EXHIBIT 1
1,400,000 Preferred Securities
Local Financial Capital Trust I
[_____]% Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
_______________, 2001
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
▇▇▇▇▇▇▇▇, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
as Representatives of the Several Underwriters
named in Schedule I hereto
c/o ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
as co-Representative of the Several Underwriters
named in Schedule I hereto
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Local Financial Corporation, a Delaware corporation (the "Company")
and its financing subsidiary, Local Financial Capital Trust I, a Delaware
business trust (the "Trust," and hereinafter together with the Company, the
"Offerors"), propose that the Trust issue and sell to the several
underwriters listed on Schedule I hereto (the "Underwriters"), pursuant to
the terms of this Agreement, 1,400,000 of the Trust's [_____]% Cumulative
Trust Preferred Securities, with a liquidation amount of $25.00 per preferred
security (the "Preferred Securities"), to be issued under the Trust Agreement
(as hereinafter defined), the terms of which are more fully described in the
Prospectus (as hereinafter defined). The aforementioned 1,400,000 Preferred
Securities to be sold to the Underwriters are herein called the "Firm
Preferred Securities." Solely for the purpose of covering over-allotments in
the sale of the Firm Preferred Securities, the Offerors further propose that
the Trust issue and sell to the Underwriters, at their option, up to an
additional 210,000 Preferred Securities (the "Option Preferred Securities")
upon exercise of the over-allotment option granted in Section 1 hereof. The
Firm Preferred Securities and any Option Preferred Securities are herein
collectively referred to as the "Designated Preferred Securities." ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated and
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. are acting as representatives of the
Underwriters and in such capacity are sometimes herein referred to as the
"Representatives."
The Offerors hereby confirm as follows their agreement with each of the
Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED SECURITIES,
DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and agreements herein
contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to each of the
Underwriters and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $25.00 per Preferred Security
(the "Purchase Price"), the respective number of Firm Preferred Securities set
forth opposite the name of such Underwriter in Schedule I hereto. Because the
proceeds from the sale of the Firm Preferred Securities will be used to purchase
from the Company its Debentures (as hereinafter defined and as described in the
Prospectus), the Company shall pay to each Underwriter a commission of $[_____]
per Firm Preferred Security purchased (the "Firm Preferred Securities
Commission"). The Representatives may by notice to the Company amend Schedule I
to add, eliminate or substitute names set forth therein (other than to eliminate
the name of the Representatives) and to amend the number of Firm Preferred
Securities to be purchased by any firm or corporation listed thereon, provided
that the total number of Firm Preferred Securities listed on Schedule I shall
equal 1,400,000.
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants to the Underwriters, severally and not jointly,
an option to purchase all or any portion of the 210,000 Option Preferred
Securities, and upon the exercise of such option in accordance with this Section
1, the Offerors hereby agree that the Trust shall issue and sell to the
Underwriters, severally and not jointly, all or any portion of the Option
Preferred Securities at the same Purchase Price per share paid for the Firm
Preferred Securities. If any Option Preferred Securities are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Trust
that proportion (subject to adjustment as you may determine to avoid fractional
shares) of the number of Option Preferred Securities to be purchased that the
number of Firm Preferred Securities set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to 1,400,000. Because the proceeds from the sale of the
Option Preferred Securities will be used to purchase from the Company its
Debentures, the Company shall pay to the Underwriters a commission of $[_____]
per Option Preferred Security for each Option Preferred Security purchased (the
"Option Preferred Securities Commission"). The option hereby granted (the
"Option") shall expire 30 days after the date upon which the Registration
Statement (as hereinafter defined) becomes effective and may be exercised only
for the purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Firm Preferred Securities. The Option may
be exercised in whole or in part at any time (but not more than once) by you
giving notice (confirmed in writing) to the Trust setting forth the number of
Option Preferred Securities as to which the Underwriters are exercising the
Option and the time, date and place for payment and delivery of the Global
Securities (as hereafter defined) for such Option Preferred Securities. Such
time and date of payment and delivery for the Option Preferred Securities (the
"Option Closing Date") shall be determined by you, but shall not be earlier than
two nor later than five full business days after the exercise of such Option,
nor in any event prior to the Closing Date (as hereinafter defined). The Option
Closing Date may be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities
Commission and delivery of the Global Securities for the Firm Preferred
Securities shall be made at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company,
Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such
other place as shall be agreed to by you and the Offerors, at 10:00 a.m., St.
Louis time, on the third (or, if permitted by Rule 15c6-1(c) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), not later than 12:00 p.m. on
the fourth) full business day following the date of this Agreement (the "Closing
Date"), or unless postponed in accordance with the provisions of Section 9. The
Trust shall deliver or cause to be delivered to you for the account of the
Underwriters against payment to or upon the order of the Trust of the Purchase
Price in federal or other immediately available funds, the Firm Preferred
Securities in the form of one or more permanent global securities in definitive
form (the "Global Securities") deposited with the Property Trustee (as
identified below) as custodian for the Depository Trust Company ("DTC")
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and registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry form. If the
Underwriters exercise the option to purchase any or all of the Option Preferred
Securities, payment of the Purchase Price and Option Preferred Securities
Commission and delivery of the Global Securities for such Option Preferred
Securities shall be made on the Option Closing Date at the Underwriters'
offices, or at such other place as the Offerors and you shall determine. Upon
delivery, the Option Preferred Securities shall be in the form of one or more
Global Securities registered in the name of Cede & Co., as nominee of DTC. Such
payments shall be made to an account designated by the Trust by wire transfer of
same day funds, in the amount of the Purchase Price therefor, against delivery
by or on behalf of the Trust to you for the respective accounts of the several
Underwriters of one or more Global Certificates for the Designated Preferred
Securities to be purchased by the Underwriters.
Time shall be of the essence, and delivery of the Global Securities for
the Designated Preferred Securities at the time and place specified pursuant to
this Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement among
Bank of New York, as Delaware Trustee and Property Trustee, the Administrative
Trustees named therein (collectively, the "Trustees"), and the Company, in
substantially the form heretofore delivered to the Underwriters, said Agreement
being hereinafter referred to as the "Trust Agreement." In connection with the
issuance of the Designated Preferred Securities, the Company proposes (i) to
issue its [_____]%Junior Subordinated Debentures due 2031 (the "Debentures")
pursuant to an Indenture, to be dated as of [_______________], 2001, between the
Company and Bank of New York, as indenture trustee (the "Indenture") and (ii) to
guarantee certain payments on the Designated Preferred Securities pursuant to a
Preferred Securities Guarantee Agreement between the Company and Bank of New
York, as guarantee trustee (the "Guarantee"), to the extent described therein.
2. REPRESENTATIONS AND WARRANTIES.
The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters that:
(i) The reports filed with the Securities and Exchange
Commission (the "Commission") by the Company under the 1934 Act and the
rules and regulations thereunder (the "1934 Act Regulations") at the
time they were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and the 1934
Act Regulations 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
in which they were made, not misleading.
(ii) The Offerors have prepared and filed with the
Commission a registration statement on Form S-3 (File Numbers
333-[_____] and 333-[_____]-01) for the registration of the Designated
Preferred Securities, the Guarantee and up to $41,494,850 aggregate
principal amount of Debentures under the Securities Act of 1933, as
amended (the "1933 Act"), including the related prospectus subject to
completion, and one or more amendments to such registration statement
may have been so filed, in each case in conformity in all material
respects with the requirements of the 1933 Act, the rules and
regulations promulgated thereunder (the "1933 Act Regulations") and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the rules and regulations thereunder. The conditions for use
of Form S-3, as set forth in the General Instructions thereto, have
been satisfied. Copies of such registration statement, including
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any amendments thereto and any documents incorporated by reference
therein, each Preliminary Prospectus (as defined herein) contained
therein and the exhibits, financial statements and schedules to such
registration statement, as finally amended and revised, have
heretofore been delivered by the Offerors to the Representatives.
After the execution of this Agreement, the Offerors will file with the
Commission (A) if such registration statement, as it may have been
amended, has been declared by the Commission to be effective under the
1933 Act, a prospectus in the form most recently included in an
amendment to such registration statement (or, if no such amendment
shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A of the 1933 Act
Regulations ("Rule 430A") or permitted by Rule 424(b) of the 1933 Act
Regulations ("Rule 424(b)") and as have been provided to and not
objected to by the Representatives prior to (or as are agreed to by
the Representatives subsequent to) the execution of this Agreement, or
(B) if such registration statement, as it may have been amended, has
not been declared by the Commission to be effective under the 1933
Act, an amendment to such registration statement, including a form of
final prospectus, necessary to permit such registration statement to
become effective, a copy of which amendment has been furnished to and
not objected to by the Representatives prior to (or is agreed to by
the Representatives subsequent to) the execution of this Agreement. As
used in this Agreement, the term "Registration Statement" means such
registration statement, as amended at the time when it was or is
declared effective under the 1933 Act, including (1) all financial
schedules and exhibits thereto, (2) all documents (or portions
thereof) incorporated by reference therein filed under the 1934 Act,
and (3) any information omitted therefrom pursuant to Rule 430A and
included in the Prospectus (as hereinafter defined); the term
"Preliminary Prospectus" means each prospectus subject to completion
filed with such registration statement or any amendment thereto,
including all documents (or portions thereof) incorporated by
reference therein under the 1934 Act (including the prospectus subject
to completion, if any, included in the Registration Statement and each
prospectus filed pursuant to Rule 424(a) under the 1933 Act); and the
term "Prospectus" means the prospectus first filed with the Commission
pursuant to Rule 424(b)(1) or (4) or, if no prospectus is required to
be filed pursuant to Rule 424(b)(1) or (4), the prospectus included in
the Registration Statement, in each case including the financial
schedules and all documents (or portions thereof) incorporated by
reference therein under the 1934 Act. The date on which the
Registration Statement becomes effective is hereinafter referred to as
the "Effective Date."
