Exhibit 1
1,044,000 Trust Preferred Securities
LOCAL FINANCIAL CAPITAL TRUST I
(a Delaware Trust)
Fully and Unconditionally Guaranteed by
LOCAL FINANCIAL CORPORATION
(a Delaware corporation)
___ % Cumulative Trust Preferred Securities
(Liquidation Amount of $25 Per Trust Preferred Security)
UNDERWRITING AGREEMENT
September ___, 1999
X.X. XXXXXXX & SONS, INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
XXXXX, XXXXXXXX & XXXXX, INC.
As Representatives of the Several Underwriters
c/o X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
The undersigned, Local Financial Capital Trust I (the "Trust"), a
statutory business trust organized under the Business Trust Act of the State of
Delaware (the "Delaware Act"), and Local Financial Corporation, a Delaware
corporation (the "Company" and, together with the Trust, the "Offerors"), hereby
address you as the representatives (the "Representatives") of each of the
persons, firms and corporations listed on Schedule I hereto (collectively, the
"Underwriters") and hereby confirm their agreement with the several Underwriters
as follows:
1. Description of Trust Preferred Securities. The Trust proposes to
issue and sell to the Underwriters 1,044,000 ___% cumulative trust preferred
securities (liquidation amount of $25 per preferred security) of the Trust (the
"Initial Trust Preferred Securities"). Solely for the purpose of covering
overallotments in the sale of the Initial Trust Preferred Securities, the Trust
further proposes to grant to the Underwriters the right to purchase up to an
additional 156,000 Trust Preferred Securities (the "Option Trust Preferred
Securities and, together with the Initial Trust Preferred Securities, the "Trust
Preferred Securities"), as provided in Section 3 of this Agreement. The Trust
Preferred Securities are more fully described in the Prospectus (as defined
below).
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The Trust Preferred Securities will be guaranteed by the Company, to
the extent set forth in the Prospectus, with respect to distributions and
amounts payable upon liquidation or redemption (the "Preferred Securities
Guarantee") pursuant to the Trust Preferred Securities Guarantee Agreement (the
"Preferred Securities Guarantee Agreement"), to be dated as of the Closing Date
(as defined below), executed and delivered by the Company and The Bank of New
York, as trustee (the "Guarantee Trustee"), for the benefit of the holders from
time to time of the Trust Preferred Securities, and will be entitled to the
benefits of certain backup undertakings described in the Prospectus with respect
to the Company's agreement pursuant to the Supplemental Indenture (as defined
below) to pay all expenses relating to the administration of the Trust. The
entire proceeds from the sale of the Trust Preferred Securities will be combined
with the entire proceeds from the sale by the Trust to the Company of its common
securities (the "Trust Common Securities" and, together with the Trust Preferred
Securities, the "Trust Securities") and will be used by the Trust to purchase
$_______ of ___% Junior Subordinated Deferrable Interest Debentures due 2029
(the "Subordinated Debentures" and, together with the Trust Preferred Securities
and the Preferred Securities Guarantee, the "Offered Securities") issued by the
Company. The Trust Common Securities have been guaranteed by the Company, to the
extent set forth in the Prospectus, with respect to distributions and amounts
payable upon liquidation or redemption (the "Common Securities Guarantee" and,
together with the "Preferred Securities Guarantee," the "Guarantees") pursuant
to a Common Securities Guarantee Agreement (the "Common Securities Guarantee
Agreement" and, together with the "Preferred Securities Guarantee Agreement,"
the "Guarantee Agreements"), to be dated as of the Closing Date, executed and
delivered by the Company for the benefit of the holders from time to time of the
Trust Common Securities. The Offerors each understand that the Underwriters
propose to offer the Trust Preferred Securities to the public upon the terms and
conditions set forth in the Registration Statement (as defined below) as soon as
they deem advisable after this Agreement has been executed and delivered, and
the Declaration (as defined below), the Indenture (as defined below) and the
Preferred Securities Guarantee Agreement have each been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
The Trust Preferred Securities and the Trust Common Securities will be
issued pursuant to the Amended and Restated Declaration of Trust of the Trust,
to be dated as of the Closing Date (such Amended and Restated Declaration,
including Annex I and any exhibits thereto, the "Declaration"), among the
Company, as sponsor, The Bank of New York, as property trustee (the "Property
Trustee"), The Bank of New York (Delaware), as Delaware trustee (the "Delaware
Trustee"), and Xxxxxx X. Xxxxxxxx, Xxx X. Xxxxxx and Xxxxxxx X. Xxxx, as
administrative trustees (the "Administrative Trustees" and, together with the
Property Trustee and the Delaware Trustee, the "Trustees"), and the holders,
from time to time, of undivided beneficial interests in the assets of the Trust.
The Subordinated Debentures will be issued pursuant to an indenture, to be dated
as of the Closing Date (the "Indenture"), between the Company and The Bank of
New York, as trustee (the "Debt Trustee").
2. Purchase, Sale and Delivery of Initial Trust Preferred Securities.
On the basis of the representations, warranties and agreements herein contained,
but subject to the terms
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and conditions herein set forth, the Offerors agree to sell to the Underwriters,
and each such Underwriter agrees, severally and not jointly, (a) to purchase
from the Offerors, at a purchase price of $25 per Trust Preferred Security, the
number of Initial Trust Preferred Securities set forth opposite the name of such
Underwriter in Schedule I hereto and (b) to purchase from the Offerors any
additional number of Option Trust Preferred Securities which such Underwriter
may become obligated to purchase pursuant to Section 3 hereof.
The Trust will deliver definitive certificates for the Initial Trust
Preferred Securities at the office of X.X. Xxxxxxx & Sons, Inc., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Xxxxxxx' Office"), or such other place as you and
the Company may mutually agree upon, for the accounts of the Underwriters
against payment to the Trust of the purchase price for the Initial Trust
Preferred Securities sold by them to the several Underwriters by wire transfer
of immediately available funds payable to the order of the Trust and delivered
to Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or at such other place
as may be agreed upon between you and the Company (the "Place of Closing"), at
10:00 a.m., New York time, on ____________, 1999, or at such other time and date
not later than five full business days thereafter as you and the Company may
agree, such time and date of payment and delivery being herein called the
"Closing Date."
The certificates for the Initial Trust Preferred Securities to be so
delivered will be made available to you for inspection at Xxxxxxx' Office (or
such other place as you and the Company may mutually agree upon) at least one
full business day prior to the Closing Date and will be in such names and
denominations as you may request at least forty-eight hours prior to the Closing
Date.
It is understood that an Underwriter, individually, may (but shall not
be obligated to) make payment on behalf of the other Underwriters whose funds
shall not have been received prior to the Closing Date for Initial Trust
Preferred Securities to be purchased by such Underwriter. Any such payment by an
Underwriter shall not relieve the other Underwriters of any of their obligations
hereunder.
As compensation to the Underwriters for their commitments hereunder and
in view of the fact that the proceeds of the sale of the Offered Securities will
ultimately be used to purchase the Subordinated Debentures of the Company, the
Company hereby agrees to pay at Closing Time to X.X. Xxxxxxx & Sons, Inc., for
the accounts of the several Underwriters, a commission per Trust Preferred
Security set forth on Schedule II hereto. At the Closing Time, the Company will
pay, or cause to be paid, the commission payable at such time to the
Underwriters under this Section 2 by wire transfer of immediately available
funds to a bank account designated by X.X. Xxxxxxx & Sons, Inc. for the account
of the Underwriters.
3. Purchase, Sale and Delivery of the Option Trust Preferred
Securities. The Offerors hereby grant options to the Underwriters to purchase
from them up to 156,000 Trust Preferred Securities on the same terms and
conditions as the Initial Trust Preferred Securities; provided, however, that
such options may be exercised only for the purpose of covering any over
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allotments which may be made by them in the sale of the Initial Trust Preferred
Securities. No Option Trust Preferred Securities shall be sold or delivered
unless the Initial Trust Preferred Securities previously have been, or
simultaneously are, sold and delivered.
The options are exercisable on behalf of the several Underwriters by
you, as Representatives, at any time, and from time to time, before the
expiration of 30 days from the date of the Prospectus (or, if such 30th day
shall be a Saturday or Sunday or a holiday, on the next day thereunder when the
Nasdaq National Market is open for trading), for the purchase of all or part of
the Option Trust Preferred Securities covered thereby, by notice given by you to
the Company and the Trust in the manner provided in Section 12 hereof, setting
forth the number of Option Trust Preferred Securities as to which the
Underwriters are exercising the options, and the date of delivery of said Option
Trust Preferred Securities, which date shall not be more than five business days
after such notice unless otherwise agreed to by the parties. You may terminate
the options at any time, as to any unexercised portion thereof, by giving
written notice to the Company and the Trust to such effect.
You, as Representatives, shall make such allocation of the Option Trust
Preferred Securities among the Underwriters as may be required to eliminate
purchases of fractional Trust Preferred Securities.
Delivery of the Option Trust Preferred Securities with respect to which
the options shall have been exercised shall be made to or upon your order at
Xxxxxxx' Office (or at such other place as you and the Company may mutually
agree upon), against payment by you of the per Trust Preferred Security purchase
price to the Trust by wire transfer of immediately available funds. Such payment
and delivery shall be made at 10:00 a.m., New York time, on the date designated
in the notice given by you as above provided for (which may be the same as the
Closing Date), unless some other date and time are agreed upon, which date and
time of payment and delivery are called the "Option Closing Date." The
certificates for the Option Trust Preferred Securities to be so delivered will
be made available to you for inspection at Xxxxxxx' Office at least one full
business day prior to the Option Closing Date and will be in such names and
denominations as you may request at least forty-eight hours prior to the Option
Closing Date. On the Option Closing Date, the Company and the Trust shall
provide the Underwriters such representations, warranties, agreements, opinions,
letters, certificates and covenants with respect to the Option Trust Preferred
Securities as are required to be delivered on the Closing Date with respect to
the Initial Trust Preferred Securities.
As compensation to the Underwriters for their commitments hereunder and
in view of the fact that the proceeds of the sale of the Offered Securities will
ultimately be used to purchase the Subordinated Debentures of the Company, the
Company hereby agrees to pay at Closing Time to X.X. Xxxxxxx & Sons, Inc., for
the accounts of the several Underwriters, a commission per Trust Preferred
Security set forth on Schedule II hereto. At the Closing Time, the Company will
pay, or cause to be paid, the commission payable at such time to the
Underwriters under this Section 3
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by wire transfer of immediately available funds to a bank account designated by
X.X. Xxxxxxx & Sons, Inc. for the account of the Underwriters.
