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EXHIBIT 1.1
$15,000,000
ABI CAPITAL TRUST
AMERICAN BANCSHARES, INC.
____% Preferred Securities
(Liquidation Amount $10 per Preferred Security)
UNDERWRITING AGREEMENT
______ __, 1998
ADVEST, INC.
Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
ABI Capital Trust (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C. Section 3801 et
seq.), and American Bancshares, Inc., a Florida corporation (the "Company"), as
depositor of the Trust and as guarantor, hereby confirm their agreement with
you, as the underwriter ("Underwriter"), as follows:
Section 1. Introduction.
Upon the terms and conditions set forth in this Underwriting Agreement
(this "Agreement"), the Trust agrees to, and the Company agrees to cause the
Trust to, issue and sell to the Underwriter an aggregate liquidation amount of
$15,000,000 (the "Firm Securities") of the Trust's ____% preferred securities
(the "Preferred Securities"). The Trust also proposes to, and the Company also
proposes to cause the Trust to, issue and sell to the Underwriter, at the
Underwriter's option, up to an additional $2,250,000 aggregate Liquidation
Amount of Preferred Securities (the "Option Securities") as set forth herein.
The term "Preferred Securities" as used herein, unless indicated otherwise,
shall mean the Firm Securities and the Option Securities.
The Preferred Securities and the Common Securities (as defined herein)
are to be issued pursuant to the terms of an Amended and Restated Trust
Agreement to be dated as of ______ __, 1998 (the "Trust Agreement"), among the
Company, as depositor, and,
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together with the Trust, the "Offerors," and Bankers Trust Company ("Trust
Company"), a New York banking corporation, as property trustee ("Property
Trustee") and Bankers Trust (Delaware) ("Trust Delaware" and, together with the
Trust Company, "Trustees"), a Delaware banking corporation, as Delaware trustee
("Delaware Trustee") and the holders from time to time of undivided interests in
the assets of the Trust. The Preferred Securities will be guaranteed by the
Company on a subordinated basis and subject to certain limitations with respect
to distributions and payments upon liquidation, redemption or otherwise (the
"Guarantee") pursuant to the Guarantee Agreement to be dated as of ______ __,
1998 (the "Guarantee Agreement"), between the Company and the Trust Company, as
Trustee (the "Guarantee Trustee"). The assets of the Trust will consist of ____%
junior subordinated deferrable interest debentures, due ______ __, 2028 (the
"Subordinated Debentures") of the Company which will be issued under a Junior
Subordinated Indenture to be dated as of ______ __, 1998 (the "Indenture"),
between the Company and the Trust Company, as Trustee (the "Indenture Trustee").
Under certain circumstances, the Subordinated Debentures will be distributable
to the holders of undivided beneficial interests in the assets of the Trust. The
entire proceeds from the sale of the Preferred Securities will be combined with
the entire proceeds from the sale by the Trust to the Company of the Trust's
common securities (the "Common Securities"), and will be used by the Trust to
purchase an equivalent amount of the Subordinated Debentures.
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-1 (Nos. 333-_____ and
333-_____-01) and a related preliminary prospectus for the registration of the
Preferred Securities, the Guarantee, and the Subordinated Debentures under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations thereunder (the "Securities Act Regulations"). The Offerors have
prepared and filed such amendments thereto, if any, and such amended preliminary
prospectuses, if any, as may have been required to the date hereof, and will
file such additional amendments thereto and such amended prospectuses as may
hereafter be required. The registration statement has been declared effective
under the Securities Act by the Commission. The registration statement as
amended at the time it became effective (including the prospectus and all
information deemed to be a part of the registration statement at the time it
became effective pursuant to Rule 430A(b) of the Securities Act Regulations) is
hereinafter called the "Registration Statement," except that, if the Company
files a post-effective amendment to such registration statement which becomes
effective prior to the Closing Date (as defined below), "Registration Statement"
shall refer to such registration statement as so amended. Each prospectus
included in the registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the Commission
by the Company with the consent of the Underwriter pursuant to Rule 424(a) of
the Securities Act Regulations (including the documents incorporated by
reference therein) is hereinafter called the "Preliminary Prospectus." The term
"Prospectus" means the final prospectus (including the documents incorporated by
reference therein, if any), as first filed with the Commission pursuant to
paragraph (1) or (4) of Rule 424(b) of the Securities Act Regulations. The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
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Section 2. Representations and Warranties.
Each of the Offerors represents and warrants to, and agrees with, the
Underwriter as follows:
(a) The Company is duly incorporated and validly existing as a
corporation with active status under the laws of the State of Florida with full
power and authority (corporate and other) to own, lease, and operate its
properties and conduct its business as described in the Prospectus (as defined
in Section 1 of this Agreement); the Company is duly registered under the Bank
Holding Company Act of 1956, as amended; the Company has no subsidiaries except
those described in the Registration Statement (each a "Subsidiary"); the Company
owns, directly or indirectly, beneficially and of record all of the outstanding
capital stock of each Subsidiary free and clear of any claim, lien, encumbrance
or security interest, except as described in the Prospectus. The Company and
each of its Subsidiaries is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which any of them own
or lease properties, has an office, or in which the business conducted by any of
them make such qualification necessary, except where the failure to so qualify
would not have a material adverse effect on the condition (financial or
otherwise), business, assets, properties, results of operations, or net worth of
the Company and its Subsidiaries taken as a whole ("Material Adverse Effect");
and no proceeding has been instituted in any jurisdiction revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority or
qualification.
(b) The Preferred Securities have been duly and validly
authorized for issuance and sale to the Underwriter pursuant to this Agreement
and, when executed and authenticated in accordance with the terms of the Trust
Agreement and delivered to the Underwriter against payment of the consideration
set forth herein, will constitute valid and legally binding obligations of the
Trust enforceable in accordance with their terms and entitled to the benefits
provided by the Trust Agreement (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance, or similar laws relating to or
affecting creditors' rights generally or general equity principles (whether
considered in a proceeding in equity or at law)). The Trust Agreement has been
duly authorized and, when executed by the proper officers of the Trust and
delivered by the Trust, will have been duly executed and delivered by the Trust
and, assuming due authorization and execution of the Trust Agreement by each
other party thereto, will constitute the valid and legally binding instrument of
the Trust, enforceable in accordance with its terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights generally
or general equity principles (whether considered in a proceeding in equity or at
law)). The Subordinated Debentures have been duly and validly authorized for
delivery by the Company and, when duly authenticated in accordance with the
terms of the Indenture and delivered to the Trust against payment of the
consideration set forth herein, will
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constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights generally
or general equity principles (whether considered in a proceeding in equity or at
law)) and entitled to the benefits provided by the Indenture. The Indenture has
been duly authorized and, when executed by the proper officers of the Company
and delivered by the Company, will have been duly executed and delivered by the
Company and, assuming due authorization and execution of the Indenture by each
other party thereto, will constitute the valid and legally binding instrument of
the Company, enforceable in accordance with its terms, (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights generally
or general equity principles (whether considered in a proceeding in equity or at
law)). The Guarantee Agreement has been duly authorized and, when executed by
the proper officers of the Company and delivered by the Company, will have been
duly executed and delivered by the Company and, assuming due authorization and
execution of the Guarantee by each other party thereto, will constitute the
valid and legally binding instrument of the Company, enforceable in accordance
with its terms, (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, readjustment of debt,
moratorium, fraudulent conveyance or similar laws relating to or affecting
creditors' rights generally or general equity principles (whether considered in
a proceeding in equity or at law)). The Trust Agreement, the Guarantee
Agreement, and the Indenture have been duly qualified under the Trust Indenture
Act; and the Preferred Securities, the Common Securities, the Trust Agreement,
the Guarantee Agreement, the Subordinated Debentures and the Indenture conform
in all material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus.