(iii) The documents incorporated by reference in the
Preliminary Prospectus or Prospectus or from which information is so
incorporated by reference, when they became effective or were filed
with the Commission, as the case may be, complied in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and when read together and with the other information in
the Preliminary Prospectus or Prospectus, as the case may be, at the
time the Registration Statement became or becomes effective and at the
Closing Date and any Option Closing Date, did not or will not, as the
case may be, 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. As of the date that each Preliminary
Prospectus was filed with the Commission or as of the date that the
Prospectus and any amendment or supplement thereto was filed with the
Commission (or, if not filed, on the date provided by the Offerors to
the Underwriters in connection with the offering and sale of the
Preferred Securities), as the case may be, no event has or will have
occurred which should have been set forth in an amendment or
supplement to any of the documents incorporated by reference in the
Preliminary Prospectus or Prospectus which has not then been set forth
in such an amendment or supplement.
(iv) No order preventing or suspending the use of any
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) has been issued by the Commission,
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nor has the Commission, to the knowledge of the Offerors, threatened
to issue such an order or instituted proceedings for that purpose.
Each Preliminary Prospectus, at the time of filing thereof, (A)
complied in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and (B) did not contain an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that this representation and warranty
does not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Offerors by
any of the Underwriters expressly for inclusion in the Prospectus
beneath the heading "Underwriting" (such information referred to
herein as the "Underwriters' Information"). As of the date that each
Preliminary Prospectus was filed with the Commission or as of the date
that the Prospectus and any amendment or supplement thereto was filed
with the Commission (or, if not filed, on the date provided by the
Offerors to the Underwriters in connection with the offering and sale
of the Designated Preferred Securities), as the case may be, no event
has or will have occurred which should have been set forth in an
amendment or supplement to the Preliminary Prospectus or Prospectus
which has not been set forth in the Preliminary Prospectus, Prospectus
or such an amendment or supplement. Each Preliminary Prospectus and
the Prospectus will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval ("▇▇▇▇▇") system, except to the
extent permitted by Regulation S-T.
(v) The Registration Statement has been declared effective
under the 1933 Act, and no post-effective amendment to the
Registration Statement has been filed with the Commission as of the
date of this Agreement. No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the Company's knowledge, threatened
by the Commission. At the Effective Date and at all times subsequent
thereto, up to and including the Closing Date and, if applicable, the
Option Closing Date, the Registration Statement and any post-effective
amendment thereto (A) complied and will comply in all material
respects with the requirements of the 1933 Act, the 1933 Act
Regulations and the Trust Indenture Act (and the rules and regulations
thereunder) and (B) did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, not
misleading; PROVIDED, HOWEVER, that this representation and warranty
does not apply to Underwriters' Information. At the Effective Date and
at all times when the Prospectus is required to be delivered in
connection with offers and sales of Designated Preferred Securities,
including, without limitation, the Closing Date and, if applicable,
the Option Closing Date, the Prospectus, as amended or supplemented,
(A) complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the
Trust Indenture Act (and the rules and regulations thereunder) and (B)
did not contain and will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this representation and warranty does not apply to
Underwriters' Information. As of the date that the Registration
Statement was filed with the Commission, no event has or will have
occurred which should have been set forth in an amendment or
supplement to the Registration Statement which has not then been set
forth in such an amendment or supplement. The Registration Statement
will be identical to the electronically transmitted copy thereof filed
with the Commission pursuant to its ▇▇▇▇▇ system, except to the extent
permitted by Regulation S-T.
(vi)
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(A) The Company is duly organized, validly existing
and in good standing under the laws of the State of Delaware, with
full corporate and other power and authority to own, lease and operate
its properties and conduct its business as described in and
contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted and is duly registered as
a bank holding company under the Bank Holding Company Act of 1956, as
amended (the "BHC Act").
(B) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the
Delaware Business Trust Act with the power and authority (trust and
other) to own its property and conduct its business as described in
the Registration Statement and Prospectus, to issue and sell its
common securities (the "Common Securities") to the Company pursuant to
the Trust Agreement, to issue and sell the Designated Preferred
Securities, to enter into and perform its obligations under this
Agreement and to consummate the transactions herein contemplated; the
Trust has no subsidiaries and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or the ownership of its property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Trust; the Trust has conducted and will conduct no
business other than the transactions contemplated by this Agreement
and described in the Prospectus; the Trust is not a party to or bound
by any agreement or instrument other than this Agreement, the Trust
Agreement among the Administrative Trustees, the Company and Bank of
New York dated August 17, 1999 (the "Original Trust Agreement") and
the agreements and instruments contemplated by the Trust Agreement and
described in the Prospectus; the Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement and the Trust Agreement and described
in the Prospectus; the Trust is not a party to or subject to any
action, suit or proceeding of any nature; the Trust is, and at the
Closing Date or any Option Closing Date will be, classified as a
grantor trust for United States federal income tax purposes; the Trust
is not, and at the Closing Date or any Option Closing Date will not
be, classified as an association taxable as a corporation for United
States federal income tax purposes; and the Trust is, and as of the
Closing Date or any Option Closing Date will be, treated as a
consolidated subsidiary of the Company pursuant to generally accepted
accounting principles.
(vii) The Company has only the direct and indirect
subsidiaries identified on Exhibit A attached hereto and incorporated
herein (the "Subsidiaries"). The Company does not own or control,
directly or indirectly, more than 5% of any class of equity security
of any corporation, association or other entity other than the
Subsidiaries. Each Subsidiary is a corporation, limited liability
company, business trust or bank duly organized or incorporated, as the
case may be, validly existing and in good standing under the laws of
its respective jurisdiction of organization. Each such Subsidiary has
full power and authority to own, lease and operate its properties and
to conduct its business as described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and as
currently being conducted. The deposit accounts of Local Oklahoma
Bank, National Association (the "Bank") are insured by the Federal
Deposit Insurance Corporation (the "FDIC") up to the maximum amount
provided by law; and no proceedings for the modification, termination
or revocation of any such insurance are pending or, to the knowledge
of the Offerors, threatened.
(viii) The Company and each of the Subsidiaries is duly
qualified to transact business as a foreign corporation, limited
liability company, bank or business trust, as the case may be, and is
in good standing in each other jurisdiction in which it owns or leases
property or
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conducts its business so as to require such qualification and in which
the failure to so qualify would, individually or in the aggregate,
have a Material Adverse Effect (as hereinafter defined). All of the
issued and outstanding shares of capital stock or membership interests
of the Subsidiaries (A) have been duly authorized and are validly
issued, (B) are fully paid and nonassessable except to the extent such
shares or interests may be deemed assessable under 12 U.S.C. Section
55 or 12 U.S.C. Section 1831o, and (C) are wholly owned, directly or
indirectly, by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, restriction upon voting or
transfer, preemptive rights, claim, equity or other defect. The term
"Material Adverse Effect" as used herein means a material adverse
effect on the financial condition, earnings, affairs, business,
prospects or results of operations of the Company and its Subsidiaries
on a consolidated basis.
(ix) The capital stock of the Company and the equity
securities of the Trust conform in all material respects to the
description thereof contained in the Prospectus (or, if the Prospectus
is not in existence, the Preliminary Prospectus). The outstanding
shares of capital stock and equity securities of each Offeror have
been duly authorized and validly issued and are fully paid and
nonassessable, and no such shares were issued in violation of the
preemptive or similar rights of any security holder of an Offeror. No
person has any preemptive or similar right to purchase any shares of
capital stock or equity securities of the Offerors. Except as
disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there are no
outstanding rights, options or warrants to acquire any securities of
the Offerors or the Subsidiaries, and there are no outstanding
securities convertible into or exchangeable for any securities of the
Offerors or the Subsidiaries and no restrictions upon the voting or
transfer of any capital stock of the Company or equity securities of
the Trust pursuant to the Company's articles of incorporation or
bylaws, the Trust Agreement or any agreement or other instrument to
which an Offeror is a party or by which an Offeror is bound. As of the
date set forth therein, the Company has an authorized and outstanding
capitalization as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(x)
(A) The Trust has all requisite power and authority
to issue, sell and deliver the Designated Preferred Securities in
accordance with and upon the terms and conditions set forth in this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All corporate and trust action required to be
taken by the Offerors for the authorization, issuance, sale and
delivery of the Designated Preferred Securities in accordance with
such terms and conditions has been validly and sufficiently taken. The
Designated Preferred Securities, when delivered and paid for in
accordance with this Agreement, will be duly and validly issued and
outstanding, will represent valid fully paid and nonassessable
undivided beneficial interests in the assets of the Trust, will be
entitled to the benefits of the Trust Agreement, will not be issued in
violation of or subject to any preemptive or similar rights, and will
conform to the description thereof in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and the Trust Agreement. None of the
Designated Preferred Securities, immediately prior to delivery, will
be subject to any security interest, lien, mortgage, pledge,
encumbrance, restriction upon voting or transfer, preemptive rights,
claim, equity or other defect.
(B) The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated and
issued as provided in the Indenture and
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delivered to the Trust pursuant to the Trust Agreement, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
to the extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity, will
be in the form contemplated by, and entitled to the benefits of, the
Indenture, will conform in all material respects to the description
thereof contained in the Prospectus and will be owned by the Trust
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, restriction upon transfer, preemptive rights, claim,
equity or other defect.
(C) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and delivered to the
guarantee trustee for the benefit of the Trust, will constitute a
valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its 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, and will
conform in all material respects to the description thereof contained
in the Prospectus.
(D) The Agreement as to Expenses and Liabilities
between the Company and the Trust (the "Expense Agreement") has been
duly and validly authorized, and, when duly and validly executed and
delivered by the Company, will constitute a valid and legally binding
obligation of the Company enforceable against the Company in
accordance with its 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, and will conform in all material
respects to the description thereof contained in the Prospectus.
(xi) The Offerors and the Subsidiaries have complied in all
material respects with all foreign, federal, state and local statutes,
regulations, ordinances and rules as now in effect and applicable to
the ownership and operation of their properties or the conduct of
their businesses as described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted. Neither the
Company nor any non-banking Subsidiary engages directly or indirectly
in any activity prohibited by the Board of Governors of the Federal
Reserve System (the "FRB") or the BHC Act or the regulations
promulgated thereunder.