4. Representations, Warranties and Agreements of the Offerors. (a) Each
Offeror, jointly and severally, represents and warrants to and agrees with each
Underwriter that:
(i) A registration statement (Registration No. ______-_____)
on Form S-3 for the registration of up to $30,000,000 of (i) Trust
Preferred Securities, (ii) Preferred Securities Guarantees and (iii)
Subordinated Debentures, including a preliminary prospectus, and such
amendments to such registration statement as may have been required to
the date of this Agreement, has been carefully prepared by the Offerors
pursuant to and in conformity with the requirements of the Securities
Act of 1933, as amended (the "1933 Act") and the rules and regulations
of the Securities and Exchange Commission (the "SEC") under the 1933
Act (the "1933 Act Rules and Regulations") and has been filed with the
SEC under the 1933 Act. Each of the Offerors meets the requirements for
use of Form S-3 under the 1933 Act. Copies of such registration
statement, including any amendments thereto, each related preliminary
prospectus (meeting the requirements of Rule 430 or 430A of the 1933
Act Rules and Regulations) contained therein, and the exhibits,
financial statements and schedules thereto have heretofore been
delivered by the Offerors to you. If such registration statement has
not become effective under the 1933 Act, a further amendment to such
registration statement, including a form of final prospectus, necessary
to permit such registration statement to become effective will be filed
promptly by the Offerors with the SEC. If such registration statement
has become effective under the 1933 Act, a final prospectus containing
information permitted to be omitted at the time of effectiveness by
Rule 430A of the 1933 Act Rules and Regulations will be filed promptly
by the Offerors with the SEC in accordance with Rule 424(b) of the 1933
Act Rules and Regulations. The term "Registration Statement" as used
herein means the registration statement as amended at the time it
becomes effective under the 1933 Act (the "Effective Date"), including
financial statements and all exhibits and all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act
and, if applicable, the information deemed to be included by Rule 430A
of the 1933 Act Rules and Regulations. If it is contemplated, at the
time this Agreement is executed, that a post-effective amendment to
such registration statement will be filed and must be declared
effective before the offering of the Offered Securities may commence,
the term "Registration Statement" as used herein means the registration
statement as amended by said post-effective amendment. If an
abbreviated registration statement is prepared and filed with the SEC
in accordance with Rule 462(b) under the 1933 Act (an "Abbreviated
Registration Statement"), the term "Registration Statement" as used in
this Agreement includes the Abbreviated Registration Statement. The
term "Prospectus" as used herein means (i) the prospectus as first
filed with the SEC pursuant to Rule 424(b) of the 1933 Act Rules and
Regulations, or (ii) if no such filing is required, the form of final
prospectus included in the Registration Statement at the Effective Date
or (iii) if a Term Sheet or abbreviated Term Sheet (as such terms are
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defined in Rule 434(b) and 434(c), respectively, of the 1933 Act Rules
and Regulations) is filed with the SEC pursuant to Rule 424(b)(7) of
the 1933 Act Rules and Regulations, the Term Sheet or Abbreviated Term
Sheet and the last Preliminary Prospectus filed with the SEC prior to
the time the Registration Statement became effective, taken together,
including, in each case, the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act. The term
"Preliminary Prospectus" as used herein shall mean a preliminary
prospectus as contemplated by Rule 430 or 430A of the 1933 Act Rules
and Regulations included at any time in the Registration Statement. For
purposes of this Agreement, the words "amend," "amendment," "amended,"
"supplement" or "supplemented" with respect to the Registration
Statement or the Prospectus shall mean amendments or supplements to the
Registration Statement or the Prospectus, as the case may be; as well
as documents filed after the date of this Agreement and prior to the
completion of the distribution of the Trust Preferred Securities and
incorporated by reference therein as described above.
(ii) Neither the SEC nor any state or other jurisdiction or
other regulatory body has issued, and neither is, to the knowledge of
the Offerors, threatening to issue, any stop order under the 1933 Act
or other order suspending the effectiveness of the Registration
Statement (as amended or supplemented) or preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or suspending the
qualification or registration of the Offered Securities for offering or
sale in any jurisdiction nor instituted or, to the knowledge of the
Offerors, threatened to institute proceedings for any such purpose.
Each Preliminary Prospectus at its date of issue, the Registration
Statement and the Prospectus and any amendments or supplements thereto
contain or will contain, as the case may be, all statements which are
required to be stated therein, and in all material respects conform or
will conform, as the case may be, to the requirements of, the 1933 Act
and the 1933 Act Rules and Regulations and the 1939 Act and the rules
and regulations of the SEC under the rules and regulations of the SEC
under the 1939 Act (the "1939 Act Rules and Regulations"). Neither the
Registration Statement nor any amendment thereto, as of the applicable
effective date, contains or will contain, as the case may be, any
untrue statement of a material fact or omits or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein, not misleading, and neither any Preliminary
Prospectus, the Prospectus nor any supplement thereto contains or will
contain, as the case may be, any untrue statement of a material fact or
omits or will 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; provided,
however, that the Offerors make no representation or warranty as to
information contained in or omitted from the Registration Statement or
the Prospectus, or any such amendment or supplement, in reliance upon,
and in conformity with, written information furnished to the Offerors
relating to the Underwriters by or on behalf of the Underwriters
expressly for use in the preparation thereof (as provided in Section 13
hereof). There is no contract or document required to be described in
the Registration Statement or Prospectus or to be filed as an exhibit
to the
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Registration Statement which is not described or filed as required. The
documents incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, at the time they were filed with the
SEC, complied in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the
rules and regulations adopted by the SEC thereunder (the "1934 Act
Rules and Regulations"); any future documents incorporated by reference
so filed, when they are filed, will comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Rules and
Regulations; no such incorporated document contained or will contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and, when read together and with the other
information in the Prospectus, at the time the Registration Statement
became effective and at the Closing Date (and the Option Closing Date,
if applicable), each such incorporated document did not or will not, as
the case may be, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. Each preliminary prospectus
and the Prospectus delivered to the Underwriters for use in connection
with the offering of the Offered Securities was identical to the
electronically transmitted copies thereof filed with the SEC pursuant
to XXXXX, except to the extent permitted by Regulation S-T under the
1933 Act Rules and Regulations.
(iii) This Agreement has been duly authorized, executed and
delivered by each of the Offerors and constitutes a valid and legally
binding obligation of each of the Offerors enforceable against each of
the Offerors in accordance with its terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and by
general principles of equity (the "Bankruptcy Exceptions").
(iv) The Company and its subsidiaries have been duly organized
and are validly existing as corporations in good standing under the
laws of the states or other jurisdictions in which they are
incorporated, with full power and authority (corporate and other) to
own, lease and operate their properties and conduct their businesses as
described in the Prospectus and, with respect to the Company, to
execute and deliver, and perform the Company's obligations under, this
Agreement, the Guarantee Agreements, the Guarantees, the Indenture and
the Subordinated Debentures; the Company and its subsidiaries are duly
qualified to do business as foreign corporations in good standing in
each state or other jurisdiction in which their ownership or leasing of
property or conduct of business legally requires such qualification,
except where the failure to be so qualified, individually or in the
aggregate, would not have a Material Adverse Effect. The term "Material
Adverse Effect" as used herein means any material adverse effect on the
condition (financial or other), net worth, business, affairs,
management, prospects, results of operations or cash flow of the
Company and its subsidiaries, taken as a whole.
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(v) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the laws of the State
of Delaware, with power and authority to own its properties and conduct
its business as described in the Registration Statement and Prospectus
and to enter into and perform its obligations under this Agreement, the
Trust Securities and the Declaration and to own and hold the
Subordinated Debentures; the Trust has conducted and will conduct no
business other than the transactions contemplated by this Agreement and
described in the Prospectus; the Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement and the Declaration and described in the
Prospectus and is not a party to or otherwise bound by any agreement
other than those described in the Prospectus; the Trust is duly
qualified to transact business as a foreign Company and is in good
standing under the laws of each jurisdiction in which such
qualification is necessary, except to the extent that the failure to so
qualify would not have a material adverse effect on the Trust; the
Trust is and will be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable as a
corporation; the Trust is and will be treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting
principles; and the Trust has no subsidiaries.
(vi) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree otherwise than
as set forth in the Prospectus and, since the respective dates as of
which information is given in the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth in the Prospectus.
(vii) The execution, delivery and performance of this
Agreement, the Guarantee Agreements, the Guarantees, the Indenture, the
Subordinated Debentures and the Trust Securities and the consummation
of the transactions contemplated herein and therein, including, without
limitation, the issuance by the Company of the Subordinated Debentures
and the Guarantees, the compliance by the Company with all of the
provisions of this Agreement, the use of the proceeds from the sale of
the Offered Securities as described in the Prospectus under the caption
"Use of Proceeds" and the distribution by the Company of the
Subordinated Debentures upon the liquidation of the Trust in the
circumstances contemplated by the Declaration and described in the
Prospectus, have been duly authorized by all necessary corporate action
of the Company, will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or any of its
subsidiaries
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under any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound
or to which any of the properties or assets of the Company or any of
its subsidiaries is subject, except to such extent as, individually or
in the aggregate, does not have a Material Adverse Effect; nor will
such action result in any violation of the provisions of the articles
of incorporation or by-laws of the Company or any of its subsidiaries
or any statute, rule, regulation or other law, or any order or judgment
of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the execution, delivery and performance by the Offerors
of their obligations under this Agreement, the Declaration, the
Guarantee Agreements, the Guarantees, the Indenture, the Subordinated
Debentures or the Trust Securities, the issuance and sale of the
Offered Securities or the consummation of the transactions contemplated
by this Agreement or any of the foregoing, except such as have been, or
will be prior to the Closing Date, obtained under the 1933 Act or as
may be required by the National Association of Securities Dealers, Inc.
(the "NASD") and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or blue sky laws in connection with the purchase and
distribution of the Trust Preferred Securities by the Underwriters.
(viii) The execution, delivery and performance of this
Agreement, the Declaration and the Trust Securities and the
consummation of the transactions contemplated herein and therein,
including, without limitation, the issuance and sale of the Trust
Securities by the Trust, the compliance by the Trust with all of the
provisions of this Agreement and the Declaration, the purchase of the
Subordinated Debentures by the Trust from the Company, the distribution
of the Subordinated Debentures upon the liquidation of the Trust in the
circumstances contemplated by the Declaration and described in the
Prospectus, have been duly authorized by all necessary action
(corporate or otherwise) on the part of the Trust, will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any properties or
assets of the Trust under any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Trust is a
party or by which the Trust is bound or to which any of the properties
or assets of the Trust is subject, except to such extent as,
individually or in the aggregate, does not have a material adverse
effect on the Trust; nor will such action result in any violation of
the provisions of the Declaration or the Trust's certificate of trust
(the "Certificate of Trust") or any statute, rule, regulation or other
law, or any order or judgment, of any court or governmental agency or
body having jurisdiction over the Trust or any of its properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the execution, delivery and performance by the Trust of
its obligations under this
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Agreement, the Declaration, the Certificate of Trust or the Trust
Securities, the issuance and sale of the Trust Securities or the
consummation of the transactions contemplated by this Agreement or any
of the foregoing, except such as have been, or will be prior to the
Closing Date, obtained under the 1933 Act or as may be required by the
NASD and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or blue sky
laws in connection with the purchase and distribution of the Trust
Preferred Securities by the Underwriters.
(ix) The Declaration has been duly authorized by each of the
Offerors; each of the Administrative Trustees of the Trust is an
employee of the Company and has been duly authorized by the Company to
execute and deliver the Declaration; on the Closing Date, the
Declaration will have been duly executed and delivered by the Company
and the Administrative Trustees, and assuming due authorization,
execution and delivery of the Declaration by the Property Trustee and
the Delaware Trustee, the Declaration will be a valid and binding
obligation of the Company and the Administrative Trustees, enforceable
against the Company and the Administrative Trustees in accordance with
its terms, except to the extent that enforcement thereof may be limited
by the Bankruptcy Exceptions; the Declaration has been duly qualified
under the 1939 Act; and the Declaration conforms to all statements
relating thereto contained in the Prospectus.
(x) The Trust Common Securities have been duly authorized by
the Declaration and, when issued and delivered by the Trust to the
Company in accordance with the terms of the Declaration and against
payment therefor as described in the Registration Statement and
Prospectus, will be validly issued and (subject to the terms of the
Declaration) fully paid and nonassessable undivided beneficial
interests in the assets of the Trust; the issuance of the Trust Common
Securities is not subject to preemptive or other similar rights; no
holder of Trust Common Securities will be subject to personal liability
by reason of being such a holder; on the Closing Date, all of the
issued and outstanding Trust Common Securities will be directly owned
by the Company, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; and the Trust Common
Securities conform to all statements relating thereto contained in the
Prospectus.
(xi) The Trust Preferred Securities have been duly and validly
authorized and, when issued and delivered pursuant to this Agreement
against payment therefor as provided herein, will be validly issued and
(subject to the terms of the Declaration) fully paid and nonassessable
undivided beneficial interests in the assets of the Trust and will be
entitled to the benefits of the Declaration; the issuance of the Trust
Preferred Securities is not subject to preemptive or other similar
rights; holders of the Trust Preferred Securities will be entitled to
the same limitation of personal liability extended to stockholders of
private corporations for profit incorporated under the General
Corporation Law of the State of Delaware; and the Trust Preferred
Securities conform to all statements relating
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thereto contained in the Prospectus and such description conforms to
the provisions of the Declaration.
