein, in light of
the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
in
writing to the Company by an Underwriter through the Representatives expressly
for use therein;
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(iii) The
Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement or the Prospectus will conform,
in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and the Trust Indenture Act and the
rules and regulations thereunder; on the effective date and at any Time of
Delivery (as defined in Section 5 hereof), the Registration Statement did not
or
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and when filed and at any Time of Delivery,
the Prospectus (together with any supplement thereto) will not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to (A) any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to
the Company by an Underwriter through the Representatives expressly for use
therein or (B) information in those parts of the Registration Statement which
constitute the Statement of Eligibility and Qualification (“Form T-1”)
under the Trust Indenture Act. Each Preliminary Prospectus and the
Prospectus when filed, if filed by electronic transmission, pursuant to ▇▇▇▇▇
(except as may be permitted by Regulation S-T under the Act), was identical
to
the copy thereof delivered to the Underwriters to use as such in connection
with
the offer and sale of the Securities;
(iv) As
of the
Applicable Time, neither (i) any Issuer-Represented General Use Free Writing
Prospectuses issued at or prior to the Applicable Time and the Statutory
Prospectus, all considered together (collectively, the “General Disclosure
Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing
Prospectus issued at or prior to the Applicable Time, when considered
together with the General Disclosure Package, included any untrue statement
of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein. As
used in this paragraph and elsewhere in this Underwriting Agreement (the
“Agreement”):
“Applicable
Time” means 4:00 p.m. (Chicago time) on the date of this Agreement.
“Statutory
Prospectus” as of any time means the most recent Preliminary Prospectus that is
included in the Registration Statement immediately prior to the Applicable
Time.
“Issuer-Represented
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 under the Act, relating to the Securities in the form filed or
required to be filed with the Commission or, if not required to be filed, in
the
form retained in the Company’s records pursuant to Rule 433(g) under the
Act.
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“Issuer-Represented
General Use Free Writing Prospectus” means any Issuer-Represented Free Writing
Prospectus that is intended for general distribution to prospective
investors.
“Issuer-Represented
Limited-Use Free Writing Prospectus” means any Issuer-Represented Free Writing
Prospectus that is not an Issuer-Represented General Use Free Writing
Prospectus;
(v) Each
Issuer-Represented Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the
Securities or until any earlier date that the Company notified or notifies
the
Representatives as described in Section 6(b), did not, does not and will not
include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to
the Company by an Underwriter through the Representatives expressly for use
therein;
(vi) A
registration statement on Form 8-A (File No. 001-33897) (the “Exchange Act
Registration Statement”) in respect of the Securities, including any
post-effective amendment, each in the form heretofore delivered to the
Representatives, has been filed with the Commission and is effective in
accordance with the Securities Exchange Act of 1934, as amended (the “Exchange
Act”); and no stop order suspending the effectiveness of the Exchange Act
Registration Statement or any post-effective amendment thereto, if any, has
been
issued and no proceeding for that purpose has been initiated or threatened
by
the Commission;
(vii) The
Exchange Act Registration Statement, at the time of filing thereof, conformed
in
all material respects to the requirements of the Exchange Act and the rules
and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
in
writing to the Company by an Underwriter through the Representatives expressly
for use therein;
(viii) The
Exchange Act Registration Statement conforms in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder; on the effective date and at any Time of Delivery (as defined in
Section 5 hereof), the Exchange Act Registration Statement did not or will
not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein;
(ix) Neither
the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included in each of the General Disclosure
Package and the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or
decree, otherwise than as set forth or contemplated in each of the General
Disclosure Package and the Prospectus; and since the
4
respective
dates as of which information is given in the Registration Statement, the
General Disclosure Package and the Prospectus, except as set forth or
contemplated in each of the General Disclosure Package and the Prospectus,
(A)
there has not been any material adverse change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any material adverse change,
or any development involving a prospective material adverse change, in or
affecting the general affairs, management, business prospects, financial
position, stockholders’ equity or results of operations of the Trust and the
Company and its subsidiaries taken as a whole (a “Material Adverse Effect”), (B)
there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries, taken as a whole,
and
(C) there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock, other than the dividend
payable to holders of the Company’s common stock with a record date of January
2, 2008;
(x) The
Company and its subsidiaries have good and marketable title in fee simple to
all
real property and good and marketable title to all personal, intangible and
intellectual property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in each of the General
Disclosure Package and the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and proposed
to be
made of such property by the Company and its subsidiaries; and any real property
and buildings and personal, intangible and intellectual property held or used
under lease or license by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases and licenses with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property by the Company and its subsidiaries, and as to which
no
lessor or licensor is in material breach or default and no event has occurred
that with the passage of time or giving of notice would result in a default
by
such lessor or licensor;
(xi) The
Company is a registered bank holding company under the Bank Holding Company
Act
of 1956, as amended, and has been duly incorporated and is validly existing
as a
corporation in good standing under the laws of the State of California, with
power and legal authority to own its properties and conduct its business as
described in each of the General Disclosure Package and the Prospectus, and
has
been duly qualified as a foreign corporation for the transaction of business
and
is in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, except where the failure to so qualify or be in good standing
does not have, and could not reasonably be expected to have, individually or
in
the aggregate, a Material Adverse Effect;
(xii) Each
subsidiary of the Company has been duly incorporated and is validly existing
as
a corporation or statutory trust, as the case may be, in good standing under
the
laws of its respective place of incorporation or organization, and the Company’s
banking subsidiary, Temecula Valley Bank (the “Bank”), has been duly chartered
and is validly existing as a California-chartered commercial bank, in good
standing under the laws of California, with power and legal authority to own
its
properties and conduct its business as described in each of the General
Disclosure Package and the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where the
failure to so qualify or be in
5
good
standing does not have, and could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; the deposit
accounts of the Bank are insured up to the applicable limits by the Federal
Deposit Insurance Corporation (the “FDIC”); all of the issued shares of capital
stock of the Bank have been duly authorized and validly issued and are fully
paid and nonassessable, and are owned directly by the Company, free and clear
of
any pledge, lien, encumbrance, claim or equity; and the Company does not own
or
control, directly or indirectly, any corporation, association or other entity
other than the Bank and Temecula Valley Statutory Trust II, Temecula
Valley Statutory Trust III, Temecula Valley Statutory Trust IV and Temecula
Valley Trust V (collectively, the “Other Trusts”);
(xiii) The
Company has an authorized capitalization as set forth in each of the General
Disclosure Package and the Prospectus under the caption “Capitalization” as
of the date indicated therein, and all of the issued shares of capital stock
of
the Company have been duly and validly authorized and issued, are fully paid
and
nonassessable and have been issued in compliance with federal and state
securities laws and conform to the description of the Securities contained
in
each of the General Disclosure Package and the Prospectus; and no such
shares were issued in violation of the preemptive or similar rights of any
security holder of the Company; and no person has any preemptive or similar
right to purchase any shares of capital stock or equity securities of the
Company (and for such purpose, options to purchase shares of Company common
stock issued under a plan or plans disclosed in the Company’s filings with the
Commission shall not be considered to represent preemptive or similar
rights);
(xiv) The
unissued Securities to be issued and sold by the Trust to the Underwriters
hereunder have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued
and
fully paid and nonassessable and will conform to the description of the
Securities contained in each of the General Disclosure Package and the
Prospectus;
(xv) The
Trust
has been duly created and is validly existing in good standing as a statutory
trust under the Delaware Statutory Trust Act (the “Delaware Act”) with full
trust power and authority to own property and to conduct its business as
described in the Registration Statement and Prospectus and is authorized to
do
business in each jurisdiction in which such qualification is required, except
where the failure to so qualify would not have a material adverse effect on
the
Trust’s condition (financial or otherwise) or results of operations taken as a
whole;
(xvi) The
Trust
has conducted and will conduct no business other than the transactions
contemplated by the Trust Agreement and described in the Prospectus; the Trust
is not a party to or otherwise bound by any agreement other than those described
in the Prospectus; the Trust is and will be classified for United States federal
income tax purposes as a grantor trust and not as an association taxable as
a
corporation; and the Trust will not be consolidated with the Company pursuant
to
generally accepted accounting principles (“GAAP”);
(xvii) The
Trust
Agreement, the Indenture and the Guarantee Agreement have been duly qualified
under the Trust Indenture Act;
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(xviii) The
Junior Subordinated Notes are in the form contemplated by the Indenture, have
been duly authorized, executed and delivered by the Company and, when
authenticated by the Indenture Trustee in the manner provided for in the
Indenture and delivered against payment therefore, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement thereof
may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles of
equity;
(xix) Except
as