(c) Neither the Trust nor the Company or any Subsidiary, is,
or with the giving of notice or lapse of time or both will be, in violation or
breach of, or in default under, nor will the execution or delivery of, or the
performance and consummation of the transactions contemplated by this Agreement
(including the offer, sale, or delivery of the Preferred Securities), conflict
with, or result in a violation or breach of, or constitute a default under, any
provision of the organization documents of the Trust or the Articles of
Incorporation, Bylaws (as amended or restated) of the Company, or other
governing documents of the Trust, the Company, or any Subsidiary, or of any
provision of any material agreement, contract, mortgage, deed of trust, lease,
loan agreement, indenture, note, bond, or other evidence of indebtedness, or
other material agreement or instrument to which the Trust, the Company, or any
Subsidiary is a party or by which any of them is bound or to which any of their
properties is subject, nor will the performance by the Offerors of their
obligations hereunder violate any rule, regulation, order, or decree, applicable
to the Trust, the Company or any Subsidiary of any court or any regulatory body,
administrative agency, or other governmental body having jurisdiction over the
Trust, the Company or any Subsidiary or any of their respective properties, or
any order of any court or governmental agency or authority entered in any
proceeding to which the
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Trust, the Company or any Subsidiary was or is now a party or by which it is
bound, except, with respect to any of the foregoing, as described in the
Prospectus or to the extent not material to the Company and the Trust taken as a
whole. No consent, approval, filing, authorization, registration, qualification,
or order, including with or by any bank regulatory agency, is required for the
execution, delivery, and performance of this Agreement or the consummation of
the transactions contemplated by this Agreement, other than such that have been
obtained or made, except as described in the Prospectus and except for
compliance with the Securities Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the Blue Sky Laws applicable to the public
offering of the Preferred Securities by the Underwriter, the clearance of such
offering and the underwriting arrangements evidenced hereby with the National
Association of Securities Dealers, Inc. ("NASD"), and the listing of the
Preferred Securities on the Nasdaq Stock Market. This Agreement has been duly
authorized, executed, and delivered by the Company and the Trust and constitutes
a valid and binding obligation of the Company and the Trust and is enforceable
against the Company and the Trust in accordance with its terms.
(d) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, and each Preliminary
Prospectus complies in all material respects with the requirements of the
Securities Act and the Securities Act Regulations. As of the effective date of
the Registration Statement, and at all times subsequent thereto up to the
Closing Date or any Option Closing Date (as defined below), the Registration
Statement and the Prospectus, and any amendments or supplements thereto,
contained or will contain all material statements that are required to be stated
therein in accordance with the Securities Act and the Securities Act Regulations
and conformed or will conform in all material respects to the requirements of
the Securities Act and the Securities Act Regulations, and neither the
Registration Statement nor the Prospectus, nor any amendment or supplement
thereto included or will include any untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
no representation or warranty is made as to information contained in or omitted
from the Registration Statement, the Prospectus or any amendment or supplement
in reliance upon and in conformity with written information furnished to the
Company and the Trust by or on behalf of the Underwriter.
(e) Coopers & Xxxxxxx, LLP, which has audited, reviewed, and
expressed its opinion with respect to certain of the financial statements and
schedules filed with the Commission as a part of the Registration Statement and
included or to be included, as the case may be, in the Prospectus and in the
Registration Statement, and whose report is included in the Prospectus and the
Registration Statement are independent accountants as required by the Securities
Act and the Securities Act Regulations.
(f) The financial statements and schedules and the related
notes thereto included or to be included, as the case may be, in the
Registration Statement, the Preliminary Prospectus, and the Prospectus present
fairly the financial position of the
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entities purported to be shown thereby as of the respective dates of such
financial statements and schedules, and the results of operations and changes in
equity and in cash flows of the entities purported to be shown thereby for the
respective periods covered thereby, all in conformity with generally accepted
accounting principles consistently applied throughout the periods involved,
except as may be disclosed in the Prospectus. All adjustments necessary for a
fair presentation of the results of such periods have been made. The Company had
an outstanding capitalization as set forth under "Capitalization" in the
Prospectus as of the date indicated therein and there has been no material
change therein since such date except as disclosed in the Prospectus. The
financial, operating, and statistical information set forth in the Prospectus
under captions "Prospectus Summary," "Selected Consolidated Financial Data,"
"Use of Proceeds," "Capitalization," "Management's Discussion and Analysis of
Financial Condition and Results of Operations," "Business" and "Management" are
fairly presented and prepared on a basis consistent with the audited financial
statements of the Company.
(g) There is no litigation or governmental proceeding, action,
or investigation pending or, to the knowledge of the Trust or the Company,
threatened, to which the Trust, the Company, or any Subsidiary is or may be a
party or to which property owned or leased by the Company or any Subsidiary is
or may be subject, or related to environmental or discrimination matters, which
is required to be disclosed in the Registration Statement or the Prospectus by
the Securities Act or the Securities Act Regulations and is not so disclosed, or
which questions the validity of this Agreement or any action taken or to be
taken pursuant hereto.
(h) Either the Company or a Subsidiary, as the case may be,
has good and marketable title in fee simple to all items of real property and
good and marketable title to all the personal properties and assets reflected as
owned by the Company or a Subsidiary in the Prospectus (or elsewhere in the
Registration Statement), in each case clear of all liens, mortgages, pledges,
charges, or encumbrances of any kind or nature except those, if any, reflected
in the financial statements described above (or elsewhere in the Registration
Statement) or which are not material to the Company and its Subsidiaries taken
as a whole; all properties held or used by the Company or a Subsidiary under
leases, licenses, franchises or other agreements are held by them under valid,
existing, binding, and enforceable leases, franchises, licenses, or other
agreements with respect to which it is not in default, except where the failure
to do so would not have a Material Adverse Effect.
(i) Neither the Trust nor the Company or any Subsidiary has
taken or will take, directly or indirectly, any action designed to cause or
result in, or which has constituted or which might reasonably be expected to
constitute, stabilization or manipulation, under the Exchange Act or otherwise,
of the price of the Preferred Securities.
(j) Except as reflected in or contemplated by the Registration
Statement, since the respective dates as of which information is given in the
Registration
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Statement and prior to the Closing Date and Option Closing Date (as such terms
are hereinafter defined):
(i) neither the Company nor any Subsidiary has or will have
incurred any material liabilities or obligations, direct or contingent,
or entered into any material transaction not in the ordinary course of
business without the prior consent of the Underwriter;
(ii) neither the Company nor any Subsidiary has or will have
paid or declared any dividend or other distribution with respect to its
capital stock and neither the Company nor any Subsidiary has or will be
delinquent in the payment of principal or interest on any material
outstanding debt obligations; and
(iii) there has not been and will not be any change in the
capital stock or any change in the indebtedness of the Company or any
Subsidiary (except as may result from the closing of the transactions
contemplated by this Agreement or as described in the Prospectus), or
any adverse change in the condition (financial or otherwise), or any
development involving a prospective adverse change in their respective
businesses (resulting from litigation or otherwise), properties,
condition (financial or otherwise), net worth, or results of operations
which is reasonably likely to have a Material Adverse Effect.
(k) There is no contract or other document, transaction, or
relationship required to be described in the Registration Statement, or to be
filed as an exhibit to the Registration Statement, by the Securities Act or by
the Securities Act Regulations that has not been described or filed as required.
(l) All documents delivered or to be delivered by the Offerors
or any of their representatives in connection with the issuance and sale of the
Preferred Securities were on the dates on which they were delivered, or will be
on the dates on which they are to be delivered, true, complete, and correct in
all material respects.
(m) The Company and each Subsidiary have filed all necessary
federal and all state and foreign income and franchise tax returns and paid all
taxes shown as due thereon; and no tax deficiency has been asserted or
threatened against the Company or any Subsidiary that would have a Material
Adverse Effect, except as described in the Prospectus.
(n) Neither the Trust nor the Company or any Subsidiary has,
directly or indirectly, at any time:
(i) made any unlawful contribution to any candidate for
political office, or failed to disclose any contribution in violation
of law; or
(ii) made any payment to any federal, state, local, or foreign
government officer or official, or other person charged with similar
public or quasi-public
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duties, other than payments required or permitted by the laws of the
United States or any jurisdiction thereof or applicable foreign
jurisdictions.
