Exhibit 1.1
1,000,000 Preferred Securities
IFC Capital Trust VI
[_____] Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
[________], 2002
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
RBC XXXX XXXXXXXX INC.
as representatives of the Several Underwriters
named in Schedule I hereto
c/o Xxxxxx, Xxxxxxxx & Company, Incorporated
000 Xxxxx Xxxxxxxx, 0xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Xxxxx Financial Corporation, an Indiana corporation (the "Company") and
its financing subsidiary, IFC Capital Trust VI, a Delaware business trust (the
"Trust," and hereinafter together with the Company, the "Offerors"), propose
that the Trust issue and sell to the several underwriters listed on Schedule I
hereto (the "Underwriters"), pursuant to the terms of this Agreement, 1,000,000
of the Trust's [____]% Cumulative Trust Preferred Securities, with a liquidation
amount of $25 per preferred security (the "Preferred Securities"), to be issued
under the Trust Agreement (as hereinafter defined), the terms of which are more
fully described in the Prospectus (as hereinafter defined). The aforementioned
1,000,000 Preferred Securities to be sold to the Underwriters are herein called
the "Firm Preferred Securities." Solely for the purpose of covering
over-allotments in the sale of the Firm Preferred Securities, the Offerors
further propose that the Trust issue and sell to the Underwriters, at their
option, up to an additional 150,000 Preferred Securities (the "Option Preferred
Securities") upon exercise of the over-allotment option granted in Section 1
hereof. The Firm Preferred Securities and any Option Preferred Securities are
herein collectively referred to as the "Designated Preferred Securities."
Xxxxxx, Xxxxxxxx & Company, Incorporated and RBC Xxxx Xxxxxxxx Inc. are acting
as representatives of the Underwriters and in such capacity is sometimes herein
referred to as the "Representatives."
The Offerors hereby confirm as follows their agreement with each of the
Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED
SECURITIES, DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions herein set
forth, the Offerors hereby agree that the Trust shall issue and sell to each of
the Underwriters and each of the Underwriters agrees, severally and not jointly,
to purchase from the Trust, at a purchase price of $25 per Preferred Security
(the "Purchase Price"), the respective number of Firm Preferred Securities set
forth opposite the name of such Underwriter in Schedule I hereto. Because the
proceeds from the sale of the Firm Preferred Securities will be used to purchase
from the Company its Debentures (as hereinafter defined and as described in the
Prospectus),
the Company shall pay to each Underwriter a commission of [______] per Firm
Preferred Security purchased (the "Firm Preferred Securities Commission"). In
accordance with Section 9 hereof, the Representatives may by notice to the
Company amend Schedule I to add, eliminate or substitute names set forth therein
(other than to eliminate the name of any of the Representatives) and to amend
the number of Firm Preferred Securities to be purchased by any firm or
corporation listed thereon, provided that the total number of Firm Preferred
Securities listed on Schedule I shall equal 1,000,000.
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants to the Underwriters, severally and not jointly,
an option to purchase all or any portion of the 150,000 Option Preferred
Securities, and upon the exercise of such option in accordance with this Section
1, the Offerors hereby agree that the Trust shall issue and sell to the
Underwriters, severally and not jointly, all or any portion of the Option
Preferred Securities at the same Purchase Price per share paid for the Firm
Preferred Securities. If any Option Preferred Securities are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Trust
that proportion (subject to adjustment as you may determine to avoid fractional
securities) of the number of Option Preferred Securities to be purchased that
the number of Firm Preferred Securities set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to 1,000,000. Because the proceeds from the sale of the
Option Preferred Securities will be used to purchase from the Company its
Debentures, the Company shall pay to the Underwriters a commission of $[______]
per Option Preferred Security for each Option Preferred Security purchased (the
"Option Preferred Securities Commission"). The option hereby granted (the
"Option") must be exercised, if at all, within 30 days after the date upon which
the Registration Statement (as hereinafter defined) becomes effective and may be
exercised only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Firm Preferred Securities.
The Option may be exercised in whole or in part at any time (but not more than
once) by you giving notice (confirmed in writing) to the Trust setting forth the
number of Option Preferred Securities as to which the Underwriters are
exercising the Option and the time, date and place for payment and delivery of
the Global Securities (as hereafter defined) for such Option Preferred
Securities. Such time and date of payment and delivery for the Option Preferred
Securities (the "Option Closing Date") shall be determined by you, but shall not
be earlier than two nor later than five full business days after the exercise of
such Option, nor in any event prior to the Closing Date (as hereinafter
defined). The Option Closing Date may be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities
Commission and delivery of the Global Securities for the Firm Preferred
Securities shall be made at the offices of Xxxxxx, Xxxxxxxx & Company,
Incorporated, 000 Xxxxx Xxxxxxxx, 0xx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or such
other place as shall be agreed to by you and the Offerors, at 10:00 a.m., St.
Louis time, on the third (or, if permitted by Rule 15c6-1(c) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), not later than 12:00 p.m. on
the fourth) full business day following the date of this Agreement (the "Closing
Date"), or unless postponed in accordance with the provisions of Section 9. The
Trust shall deliver or cause to be delivered to you for the account of the
Underwriters against payment to or upon the order of the Trust of the Purchase
Price in federal or other immediately available funds, the Firm Preferred
Securities in the form of one or more permanent global securities in definitive
form (the "Global Securities") deposited with the Property Trustee (as
identified below) as custodian for the Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry form. If the
Underwriters exercise the option to purchase any or all of the Option Preferred
Securities, payment of the Purchase Price and Option Preferred Securities
Commission for such Option Preferred Securities shall be made on the Option
Closing Date at Xxxxxx, Xxxxxxxx & Company, Incorporated's offices, or at such
other place as the Offerors and you shall determine. Upon delivery, the Option
Preferred Securities shall be in the form of one or more Global Securities
registered in the name of Cede & Co., as nominee of DTC and the Global
Securities for such
2
Option Securities shall be delivered to the Property Trustee as custodian for
DTC. Such payments shall be made to an account designated by the Trust by wire
transfer in same day funds, in the amount of the aggregate Purchase Price
therefor, against delivery by or on behalf of the Trust to you for the
respective accounts of the several Underwriters of one or more Global
Certificates for the Designated Preferred Securities to be purchased by the
Underwriters.