described in each of the General Disclosure Package and the Prospectus, (A)
there are no outstanding rights (contractual or otherwise), warrants or options
to acquire, or instruments convertible into or exchangeable for, agreements
or
understandings with respect to the sale or issuance of, or restrictions upon
the
voting or transfer of any shares of capital stock of or other equity interest
in
the Company, the Junior Subordinated Notes, the common securities of the Trust
held by the Company (the “Common Securities”) or the Securities and (B) there
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act or otherwise register any securities of
the
Company owned or to be owned by such person. Neither the filing of
the Registration Statement nor the registration of the Securities, the Guarantee
or the Junior Subordinated Notes gives rise to any rights for or relating to
the
registration of any capital stock or other securities of the Company or the
Trust;
(xx) The
issue
and sale of the Securities by the Offerors and the compliance by the Company,
the Bank, and the Trust with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not conflict with
or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any contract, indenture, mortgage, deed of trust,
loan agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any
of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject (collectively, the “Agreements and
Instruments”), nor will any such action (A) result in any violation of the
provisions of the articles of incorporation or other organizational documents
or
bylaws of the Company or any of its subsidiaries or any law, statute or any
order, rule or regulation of any federal, state, local or foreign court,
arbitrator, regulatory authority or governmental agency or body (each, a
“Governmental Entity”) having jurisdiction over the Company or any of its
subsidiaries or any of their properties, assets, liabilities or credit or
deposit-gathering practices or (B) constitute a Repayment Event (as defined
below) under, or result in the creation or imposition of any lien, charge or
other encumbrance upon any assets or operations of the Company or any subsidiary
pursuant to, any of the Agreements and Instruments; and no consent, approval,
authorization, order, registration or qualification of or with any such
Governmental Entity is required for the issue and sale of the Securities or
the
consummation by the Company of the transactions contemplated by this Agreement,
except the registration under the Act effected or to be effected under the
Registration Statement, and as may be required under the rules and regulations
of the Financial Industry Regulatory Authority (“FINRA”) and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters; provided however, that
the Company makes no representations whatsoever with respect to
the satisfaction of requirements of FINRA, as the making and content of the
filings with FINRA are the sole responsibility of the
Underwriters. As used herein, a “Repayment Event” means any event or
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company or any subsidiary;
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(xxi) Neither
the Company nor any of its subsidiaries is (A) in violation of its articles
of
incorporation or charter, as applicable, or bylaws or (B) in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any of the Agreements and Instruments, except with respect to
subsection (B) for such default that would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect;
(xxii) The
statements set forth in each of the General Disclosure Package and the
Prospectus under the captions “Description of the Trust Preferred Securities,”
“Description of the Junior Subordinated Notes,” “Description of the Guarantee,”
and “Relationship Among Trust Preferred Securities, Junior Subordinated Notes
and Guarantee,” insofar as they purport to constitute a summary of the
terms of the securities of the Company, and under the caption “Regulatory
Considerations” insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate, and with respect to the
documents referred to therein, reflect the material terms of such
documents;
(xxiii) The
financial statements included in each of the Registration Statement, the General
Disclosure Package and the Prospectus, together with the supporting schedules,
if any, and notes, present fairly the consolidated financial condition of the
Company and its subsidiaries at the dates indicated and the consolidated results
of operations and cash flows of the Company and its subsidiaries for the periods
specified. Such financial statements and supporting schedules, if
any, have been prepared in conformity with GAAP applied on a consistent basis
throughout the periods involved. The selected financial data and the
summary financial information included in each of the Registration Statement,
the General Disclosure Package and the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement, the General
Disclosure Package and the Prospectus;
(xxiv) Each
of
the Company and its subsidiaries maintains a system of accounting controls
sufficient to provide reasonable assurances that (A) transactions are executed
in accordance with management’s general or specific authorization, (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (C)
access to assets is permitted only in accordance with the management’s general
or specific authorization and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences;
(xxv) The
Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) and 15d-15(e) under the
Act). Such disclosure controls and procedures (A) are designed to
ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company’s chief executive
officer and its chief financial officer by others within those entities to
allow
timely decisions regarding disclosures, (B) have been evaluated for
effectiveness as of the end of the most recent fiscal quarter and (C) are
effective to perform the functions for which they were
established. Neither the Company’s independent
8
registered
public accounting firm nor the Audit Committee of the Board of Directors of
the
Company has been advised of (1) any significant deficiencies or material
weaknesses in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the Company’s ability
to record, process, summarize, and report financial data or (2) any fraud,
whether or not material, that involves management employees or other
employees who have a role in the Company’s internal control over financial
reporting. Since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no changes in internal
control over financial reporting that have materially affected, or are
reasonably likely to materially affect the Company’s internal control over
financial reporting;
(xxvi) Neither
the Company nor any of its subsidiaries is subject or is party to, or has
received any notice or advice that any of them may become subject or party
to
any investigation with respect to, any corrective, suspension or
cease-and-desist order, agreement, consent agreement, memorandum of
understanding or other regulatory enforcement action, proceeding or order
with or by, or is a party to any commitment letter or similar undertaking to,
or
is subject to any directive by, or has been a recipient of any supervisory
letter from, or has adopted any board resolutions at the request of, any
Regulatory Agency (as defined below) that currently relates to or restricts
in
any material respect the conduct of their business or that in any manner relates
to their capital adequacy, credit policies or practices, deposit-gathering
or
retention, or management (each, a “Regulatory Agreement”), nor has the
Company or any of its subsidiaries been advised by any Regulatory Agency that
it
is considering issuing or requesting any such Regulatory
Agreement. There is no unresolved violation, criticism or exception
by any Regulatory Agency with respect to any report or statement relating
to any examinations of the Company or any of its subsidiaries or any of their
assets or liabilities which, in the reasonable judgment of the Company, is
expected to result in a Material Adverse Effect. As used herein, the
term “Regulatory Agency” means any Governmental Entity having supervisory or
regulatory authority with respect to the Company or any of its subsidiaries,
including, but not limited to, any federal or state agency charged with the
supervision or regulation of depositary institutions or holding companies of
depositary institutions, or engaged in the insurance of depositary institution
deposits, or the United States Small Business Administration (the
“SBA”);
(xxvii) Except
as
disclosed in each of the General Disclosure Package and the Prospectus, the
Company and its subsidiaries are conducting their respective businesses in
compliance with all statutes, laws, rules, regulations, judgments, decisions,
directives, orders and decrees of any Governmental Entity (including,
without limitation, all regulations and orders of, or agreements with, the
California Department of Financial Institutions, the Board of Governors
of Federal Reserve System (the “FRB”), the FDIC and SBA) applicable
to them, except where the failure to so possess or comply would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect;
(xxviii) Other
than as set forth in each of the General Disclosure Package and the Prospectus,
there are no legal or governmental actions, suits, investigations or proceedings
before or by any Governmental Entity, now pending or, to the best of the
Company’s knowledge, threatened or contemplated by Governmental Entities or
threatened by others, to which the Company or any of its subsidiaries is a
party
or of which any property or asset of the Company or any of its subsidiaries
is
the subject (A) that are required to be disclosed in the Registration Statement
by the Act or by the rules and regulations of the Commission thereunder and
not
disclosed therein or (B) which, if determined adversely to the Company or any
of
its subsidiaries, would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and there are no contracts
or documents of the Company or any of its subsidiaries that are required to
be described in the Registration Statement or to be filed as exhibits thereto
by
the Act or by the rules and regulations of the Commission thereunder which
have
not been so described and filed;
9
(xxix) Each
of
the Company and its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, “Governmental Licenses”) issued
by the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by the Company or its
subsidiaries; the Company and its subsidiaries are in compliance with the terms
and conditions of all such Governmental Licenses, except where the failures
so
to comply would not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect; all of the Governmental Licenses
are
valid and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in
full
force and effect would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and neither the Company nor any
of
its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would reasonably be expected to result in a Material Adverse
Effect;
(xxx) Each
of
the Company and its subsidiaries is in compliance with all applicable federal,
state and local environmental laws and regulations, including, without
limitation, those applicable to emissions to the environment, waste management,
and waste disposal, except where such noncompliance would not reasonably be
expected to have a Material Adverse Effect, or except as disclosed in each
of
the General Disclosure Package and the Prospectus, and to the knowledge of
the
Company, there are no circumstances that would prevent, interfere with or
materially increase the cost of such compliance in the future;
(xxxi) The
statistical and market related data contained in each of the General Disclosure
Package, the Prospectus or the Registration Statement are based on or derived
from sources which the Company believes are reliable and accurate;