(xii) The Offerors and the Subsidiaries have all material
permits, easements, consents, licenses, franchises and other
governmental and regulatory authorizations from all appropriate
federal, state, local or other public authorities ("Permits") as are
necessary to own and lease their properties and conduct their
businesses in the manner described in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and as currently being conducted. All
such Permits are in full force and effect and each of the Offerors and
the Subsidiaries are in all material respects complying therewith, and
no event has occurred that allows, or after notice or lapse of time
would allow, revocation or termination thereof or will result in any
other material impairment of the rights of the holder of any such
Permit, subject in each case to such qualification as may be
adequately disclosed in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus). Such Permits
contain no restrictions that would materially impair the ability of
the Company or the Subsidiaries to conduct their businesses in the
manner consistent with their past practices. Neither the Offerors nor
any of the Subsidiaries have received notice or otherwise has
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knowledge of any proceeding or action relating to the revocation or
modification of any such Permit.
(xiii) Neither of the Offerors nor any of the Subsidiaries
are in breach or violation of their corporate charter, by-laws,
operating agreement or other governing documents (including without
limitation, the Original Trust Agreement) in any material respect.
Neither of the Offerors nor any of the Subsidiaries is, and to the
knowledge of the Offerors no other party is, in violation, breach or
default (with or without notice or lapse of time or both) in the
performance or observance of any term, covenant, agreement,
obligation, representation, warranty or condition contained in (A) any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound, which such breach, violation or
default could have a Material Adverse Effect, and to the knowledge of
the Offerors, no other party has asserted that the Offerors or any of
the Subsidiaries is in such violation, breach or default (provided
that the foregoing shall not apply to defaults by borrowers from the
Bank), or (B) except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), any order, decree, judgment, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the
Offerors or the Subsidiaries or any of their respective properties the
breach, violation or default of which could have a Material Adverse
Effect.
(xiv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by
this Agreement, the Trust Agreement, the Guarantee, the Indenture, the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) (including,
without limitation, the use of the net proceeds of the offering in the
manner specified in the Prospectus under the caption "Use of
Proceeds") do not and will not conflict with, result in the creation
or imposition of any material lien, claim, charge, encumbrance or
restriction upon any property or assets of the Offerors or the
Subsidiaries or the Designated Preferred Securities pursuant to,
constitute a breach or violation of, or constitute a default under,
with or without notice or lapse of time or both, any of the terms,
provisions or conditions of (A) the charter or by-laws of the Company
or the Subsidiaries, (B) that certain Indenture dated as of September
7, 1997 between the Company and The Bank Of New York, as supplemented
(the "Senior Note Indenture"), (C) any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease, franchise,
license, Permit or any other agreement or instrument to which the
Offerors or the Subsidiaries is a party or by which any of them or any
of their respective properties may be bound, or (D) any order, decree,
judgment, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having
jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties, which conflict, creation, imposition, breach,
violation or default would have either singly or in the aggregate a
Material Adverse Effect. No authorization, approval, consent or order
of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body or
authority) is required in connection with the transactions
contemplated by this Agreement, the Trust Agreement, the Indenture,
the Guarantee, the Expense Agreement, the Registration Statement and
the Prospectus (or any Preliminary Prospectus), except such as have
been obtained under the 1933 Act and the Trust Indenture Act and from
The Nasdaq Stock Market relating to the listing of the Designated
Preferred Securities, and such as may be required under state
securities laws or Interpretations or Rules of the National
Association of Securities Dealers, Inc. ("NASD") in connection with
the purchase and distribution of the Designated Preferred Securities
by the Underwriters.
9
(xv) The Offerors have all requisite power and authority to
enter into this Agreement and this Agreement has been duly and validly
authorized, executed and delivered by the Offerors and constitutes the
legal, valid and binding agreement of the Offerors, enforceable
against the Offerors in accordance with its terms, except as the
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 and except as
any indemnification or contribution provisions thereof may be limited
under applicable securities laws. Each of the Indenture, the Trust
Agreement, the Guarantee and the Expense Agreement has been duly
authorized by the Company, and, when executed and delivered by the
Company on the Closing Date, each of said agreements will constitute a
valid and legally binding obligation of the Company and will be
enforceable against the Company in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity and except as
any indemnification or contribution provisions thereof may be limited
under applicable securities laws. Each of the Indenture, the Trust
Agreement and the Guarantee has been duly qualified under the Trust
Indenture Act and will conform to the description thereof contained in
the Prospectus.
(xvi) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good title to
all personal property owned by them which are material to their
business, in each case free and clear of all security interests,
liens, mortgages, pledges, encumbrances, restrictions, claims,
equities and other defects except such as are referred to in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) or such as do not materially affect the value
of such property in the aggregate and do not materially interfere with
the use made or proposed to be made of such property; and all of the
leases under which the Company or the Subsidiaries hold real or
personal property are valid, existing and enforceable leases and in
full force and effect with such exceptions as are not material and do
not materially interfere with the use made or proposed to be made of
such real or personal property, and neither the Company nor any of the
Subsidiaries is in default in any material respect of any of the terms
or provisions of any material leases.
(xvii) KPMG LLP, who have certified certain of the
consolidated financial statements of the Company and the Subsidiaries
including the notes thereto, included or incorporated by reference in
the Registration Statement and Prospectus, are independent public
accountants with respect to the Company and the Subsidiaries, as
required by the 1933 Act and the 1933 Act Regulations.
(xviii) The consolidated financial statements including the
notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) with respect
to the Company and the Subsidiaries comply with the 1933 Act and the
1933 Act Regulations and present fairly in all material respects the
consolidated financial position of the Company and the Subsidiaries as
of the dates indicated and the consolidated results of operations,
cash flows and shareholders' equity of the Company and the
Subsidiaries for the periods specified and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis, except that the interim financial statements are
subject to normal year-end adjustments and do not include all
footnotes required by generally accepted accounting principles for
audited financial statements. The selected consolidated financial data
concerning the Company and the Subsidiaries included in the
Registration Statement and the Prospectus (or such Preliminary
Prospectus) comply in all material respects with the 1933 Act and the
1933 Act Regulations, present fairly the information set forth
therein, have been derived from the financial statements or
10
operating records of the Company and have been compiled on a basis
consistent with that of the consolidated financial statements of the
Company and the Subsidiaries in the Registration Statement and the
Prospectus (or such Preliminary Prospectus). The other financial,
statistical and numerical information included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus) is
accurate in all material respects, complies in all material respects
with the 1933 Act and the 1933 Act Regulations, has been derived from
the financial statements or operating records of the Company, presents
fairly the information shown therein, and to the extent applicable has
been compiled on a basis consistent with the consolidated financial
statements of the Company and the Subsidiaries included in the
Registration Statement and the Prospectus (or such Preliminary
Prospectus).
(xix) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), except as otherwise stated therein:
(A) neither of the Offerors nor any of the
Subsidiaries has sustained any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree which has had or is reasonably likely to have
a Material Adverse Effect;
(B) there has not been any change, event or
occurrence that has had a Material Adverse Effect, or any development
which is reasonably likely to have a Material Adverse Effect, whether
or not arising in the ordinary course of business;
(C) neither of the Offerors nor any of the
Subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any material transactions, other than in
the ordinary course of business, which has had or is reasonably likely
to have a Material Adverse Effect;
(D) neither of the Offerors has declared or paid
any dividend, and neither of the Offerors nor any of the Subsidiaries
has become delinquent in the payment of principal or interest on any
outstanding borrowings;
(E) there has not been any change in the capital
stock, equity securities, long-term debt, obligations under capital
leases or, other than in the ordinary course of business, short-term
borrowings of the Offerors or the Subsidiaries; and
(F) there has not occurred any other event and
there has arisen no set of circumstances required by the 1933 Act or
the 1933 Act Regulations to be disclosed in the Registration Statement
or Prospectus which has not been so set forth in the Registration
Statement or such Prospectus as fairly and accurately summarized
therein.
(xx) Except as set forth in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), no charge, investigation, action, suit
or proceeding is pending or, to the knowledge of the Offerors,
threatened, against or affecting the Offerors or the Subsidiaries or
any of their respective properties before or by any court or any
regulatory, administrative or governmental official, commission,
board, agency or other authority or body, or any arbitrator, wherein
an unfavorable decision, ruling or finding could reasonably be
expected to have a material adverse effect on the consummation of this
Agreement or the transactions contemplated herein or a Material
Adverse
11
Effect or which is required to be disclosed in the Registration
Statement or the Prospectus (or such Preliminary Prospectus) and is
not so disclosed.
(xxi) There are no contracts or other documents required to
be filed as exhibits to the Registration Statement by the 1933 Act or
the 1933 Act Regulations or the Trust Indenture Act (or any rules or
regulations thereunder) which have not been filed as exhibits or
incorporated by reference into the Registration Statement, or that are
required to be summarized in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) that are not
so summarized. Each of such contracts or other documents filed as
exhibits or incorporated by reference into the Registration Statement
is in full force and effect and is the legal, valid and binding
agreement of the Offerors or the Subsidiaries, enforceable in
accordance with its terms, except as the 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, except where the cancellation, termination or
unenforceability does not constitute a material change in the affairs
of the Company and the Subsidiaries on a consolidated basis.
(xxii) Neither of the Offerors has taken, directly or
indirectly, any action designed to result in or which has constituted
or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Offerors to facilitate the sale or resale of the Designated Preferred
Securities in violation of the Commission's rules and regulations,
including, but not limited to, Regulation M, and neither of the
Offerors is aware of any such action taken or to be taken by any
affiliate of the Offerors.
(xxiii) The Offerors and the Subsidiaries own, or possess
adequate rights to use, all patents, copyrights, trademarks, service
marks, trade names and other rights necessary to conduct the
businesses now conducted by them in all material respects or as
described in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and neither the
Company nor the Subsidiaries have received any notice of infringement
or conflict with asserted rights of others with respect to any
patents, copyrights, trademarks, service marks, trade names or other
rights which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect, and the Offerors do not know of any basis for any such
infringement or conflict which individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have
a Material Adverse Effect.
(xxiv) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), no labor dispute involving the Company or the
Subsidiaries exists or, to the knowledge of the Offerors, is imminent
which might be expected to have a Material Adverse Effect or which is
required to be disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus). Neither the
Company nor any of the Subsidiaries has received notice of any
existing or threatened labor dispute by the employees of any of its
principal suppliers, customers or contractors which might be expected
to have a Material Adverse Effect.