(xii) The Indenture has been duly authorized by the Company;
on the Closing Date, the Indenture will have been duly executed and
delivered by the Company, and, assuming the due authorization,
execution and delivery of the Indenture by the Debt Trustee, will
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by the Bankruptcy Exceptions;
the Indenture has been duly qualified under the 1939 Act; and the
Indenture conforms to all statements relating thereto contained in the
Prospectus.
(xiii) The Subordinated Debentures have been duly authorized
by the Company; on the Closing Date, the Subordinated Debentures will
have been duly executed and delivered by the Company, and, when
authenticated in the manner provided for in the Indenture and delivered
against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by the Bankruptcy
Exceptions; the Subordinated Debentures are subordinate and junior in
right of payment to all "senior indebtedness" and "subordinated
indebtedness" (as such terms are defined in the Indenture); the
Subordinated Debentures will be in the form contemplated by, and will
be entitled to the benefits of, the Indenture; and the Subordinated
Debentures conform to all statements relating thereto contained in the
Prospectus.
(xiv) Each of the Guarantee Agreements has been duly
authorized by the Company and, on the Closing Date, will have been duly
executed and delivered by the Company, and, in the case of the
Preferred Securities Guarantee Agreement, assuming due authorization,
execution and delivery by the Guarantee Trustee, will constitute a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions; the
Preferred Securities Guarantee Agreement has been duly qualified under
the 1939 Act; the Company's obligations under the Preferred Securities
Guarantee will be subordinate and junior in right of payment to all
liabilities of the Company and will be pari passu with [the most senior
preferred stock of the Company and] with any guarantees of the Company
entered into with respect to any preferred securities of an affiliate
of the Company; and each of the Guarantees and the Guarantee Agreements
conform to the statements relating thereto contained in the Prospectus.
(xv) The Company has duly and validly authorized capital stock
as set forth in the Prospectus; all outstanding shares of common stock
of the Company have been duly authorized, validly issued, fully paid
and non-assessable. Except as disclosed in the Prospectus, there are no
outstanding subscriptions, rights, warrants, options, calls,
11
convertible securities, commitments of sale or rights related to or
entitling any person to purchase or otherwise to acquire any shares of,
or any security convertible into or exchangeable or exercisable for,
the capital stock of, or other ownership interest in, the Company. The
outstanding shares of capital stock of the Company's subsidiaries have
been duly authorized and validly issued, are fully paid and
non-assessable and are owned by the Company free and clear of any
mortgage, pledge, lien, encumbrance, charge or adverse claim and are
not the subject of any agreement or understanding with any person and
were not issued in violation of any preemptive or similar rights; and
there are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or instruments
related to or entitling any person to purchase or otherwise acquire any
shares of, or any security convertible into or exchangeable or
exercisable for, the capital stock of, or other ownership interest in
any of the subsidiaries. Other than the subsidiaries listed on Schedule
III, the Company has no subsidiaries which, either individually or
considered in the aggregate as a single subsidiary, constitute a
"significant subsidiary" as defined in Rule 1-02 of Regulation S-X.
(xvi) The statements set forth in the Prospectus describing
the Trust Preferred Securities, the Junior Subordinated Debentures, the
Guarantees, this Agreement, the Declaration of Trust, the Guarantee
Agreements, the Indenture, federal tax laws and ERISA, insofar as they
purport to describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair.
(xvii) Each of the Company and each of its subsidiaries is in
possession of and is operating in compliance with all franchises,
grants, authorizations, licenses, certificates, permits, easements,
consents, orders and approvals ("Permits") from all state, federal,
foreign and other regulatory authorities, and has satisfied the
requirements imposed by regulatory bodies, administrative agencies or
other governmental bodies, agencies or officials, that are required for
the Company and each of its subsidiaries lawfully to own, lease and
operate their properties and conduct their businesses as described in
the Prospectus, and, each of the Company and each of its subsidiaries
is conducting its business in compliance with all of the laws, rules
and regulations of each jurisdiction in which it conducts its business,
in each case with such exceptions, individually or in the aggregate, as
would not have a Material Adverse Effect; each of the Company and each
of its subsidiaries has filed all notices, reports, documents or other
information ("Notices") required to be filed under applicable laws,
rules and regulations, in each case, with such exceptions, individually
or in the aggregate, as would not have a Material Adverse Effect; and,
except as otherwise specifically described in the Prospectus, neither
the Company nor any of its subsidiaries has received any notification
from any court or governmental body, authority or agency, relating to
the revocation or modification of any such Permit or, to the effect
that any additional authorization, approval, order, consent, license,
certificate, permit, registration or qualification ("Approvals") from
such regulatory authority is needed to be obtained by any of them, in
any case where it could be
12
reasonably expected that obtaining such Approvals or the failure to
obtain such Approvals, individually or in the aggregate, would have a
Material Adverse Effect.
(xviii) Neither the Company nor Local Oklahoma Bank (the
"Bank") is in violation of any rule or regulation of the Board of
Governors of the Federal Reserve, the Office of the Comptroller of the
Currency or the Federal Deposit Insurance Corporation that could
reasonably be expected to result in any enforcement action against the
Company, the Bank or their officers or directors or to have a Material
Adverse Effect.
(xix) The Company and each of its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns
and paid all taxes shown as due thereon; all such tax returns are
complete and correct in all material respects; all tax liabilities are
adequately provided for on the books of the Company and each of its
subsidiaries except to such extent as would not have a Material Adverse
Effect; the Company and each of its subsidiaries have made all
necessary payroll tax payments and are current and up-to-date; and the
Company and each of its subsidiaries have no knowledge of any tax
proceeding or action pending or threatened against the Company, any of
its subsidiaries or the Trust which, individually or in the aggregate,
might have a Material Adverse Effect.
(xx) Except as described in the Prospectus, the Company and
each of its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent licenses, trademarks, service marks and
trade names necessary to conduct the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice
of infringement of or conflict with asserted rights of others with
respect to any patents, patent licenses, trademarks, service marks or
trade names which, individually or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a Material
Adverse Effect.
(xxi) The Company and each of its subsidiaries have good and
marketable title in fee simple to all items of real property and good
and marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances, restrictions and
defects except such as are described in the Prospectus or do not
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property; and any property
held under lease or sublease by the Company or any of its subsidiaries
is held under valid, subsisting and enforceable leases or subleases
with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property by the Company and
its subsidiaries; and neither the Company nor any of its subsidiaries
has any notice or knowledge of any material claim of any sort which has
been, or may be, asserted by anyone adverse to the Company's or any of
its subsidiaries rights as lessee or sublessee under any lease or
sublease described above, or affecting or questioning the Company's or
any of its
13
subsidiaries' rights to the continued possession of the leased or
subleased premises under any such lease or sublease in conflict with
the terms thereof.
(xxii) Except as described in the Prospectus, there is no
factual basis for any action, suit or other proceeding involving the
Company or any of its subsidiaries or any of their material assets for
any failure of the Company or any of its subsidiaries, or any
predecessor thereof, to comply with any requirements of federal, state
or local regulation relating to air, water, solid waste management,
hazardous or toxic substances, or the protection of health or the
environment. Except as described in the Prospectus, none of the
property owned or leased by the Company or any of its subsidiaries is,
to the best knowledge of the Company, contaminated with any waste or
hazardous substances, and neither the Company nor any of its
subsidiaries may be deemed an "owner or operator" of a "facility" or
"vessel" which owns, possesses, transports, generates or disposes of a
"hazardous substance" as those terms are defined in ss.9601 of the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. ss.9601 et seq.
(xxiii) No labor disturbance exists with the employees of the
Company or any of its subsidiaries or is imminent which, individually
or in the aggregate, would have a Material Adverse Effect. None of the
employees of the Company or any of its subsidiaries is represented by a
union and, to the best knowledge of the Company and its subsidiaries,
no union organizing activities are taking place. Neither the Company
nor any of its subsidiaries has violated any federal, state or local
law or foreign law relating to discrimination in hiring, promotion or
pay of employees, nor any applicable wage or hour laws, or the rules
and regulations thereunder, or analogous foreign laws and regulations,
which might, individually or in the aggregate, result in a Material
Adverse Effect.
(xxiv) The Company and its subsidiaries are in compliance in
all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to
any "pension plan" (as defined in ERISA) for which the Company and its
subsidiaries would have any liability; the Company and its subsidiaries
have not incurred and do not expect to incur liability under (i) Title
IV of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue
Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for
which the Company or any of its subsidiaries would have any liability
that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects, and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
14
(xxv) The Company and its subsidiaries maintain insurance of
the types and in the amounts generally deemed adequate for its
business, including, but not limited to, directors' and officers'
insurance, insurance covering real and personal property owned or
leased by the Company and its subsidiaries against theft, damage,
destruction, acts of vandalism and all other risks customarily insured
against, all of which insurance is in full force and effect. Neither
the Company nor any of its subsidiaries has been refused any insurance
coverage sought or applied for, and the Company has no reason to
believe that it and its subsidiaries will not be able to renew their
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect.
(xxvi) Neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in default
or violation with respect to its certificate of incorporation or
by-laws. Neither the Company nor any of its subsidiaries is, or with
the giving of notice or lapse of time or both would be, in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the properties or assets
of the Company or any of its subsidiaries is subject, or in violation
of any statutes, laws, ordinances or governmental rules or regulations
or any orders or decrees to which it is subject, including, without
limitation, Section 13 of the 1934 Act, which default or violation,
individually or in the aggregate, would have a Material Adverse Effect.
Neither the Company nor any of its subsidiaries has, at any time during
the past five years, (A) made any unlawful contributions to any
candidate for any political office, or failed fully to disclose any
contribution in violation of law, or (B) made any payment to any state,
federal or foreign government official, or other person charged with
similar public or quasi-public duty (other than payment required or
permitted by applicable law).
(xxvii) The Trust is not in violation of its Declaration or
the Certificate of Trust; the Trust is not in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Trust is a
party or by which it may be bound, or to which any of the property or
assets of the Trust is subject or in violation of any statutes, laws,
ordinances or governmental rules or regulations or any orders of
decrees to which it is subject, which default or violation,
individually or in the aggregate would have a material adverse effect
on the Trust.
(xxviii) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company, any
of its subsidiaries or the Trust is a party or of which any property of
the Company, any of its subsidiaries or the Trust is the subject that,
if determined adversely to the Company, any of its subsidiaries or the
Trust, would individually or in the aggregate have a Material Adverse
Effect or
15
which would materially and adversely affect the consummation of the
transactions contemplated hereby or which is required to be disclosed
in the Prospectus; to the best of the Company's and the Trust's
knowledge, no such proceedings are threatened or contemplated.
(xxix) Neither the Company nor the Trust is or, after giving
effect to the issuance and sale of the Offered Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus, will be, an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(xxx) KPMG, the accounting firm which has certified certain of
the financial statements filed with or incorporated by reference in and
as a part of the Registration Statement, is an independent public
accounting firm within the meaning of the 1933 Act and the 1933 Act
Rules and Regulations. The Company and each of its subsidiaries
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that: (1) transactions are executed in
accordance with management's general or specific authorizations; (2)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (3) access to
assets is permitted only in accordance with management's general or
specific authorization; and (4) the recorded accounts for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect thereto. The consolidated
financial statements and schedules of the Company, including the notes
thereto, filed with (or incorporated by reference) and as a part of the
Registration Statement or Prospectus, are accurate in all material
respects and present fairly the financial condition of the Company and
its subsidiaries as of the respective dates thereof and the
consolidated results of operations and changes in financial position
and consolidated statements of cash flow for the respective periods
covered thereby, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved except as otherwise disclosed therein. All adjustments
necessary for a fair presentation of results for such periods have been
made. The selected financial data included or incorporated by reference
in the Registration Statement and Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements. Any operating or other
statistical data included or incorporated by reference in the
Registration Statement and Prospectus comply in all material respects
with the 1933 Act and the 1933 Act Rules and Regulations and present
fairly the information shown therein. The supporting schedules, if any,
included in the Registration Statement present fairly, in accordance
with generally accepted accounting principles, the information required
to be stated therein.