(o) The Company or a Subsidiary owns or possesses adequate
rights to use all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, servicemark registrations,
copyrights, and licenses necessary for the conduct of the business of the
Company and the Subsidiaries or ownership of their respective properties, and
neither the Company nor any Subsidiary has received notice of conflict with the
asserted rights of others in respect thereof which has not been resolved.
(p) The Company and each Subsidiary have in place and
effective such policies of insurance, with limits of liability in such amounts,
as are normal and prudent in the ordinary scope of business similar to that of
the Company and such Subsidiary in the respective jurisdiction in which they
conduct business.
(q) The Company and each Subsidiary have and hold, and at the
Closing Date or Option Closing Date will have and hold, and are operating in
substantial compliance with, and have fulfilled and performed all of their
material obligations with respect to, all permits, certificates, franchises,
grants, easements, consents, licenses, approvals, charters, registrations,
authorizations, and orders (collectively, "Permits") required under all laws,
rules, and regulations in connection with their respective businesses, and all
of such Permits are in full force and effect; and there is no pending
proceeding, and neither the Company nor any Subsidiary has received notice of
any threatened proceeding, relating to the revocation or modification of any
such Permits. Neither the Company nor any Subsidiary is (by virtue of any
action, omission to act, contract to which it is a party or by which it is
bound, or any occurrence or state of facts whatsoever) in violation of any
applicable federal, state, municipal, or local statutes, laws, ordinances,
rules, regulations and/or orders issued pursuant to foreign, federal, state,
municipal, or local statutes, laws, ordinances, rules, or regulations (including
those relating to any aspect of banking, bank holding companies, environmental
protection, occupational safety and health, and equal employment practices)
heretofore or currently in effect, except such violation that has been fully
cured or satisfied without recourse or that is not reasonably likely to have a
Material Adverse Effect.
(r) The provisions of any employee pension benefit plan
("Pension Plan") as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), in which the Company or any
Subsidiary is a participating employer are in substantial compliance with ERISA,
and neither the Company nor any Subsidiary is in violation of ERISA. The
Company, each Subsidiary, or the plan sponsor thereof, as the case may be, has
duly and timely filed the reports required to be filed by ERISA in connection
with the maintenance of any Pension Plans in which the Company or any Subsidiary
is a participating employer, and no facts, including any "reportable event" as
defined by ERISA and the regulations thereunder, exist in connection with any
Pension Plan in which the Company or any Subsidiary is a participating employer
which might constitute grounds for the termination of such plan by the Pension
Benefit Guaranty Corporation or for the appointment by the appropriate
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X.X. Xxxxxxxx Xxxxx of a trustee to administer any such plan. The provisions of
any employee benefit welfare plan, as defined in Section 3(1) of ERISA, in which
the Company or any Subsidiary is a participating employer, are in substantial
compliance with ERISA, and the Company, any Subsidiary, or the plan sponsor
thereof, as the case may be, has duly and timely filed the reports required to
be filed by ERISA in connection with the maintenance of any such plans.
(s) Neither the Company nor the Trust is an open-end
investment company, unit investment trust or face-amount certificate company
that is, or is required to be, registered under Section 8 of the Investment
Company Act of 1940, as amended, or subject to regulation under such Act.
(t) The deposits of American Bank are insured by the Federal
Deposit Insurance Corporation ("FDIC") up to the legal limits.
(u) Neither this Agreement nor any certificate, written
statement, or other document delivered, or to be delivered, by the Offerors or
any Subsidiary contains, or when delivered will contain, any untrue statement of
a material fact or omits or will omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
Any certificate signed by any director or officer of the Company or the
Trust, as the case may be, and delivered to the Underwriter or to counsel for
the Underwriter shall be deemed a representation and warranty of the Company or
the Trust, as the case may be, to the Underwriter as to the matters covered
thereby as of the date thereof.
Any certificate delivered by the Company or the Trust, as the case may
be, to their respective counsel for purposes of enabling such counsel to render
an opinion pursuant to Section 8 will also be furnished to the Underwriter and
counsel for the Underwriter and shall be deemed to be additional representations
and warranties to the Underwriter by the Company and the Trust as to the matters
covered thereby.
Section 3. Purchase Sale and Delivery to Underwriter, Closing.
On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Trust and the Company,
as the case may be, agree that the Trust will issue and sell to the Underwriter,
and the Underwriter agrees to purchase from the Trust, the Firm Securities at a
purchase price of $10 per Firm Security.
Payment of the purchase price for, and delivery of, the Firm Securities
shall be made at the offices of Xxxxxx & Xxxxxx, 000 Xxxxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000 or at such other place as shall be agreed upon by the
Underwriter, the Trust, and the Company, at 9:00 A.M. Eastern Time, on the
fourth business day (unless postponed in accordance with the provisions of
Section 4) following the date of this Agreement, or such other time not later
than ten (10) business days after such date as shall be agreed
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upon by the Underwriter, the Trust, and the Company (such time and date of
payment and delivery being herein called the "Closing Date").
As compensation (the "Underwriting Commission") for the commitments of
the Underwriter contained in this Section 3, the Company hereby agrees to pay to
the Underwriter an amount equal to ___% of the public offering price of the
Preferred Securities. Such payment will be made on the Closing Date with respect
to the Firm Securities or on the Option Closing Date (as defined below) with
respect to the Option Securities.
Payment for the Firm Securities shall be made to the Trust by wire
transfer of immediately available funds, against delivery to the Underwriter of
the Firm Securities to be purchased by it. The Firm Securities shall be issued
in the form of one or more fully registered global securities (the "Global
Securities") in book-entry form in such denominations and registered in the name
of the nominee of The Depository Trust Company (the "DTC") or in such names as
the Underwriter may request in writing at least two business days before the
Closing Date. The Global Securities representing the Firm Securities shall be
made available for examination by the Underwriter and counsel to the Underwriter
not later than 9:30 A.M. Eastern Time on the last business day prior to the
Closing Date.
In addition, on the basis of the representations, warranties, and
agreements contained herein, but subject to the terms and conditions set forth
herein, the Trust hereby grants to the Underwriter an option to purchase from
the Trust the Option Securities at the same purchase price per Preferred
Security to be paid for the Firm Securities, for use solely in covering any
over-allotments made by the Underwriter in the sale and distribution of the Firm
Securities. The option granted hereunder may be exercised at any time (but not
more than once) within thirty (30) days after the date of this Agreement, upon
notice by the Underwriter to the Trust which sets forth the aggregate
liquidation amount of Option Securities as to which the Underwriter is
exercising the option, and the time and place at which the certificate
representing the Option Securities will be delivered. Such time of delivery may
not be earlier than the Closing Date and herein is called the "Option Closing
Date." The Option Closing Date shall be determined by the Underwriter, but if at
any time other than the Closing Date, shall not be earlier than three nor later
than five full business days after delivery of such notice to exercise.
Certificates for the Option Securities will be made available for inspection at
least 24 hours prior to the Option Closing Date at the offices of the DTC, or
its designated custodian, or at such other location as specified by the
Underwriter. The manner of payment for a delivery of the Option Securities shall
be the same as for the Firm Securities as specified in this Section 3.
Section 4. Representations and Warranties of the Underwriter.
The Underwriter represents and warrants to the Company that the
information set forth on page __ of the Prospectus relating to stabilization and
in the third paragraph, last sentence of the fourth paragraph, fifth paragraph
and eighth paragraph of the section in
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the Prospectus entitled "Underwriting" was the only written information
furnished to the Company by and on behalf of any Underwriter expressly for use
in connection with the preparation of the Registration Statement, and is correct
and complete in all material respects and does not include any 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 not misleading.
Section 5. Offering by the Underwriter.
The Trust and the Company are advised by the Underwriter that the
Underwriter proposes to make a public offering of the Preferred Securities, on
the terms and conditions set forth in the Registration Statement from time to
time as and when the Underwriter deems advisable after the Registration
Statement becomes effective. 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.
Section 6. Agreements of the Offerors.