Time shall be of the essence, and delivery of the Global Securities for
the Designated Preferred Securities at the time and place specified pursuant to
this Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the
Designated Preferred Securities pursuant to an Amended and Restated Trust
Agreement among U.S. Bank Trust National Association as Delaware Trustee and
Property Trustee, the Administrative Trustees named therein (collectively, the
"Trustees"), and the Company, in substantially the form heretofore delivered to
the Underwriters, said Agreement being hereinafter referred to as the "Trust
Agreement." In connection with the issuance of the Designated Preferred
Securities, the Company proposes (i) to issue its [______] Subordinated
Debentures due 2032 (the "Debentures") pursuant to an Indenture, to be dated as
of [______], 2002, between the Company and U.S. Bank Trust National Association,
as indenture trustee (the "Indenture"), and (ii) to guarantee certain payments
on the Designated Preferred Securities pursuant to a Preferred Securities
Guarantee Agreement between the Company and U.S. Bank Trust National
Association, as guarantee trustee (the "Guarantee"), to the extent described
therein.
(c) As used herein, the following terms shall have the
following meanings:
"Effective Date" shall mean the date and time that the Registration
Statement became or becomes effective.
"Preliminary Prospectus" shall mean the prospectus subject to
completion included in the Registration Statement or any amendment to such
prospectus and any prospectus filed pursuant to Rule 424(a).
"Prospectus" shall mean the prospectus first filed with the Securities
and Exchange Commission (the "Commission") pursuant to Rule 424(b)(1) or (4) or,
if no prospectus is required to be filed pursuant to Rule 424(b)(1) or (4), the
prospectus included in the Registration Statement.
"Registration Statement" shall mean the registration statement referred
to in Section 2(ii) hereof, including exhibits and financial statements, as
amended at the date hereof (or, if not effective at the date hereof, in the form
in which it shall become effective) and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date, shall thereafter
mean such registration statement as so amended. Such term shall include (i) any
Rule 430A Information deemed to be included therein at the Effective Date as
provided by Rule 430A and (ii) any registration statement filed pursuant to Rule
462(b).
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Securities Act of 1933, as amended (the "1933 Act").
"Rule 430A Information" shall mean information with respect to the
Designated Preferred Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule 430A.
Any reference herein to the Registration Statement, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein which were filed
3
under the 1934 Act or the 1934 Act Regulations (as hereafter defined) on or
before the Effective Date of the Registration Statement or the issue date of the
Preliminary Prospectus or the Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the filing of any document under the 1934 Act or
the 1934 Act Regulations after the Effective Date of the Registration Statement
or the issue date of the Preliminary Prospectus or the Prospectus, as the case
may be, then deemed to be incorporated therein by reference; provided, however,
that any references to the "Registration Statement", "Preliminary Prospectus" or
"Prospectus" shall not be deemed to include any statements made in any
previously filed documents that are superseded or modified by statements made in
such documents or in a later filed document incorporated therein by reference,
but only to the extent that, pursuant to the 1933 Act and the 1933 Act
Regulations, such statements are not deemed to be part of the Registration
Statement, Preliminary Prospectus or Prospectus.
2. REPRESENTATIONS AND WARRANTIES.
The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters that:
(i) The reports filed with the Commission by the
Company under the 1934 Act and the rules and regulations thereunder
(the "1934 Act Regulations") at the time they were filed with the
Commission complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading.
(ii) The Offerors meet the requirements for the use
of Form S-3 under the 1933 Act and have prepared and filed with the
Commission a registration statement on Form S-3 (File Numbers 333-99597
and 333-99597-01), for registration under the 1933 Act of the offering
and sale of the Designated Preferred Securities, the Guarantee and up
to $[______] aggregate principal amount of Debentures under the 1933
Act. The Offerors may have filed one or more amendments to such
registration statement, including the Preliminary Prospectus, in each
case in conformity in all material respects with the requirements of
the 1933 Act, the rules and regulations promulgated thereunder (the
"1933 Act Regulations") and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations thereunder.
After the execution of this Agreement, the Offerors will file with the
Commission (A) if the Registration Statement, as it may have been
amended, has been declared by the Commission to be effective under the
1933 Act, a prospectus in the form most recently included in an
amendment to the Registration Statement (or, if no such amendment shall
have been filed, in the Registration Statement), with such changes or
insertions as are required by Rule 430A or permitted by Rule 424(b) and
as have been provided to and not objected to by the Representatives
prior to (or as are agreed to by the Representatives subsequent to) the
execution of this Agreement, or (B) if the Registration Statement, as
it may have been amended, has not been declared by the Commission to be
effective under the 1933 Act, an amendment to the Registration
Statement, including a form of final prospectus, necessary to permit
the Registration Statement to become effective, a copy of which
amendment has been furnished to and not objected to by the
Representatives prior to (or is agreed to by the Representatives
subsequent to) the execution of this Agreement. The Offerors have
included in such registration statement, as amended at the Effective
Date, all information (other than Rule 430A Information) required by
the 1933 Act and the 1933 Act Regulations to be included in such
registration statement and the Prospectus. As filed, the final
Prospectus shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in
all
4
substantive respects in the form furnished to you prior to the date
hereof or, to the extent not completed at the date hereof, shall
contain only such specific additional information and other changes
(beyond that contained in the Prospectus and the Preliminary
Prospectus) as the Company has advised you, prior to the date hereof,
shall be included or made therein. Copies of such registration
statement, including any amendments thereto and any documents
incorporated by reference therein and the Preliminary Prospectus
contained therein and the exhibits, financial statements and schedules
to such registration statement, as finally amended and revised, have
heretofore been delivered by the Offerors to the Representatives. Such
copies are identical to the electronically transmitted copies thereof
filed with the Commission pursuant to its Electronic Data Gathering
Analysis and Retrieval system, except to the extent permitted by
Regulation S-T.
(iii) The documents incorporated by reference in the
Registration Statement, the Preliminary Prospectus or the Prospectus or
from which information is so incorporated by reference, when they were
filed with the Commission, complied in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations, and when
read together and with the other information in the Preliminary
Prospectus or the Prospectus, as the case may be, at the time the
Registration Statement became or becomes effective and at the Closing
Date and any Option Closing Date, did not or will not, as the case may
be, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, except to the extent such statements made have
been amended or superseded in subsequently filed documents, but only to
the extent that, pursuant to the 1933 Act and the 1933 Act Regulations,
such statements are not deemed to be part of the Registration
Statement, Preliminary Prospectus or Prospectus.
