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1,600,000 Preferred Securities
First America Capital Trust
% Cumulative Trust Preferred Securities
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(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
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, 1998
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XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
XXXXXX & XXXXXX, INC.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
As Representatives of the Several Underwriters
named in Schedule I hereto
Dear Sirs:
First Banks America, Inc., a Delaware corporation (the "Company")
and its financing subsidiary, First America Capital Trust, 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, 1,600,000 of the Trust's % Cumulative Trust
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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 1,600,000 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 240,000 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". Xxxxxx,
Xxxxxxxx & Company, Incorporated and Xxxxxx & Xxxxxx, Inc. are acting jointly
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.
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1. Sale, Purchase and Delivery of Designated Preferred Securities;
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Description of Designated Preferred Securities.
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(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
share (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
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"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 1,600,000.
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 240,000 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 the Representatives
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 1,600,000.
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
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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 certificates 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.
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Payment of the Purchase Price and the Firm Preferred Securities
Commission and delivery of certificates for the Firm Preferred Securities
shall be made at the offices of Xxxxxx, Xxxxxxxx & Company, Incorporated, 000
Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or such other place as shall be
agreed to by you and the Offerors, at 10:00 a.m., St. Louis time, on
, 1998, or at such other time not more than five full business
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days thereafter as the Offerors and you shall determine (the "Closing Date").
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 certificates 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.
Such payments shall be made to an account designated by the Trust by wire
transfer or certified or bank cashier's check, in 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
certificates for the Designated Preferred Securities to be purchased by the
Underwriters.
The Agreement contained herein with respect to the timing of the
Closing Date and Option Closing Date is intended to, and does, constitute an
express agreement, as described in Rule 15c6-1(c) and (d) promulgated under
the 1934 Act (as defined herein), for a settlement date other than four
business days after the date of the contract.
Certificates for Designated Preferred Securities to be purchased
by the Underwriters shall be delivered by the Offerors in fully registered
form in such authorized denominations and registered in such names as you
shall request in writing not later than 12:00 noon, St. Louis time, two
business days prior to the Closing Date and, if applicable, the Option
Closing Date. Certificates for Designated Preferred Securities to be
purchased by the Underwriters shall be made available by the Offerors to you
for inspection, checking and packaging at such office as you may designate in
writing not later than 1:00 p.m., St. Louis time, on the last business day
prior to the Closing Date and, if applicable, on the last business day prior
to the Option Closing Date.
Time shall be of the essence, and delivery of the certificates
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 State Street Bank and Trust Company, as Property Trustee, Wilmington
Trust Company, as Delaware 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 Subordinated Debentures ( the "Debentures") pursuant to an
Indenture, to be dated as of , 1998, between the Company and
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State Street Bank and Trust Company, as Trustee (the "Indenture") and (ii) to
guarantee certain payments on the Designated Preferred Securities pursuant to
a Guarantee
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Agreement between the Company and State Street Bank and Trust Company, as
guarantee trustee (the "Guarantee"), to the extent described therein.
2. Representations and Warranties.
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(a) 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 Securities
Exchange Act of 1934, as amended (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-2 (File Numbers 333-
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and 333- -01) for the registration of the Designated Preferred
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Securities, the Guarantee and $46,000,000 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. Copies of such registration statement,
including any amendments thereto, 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
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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.
(iv) No order preventing or suspending the use of any
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) has been issued by the Commission, 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,
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however, that this representation and warranty does not apply to
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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" and the last sentence on the cover page of the
Prospectus (such information referred to herein as the "Underwriters'
Information").
(v) 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
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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. 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,
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however, that this representation and warranty does not apply to
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Underwriters' Information.
(vi) (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 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 not, and at the Closing Date or any Option Closing
Date will not be, to the knowledge of the Offerors, classified as an
association taxable as a corporation for United States federal income
tax purposes; and the Trust is, and as of
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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 three (3) subsidiaries. They are
listed on Exhibit A attached hereto and incorporated herein (the
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"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.