Each of the Offerors covenants and agrees with the Underwriter that:
(a) If any information shall have been omitted from the
Registration Statement in reliance upon Rule 430A, the Company, at the earliest
possible time, will furnish the Underwriter with a copy of the Prospectus to be
filed by the Offerors with the Commission to comply with Rule 424(b) and Rule
430A under the Securities Act, and will file such Prospectus with the Commission
in compliance with such Rules. Upon compliance with such Rules, the Company will
so advise the Underwriter promptly. The Company will advise the Underwriter and
counsel to the Underwriter promptly of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose, or of any notification received
by the Company of the suspension of qualification of the Preferred Securities
for sale in any jurisdiction or the initiation or threatening of any proceedings
for that purpose. The Company also will advise the Underwriter and counsel to
the Underwriter promptly of any request of the Commission for amendment or
supplement of the Registration Statement, of any Preliminary Prospectus, or of
the Prospectus, or for additional information, and the Offerors will not file
any amendment or supplement to the Registration Statement (either before or
after it becomes effective), to any Preliminary Prospectus, or to the Prospectus
(including a prospectus filed pursuant to Rule 424(b)) if the Underwriter has
not been furnished with a copy prior to such filing or if the Underwriter
reasonably objects to such filing.
(b) For the period during which a Prospectus relating to the
Preferred Securities is required to be delivered under the Securities Act, the
Offerors shall comply with all requirements imposed on them by the Securities
Act, as now and hereafter amended, and by the Securities Act Regulations, as
from time to time in force, so far as is necessary to permit the continuance of
sales or dealings in the Preferred Securities as
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contemplated by the provisions hereof and the Prospectus. If any event occurs as
a result of which the Prospectus, including any subsequent amendment or
supplement, would include an untrue statement of a material fact, or would omit
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 if it becomes necessary at any time to amend the
Prospectus, including any amendment or supplement thereto, to comply with the
Securities Act, the Company promptly will advise the Underwriter and counsel to
the Underwriter thereof and the Offerors will promptly prepare and file with the
Commission an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance; and, if any
Underwriter is required to deliver a prospectus nine (9) months or more after
the effective date of the Registration Statement, the Company, upon request of
the Underwriter but at the expense of such Underwriter, will prepare promptly
such prospectus or prospectuses as may be necessary to permit compliance with
the requirements of Section 10(a)(3) of the Securities Act.
(c) The Offerors will not, prior to the Option Closing Date or
thirty (30) days after the date of this Agreement, whichever occurs first,
without the prior consent of the Underwriter, incur any material liability or
obligation, direct or contingent, or enter into any material transaction, other
than in the ordinary course of business, or any transaction with a related party
which is required to be disclosed in the Prospectus pursuant to Item 404 of
Regulation S-K under the Securities Act, except as disclosed in or as
contemplated by the Prospectus.
(d) The Company will make generally available to its security
holders and the Underwriter an earnings statement of the Company as soon as
practicable, but in no event later than fifteen (15) months after the end of the
Company's current fiscal quarter, covering a period of twelve (12) consecutive
calendar months beginning after the effective date of the Registration
Statement, but beginning not later than four (4) months after such effective
date, which will satisfy the provisions of the last subsection of Section 11(a)
of the Securities Act and Rule 158 promulgated thereunder.
(e) During such period as a prospectus is required by law to
be delivered in connection with sales by an underwriter or dealer, the Company
will furnish to the Underwriter, at the expense of the Company, copies of the
Registration Statement, the Prospectus, any Preliminary Prospectus, and all
amendments and supplements to any such documents in each case as soon as
available and in such quantities as the Underwriter may reasonably request, for
the purposes contemplated by the Securities Act.
(f) The Offerors will use their best efforts to take or cause
to be taken in cooperation with the Underwriter and counsel to the Underwriter
all actions required in qualifying or registering the Preferred Securities for
sale under the Blue Sky Laws of such jurisdictions as the Underwriter may
reasonably designate, provided the Offerors shall not be required to qualify
generally as foreign corporations or as a dealer in securities or to consent
generally to the service of process under the law of any such state
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(except with respect to the offering and sale of the Preferred Securities), and
will continue such qualifications or registrations in effect so long as
reasonably requested by the Underwriter to effect the distribution of the
Preferred Securities (including, without limitation, compliance with all
undertakings given pursuant to such qualifications or registrations). In each
jurisdiction where any of the Preferred Securities shall have been qualified as
provided above, the Offerors will file such reports and statements as may be
required to continue such qualification for a period of not less than one (1)
year from the date of this Agreement.
(g) The Company will furnish to its security holders annual
reports containing financial statements audited by independent public
accountants. During the period ending three (3) years after the date of this
Agreement, (i) as soon as practicable after the end of the fiscal year, the
Company will furnish to the Underwriter two copies of the annual report of the
Company containing the audited consolidated balance sheet of the Company as of
the close of such fiscal year and corresponding audited consolidated statements
of earnings, stockholders' equity and cash flows for the year then ended, and
(ii) the Company will file promptly and will furnish to the Underwriter at or
before the filing thereof copies of all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13, 14, or 15 of the Exchange Act. During such three-year
period the Company also will furnish to the Underwriter one copy of the
following:
(i) as soon as practicable after the filing thereof, each
other report, statement, or other document filed by the Company with
the Commission;
(ii) as soon as practicable after the filing thereof, all
reports, statements, other documents and financial statements furnished
by the Company to Nasdaq pursuant to requirements of or agreements with
Nasdaq; and
(iii) as soon as available, each report, written statement, or
other document of the Company mailed to its stockholders as a group.
(h) The Offerors will use their best efforts to satisfy or
cause to be satisfied the conditions to the obligations of the Underwriter in
Section 8 hereof.
(i) The Offerors shall deliver the requisite notice of
issuance to the NASD and shall take all reasonably necessary or appropriate
action within its power to maintain the authorization for trading of the
Preferred Securities on the Nasdaq Stock Market for a period of at least
thirty-six (36) months after the date of this Agreement.
(j) The Trust shall comply in all respects with the
undertakings given by the Trust in connection with the qualification or
registration of the Preferred Securities for offering and sale under the Blue
Sky Laws.
(k) The Trust shall apply the proceeds from its sale of the
Preferred Securities, combined with the entire proceeds from the sale by the
Trust to the Company
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of the Trust's Common Securities, to purchase an equivalent amount of
Subordinated Debentures. All the proceeds to be received by the Company from the
sale of the Subordinated Debentures will be used in the manner and for the
purposes specified under the heading "Use of Proceeds" in the Prospectus. The
Offerors shall file, and will furnish or cause to be furnished to the
Underwriter and counsel to the Underwriter copies of all reports as may be
required in accordance with Rule 463 under the Securities Act.
(l) Except for the sale of Preferred Securities pursuant to
this Agreement, neither the Company nor any Subsidiary shall, directly or
indirectly, offer, sell, contract to sell, issue, distribute, grant any option,
right, or warrant to purchase or otherwise dispose of the Preferred Securities
or substantially similar securities of the Trust, in the open market or
otherwise, for a period of one hundred eighty (180) days after the later of the
effective date of the Registration Statement or the date of this Agreement,
without the express prior written consent of the Underwriter.
Section 7. Payment of Expenses and Fees.
(a) Whether or not the transactions contemplated hereunder are
consummated, or if this Agreement is terminated for any reason, the Company will
pay or cause to be paid the costs, fees, and expenses incurred in connection
with the offering of the Preferred Securities as follows:
(i) All costs, fees, and expenses incurred in connection with
the performance of the obligations of the Company and the Trust
hereunder, including all fees and expenses of the Company's and the
Trust's accountants and counsel, all costs and expenses incurred in
connection with the printing, filing, and distribution (including
delivery and shipping costs) of the Registration Statement, each
Preliminary Prospectus, and the Prospectus (including all amendments
and exhibits thereto and the financial statements therein), and
agreements and supplements provided for herein, this Agreement and
other underwriting documents, including various Underwriter's letters,
and the Preliminary and Supplemental Blue Sky Memoranda;
(ii) All filing and registration fees and expenses, including
the legal fees and disbursements of counsel, incurred in connection
with qualifying or registering all or any part of the Preferred
Securities, the Guarantee, and the Subordinated Debentures for offer
and sale under the Blue Sky Laws;
(iii) All fees and expenses of the Offerors' registrar and
transfer agent; all transfer taxes, if any, and all other fees and
expenses incurred in connection with the sale and delivery of the
Preferred Securities to the Underwriter;
(iv) The filing fees of the NASD and applicable fees charged
by Nasdaq for inclusion of the Preferred Securities for quotation on
the National Market System; and
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(v) All other costs and expenses incident to the performance
of the obligations of the Company and the Trust hereunder which are not
otherwise provided for in this Section 7(a).