(xxv) The Offerors and the Subsidiaries have timely and
properly prepared and filed all necessary federal, state, local and
foreign tax returns which are required to be filed and have paid all
taxes shown as due thereon and have paid all other taxes and
assessments to the extent that the same shall have become due, except
such as are being contested in good faith or where the failure to so
timely and properly prepare and file would not have a Material Adverse
Effect. The Offerors have no knowledge of any tax deficiency which has
been or might be
12
assessed against the Offerors or the Subsidiaries which, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(xxvi) No relationship, direct or indirect, exists between or
among the Company or the Subsidiaries, on the one hand, and the
directors, officers, trustees, shareholders, customers or suppliers of
the Company or the Subsidiaries, on the other hand, which is required
to be described in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus) which is not adequately described therein.
(xxvii) No person has the right to request or require the
Offerors or the Subsidiaries to register any securities for offering
and sale under the 1933 Act by reason of the filing of the
Registration Statement with the Commission or the issuance and sale of
the Designated Preferred Securities except as adequately disclosed in
the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).
(xxviii) The Designated Preferred Securities have been
approved for quotation on The Nasdaq National Market subject to
official notice of issuance.
(xxix) Except as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no contractual encumbrances or restrictions or
material legal restrictions required to be described therein, on the
ability of the Subsidiaries (A) to pay dividends or make any other
distributions on its capital stock or to pay any indebtedness owed to
the Company, (B) to make any loans or advances to, or investments in,
the Company or (C) to transfer any of its property or assets to the
Company.
(xxx) Neither of the Offerors is an "investment company," an
entity "controlled" by an "investment company" or an "investment
adviser" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act") or the Investment Advisers Act
of 1940, as amended (the "Investment Advisers Act").
(xxxi) The Offerors have not distributed and will not
distribute prior to the Closing Date any prospectus in connection with
the Offering, other than a Preliminary Prospectus, the Prospectus, the
Registration Statement and the other materials permitted by the 1933
Act and the 1933 Act Regulations and reviewed by the Representatives.
(xxxii) Neither the Company nor any of the Subsidiaries is a
party or subject to any agreement or memorandum with, or directive or
other order issued by, the FRB, the Office of the Comptroller of the
Currency (the "OCC") or other regulatory authority having jurisdiction
over it (each, a "Regulator," and collectively, the "Regulators"),
which imposes any restrictions or requirements not generally
applicable to entities of the same type as the Company and the
Subsidiaries. Neither the Company nor any Subsidiary is subject to any
directive from any Regulator to make any material change in the method
of conducting their respective businesses, and no such directive is
pending or threatened by such Regulators.
(xxxiii) The Bank has properly administered all accounts for
which it acts as a fiduciary, including but not limited to accounts
for which it serves as a trustee, agent, custodian, personal
representative, guardian, conservator or investment advisor, in
accordance with the terms of the governing documents and applicable
state and federal law and regulation and common law, except where the
failure to be in compliance would not have a Material Adverse Effect.
Neither the Bank nor any of its directors, officers or employees has
committed any material breach of trust with respect to any such
fiduciary account, and the accountings for each
13
such fiduciary account are true and correct in all material respects
and accurately reflect the assets of such fiduciary account in all
material respects.
(xxxiv) Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred
any liability for any finder's or broker's fee or agent's commission
in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated thereby.
(xxxv) No report or application filed by the Company or any
of its Subsidiaries with the FRB, the OCC, the FDIC or any other state
or federal regulatory authority, as of the date it was filed or
amended, 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 when made or failed to
comply in all material respects with the applicable requirements of
the FRB, the OCC or any other state or federal regulatory authority,
as the case may be.
(xxxvi) Based upon current guidelines of the FRB, the
Debentures will constitute "Tier 1" capital (as defined in 12 C.F.R.
Part 225), subject to applicable regulatory restrictions on the amount
thereof that can be included in Tier 1 capital.
(xxxvii) None of the Offerors, the Subsidiaries or, to the
best knowledge of the Offerors, any other person associated with or
acting on behalf of the Offerors or any of the Subsidiaries,
including, without limitation, any director, officer, agent, or
employee of any of the Subsidiaries or the Company has, directly or
indirectly, while acting on behalf of such Offeror or Subsidiary (i)
used any corporate funds for unlawful contributions, gifts,
entertainment, or other unlawful expenses relating to political
activity; (ii) made any unlawful contribution to any candidate for
foreign or domestic office, or to any foreign or domestic government
officials or employees or other person charged with similar public or
quasi-public duties, other than payments required or permitted by the
laws of the United States or any jurisdiction thereof or to foreign or
domestic political parties or campaigns from corporate funds, or
failed to disclose fully any contribution in violation of law; (iii)
violated any provision of the Foreign Corrupt Practices Act of 1977,
as amended; or (iv) made any other payment of funds or either or both
of the Offerors or a Subsidiary or retained any funds which constitute
a violation of any law, rule or regulation or which was or is required
to be disclosed in the Registration Statement or the Prospectus
pursuant to the requirements of the 1933 Act or the 1933 Act
Regulations.
(xxxviii) Neither the Company nor any Subsidiary has any
liability under any "pension plan," as defined in the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). The
employee benefit plans, including employee welfare benefit plans, of
the Company and each of the Subsidiaries (the "Employee Plans") have
been operated in material compliance with the applicable provisions of
ERISA, the Internal Revenue Code of 1986, as amended (the "Code"), all
regulations, rulings and announcements promulgated or issued
thereunder and all other applicable governmental laws and regulations
(except to the extent such noncompliance would not, in the aggregate,
have a Material Adverse Effect). No reportable event under Section
4043(c) of ERISA has occurred with respect to any Employee Plan of the
Company or any of the Subsidiaries for which the reporting
requirements have not been waived by the Pension Benefit Guaranty
Corporation. No prohibited transaction under Section 406 of ERISA, for
which an exemption does not apply, has occurred with respect to any
Employee Plan of the Company or any of the Subsidiaries. There are no
pending or, to the knowledge of the Offerors, threatened, claims by or
on behalf of any Employee Plan, by any employee or beneficiary covered
under any such Employee Plan or by any governmental authority or
14
otherwise involving such Employee Plans or any of their respective
fiduciaries (other than for routine claims for benefits). All Employee
Plans that are group health plans have been operated in material
compliance with the group health plan continuation coverage
requirements of Section 4980B of the Code.
(xxxix) The Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance
with management's general or specific authorizations, (B) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles
and to maintain accountability for assets, (C) access to assets is
permitted only in accordance with management's general or specific
authorization, and (D) the recorded accounts for assets is compared
with the existing assets at reasonable intervals and appropriate
action is taken with respect thereto. The books, records and accounts
and systems of internal accounting controls of the Company and its
Subsidiaries comply in all material respects with the requirements of
Section 13(b)(2) of the 1934 Act.
(xl) Except as described in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the
Preliminary Prospectus), there is no factual basis for any action,
suit or other proceeding involving the Company or the Subsidiaries or
any of their material assets for any failure of the Company or any of
the Subsidiaries, or any predecessor thereof, to comply with any
requirements of federal, state or local regulation relating to air,
water, solid waste management, hazardous or toxic substances, or the
protection of health or the environment; except where such action,
suit or other proceeding would not have a Material Adverse Effect.
Except as described in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the Preliminary
Prospectus) or as would not have a Material Adverse Effect, none of
the property owned or leased by the Company or any of the Subsidiaries
is contaminated with any waste or hazardous substances, and neither
the Company nor any of the Subsidiaries may be deemed an "owner or
operator" of a "facility" or "vessel" which owns, possesses,
transports, generates or disposes of a "hazardous substance" as those
terms are defined in (Section) 9601 of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. (Section)
9601 ET SEQ.
(xli) The Company and the Subsidiaries maintain insurance
covering in all material respects their properties, personnel and
business. Such insurance insures against such losses and risks as, in
the judgment of the executive officers of the Company, are adequate to
protect in all material respects the Company and the Subsidiaries and
their businesses. Neither the Company nor any of the Subsidiaries has
received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures shall have to
be made in order to continue such insurance. All such insurance is
outstanding and duly in force on the date hereof and shall be
outstanding and duly in force on the Closing Date and, if applicable,
the Option Closing Date, with such exceptions as would not have a
Material Adverse Effect.
(xlii) Neither the Company nor any Subsidiary has any
agreement or understanding with any person (A) concerning the future
acquisition by the Company or the Bank of a controlling interest in
any entity or (B) concerning the future acquisition by any person of a
controlling interest in the Company or any Subsidiary, in either case
that is required by the 1933 Act or the 1933 Act Regulations to be
disclosed by the Company that is not disclosed in the Prospectus.
3. OFFERING BY THE UNDERWRITERS.
15
After the Registration Statement becomes effective or, if the
Registration Statement is already effective, after this Agreement becomes
effective, the Underwriters propose to offer the Firm Preferred Securities for
sale to the public upon the terms and conditions set forth in the Prospectus.
The Underwriters may from time to time thereafter reduce the public offering
price and change the other selling terms, provided the proceeds to the Trust
shall not be reduced as a result of such reduction or change. Because the NASD
is expected to view the Preferred Securities as interests in a direct
participation program, the offering of the Preferred Securities is being made in
compliance with the applicable provisions of Rule 2810 of the NASD's conduct
rules.
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by it (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS.