BankTEXAS National Association and First Bank of California are
collectively referred to as the "Banks". Each Subsidiary is a bank,
bank holding company or business trust duly incorporated, validly
existing and in good standing under the laws of its respective
jurisdiction of incorporation. Each such Subsidiary has full corporate
and other 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 each Bank are insured by the
Bank Insurance Fund administered by the Federal Deposit Insurance
Corporation (the "FDIC") up to the maximum amount provided by law,
except to the extent the Prospectus discloses such deposit accounts are
insured by the Savings Association Insurance Fund ("SAIF") and to such
extent the deposit accounts are so insured 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 and is in good
standing in each other jurisdiction in which it owns or leases property
or 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 on the condition (financial
or otherwise), earnings, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis. All of
the issued and outstanding shares of capital stock of the Subsidiaries
(A) have been duly authorized and are validly issued, (B) are fully
paid and nonassessable except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 55 or 12 U.S.C. Section 1831o or
under applicable state banking law, and (C) except as disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), are directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
restriction upon voting or transfer, preemptive rights, claim or
equity.
(ix) The capital stock of the Company and the equity
securities of the Trust conform to the description thereof contained in
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus). The outstanding shares of capital stock
and equity securities of each Offeror have been duly authorized and
validly issued and are fully paid and nonassessable, and no such shares
were issued in violation of the preemptive or similar rights of any
security holder of an Offeror; no person has any preemptive or similar
right to purchase any shares of capital stock or equity securities of
the Offerors. Except as disclosed in the Prospectus, (or, if the
Prospectus is not in
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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 corporate charter or bylaws, the Trust Agreement or any
agreement or other instrument to which an Offeror is a party or by which
an Offeror is bound other than the restrictions on transfer of the
Company's Class B Common Stock as set forth in that certain Stock Purchase
and Operating Agreement by and between First Banks, Inc. and the Company
dated May 19, 1994.
(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 in accordance with this Agreement, will be duly and
validly issued and outstanding, will be fully paid and nonassessable
undivided beneficial interests in the assets of the Trust, will be
entitled to the benefits of the Trust Agreement, will not be issued in
violation of or subject to any preemptive or similar rights, and will
conform 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 delivered to the Trust pursuant
to the Trust Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits of the Indenture
and will conform to the description thereof contained in the
Prospectus.
(C) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and delivered to the
guarantee trustee for the benefit of the Trust, will constitute a valid
and legally binding obligation of the Company and will conform 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 and will conform to the description thereof
contained in the Prospectus.
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(xi) The Offerors and the Subsidiaries have complied
in all material respects with all federal, state and local statutes,
regulations, ordinances and rules applicable to the ownership and
operation of their properties or the conduct of their businesses 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.
(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 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 in all material respects. 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 has
received notice or otherwise has 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 is in breach or violation of its corporate charter, by-laws
or other governing documents (including without limitation, the 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 breach, violation or default could
have material adverse consequences to the Offerors and the Subsidiaries
on a consolidated basis, 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 Banks), 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 on the condition, financial or
otherwise, earnings,
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affairs, business, prospects, or results of operations of the Offerors and
the Subsidiaries on a consolidated basis.
(xiv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) 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 the charter or by-laws of the Company or
the Subsidiaries, the Trust Agreement, the Guarantee, the Indenture,
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 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
on the condition, financial or otherwise, earnings, affairs, business,
prospects or results of operations of the Offerors and the Subsidiaries
on a consolidated basis. 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 Registration Statement and the Prospectus, except such as have been
obtained under the 1933 Act, the Trust Indenture Act and from the New
York Stock Exchange 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.
(xv) The Offerors have all requisite corporate 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 general principles of
equity and by bankruptcy or other laws relating to or affecting
creditors' rights generally 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
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by general principles of equity and by bankruptcy or other laws relating
to or affecting creditors' rights generally 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 and 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 leases.
(xvii) KPMG Peat Marwick LLP, who have certified certain
of the consolidated financial statements of the Company and the
Subsidiaries including the notes thereto, included by incorporation by
reference or otherwise 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) Xxxxxxx & Xxxxxxx, who have certified certain of
the consolidated financial statements of Redwood Bancorp, a California
corporation ("Redwood"), including the notes thereto, included by
incorporation by reference or otherwise in the Registration Statement
and Prospectus, are independent public accountants with respect to
Redwood, as required by the 1933 Act and the 1933 Act Regulations.