(b) On the consummation of the offering of the Firm
Securities, the Company shall pay Advest, Inc. $25,000 as a financial advisory
fee.
Section 8. Conditions to the Obligations of the Underwriter.
The obligations of the Underwriter under this Agreement shall be
subject to the accuracy of the representations and warranties on the part of the
Company and the Trust set forth herein as of the Closing Date, and if
applicable, as of the Option Closing Date, as the case may be, to the accuracy
of the statements of the Offerors' directors and officers, to the performance by
the Company and the Trust of their obligations hereunder, and to the following
additional conditions, except to the extent expressly waived in writing by the
Underwriter:
(a) The Registration Statement and all post-effective
amendments thereto shall have been declared effective by the Commission no later
than 5:30 p.m. Eastern Time, on the date of this Agreement, or such later time
as shall have been consented to by the Underwriter, but in any event not later
than 5:30 p.m., Eastern Time, on the third full business day following the date
hereof; if the Offerors omitted information from the Registration Statement at
the time it became effective in reliance on Rule 430A under the Securities Act,
the Prospectus shall have been filed with the Commission in compliance with Rule
424(b) and Rule 430A under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or any amendment or supplement
thereto shall have been issued; no proceeding for the issuance of such an order
shall have been initiated or shall be pending or, to the knowledge of the
Offerors or the Underwriter, threatened or contemplated by the Commission; and
any request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been disclosed
to the Underwriter and complied with to the Underwriter's satisfaction.
(b) The Preferred Securities, the Guarantee, and the
Subordinated Debentures shall have been qualified or registered for sale, or
subject to an available exemption from such qualification or registration, under
the Blue Sky Laws of such jurisdictions as shall have been reasonably specified
by the Underwriter and the offering contemplated by this Agreement shall have
been cleared by the NASD.
(c) Since the dates as of which information is given in the
Registration Statement:
(i) There shall not have been any adverse change, or any
development involving a prospective adverse change, in the ability of
the Company or any Subsidiary to conduct their respective business
(whether by reason of any court, legislative, other governmental
action, order, decree, or otherwise), or in the general
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affairs, condition (financial and otherwise) business, properties,
management, financial position or earnings, results of operations, or
net worth of the Company or any Subsidiary, whether or not arising from
transactions in the ordinary course of business, that is reasonably
likely to have a Material Adverse Effect; and
(ii) Neither the Company nor any Subsidiary shall have
sustained any loss or interference from any labor dispute, strike,
fire, flood, windstorm, accident, or other calamity (whether or not
insured) or from any court or governmental action, order, or decree,
that is reasonably likely to have a Material Adverse Effect; and
In the reasonable opinion of the Underwriter, the effect on the Company or any
Subsidiary of the occurrence of any event described in Section 8(c)(i) or
Section 8(c)(ii) is not so material or adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Preferred
Securities on the terms and in the manner contemplated in the Registration
Statement and the Prospectus.
(d) There shall have been furnished to the Underwriter on the
Closing Date and the Option Closing Date, except as otherwise expressly provided
below:
(i) An opinion of Carlton, Fields, Xxxx, Xxxxxxxx, Xxxxx &
Xxxxxx, P.A. counsel to the Company, dated as of the Closing Date and
any Option Closing Date, in form and substance substantially in the
form attached hereto as Exhibit A. In rendering such opinion, counsel
may state that they are passing only on matters of Florida state law
and United States federal law, and may either (A) rely upon an opinion
or opinions, each dated as of the Closing Date or the Option Closing
Date, as the case may be, of other counsel retained by them or the
Company as to the laws of any jurisdiction other than the United States
or the State of Florida, provided that such reliance is expressly
authorized by each opinion so relied upon, and a copy of each such
opinion is delivered to the Underwriter, and counsel shall state in
their opinion that both they and the Underwriter are justified in
relying thereon, or (B) assume that the laws of the State of New York
and/or Delaware are identical to the laws of the State of Florida in
all respects material to the opinion being rendered by counsel to the
Company, provided that such assumption is expressly disclosed in the
opinion.
(ii) An opinion, dated the Closing Date and the Option Closing
Date, of White & Case, counsel to the Trust Company and Trust Delaware,
substantially in the form attached hereto as Exhibit B. In rendering
such opinion, counsel may rely upon an opinion or opinions, each dated
the Closing Date and the Option Closing Date, as the case may be, of
other counsel retained by them or the Company as to the laws of any
jurisdiction other than the United States or the State of New York,
provided that such reliance is expressly authorized by each opinion so
relied upon, and a copy of each such opinion is delivered to the
Underwriter, and counsel shall state in their opinion that both they
and the Underwriter are justified in relying thereon.
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(iii) An opinion, dated the Closing Date and the Option
Closing Date, of Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to
the Company and the Trust, substantially to the effect and in the form
attached hereto as Exhibit C.
(iv) An opinion, dated the Closing Date and the Option Closing
Date, of Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to Trust
Delaware, substantially to the effect and in the form attached hereto
as Exhibit D.
(v) An opinion, dated the Closing Date and the Option Closing
Date, of Xxxxxx & Xxxxxx, counsel to the Underwriter as to such matters
as the Underwriter shall reasonably request. In rendering such opinion,
counsel may rely upon an opinion or opinions, each dated the Closing
Date and the Option Closing Date, as the case may be, of other counsel
retained by them or the Company as to the laws of any jurisdiction
other than the United States or the State of New York, provided that
such reliance is expressly authorized by each opinion so relied upon,
and a copy of each such opinion is delivered to the Underwriter, and
counsel shall state in their opinion that both they and the Underwriter
are justified in relying thereon.
In rendering the opinions specified in this Section 8(d),
insofar as such opinions involve factual matters, such counsel may rely, to the
extent such counsel deems proper, upon certificates of officers of the Company,
its Subsidiaries, and the Trust and certificates of public officials.
(e) At the time this Agreement is executed and also on the
Closing Date and the Option Closing Date, as the case may be, there shall be
delivered to the Underwriter a letter addressed to the Underwriter from Coopers
& Xxxxxxx, LLP, the Company's independent accountants, the first letter to be
dated the date of this Agreement, the second letter to be dated the Closing
Date, and the third letter to be dated the Option Closing Date, if any, which
shall be in form and substance reasonably satisfactory to the Underwriter and
shall contain information as of a date within five days of the date of such
letter. There shall not have been any change set forth in any letter referred to
in this subsection (e) that makes it impracticable or inadvisable in the
judgment of the Underwriter to proceed with the public offering or purchase of
the Preferred Securities as contemplated hereby.