(xxxi) Except as disclosed in the Prospectus, no holder of any
security of the Company has any right to require registration of shares
of common stock or any other
16
security of the Company because of the filing of the Registration
Statement or the consummation of the transactions contemplated hereby
and, except as disclosed in the Prospectus, no person has the right to
require registration under the 1933 Act of any shares of common stock
or other securities of the Company. No person has the right,
contractual or otherwise, to cause the Company to permit such person to
underwrite the sale of any of the Offered Securities. Except for this
Agreement, there are no contracts, agreements or understandings between
the Company, any of its subsidiaries or the Trust and any person that
would give rise to a valid claim against the Company, its subsidiaries,
the Trust or any Underwriter for a brokerage commission, finder's fee
or like payment in connection with the issuance, purchase and sale of
the Offered Securities.
(xxxii) The Company has not distributed and, prior to the
later to occur of (i) the Closing Date or the Option Closing Date, if
any, and (ii) completion of the distribution of the Offered Securities,
will not distribute any offering material in connection with the
offering and sale of the Offered Securities other than the Registration
Statement, the Preliminary Prospectus or the Prospectus.
(xxxiii) Each of the Company and each of its subsidiaries has
statutory authority, franchises, and consents free from burdensome
restrictions and adequate for the conduct of the business in which it
is engaged.
(b) Any certificate signed by any officer of the Company or by a
Trustee of the Trust and delivered to you or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company or the Trust, as
the case may be, to each Underwriter as to the matters covered thereby.
5. Additional Covenants. Each of the Offerors, jointly and severally,
covenants and agrees with the several Underwriters that:
(a) The Offerors will timely transmit copies of the Prospectus, and any
amendments or supplements thereto, or a Term Sheet or Abbreviated Term Sheet, as
applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules
and Regulations.
(b) The Offerors will deliver to each of the Representatives, and to
counsel for the Underwriters (i) five signed copies of the Registration
Statement as originally filed, including copies of exhibits thereto (other than
any exhibits incorporated by reference therein), of any amendments and
supplements to the Registration Statement (including all documents incorporated
by reference therein) and (ii) a signed copy of each consent and certificate
included or incorporated by reference in, or filed as an exhibit to, the
Registration Statement as so amended or supplemented; the Offerors will deliver
to the Underwriters through the Representatives as soon as practicable after the
date of this Agreement as many copies of the Prospectus (including all documents
incorporated by reference therein) as the Representatives may reasonably request
for the purposes contemplated by the 1933 Act; if the Registration
17
Statement is not effective under the 1933 Act, the Offerors will use their best
efforts to cause the Registration Statement to become effective as promptly as
possible, and they will notify you, promptly after they shall receive notice
thereof, of the time when the Registration Statement has become effective; the
Offerors will promptly advise the Representatives of any request of the SEC for
amendment of the Registration Statement or for supplement to the Prospectus or
for any additional information, and of the issuance by the SEC or any state or
other jurisdiction or other regulatory body of any stop order under the 1933 Act
or other order suspending the effectiveness of the Registration Statement (as
amended or supplemented) or preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending the qualification or registration of
the Offered Securities for offering or sale in any jurisdiction, and of the
institution or threat of any proceedings therefor, of which the Offerors shall
have received notice or otherwise have knowledge prior to the completion of the
distribution of the Offered Securities; and the Offerors will use their best
efforts to prevent the issuance of any such stop order or other order and, if
issued, to secure the prompt removal thereof.
(c) The Offerors will not file any amendment or supplement to the
Registration Statement, the Prospectus (or any other prospectus relating to the
Offered Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and
Regulations that differs from the Prospectus as filed pursuant to such Rule
424(b)) and will not file any document under the 1934 Act before the termination
of the offering of the Offered Securities by the Underwriters if the document
would be deemed to be incorporated by reference into the Registration Statement
or the Prospectus, of which the Underwriters shall not previously have been
advised and furnished with a copy or to which the Underwriters shall have
reasonably objected or which is not in compliance with the 1933 Act Rules and
Regulations; and the Offerors will promptly notify you after they shall have
received notice thereof of the time when any amendment to the Registration
Statement becomes effective or when any supplement to the Prospectus has been
filed.
(d) During the period when a prospectus relating to any of the Offered
Securities is required to be delivered under the 1933 Act by any Underwriter or
dealer, the Offerors will comply, at their own expense, with all requirements
imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and
hereafter amended, and by the rules and regulations of the SEC thereunder, as
from time to time in force, so far as necessary to permit the continuance of
sales of or dealing in the Offered Securities during such period in accordance
with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the
Offered Securities is required to be delivered under the 1933 Act by any
Underwriter or dealer, (i) any event relating to or affecting the Offerors or of
which the Offerors shall be advised in writing by the Representatives shall
occur as a result of which, in the opinion of the Offerors or the
Representatives, the Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (ii) it shall be
necessary to amend or supplement the Registration Statement or the Prospectus
18
to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act,
the 1934 Act Rules and Regulations, the 1939 Act or the 1939 Act Rules and
Regulations, the Offerors will forthwith at their expense prepare and file with
the SEC, and furnish to the Representatives a reasonable number of copies of,
such amendment or supplement or other filing that will correct such statement or
omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Offered
Securities is required to be delivered under the 1933 Act by any Underwriter or
dealer, the Offerors will furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Offered Securities for offer
and sale under the securities or blue sky laws of such jurisdictions as the
Representatives may reasonably designate and will file and make in each year
such statements or reports as are or may be reasonably required by the laws of
such jurisdictions; provided, however, that the Offerors shall not be required
to qualify as a foreign corporation or shall be required to qualify as a dealer
in securities or to file a general consent to service of process under the laws
of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of
the 1933 Act Rules and Regulations, the Trust will make generally available to
its security holders and to holders of the Offered Securities, as soon as
practicable, an earning statement (which need not be audited) in reasonable
detail covering the 12 months beginning not later than the first day of the
month next succeeding the month in which occurred the effective date (within the
meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Offered
Securities is required to be delivered under the 1933 Act by any Underwriter or
dealer, the Offerors will file promptly all documents required to be filed with
the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The
Company will furnish to its security holders annual reports containing financial
statements audited by independent public accountants and quarterly reports
containing financial statements and financial information which may be
unaudited. The Company will, for a period of five years from the Closing Date,
deliver to the Underwriters at their principal executive offices a reasonable
number of copies of annual reports, quarterly reports, current reports and
copies of all other documents, reports and information furnished by the Company
to its shareholders or filed with any securities exchange or market pursuant to
the requirements of such exchange or market or with the SEC pursuant to the 1933
Act or the 1934 Act. The Company will deliver to the Underwriters similar
reports with respect to any significant subsidiaries, as that term is defined in
the 1933 Act Rules and Regulations, which are not consolidated in the Company's
financial statements. Any report, document or other information required to be
furnished under this paragraph (h) shall be furnished as soon as practicable
after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and
continuing to and including the earlier of (i) the termination of trading
restrictions on the Securities, as determined by the Underwriters, and (ii) 30
days after the Closing Date, none of the Company,
19
the Trust or any of the Company's subsidiaries will, without the prior written
consent of the Representatives, offer for sale, sell or enter into any agreement
to sell, or otherwise dispose of, any Trust Preferred Securities, any
Subordinated Debentures, any security convertible into or exchangeable into or
exercisable for Trust Preferred Securities or the Subordinated Debentures or any
securities substantially similar to any of the foregoing or file any
registration statement under the 1933 Act with respect to any of the foregoing
(except for the Subordinated Debentures and the Trust Preferred Securities
issued pursuant to this Agreement).
(j) The Trust will use the proceeds received by it from the sale of the
Offered Securities as set forth in the description under "Use of Proceeds" in
the Prospectus, which description complies in all respects with the requirements
of Item 504 of Regulation S-K. The Company will apply the proceeds from the sale
of the Offered Securities as set forth in the description under "Use of
Proceeds" in the Prospectus, which description complies in all respects with the
requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all
correspondence to and from, and all documents issued to and by, the SEC in
connection with the registration of the Offered Securities under the 1933 Act or
relating to any documents incorporated by reference into the Registration
Statement or the Prospectus.
(l) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Company will furnish to you, as soon as they have been prepared,
copies of any unaudited interim consolidated financial statements of the Company
and its subsidiaries for any periods subsequent to the periods covered by the
financial statements appearing in the Registration Statement and the Prospectus.
(m) Prior to the Closing Date (and, if applicable, the Option Closing
Date), neither the Company nor the Trust will issue any press releases or other
communications directly or indirectly and will hold no press conferences with
respect to the Company or any of its subsidiaries, the financial condition,
results of operations, business, properties, assets or liabilities of the
Company or any of its subsidiaries, or the offering of the Offered Securities,
without your prior written consent.
(n) The Company will use its best efforts to obtain approval for, and
maintain the quotation of the Trust Preferred Securities on the Nasdaq National
Market.
(o) So long as any Trust Preferred Securities are outstanding, the
Trust will continue its existence in good standing as a business trust under the
Delaware Act with power and authority to own its property and conduct its
business as described in the Prospectus, and the Trust will remain duly
qualified to transact business as a foreign corporation in good standing in each
jurisdiction in which such qualification is necessary, except to the extent that
the failure to so qualify would not, individually or in the aggregate, have a
material adverse effect on the Trust.
20
(p) The Company and its subsidiaries will maintain and keep accurate
books and records reflecting their assets and maintain internal accounting
controls which provide reasonable assurance that (1) transactions are executed
in accordance with management's authorization, (2) transactions are recorded as
necessary to permit the preparation of the Company's consolidated financial
statements and to maintain accountability for the assets of the Company and its
subsidiaries, (3) access to the assets of the Company and its subsidiaries is
permitted only in accordance with management's authorization, and (4) the
recorded accounts of the assets of the Company and its subsidiaries are compared
with existing assets at reasonable intervals.
(q) During any period in which a prospectus is required by law to be
delivered by an Underwriter or dealer, the Offerors will promptly file all
documents required to be filed with the SEC pursuant to Sections 13, 14 or 15(d)
of the 1934 Act.
(r) If the Offerors elect to rely on Rule 462(b) under the 1933 Act,
the Offerors shall both file an Abbreviated Registration Statement with the SEC
in compliance with Rule 462(b) and pay the applicable fees in accordance with
Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., New York time, on the
date of this Agreement, and (ii) the time that confirmations are given or sent,
as specified by Rule 462(b)(2).
(s) The Company shall issue the Guarantees and the Subordinated
Debentures concurrently with the issuance and sale of the Trust Preferred
Securities as contemplated herein.
(t) The Offerors will file all documents and notices and take such
further actions as may be required to continue to quote the Trust Preferred
Securities on the Nasdaq National Market. If the Trust Preferred Securities are
exchanged for Subordinated Debentures, the Company will use its best efforts to
effect the quotation of the Subordinated Debentures on the Nasdaq National
Market.
6. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase and pay for the Trust Preferred Securities, as
provided herein, shall be subject to the accuracy, as of the date hereof and as
of the Closing Date (and, if applicable, the Option Closing Date), of the
representations and warranties of the Offerors contained herein, to the
performance by the Offerors of their covenants and obligations hereunder, and to
the following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective not later than 1:00 p.m., New York time, on
the date hereof, or, with your consent, at a later date and time, not later than
_____ p.m., New York time, on the first business day following the date hereof,
or at such later date and time as may be approved by the Representatives; if the
Offerors have elected to rely on Rule 462(b) under the 1933 Act, the Abbreviated
Registration Statement shall have become effective not later than the earlier of
(x) 10:00 p.m. New York time, on the date hereof, or (y) at such later date and
time as may be
21
approved by the Representatives. All filings required by Rule 424 and Rule 430A
of the 1933 Act Rules and Regulations shall have been made. No stop order
suspending the effectiveness of the Registration Statement, as amended from time
to time, shall have been issued and no proceeding for that purpose shall have
been initiated or, to the knowledge of the Company, the Trust or any
Underwriter, threatened or contemplated by the SEC, and any request of the SEC
for additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the reasonable
satisfaction of the Underwriters.