(xxxii) This
Agreement, the Indenture, the Trust Agreement, and the Guarantee Agreement
have
been duly authorized, executed and delivered by the Company and/or the Trust,
as
the case may be, and constitute valid, legal and binding obligations of the
Company and/or the Trust, as the case may be, enforceable in accordance with
their respective terms, except as rights to indemnity hereunder may be limited
by federal or state securities laws and except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting
the
rights of creditors generally and subject to general principles of equity and,
with respect to Section 9 hereof, by the public policy underlying the federal
or
state securities laws;
(xxxiii) The
Common Securities have been duly authorized by the Trust Agreement and, when
issued and delivered by the Trust to the Company against payment therefore
as
described in the Prospectus, will be validly issued and (subject to the terms
of
the Trust Agreement) fully paid and nonassessable undivided beneficial interests
in the assets of the Trust and will conform to all statements relating thereto
contained in the Prospectus; and at the Closing Date or the Option Closing
Date,
as the case may be, all of the issued and outstanding Common Securities of
the
Trust will be directly owned by the Company free and clear of any security
interest, pledge, lien, encumbrance, claim or equity;
10
(xxxiv) The
Securities have been duly authorized by the Trust Agreement and, when issued
and
delivered pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued and fully paid and nonassessable undivided
beneficial interests in the Trust, will be entitled to the benefits of the
Trust
Agreement and will conform to the statements relating thereto contained in
the
Prospectus;
(xxxv) Each
of
the Administrative Trustees of the Trust is an officer or director of the
Company and has been duly authorized by the Company to execute and deliver
the
Trust Agreement;
(xxxvi) Neither
the Company nor any affiliate of the Company nor any person acting on their
behalf has taken, nor will the Company or any affiliate or any person acting
on
their behalf take, directly or indirectly, any action which is designed to
or
which has constituted or which would be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities;
(xxxvii) The
Company is not and, after giving effect to the offering and sale of the
Securities, and after receipt of payment for the Securities and the application
of such proceeds as described in each of the General Disclosure Package and
the
Prospectus, will not be an “investment company” or an entity “controlled” by an
“investment company”, as such terms are defined in the Investment Company Act of
1940, as amended (the “Investment Company Act”);
(xxxviii) ▇▇▇▇▇
▇▇▇▇▇▇ & Co. LLP, who have certified the 2005 and 2006 annual financial
statements and supporting schedules of the Company and its subsidiaries,
included in the Registration Statement, the General Disclosure Package and
the
Prospectus, is an independent registered public accounting firm as required
by
the Act and the rules and regulations of the Commission thereunder, and such
accountants are not in violation of the auditor independence requirements of
the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 with respect to the Company;
(xxxix) No
labor
problem or dispute with the employees of the Company or any of its subsidiaries
exists or, to the Company’s knowledge, is threatened or imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or its subsidiaries’ principal suppliers, contractors or
customers, that could have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business, except as set forth in
each of the General Disclosure Package and the Prospectus;
(xl) The
Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts
as
are prudent and customary in the business in which they are engaged; all
policies of insurance insuring the Company or any of its subsidiaries are in
full force and effect; the Company and its subsidiaries are in compliance with
the terms of such policies and instruments in all material respects; and there
are no claims by the Company or any of its subsidiaries under any such policy
or
instrument as to which any insurance company is denying liability or defending
under a reservation of rights clause; neither the Company nor any such
11
subsidiary
has been refused any insurance coverage sought or applied for; and neither
the
Company nor any such subsidiary has any reason to believe that it will not
be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse Effect,
except as set forth or contemplated in each of the General Disclosure Package
and the Prospectus;
(xli) The
Offerors have filed all foreign, federal, state and local tax returns that
are
required to be filed or are eligible for, and have requested, extensions
thereof, except as set forth or contemplated in each of the General Disclosure
Package and the Prospectus and have paid all taxes required to be paid by either
of them and any other assessment, fine or penalty levied against either of
them,
to the extent that any of the foregoing is due and payable, except for any
such
assessment, fine or penalty that is currently being contested in good faith
or
as would not have a Material Adverse Effect, except as set forth or contemplated
in each of the General Disclosure Package and the Prospectus;
(xlii) The
Bank
is not currently prohibited, directly or indirectly, from paying any dividends
to the Company or from making any other distribution on its capital stock,
and
no subsidiary of the Company is prohibited, directly or indirectly, from
repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary’s property or assets to the
Company or any other subsidiary of the Company, except as set forth or
contemplated in each of the General Disclosure Package and the
Prospectus;
(xliii) Any
“employee benefit plan” (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) established or maintained by
the Company, any of the subsidiaries or their “ERISA Affiliates” (as defined
below) is in compliance in all material respects with ERISA; “ERISA Affiliate”
means, with respect to the Company or any subsidiary, any member of any group
of
organizations described in Section 414(b), (c), (m) or (o) of the Internal
Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the “Code”) of which the Company or such subsidiary
is a member; no “reportable event” (as defined under ERISA) has occurred or
is reasonably expected to occur with respect to any “employee benefit plan”
established or maintained by the Company, any of the subsidiaries or any of
their ERISA Affiliates; no “employee benefit plan” established or maintained by
the Company, any of the subsidiaries or any of their ERISA Affiliates, if such
“employee benefit plan” were terminated, would have any “amount of unfunded
benefit liabilities” (as defined under ERISA); none of the Company, its
subsidiaries nor any of their ERISA Affiliates has incurred or reasonably
expects to incur any liability under (A) Title IV of ERISA with respect to
termination of, or withdrawal from, any “employee benefit plan” or (B) Sections
412, 4971, 4975 or 4980B of the Code; each “employee benefit plan” established
or maintained by the Company, any of the subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code
is
so qualified and nothing has occurred whether by action or failure to act,
which
would cause the loss of such qualification;
(xxxvii) Neither
the Trust, the Company nor any of its subsidiaries nor, to the knowledge of
the
Company, any director, officer, agent, employee or other person associated
with
or acting on behalf of the Trust or Company or any of its subsidiaries has
(A)
used any Trust or Company funds for any unlawful contribution, gift,
12
entertainment
or other unlawful expenses relating to political activity; (B) made any direct
or indirect unlawful payment of Trust or Company funds to any foreign or
domestic government official or employee; (C) violated or is in violation of
any
provision of the Foreign Corrupt Practices Act of 1977 with regard to the Trust
or Company or its subsidiaries; (D) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment with regard to Trust or Company
funds or activities; or (E) made any payment of funds to the Trust or Company
or
any of its subsidiaries or received or retained funds from the Trust or Company
or any of its subsidiaries in violation of any law, rule or regulation, which
payment, receipt or retention of funds is of a character required to be
disclosed in each of the General Disclosure Package and the Prospectus, that
is
not described in each of the General Disclosure Package and the Prospectus
as
required;
(xxxviii) The
operations of the Trust, the Company and its subsidiaries are and have been
conducted at all times in material compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes
of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced
by
any governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Trust, the Company or any
of
its subsidiaries with respect to the Money Laundering Laws is pending or,
to the best knowledge of the Company, threatened;
(xliv) No
relationship, direct or indirect, exists between or among the Trust, the Company
or any of its subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries,
on the other, that is required by the Act to be described in each of the General
Disclosure Package and the Prospectus and that is not so described;
(xlv) Except
as
described in each of the General Disclosure Package and the Prospectus, there
are no material off-balance sheet transactions, arrangements, obligations
(including contingent obligations), or any other relationships with
unconsolidated entities or other persons, that may have a material current
or
future effect on the Trust or the Company’s financial condition, changes in
financial condition, results of operations, liquidity, capital expenditures,
capital resources, or significant components of revenues or
expenses;
(xlvi) None
of
the Trust, the Company, any of its subsidiaries or, to the knowledge of the
Company, any director, officer, agent, employee or Affiliate of the Trust or
the
Company or any of its subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Department
of
the Treasury (“OFAC”), and neither the Trust nor the Company will knowingly use
the proceeds of the offering of the Securities hereunder, or lend, contribute
or
otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC;
(xlvii) The
likelihood that payments on the Securities will be deferred is remote, and
the
Company does not currently plan, anticipate, or intend any such
deferral;
13
(xlviii) No
payments on any securities issued by or to any of the Other Trusts have been
deferred, and the likelihood that payments on any securities issued by or to
any
of the Other Trusts will be deferred is remote, and neither the
Company nor any of the Other Trusts plan, anticipate, or intend any such
deferral;
(xlix) No
event
of default, breach, or fact or circumstance that itself or with the passage
of
time or giving of notice could result in a breach or event of default under
any
agreement related to any outstanding security issued by or to any of the Other
Trusts has occurred or is continuing;
(l) No
statement, representation, warranty or covenant made by the Company in this
Agreement or made in any certificate or document required by this Agreement
to
be delivered to the Underwriters was or will be, when made, inaccurate, untrue
or incorrect;
(li) At
the
time of filing the Registration Statement relating to the Securities and at
the
date hereof, the Company was not and is not an “ineligible issuer,” as defined
in Rule 405, including the Company or any of its subsidiaries in the preceding
three years not having been convicted of a felony or misdemeanor or having
been
made the subject of a judicial or administrative decree or order as described
in
Rule 405.