The Offerors jointly and severally covenant with the Underwriters as
follows:
(a) The Offerors shall cause the Registration Statement and any
amendments thereto, if not effective at the time of execution of this Agreement,
to become effective as promptly as possible. If the Registration Statement has
become or becomes effective pursuant to Rule 430A and information has been
omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and
file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or,
if required by Rule 430A, a post-effective amendment to the Registration
Statement (including the Prospectus) containing all information so omitted and
will provide evidence satisfactory to the Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such
notice in writing:
(i) when the Registration Statement, or any post-effective amendment
to the Registration Statement, has become effective, or when the
Prospectus or any supplement to the Prospectus or any amended
Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the
Registration Statement, any Preliminary Prospectus or the
Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or
suspending the use of any Preliminary Prospectus or the
Prospectus, or suspending the qualification of any of the
Designated Preferred Securities for offering or sale in any
jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Offerors shall use
their best efforts to prevent the issuance of any such stop order
or of any other such order and if any such order is issued, to
cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to
time without charge, as soon as available, as many copies as the Underwriters
may reasonably request of (i) the registration
16
statement as originally filed and of all amendments thereto, in executed form,
including exhibits, whether filed before or after the Registration Statement
becomes effective, (ii) all exhibits and documents incorporated therein or filed
therewith, (iii) all consents and certificates of experts in executed form, (iv)
the Preliminary Prospectus and all amendments and supplements thereto, and (v)
the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Designated Preferred Securities as
contemplated herein and in the Trust Agreement and the Prospectus. The Offerors
shall not file any amendment to the registration statement as originally filed
or to the Registration Statement and shall not file any amendment thereto or
make any amendment or supplement to the Preliminary Prospectus or to the
Prospectus of which you shall not previously have been advised in writing and
provided a copy a reasonable time prior to the proposed filings thereof or to
which you or counsel for the Underwriters shall reasonably object. If it is
necessary, in the Company's reasonable opinion or in the reasonable opinion of
the Company's counsel, to amend or supplement the Registration Statement or the
Prospectus in connection with the distribution of the Designated Preferred
Securities, the Offerors shall forthwith amend or supplement the Registration
Statement or the Prospectus, as the case may be, by preparing and filing with
the Commission (provided the Underwriters or counsel for the Underwriters does
not reasonably object), and furnishing to you such number of copies as you may
reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Registration Statement or the Prospectus, as the case may be
(in form and substance reasonably satisfactory to you and counsel for the
Underwriters). If any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus to correct an untrue statement of a material
fact or to include a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or if for
any reason it is necessary at any time to amend or supplement the Prospectus to
comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall,
subject to the second sentence of this subsection (d), forthwith at their cost
and expense amend or supplement the Prospectus by preparing and filing with the
Commission, and furnishing to you, such number of copies as you may reasonably
request of an amendment or amendments of, or a supplement or supplements to, the
Prospectus (in form and substance satisfactory to you and counsel for the
Underwriters) so that, as so amended or supplemented, the Prospectus shall not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the
Underwriters in order to qualify the Designated Preferred Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
you may reasonably request and shall continue such qualifications in effect so
long as may be advisable for distribution of the Designated Preferred
Securities; PROVIDED, HOWEVER, that the Offerors shall not be required to
qualify to do business as a foreign corporation or file a general consent to
service of process in any jurisdiction in connection with the foregoing. The
Offerors shall file such statements and reports as may be required by the laws
of each jurisdiction in which the Designated Preferred Securities have been
qualified as above. The Offerors will notify you immediately of, and confirm in
writing, the suspension of qualification of the Designated Preferred Securities
or threat thereof in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the
Preferred Securities to be eligible for clearance and settlement through the
facilities of DTC.
(g) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable,
17
but in any event not later than 16 months after the Effective Date, a
consolidated earnings statement of the Offerors in reasonable detail, covering a
period of at least 12 consecutive months beginning after the effective date of
the Registration Statement, conforming with the requirements of Section 11(a) of
the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors shall
furnish to the Representatives copies of all reports and communications
(financial or otherwise) furnished by the Offerors to the holders of the
Designated Preferred Securities as a class, copies of all reports and financial
statements filed with or furnished to the Commission (other than portions for
which confidential treatment has been obtained) or with any national securities
exchange or The Nasdaq Stock Market or other self-regulatory organization (other
than portions for which confidential treatment has been obtained) and such other
documents, reports and information concerning the business and financial
conditions of the Offerors as the Representatives may reasonably request, other
than such documents, reports and information for which the Offerors has the
legal obligation not to reveal to the Representatives.
(j) For a period of 90 days from the Effective Date, the Offerors
shall not, directly or indirectly, offer for sale, sell or agree to sell or
otherwise dispose of any Designated Preferred Securities other than pursuant to
this Agreement, any other beneficial interests in the assets of the Trust or any
securities of the Trust or the Company that are substantially similar to the
Designated Preferred Securities, including any guarantee of such beneficial
interests or substantially similar securities, or securities convertible into or
exchangeable for or that represent the right to receive any such beneficial
interest or substantially similar securities, without the prior written consent
of the Representatives.
(k) The Offerors shall use their best efforts to cause the
Designated Preferred Securities to become quoted on The Nasdaq National Market,
or in lieu thereof a national securities exchange, and to remain so quoted,
provided this shall not prevent the Company from redeeming the Designated
Preferred Securities pursuant to the terms of the Trust Agreement. If the
Designated Preferred Securities are exchanged for Debentures, the Company shall
use its best efforts to have the Debentures promptly listed on The Nasdaq
National Market or other organization on which the Designated Preferred
Securities are then listed, and to have the Debentures promptly registered under
the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriters'
option to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriters shall elect to purchase, except as described in
or contemplated by the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any action) which
will result in the Offerors or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, or take or refrain from taking any
action which will cause or result in any material adverse change in the
financial position, capital stock, or any material increase in long-term debt,
obligations under capital leases or short-term borrowings of the Offerors and
the Subsidiaries on a consolidated basis.
(m) Except as described in the Prospectus, the Offerors shall not,
for a period of 180 days after the date hereof, without the prior written
consent of the Representatives, purchase, redeem or call for redemption, or
prepay or give notice of prepayment (or announce any redemption or call for
redemption, or any repayment or notice of prepayment) of the Offerors' trust
preferred securities and in no event shall the Offerors at any time, directly or
indirectly, engage in any activity, enter into any
18
transaction or take or cause to be taken any action if to do so would constitute
a default, with or without notice or lapse of time or both, under the Senior
Note Indenture, if such default would have a material adverse effect, or is
reasonably likely to have a material adverse effect, on the holders of the
Designated Preferred Securities or the market value of the Designated Preferred
Securities.
(n) The Offerors shall not take, directly or indirectly, any
action designed to result in or which constitutes or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of any
security of the Offerors in connection with the sale or resale of the Designated
Preferred Securities in violation of the Commission's rules and regulations,
including, but not limited to, Regulation M, and the Offerors are not aware of
any such action taken or to be taken by any affiliate of the Offerors.
(o) Prior to the Closing Date (and, if applicable, the Option
Closing Date), the Offerors will not issue any press release or other
communication directly or indirectly or hold any press conference with respect
to the Offerors, the Subsidiaries or the offering of the Designated Preferred
Securities without your prior consent.
(p) The Offerors shall comply with all registration, filing and
reporting requirements of the 1934 Act for so long as the Preferred Securities
or the Debentures shall remain outstanding.
5. PAYMENT OF EXPENSES.
Whether or not this Agreement is terminated or the sale of the
Designated Preferred Securities to the Underwriters is consummated, the Company
covenants and agrees that it will pay or cause to be paid (directly or by
reimbursement) all costs and expenses incident to the performance of the
obligations of the Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of
the initial registration statement, the Preliminary Prospectus or Prospectuses,
the Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements);
(b) all fees, expenses and disbursements of the Offerors' counsel
and accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as you may
request, including all filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith.
(d) all fees and expenses incurred in connection with filings made
with the NASD and DTC;
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on The Nasdaq Stock Market;
(f) the cost of furnishing to you copies of the initial
registration statements, any Preliminary Prospectus, the Registration
Statement and the Prospectus and all amendments or supplements thereto;
19
(g) the costs and charges of any transfer agent or registrar and
the fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes)
incurred in connection with the printing, issuance and delivery of the
Designated Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution and
delivery of the Trust Agreement, the Indenture, the Guarantee and the Expense
Agreement; and
(j) all other costs and expenses incident to the performance of
the obligations of the Company hereunder and under the Trust Agreement that are
not otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
accountable out-of-pocket expenses in connection herewith or in contemplation of
the performance of your obligations hereunder, including without limitation
travel expenses, fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any investigation of the
Offerors and the Subsidiaries, or any preparation for the marketing, purchase,
sale or delivery of the Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the Firm
Preferred Securities and, following exercise of the option granted by the
Offerors in Section 1 of this Agreement, the Option Preferred Securities, are
subject, in your sole discretion, to the accuracy of the representations and
warranties and compliance with the agreements of the Offerors herein as of the
date hereof and as of the Closing Date (or in the case of the Option Preferred
Securities, if any, as of the Option Closing Date), to the accuracy of the
written statements of the Offerors made pursuant to the provisions hereof, to
the performance by the Offerors of their covenants and obligations hereunder and
to the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Offerors or the Representatives, shall be contemplated
by the Commission or any state authority. Any request on the part of the
Commission or any state authority for additional information (to be included in
the Registration Statement or Prospectus or otherwise) shall have been disclosed
to you and complied with to your satisfaction and to the satisfaction of counsel
for the Underwriters.
20
(b) No Underwriter shall have advised the Company at or
before the Closing Date (and, if applicable, the Option Closing Date) that the
Registration Statement or any post-effective amendment thereto, or the
Prospectus or any amendment or supplement thereto, contains an untrue statement
of a fact which, in your opinion, is material or omits to state a fact which, in
your opinion, is material and is required to be stated therein or is necessary
to make statements therein (in the case of the Prospectus or any amendment or
supplement thereto, in light of the circumstances under which they were made)
not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the Trust
Agreement, and the Designated Preferred Securities, and the authorization and
form of the Registration Statement and Prospectus, other than financial
statements and other financial data, and all other legal matters relating to
this Agreement and the transactions contemplated hereby or by the Trust
Agreement shall be reasonably satisfactory to counsel for the Underwriters, and
the Offerors and the Subsidiaries shall have furnished to such counsel all
documents and information relating thereto that they may reasonably request to
enable them to pass upon such matters.