(xix) The consolidated financial statements including
the notes thereto, included by incorporation by reference or otherwise 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 in all material respects
with the 1933 Act and the 1933 Act Regulations and present fairly 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.
The selected and summary consolidated financial data concerning the
Offerors 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
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Act Regulations, present fairly the information set forth therein, and
have been compiled on a basis consistent with that of the consolidated
financial statements of the Offerors 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) complies in all material respects with the 1933
Act and the 1933 Act Regulations, presents fairly the information shown
therein, and to the extent applicable have 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).
(xx) To the best knowledge and belief of the Company
after due inquiry the consolidated financial statements of Redwood and
its subsidiaries, including Redwood's wholly owned banking subsidiary,
Redwood Bank, a California state banking corporation, including the
notes thereto, included by incorporation by reference or otherwise in
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) with respect
to Redwood and its subsidiaries comply in all material respects with
the 1933 Act and the 1933 Act Regulations and present fairly the
consolidated financial position of Redwood and its subsidiaries as of
the dates indicated and the consolidated results of operations, cash
flows and shareholders' equity of Redwood and its subsidiaries for the
periods specified and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis. To the
best knowledge and belief of the Company after due inquiry the selected
and summary consolidated financial data concerning Redwood and its
subsidiaries and 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, and have been compiled on a basis
consistent with that of the consolidated financial statements of
Redwood and its subsidiaries in the Registration Statement and the
Prospectus (or such Preliminary Prospectus). To the best knowledge and
belief of the Company after due inquiry the other financial,
statistical and numerical information included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus) complies
in all material respects with the 1933 Act and the 1933 Act
Regulations, presents fairly the information shown therein, and to the
extent applicable have been compiled on a basis consistent with the
consolidated financial statements of Redwood and its subsidiaries
included in the Registration Statement and the Prospectus (or such
Preliminary Prospectus).
(xxi) The pro forma condensed consolidating financial
statements of the Company, the Subsidiaries, Redwood and Redwood's
subsidiaries and the pro forma summary information for such entities
included by incorporation by reference or otherwise in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) comply in form in
all material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act
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Regulations and the pro forma adjustments to the historical amounts in the
compilation of those statements comply with such accounting requirements
and are reasonable.
(xxii) All of the representations and warranties of the
Company, and to the best knowledge and belief of the Company after due
inquiry all of the representations and warranties of Redwood, contained
in that certain [Acquisition Agreement] by and between Redwood and the
Company dated as of , 1998 ("[Acquisition] Agreement") are
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true and correct in all material respects, and all of the covenants and
agreements of the Company contained in the [Acquisition] Agreement
which by their terms were to be complied with as of the date hereof
have been complied with by the Company in all material respects, except
to the extent that a breach of such representations and warranties or
noncompliance with such covenants and agreements does not have a
material adverse effect on the condition (financial or otherwise),
earnings, business, prospects or results of the Company, the
Subsidiaries, Redwood and its subsidiaries on a consolidated basis.
The Company does not know of any facts or circumstances inconsistent
with the consummation of the transactions contemplated by the
[Acquisition] Agreement in accordance with its terms and as described
in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence the most recent Preliminary Prospectus) or of any
facts and circumstances which lead the Company to believe that such
consummation in accordance with the terms of the [Acquisition]
Agreement and as described in the Registration Statement or such
Prospectus will not occur. The Company is not aware of any material
disagreements between the Company and Redwood regarding the terms of
the [Acquisition] Agreement or interpretation thereof.
(xxiii) 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 is material to the
condition (financial or otherwise), earnings, business, prospects
or results of operations of the Offerors and the Subsidiaries on
a consolidated basis;
(B) there has not been any material adverse
change in, or any development which is reasonably likely to have
a material adverse effect on, the condition (financial or
otherwise), earnings, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis, 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 is
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material to the condition (financial or otherwise), earnings,
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis;
(D) neither of the Offerors have 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; and
(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.