(b) The
Bank
represents and warrants to, and agrees with, each of the Underwriters
that:
(i) The
Bank
has been duly chartered and is validly existing in good standing under the
laws
of the state of California, with power and legal authority to own its properties
and conduct its business as described in each of the General Disclosure Package
and the Prospectus, and has been duly qualified as a foreign corporation for
the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified in any
such
jurisdiction;
(ii) The
Bank
has no subsidiaries;
(iii) The
Bank
is not in violation of its articles of incorporation, bylaws or other charter
documents or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which the Bank is a party or by which it may be
bound, or to which any of the property of the Bank is subject; and
(iv) The
execution, delivery and performance of this Agreement by the Bank and the
compliance by the Bank with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not conflict with
or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Bank is a party or
by
which the Bank is bound or to which any of the property or assets of the Bank
is
subject, nor will such action result in any violation of the provisions of
the
charter of the Bank or any statute or any order, rule or regulation of any
court
or governmental agency or body having jurisdiction over the Bank or any of
its
properties.
14
2. The
Representatives, on behalf of the several Underwriters, represent and warrant
to
the Company that the information set forth on the cover page of the Prospectus
with respect to price, underwriting discount and terms of the offering, and
under “Underwriting” in the Prospectus was furnished in writing to the Company
by and on behalf of the Underwriters specifically for use in connection with
the
preparation of the Registration Statement and is correct and complete in all
material respects.
3. Subject
to the terms and conditions herein set forth, (a) the Offerors agree to issue
and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Offerors the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule I hereto
and (b) in the event and to the extent that the Underwriters shall exercise
the
election to purchase Optional Securities as provided below, the Offerors agree
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Offerors that portion
of
the number of Optional Securities as to which such election shall have been
exercised (to be adjusted by the Offerors so as to eliminate fractional shares)
determined by multiplying such number of Optional Securities by a fraction,
the
numerator of which is the maximum number of Optional Securities which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Securities that all of the Underwriters are entitled to
purchase hereunder.
The
Offerors hereby grant to the Underwriters the right to purchase at their
election up to 262,500 Optional Securities for the sole purpose of covering
overallotments in the sale of the Firm Securities. Any such election
to purchase Optional Securities may be exercised only by written notice from
the
Representatives to the Offerors, given within a period of 30 calendar days
after
the date of this Agreement, setting forth the aggregate number of Optional
Securities to be purchased and the date on which such Optional Securities are
to
be delivered, as determined by the Representatives but in no event earlier
than the First Time of Delivery (as defined in Section 5 hereof) or, unless
the
Representatives and the Offerors otherwise agree in writing, earlier than two
or
later than ten business days after the date of such notice.
It
is
understood that each Underwriter has authorized the Representatives for such
Underwriter’s account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Firm Securities and the Optional Securities, if
any,
which such Underwriter has agreed to purchase. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. and/or ▇▇▇▇▇▇▇▇▇▇ Securities, Inc., individually and
not as representatives of the Underwriters, may (but shall not be obligated
to)
make payment of the purchase price for the Firm Securities or the
Optional Securities, if any, to be purchased by any Underwriter whose funds
have not been received by ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. or ▇▇▇▇▇▇▇▇▇▇
Securities, Inc., respectively, by the relevant Time of Delivery but such
payment shall not relieve such Underwriter from its obligations
hereunder.
4. Upon
the
authorization by ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. of the release of the
Firm Securities, the several Underwriters propose to offer the Firm Securities
for sale upon the terms and conditions set forth in the Prospectus, including
the compensation to the Underwriters described therein.
15
5. (a) The
Securities to be purchased by each Underwriter hereunder, in definitive form,
and in such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours prior notice to
the
Offerors, shall be delivered by or on behalf of the Offerors to the
Representatives, through the facilities of the Depository Trust Company (“DTC”),
for the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal (same
day) funds to the account specified by the Company, to the Representatives
at
least forty-eight hours in advance. The Offerors will cause the
certificates representing the Securities to be made available for checking
and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of DTC or its designated custodian
(the “Designated Office”). The time and date of such delivery and
payment shall be, with respect to the Firm Securities, 9:30 a.m., Chicago Time,
on January __, 2008 or such other time and date as the Representatives and
the
Company may agree upon in writing, and, with respect to the Optional Securities,
9:30 a.m., Chicago time, on the date specified by the Representatives in the
written notice given by the Representatives of the Underwriters’ election to
purchase such Optional Securities, or such other time and date as the
Representatives and the Offerors may agree upon in writing. Such time
and date for delivery of the Firm Securities is herein called the “First Time of
Delivery,” such time and date for delivery of the Optional Securities, if not
the First Time of Delivery, is herein called the “Second Time of Delivery,” and
each such time and date for delivery is herein called a “Time of
Delivery.”
(b) The
documents to be delivered at each Time of Delivery, or at such time as otherwise
to be delivered in accordance with the Representatives’ instructions, by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the cross
receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 8(k) hereof, will be delivered at the offices
of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Closing Location”), and the Securities will be
delivered at the Designated Office, all at such Time of Delivery. A
meeting will be held at the Closing Location at 2:00 p.m., Chicago Time, on
the
Chicago Business Day next preceding such Time of Delivery, at which meeting
the
final drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes
of this Section 5, “Chicago Business Day” shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in Chicago are generally authorized or obligated by law or executive order
to
close.
6. The
Offerors agree with each of the Underwriters:
(a) To
prepare the Prospectus in a form approved by the Representatives and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by the Representatives promptly after
reasonable notice thereof; to advise the Representatives, promptly after they
receive notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; to advise the Representatives, promptly
after they receive notice thereof, of the issuance by the Commission of any
stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus, Issuer-
16
Represented
Free Writing Prospectus or Prospectus, of the suspension of the qualification
of
the Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any request by
the
Commission for the amending or supplementing of the Registration Statement,
any
Preliminary Prospectus, any Issuer-Represented Free Writing Prospectus or
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus, Issuer-Represented Free Writing Prospectus or Prospectus
or suspending any such qualification, promptly to use their best efforts to
obtain the withdrawal of such order;
(b) If
at any
time following issuance of an Issuer-Represented Free Writing Prospectus there
occurred or occurs an event or development as a result of which such
Issuer-Represented Free Writing Prospectus conflicted or would conflict with
the
information contained in the Registration Statement or included or would include
an untrue statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in the light
of
the circumstances prevailing at that subsequent time, not misleading, the
Offerors have notified or will notify promptly the Representatives so that
any
use of such Issuer-Represented Free Writing Prospectus may cease until it is
amended or supplemented and the Offerors have promptly amended or will promptly
amend or supplement such Issuer-Represented Free Writing Prospectus to eliminate
or correct such conflict, untrue statement or omission; provided, however,
that this covenant shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for use
therein;
(c) That
unless they obtain the prior written consent of the Representatives, and each
Underwriter represents and agrees that, unless it obtains the prior written
consent of each of the Offerors and the Representatives, they have not made
and
will not make any offer relating to the Securities that would constitute an
“issuer free writing prospectus,” as defined in Rule 433 under the Act, or that
would otherwise constitute a “free writing prospectus,” as defined in Rule 405
under the Act, required to be filed with the Commission. Any
such free writing prospectus consented to by the Offerors and the
Representatives are hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Offerors represent that they have treated or agree
that they will treat each Permitted Free Writing Prospectus as an “issuer free
writing prospectus,” as defined in Rule 433, and have complied and will comply
with the requirements of Rule 433 applicable to any Permitted Free Writing
Prospectus, including timely filing with the Commission where required,
legending and record keeping. The Offerors represent that they have
satisfied the conditions in Rule 433 to avoid a requirement to file with the
Commission any electronic road show;
(d) Promptly
from time to time to take such action as the Representatives may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as the Representatives may request and to comply
with
such laws so as to permit the continuance of sales and dealings therein in
such
jurisdictions for as long as may be necessary to complete the distribution
of
the Securities, provided that in connection therewith the Offerors shall not
be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
17
(e) Prior
to
10:00 a.m., Chicago Time, on the Chicago Business Day next succeeding the date
of this Agreement and from time to time, to furnish the Underwriters with copies
of the Prospectus in Chicago in such quantities as the Representatives may
from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the time
of
issue of the Prospectus in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to amend
or
supplement the Prospectus in order to comply with the Act, to notify the
Representatives and upon the Representatives’ request to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any Underwriter
is
required to deliver a prospectus in connection with sales of any of the
Securities at any time nine months or more after the time of issue of the
Prospectus, upon ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.’s request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as
many
copies as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(f) To
make
generally available to their securityholders as soon as practicable, but in
any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations thereunder
(including, at the option of the Company, Rule 158);
(g) During
the period beginning from the date hereof and continuing to and including the
date 180 days after the date of the Prospectus, not to, and not to allow any
their directors or executive officers to, offer, sell, agree to sell, contract
to sell, hypothecate, pledge, grant any option to purchase, make any short
sale,
or otherwise dispose of or hedge, directly or indirectly, except as provided
hereunder any securities of the Company that are substantially similar to the