(d) ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Offerors, shall
have furnished to you their signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the State of
Delaware, and is duly registered as a bank holding company under the
BHC Act. The entities listed on Exhibit A are the only subsidiaries,
direct or indirect, of the Company. Each of the Subsidiaries is duly
incorporated or organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation or organization, as the
case may be. Each of the Company and the Subsidiaries has full power
(corporate or otherwise) and authority to own or lease its properties
and to conduct its business as such business is described in the
Prospectus and is currently conducted in all material respects. All
outstanding shares of capital stock or membership interests of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable except to the extent such shares or membership
interests may be deemed assessable under 12 U.S.C. Section 1831, are
owned, directly or indirectly, by the Company and, to the best of such
counsel's knowledge, except as disclosed in the Prospectus, there are
no outstanding rights, options or warrants to purchase any such shares
or membership interests or securities convertible into or exchangeable
for any such shares or membership interests.
(ii) The capital stock, the Debentures and Guarantee of
the Company and the equity securities of the Trust conform to the
description thereof contained in the Prospectus in all material
respects. The capital stock of the Company authorized and issued as of
June 30, 2001 is as set forth under the caption "Capitalization" in
the Prospectus, has been duly authorized and validly issued, and is
fully paid and nonassesable. The form of certificates to evidence the
Designated Preferred Securities has been approved by the Trust and is
in due and proper form and complies with all applicable requirements.
To the best of such counsel's knowledge, there are no outstanding
rights, options or warrants to purchase, no other outstanding
securities convertible into or exchangeable for, and no commitments,
plans or arrangements to issue, any shares of capital stock of the
Company or equity securities of the Trust, except as described in the
Prospectus.
(iii) The issuance, sale and delivery of the Designated
Preferred Securities and Debentures in accordance with the terms and
conditions of this Agreement and the Indenture
21
have been duly authorized by all necessary actions of the Offerors.
All of the Designated Preferred Securities have been duly and validly
authorized and, when delivered and paid for in accordance with this
Agreement, will be duly and validly issued, fully paid and
nonassessable, and will conform to the description thereof in the
Registration Statement, the Prospectus and the Trust Agreement. The
Designated Preferred Securities have been approved for quotation on
the Nasdaq Stock Market subject to official notice of issuance. There
are no preemptive or other rights to subscribe for or to purchase, and
other than as disclosed in the Prospectus, no restrictions upon the
voting or transfer of, any equity securities of the Offerors or the
Subsidiaries pursuant to the corporate charter, by-laws or other
governing documents (including without limitation, the Trust
Agreement) of the Offerors or the Subsidiaries, or, to the best of
such counsel's knowledge, any agreement or other instrument to which
either Offeror or any of the Subsidiaries is a party or by which
either Offeror or any of the Subsidiaries may be bound.
(iv) The Offerors have all requisite corporate and trust
power to enter into and perform their obligations under this
Agreement, and this Agreement has been duly and validly authorized,
executed and delivered by the Offerors and constitutes the legal,
valid and binding obligations of the Offerors enforceable in
accordance with its terms, except as the enforcement hereof or thereof
may be limited by general principles of equity and by bankruptcy or
other laws relating to or affecting creditors' rights generally and of
general principles of equity, and except as the indemnification and
contribution provisions hereof may be limited under applicable laws
and certain remedies may not be available in the case of a
non-material breach.
(v) Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act, has
been duly authorized, executed and delivered by the Company, and is a
valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity.
(vi) The Debentures have been duly authorized, executed,
and delivered by the Company and are legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of
general principles of equity. The holders of the Debentures are
entitled to the benefits of the Indenture.
(vii) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally
binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of
general principles of equity.
(viii) Neither of the Offerors nor any of the
Subsidiaries is in breach or violation of, or default under, with or
without notice or lapse of time or both, its corporate charter,
by-laws or governing document (including without limitation, the Trust
Agreement). The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this
Agreement and the Trust Agreement, do not and will not conflict with,
result in the creation or imposition of any material lien, claim,
charge, encumbrance or restriction upon any property or assets of the
Offerors or the Subsidiaries or the Designated Preferred Securities
pursuant to, or constitute a material breach or violation of, or
constitute a material default under, with or without notice or lapse
of time or both, any of the terms, provisions or
22
conditions of the charter, by-laws or governing document (including
without limitation, the Trust Agreement) of the Offerors or the
Subsidiaries, or any material contract, indenture (including, without
limitation, the Senior Note Indenture), mortgage, deed of trust, loan
or credit agreement, note, lease, franchise, license or any other
agreement or instrument to which either Offeror or the Subsidiaries is
a party or by which any of them or any of their respective properties
may be bound or any order, decree, judgment, franchise, license,
Permit, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, known to
such counsel having jurisdiction over the Offerors or the Subsidiaries
or any of their respective properties, except where such conflict,
creation, imposition, breach or default, either singly or in the
aggregate, would not have a Material Adverse Effect. No authorization,
approval, consent or order of, or filing, registration or
qualification with, any person (including, without limitation, any
court, governmental body or authority) is required under Delaware law
in connection with the transactions contemplated by this Agreement
with respect to the purchase and distribution of the Designated
Preferred Securities by the Underwriters.
(ix) To the best of such counsel's knowledge, holders of
securities of the Offerors do not have any right that, if exercised,
would require the Offerors to cause such securities to be included in
the Registration Statement or have waived such right. To the best of
such counsel's knowledge, neither the Company nor any of the
Subsidiaries is a party to any agreement or other instrument which
grants rights for or relating to the registration of any securities of
the Offerors.
(x) Except as set forth in the Registration Statement
and the Prospectus, (i) no action, suit or proceeding at law or in
equity is pending or, to the best of such counsel's knowledge,
threatened in writing to which the Offerors or the Subsidiaries is or
is threatened to be made a party, and (ii) no action, suit or
proceeding is pending or, to the best of such counsel's knowledge,
threatened in writing against or affecting the Offerors or the
Subsidiaries or any of their properties, before or by any court or
governmental official, commission, board or other administrative
agency, authority or body, or any arbitrator, wherein an unfavorable
decision, ruling or finding could reasonably be expected to have a
material adverse effect on the consummation of this Agreement or the
issuance and sale of the Designated Preferred Securities as
contemplated herein or a Material Adverse Effect or which is required
to be disclosed in the Registration Statement or the Prospectus and is
not so disclosed.
(xi) No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including
without limitation, any court, governmental body or authority) is
required in connection with the transactions contemplated by this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus, except such as have been obtained under the 1933 Act and
the Trust Indenture Act, and except such as may be required under
state securities laws or Interpretations or Rules of the NASD in
connection with the purchase and distribution of the Designated
Preferred Securities by the Underwriters.
(xii) The Registration Statement and the Prospectus and
any amendments or supplements thereto (other than the exhibits,
financial statements, financial schedules or other financial or
statistical data included therein or omitted therefrom and
Underwriters' Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations as of their
respective dates of effectiveness or issuance. The documents
incorporated by reference in the Registration Statement and the
Prospectus and any amendments or supplements thereto (other than the
exhibits, financial statements, financial schedules or other financial
or statistical data included therein or omitted therefrom, as to which
such counsel need express no opinion) comply as to form in all
material
23
respects with the requirements of the 1934 Act and the 1934 Act
Regulations as of their respective dates of effectiveness.
(xiii) To the best of such counsel's knowledge, there
are no contracts, agreements, leases or other documents of a character
required to be disclosed in the Registration Statement or Prospectus
or to be filed as exhibits to the Registration Statement that are not
so disclosed or filed.
(xiv) The statements under the captions "Risk Factors",
"Description of the Trust", "Description of the Preferred Securities,"
"Description of the Subordinated Debentures," "Description of the
Guarantee," "Relationship Among the Preferred Securities, the
Subordinated Debentures, the Expense Agreement and the Guarantee,"
"Certain Federal Income Tax Consequences," and "ERISA Considerations"
in the Prospectus and "Regulation and Supervision" in "Item 1.
Business" and "Item 3. Legal Proceedings" in the Company's Annual
Report on Form 10-K for the year ended December 31, 2000, incorporated
by reference into the Prospectus, insofar as such statements
constitute a description of legal and regulatory matters, documents or
instruments referred to therein, are accurate descriptions of the
matters purported to be summarized therein in all material respects
and comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations, other than financial and statistical
data as to which said counsel shall not be required to expresses any
opinion or belief.
(xv) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective under
the 1933 Act; any required filing of the Prospectus pursuant to Rule
424(b) has been made within the time period required by Rule 424(b);
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for a stop order are pending or threatened by the
Commission.
(xvi) Except as disclosed in the Prospectus, to the best
of such counsel's knowledge, there are no contractual encumbrances or
restrictions, or material legal restrictions required to be disclosed
on the ability of the Subsidiaries (A) to pay dividends or make any
other distributions on its capital stock or to pay indebtedness owed
to the Offerors, (B) to make any loans or advances to, or investments
in, the Offerors or (C) to transfer any of its property or assets to
the Offerors.
(xvii) To the best of such counsel's knowledge, the
business and operations of the Offerors and the Subsidiaries comply in
all material respects with all federal banking and federal securities
laws, rules and regulations applicable thereto and which are material
to the Offerors and the Subsidiaries on a consolidated basis, except
in those instances where non-compliance would not materially impair
the ability of the Offerors and the Subsidiaries to conduct their
business and would not have a Material Adverse Effect.