(b) No Underwriter shall have advised the Company or the Trust on or
prior to the Closing Date (and, if applicable, the Option Closing Date), that
the Registration Statement or Prospectus or any amendment or supplement thereto
contains an untrue statement of fact which, in the opinion of counsel to the
Underwriters, is material, or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(c) On the Closing Date (and, if applicable, the Option Closing Date),
you shall have received the opinion of Elais, Matz, Xxxxxxx & Xxxxxxx L.L.P.,
counsel for the Company, addressed to you and dated the Closing Date (and, if
applicable, the Option Closing Date), to the effect that:
(i) The Registration Statement and all post-effective
amendments thereto and the Abbreviated Registration Statement, if any,
have become effective under the 1933 Act; any required filing of the
Prospectus or any supplement thereto pursuant to Rule 424(b) or
otherwise has been made in the manner and within the time period
required thereby; and, to the knowledge of such counsel after due
inquiry, no stop or other order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the
1933 Act or under the securities laws of any jurisdiction.
(ii) The Registration Statement and the Prospectus, and each
amendment or supplement thereto (including any document incorporated by
reference into the Prospectus), as of their respective effective or
issue date, comply as to form and appear on their face to be
appropriately responsive in all material respects to the requirements
of Form S-3 under the 1933 Act and the applicable 1933 Act Rules and
Regulations (except that such counsel need express no opinion as to the
financial statements or other financial data); the Company and the
Trust are entitled to use Form S-3 for the registration of the Offered
Securities; and, as of the date they were filed with the SEC, the
documents incorporated by reference in the Prospectus appear on their
face to comply as to form and be appropriately responsive in all
material respects with the requirements of the 1934 Act and the
applicable 1934 Act Rules and Regulations (except that such counsel
need express no opinion as to the financial statements or other
financial data).
22
(iii) The information in the Prospectus under "Risk Factors,"
"Local Financial Capital Trust I," "Description of Trust Preferred
Securities," "Description of Junior Subordinated Debentures,"
"Description of Guarantees," "Relationship Among the Trust Preferred
Securities, the Junior Subordinated Debentures and the Guarantee,"
"Certain Federal Income Tax Consequences," "ERISA Considerations" and
the information contained in the Registration Statement pursuant to
Item 15, to the extent that such information constitutes summaries of
statutes, laws, ordinances, rules, regulations, legal or governmental
proceedings, contracts and other documents, the Company's Restated
Certificate of Incorporation or by-laws or the Declaration, has been
reviewed by such counsel and is accurate and fairly presents the
information required to be shown under the 1933 Act and the 1933 Act
Rules and Regulations.
(iv) The Underwriting Agreement has been duly authorized,
executed and delivered each of the Company and the Trust and
constitutes a valid and legally binding obligation of the Company and
the Trust enforceable against the Company and the Trust in accordance
with its terms, except to the extent that enforceability may be limited
by the Bankruptcy Exceptions and except to the extent that the
enforceability of the indemnification and contribution provisions of
Section 7 of the Underwriting Agreement may be limited by public policy
considerations as expressed in the 1933 Act as construed by courts of
competent jurisdiction.
(v) The Company and its subsidiaries have been duly organized
and are validly existing as corporations in good standing under the
laws of the states or other jurisdictions in which they are
incorporated, with full power and authority (corporate and other) to
own, lease and operate their properties and conduct their businesses as
described in the Prospectus and, with respect to the Company, to
execute and deliver, and perform the Company's obligations under, this
Agreement, the Indenture, the Guarantee Agreements, the Guarantees and
the Subordinated Debentures; the Company and its subsidiaries are duly
qualified to do business as foreign corporations in good standing in
each state or other jurisdiction in which their ownership or leasing of
property or conduct of business legally requires such qualification,
except where the failure to be so qualified, individually or in the
aggregate, would not have a Material Adverse Effect.
(vi) The entities listed on Schedule III are the only
subsidiaries, direct or indirect, of the Company. The Company owns,
directly or indirectly through other subsidiaries, the percentage
indicated on Schedule III of the outstanding shares of capital stock or
other securities evidencing equity ownership of such subsidiaries, and
all such securities have been duly authorized and validly issued, are
fully paid and non-assessable and, to the knowledge of such counsel,
are owned by the Company free and clear of any mortgage, pledge, lien,
encumbrance, charge or adverse claim and are not the subject of any
agreement or understanding with any person, and were not issued in
violation of any preemptive or similar rights; and, to the knowledge of
such counsel, except as disclosed in the Prospectus, there are no
outstanding subscriptions, rights, warrants, options, calls,
23
convertible securities, commitments of sale, or instruments related to
or entitling any person to purchase or otherwise acquire any shares of,
or any security convertible into or exercisable or exchangeable for,
any such shares of capital stock or other ownership interest of any of
such subsidiaries.
(vii) The execution, delivery and performance of the
Underwriting Agreement, the Declaration, the Indenture, the Trust
Securities, the Subordinated Debentures, the Guarantees and the
Guarantee Agreements, the consummation by the Company and the Trust of
the transactions contemplated thereby and in the Registration Statement
(including the issuance and sale of the Offered Securities), the filing
of the Certificate of Trust with the Secretary of State of the State of
Delaware, and compliance by the Company and the Trust with the terms of
the foregoing do not and will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any properties or assets of the Company, any
of its subsidiaries or the Trust under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to such
counsel after due inquiry to which the Company, any of its subsidiaries
or the Trust is a party or by which the Company, any of its
subsidiaries or the Trust is bound or to which any of the properties or
assets of the Company, any of its subsidiaries or the Trust is subject,
except to such extent as, individually or in the aggregate, does not
have a Material Adverse Effect, nor will such action result in any
violation of the provisions of the charter or bylaws of the Company or
any of its subsidiaries, the Certificate of Trust or the Declaration or
any statute, rule, regulation or other law, or any order or judgment
known to such counsel after due inquiry, of any court or governmental
agency or body having jurisdiction over the Company, any of its
subsidiaries or the Trust or any of their properties.
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body is required in connection with the execution, delivery
and performance by the Offerors of this Agreement, the Declaration, the
Indenture, the Guarantee Agreements, the Guarantees, the Subordinated
Debentures or the Trust Securities and the issuance and sale of the
Offered Securities or the consummation of the transactions contemplated
by any of the foregoing, except such as may be required under the 1933
Act or the 1933 Act Rules and Regulations and have been obtained, or as
may be required by the NASD or under state securities or blue sky laws
in connection with the purchase and distribution of the Trust Preferred
Securities by the Underwriters. Each of the Company and its
subsidiaries has filed all Notices pursuant to, and has obtained all
Approvals required to be obtained under, and has otherwise complied
with all requirements of, all applicable laws and regulations in
connection with the issuance and sale of the Offered Securities, in
each case with such exceptions, individually or in the aggregate, as
would not affect the validity of the Offered Securities, their issuance
or the transactions contemplated by any of the foregoing or have a
Material Adverse Effect; and no such Notices or Approvals are required
to be filed or obtained by
24
the Company or any of its subsidiaries in connection with the
execution, delivery and performance of this Agreement, the Declaration,
the Indenture, the Guarantee Agreements, the Guarantees, the
Subordinated Debentures or the Trust Securities, the issuance and sale
of the Offered Securities or the transactions contemplated by any of
the foregoing, in each case with such exceptions, individually or in
the aggregate, as would not affect the validity of the Offered
Securities, their issuance or the transactions contemplated hereby or
have a Material Adverse Effect.
(ix) To the knowledge of such counsel after due inquiry and
other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and,
to the knowledge of such counsel after due inquiry, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others.
(x) The Company has duly and validly authorized capital stock
as set forth under the caption "Capitalization" in the Prospectus; all
outstanding shares of Common Stock of the Company have been duly
authorized, validly issued, and are fully paid and non-assessable.
(xi) The Declaration has been duly authorized, executed and
delivered by the Company and the Administrative Trustees, and
constitutes a valid and binding obligation of the Company and each of
the Administrative Trustees, enforceable against the Company and each
of the Administrative Trustees in accordance with its terms, except as
enforcement thereof may be limited by the Bankruptcy Exceptions; the
Declaration conforms as to legal matters to the description thereof in
the Prospectus; and the Declaration has been duly qualified under the
0000 Xxx.
(xii) The Trust Common Securities have been duly authorized
and, when issued, delivered and paid for in accordance with the
Declaration and as described in the Prospectus, will be validly issued,
fully paid and non-assessable undivided beneficial interests in the
assets of the Trust; the issuance of the Trust Common Securities is not
subject to preemptive or other similar rights; the Trust Common
Securities conform as to legal matters to the description thereof in
the Prospectus; and, to the best of such counsel's knowledge, the Trust
Common Securities are directly owned by the Company free and clear of
any lien, encumbrance, equity or claim.
(xiii) The Trust Preferred Securities have been duly
authorized, and when issued, delivered and paid for by the Underwriters
pursuant to the Underwriting Agreement, will be validly issued, fully
paid and non-assessable undivided beneficial
25
interests in the assets of the Trust; the issuance of the Trust
Preferred Securities is not subject to preemptive or other similar
rights; the Trust Preferred Securities conform as to legal matters to
the descriptions thereof in the Prospectus.
(xiv) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery thereof by the Debt Trustee, constitutes a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions; the Indenture has
been duly qualified under the 1939 Act; and the Indenture conforms as
to legal matters to the description thereof in the Prospectus.
(xv) The Subordinated Debentures have been duly authorized,
executed and delivered by the Company, and, when authenticated by the
Debt Trustee in the manner provided in the Indenture and delivered
against payment therefor, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof may be
limited by the Bankruptcy Exceptions; the Subordinated Debentures
conform as to legal matters to the description thereof in the
Prospectus; the Subordinated Debentures are in the form established
pursuant to the Indenture; and the Subordinated Debentures are entitled
to the benefits of the Indenture.
(xvi) Each of the Guarantee Agreements has been duly
authorized, executed and delivered by the Company, and, assuming the
Preferred Securities Guarantee Agreement
is duly authorized, executed and delivered by the Guarantee Trustee,
each of the Guarantee Agreements constitutes a valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions: the Preferred
Securities Guarantee Agreement has been duly qualified under the 1939
Act; and the Guarantees and the Guarantee Agreements conform as to
legal matters to the descriptions thereof in the Prospectus.
(xvii) To the knowledge of such counsel after due inquiry, the
Company and each of its subsidiaries hold all licenses, certificates,
permits and approvals from all state, federal and other regulatory
authorities, and have satisfied in all material respects the
requirements imposed by regulatory bodies, administrative agencies or
other governmental bodies, agencies or officials, that are required for
the Company and its subsidiaries lawfully to own, lease and operate its
properties and conduct its business as described in the Prospectus,
and, to the knowledge of such counsel after due inquiry, each of the
Company and its subsidiaries is conducting its business in compliance
in all material respects with all of the laws, rules and regulations of
each jurisdiction in which it conducts its business.
26
(xviii) Neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in default
or violation with respect to its charter or by-laws. The Trust is not,
and with the giving of notice or lapse of time or both would not be, in
default or violation with respect to the Declaration. Neither the
Company nor any of its subsidiaries is, or with the giving of notice or
lapse of time or both would be, in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets of
the Company or any of its subsidiaries is subject, or in violation of
any statutes, laws, ordinances or governmental rules or regulations or
any orders or decrees to which it is subject, including, without
limitation, Section 13 of the 1934 Act, and neither the Company nor any
of its subsidiaries has failed to obtain any other license, permit,
franchise, easement, consent, or other governmental authorization
necessary to the ownership, leasing and operation of its properties or
to the conduct of its business, which default, violation or failure,
individually or in the aggregate, would have a Material Adverse Effect.