(f) On the Closing Date and on the Option Closing Date, a
certificate signed by the Chairman of the Board, the President, a Vice Chairman
of the Board or any Executive or Senior Vice President and the principal
financial or accounting officer of the Company, dated the Closing Date or the
Option Closing Date, as the case may be, to the effect that the signers of such
certificate have carefully examined the Registration Statement and this
Agreement and that:
(i) The representations and warranties of the Offerors in this
Agreement are true and correct in all material respects on and as of
the Closing Date or the Option Closing Date, as the case may be, with
the same effect as if made on the Closing Date or the Option Closing
Date, as the case may be, and the Offerors have
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complied in all material respects with all the agreements and satisfied
in all material respects all the conditions on its part to be performed
or satisfied at or prior to the Closing Date or the Option Closing
Date, as the case may be; and
(ii) The Commission has not issued an order preventing or
suspending the use of the Prospectus or any Preliminary Prospectus or
any amendment thereto; no stop order suspending the effectiveness of
the Registration Statement has been issued; and, to the knowledge of
the respective signatories, no proceeding for that purpose has been
instituted or is pending or contemplated under the Securities Act;
(iii) Each of the respective signatories of the certificate
has carefully examined the Registration Statement, the Prospectus, and
any amendments or supplements thereto, and such documents contain all
material statements and information required to be made therein, and
neither the Registration Statement nor any amendment or supplement
thereto includes any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading and, since the date on which
the Registration Statement was initially filed, no event has occurred
that was required to be set forth in an amended or supplemented
prospectus or in an amendment to the Registration Statement that has
not been so set forth; provided, however, that no representation need
be made as to information contained in or omitted from the Registration
Statement or any amendment or supplement in reliance upon and in
conformity with written information furnished to the Company and the
Trust by or on behalf of the Underwriter; and
(iv) Since the date on which the Registration Statement was
initially filed with the Commission, there has not been any material
adverse change or a development reasonably likely to have a material
adverse change in the business, properties, financial condition, or
earnings of the Company and its Subsidiaries taken as a whole, whether
or not arising from transactions in the ordinary course of business,
except as disclosed in the Registration Statement as heretofore amended
or (but only if the Underwriter expressly consents thereto in writing)
as disclosed in an amendment or supplement thereto filed with the
Commission and delivered to the Underwriter after the execution of this
Agreement; since such date and except as so disclosed or in the
ordinary course of business, neither the Company nor any Subsidiary has
incurred any liability or obligation, direct or indirect, or entered
into any transaction that is material to the Company or such
Subsidiary, as the case may be, not contemplated in the Prospectus;
since such date and except as so disclosed there has not been any
change in the outstanding capital stock of the Company, or any change
that is material to the Company and its Subsidiaries taken as a whole
in the short-term debt or long-term debt of the Company or any
Subsidiary; since such date and except as so disclosed, neither the
Company nor any of its Subsidiaries have incurred any material
contingent obligations, and no material litigation is pending or, to
their knowledge threatened against the Company or any Subsidiary; and,
since such date and except as so disclosed, neither the Company nor any
of its Subsidiaries have sustained any material loss or interference
from any strike, fire, flood, windstorm, accident or other calamity
(whether or not insured) or from any court or governmental action,
order, or decree.
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(g) Prior to the Closing Date and any Option Closing Date, the
Company shall have furnished to the Underwriter such further information,
certificates and documents as the Underwriter may reasonably request in
connection with the offering of the Preferred Securities.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter by notice from the Underwriter to the Company at any time
without liability on the part of any Underwriter, including the Underwriter, or
the Company, except for expenses to be paid by the Company pursuant to Section 7
hereof or reimbursed by the Company pursuant to Section 9 and except to the
extent provided in Section 11.
Section 9. Reimbursement of Underwriter's Expenses.
If the sale of the Preferred Securities to the Underwriter on the
Closing Date is not consummated because the offering is terminated or
indefinitely suspended by the Company or by the Underwriter for any reason
permitted by this Agreement, other than the Underwriter's inability to legally
act as such, the Company will reimburse the Underwriter for the Underwriter's
reasonable out-of-pocket expenses, including fees and disbursements of counsel,
that shall have been incurred by the Underwriter in connection with the proposed
purchase and sale of the Preferred Securities. Any such termination or
suspension shall be without liability of any party to the other except that the
provisions of this Section 9, and Sections 7 and 11 shall remain effective and
shall apply.
Section 10. Maintain Effectiveness of Registration Statement.
The Underwriter and the Company will use their respective best efforts
to prevent the issuance of any stop order or other such order suspending the
effectiveness of the Registration Statement and, if such stop order is issued,
to obtain the lifting thereof as soon as possible.
Section 11. Indemnification and Contribution.
(a) The Offerors agree to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages, expenses, liabilities, or actions in respect thereof ("Claims"), joint
or several to which such Underwriter or each such controlling person may become
subject under the Securities Act, the Exchange Act, the Securities Act
Regulations, Blue Sky Laws, or other federal or state statutory laws or
regulations, at common law or otherwise (including payments made in settlement
of any litigation, if such settlement is effected with the written consent of
the Company, which consent shall not be unreasonably withheld), insofar as such
Claims arise out of or are based upon the inaccuracy or breach of any
representation, warranty, or covenant of the Company or the Trust contained in
this Agreement, any untrue statement or alleged untrue statement of any material
fact contained in the
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Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or in any application filed under any Blue Sky
Law or other document executed by the Offerors for that purpose or based upon
written information furnished by the Offerors and filed in any state or other
jurisdiction to qualify or register any or all of the Preferred Securities under
the securities laws thereof (any such document, application, or information
being hereinafter called a "Blue Sky Application"), or arise out of or are based
upon the omission or alleged omission to state in any of the foregoing a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The Company agrees to reimburse the Underwriter and each
such controlling person promptly for any legal fees or other expenses incurred
by such Underwriter or any such controlling person in connection with
investigating or defending any such Claim or appearing as a third-party witness
in connection with any such Claim; provided, however, that the Company will not
be liable in any such case to the extent that:
(i) Any such Claim arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto or in any Blue Sky
Application in reliance upon and in conformity with the written
information furnished by or on behalf of the Underwriter to the
Offerors expressly for use therein pursuant to Section 4 of this
Agreement; or
(ii) Such statement or omission was contained or made in any
Preliminary Prospectus and corrected in the Prospectus and (A) any such
Claim suffered or incurred by the Underwriter (or any person who
controls such Underwriter) resulted from an action, claim, or suit by
any person who purchased Preferred Securities that are the subject
thereof from such Underwriter in the offering of the Preferred
Securities, and (B) such Underwriter failed to deliver a copy of the
Prospectus (as then amended if the Offerors shall have amended the
Prospectus) to such person at or prior to the confirmation of the sale
of such Preferred Securities in any case where such delivery is
required by the Securities Act, unless such failure was due to failure
by the Company to provide copies of the Prospectus (as so amended) to
the Underwriter as required by this Agreement.
(b) The Underwriter agrees to indemnify and hold harmless the
Offerors, each of their directors, each of their officers who sign the
Registration Statement, and each person who controls the Company or the Trust
within the meaning of the Securities Act, against any Claim to which the
Offerors, or any such director, officer, or controlling person may become
subject under the Securities Act, the Exchange Act, the Securities Act
Regulations, Blue Sky Laws, or other federal or state statutory laws or
regulations, at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter and the Underwriter, which consent shall not be unreasonably
withheld), insofar as such Claim arises out of or is based upon any untrue or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or in any Blue Sky Application, or
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arises out of or is based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or in any
Blue Sky Application, in reliance upon and in conformity with the written
information furnished by or on behalf of such Underwriter to the Offerors
pursuant to Section 4 of this Agreement. The Underwriter will reimburse any
legal fees or other expenses reasonably incurred by the Offerors, or any such
director, officer, or controlling person in connection with investigating or
defending any such Claim, and from any and all Claims resulting from failure of
such Underwriter to deliver a copy of the Prospectus, if the person asserting
such Claim purchased Preferred Securities from such Underwriter and a copy of
the Prospectus (as then amended if the Offerors shall have amended the
Prospectus) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Preferred Securities to such person, and if the
Prospectus (as so amended) would have cured the defect giving rise to such Claim
(unless such failure was due to a failure by the Company and the Trust to
provide sufficient copies of the Prospectuses (as so amended) to each
Underwriter).
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) of this Section 11 of notice of the commencement of any
action in respect of a Claim, such indemnified party will, if a Claim in respect
thereof is to be made against an indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof. In case
any such action is brought against any indemnified party, and such indemnified
party notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in and, to the extent that it
may wish, jointly with all other indemnifying parties, similarly notified,
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to the indemnified party and/or other indemnified parties
that are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties.
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(d) Upon receipt of notice from the indemnifying party to such
indemnified party of the indemnifying party's election to assume the defense of
such action and upon approval by the indemnified party of counsel selected by
the indemnifying party, the indemnifying party will not be liable to such
indemnified party under subsection (a) or (b) of this Section 11 for any legal
fees or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, unless:
(i) the indemnified party shall have employed separate counsel
in connection with the assumption of legal defenses in accordance with
the proviso to the last sentence of subsection (c) of this Section 11
(it being understood, however, that the indemnified party shall not be
liable for the legal fees and expenses of more than one separate
counsel (plus local counsel), approved by the Underwriter if the
Underwriter or its controlling persons are the indemnified parties); or
(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after the indemnified
party's notice to the indemnifying party of commencement of the action.