(xxiv) 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 have a material adverse
effect on the consummation of this Agreement or the transactions
contemplated herein or the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Offerors and the Subsidiaries on a consolidated basis or which is
required to be disclosed in the Registration Statement or the
Prospectus (or such Preliminary Prospectus) and is not so disclosed.
(xxv) 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 to 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.
(xxvi) Neither of the Offerors has taken, directly or
indirectly, any action causing or resulting in or which has constituted
or which might reasonably be expected to cause or result in
stabilization or manipulation 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, nor is either Offeror
aware of any such action having been taken or to be taken by any
affiliate of the Offerors.
(xxvii) 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 Offerors nor the Subsidiaries
have received any notice of infringement or conflict with asserted
rights of others with respect to any
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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 on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis, and the Offerors do not know of any
basis for any such infringement or conflict.
(xxviii) Except as adequately 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 on the condition (financial
or otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated basis
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 have
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 on the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis.
(xxix) 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 on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis. The Offerors have no knowledge
of any tax deficiency which has been or might be assessed against the
Offerors or the Subsidiaries which, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the Subsidiaries
on a consolidated basis.
(xxx) Each of the material contracts, agreements and
instruments described or referred to in the Registration Statement or
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and each contract, agreement and
instrument filed as an exhibit to 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 general principles
of equity and by bankruptcy or other laws relating to or affecting
creditors' rights generally. Except as disclosed in the Prospectus (or
such Preliminary Prospectus), to the knowledge of the Offerors, no
other party to any such agreement is (with or without notice or lapse
of time or both) in breach or default in any material respect
thereunder.
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(xxxi) No relationship, direct or indirect, exists
between or among the Offerors or the Subsidiaries, on the one hand, and
the directors, officers, trustees, shareholders, customers or suppliers
of the Offerors 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.
(xxxii) 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).
(xxxiii) The Designated Preferred Securities have been
approved for listing on the New York Stock Exchange subject to official
notice of issuance.
(xxxiv) Except as described in or contemplated by 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 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.
(xxxv) Neither of the Offerors is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act").
(xxxvi) 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.
3. Offering by the Underwriters. 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.
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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 use their best efforts to 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 relating to the Registration Statement or the
Prospectus;
(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 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)
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all exhibits and documents incorporated therein or filed therewith, (iii) all
consents and certificates of experts in executed form, (iv) each 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 to the best of their
ability 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 any 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 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 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
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suspension of qualification of the Designated Preferred Securities or threat
thereof in any jurisdiction.
(f) 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, but in any event not
later than 16 months after the Effective Date, a consolidated earnings
statement of the Offerors conforming with the requirements of Section 11(a)
of the 1933 Act and Rule 158.
(g) The Offerors shall use the 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."
(h) 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 from the
Commission) or with any national securities exchange or self-regulatory
organization, 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.
(i) For a period of 30 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 or the
Debentures, 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.
(j) The Offerors shall use their best efforts to cause the
Designated Preferred Securities to become listed on the New York Stock
Exchange, or in lieu thereof another national securities exchange or the
Nasdaq National Market, and to remain so listed for at least five years from
the Effective Date or for such shorter period as may be specified in a
written consent of the Representatives, 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 will use its best efforts to have the
Debentures promptly listed on the New York Stock Exchange or other
organization on which the Designated Preferred Securities are then listed,
and to have the Debentures promptly registered under the Exchange Act.
(k) 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
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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, and there will
not be any material 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.
(l) 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' securities.
(m) The Offerors shall not take, 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 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.
(n) 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 (the "Offering") without your prior written consent.
5. Payment of Expenses. Whether or not this Agreement is terminated
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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), the certificates for the Designated
Preferred Securities and the Preliminary and Final Blue Sky Memoranda and any
legal investment surveys and any supplements thereto;
(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
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disbursements of counsel for the Underwriters in connection therewith,
including, without limitation, in connection with the preparation of the
Preliminary and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto;
(d) all fees and expenses incurred in connection with filings
made with the NASD;
(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 New York Stock Exchange;
(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;
(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 and the Guarantee; 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 the 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, reasonable 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
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granted by the Offerors in Section 1 of this Agreement, the Option Preferred
Securities, are subject, in your sole discretion, to the accuracy of and
compliance with the representations and warranties and 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.