(xviii) Neither the Company nor the Trust is and, after
giving effect to the offering and sale of the Designated Preferred
Securities and the application of the proceeds thereof as described in
the Prospectus, neither the Company nor the Trust will be, an
"investment company," an entity "controlled" by an "investment
company" or an "investment adviser" as defined in the Investment
Company Act and the Investment Advisers Act.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Offerors including, without limitation, certificates as to the
number of outstanding shares of common stock of the Company, the identity of any
24
and all material contracts, indentures, mortgages, deeds of trust, loans or
credit agreements, notes, leases, franchises, licenses or other agreements or
instruments, and all material permits, easements, consents, licenses, franchises
and government regulatory authorizations, for purposes of paragraphs (ii),
(viii), (ix), (xiii) and (xvi) hereof, and certificates of public officials. In
giving such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇▇, special Delaware counsel to the Offerors as to certain matters
relating to the Trust and the Designated Preferred Securities which are governed
by Delaware law.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Offerors
and with their independent public accountants and with you and your counsel, at
which conferences such counsel made inquiries of such officers, representatives
and accountants and discussed in detail the contents of the Registration
Statement and Prospectus and the documents incorporated therein by reference and
such counsel has no reason to believe (A) that the Registration Statement or any
amendment thereto (except for the exhibits, financial statements, related
schedules and financial and statistical data included therein or omitted
therefrom or Underwriters' Information, as to which such counsel need express no
opinion), at the time the Registration Statement or any such amendment became
effective, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (B) that the Prospectus or any amendment or supplement
thereto and the documents incorporated therein by reference (except for the
exhibits, financial statements, related schedules and financial and statistical
data included therein or omitted therefrom or Underwriters' Information, as to
which such counsel need express no opinion), at the time the Registration
Statement became effective (or, if the term "Prospectus" refers to the
prospectus first filed pursuant to Rule 424(b) of the 1933 Act Regulations, at
the time the Prospectus was issued), at the time any such amended or
supplemented Prospectus was issued, at the Closing Date and, if applicable, the
Option Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state any 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 or (C) that there is
any amendment to the Registration Statement required to be filed that has not
already been filed.
(e) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special Delaware counsel to
the Offerors, shall have furnished to you their signed opinion, dated as of
Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to such counsel, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Business
Trust Act and, under the Trust Agreement and the Delaware Business Trust
Act, has the trust power and authority to conduct its business as described
in the Prospectus.
(ii) The Trust Agreement is a legal, valid and binding
agreement of the Company, as depositor, and the Trustees, and is
enforceable against the Company, as depositor, and the Trustees, in
accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Business
Trust Act, the execution and delivery of the Underwriting Agreement by the
Trust, and the performance by the Trust of its obligations thereunder, have
been authorized by all requisite trust action on the part of the Trust.
(iv) The Designated Preferred Securities have been duly
authorized by the Trust Agreement, and when issued and sold in accordance
with the Trust Agreement, the
25
Designated Preferred Securities will be, subject to the qualifications set
forth in paragraph (v) below, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust and entitled to the
benefits of the Trust Agreement. The form of certificate to evidence the
Designated Preferred Securities, in the form attached to the Trust
Agreement, is in due and proper form and complies with all applicable
requirements of the Delaware Business Trust Act and the Trust Agreement.
(v) Holders of Designated Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to shareholders of private, for-profit corporations
organized under the General Corporation Law of the State of Delaware. Such
opinion may note that the holders of Designated Preferred Securities may be
obligated to make payments as set forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Preferred Securities is not
subject to preemptive rights.
(vii) The issuance and sale by the Trust of the Designated
Preferred Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation of the
transactions contemplated by this Agreement, do not violate (a) the Trust
Agreement, or (b) any applicable Delaware law, rule or regulation.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(f) ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇., counsel for the Underwriters,
shall have furnished you their signed opinion, dated the Closing Date or the
Option Closing Date, as the case may be, with respect to the sufficiency of all
corporate procedures and other legal matters relating to this Agreement, the
validity of the Designated Preferred Securities, the Registration Statement, the
Prospectus and such other related matters as you may reasonably request and
there shall have been furnished to such counsel such documents and other
information as they may request to enable them to pass on such matters. In
giving such opinion, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇. may rely as to matters of fact
upon statements and certifications of officers of the Offerors and of other
appropriate persons and may rely as to matters of law, other than law of the
United States and the State of Missouri, and upon the opinions of ▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ described herein.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representatives shall have received
from KPMG LLP a letter, dated the date of this Agreement and the Closing Date
(and, if applicable, the Option Closing Date), respectively, in form and
substance satisfactory to the Representatives, confirming that they are
independent public accountants with respect to the Company and the Subsidiaries,
within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in
effect that:
(i) In their opinion, the consolidated financial statements
of the Company audited by them and included or incorporated by reference in
the Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act, the 1934 Act, the
1933 Act Regulations and the 1934 Act Regulations.
26
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information," inquiries of officials of the Company
responsible for financial and accounting matters, and such other inquiries
and procedures as may be specified in such letter, which procedures do not
constitute an audit in accordance with U.S. generally accepted auditing
standards, nothing came to their attention that caused them to believe
that, if applicable, the unaudited interim consolidated financial
statements of the Company included or incorporated by reference in the
Registration Statement do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act, the 1934 Act,
the 1933 Act Regulations and the 1934 Act Regulations or are not in
conformity with U.S. generally accepted accounting principles applied on a
basis substantially consistent, except as noted in the Registration
Statement, with the basis for the audited consolidated financial statements
of the Company included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company,
inspection of the minute books of the Company since the date of the latest
audited financial statements of the Company included or incorporated by
reference in the Registration Statement, inquiries of officials of the
Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came
to their attention that caused them to believe that:
(A) as of a specified date not more than five days
prior to the date of such letter, there have been any changes in the
consolidated capital stock of the Company, any increase in the consolidated
debt of the Company or any decreases in consolidated total assets or
consolidated shareholders' equity of the Company, or any changes, decreases
or increases in other items specified by the Representatives, in each case
as compared with amounts shown in the latest unaudited interim consolidated
statement of financial condition of the Company included or incorporated by
reference in the Registration Statement except in each case for changes,
increases or decreases which the Registration Statement specifically
discloses have occurred or may occur or which are described in such letter;
and
(B) for the period from the date of the latest unaudited
interim consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement to the specified
date referred to in clause (iii)(A), there were any decreases in the
consolidated interest income, net interest income or net income of the
Company or in the per share amount of net income of the Company, or any
changes, decreases or increases in other items specified by the
Representatives as compared with the comparable period of the preceding
year and with any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases which the
Registration Statement discloses have occurred or may occur, or which are
described in such letter.
(iv) In addition to the audit referred to in their report
included or incorporated by reference in the Registration Statement and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (ii) and (iii) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with U.S. generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records and
consolidated financial statements of the Company which appear in the
Registration
27
Statement and the documents incorporated by reference therein specified by
the Representatives, and have compared such amounts, percentages and
financial information with the accounting records and the material derived
from such records and consolidated financial statements of the Company have
found them to be in agreement.
In the event that the letter to be delivered on the date hereof, on the
Closing Date (and, if applicable, any Option Closing Date) referred to above set
forth any such changes, decreases or increases as specified in clauses (iii)(A)
or (iii)(B) above, or any exceptions from such agreement specified in clause
(iv) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
clause (iii)(A) above as compared with the amounts shown in the latest unaudited
consolidated statement of financial condition of the Company included or
incorporated by reference in the Registration Statement, (y) reflect a material
adverse change in the items specified in clause (iii)(B) above as compared with
the corresponding periods of the prior year or other period specified by the
Representatives, or (z) reflect a material adverse change in items specified in
clause (iv) above from the amounts shown in the Preliminary Prospectus
distributed by the Underwriters in connection with the offering contemplated
hereby or from the amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option
Closing Date, you shall have received certificates of the chief executive
officer and the chief financial and accounting officer of the Company,
which certificates shall be deemed to be made on behalf of the Company,
dated as of the Closing Date and, if applicable, the Option Closing Date,
evidencing satisfaction of the conditions of Section 6(a) and stating that
(i) the representations and warranties of the Company set forth in Section
2(a) hereof are accurate as of the Closing Date and, if applicable, the
Option Closing Date, and that each of the Offerors has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to such Closing Date and, if applicable, the Option
Closing Date; (ii) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
any Material Adverse Effect; (iii) since such dates there has not been any
material transaction entered into by the Offerors or the Subsidiaries other
than transactions in the ordinary course of business; and (iv) they have
carefully examined the Registration Statement and the Prospectus as amended
or supplemented and nothing has come to their attention that would lead
them to believe that either the Registration Statement or the Prospectus,
or any amendment or supplement thereto as of their respective effective or
issue dates, contained, and the Prospectus as amended or supplemented at
such Closing Date (and, if applicable, the Option Closing Date), contains
any untrue statement of a material fact, or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The officers' certificate of the Company shall further state
that no stop order affecting the Registration Statement is in effect or, to
their knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option
Closing Date, you shall have received a certificate of an authorized
representative of the Trust to the effect that to the best of his or her
knowledge based upon a reasonable investigation, the representations and
warranties of the Trust in this Agreement are true and correct as though
made on and as of the Closing Date (and, if applicable, the Option Closing
Date); the Trust has complied with all the agreements and satisfied all the
conditions required by this Agreement to be performed or satisfied by the
Trust on or prior to the Closing Date, and since the most recent date as of
which information is given in the Prospectus, except as described in the
Prospectus, the Trust has not incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business and there has not been
any material adverse change in the condition (financial or otherwise) of
the Trust.
28
(j) On the Closing Date, you shall have received duly
executed counterparts of the Trust Agreement, the Guarantee, the Indenture
and the Expense Agreement.
(k) The NASD, upon review of the terms of the public offering
of the Designated Preferred Securities, shall not have objected to the
Underwriters' participation in such offering.