(e) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party or insufficient to hold harmless an
indemnified party under subsection (a) or (b) of this Section 11 in respect of
any Claim referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall, subject, to the limitations
hereinafter set forth, contribute to the amount paid or payable by such
indemnified party as a result of such Claim:
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Offerors on the one hand and the
Underwriter on the other hand from the offering of the Preferred
Securities; or
(ii) if the allocation provided by clause (e)(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 (e)(i)
above, but also the relative fault of the Offerors on the one hand and
the Underwriter on the other hand in connection with the statements or
omissions that resulted in such Claim, as well as any other relevant
equitable considerations.
The respective relative benefits received by the Offerors on the one
hand and the Underwriter on the other hand shall be deemed to be in such
proportion that the Underwriter is responsible for that portion of a Claim
represented by the percentage that the amount of the Underwriting Commission
bears to the public offering price of the Preferred Securities, and the Company
(including the Company's directors, officers, and controlling persons) is
responsible for the remaining portion of such Claim.
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The relative fault of the Offerors on the one hand and the Underwriter
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors on the one hand or the Underwriter on the other hand
and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such untrue statement or omission. The amount
paid or payable by a party as a result of the Claims referred to above shall be
deemed to include, subject to the limitations set forth in subsections (c) and
(d) of this Section 11, any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any action or claim.
(f) The Offerors and the Underwriter agree that it would not
be just and equitable if contribution pursuant to this Section 11 were
determined by pro rata or per capita allocation or by any other method or
allocation that does not take into account the equitable considerations referred
to in subsection (e) of this Section 11. Notwithstanding the other provisions of
this Section 11, the Underwriter shall not be required to contribute any amount
in excess of the amount by which the total price at which the Preferred
Securities underwritten by it and distributed to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(g) The obligations of the Company, the Trust, and the
Underwriter under this Section 11 shall be in addition to any liability that the
Company, the Trust, or the Underwriter may otherwise have.
Section 12. Effective Date.
This Agreement shall become effective immediately on the date hereof.
Section 13. Termination.
Without limiting the right to terminate this Agreement pursuant to any
other provision hereof, this Agreement may be terminated by the Underwriter
prior to the Closing Date and the option from the Company and the Trust referred
to in Section 3, if exercised, may be canceled by the Underwriter at any time
prior to the Option Closing Date, if:
(a) The Offerors shall have failed, refused, or been unable,
at or prior to the Closing Date or Option Closing Date, as the case may be to
perform any agreement on its part to be performed hereunder.
(b) Any other condition to the obligations of the Underwriter
hereunder is not fulfilled; or
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(c) In the Underwriter's reasonable judgment, payment for and
delivery of the Preferred Securities is rendered impracticable or inadvisable
because:
(i) Additional governmental restrictions, not in force and
effect on the date hereof, shall have been imposed upon trading in
securities generally or minimum or maximum prices shall have been
generally established on any national securities exchange or
over-the-counter market, or trading in securities generally shall have
suspended on any national securities exchange or on the Nasdaq Stock
Market, or a general banking moratorium shall have been established by
federal or state authorities;
(ii) Any event shall have occurred or shall exist that makes
untrue or incorrect in any material respect any statement or
information contained in the Registration Statement or that is not
reflected in the Registration Statement but should be reflected therein
to make the statements or information contained therein not misleading
in any material respect; or
(iii) Any outbreak or escalation of major hostilities or other
national or international calamity or any substantial change in
political, financial, or economic conditions shall have occurred or
shall have accelerated to such extent, in the Underwriter's reasonable
judgment, as to have a material adverse effect on the general
securities market of the United States or make it impracticable or
inadvisable to proceed with completion of the sale and payment for the
Preferred Securities as provided in this Agreement.
Any termination pursuant to this Section 13 shall be without liability
on the part of the Underwriter to the Company or on the part of the Company to
the Underwriter (except for expenses to be paid by the Company pursuant to
Section 7 or reimbursed by the Company pursuant to Section 9 and except as to
indemnification and contribution to the extent provided in Section 11).
Section 14. Representations and Indemnities to Survive Delivery.
The respective indemnity and contribution agreements of the Company and
the Underwriter, and the representations, warranties, covenants, other written
statements of the Offerors and of their directors and officers set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter, the Offerors, or
any of its or their partners, officers, directors, or any controlling person, as
the case may be, and will survive delivery of and payment for the Preferred
Securities sold hereunder. The respective indemnity and contribution of the
Company and the Underwriter, the provisions of Section 7(a) and Section 9 of
this Agreement, and the representations and warranties of the Offerors will
survive the termination or cancellation of this Agreement.
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Section 15. Notices.
All communications hereunder shall be in writing and, if sent to the
Underwriter, will be mailed, delivered, or telecopied (with receipt confirmed)
to Advest, Inc., at Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxxx, Managing Director (Fax No. (000) 000-0000) with a
copy to Xxxxxx Xxxxxx, Xxxxxx & Xxxxxx, 000 Xxxxxxx Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000, (Fax No. (000) 000-0000); and if sent to the Company or the Trust
will be mailed, delivered, or telecopied (with receipt confirmed) to American
Bancshares, Inc., 0000 Xxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000, Attention:
Xxxxxx X. Xxxxxxx, Chief Executive Officer (Fax No. (000) 000-0000) with a copy
to Xxxxxxx X. Xxxxxx, Carlton, Fields, Xxxx, Xxxxxxxx, Xxxxx & Xxxxxx, P.A., One
Harbour Place, 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000 (Fax.
No. (000) 000-0000).
Section 16. Successors.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors or assigns, and to the benefit of
the directors and officers (and their personal representatives) and controlling
persons referred to in Section 11, and no other person shall acquire or have any
right or obligation hereunder. The terms "successors or assigns," as used in
this Agreement, shall not include any purchaser of the Preferred Securities from
any Underwriter merely by reason of such purchase.
Section 17. Partial Unenforceability.
If any section, subsection, clause, or provision of this Agreement is
for any reason determined to be invalid or unenforceable, such determination
shall not affect the validity or enforceability of any other section,
subsection, clause, or provision hereof.
Section 18. Applicable Law.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Section 19. Entire Agreement.
This Agreement embodies the entire agreement among the parties hereto
with respect to the transactions contemplated herein, and there have been and
are no agreements among the parties with respect to such transactions other than
as set forth or provided for herein.
Section 20. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed counterparts hereof,
whereupon it will become a binding agreement among the Company, the Trust and
the Underwriter, in accordance with its terms.
Very truly yours,
AMERICAN BANCSHARES, INC.
By:
---------------------------
Name:
Title:
ABI CAPITAL TRUST
By: AMERICAN BANCSHARES, INC.,
as Depositor
By:
----------------------
Name:
Title:
ADVEST, INC.
By:
---------------------------
Name:
Title:
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EXHIBIT A
The opinion of special counsel to the Company to be delivered pursuant
to Section 8(d)(i) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Company is a corporation existing and in active status under the
laws of the State of Florida with requisite corporate power and authority to own
its properties and conduct its business as described in the Registration
Statement, except for such power and authority the absence of which would not
have a material adverse effect on the Company, and is registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended.
2. The Company and each Subsidiary have been duly incorporated or
organized and are validly existing as corporations or banking associations in
good standing under the laws of the jurisdiction of organization, with full
corporate power and authority to own, lease, and operate their respective
properties and conduct their respective businesses as described in the
Registration Statement; the Company and each Subsidiary are qualified to do
business as foreign corporations under the corporation laws of each jurisdiction
in which the Company or such Subsidiary, as the case may be, owns or leases
properties, has an office, or in which business is conducted and such
qualification is required, except where the failure to so qualify would not have
a material adverse effect.
3. The Company has full corporate power and authority to execute,
deliver, and perform the Underwriting Agreement; the Underwriting Agreement has
been duly authorized, executed and delivered by the Company, and constitutes a
legal, valid, and binding obligation of the Company and is enforceable against
each of the Company and the Trust in accordance with its terms.