(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 satisfactory in all material respects 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) Xxxxxxx Xxxxxx L.L.P., 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:
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(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. Each of the Subsidiaries is duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation. Each of the Company and the Subsidiaries has full
corporate power 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. To the best of
such counsel's knowledge, all outstanding shares of capital stock of
the Subsidiaries have been duly authorized and validly issued and are
fully paid and nonassessable except to the extent such shares may be
deemed assessable under 12 U.S.C. Section 1831 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 securities convertible into or exchangeable for any such shares;
(ii) The capital stock, 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. To the best of such counsel's knowledge, the capital stock
of the Company authorized and issued as of March 31, 1998 is as set
forth under the caption "Capitalization" in the Prospectus, has been
duly authorized and validly issued, and is fully paid and
nonassessable. To the best 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 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 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 listing on the New York Stock Exchange 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 shares
of capital stock or 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
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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 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 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, authenticated and delivered by the Company, are entitled to
the benefits of the Indenture 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;
(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 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) To the best of such counsel's knowledge, neither
of the Offerors nor any of the Subsidiaries is in breach or violation
of, or default under, with or without notice or lapse of time or both,
its 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 conditions of
the charter, by-laws or governing document (including without
limitation, the Trust Agreement) of the Offerors or the Subsidiaries,
or to the best of such counsel's knowledge, any material contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease, franchise, license or any other agreement or instrument to which
either Offeror or the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound or 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
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having jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties which, in each case, is material to the Offerors
and the Subsidiaries on a consolidated basis. 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 in
connection with 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 either 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 Offerors 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, to the best of such counsel's knowledge, (i) no
action, suit or proceeding at law or in equity is pending or threatened
in writing to which the Offerors or the Subsidiaries is or may be a
party, and (ii) no action, suit or proceeding is pending or 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 the condition
(financial or otherwise), earnings, affairs, business, or results of
operations of the Offerors and the Subsidiaries on a consolidated basis
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 and any documents incorporated
therein by reference (other than the financial statements or other
financial 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;
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(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 "Supervision
and Regulation", "Description of the Preferred Securities",
"Description of the Subordinated Debentures", "Description of the
Guarantee", "Relationship Among the Preferred Securities, the
Subordinated Debentures and the Guarantee", "Certain Federal Income Tax
Consequences", and "ERISA Considerations" in the Prospectus, insofar
as such statements constitute a summary of legal and regulatory
matters, documents or instruments referred to therein are accurate
descriptions of the matters summarized therein in all material respects
and fairly present the information called for with respect to such
legal matters, documents and instruments, other than financial and
statistical data as to which said counsel shall not be required to
express 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 described in or contemplated by the
Prospectus, to the best of such counsel's knowledge, 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 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; and
(xvii) To the best of such counsel's knowledge, (A) the
business and operations of the Offerors and the Subsidiaries comply in
all material respects with all statutes, ordinances, 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 (B) the
Offerors and the Subsidiaries possess and are operating in all material
respects in compliance with the terms, provisions and conditions of all
Permits that are required to conduct their businesses as described in
the Prospectus and that are material to the Offerors and the
Subsidiaries on a consolidated basis, except in those instances where
the loss thereof or non-compliance therewith would not have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Offerors
and the Subsidiaries on a consolidated basis; to the best of such
counsel's knowledge, all such Permits are valid and in full force and
effect, and, to the best of such counsel's knowledge, no action, suit
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or proceeding is pending or threatened which may lead to the
revocation, termination, suspension or non-renewal of any such Permit,
except in those instances where the loss thereof or non-compliance
therewith would not materially impair the ability of the Offerors or
the Subsidiaries to conduct their businesses.
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 identity of any 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 (viii), (xiii) and (xvii) hereof and certificates of
public officials. In giving such opinion, such counsel may rely as to
matters of Delaware law upon the opinion of Xxxxxxxx, Xxxxxx and Xxxxxx
described herein.