(xix) To the knowledge of such counsel after due inquiry, (A)
there are no material (individually or in the aggregate) legal,
governmental or regulatory proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or of which the
business or properties of the Company or any of its subsidiaries is the
subject which are not disclosed in the Registration Statement and
Prospectus; (B) there are no contracts or documents of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
which are not described or filed as required; and (C) there are no
statutes, ordinances, laws, rules or regulations required to be
described in the Registration Statement or Prospectus which are not
described as required.
(xx) Neither the Company nor the Trust is, and after giving
effect to the issuance and sale of the Trust Securities and the
issuance of the Subordinated Debentures as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus, neither the Company nor the Trust will be, an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the 1940 Act.
(xxi) Each of the Company and each of its subsidiaries has
statutory authority, franchises, and consents free from burdensome
restrictions and adequate for the conduct of the business in which it
is engaged as of the date hereof, as described in the Prospectus,
except to the extent that the absence of such statutory authority or
the failure to obtain such franchises or consents would not have a
Material Adverse Effect.
27
(xxii) To the knowledge of such counsel after due inquiry and
except as disclosed in the Prospectus, no holder of any security of the
Company has any right to require registration of shares of common stock
or any other security of the Company because of the filing of the
Registration Statement or the consummation of the transactions
contemplated hereby and, except as disclosed in the Prospectus, no
person has the right to require registration under the 1933 Act of any
shares of Common Stock or other securities of the Company.
Such opinion shall also include such federal tax, ERISA and other
related matters of the type ordinarily included in similar transactions or
reasonably requested by counsel for the Underwriters.
Such counsel shall confirm that during the preparation of the
Registration Statement and Prospectus, such counsel participated in conferences
with the Representatives and their counsel and with officers and representatives
of the Company and its independent accountants, at which conferences the
contents of the Registration Statement and the Prospectus (including all
documents filed under the 1934 Act and deemed incorporated by reference therein)
were discussed, reviewed and revised. On the basis of the information which was
developed in the course thereof, considered in light of such counsel's
understanding of applicable law and the experience gained by such counsel
through their practice thereunder, without such counsel assuming responsibility
for the accuracy and completeness of such statements except to the extent
expressly provided above, such counsel shall confirm that nothing came to their
attention that would lead them to believe that either the Registration Statement
(including any document filed under the 1934 Act and deemed incorporated by
reference therein), as of the Effective Date, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or the Prospectus or any amendment
or supplement thereto (including any document filed under the 1934 Act and
deemed incorporated by reference therein) as of its respective issue date and as
of the Closing Date, or, if applicable, the Option Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (other than the financial statements or other financial data as to
which such counsel need express no opinion).
In rendering the foregoing opinion, such counsel may rely, as to all
matters of fact, upon certificates and written statements of the executive
officers of, and accountants for, the Company, provided, in either case, that
such counsel shall state in their opinion that they and the Underwriters are
justified in relying thereon.
(d) On the Closing Date (and, if applicable, the Option Closing Date),
you shall have received the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special
Delaware counsel for the Offerors, addressed to you, dated the Closing Date
(and, if applicable, the Option Closing Date) and in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
28
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware 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.
(ii) Under the Delaware Act and the Declaration, the Trust has
the trust power and authority to (A) own property and conduct its
business as described in the Prospectus, (B) execute and deliver, and
to perform its obligations under, the Underwriting Agreement, (C) to
issue and perform its obligations under the Trust Securities and (D) to
purchase and hold the Subordinated Debentures.
(iii) Under the Delaware Act and the Declaration, 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.
(iv) The Declaration 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, subject, as
to enforcement, to the effect upon the Declaration of (A) applicable
bankruptcy, insolvency, reorganization, liquidation, moratorium,
receivership, fraudulent conveyance or transfer and other similar laws
relating to or affecting the rights and remedies of creditors
generally, (B) principles of equity, including applicable law relating
to fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (C) the effect of applicable
public policy on the enforceability of provisions relating to
indemnification or contribution.
(v) The Trust Preferred Securities have been duly authorized
by the Declaration, and are duly and validly issued, fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust and are entitled to the benefits of the Declaration; the holders
of the Trust Preferred Securities, 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; provided that such
counsel may note that the holders of the Trust Preferred Securities
will be required to make certain payments described in the Declaration;
and, under the Delaware Act, the certificate attached to the
Declaration as Exhibit A-1 is an appropriate form of certificate to
evidence ownership of the Trust Preferred Securities.
(vi) The Trust Common Securities have been duly authorized by
the Declaration and are duly and validly issued and fully paid
undivided beneficial interests in the assets of the Trust.
29
(vii) Under the Delaware Act and the Declaration, the issuance
of the Trust Securities is not subject to preemptive or other similar
rights.
(viii) The issuance and sale by the Trust of the Trust
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 thereby and the compliance by the Trust with
its obligations thereunder do not violate (i) any of the provisions of
the Certificate of Trust or the Declaration or (ii) any applicable
Delaware law, rule or regulation.
(ix) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any Delaware
court or any Delaware governmental authority or Delaware agency is
required to be obtained by the Trust solely in connection with the due
authorization, execution or delivery of the Underwriting Agreement or
for the performance of the transactions contemplated under the
Prospectus, the Underwriting Agreement, the Declaration, the Trust
Preferred Securities or the Trust Common Securities.
In rendering the foregoing opinion, such counsel may rely, as to all
matters of fact, upon certificates and written statements of the executive
officers of, and accountants for, the Company, provided, in either case, that
such counsel shall state in their opinion that they and the Underwriters are
justified in relying thereon.
(e) You shall have received on the Closing Date (and, if applicable,
the Option Closing Date) from Xxxxx, Xxxxxx & Xxxxxx, counsel for the Property
Trustee, the Debt Trustee and the Guarantee Trustee, addressed to you, dated the
Closing Date (and, if applicable, the Option Closing Date) and in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Bank of New York is a _____________, duly organized,
validly existing and in good standing under the laws of the State of
_______________, with all necessary power and authority to execute and
deliver, and to carry out and perform its obligations under the terms
of the Declaration, the Preferred Securities Guarantee Agreement and
the Indenture.
(ii) The execution, delivery and performance by the Property
Trustee of the Declaration, the execution, delivery and performance by
the Guarantee Trustee of the Preferred Securities Guarantee Agreement
and the execution, delivery and performance by the Debt Trustee of the
Indenture have been duly authorized by all necessary corporate action
on the part of the Property Trustee, the Guarantee Trustee and the Debt
Trustee, respectively. The Declaration, the Preferred Securities
30
Guarantee Agreement and the Indenture have been duly executed and
delivered by the Property Trustee, the Guarantee Trustee and the Debt
Trustee, respectively, and the Declaration, the Preferred Securities
Guarantee Agreement and the Indenture constitute legal, valid and
binding obligations of the Property Trustee, the Guarantee Trustee, and
the Debt Trustee, respectively, enforceable against the Property
Trustee, the Guarantee Trustee and the Debt Trustee, respectively, in
accordance with their terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions.
(iii) The execution, delivery and performance of the
Declaration, the Preferred Securities Guarantee Agreement and the
Indenture by the Property Trustee, the Guarantee Trustee and the Debt
Trustee, respectively, do not conflict with or constitute a breach of
the charter or bylaws of the Property Trustee, the Guarantee Trustee or
the Debt Trustee, respectively.
(iv) No consent, approval or authorization of, or registration
with or notice to, any federal or state banking authority is required
for the execution, delivery or performance by the Property Trustee, the
Guarantee Trustee or the Debt Trustee of the Declaration, the Preferred
Securities Guarantee Agreement or the Indenture, respectively.
(v) The Statement of Eligibility on Form T-1 with respect to
each of the Property Trustee, the Debt Trustee and the Guarantee
Trustee filed with the SEC as part of the Registration Statement
complied as to form in all material respects with the requirements of
the 1939 Act and the 1939 Act Rules and Regulations.
In rendering the foregoing opinion, such counsel may rely, as to all
matters of fact, upon certificates and written statements of the executive
officers of, and accountants for, the Company, provided, in either case, that
such counsel shall state in their opinion that they and the Underwriters are
justified in relying thereon.
(f) You shall have received on the Closing Date (and, if applicable,
the Option Closing Date) from Xxxxx, Xxxxxx & Xxxxxx, counsel for the Delaware
Trustee, addressed to you, dated the Closing Date (and, if applicable, the
Option Closing Date) and in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Bank of New York (Delaware) is a _______________, with
its principal place of business in the State of Delaware, and is duly
incorporated, validly existing and in good standing under the laws of
the United States with all necessary power and authority to execute and
deliver, and to carry out and perform its obligations under, the terms
of the Declaration.
(ii) The execution, delivery and performance by the Delaware
Trustee of the Declaration have been duly authorized by all necessary
corporate action on the part of the Delaware Trustee. The Declaration
has been duly executed and delivered by the Delaware Trustee and
constitutes the legal, valid and binding obligation of the Delaware
31
Trustee, enforceable against the Delaware Trustee in accordance with
its terms, except to the extent that enforcement thereof may be limited
by the Bankruptcy Exceptions.
(iii) The execution, delivery and performance of the
Declaration by the Delaware Trustee do not conflict with or constitute
a breach of the charter or bylaws of the Delaware Trustee.
(iv) No consent, approval or authorization of, or registration
with or notice to, any federal or Delaware banking authority is
required for the execution, delivery or performance of the Declaration
by the Delaware Trustee, other than the filing of the Certificate of
Trust with the Delaware Secretary of State.
In rendering the foregoing opinion, such counsel may rely, as to all
matters of fact, upon certificates and written statements of the executive
officers of, and accountants for, the Company, provided, in either case, that
such counsel shall state in their opinion that they and the Underwriters are
justified in relying thereon.
(g) You shall have received on the Closing Date (and, if applicable,
the Option Closing Date), from Xxxxx, Xxxxx & Xxxxx, counsel to the
Underwriters, such opinion or opinions, dated the Closing Date (and, if
applicable, the Option Closing Date) with respect to such matters as you may
reasonably require; and the Company and the Trust shall have furnished to such
counsel such documents as they reasonably request for the purposes of enabling
them to review or pass on the matters referred to in this Section 6 and in order
to evidence the accuracy, completeness and satisfaction of the representations,
warranties and conditions herein contained.
(h) You shall have received at or prior to the Closing Date from Xxxxx,
Xxxxx & Xxxxx a memorandum or memoranda, in form and substance satisfactory to
you, with respect to the qualification for offering and sale by the Underwriters
of the Offered Securities under state securities or Blue Sky laws of such
jurisdictions as the Underwriters may have designated to the Company.
(i) On the business day immediately preceding the date of this
Agreement and on the Closing Date (and, if applicable, the Option Closing Date),
you shall have received from KPMG, a letter or letters, dated the date of this
Agreement and the Closing Date (and, if applicable, the Option Closing Date),
respectively, in form and substance satisfactory to you, confirming that they
are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the published Rules and Regulations, and stating to
the effect set forth in Schedule IV hereto.
(j) Except as contemplated in the Prospectus, (i) neither the Company
nor any of its subsidiaries shall have sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
32
dispute or court or governmental action, order or decree; and (ii) subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its subsidiaries
shall have incurred any liability or obligation, direct or contingent, or
entered into any transactions, and there shall not have been any change in the
capital stock or short-term or long-term debt of the Company and its
subsidiaries or any change, or any development involving or which might
reasonably be expected to involve a prospective change in the condition
(financial or other), net worth, business, affairs, management, prospects,
results of operations or cash flow of the Company or its subsidiaries, the
effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material or adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Offered Securities being
delivered on such Closing Date (and, if applicable, the Option Closing Date) on
the terms and in the manner contemplated in the Prospectus.
(k) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by the SEC
for purposes of Rule 436(g)(2) under the 1933 Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities.