4. The Trust Agreement has been duly authorized, executed and delivered
by the Company, and is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
5. The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
6. The Indenture has been duly authorized, executed and delivered by
the Company, has been duly qualified under the Trust Indenture Act, and is a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms.
7. The Subordinated Debentures have been duly authorized, executed and
delivered by the Company and when duly authenticated in accordance with the
Indenture
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and delivered and paid for in accordance with the Junior Subordinated Debenture
Purchase Agreement to be dated as of ______ __, 1998, by and between the Company
and the Trust, will be valid and binding obligations of the Company, entitled to
the benefits of the Indenture and enforceable against the Company in accordance
with their terms.
8. The Trust is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
9. The statements set forth in the Registration Statement under the
captions "Supervision and Regulation," "Description of Preferred Securities,"
"Description of Junior Subordinated Debentures," "Description of Guarantee" and
"Relationship Among the Preferred Securities, the Junior Subordinated Debentures
and the Guarantee," insofar as they purport to describe the provisions of the
laws referred to therein, fairly summarize the legal matters described therein.
10. The statements of law or legal conclusions and opinions set forth
in the Registration Statement under the caption "Certain Federal Income Tax
Consequences," subject to the assumptions and conditions described therein,
constitute such counsel's opinion.
11. The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion and, to such
counsel's knowledge and information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the Securities Act and no
proceedings therefor have been initiated or threatened by the Commission.
12. The Registration Statement and the Prospectus and any amendment or
supplement thereto made by the Company prior to the Closing Date or any Option
Closing Date (other than the financial statements and financial and statistical
data included therein, as to which no opinion need be rendered), when it or they
became effective or were filed with the Commission, as the case may be, and in
each case at the Closing Date or any Option Closing Date, complied as to form in
all material respects with the requirements of the Securities Act, the Trust
Indenture Act, and the applicable rules and regulations under said acts, and
such counsel has no reason to believe that the Registration Statement (other
than the financial statements and financial and statistical data included
therein, as to which no opinion need be rendered), at the time it became
effective, contained any untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements contained therein, not
misleading, or that the Prospectus (other than the financial statements and
financial and statistical data included therein, as to which no opinion need be
rendered), at the time it was filed with the Commission or at the Closing Date
or any Option Closing Date, contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they were made,
not misleading.
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13. To such counsel's knowledge, except as disclosed in the
Registration Statement, there are no material legal or governmental proceedings
pending to which the Company or any Subsidiary is a party or of which any
property of the Company or any Subsidiary is the subject which are required to
be disclosed in the Registration Statement or which would affect the
consummation of the transactions contemplated in this Agreement, the Indenture
or the Preferred Securities; and to such counsel's knowledge there are no
proceedings which are threatened by governmental authorities or others.
14. To such counsel's knowledge there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described in the Registration Statement or to be filed as exhibits thereto other
than those described therein or filed or incorporated by reference as exhibits
thereto, and to such counsel's knowledge such instruments as are summarized in
the Registration Statement are fairly summarized in all material respects.
15. No approval, authorization, consent, registration, qualification,
or other order of any public board or body is required in connection with the
execution and delivery of this Agreement, the Trust Agreement, the Guarantee
Agreement, and the Indenture or the issuance and sale of the Preferred
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, the Trust Agreement, the Guarantee Agreement, or
the Indenture, except such as have been obtained under the Securities Act, the
Exchange Act, and the Trust Indenture Act or such as may be required under the
blue sky or securities laws of various states in connection with the offering
and sale of the Preferred Securities (as to which such counsel need express no
opinion).
16. The execution and delivery of this Agreement, the Trust Agreement,
the Guarantee Agreement, and the Indenture, the issue and sale of the Preferred
Securities and the Subordinated Debentures, the compliance by the Company with
the provisions of the Preferred Securities, the Subordinated Debentures, the
Indenture, and this Agreement and the consummation of the transactions herein
and therein contemplated will not constitute a breach of, or default under, the
articles of incorporation or by-laws of the Company or a breach or default under
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument known to such counsel to which either the Company or any Subsidiary
is a party or by which either of them or any of their respective properties may
be bound except for such breaches as would not have a material adverse effect on
the Company and its Subsidiaries considered as one enterprise, nor will such
action result in a violation on the part of the Company or any Subsidiary of any
applicable law or regulation or of any administrative, regulatory, or court
decree known to such counsel.
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EXHIBIT B
The opinion of counsel to the Trust Company and Trust Delaware to be
delivered pursuant to Section 8(d)(ii) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Trust Company is duly incorporated and is validly existing in
good standing as a banking corporation with trust powers under the laws of the
State of New York.
2. The Indenture Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture, and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of the Indenture.
3. The Guarantee Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Guarantee Agreement, and
has taken all necessary corporate action to authorize the execution, delivery
and performance by it of the Guarantee Agreement.
4. The Property Trustee has the requisite power and authority to
execute and deliver the Trust Agreement, and has taken all necessary corporate
action to authorize the execution and delivery of the Trust Agreement.
5. Each of the Indenture and the Guarantee Agreement has been duly
executed and delivered by the Indenture Trustee and the Guarantee Trustee,
respectively, and constitutes a legal, valid and binding obligation of the
Indenture Trustee and the Guarantee Trustee, respectively, enforceable against
the Indenture Trustee and the Guarantee Trustee, respectively in accordance with
its respective terms, except that certain payment obligations may be enforceable
solely against the assets of the Trust and except that such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, liquidation,
fraudulent conveyance and transfer or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability is considered
in a proceeding in equity or at law), and by the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution.
6. The Subordinated Debentures delivered on the date hereof have been
duly authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
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EXHIBIT C
The opinion of counsel, as special Delaware counsel to the Company and
the Trust to be delivered pursuant to Section 8(d)(iii) of the Underwriting
Agreement shall be substantially to the effect that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, and all
filings required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust have been made.
2. Under the Delaware Business Trust Act and the Trust Agreement the
Trust has the trust power and authority to own its property and to its conduct
its business, all as described in the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of
the Company and the Trustees, and is enforceable against the Company and the
Trustees, in accordance with its terms.
4. Under the Delaware Business Trust Act and the Trust Agreement, the
Trust has the trust power and authority (i) to execute and deliver, and to
perform its obligations under, the Underwriting Agreement, and (ii) to issue and
perform its obligations under the Preferred Securities and the Common
Securities.
5. Under the Delaware Business Trust Act and the Trust Agreement, the
execution and delivery by the Trust of the Underwriting Agreement, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary trust action on the part of the Trust.
6. The Preferred Securities have been duly authorized by the Trust
Agreement and are duly and validly issued and, subject to the qualifications set
forth herein, fully paid and nonassessable undivided beneficial interests in the
assets of the Trust and are entitled to the benefits of the Trust Agreement. The
Holders, as beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware. We note that the Holders may be obligated, pursuant to the Trust
Agreement, (i) to provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers or exchanges of Preferred
Securities Certificates and the issuance of replacement Preferred Securities
Certificates, and (ii) to provide security or indemnity in connection with
requests of or directions to the Property Trustee to exercise its rights and
powers under the Trust Agreement.
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7. Under the Delaware Business Trust Act and the Trust Agreement, the
issuance of the Preferred Securities and Common Securities is not subject to
preemptive rights.
8. The Common Securities have been duly authorized by the Trust
Agreement and are duly and validly issued undivided beneficial interests in the
assets of the Trust and are entitled to the benefits of the Trust Agreement.
9. The issuance and sale by the Trust of the Preferred Securities and
Common Securities, the purchase by the Trust of the Subordinated Debentures, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the compliance by the Trust with its obligations
thereunder will not violate (i) any of the provisions of the Certificate of
Trust or the Trust Agreement or (ii) any applicable Delaware law or
administrative regulation.
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EXHIBIT D
The opinion of counsel, as special Delaware counsel to Trust Delaware
to be delivered pursuant to Section 8(d)(iv) of the Underwriting Agreement shall
be substantially to the effect that:
1. Trust Delaware is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of Delaware.
2. The Trust Delaware has the requisite power and authority to execute
and deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
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