(iv) No order preventing or suspending the use of the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) has been issued by the Commission, nor has the Commission,
any state or other jurisdiction or regulatory body, to the knowledge of
the Offerors, threatened to issue such an order or instituted
proceedings for that purpose. The Preliminary Prospectus, at the time
of filing thereof, (A) complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and (B) did
not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty does not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Offerors by any of the Underwriters expressly for inclusion in the
Prospectus beneath the heading "Underwriting" (such information
referred to herein as the "Underwriters' Information"). Since the date
that the Preliminary Prospectus was filed with the Commission or as of
the date that the Prospectus and any amendment or supplement thereto
was filed with the Commission (or, if not filed, on the date provided
by the Offerors to the Underwriters in connection with the offering and
sale of the Designated Preferred Securities), as the case may be, no
event has occurred which should have been set forth in an amendment or
supplement to the Preliminary Prospectus or the Prospectus which has
not been set forth in the Preliminary Prospectus, the Prospectus or
such an amendment or supplement. The Preliminary Prospectus and the
Prospectus will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval ("XXXXX") system, except to the extent
permitted by Regulation S-T.
(v) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the Company's knowledge, threatened
by the Commission, any state or other jurisdiction or other regulatory
5
body. At the Effective Date and at all times subsequent thereto, up to
and including the Closing Date and, if applicable, the Option Closing
Date, the Registration Statement and any post-effective amendment
thereto (A) complied and will comply in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations and the Trust
Indenture Act (and the rules and regulations thereunder) and (B) did
not and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty does not apply to Underwriters'
Information. At the Effective Date, and at all times when the
Prospectus is required to be delivered in connection with offers and
sales of Designated Preferred Securities, including, without
limitation, the Closing Date and, if applicable, the Option Closing
Date, the Prospectus, as amended or supplemented, (A) complied and will
comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the Trust Indenture Act (and the rules
and regulations thereunder) and (B) did not contain and will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty does not apply to Underwriters' Information. Since the date
that the Registration Statement was filed with the Commission, no event
has occurred which should have been set forth in an amendment or
supplement to the Registration Statement which has not then been set
forth in such an amendment or supplement.
(vi)
(A) The Company is duly organized and
validly existing under the laws of the State of Indiana, with full
corporate and other power and authority to own, lease and operate its
properties and conduct its business as described in and contemplated by
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, in the Preliminary Prospectus) and as currently being
conducted and is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the "BHC Act").
(B) The Trust has been duly created and is
validly existing as a statutory trust in good standing under the
Delaware Statutory Trust Act with the power and authority (trust and
other) to own its property and conduct its business as described in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, in the Preliminary Prospectus), to issue and sell its
common securities (the "Common Securities") to the Company pursuant to
the Trust Agreement, to issue and sell the Designated Preferred
Securities, to enter into and perform its obligations under this
Agreement and to consummate the transactions herein contemplated; the
Trust has no subsidiaries and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or the ownership of its property requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have, either individually or in the
aggregate, a material adverse effect on the Trust; the Trust has
conducted and will conduct no business other than the transactions
contemplated by this Agreement and described in the Prospectus (or, if
the Prospectus is not in existence, in the Preliminary Prospectus); the
Trust is not a party to or bound by any agreement or instrument other
than this Agreement, the Trust Agreement among the Administrative
Trustees, the Company and U.S. Bank Trust National Association, dated
September 10, 2002 (the "Original Trust Agreement") and the agreements
and instruments contemplated by the Trust Agreement and described in
the Prospectus (or, if the Prospectus is not in existence, in the
Preliminary Prospectus); the Trust has no liabilities or obligations
other than those arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the Prospectus (or,
if the Prospectus is not in existence, in the Preliminary
6
Prospectus); the Trust is not a party to or subject to any action, suit
or proceeding of any nature; to the knowledge of the Offerors, the
Trust is, and at the Closing Date or any Option Closing Date will be,
classified as a grantor trust for United States federal income tax
purposes; the Trust is not, and at the Closing Date or any Option
Closing Date will not be, classified as an association taxable as a
corporation for United States federal income tax purposes; and the
Trust is, and as of the Closing Date or any Option Closing Date will
be, treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(vii) The Company currently has 34 direct and
indirect subsidiaries, excluding the Trust, identified on Exhibit A
attached hereto and incorporated herein (the "Subsidiaries"). Except
for investments of Xxxxx Ventures, LLC or Xxxxx Ventures SBIC LLC as
described in the Prospectus, the Company does not own or control,
directly or indirectly, more than 5% of any class of equity security of
any corporation, association or other entity other than the
Subsidiaries. Each Subsidiary is a corporation, Delaware statutory
trust, limited liability company, or bank duly organized or
incorporated, as the case may be, validly existing and in good standing
under the laws of its respective jurisdiction of organization;
provided, however, that the foregoing representation and warranty as it
relates only to the "good standing" of a Subsidiary does not apply to
any Subsidiary which is incorporated in Indiana or any other
jurisdiction that does not provide good standing certificates. Each
such Subsidiary has full corporate and other power and authority to
own, lease and operate its properties and to conduct its business as
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in the
Preliminary Prospectus) and as currently being conducted. The deposit
accounts of Xxxxx Union Bank and Trust are insured by the Bank
Insurance Fund administered by the Federal Deposit Insurance
Corporation up to the maximum amount provided by law and the deposit
accounts of Xxxxx Union Bank, F.S.B. are insured by the Savings
Association Insurance Fund under the provisions of the Federal Deposit
Insurance Act up to the maximum amount provided by law; and no
proceedings for the modification, termination or revocation of any such
insurance are pending or, to the knowledge of the Offerors, threatened.
Xxxxx Union Bank and Trust and Xxxxx Union Bank, F.S.B. are referred to
herein as the "Banks."
(viii) The Company and each of the Subsidiaries is
duly qualified to transact business as a foreign corporation, bank,
limited liability company or Delaware statutory trust, as the case may
be, and is in good standing in each other jurisdiction in which it owns
or leases property or conducts its business so as to require such
qualification and in which the failure to so qualify would,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis.