Securities, including, but not limited to, any securities that are convertible
into or exchangeable for, or that represent the right to receive Securities
or
publicly announce an intention to effect any such transaction, without ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.’s prior written consent; provided, however,
that if: (1) during the last 17 days of such 180-day period the
Company issues an earnings release or material news or a material event relating
to the Company occurs; or (2) prior to the expiration of such 180-day period,
the Company announces that it will release earnings results during the
16-day-period beginning on the last day of such 180-day period, the restrictions
imposed by this Section 6(g) shall continue to apply until the expiration of
the
18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event;
(h) To
furnish to their securityholders, as soon as practicable after the end of each
fiscal year, an annual report (including a balance sheet and statements of
income, stockholders’ equity and cash flows of the Company and its consolidated
subsidiaries certified by an independent registered public accounting firm)
and,
as soon as practicable after the end of each of the first three quarters of
each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to their securityholders
consolidated summary financial information of the Company in reasonable
detail;
18
(i) During
a
period of five years from the effective date of the Registration Statement,
to
furnish to the Representatives copies of all reports or other communications
(financial or other) furnished to the Security holders, and to deliver to the
Representatives (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the Company
is
listed; and (ii) such additional information concerning the business and
financial condition of the Company and the Trust as the Representatives may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Trust, the Company and
its
subsidiaries are consolidated in reports furnished to their securityholders
generally or to the Commission); Provided, however, that the Offerors shall
have
no obligation to furnish to the Representatives information which has been
made
available to the public through SEC filings and/or through press releases on
BusinessWire or a comparable distribution channel;
(j) To
use
the net proceeds received by them from the sale of the Securities pursuant
to
this Agreement in the manner specified in each of the General Disclosure Package
and the Prospectus under the caption “Use of Proceeds”;
(k) If
the
Offerors elect to rely on Rule 462(b), the Offerors shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b) by
10:00 p.m., Chicago time, on the date of this Agreement, and the Offerors shall
at the time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act;
(l) To
use
their best efforts to list for quotation the Securities on the NASDAQ Global
Market of the NASDAQ Stock Market LLC;
(m) During
the period beginning on the date hereof and ending on the later of the fifth
anniversary of the First Time of Delivery or the date on which the Underwriters
receive full payment in satisfaction of any claim for indemnification or
contribution to which they may be entitled pursuant to Section 9 of this
Agreement, neither the Trust, the Company nor the Bank shall, without the prior
written consent of the Representatives, take or permit to be taken any action
that could result in the Company’s or the Bank’s common stock becoming subject
to any security interest, mortgage, pledge, lien or encumbrance; provided,
however, that this covenant shall be null and void if the California Department
of Financial Institutions, the FDIC, or any other federal or state agency having
jurisdiction over the Bank, by regulation, policy statement or interpretive
release or by written order or written advice addressed to the Bank and
specifically addressing the provisions of Section 9 hereof, permits
indemnification of the Underwriters by the Bank as contemplated by such
provisions;
(n) To
file
with the Commission such information on Form 10-K or Form 10-Q as may be
required by Rule 463 under the Act; and
(o) To
comply, and to use their best efforts to cause the Company’s directors and
officers and the Trust’s trustees, in their capacities as such, to comply, in
all material respects, with all effective applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations
thereunder.
19
7. The
Offerors covenant and agree with the several Underwriters that the Company
will
pay or cause to be paid all costs and expenses incident to the issuance, offer,
sale and deliver of the Securities, including (i) all expenses and fees incident
to the filing of the Registration Statement with the SEC and the FINRA filing;
(ii) the reasonable costs and counsel fees of qualifications under state
securities laws; (iii) fees and disbursements of counsel and accountants for
the
Company; (iv) cost of printing as many copies of the underwriting documents,
Registration Statement, Prospectuses and Preliminary Prospectuses as the
Representatives may deem reasonably necessary and related exhibits, including
all related supplements and amendments to the Registration Statement; and (v)
all fees and expenses of Underwriters’ counsel as well as all advertising and
travel expenses incurred by the Underwriters in connection with the offering
which is the subject of this Agreement, up to $50,000 in the
aggregate. The Underwriters agree to pay all mailing, telephone,
clerical or other office costs incurred or to be incurred by the Underwriters
and their sales personnel.
8. The
obligations of the Underwriters hereunder, as to the Securities to be delivered
at each Time of Delivery, shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Offerors herein are, at and as of such Time of Delivery, true and correct,
the
condition that the Offerors shall have performed all of their obligations
hereunder theretofore to be performed, and the following additional
conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 6(a) hereof (or a
post-effective amendment shall have been filed and declared effective in
accordance with the requirements of Rule 430A); if the Offerors have elected
to
rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 p.m., Chicago Time, on the date of this Agreement; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to
the
Representatives’ reasonable satisfaction; and the FINRA shall have raised no
objection to the fairness and reasonableness of the underwriting terms and
arrangements;
(b) ▇▇▇▇,
Forward, ▇▇▇▇▇▇▇▇ & Scripps LLP, counsel for the Underwriters, shall have
furnished to the Representatives such written opinion or opinions, dated as
of
such Time of Delivery, with respect to the incorporation of the Company and
the
Trust Agreement, the validity of the Securities, the Trust Agreement, the
Indenture, the Guarantee Agreement, the Registration Statement, and the
Prospectus as amended or supplemented, and with respect to other related matters
as the Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, shall have furnished to the
Representatives their written opinion (a draft of such opinion is attached
as
Annex I hereto), dated such Time of Delivery, in form and substance satisfactory
to the Representatives, to the effect set forth in Annex I hereto and to such
further effect as counsel to the Underwriters may reasonably
request;
(d) Manatt,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP or its successor, tax counsel for the Company, shall
have furnished to the Representatives their written opinion (a draft of such
opinion is attached as Annex II hereto), dated such Time of Delivery, in form
and substance satisfactory to the Representatives, to the effect set forth
in
Annex II hereto and to such further effect as counsel to the Underwriters may
reasonably request;
20
(e) ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, counsel for Wilmington Trust Company, as Property Trustee
and Delaware Trustee under the Trust Agreement, Indenture Trustee under the
Indenture, and Guarantee Trustee under the Guarantee Agreement, and special
Delaware counsel to the Offerors, shall have furnished to the Representatives
their written opinions (drafts of such opinions are attached as Annex III
hereto), dated such Time of Delivery, in form and substance satisfactory to
the
Representatives, to such effect as counsel to the Underwriters may reasonably
request;
(f) On
the
date of the Prospectus at a time prior to the execution of this Agreement,
at
9:30 a.m., Chicago Time, on the effective date of any post-effective amendment
to the Registration Statement filed subsequent to the date of this Agreement
and
also at each Time of Delivery, ▇▇▇▇▇, ▇▇▇▇▇▇ & Co. shall have furnished to
the Representatives a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to the Representatives, to the
effect that they are independent public accountants with respect to the Trust,
the Company and the Company’s subsidiaries within the meaning of the Act and the
related rules and regulations and containing statements and information of
the
type ordinarily included in accountants’ “comfort letters” to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus (and the documents filed
under the Act incorporated by reference therein setting forth financial
information of the Company);
(g) (i)
Neither the Trust, the Company nor any of its subsidiaries shall have sustained
since the date of the latest audited financial statements included in each
of
the General Disclosure Package and the Prospectus any loss or interference
with
their business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus,
and (ii) since the respective dates as of which information is given in each
of
the General Disclosure Package and the Prospectus there shall not have been
any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
stockholders’ equity or results of operations of the Trust, the Company and
its subsidiaries, otherwise than as set forth or contemplated in each of the
General Disclosure Package and the Prospectus, the effect of which, in any
such
case described in Clause (i) or (ii), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities being delivered
at
such Time of Delivery on the terms and in the manner contemplated in each of
the
General Disclosure Package and the Prospectus;
(h) On
or
after the date hereof (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities by any “nationally recognized statistical
rating organization”, as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company’s debt securities;
21
(i) On
or
after the date hereof there shall not have occurred any of the following: (i)
a
suspension or material limitation in trading in securities generally on the
New
York Stock Exchange or on the NASDAQ Stock Market LLC; (ii) a suspension or
material limitation in trading in the Company’s securities on the NASDAQ Stock
Market LLC; (iii) a general moratorium on commercial banking activities declared
by either Federal or California authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war or a material adverse change in general
economic, political or financial conditions, including without limitation as
a
result of terrorist activities after the date hereof (or the effect of
international conditions on the financial markets in the United States shall
be
such), or any other calamity or crisis, if the effect of any such event
specified in this Clause (iv) in the judgment of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc. makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered at such Time of
Delivery on the terms and in the manner contemplated in the
Prospectus;
(j) The
Securities to be sold at such Time of Delivery shall have been duly listed
on
the NASDAQ Stock Market LLC;
(k) The
Offerors shall have complied with the provisions of Section 5(b) hereof with
respect to the furnishing of prospectuses as delivered in accordance with the
Representatives’ instructions; and
(l) The
Offerors shall have furnished or caused to be furnished to the Representatives
at such Time of Delivery certificates of officers of the Company, the Bank
and
trustees of the Trust satisfactory to the Representatives as to the accuracy
of
the representations and warranties of the Company, the Bank and the Trust herein
at and as of such Time of Delivery, as to the performance by the Company and
Trust of all of their obligations hereunder to be performed at or prior to
such
Time of Delivery, as to the matters set forth in subsections (a) and (g) of
this
Section and as to such other matters as the Representatives may reasonably
request.