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 (without taking further action to verify independently the
statements made in the Registration Statement and the Prospectus, and without
assuming responsibility for the accuracy or completeness of such statements,
except to the extent expressly provided above) and such counsel has no reason
to believe (A) that the Registration Statement or any amendment thereto
(except for the financial statements and related schedules 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 or the documents
incorporated therein by reference (except for the financial statements and
related schedules 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 not misleading in light of the circumstances under which
they were made, or (C) that there is any amendment to the Registration
Statement required to be filed that has not already been filed.
(e) Xxxxxxxx, Xxxxxx and Xxxxxx, 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:
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(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 sponsor, and the Trustees, and is
enforceable against the Company, as sponsor, 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 Designated Preferred
Securities will be, subject to the qualifications set forth in
paragraph (v) below, fully paid and nonassessable beneficial interest
in the assets of the Trust and entitled to the benefits of the Trust
Agreement. 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 of the
Delaware Business Trust Act.
(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
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effect of applicable public policy on the enforceability of provisions relating
to indemnification or contribution.
(f) Xxxxx Xxxx LLP, 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, Xxxxx Xxxx LLP 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 Xxxxxxx
Xxxxxx L.L.P. and Xxxxxxxx, Xxxxxx and Xxxxxx 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 Peat Marwick 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
Company (which shall be inclusive of the Subsidiaries for purposes of this
Section 6(g)), 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 in the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations.
(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 in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and 1933 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
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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, any decreases
in consolidated total assets or 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 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 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 any other
items specified by the Representatives, in each case 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 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 Statement, 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 letters to be delivered 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
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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 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 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) On the date of this Agreement and on the Closing Date (and,
if applicable, any Option Closing Date), the Representatives shall have
received from Coopers & Xxxxxxx 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 it is an independent public accounting firm with respect to
Empire within the meaning of the 1933 Act and the 1933 Act Regulations, and
stating in effect that:
(i) In its opinion, the consolidated financial
statements of Empire audited by it and included in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations.
(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
Empire 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 Empire included in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and 1933 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 Empire
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 Empire, inspection of the minute books of Empire since
the date of the latest audited financial statements of Empire included
or incorporated by reference in the Registration Statement, inquiries
of officials of Empire responsible for financial and accounting matters
and such
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other inquiries and procedures as may be specified in such letter, nothing
came to its attention that caused it 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 Empire, any increase
in the consolidated debt of Empire, any decreases in consolidated
total assets or shareholders' equity of Empire, 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 Empire included 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 Empire
included 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 Empire or in the per share amount of net income of Empire, or
any changes, decreases or increases in any other items specified
by the Representatives, in each case 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 its
report included 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 Empire which appear in the
Registration Statement, 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
Empire and have found them to be in agreement.
In the event that the letters to be delivered 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 Empire 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
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specified in Clause (iii)(A) above as compared with the amounts shown
in the latest unaudited consolidated statement of financial condition of
Empire included 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 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.
(i) 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 the
Offerors have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to such 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 change in the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis; (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; and (v) covering such other matters as you may
reasonably request. 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.
(j) 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 contemplated by 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.
(k) On the Closing Date, you shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
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(l) 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.