All of the issued and outstanding shares of capital stock, equity
securities or membership interests of the Subsidiaries (A) have been
duly authorized and are validly issued, (B) are fully paid and
nonassessable except to the extent such shares may be deemed assessable
under 12 U.S.C. Section 55 or 12 U.S.C. Section 1831o, and (C), except
as set forth on Exhibit A attached hereto and incorporated herein, are
wholly owned, directly or indirectly, by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance, restriction
upon voting or transfer, preemptive rights, claim or equity and except
for the provisions of those certain shareholder agreements relating to
Xxxxx Home Equity Corporation ("IHE") and Onset Capital Corporation
("OCC"). Except as disclosed in the Prospectus (or, if the Prospectus
is not in existence, in the Preliminary Prospectus) or issuable
pursuant to compensatory plans or other programs disclosed in the
Prospectus (or, if the Prospectus is not in existence, in the
Preliminary Prospectus), and except for the provisions of agreements
relating to minority interests in any of the Company's Subsidiaries,
which minority interests are reflected on Exhibit A hereto, there are
no outstanding rights, warrants or options to
7
acquire or instruments convertible into or exchangeable for any capital
stock or equity securities of the Company or the Subsidiaries.
(ix) The equity securities of the Trust conform in
all material respects to the description thereof contained in the
Prospectus (or, if the Prospectus is not in existence, in the
Preliminary Prospectus). The outstanding shares of capital stock and
equity securities of each Offeror have been duly authorized and validly
issued and are fully paid and nonassessable, and no such shares were
issued in violation of the preemptive or similar rights of any security
holder of an Offeror. No person has any preemptive or similar right to
purchase any shares of capital stock or equity securities of the
Offerors. Except as disclosed in the Prospectus (or, if the Prospectus
is not in existence, in the Preliminary Prospectus) or issuable
pursuant to compensatory plans or other programs disclosed in the
Prospectus and the Preliminary Prospectus, and except for the
provisions of certain shareholder agreements relating to IHE and OCC,
there are no outstanding rights, options or warrants to acquire any
securities of the Offerors or the Subsidiaries, and there are no
outstanding securities convertible into or exchangeable for any
securities of the Offerors or the Subsidiaries and no restrictions upon
the voting or transfer of any capital stock of the Company or equity
securities of the Trust pursuant to the Company's articles of
incorporation or bylaws, the Trust Agreement or any agreement or other
instrument to which an Offeror is a party or by which an Offeror is
bound, other than restricted stock award agreements with certain
employees and directors. As of the date set forth therein, the Company
had an authorized and outstanding capitalization as set forth in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, in the Preliminary Prospectus) under the caption
"Capitalization."
(x)
(A) The Trust has all requisite trust power
and authority to issue, sell and deliver the Designated Preferred
Securities in accordance with and upon the terms and conditions set
forth in this Agreement, the Trust Agreement, the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, in the Preliminary Prospectus). All corporate and trust
action required to be taken by the Offerors for the authorization,
issuance, sale and delivery of the Designated Preferred Securities in
accordance with such terms and conditions has been validly and duly
taken. The Designated Preferred Securities, when delivered and paid for
in accordance with this Agreement, will be duly and validly issued and
outstanding, will represent valid fully paid and nonassessable
undivided beneficial interests in the assets of the Trust, will be
entitled to the benefits of the Trust Agreement pertaining to holders
of Preferred Securities, will not be issued in violation of or subject
to any preemptive or similar rights, and will conform in all material
respects to the description thereof in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, in the
Preliminary Prospectus) and the Trust Agreement. None of the Designated
Preferred Securities, immediately prior to delivery, will be subject to
any security interest, lien, mortgage, pledge, encumbrance, restriction
upon voting or transfer, preemptive rights, claim, equity or other
defect.
(B) The Company has all requisite power and
authority to issue, sell and deliver the Debentures in accordance with,
and upon the terms and conditions of, the Indenture. The Debentures
have been duly and validly authorized, and, when duly and validly
executed, authenticated and issued as provided in the Indenture and
delivered to the Trust pursuant to the Trust Agreement, will constitute
valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by and/or subject to
bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of
equity, will be in the form contemplated by, and entitled to the
benefits pertaining to
8
holders of Debentures under the Indenture, will conform in all material
respects to the description thereof contained in the Prospectus (or, if
the Prospectus is not in existence, in the Preliminary Prospectus) and
will be owned by the Trust free and clear of any security interest,
mortgage, pledge, lien, encumbrance, restriction upon transfer,
preemptive rights, claim, equity or other defect, except as
contemplated by the Trust Agreement, the Indenture and the Guarantee.
(xi) The Offerors and the Subsidiaries have complied
in all material respects with all foreign, federal, state and local
statutes, regulations, ordinances and rules as now in effect and
applicable to the ownership and operation of their properties or the
conduct of their businesses as described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, in the Preliminary Prospectus) and as currently being
conducted, except in each case for any such noncompliance which would
not, individually or in the aggregate, have a material adverse effect
on the condition (financial or otherwise), business, prospects or
results of operations of the Company and the Subsidiaries on a
consolidated basis. Neither the Company nor any non-banking Subsidiary
engages directly or indirectly in any activity not identified by the
Board of Governors of the Federal Reserve System (the "FRB") as
permissible for a bank holding company that is not a financial holding
company under 12 C.F.R. part 225. Neither the Offerors nor any
Subsidiary is subject to a cease-and-desist order, consent agreement,
memorandum of understanding or other regulatory enforcement action,
order or proceeding from the Commission, the Federal Deposit Insurance
Corporation (the "FDIC"), the FRB, the Office of Thrift Supervision
(the "OTS"), the Indiana Department of Financial Institutions (the
"DFI") or other regulatory authority having jurisdiction over them
(each, a "Regulator" and collectively, the "Regulators") to make any
material changes in the method of conducting its business and no such
cease-and-desist order, consent agreement, memorandum of understanding
or other regulatory enforcement action, order or proceeding is pending
or threatened by such Regulators. The Company has all necessary
approvals from the Regulators to own the capital stock or equity
securities of the Subsidiaries. The Offerors know of no material spill,
discharge, leak, emission, ejection, escape, dumping or release of any
kind onto the properties owned by the Company or any Subsidiary or into
the environment surrounding those properties, of any toxic or hazardous
substances as defined under any federal, state or local regulations,
laws or statutes, except for those releases permissible under such
regulations, laws or statutes or otherwise allowable under applicable
permits and except for such releases which would not have a material
adverse effect on the condition (financial or otherwise), business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis.