(l) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange or the American Stock Exchange or The Nasdaq National Market
or the establishing on such exchanges or market by the SEC or by such exchanges
or markets of minimum or maximum prices which are not in force and effect on the
date hereof; (ii) a suspension or material limitation in trading in the
Company's securities (including, without limitation, the Trust Preferred
Securities) on The Nasdaq National Market or the establishing on such market by
the SEC or by such market of minimum or maximum prices which are not in force
and effect on the date hereof; (iii) a general moratorium on commercial banking
activities declared by either federal or any state authorities; (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, which in your
judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Offered Securities in the manner contemplated in
the Prospectus; or (v) any calamity or crisis, change in national,
international or world affairs, act of God, change in the international or
domestic markets, or change in the existing financial, political or economic
conditions in the United States or elsewhere, which in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Offered Securities in the manner contemplated in the Prospectus.
(m) You shall have received certificates, dated the Closing Date (and,
if applicable, the Option Closing Date) and signed by the President and the
Chief Financial Officer of the Company, in their capacities as such, stating
that:
(i) the condition set forth in Section 6(a) has been fully
satisfied;
33
(ii) they have carefully examined the Registration Statement
and the Prospectus as amended or supplemented and all documents
incorporated by reference therein and nothing has come to their
attention that would lead them to believe that either the Registration
Statement or the Prospectus, or any amendment or supplement thereto or
any documents incorporated by reference therein as of their respective
effective, issue or filing dates, contained, and the Prospectus as
amended or supplemented and all documents incorporated by reference
therein when read together with the documents incorporated by reference
therein, at such Closing Date, contains any untrue statement of a
material fact, or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading;
(iii) since the Effective Date, there has occurred no event
required to be set forth in an amendment or supplement to the
Registration Statement or the Prospectus which has not been so set
forth and there has been no document required to be filed under the
1934 Act and the 1934 Act Rules and Regulations that upon such filing
would be deemed to be incorporated by reference into the Prospectus
that has not been so filed;
(iv) all representations and warranties made herein by the
Company and the Trust are true and correct at such Closing Date, with
the same effect as if made on and as of such Closing Date, and all
agreements herein to be performed or complied with by the Company or
the Trust on or prior to such Closing Date have been duly performed and
complied with by the Company or the Trust, as the case may be;
(v) neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree;
(vi) except as disclosed in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its
subsidiaries has incurred any liabilities or obligations, direct or
contingent, other than in the ordinary course of business, or entered
into any transactions not in the ordinary course of business, which in
either case are material to the Company or such subsidiary; and there
has not been any change in the capital stock or material increase in
the short-term debt or long-term debt of the Company or any of its
subsidiaries or any material adverse change or any development
involving or which may reasonably be expected to involve a prospective
material adverse change, in the condition (financial or other), net
worth, business, affairs, management, prospects, results of operations
or cash flow of the Company and its subsidiaries taken as a whole; and
there
34
has been no dividend or distribution of any kind, paid or made by the
Company on any class of its capital stock;
(vii) there has not been any change or decrease specified in
paragraph [5(a)] of the letter or letters delivered to the Underwriters
referred to in Section 6(i) above, except those changes and decreases
that are disclosed therein; and
(viii) covering such other matters as you may reasonably
request.
(n) Each of the Company and the Trust shall not have failed, refused,
or been unable, at or prior to the Closing Date (and, if applicable, the Option
Closing Date) to have performed any agreement on their part to be performed or
any of the conditions herein contained and required to be performed or satisfied
by them at or prior to such Closing Date.
(o) The Trust Preferred Securities shall have been approved for
quotation upon official notice of issuance on The Nasdaq National Market.
(p) If the Registration Statement or an offering of Offered Securities
is required to be and has been filed with the NASD for review, the NASD shall
not have raised any objection that remains unresolved on the Closing Date with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(q) Each of the Company and the Trust shall have furnished to you at
the Closing Date (and, if applicable, the Option Closing Date) such further
information, opinions, certificates, letters and documents as you may have
reasonably requested.
The Declaration, the Preferred Securities Guarantee, the Preferred
Securities Guarantee Agreement and the Indenture shall have been executed and
delivered, in each case in a form reasonably satisfactory to the Underwriters.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and to Xxxxx, Xxxxx & Xxxxx, counsel for the several
Underwriters. The Company and the Trust will furnish you with such signed and
conformed copies of such opinions, certificates, letters and documents as you
may request.
If any of the conditions specified above in this Section 6 shall not
have been satisfied at or prior to the Closing Date (and, if applicable, the
Option Closing Date) or waived by you in writing, this Agreement may be
terminated by you on notice to the Company.
7. Indemnification and Contribution. (a) The Offerors, jointly and
severally, will indemnify and hold harmless each Underwriter for and against any
losses, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the 1933 Act or
35
otherwise, insofar as such losses, damages or liabilities (or actions or claims
in respect thereof) arise out of or are based upon (i) an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any other prospectus
relating to the Offered Securities, or any amendment or supplement thereto, or
in any blue sky application or other document executed by the Company or based
on any information furnished in writing by the Company, filed in any state or
other jurisdiction in order to qualify any or all of the Offered Securities
under the securities laws thereof (the "Blue Sky Application"), or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses incurred by such
Underwriter in connection with investigating, preparing, pursuing or defending
against or appearing as a third party witness in connection with any such loss,
damage, liability or action or claim, including, without limitation, any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to the
indemnified party, as such expenses are incurred (including such losses,
damages, liabilities or expenses to the extent of the aggregate amount paid in
settlement of any such action or claim, provided that (subject to Section 7(d)
hereof) any such settlement is effected with the written consent of the
Company).
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company and the Trust for and against any losses, damages or
liabilities to which the Company or the Trust may become subject, under the 1933
Act or otherwise, insofar as such losses, damages or liabilities (or actions or
claims in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any other prospectus
relating to the Offered Securities, or any amendment or supplement thereto, or
any Blue Sky Application, or arise out of are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any other prospectus
relating to the Offered Securities, or any such amendment or supplement, or any
Blue Sky Application, in reliance upon and in conformity with written
information relating to the Underwriter furnished to the Company by you or by
any Underwriter through you, expressly for use in the preparation thereof (as
provided in Section 14 hereof), and will reimburse the Company or the Trust for
any legal or other expenses incurred by the Company or the Trust, as the case
may be, in connection with investigating or defending any such action or claim
as such expenses are incurred (including such losses, damages, liabilities or
expenses to the extent of the aggregate amount paid in settlement of any such
action or claim, provided that (subject to Section 7(d) hereof) any such
settlement is effected with the written consent of the Underwriters).
(c) Promptly after receipt by an indemnified party under Section 7(a),
7(b) or 7(c) hereof of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under Section 7(a), 7(b) or 7(c)
36
hereof, notify each such indemnifying party in writing of the commencement
thereof, but the failure so to notify such indemnifying party shall not relieve
such indemnifying party from any liability except to the extent that it has been
prejudiced in any material respect by such failure or from any liability that it
may have to any such indemnified party otherwise than under Section 7(a), 7(b)
or 7(c) hereof. In case any such action shall be brought against any such
indemnified party and it shall notify each indemnifying party of the
commencement thereof, each such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party under Section 7(a), 7(b) or 7(c) hereof similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of such indemnified
party, be counsel to such indemnifying party), and, after notice from such
indemnifying party to such indemnified party of its election so to assume the
defense thereof, such indemnifying party shall not be liable to such indemnified
party under Section 7(a), 7(b) or 7(c) hereof for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. The indemnified party shall have the right to employ its
own counsel in any such action, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the employment of counsel
by such indemnified party at the expense of the indemnifying party has been
authorized by the indemnifying party, (ii) the indemnified party shall have been
advised by such counsel that there may be a conflict of interest between the
indemnifying party and the indemnified party in the conduct of the defense, or
certain aspects of the defense, of such action (in which case the indemnifying
party shall not have the right to direct the defense of such action with respect
to those matters or aspects of the defense on which a conflict exists or may
exist on behalf of the indemnified party) or (iii) the indemnifying party shall
not in fact have employed counsel reasonably satisfactory to such indemnified
party to assume the defense of such action, in any of which events such fees and
expenses to the extent applicable shall be borne, and shall be paid as incurred,
by the indemnifying party. If at any time such indemnified party shall have
requested such indemnifying party under Section 7(a), 7(b) or 7(c) hereof to
reimburse such indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a), 7(b) or 7(c) hereof effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of such request for reimbursement, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request for reimbursement prior to the date of such
settlement. No such indemnifying party shall, without the written consent of
such indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not such indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (A)
includes an unconditional release of such indemnified party from all liability
arising out of such action or claim and (B) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any such indemnified party. In no event shall such indemnifying parties be
liable for
37
the fees and expenses of more than one counsel, including any local counsel, for
all such indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to indemnify or hold harmless an indemnified
party under Section 7(a), 7(b) or 7(c) hereof in respect of any losses, damages
or liabilities (or actions or claims in respect thereof) referred to therein,
then each indemnifying party under Section 7(a), 7(b) or 7(c) hereof shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, damages or liabilities (or actions or claims in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Trust, on the one hand, and the Underwriters, on the
other hand, from the offering of the Offered Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under Section 7(d) hereof and such indemnifying party was prejudiced in a
material respect by such failure, then each such indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault, as applicable, of the Company and the Trust, on the one
hand, and the Underwriters, on the other hand, in connection with the statements
or omissions that resulted in such losses, damages or liabilities (or actions or
claims in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by, as applicable, the Company
and the Trust, on the one hand, and the Underwriters, on the other hand, shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company and the Trust bear
to the total underwriting discounts and commissions received by the
Underwriters. The relative fault, as applicable, of the Company or the Trust, on
the one hand, and the Underwriters, 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 Company or the Trust, on the one hand, or
the Underwriters, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Trust and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7(e)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to above in this Section
7(e). The amount paid or payable by such an indemnified party as a result of the
losses, damages or liabilities (or actions or claims in respect thereof)
referred to above in this Section 7(e) shall be deemed to include any legal or
other expenses incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(e), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of
38
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters in this Section 7(e) to contribute are several in proportion to
their respective underwriting obligations with respect to the Offered Securities
and not joint.
(e) The obligations of the Company and the Trust under this Section 7
shall be in addition to any liability that the Company and the Trust may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, director, employee, agent or other representative and to each person,
if any, who controls any Underwriter within the meaning of the 1933 Act; and the
obligations of the Underwriters under this Section 7 shall be in addition to any
liability that the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
and each Trustee of the Trust who signed the Registration Statement and to each
person, if any, who controls the Company within the meaning of the 1933 Act and
to each person, if any, who controls the Trust within the meaning of the 1933
Act.
(f) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof, including, without limitation, the
provisions of this Section 7, and are fully informed regarding such provisions.
They further acknowledge that the provisions of this Section 7 fairly allocate
the risks in light of the ability of the parties to investigate the Company and
its business in order to assure that adequate disclosure is made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, and any
supplement or amendment thereof, as required by the 1933 Act.
8. Representations and Agreements to Survive Delivery. The respective
representations, warranties, agreements and statements of the Company and the
Trust and the Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain operative
and in full force and effect regardless of any investigation (or any statement
as to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, the Company or any of its officers,
directors or any controlling persons, or the Trust or any of its Trustees, and
shall survive delivery of and payment for the Offered Securities hereunder.