(l) Prior to the Closing Date and, if applicable, the Option
Closing Date, the Offerors shall have furnished to you and counsel for the
Underwriters all such other documents, certificates and opinions as they
have reasonably requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
If any of the conditions referred to in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all of
the Underwriters' obligations hereunder may be terminated by you on notice to
the Company at, or at any time before, the Closing Date or the Option Closing
Date, as applicable. Any such termination shall be without liability of the
Underwriters to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors jointly and severally agree to indemnify and
hold harmless each Underwriter, each of its directors, officers and agents, and
each person, if any, who controls any Underwriter within the meaning of the 1933
Act, against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and attorneys fees and expenses),
joint or several, arising out of or based upon (i) any untrue statement or
alleged untrue statement of a material fact made by the Company or the Trust
contained in Section 2 of this Agreement (or any certificate delivered by the
Company or the Trust pursuant to Sections 6(h), 6(i) and 6(l) hereto) or in the
registration statement as originally filed or the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, (ii) any omission or alleged omission to state a material fact in the
registration statement as originally filed or the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application, required to be stated therein or
necessary to make the statements therein not misleading, and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation and attorneys fees), joint or several, arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus or the Prospectus, or in any amendment
or supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or (iii) the enforcement of this
indemnification provision or the contribution provisions of Section 7(d); and
shall reimburse each such indemnified party for any reasonable legal or other
expenses as incurred, but in no event less frequently than 30 days after each
invoice is submitted, incurred by them in connection with investigating or
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action, notwithstanding the possibility
that payments for such expenses might later be held to be improper, in which
case such payments shall be promptly refunded; provided, however, that the
Offerors shall not be liable in any such case to the extent, but only to the
extent, that any such losses, claims, damages, liabilities and expenses arise
out of or are based upon any untrue statement or omission or allegation thereof
that has been made therein or omitted therefrom in reliance upon and in
conformity with the Underwriters' Information provided, that the indemnification
contained in this paragraph with
29
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or of any person controlling any Underwriter) to the extent any
such losses, claims, damages, liabilities or expenses directly results from the
fact that such Underwriter sold Designated Preferred Securities to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus (as amended or supplemented if any
amendments or supplements thereto shall have been furnished to you in sufficient
time to distribute same with or prior to the written confirmation of the sale
involved), if required by law, and if such loss, claim, damage, liability or
expense would not have arisen but for the failure to give or send such person
such document. The foregoing indemnity agreement is in addition to any liability
the Company or the Trust may otherwise have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless each Offeror, each of its directors, each of its
officers who signed the Registration Statement and each person, if any, who
controls an Offeror within the meaning of the 1933 Act, to the same extent as
required by the foregoing indemnity from the Company to each Underwriter, but
only with respect to the Underwriters' Information. The foregoing indemnity
agreement is in addition to any liability which any Underwriter may otherwise
have to any such indemnified party.
(c) If any action or claim shall be brought or asserted
against any indemnified party or any person controlling an indemnified party in
respect of which indemnity may be sought from the indemnifying party, such
indemnified party or controlling person shall promptly notify the indemnifying
party in writing, and the indemnifying party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all expenses; provided, however, that the failure so to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under such paragraph, and
further, shall only relieve it from liability under such paragraph to the extent
prejudiced thereby. Any indemnified party or any such controlling person shall
have the right to employ separate counsel in any such action and to participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person) it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time and for all
such indemnified party and controlling persons, which firm shall be designated
in writing by the indemnified party (and, if such indemnified parties are
Underwriters, by you, as Representatives). Each indemnified party and each
controlling person, as a condition of such indemnity, shall use reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. The indemnifying party shall not be liable for any settlement
of any such action effected without its written consent, but if there shall be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
30
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall not alter the
right of any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total underwriting discounts, commissions and compensation received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriters on the other 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 or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, 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 paragraph (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriters 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 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls an Offeror within
the meaning of the 1933 Act, each officer and trustee of an Offeror who shall
have signed the Registration Statement and each director of an Offeror shall
have the same rights to
31
contribution as the Offerors subject in each case to the preceding sentence. The
obligations of the Offerors under this paragraph (d) shall be in addition to any
liability which the Offerors may otherwise have and the obligations of the
Underwriters under this paragraph (d) shall be in addition to any liability that
the Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Offerors set forth
in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling an Underwriter or by or on behalf of the Offerors, or
such directors, trustees or officers (or any person controlling an Offeror),
(ii) acceptance of any Designated Preferred Securities and payment therefor
hereunder and (iii) any termination of this Agreement. A successor of any
Underwriter or of an Offeror, such directors, trustees or officers (or of any
person controlling an Underwriter or an Offeror) shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 7.
(f) The Company agrees to indemnify the Trust against any and
all losses, claims, damages or liabilities that may become due from the Trust
under this Section 7.
(g) Insofar as this indemnity agreement may permit
indemnification for liabilities under the 1933 Act of any person who is a
partner of an Underwriter or who controls an underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act and who, at the
date of this Agreement, is a director or officer of the Company or controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, such indemnity agreement is subject to the undertaking of
the Company in Part II of the Registration Statement under paragraph 2 of
Item 17.
8. TERMINATION.
You shall have the right to terminate this Agreement at any time at or
prior to the Closing Date or, with respect to the Underwriters' obligation to
purchase the Option Preferred Securities, at any time at or prior to the Option
Closing Date, without liability on the part of the Underwriters to the Offerors,
if:
(a) Either Offeror shall have failed, refused, or been unable
to perform any agreement on its part to be performed under this Agreement, or
any of the conditions referred to in Section 6 shall not have been fulfilled,
when and as required by this Agreement;
(b) The Offerors or any of the Subsidiaries shall have
sustained 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 which in the
judgment of the Representatives materially impairs the investment quality of the
Designated Preferred Securities;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which is reasonably likely to
have a Material Adverse Effect, whether or not arising in the ordinary course of
business;
(d) There has occurred any outbreak of hostilities or other
calamity or crisis or material change in general economic, political or
financial conditions, or internal conditions, the effect of which on the
financial markets of the United States is such as to make it, in your reasonable
judgment, impracticable to market the Designated Preferred Securities or enforce
contracts for the sale of the Designated Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended,
or minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required, by any of said
exchanges or market system or by the Commission or any other governmental
authority; or
32
(f) A banking moratorium shall have been declared by either
federal or Oklahoma authorities; or
(g) Any action shall have been taken by any government in
respect of its monetary affairs which, your reasonable judgment, has a material
adverse effect on the United States securities markets.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. DEFAULT OF UNDERWRITERS.
If any Underwriter or Underwriters shall default in its or their
obligations to purchase Designated Preferred Securities hereunder, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Designated Preferred Securities which
such defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that the non-defaulting Underwriters shall be under no
obligation to purchase such Designated Preferred Securities if the aggregate
number of Designated Preferred Securities to be purchased by such non-defaulting
Underwriters shall exceed 110% of the aggregate underwriting commitments set
forth in Schedule I hereto, and provided further, that no non-defaulting
Underwriter shall be obligated to purchase Designated Preferred Securities to
the extent that the number of such Designated Preferred Securities is more than
110% of such Underwriter's underwriting commitment set forth in Schedule I
hereto.
In the event that the non-defaulting Underwriters are not obligated
under the above paragraph to purchase the Designated Preferred Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representatives may in their discretion arrange for one or more of the
Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representatives do not arrange for the purchase of such
Designated Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representatives to purchase such Designated Preferred
Securities on such terms.
In the event that the Representatives or the Company do not arrange for
the purchase of any Designated Preferred Securities to which a default relates
as provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Preferred Securities
of a defaulting Underwriter or Underwriters as provided in this Section 9, (i)
you shall have the right to postpone the Closing Date for a period of not more
than five full business days, in order to effect any changes that, in the
opinion of counsel for the Underwriters or the Company, may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file any amendments
to the Registration Statement or supplements to the Prospectus which, in its
opinion, may thereby be made necessary and (ii) the respective numbers of
Designated Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of any liability it may have for damages
occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 9 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 5 and except for the provisions of Section 7.
33
10. EFFECTIVE DATE OF AGREEMENT.
If the Registration Statement is not effective at the time of execution
of this Agreement, this Agreement shall become effective on the Effective Date
at the time the Commission declares the Registration Statement effective. The
Company shall immediately notify the Underwriters when the Registration
Statement becomes effective.
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. St. Louis time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Representatives shall
release the Designated Preferred Securities for initial public offering. The
Representatives shall notify the Offerors immediately after they have taken any
action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may
be terminated by the Offerors, by notifying you or by you, as Representatives of
the several Underwriters, by notifying either Offeror, except that the
provisions of Sections 5 and 7 shall at all times be effective.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
The representations, warranties, indemnities, agreements and other
statements of the Offerors and their officers and trustees set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Offerors or controlling persons
of either Offeror, or by or on behalf of the Underwriters or controlling persons
of the Underwriters or any termination or cancellation of this Agreement and
shall survive delivery of and payment for the Designated Preferred Securities.
12. NOTICES.
Except as otherwise provided in this Agreement, all notices and
other communications hereunder shall be in writing and shall be deemed to
have been duly given if delivered by hand, mailed by registered or certified
mail, return receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to Offerors shall be sent to ▇▇▇▇
▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(with a copy to ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.) and notices
to the Underwriters shall be sent to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company,
Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ (with a copy to ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇, Esq.). In all dealings with the Company under this Agreement, the
Representatives shall act as representative of and on behalf of the several
Underwriters, and the Company shall be entitled to Act and rely upon any
statement, request, notice or agreement on behalf of the Underwriters, made
or given by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated on behalf of the
Underwriters, as if the same shall have been made or given in writing by the
Underwriters.
13. PARTIES.
The Agreement herein set forth is made solely for the benefit of the
Underwriters and the Offerors and, to the extent expressed, directors, trustees
and officers of the Offerors, any person controlling the Offerors or the
Underwriters, and their respective successors and assigns. No other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns"
34
shall not include any purchaser, in his status as such purchaser, from the
Underwriters of the Designated Preferred Securities.
14. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Missouri,
without giving effect to the choice of law or conflicts of law principles
thereof.
15. AUTHORITY.
Any certificate signed by an authorized officer of the Company or the
Trust and delivered to the Representatives or to counsel for the Underwriters
pursuant to this Agreement shall be deemed a representation and warranty by the
Company and the Trust to the Underwriters as to the matters covered thereby.
16. COUNTERPARTS.
This Agreement may be executed by facsimile and in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
SIGNATURES APPEAR ON THE NEXT PAGE
If the foregoing is in accordance with the your understanding
of our agreement, please sign and return to us a counterpart hereof, whereupon
this shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
LOCAL FINANCIAL CORPORATION
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
LOCAL FINANCIAL CAPITAL TRUST I
By:
-----------------------------
Name:
---------------------------
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of [_______________], 2001
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
For itself and as co-Representative of the several
Underwriters named in Schedule I hereto.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
For itself and as co-Representative of the several
Underwriters named in Schedule I hereto.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & CO., INC.
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
For itself and as co-Representative of the several
Underwriters named in Schedule I hereto.
SCHEDULE I
UNDERWRITER NUMBER OF SECURITIES
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated..........................
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated..............................
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., Inc.............................
Total.............................................................
EXHIBIT A
LIST OF SUBSIDIARIES
Local Oklahoma Bank, National Association
Local Securities Corporation
Local Financial Capital Trust I