(xii) The Offerors and the Subsidiaries have all
material permits, easements, consents, licenses, franchises and other
governmental and regulatory authorizations from all appropriate
foreign, federal, state, local or other public authorities ("Permits")
as are necessary to own and lease their properties and conduct their
businesses in the manner described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, in the Preliminary Prospectus) and as currently being
conducted in all material respects, except where the failure to obtain
or possess any Permit would not, individually or in the aggregate, have
a material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis. All such Permits are in full
force and effect and each of the Offerors and the Subsidiaries are in
all material respects complying therewith, and no event has occurred
that allows, or after notice or lapse of time would allow, revocation
or termination thereof or will result in any other material impairment
of the rights of the holder of any such Permit, subject in each case to
any such qualification as may be adequately disclosed in the Prospectus
(or, if the Prospectus is not in existence, the Preliminary Prospectus)
except where such revocation, termination or impairment would not,
individually or in the aggregate, have a material adverse effect on the
condition
9
(financial or otherwise), business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis. Such
Permits contain no restrictions that would materially impair the
ability of the Company or the Subsidiaries to conduct their businesses
in the manner consistent with their past practices. Neither the
Offerors nor any of the Subsidiaries have received notice or otherwise
have knowledge of any proceeding or action relating to the revocation
or modification of any such Permit except where such revocation,
termination or impairment would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or
otherwise), business, prospects, or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xiii) Neither of the Offerors nor any of the
Subsidiaries are in breach or violation of their corporate charter,
by-laws or other governing documents (including without limitation, the
Original Trust Agreement) in any material respect. Neither of the
Offerors nor any of the Subsidiaries is, and to the knowledge of the
Offerors no other party is, in violation, breach or default (with or
without notice or lapse of time or both) in the performance or
observance of any term, covenant, agreement, obligation,
representation, warranty or condition contained in (A) any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease, franchise, license, Permit or any other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound, which such breach, violation or default would, individually or
in the aggregate with other breaches, violations or defaults, have a
material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis, and to the knowledge of the
Offerors, no other party has asserted that the Offerors or any of the
Subsidiaries is in such violation, breach or default (provided that the
foregoing shall not apply to defaults by borrowers from the Banks), or
(B) except as disclosed in the Prospectus (or if the Prospectus is not
in existence, the Preliminary Prospectus), any order, decree, judgment,
rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having
jurisdiction over any of the Offerors or the Subsidiaries or any of
their respective properties, the breach, violation or default of which
would, individually or in the aggregate with other breaches, violations
or defaults, have a material adverse effect on the condition (financial
or otherwise), business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xiv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement, the Trust Agreement, the Guarantee, the Indenture, the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, in the Preliminary Prospectus) (including, without
limitation, the issuance and sale of the Designated Preferred
Securities and the use of proceeds from the sale of the Designated
Preferred Securities as described in the Prospectus under the caption
"Use of Proceeds") do not and will not conflict with, result in the
creation or imposition of any material lien, claim, charge, encumbrance
or restriction upon any property or assets of the Offerors or the
Subsidiaries or the Designated Preferred Securities pursuant to,
constitute a breach or violation of, or constitute a default under,
with or without notice or lapse of time or both, any of the terms,
provisions or conditions of (A) the charter or by-laws of the Company
or the Subsidiaries, (B) any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise, license,
Permit or any other agreement or instrument to which any of the
Offerors or the Subsidiaries is a party or by which any of them or any
of their respective properties may be bound, or (C) any order, decree,
judgment, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having
jurisdiction over any of the Offerors or the Subsidiaries or any of
their respective properties, which conflict, creation, imposition,
breach, violation or default would have, either individually or in the
aggregate, a
10
material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis. No authorization, approval,
consent or order of or filing, registration or qualification with, any
person (including, without limitation, any court, governmental body or
authority) is required in connection with the transactions contemplated
by this Agreement, the Trust Agreement, the Indenture, the Guarantee,
the Expense Agreement, the Registration Statement and the Prospectus
(or the Preliminary Prospectus), except such as have been obtained
under the 1933 Act and the Trust Indenture Act and from the New York
Stock Exchange relating to the listing of the Designated Preferred
Securities, and such as may be required under state securities laws or
Interpretations or Rules of the National Association of Securities
Dealers, Inc. ("NASD") in connection with the purchase and distribution
of the Designated Preferred Securities by the Underwriters.
(xv) The Company has all requisite corporate power
and authority and the Trust has all requisite trust power and authority
to enter into this Agreement and this Agreement has been duly and
validly authorized, executed and delivered by the Offerors and
constitutes the legal, valid and binding agreement of the Offerors,
enforceable against the Offerors in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity and except as any
indemnification or contribution provisions thereof may be limited under
applicable securities laws. The Company has all requisite corporate
power and authority to enter into the Indenture, the Trust Agreement,
the Guarantee and the Expense Agreement and each of the Indenture, the
Trust Agreement, the Guarantee and the Expense Agreement has been duly
and validly authorized by the Company, and, when duly and validly
executed and delivered by the Company on the Closing Date, each of said
agreements will constitute a valid and legally binding obligation of
the Company and will be enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of
equity and except as any indemnification or contribution provisions
thereof may be limited under applicable securities laws.
(xvi) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good title to
all personal property owned by them and material to their business, in
each case free and clear of all security interests, liens, mortgages,
pledges, encumbrances, restrictions, claims, equities and other
defects, except such as are referred to in the Prospectus (or, if the
Prospectus is not in existence, in the Preliminary Prospectus) or such
as do not materially affect the value of such property in the aggregate
and do not materially interfere with the use made or proposed to be
made of such property; and all of the leases under which the Company or
the Subsidiaries hold real or personal property are valid and existing
leases, enforceable against the parties thereto, and in full force and
effect with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real or
personal property, and neither the Company nor any of the Subsidiaries
is in default in any material respect of any of the terms or provisions
of any leases except, in each case, where the failure to so possess or
the existence of such default would not individually or in the
aggregate, have a material adverse effect on the condition (financial
or otherwise), business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xvii) PricewaterhouseCoopers LLP, who have certified
certain of the consolidated financial statements of the Company and the
Subsidiaries including the notes thereto, included or incorporated by
reference in the Registration Statement and Prospectus, are independent
public accountants with respect to the Company and the Subsidiaries, as
required by the 1933 Act and the 1933 Act Regulations.