9. Substitution of Underwriters. (a) If any Underwriter shall default
in its obligation to purchase the Offered Securities which it has agreed to
purchase hereunder, you may in your discretion arrange for you or another party
or other parties to purchase such Offered Securities on the terms contained
herein. If within thirty six hours after such default by any Underwriter you do
not arrange for the purchase of such Offered Securities, then the Company and
the Trust shall be entitled to a further period of thirty six hours within which
to procure another party or parties reasonably satisfactory to you to purchase
such Offered Securities on such terms. In the event that, within the respective
prescribed periods, you notify the Company and the Trust that you have so
arranged for the purchase of such Offered Securities, or the
39
Company and the Trust notify you that they have so arranged for the purchase of
such Offered Securities, you or the Company and the Trust shall have the right
to postpone the Closing Date for a period of not more than seven days, in order
to effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company and the Trust agree to file promptly any amendments to the Registration
Statement or the Prospectus which in your opinion may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any persons
substituted under this Section 9 with like effect as if such person had
originally been a party to this Agreement with respect to such Offered
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Offered Securities of a defaulting Underwriter or Underwriters made by you and
the Company and the Trust as provided in subsection (a) above, the aggregate
number of Offered Securities which remains unpurchased does not exceed
one-eleventh of the total Offered Securities to be sold on the Closing Date,
then the Company and the Trust shall have the right to require each
nondefaulting Underwriter to purchase the Offered Securities which such
Underwriter agreed to purchase hereunder and, in addition, to require each
nondefaulting Underwriter to purchase its pro rata share (based on the number of
Offered Securities which such Underwriter agreed to purchase hereunder) of the
Offered Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Offered Securities of a defaulting Underwriter or Underwriters made by you and
the Company and the Trust as provided in subsection (a) above, the number of
Offered Securities which remains unpurchased exceeds one-eleventh of the total
Offered Securities to be sold on the Closing Date, or if the Company and the
Trust shall not exercise the right described in subsection (b) above to require
the nondefaulting Underwriters to purchase Offered Securities of the defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Option
Closing Date, the obligations of the Underwriters to purchase and of the Company
and the Trust to sell the Option Offered Securities) shall thereupon terminate,
without liability on the part of any nondefaulting Underwriter or the Company
and the Trust except for the expenses to be borne by the Company and the
Underwriters as provided in Section 11 hereof and the indemnity and contribution
agreements in Section 7 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. Effective Date and Termination. (a) This Agreement shall become
effective at 1:00 p.m., New York time, on the first business day following the
effective date of the Registration Statement, or at such earlier time after the
effective date of the Registration Statement as you in your discretion shall
first release the Offered Securities for offering to the public; provided,
however, that the provisions of Section 7 and 11 shall at all times be
effective. For the purposes of this Section 10(a), the Offered Securities shall
be deemed to have been released to the public upon release by you of the
publication of a newspaper advertisement
40
relating to the Offered Securities or upon release of telegrams, facsimile
transmissions or letters offering the Offered Securities for sale to securities
dealers, whichever shall first occur.
(b) This Agreement may be terminated by you at any time before it
becomes effective in accordance with Section 10(a) by notice to the Company;
provided, however, that the provisions of this Section 10 and of Section 7 and
Section 11 hereof shall at all times be effective. In the event of any
termination of this Agreement pursuant to Section 9 or this Section 10(b)
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Section 7 or Section 11 hereof.
(c) This Agreement may be terminated by you at any time at or prior to
the Closing Date by notice to the Company if any condition specified in Section
6 hereof shall not have been satisfied on or prior to the Closing Date. Any such
termination shall be without liability of any party to any other party except as
provided in Sections 7 and 11 hereof.
(d) This Agreement also may be terminated by you, by notice to the
Company, as to any obligation of the Underwriters to purchase the Option Trust
Preferred Securities, if any condition specified in Section 6 hereof shall not
have been satisfied at or prior to the Option Closing Date or as provided in
Section 9 of this Agreement.
If you terminate this Agreement as provided in Sections 10(b), 10(c) or
10(d), you shall notify the Company by telephone or telegram, confirmed by
letter.
11. Costs and Expenses. The Company, whether or not the transactions
contemplated hereby are consummated or this Agreement is prevented from becoming
effective under Section 10 hereof or is terminated, will bear and pay the costs
and expenses incident to the registration of the Offered Securities and public
offering thereof, including, without limitation, (a) all expenses (including
stock transfer taxes) incurred in connection with the delivery to the several
Underwriters of the Offered Securities, the filing fees of the SEC, the fees and
expenses of the Company's and the Trust's counsel and accountants and the fees
and expenses of counsel for the Company and the Trust, (b) the preparation,
printing, filing, delivery and shipping of the Registration Statement, each
Preliminary Prospectus, the Prospectus and any amendments or supplements thereto
(except as otherwise expressly provided in Section 5(d) hereof) and the
printing, delivery and shipping of this Agreement, other underwriting documents,
including the Agreement Among Underwriters, the Selected Dealer Agreement,
Underwriters' Questionnaires and Powers of Attorney and Blue Sky Memoranda, the
Indenture, the Declaration, the Trust Securities, the Subordinated Debentures,
the Guarantee Agreements, the Guarantees and any instruments or documents
related to any of the foregoing, (c) the furnishing of copies of such documents
(except as otherwise expressly provided in Section 5(d) hereof) to the
Underwriters, (d) the registration or qualification of the Offered Securities
for offering and sale under the securities laws of the various states and other
jurisdictions, including the fees and disbursements of counsel to the
Underwriters relating to such registration or qualification and in connection
with preparing any Blue Sky Memoranda or related analysis, (e) the filing fees
of the NASD (if
41
any) and fees and disbursements of counsel to the Underwriters relating to any
review of the offering by the NASD, (f) all printing and engraving costs related
to preparation of the certificates for the Offered Securities, including
transfer agent and registrar fees, (g) all fees and expenses relating to the
authorization of the Offered Securities for quotation on The Nasdaq National
Market, (h) all travel expenses, including air fare and accommodation expenses,
of representatives of the Company in connection with the offering of the Offered
Securities, (i) the fees and expenses of any transfer agent or registrar for the
Offered Securities, (j) the fees and expenses of the Debt Trustee, the Property
Trustee, the Delaware Trustee and the Guarantee Trustee, including the fees and
disbursements of their respective counsel, (k) the cost of qualifying the
Offered Securities with The Depository Trust Corporation, and (l) all of the
other costs and expenses incident to the performance by the Company and the
Trust of the registration and offering of the Offered Securities; provided, that
the Underwriters will bear and pay the fees and expenses of the Underwriters'
counsel (except as provided in this Section 11), the Underwriters' out-of-pocket
expenses, and any advertising costs and expenses incurred by the Underwriters
incident to the public offering of the Offered Securities.
If this Agreement is terminated by you in accordance with the
provisions of Section 10(c), the Company shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the fees and disbursements of
counsel to the Underwriters.
12. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to the
Underwriters shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed c/o X.X. Xxxxxxx & Sons, Inc. at Xxx Xxxxx Xxxxxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Director, Corporate Finance,
facsimile number [(314) ___-____], with a copy to ___________________,
Attention: General Counsel, facsimile number [(314) ___-____], or if sent to the
Company or the Trust shall be mailed, delivered, sent by facsimile transmission,
or telegraphed and confirmed to the Company at 0000 XX 00xx Xxxxxx, Xxxxxxxx
Xxxx, Xxxxxxxx 00000, facsimile number (000) 000-0000. Notice to any Underwriter
pursuant to Section 7 shall be mailed, delivered, sent by facsimile
transmission, or telegraphed and confirmed to such Underwriter's address as it
appears in the Underwriters' Questionnaire furnished in connection with the
offering of the Offered Securities or as otherwise furnished to the Company.
13. Information Furnished by Underwriters. The statements in the
second, eighth and ninth paragraphs and the table under the first paragraph
under the caption "Underwriting" in the Prospectus constitute the only
information furnished by or on behalf of the Underwriters through you as such
information is referred to in Section 4(a)(ii) and Section 7 hereof.
14. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company, the Trust and, to the extent
provided in Sections 7 and 8, the officers and directors of the Company and each
person who controls the Company, the Trustees of the Trust and each person who
controls the Trust or any Underwriter and their respective heirs, executors,
administrators, successors and assigns. Nothing expressed or mentioned in this
42
Agreement is intended or shall be construed to give any person, corporation or
other entity any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained; this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of the parties hereto and their respective successors and
assigns and said controlling persons and said officers and directors, and for
the benefit of no other person, corporation or other entity. No purchaser of any
of the Offered Securities from any Underwriter shall be construed a successor or
assign by reason merely of such purchase.
In all dealings hereunder, you shall act on behalf of each of the
several Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of the Underwriters,
made or given by you jointly or by X.X. Xxxxxxx & Sons, Inc. on behalf of you as
the representatives, as if the same shall have been made or given in writing by
the Underwriters.
15. Counterparts. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
16. Pronouns. Whenever a pronoun of any gender or number is used
herein, it shall, where appropriate, be deemed to include any other gender and
number.
17. Time of Essence. Time shall be of the essence of this Agreement.
18. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Missouri, without giving effect to
the choice of law or conflict of laws principles thereof.
43
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Trust a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters, the Company and the Trust in
accordance with its terms.
Very truly yours,
LOCAL FINANCIAL CORPORATION
By:
------------------------------
Name:
Title:
LOCAL FINANCIAL CAPITAL TRUST I
By: Local Financial Corporation, as sponsor
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
X.X. XXXXXXX & SONS, INC.
XXXXXXXX XXXXXXXX XXXXXX
XXXXX XXXXXXXX & XXXXX
By: X.X. XXXXXXX & SONS, INC.
By:
---------------------------------
Authorized Signatory
44
SCHEDULE I
List of Underwriters
Name of Underwriter Number of Trust Preferred Securities
------------------- ------------------------------------
X.X. Xxxxxxx & Sons, Inc. ----------------------
Friedman, Billings, Xxxxxx & Co. Inc. ----------------------
Xxxxx, Xxxxxxxx & Xxxxx, Inc. ----------------------
TOTAL ----------------------
SCHEDULE II
Commissions Payable Per Trust Preferred Security
SCHEDULE III
List of Subsidiaries
SCHEDULE IV
Pursuant to Section 6(i) of the Underwriting Agreement, KPMG LLP shall
furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the 1933 Act
and the applicable Rules and Regulations thereunder.
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if applicable,
prospective financial statements and/or pro forma financial information
examined) by them and included or incorporated by reference in the Prospectus or
the Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the applicable Rules and
Regulations with respect to registration statements on Form S-3; and, if
applicable, they have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, selected financial data, pro forma
financial information, prospective financial statements and/or condensed
financial statements derived from audited financial statements of the Company
for the periods specified in such letter, as indicated in their reports thereon,
copies of which have been furnished to the Representatives of the Underwriters
(the "Representatives").
(iii) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information referred to
below, performing the procedures specified by the AICPA for a review of interim
financial information as discussed in SAS No. 71, Interim Financial Information,
on the latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their attention
that caused them to believe that:
(A) any material modifications should be made to the
unaudited statements of consolidated income, statements of
consolidated financial position and statements of consolidated
cash flows included or incorporated by reference in the
Prospectus for them to be in conformity with generally accepted
accounting principles, or the unaudited statements of
consolidated income, statements of consolidated financial
position and statements of consolidated cash flows included in
the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and
the related published Rules and Regulations thereunder.
(B) any other unaudited income statement data and balance
sheet items included or incorporated by reference in the
Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data
and items were derived, and any such unaudited data and items
were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Prospectus.
(C) the unaudited financial statements which were not
included or incorporated by reference in the Prospectus but from
which were derived any unaudited condensed financial statements
referred to in Clause (A) and any unaudited income statement data
and balance sheet items included in the Prospectus and referred
to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited consolidated financial
statements included or incorporated by reference in the
Prospectus.
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements.
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated working capital, net current assets or
net assets, or any changes in any other items specified by the
Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter.
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E) there
were any decreases in consolidated net revenues or operating
profit or the total or per share amounts of consolidated net
income or any changes in any other items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for changes, decreases or increases which the
Prospectus discloses have occurred or may occur or which are
described in such letter.
(iv) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in paragraph (iii) above, they have carried out certain specified procedures,
not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, which are derived from the general
accounting records of the Company and its subsidiaries for the periods covered
by their reports and any interim or other periods since the latest period
covered by their reports, which appear or are incorporated by reference in the
Prospectus, or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in agreement.