9. (a) The
Trust, the Company and the Bank, jointly and severally, shall indemnify and
hold
harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject, under the
Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the General Disclosure Package, the
Prospectus or any individual Issuer-Represented Limited-Use Free Writing
Prospectus, when considered together with the General Disclosure Package, or
any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that neither the
Trust, the Company nor the Bank shall be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, the General
Disclosure Package, the Prospectus or any individual Issuer-Represented
Limited-Use Free Writing Prospectus, when considered together with the General
Disclosure Package, or any such amendment or supplement in reliance upon and
in
conformity with written information furnished to the Offerors by any Underwriter
through the
22
Representatives
expressly for use therein (provided that the Offerors and the Underwriters
hereby acknowledge and agree that the only information that the Underwriters
have furnished to the Offerors specifically for inclusion in any Preliminary
Prospectus, the Registration Statement, the General Disclosure Package, the
Prospectus or any individual Issuer-Represented Limited-Use Free Writing
Prospectus, when considered together with the General Disclosure Package, or
any
amendment or supplement thereto, are (i) the price and proceeds figures
appearing in the Prospectus in the section entitled “Underwriting,” (ii) the
section entitled “Underwriting” relating to the Underwriters’ reservation of the
right to withdraw, cancel or modify the offer contemplated by this Agreement
and
to reject orders in whole or in part, and (iii) the section entitled
“Underwriting” relating to stabilization transactions, over-allotment
transactions, syndicate covering transactions and penalty bids in which the
Underwriters may engage (collectively, the “Underwriters’
Information”). Notwithstanding the foregoing, the indemnification
provided for in this paragraph (a) shall not apply to the Bank to the extent
that such indemnification by the Bank is found in a final judgment by a court
of
competent jurisdiction to constitute a covered transaction under Section 23A
of
the Federal Reserve Act.
(b) Each
Underwriter shall indemnify and hold harmless the Offerors against any losses,
claims, damages or liabilities to which the Offerors may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the General Disclosure Package, the
Prospectus, or any individual Issuer-Represented Limited-Use Free Writing
Prospectus, when considered together with the General Disclosure Package, or
any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in
any Preliminary Prospectus, the Registration Statement, the General
Disclosure Package, the Prospectus or any individual Issuer-Represented
Limited-Use Free Writing Prospectus, when considered together with the General
Disclosure Package, or any such amendment or supplement, in reliance upon and
in
conformity with written information furnished to the Offerors by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Offerors for any legal or other expenses reasonably incurred
by
the Offerors in connection with investigating or defending any such action
or
claim as such expenses are incurred.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if
a
claim in respect thereof is to be made against the indemnifying party under
such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have under this Section 9 except to the
extent the indemnifying party has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure. In
case any such action shall be brought against any indemnified party and it
shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the
23
indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense
thereof. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to
the
entry of any judgment with respect to, any pending or threatened action or
claim
in respect of which indemnification or contribution may be sought hereunder
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an admission
of
fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If
the
indemnification provided for in this Section 9 is unavailable to or insufficient
to hold harmless an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute
to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Offerors on the one hand and the Underwriters on the other from the
offering of the Securities. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if
the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable
by
such indemnified party in such proportion as is appropriate to reflect not
only
such relative benefits but also the relative fault of the Offerors on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the
Offerors on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering
received by the Offerors bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table
on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by the Offerors on the one
hand
or the Underwriters on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. The Offerors and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one
entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include
any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any
damages which such Underwriter has otherwise been required to pay by reason
of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from
any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
24
(e) The
obligations of the Trust, the Company and the Bank under this Section 9 shall
be
in addition to any liability which the Trust, the Company and the Bank may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls (within the meaning of the Act) any Underwriter,
or
any of the respective partners, directors, officers and employees of any
Underwriter or any such controlling person; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company (including any person
who,
with his or her consent, is named in the Registration Statement as about to
become a director of the Company), each officer of the Company or trustee of
the
Trust who signs the Registration Statement and to each person, if any, who
controls the Trust, the Company or the Bank, as the case may be, within the
meaning of the Act.
10. (a) If
any Underwriter shall default in its obligation to purchase the Securities
which
it has agreed to purchase hereunder at a Time of Delivery, the Representatives
may in the Representatives’ discretion arrange for the Representatives or
another party or other parties to purchase such Securities on the terms
contained herein. If within thirty-six hours after such default by
any Underwriter the Representatives does not arrange for the purchase of such
Securities, then the Offerors shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Securities on such
terms. In the event that, within the respective prescribed periods,
the Representatives notify the Offerors that the Representatives have so
arranged for the purchase of such Securities, or the Offerors notify the
Representatives that the Offerors have so arranged for the purchase of such
Securities, the Representatives or the Offerors shall have the right to
postpone such Time of Delivery for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Offerors agree to file promptly any amendments to the
Registration Statement or the Prospectus which in the Representatives’ opinion
may thereby be made necessary. The term “Underwriter” as used in this Agreement
shall include any person substituted under this Section with like effect as
if
such person had originally been a party to this Agreement with respect to such
Securities.
(b) If,
after
giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Offerors
as provided in subsection (a) above, the aggregate number of such Securities
which remains unpurchased does not exceed one-tenth of the aggregate number
of
all the Securities to be purchased at such Time of Delivery, then the Offerors
shall have the right to require each non-defaulting Underwriter to purchase
the
number of shares which such Underwriter agreed to purchase hereunder at such
Time of Delivery and, in addition, to require each non-defaulting Underwriter
to
purchase its pro rata share (based on the number of Securities which such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made;
but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If,
after
giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Offerors
as provided in Section 10(a) hereof, the aggregate number of such Securities
which remains unpurchased exceeds one-tenth of the aggregate number of all
the
Securities to be purchased
25
at
such
Time of Delivery, or if the Offerors shall not exercise the right described
in
Section 10(b) hereof to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then this Agreement
(or,
with respect to the Second Time of Delivery, the obligations of the Underwriters
to purchase and of the Offerors to sell the Optional Securities) shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter
or
the Offerors, except for the expenses to be borne by the Offerors as provided
in
Section 7 hereof and the indemnity and contribution agreements in Section 9
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
11. The
respective indemnities, agreements, representations, warranties and other
statements of the Offerors, the Bank and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Offerors
or the Bank, or any officer or director or controlling person of the Company
or
the Bank or trustee of the Trust, and shall survive delivery of and payment
for
the Securities.