11
(xviii) The consolidated financial statements
including the notes thereto, incorporated by reference in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, in the Preliminary Prospectus) with respect to the
Company and the Subsidiaries comply with all applicable requirements of
the 1933 Act and the 1933 Act Regulations and present fairly the
consolidated financial position of the Company and the Subsidiaries as
of the dates indicated and the consolidated results of operations, cash
flows and shareholders' equity of the Company and the Subsidiaries for
the periods specified and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis.
The selected consolidated financial data concerning the Company and the
Subsidiaries included in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, in the Preliminary
Prospectus) comply with all applicable requirements of the 1933 Act and
the 1933 Act Regulations, present fairly the information set forth
therein and have been compiled on a basis consistent with that of the
consolidated financial statements of the Company and the Subsidiaries
in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, in the Preliminary Prospectus). The other
financial, statistical and numerical information included in the
Registration Statement and the Prospectus (or the Preliminary
Prospectus) is accurate in all material respects, complies with all
applicable requirements of the 1933 Act and the 1933 Act Regulations,
presents fairly the information shown therein, and to the extent
applicable has been compiled on a basis consistent with the
consolidated financial statements of the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in the Preliminary Prospectus).
(xix) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, in the Preliminary
Prospectus), except as otherwise stated therein:
(A) neither of the Offerors nor any of the
Subsidiaries has sustained any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree which is material, individually or in the
aggregate, to the condition (financial or otherwise), business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis;
(B) there has not been any material adverse
change in, or any development which is reasonably likely to have a
material adverse effect on, the condition (financial or otherwise),
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
(C) neither of the Offerors nor any of the
Subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any material transactions, other than in
the ordinary course of business, which are material, individually or in
the aggregate, to the condition (financial or otherwise), business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis;
(D) neither of the Offerors has declared or
paid any dividend other than the Company's regular dividends on its
common stock, and neither of the Offerors nor any of the Subsidiaries
has become delinquent in the payment of principal or interest on any
outstanding borrowings; and
12
(E) there has not been any change in the
capital stock, equity securities, long-term debt, obligations under
capital leases or, other than in the ordinary course of business,
short-term borrowings of the Offerors or the Subsidiaries.
(xx) Except as set forth in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus), no charge, investigation,
action, suit or proceeding is pending or, to the knowledge of the
Offerors, threatened, against or affecting the Offerors or the
Subsidiaries or any of their respective properties before or by any
court or any regulatory, administrative or governmental official,
commission, board, agency or other authority or body, or any
arbitrator, wherein an unfavorable decision, ruling or finding could
reasonably be expected to have a material adverse effect on the
consummation of this Agreement or the transactions contemplated herein
or the condition (financial or otherwise), business, prospects or
results of operations of the Offerors and the Subsidiaries on a
consolidated basis or which is required to be disclosed in the
Registration Statement or the Prospectus (or, if the Prospectus is not
in existence, in the Preliminary Prospectus) and is not so disclosed.
(xxi) There are no contracts or other documents
required to be filed as exhibits to the Registration Statement by the
1933 Act or the 1933 Act Regulations or the Trust Indenture Act (or any
rules or regulations thereunder) which have not been filed as exhibits
or incorporated by reference into the Registration Statement, or that
are required to be summarized in the Prospectus (or, if the Prospectus
is not in existence, in the Preliminary Prospectus) that are not so
summarized.
(xxii) Neither of the Offerors has taken, directly or
indirectly, any action designed to result in or which has constituted
or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Offerors to facilitate the sale or resale of the Designated Preferred
Securities in violation of the Commission's rules and regulations,
including, but not limited to, Regulation M, and neither of the
Offerors is aware of any such action taken or to be taken by any
affiliate of the Offerors.
(xxiii) The Offerors and the Subsidiaries own, or
possess adequate rights to use, all patents, copyrights, trademarks,
service marks, trade names and other rights necessary to conduct the
businesses now conducted by them in all material respects or as
described in the Prospectus (or, if the Prospectus is not in existence,
in the Preliminary Prospectus) and neither the Company nor the
Subsidiaries have received any notice of infringement or conflict with
asserted rights of others with respect to any patents, copyrights,
trademarks, service marks, trade names or other rights which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the condition (financial or otherwise), business, prospects or results
of operations of the Company and the Subsidiaries on a consolidated
basis, and the Offerors do not know of any basis for any such
infringement or conflict which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xxiv) Except as disclosed in the Prospectus (or, if
the Prospectus is not in existence, the Preliminary Prospectus), no
labor dispute involving the Company or the Subsidiaries exists or, to
the knowledge of the Offerors, is imminent which would, individually or
in the aggregate with other disputes, have a material adverse effect on
the condition (financial or otherwise), business, prospects or results
of operations of the Company and the Subsidiaries on a consolidated
basis or which is required to be disclosed in the Prospectus (or, if
the Prospectus is
13
not in existence, in the Preliminary Prospectus). Neither the Company
nor any of the Subsidiaries has received notice of any existing or
threatened labor dispute by the employees of any of its principal
suppliers, customers or contractors which would, individually or in the
aggregate with other disputes, have a material adverse effect on the
condition (financial or otherwise), business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis.
(xxv) The Offerors and the Subsidiaries have timely
and properly prepared and filed all necessary federal, state, local and
foreign tax returns which are required to be filed and have paid all
taxes shown as due thereon and have paid all other taxes and
assessments to the extent that the same shall have become due, except
such as are being contested in good faith or where the failure to so
timely and properly prepare and file would not, individually or in the
aggregate, have a material adverse effect on the condition (financial
or otherwise), business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis. The Offerors have
no knowledge of any tax deficiency which has been or might be assessed
against the Offerors or the Subsidiaries which, if the subject of an
unfavorable decision, ruling or finding, would, individually or in the
aggregate, have a material adverse effect on the condition (financial
or otherwise), business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xxvi) Each of the material contracts, agreements and
instruments referred to in the Registration Statement or the Prospectus
(or, if the Prospectus is not in existence, the Preliminary
Prospectus), and each contract, agreement and instrument filed as an
exhibit to the Registration Statement is in full force and effect and
is the legal, valid and binding agreement of the Company or the
Subsidiaries, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by general principles of equity and
by bankruptcy or other laws relating to or affecting creditors' rights
generally, except where the cancellation, termination or
unenforceability does not constitute a material change in the affairs
of the Company and the Subsidiaries on a consolidated basis. Except as
disclosed in the Prospectus (or such Preliminary Prospectus), to the
knowledge of the Company, no other party to any such agreement is (with
or without notice or lapse of time or both) in breach or default in any
material respect thereunder, except where the default or breach does
not constitute a material change in the affairs of the Company and the
Subsidiaries on a consolidated basis.