(m) 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 agree to jointly and severally 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 reasonable attorney
fees and expenses), joint or several, arising out of or based: (i) upon any
untrue statement or alleged untrue statement of a material fact made by the
Company or the Trust contained in Section 2(a) of this Agreement (or any
certificate delivered by the Company or the Trust pursuant to Sections 6(i),
6(j) or 6(m) hereof) or the registration statement as originally filed or the
Registration Statement, any Preliminary Prospectus or the Prospectus, or in any
amendment or supplement thereto; (ii) upon any blue sky application or other
document executed by the Company or the Trust specifically for that purpose or
based upon written information furnished by the Company or the Trust filed in
any state or other jurisdiction in order to qualify any of the Designated
Preferred Securities under the securities laws thereof (any such application,
document or information being hereinafter referred to as a "Blue Sky
Application"); (iii) upon any omission or alleged omission to state a material
fact in the registration statement as originally filed or the Registration
Statement, the 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 attorney 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
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they were made, not misleading; (iv) upon any failure of the consolidated
financial statements of Redwood and its subsidiaries described in Section
2(a)(xx) hereof, (x) to comply in all material respects with the 1933 Act and
the 1933 Act Regulations, (y) to present fairly the consolidated financial
position of Redwood and its subsidiaries as of the dates indicated, or (z) to
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis; (v) upon any failure of the selected and
summary financial data concerning Redwood and its subsidiaries described in
Section 2(a)(xx) hereof, (x) to comply in all material respects with the 1933
Act and the 1933 Act Regulations, (y) to present fairly the information set
forth therein, or (z) to have been compiled on a basis consistent with that of
the consolidated financial statements of Redwood and its subsidiaries in the
Registration Statement and the Prospectus (or such Preliminary Prospectus);
(vi) upon any failure of the financial, statistical and numerical information
concerning Redwood and its subsidiaries described in Section 2(a)(xx) hereof and
included in the Registration Statement and the Prospectus (or such Preliminary
Prospectus), (x) to comply in all material respects with the 1933 Act and the
1933 Act Regulations, (y) to present fairly the information shown therein, or
(z) to the extent applicable, to have been compiled on a basis consistent with
the consolidated financial statements of Redwood and its subsidiaries included
in the Registration Statement and the Prospectus (or such Preliminary
Prospectus); or (vii) 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 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 or in a Blue Sky
Application. 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
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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 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.
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
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37
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 Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 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 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
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(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.
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 on, the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Offerors and the Subsidiaries on a consolidated basis, 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;
(f) A banking moratorium shall have been declared by either
federal, Missouri, Texas or California 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.
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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.
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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 either Offeror shall be sent
to 00000 Xxxxx Xxxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx X.
Xxxxx (with a copy to Xxxxxxx Xxxxxx L.L.P., 000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxx, III, Esq. and to Xxxx X.
Xxxxxxx, Esq., 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000; and
notices to the Underwriters shall be sent to Xxxxxx, Xxxxxxxx & Company,
Incorporated, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000,
Attention: Xxxx X. Xxxxxx and to Xxxxxx & Xxxxxx, Inc., 000 Xxxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X.
Xxxxxxx (with a copy to Xxxxx Xxxx LLP, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx.
Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, Xx., Esq.). In all
dealings with the Company under this Agreement, Xxxxxx, Xxxxxxxx & Company,
Incorporated and Xxxxxx & Xxxxxx, Inc. shall act jointly as representatives
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 jointly by Xxxxxx, Xxxxxxxx &
Company, Incorporated and Xxxxxx & Xxxxxx, Inc. on behalf of the
Underwriters, as if the same shall have been made or given in writing by the
Underwriters. No statement, request, notice, agreement or action issued or
taken in connection with the Offering by either Xxxxxx, Xxxxxxxx &
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Company, Incorporated or Xxxxxx & Xxxxxx, Inc., acting alone, without the
express written agreement of the other party, shall be valid and binding against
the other or the several 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" 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. Counterparts. This Agreement may be executed 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.
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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,
FIRST BANKS AMERICA, INC.
By:
---------------------------------
Name:
Title:
FIRST AMERICA CAPITAL TRUST
By:
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of , 1998.
------------
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:
--------------------------------------------
Name:
Title:
For itself and as Representative of the several
Underwriters named in Schedule I hereto.
XXXXXX & XXXXXX, INCORPORATED
By:
--------------------------------------------
Name:
Title:
For itself and as Representative of the several
Underwriters named in Schedule I hereto.
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SCHEDULE I
----------
Underwriter Number of Preferred Securities
----------- ------------------------------
Xxxxxx, Xxxxxxxx & Company, Incorporated
----------------
Xxxxxx & Xxxxxx, Inc.
----------------
----------------
Total 1,600,000
================
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EXHIBIT A
LIST OF SUBSIDIARIES
BankTEXAS National Association
First Bank of California
First America Capital Trust