12. If
this
Agreement is terminated pursuant to Section 10 hereof, neither the Offerors
nor
the Bank shall then be under any liability to any Underwriter except as provided
in Sections 7 (in the case of the Offerors) and 9 (in the case of the Offerors
and the Bank) hereof; but, if for any other reason, any Securities are not
delivered by or on behalf of the Offerors as provided herein, the Offerors
will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses, including fees and disbursements of counsel, incurred by the
Underwriters in connection with the transactions contemplated hereby, including,
without limitation, marketing, syndication and travel expenses incurred by
the
Underwriters in making preparations for the purchase, sale and delivery of
the
Securities not so delivered, but the Offerors shall then be under no further
liability to any Underwriter except as provided in Sections 7 and 9
hereof.
13. In
all
dealings hereunder, the Representatives shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon
any
statement, request, notice or agreement on behalf of any Underwriter made or
given by the Representatives.
All
statements, requests, notices and agreements hereunder shall be in writing,
and
if to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to the Representatives at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Syndicate Manager; and
if
to the Company, the Trust, or to the Bank shall be delivered or sent
by mail to the address of the Offerors set forth in the Registration Statement,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; provided, however, that any notice to an
Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail
or facsimile transmission to such Underwriter at its address or facsimile number
set forth in its Underwriters’ Questionnaire, which address or facsimile number
will be supplied to the Offerors by the Representatives upon
request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
26
14. This
Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Offerors, the Bank and, to the extent provided in Sections
9
and 11 hereof, the officers and directors of the Company and of the Bank, the
trustees of the Trust and each person who controls the Company, the Bank, the
Trust or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Securities
from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Time
shall be of the essence of this Agreement. As used herein, the term
“business day” shall mean any day when the Commission’s office in Washington,
D.C. is open for business.
16. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California.
17. This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
If
the
foregoing is in accordance with your understanding, please sign and return
to us
four counterparts hereof, and upon the acceptance hereof by you, on behalf
of
each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters, the Offerors
and the Bank.
[signature
pages follow]
//
//
//
//
//
//
27
Accepted
as of the
date hereof:
By:_____________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President,
Chief Executive Officer, and Chairman of the Board
TEMECULA
VALLEY
BANK
By:____________________
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title: President
[Signatures
continued on following page]
28
Accepted
as
of the date hereof:
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
As
Representative of the Several Underwriters named in Schedule I
hereto
By:___________________
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title: President
and Chief Executive Officer
▇▇▇▇▇▇▇▇▇▇
SECURITIES, INC.
As
Representative of the Several Underwriters named in Schedule I
hereto
By:____________________________
Name:
Title:
[Signatures
continued on following page]
29
Accepted
as of the
date hereof:
TEMECULA
VALLEY STATUTORY TRUST VI
By:_________________________
▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇,
Administrative
Trustee
By:_________________________
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇,
Administrative
Trustee
By:_________________________
▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇,
Administrative
Trustee
30
SCHEDULE
I
|
Underwriter
|
Total
Number of Firm Securities to be Purchased
|
Number
of Optional Securities to be Purchased if Maximum Option
Exercised
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
|
||
|
▇▇▇▇▇▇▇▇▇▇
Securities, Inc.
|
||
|
Total
|
1,750,000
|
262,500
|
Schedule
I
ANNEX
I
Opinion
of Company Counsel
(i) The
Company is a registered bank holding company under the Bank Holding Company
Act
of 1956, as amended; has been duly incorporated and is validly existing as
a
corporation in good standing under the laws of the State of California, with
power and authority (corporate and other) to own its properties and conduct
its
business as described in the Prospectus;
(ii) The
Company has an authorized capitalization as set forth in the Prospectus under
the heading “Capitalization” as of the date therein and all of the issued shares
of capital stock of the Company have been duly and validly authorized and issued
and are fully paid and nonassessable; and the Securities conform to the
description of the Securities contained in the Prospectus;
(iii) Except
as
described in the Prospectus, (A) there are no outstanding rights (contractual
or
otherwise), warrants or options to acquire, or instruments convertible into
or
exchangeable for, or agreements or understandings with respect to the sale
or
issuance of, any shares of capital stock of or other equity interest in the
Company, other than rights issued under the compensation plans described in
the Company’s filings with the Commission in the ordinary course of
business; and (B) there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the Act or otherwise register any
securities of the Company owned or to be owned by such person;
(iv) The
Company has been duly qualified as a foreign corporation for the transaction
of
business and is in good standing under the laws of each other jurisdiction
in
which it owns or leases properties or conducts any business so as to require
such qualification, or is subject to any liability or disability by reason
of
failure to be so qualified in any jurisdiction, except where such failure to
be
so qualified would not have a Material Adverse Effect;
(v) Each
subsidiary of the Company either has been duly incorporated and is validly
existing as a corporation or a statutory trust or, in the case of the Bank,
has
been duly chartered and is validly existing as a California state-chartered
bank, in each case in good standing under the laws of the jurisdiction of its
organization, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been
duly qualified as a foreign corporation for the transaction of business and
is
in good standing under the laws of each other jurisdiction in which it owns
or
leases properties or conducts any business so as to require such qualification,
or is subject to no material liability or disability by reason of the failure
to
be so qualified in any such jurisdiction; the activities of the Bank are
permitted activities of a California state-chartered bank under applicable
law
and the rules and regulations of the California Department of Financial
Institutions and the deposit accounts of the Bank are insured up to the
applicable limits by the FDIC; all of the issued and outstanding capital stock
of each subsidiary of the Company has been duly authorized and validly issued
and is fully paid and nonassessable, and is owned, directly by the Company
free
and clear of any pledge, lien, encumbrance, claim or equity;
(vi) To
the
best of our knowledge, the Company and its subsidiaries have good and marketable
title to all real property owned by them, and any real property and buildings
held under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of
such
property and buildings by the Company and its subsidiaries;
Annex
I -
1
(vii) Except
as
disclosed in the Prospectus or documents incorporated by reference into the
Registration Statement, to our knowledge, the Company and its subsidiaries
are
conducting their respective businesses in compliance in all material respects
with all laws, rules, regulations, decisions, directives and orders (including,
without limitation, all regulations and orders of, or agreements with, the
FDIC,
the FRB, the California Department of Financial Institutions, the NASDAQ Stock
Market LLC, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, Equal Credit Opportunity Act, the Fair
Housing Act, the Community Reinvestment Act, the Home Mortgage Disclosure Act
and all other applicable fair lending laws or other laws relating to
discrimination and the Bank Secrecy Act and Title III of the USA Patriot Act)
and neither the Company nor any of its subsidiaries has received any
communication from any Governmental Entity asserting that the Company or any
of
its subsidiaries is not in material compliance with any statute, law, rule,
regulation, decision, directive or order; there is no action, suit,
investigation or proceeding before or by any Governmental Entity now pending
or,
to our knowledge, threatened or contemplated against or affecting the Company
or
any of its subsidiaries (A) that is required to be disclosed in the Registration
Statement and not disclosed therein, (B) that could result, individually or
in
the aggregate, in any Material Adverse Effect, or (C) that could adversely
affect the consummation of the transactions contemplated in this Agreement;
all
pending legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their property is the subject, which
are not described in the Registration Statement, including ordinary routine
litigation incidental to their respective businesses, either individually or
in
the aggregate, would not have a Material Adverse Effect;
(viii) This
Agreement has been duly authorized, executed and delivered by the Company,
the
Trust and the Bank;
(ix) No
consent, approval, authorization, order, registration or qualification of or
with any court or Governmental Entity is required for the issue and sale of
the
Securities or the consummation by the Company of the transactions contemplated
by the Agreement, except the registration under the Act and under the Exchange
Act of the Securities, and except as may be required under the rules and
regulations of the FINRA and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Securities
by the Underwriters;
(x) Neither
the Company nor any of its subsidiaries (i) is in violation of its certificate
of incorporation or charter (as applicable) or bylaws or; (ii) to our knowledge,
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed
of
trust, loan agreement, lease or other agreement or instrument to which it is
a
party or by which it or any of its properties may be bound, filed as an exhibit
to the Registration Statement or other filings with the Commission incorporated
by reference into the Registration Statement;
(xi) The
statements set forth in the Prospectus under the captions “Description of the
Securities,” “Description of the Junior Subordinated Notes,” “Book-Entry
System,” “Description of the Guarantee,” “Relationship Among the Trust Preferred
Securities, Junior Subordinated Notes and the Guarantee,” “Regulatory
Considerations,” “Underwriting,” and “ERISA Considerations” in the Prospectus,