(xxvii) No relationship, direct or indirect, exists
between or among the Company or the Subsidiaries, on the one hand, and
the directors, officers, trustees, shareholders, customers or suppliers
of the Company or the Subsidiaries, on the other hand, which is
required to be described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in the
Preliminary Prospectus) which is not adequately described therein.
(xxviii) No person has the right to request or
require the Offerors or the Subsidiaries to register any securities for
offering and sale under the 1933 Act by reason of the filing of the
Registration Statement with the Commission or the issuance and sale of
the Designated Preferred Securities except as adequately disclosed in
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, in the Preliminary Prospectus).
(xxix) The Designated Preferred Securities have been
approved for listing on the New York Stock Exchange subject to official
notice of issuance.
(xxx) Except as described in the Prospectus (or, if
the Prospectus is not in existence, in the Preliminary Prospectus),
there are no contractual encumbrances or restrictions or material legal
restrictions required to be described therein, on the ability of the
Subsidiaries (A) to
14
pay dividends or make any other distributions on its capital stock or
to pay any indebtedness owed to the Company, (B) to make any loans or
advances to, or investments in, the Company or (C) to transfer any of
their property or assets to the Company.
(xxxi) Neither of the Offerors is an "investment
company," an entity "controlled" by an "investment company" or an
"investment adviser" within the meaning of the Investment Company Act
of 1940, as amended (the "Investment Company Act") or the Investment
Advisers Act of 1940, as amended (the "Investment Advisers Act").
(xxxii) The Offerors have not distributed and will
not distribute prior to the Closing Date or, if applicable, the Option
Closing Date, any prospectus in connection with the Offering, other
than the Preliminary Prospectus, the Prospectus, the Registration
Statement and the other materials permitted by the 1933 Act and the
1933 Act Regulations and reviewed by or on behalf of the
Representatives.
(xxxiii) No report or application filed by the
Company or any of its Subsidiaries with the Commission, the FRB, the
OTS, the FDIC, the DFI or any other Regulator, as of the date it was
filed or amended, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading when made or
failed to comply in all material respects with the applicable
requirements of the Commission, the FRB, the OTS, the FDIC, the DFI or
such other Regulator, as the case may be, except for statements or
omissions that, individually or in the aggregate, would not have a
material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xxxiv) The books, records and accounts and systems
of internal accounting controls of the Company and its Subsidiaries
comply in all material respects with the requirements of Section
13(b)(2) of the 1934 Act.
3. OFFERING BY THE UNDERWRITERS.
After the Effective Date or, if the Registration Statement is already
effective, after this Agreement becomes effective, the Underwriters propose to
offer the Firm Preferred Securities for sale to the public upon the terms and
conditions set forth in the Prospectus. The Underwriters may from time to time
thereafter reduce the public offering price and change the other selling terms,
provided the proceeds to the Trust shall not be reduced as a result of such
reduction or change. Because the NASD is expected to view the Preferred
Securities as interests in a direct participation program, the offering of the
Preferred Securities is being made in compliance with the applicable provisions
of Rule 2810 of the NASD's conduct rules.
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by them (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS.
The Offerors jointly and severally covenant with the Underwriters as
follows:
15
(a) The Offerors shall use their best efforts to cause
the Registration Statement and any amendments thereto, if not effective at the
time of execution of this Agreement, to become effective as promptly as
possible. If the Registration Statement has become or becomes effective pursuant
to Rule 430A and information has been omitted therefrom in reliance on Rule
430A, then, the Offerors will prepare and file in accordance with Rule 430A and
Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a
post-effective amendment to the Registration Statement (including the
Prospectus) containing all information so omitted and will provide evidence
satisfactory to the Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and
confirm such notice in writing:
(i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, has become
effective, or when the Prospectus or any supplement to the Prospectus
or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from
the Commission;
(iii) of any request of the Commission to amend or
supplement the Registration Statement, the Preliminary Prospectus or
the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state
or other regulatory body of any stop order or other order suspending
the effectiveness of the Registration Statement, preventing or
suspending the use of the Preliminary Prospectus or the Prospectus, or
suspending the qualification of any of the Designated Preferred
Securities for offering or sale in any jurisdiction or the institution
or threat of institution of any proceedings for any of such purposes.
The Offerors shall use their best efforts to prevent the issuance of
any such stop order or of any other such order and if any such order is
issued, to cause such order to be withdrawn or lifted as soon as
possible.
(c) The Offerors shall furnish to the Underwriters, from
time to time without charge, as soon as available, as many copies as the
Underwriters may reasonably request of (i) the registration statement as
originally filed and of all amendments thereto, in executed form, including
exhibits, whether filed before or after the Registration Statement becomes
effective, (ii) all exhibits and documents incorporated therein or filed
therewith, (iii) all consents and certificates of experts in executed form, (iv)
the Preliminary Prospectus and all amendments and supplements thereto, and (v)
the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be
delivered under the 1933 Act, the Offerors shall comply with the 1933 Act and
the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to
permit the completion of the distribution of the Designated Preferred Securities
as contemplated herein and in the Trust Agreement and the Prospectus. The
Offerors shall not file any amendment to the registration statement as
originally filed or to the Registration Statement and shall not file any
amendment thereto or make any amendment or supplement to the Preliminary
Prospectus or to the Prospectus of which you shall not previously have been
advised in writing and provided a copy a reasonable time prior to the proposed
filings thereof or to which you or counsel for the Underwriters shall reasonably
object. If it is necessary, in the Company's reasonable opinion or in the
reasonable opinion of the Company's counsel, to amend or supplement the
Registration Statement or the Prospectus in connection with the distribution of
the Designated Preferred Securities, the Offerors shall forthwith at their cost
and expense amend or supplement the Registration Statement or the Prospectus, as
the case may be, by preparing and filing with the Commission (provided the
Underwriters or counsel for
16
the Underwriters does not reasonably object), and furnishing to you such number
of copies as you may reasonably request of an amendment or amendments of, or a
supplement or supplements to, the Registration Statement or the Prospectus, as
the case may be (in form and substance reasonably satisfactory to you and
counsel for the Underwriters). If any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus to correct an untrue
statement of a material fact or to include a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or if for any reason it is necessary at any time to amend or
supplement the Prospectus to comply with the 1933 Act and the 1933 Act
Regulations, the Offerors shall, subject to the second sentence of this
subsection (d), forthwith at their cost and expense amend or supplement the
Prospectus by preparing and filing with the Commission, and furnishing to you,
such number of copies as you may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Prospectus (in form and
substance satisfactory to you and counsel for the Underwriters) so that, as so
amended or supplemented, the Prospectus shall not contain an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(e) The Offerors shall cooperate with you and counsel for
the Underwriters in order to qualify the Designated Preferred Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
you may reasonably request and shall continue such qualifications in effect so
long as may be advisable for distribution of the Designated Preferred
Securities; provided, however, that the Offerors shall not be required to
qualify to do business as a foreign corporation or file a general consent to
service of process in any jurisdiction in connection with the foregoing. The
Offerors shall file such statements and reports as may be required by the laws
of each jurisdiction in which the Designated Preferred Securities have been
qualified as above. The Offerors will notify you immediately of, and confirm in
writing, the suspension of qualification of the Designated Preferred Securities
or threat thereof in any jurisdiction.