insofar as such statements constitute a summary of documents referred to therein
or matters of law, are accurate ,and with respect to such documents, reflect
the
material terms of such documents;
Annex
I -
2
(xii) To
the
best of our knowledge, each of the Company and its subsidiaries possess all
Governmental Licenses and have made all filings, applications and registrations
with all Governmental Entities that are required in order to permit the Company
or such subsidiary to conduct its business as presently conducted, except where
the failure to possess such Governmental License or to have made such filing,
application or registration would not, individually or in the aggregate, have
a
Material Adverse Effect; all of the Governmental Licenses are valid and in
full
force and effect, except where the invalidity of such Governmental Licenses
to
be in full force and effect, individually or in the aggregate, would not have
a
Material Adverse Effect; and neither the Company nor any of its subsidiaries
has
received any notice of proceedings relating to the revocation or modification
of
any such Governmental Licenses which, individually or in the aggregate, if
the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect;
(xiii) To
the
best of our knowledge, neither the Company nor any of its subsidiaries is a
party to or subject to any order, decree, agreement, memorandum of understanding
or similar arrangement with, or a commitment letter, supervisory letter or
similar submission to, any Governmental Entity charged with the supervision
or
regulation of depository institutions, their credit or deposit-gathering
activities, or engaged in the insurance of deposits (including the FDIC and
the
SBA) or the supervision or regulation of it or any of its subsidiaries and
neither the Company nor any of its subsidiaries has been advised by any such
Governmental Entity that such Governmental Entity is contemplating issuing
or
requesting (or is considering the appropriateness of issuing or requesting)
any
such order, decree, agreement, memorandum of understanding, commitment letter,
supervisory letter or similar submission;
(xiv) Neither
the Trust nor the Company are, and after giving effect to the offering and
sale
of the Securities, will not be, an “investment company” or an entity
“controlled” by an “investment company”, as such terms are defined in the
Investment Company Act;
(xv) The
documents incorporated by reference in the Prospectus (other than the financial
statements and related schedules therein, as to which we need express no
opinion), when they were filed with the Commission, complied as to form in
all
material respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and we have no reason to believe
that
any such documents, when such documents were so filed, contained an untrue
statement of a material fact or omitted to state a material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading;
(xvi) The
Registration Statement and the Prospectus and any further amendments and
supplements thereto made by the Company prior to such Time of Delivery (other
than the financial statements and related schedules therein, as to which we
need
express no opinion) comply as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder; and we do
not
know of any contracts or other agreements of a character required to be
incorporated by reference into the Prospectus or required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or Prospectus which are not filed or incorporated by
reference or described as required;
Annex
I -
3
(xvii) The
Registration Statement has become effective under the Act, the Securities are
registered under the Exchange Act, and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement or registration
under the Exchange Act has been issued and no proceedings for that purpose
have
been instituted or are pending or contemplated under the Act or the Exchange
Act;
(xviii) The
holders of the Company’s outstanding securities are not entitled to any
preemptive or other rights to subscribe for the Junior Subordinated Notes or
the
Securities under the Company’s bylaws and, to our knowledge, no such rights
exist under any other agreement or arrangement;
(xix) All
of
the issued and outstanding Common Securities of the Trust are owned by the
Company and, to the best of our knowledge, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable
right;
(xx) The
Trust
Agreement, the Indenture and the Guarantee have been duly qualified under the
Trust Indenture Act;
(xxi) The
Junior Subordinated Notes are in the form contemplated by the Indenture, have
been duly authorized, executed and delivered by the Company and, when
authenticated by the Indenture Trustee in the manner provided for in the
Indenture and delivered against payment therefor, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement thereof
may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles of
equity;
(xxii) The
Junior Subordinated Notes are subordinate and junior in right of payment to
all
Senior Indebtedness (as defined in the Indenture) of the Company;
(xxiii) To
the
best of our knowledge and information after due inquiry, (A) the Trust is not
required to be authorized to do business in any jurisdiction other than
Delaware, except where the failure to be so authorized would not have a material
adverse effect on the Trust’s condition (financial or otherwise) or results of
operations taken as a whole; and (B) the Trust is not a party to or
otherwise bound by any material agreement other than those described in the
Prospectus;
(xxiv) The
Trust
Agreement has been duly executed and delivered by the Administrative
Trustees;
(xxv) No
Capital Disqualification Event (as defined in the Indenture) has
occurred;
(xxvi) The
Offerors satisfy all of the requirements of the Act for use of Form S-3 for
the
offering of Securities contemplated by this Agreement;
(xxvii) The
Company has full corporate power and authority and the Trust has full trust
power and authority to enter into this Agreement, the Indenture, the Trust
Agreement, and the Guarantee Agreement, as applicable, and to issue the Junior
Subordinated Notes and to effect the transactions contemplated by this
Agreement, the Indenture, the
Annex
I -
4
Trust
Agreement, and the Guarantee Agreement, as applicable, and each of this
Agreement, the Indenture, the Trust Agreement, and the Guarantee Agreement
has
been duly authorized, executed and delivered by the Company and the Trust,
as
applicable, and constitutes a valid, legal and binding obligation of the Company
and the Trust, as applicable, enforceable in accordance with its terms (except
as rights to indemnity hereunder may be limited by federal or state securities
laws and except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally
and
subject to general principles of equity).
(xxviii) The
execution, delivery and performance of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement, the Securities, the Common Securities,
and
the Junior Subordinated Notes and the consummation of the transactions therein
contemplated will not, to the best of our knowledge, result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
(i) any statute, rule or regulation, (ii) any lease, contract, indenture,
mortgage, loan agreement or other agreement or instrument filed as an exhibit
to
the Registration Statement or other filings with the Commission incorporated
by
reference into the Registration Statement, to which the Company, the Trust
or
any of the Company’s subsidiaries is a party or by which it is bound or to which
any of its property is subject, (iii) the Company’s or any of its subsidiaries’
charter or bylaws, or the Certificate of Trust, or (iv) any permit,
judgment, order or decree known to us of any court or governmental agency or
body having jurisdiction over the Company, the Trust or any of the Company’s
subsidiaries or any of their respective properties, except, with respect to
(i),
(ii) or (iv), for any breach, violation or default which would not have a
Material Adverse Effect.
(xxix) No
consent, approval, authorization, order of, designation, declaration or filing
by or with, any court or any regulatory, administrative or governmental agency
or body is required for the execution, delivery and performance of this
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the
Common Securities, the Securities, or the Junior Subordinated Notes, or for
the
consummation of the transactions contemplated hereby or thereby, including
the
issuance or sale of the Junior Subordinated Notes by the Company and the Common
Securities and Securities by the Trust, except (A) such as may be required
under
the Act or the Exchange Act, which have been obtained or made, and (B) the
qualification of the Trust Agreement, the Guarantee Agreement and the Indenture
under the Trust Indenture Act and the regulations thereunder, all of which
have
been effected. Neither the filing of the Registration Statement and the
registration of the Junior Subordinated Notes, the Guarantee and the Securities
under the Act nor the registration of the Securities under the Exchange Act,
gives rise to any rights for or relating to the registration of any shares
of
capital stock or other securities of the Company;
In
addition, nothing has come to our attention that would lead us to believe that
the Registration Statement (except for financial statements and schedules and
other financial or statistical data included therein, as to which we make no
statement), at the time it became effective, or that the General Disclosure
Package as of the Applicable Time, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus
or any further amendment or supplement thereto made by the Company prior to
such
Time of Delivery (except for financial statements and schedules and other
financial or statistical data
Annex
I -
5
included
therein, as to which counsel need make no statement), at the time the
Registration Statement became effective and at such Time of Delivery, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
Annex
I -
6
ANNEX
II
Opinion
of Offerors Tax Counsel
(1) under
the current law, the Trust will be classified for United States federal income
tax purposes as a grantor trust and not as an association or publicly traded
partnership taxable as a corporation, and accordingly, for United States federal
income tax purposes each beneficial owner of Preferred Securities will be
treated as owning an undivided beneficial interest in the Securities, and stated
interest on the Securities generally will be included in income by a holder
of
Preferred Securities at the same time such interest is paid or accrued in
accordance with such holder’s regular method of tax accounting;
(2) for
United States federal income tax purposes, the Securities will constitute
indebtedness of the Company; and
(3) the
statements set forth in the Registration Statement under the caption “Certain
United States Federal Income Tax Consequences,” subject to the qualifications
set forth therein and in this letter, to the extent they describe United States
federal income tax laws or legal conclusions, constitute accurate summaries
of
the matters described therein in all material respects.
Annex
II -
1
ANNEX
III
Opinions
of Trustee Counsel
[forms
of
opinion to be set forth in full]
[see
attached .pdf documents]
Annex
III -1