(f) The Offerors shall file the DTC Letter of
Representations and any other documents required to be filed by the Offerors in
connection therewith in order to permit the Preferred Securities to be eligible
for clearance and settlement through the facilities of DTC.
(g) The Offerors shall make generally available to their
security holders in the manner contemplated by Rule 158 of the 1933 Act
Regulations and furnish to you as soon as practicable, but in any event not
later than 16 months after the Effective Date, a consolidated earnings statement
of the Offerors in reasonable detail, covering a period of at least 12
consecutive months beginning after the Effective Date, conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale
of the Designated Preferred Securities to be sold by the Trust hereunder in the
manner specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors
shall furnish to the Representatives copies of all reports and communications
(financial or otherwise) furnished by the Offerors to the holders of the
Designated Preferred Securities as a class, copies of all reports and financial
statements filed with or furnished to the Commission (other than portions for
which confidential treatment has been obtained from the Commission) or with any
national securities exchange or the New York Stock Exchange or other
self-regulatory organization and such other documents, reports and information
concerning the business and financial conditions of the Offerors as the
Representatives may reasonably request, other than such documents, reports and
information for which the Offerors has the legal obligation not to reveal to the
Representatives.
17
(j) For a period of 30 days from the Effective Date, the
Offerors shall not, without Xxxxxx, Xxxxxxxx & Company, Incorporated's prior
written consent, directly or indirectly, offer for sale, sell or agree to sell
or otherwise dispose of any Designated Preferred Securities, any other
beneficial interests in the assets of the Trust or any securities of the Trust
or the Company or any other financing subsidiary organized by the Company that
are substantially similar to the Designated Preferred Securities (other than the
Common Securities of the Trust to be issued to the Company), including any
guarantee of such beneficial interests or substantially similar securities, or
securities convertible into or exchangeable for or that represent the right to
receive any such beneficial interest or substantially similar securities, except
for the registration of the Designated Preferred Securities and the sales to the
Underwriters pursuant to this Agreement.
(k) The Offerors shall use their best efforts to cause
the Designated Preferred Securities to become listed on the New York Stock
Exchange and to remain so listed for at least five years from the Effective Date
or for such shorter period as may be specified in a written consent of the
Representatives, provided this shall not prevent the Company from redeeming the
Designated Preferred Securities pursuant to the terms of the Trust Agreement. If
the Designated Preferred Securities are exchanged for Debentures, the Company
shall use its best efforts to have the Debentures promptly listed on the New
York Stock Exchange or other organization on which the Designated Preferred
Securities are then listed, and to have the Debentures promptly registered under
the 1934 Act.
(l) The Offerors will provide you with copies of any
correspondence to and from, and all documents issued to and by, the Commission
in connection with the registration of the Designated Preferred Securities under
the 1933 Act.
(m) Subsequent to the date of this Agreement and through
the date which is the later of (i) the day following the date on which the
Underwriters' option to purchase the Option Preferred Securities shall expire or
(ii) the day following the Option Closing Date with respect to any Option
Preferred Securities that the Underwriters shall elect to purchase, except as
described in or contemplated by the Prospectus, neither the Offerors nor any of
the Subsidiaries shall take any action (or refrain from taking any action) which
will result in the Offerors or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, or take or refrain from taking any
action which will cause or result in any material adverse change in the
financial position, capital stock, or any material increase in long-term debt,
obligations under capital leases or short-term borrowings of the Offerors and
the Subsidiaries on a consolidated basis.
(n) Except as described in the Prospectus, the Offerors
shall not, for a period of 180 days after the date hereof, without the prior
written consent of the Representatives, purchase, redeem or call for redemption,
or prepay or give notice of prepayment (or announce any redemption or call for
redemption, or any repayment or notice of prepayment) of the Offerors'
securities, except for any purchases of shares of the Company's common stock
pursuant to a publicly announced stock buy back program.
(o) The Offerors shall not take, directly or indirectly,
any action designed to result in or which constitutes or which might reasonably
be expected to cause or result in stabilization or manipulation of the price of
any security of the Offerors in connection with the sale or resale of the
Designated Preferred Securities in violation of the Commission's rules and
regulations, including, but not limited to, Regulation M, and the Offerors are
not aware of any such action taken or to be taken by any affiliate of the
Offerors.
(p) Prior to the Closing Date (and, if applicable, the
Option Closing Date), the Offerors will not issue any press release or other
communication directly or indirectly or hold any press
18
conference with respect to the Offerors, the Subsidiaries or the offering of the
Designated Preferred Securities which you shall not previously have been
provided a copy a reasonable time prior to the release thereof or provided
reasonable notice thereof and you shall not have reasonably objected thereto,
except for press releases by the Subsidiaries made in the ordinary course of
business consistent with past practices that do not include information material
to an investor in the Designated Preferred Securities.
(q) The Offerors shall use best efforts to comply with
all applicable registration, filing and reporting requirements of the 1934 Act
for so long as the Preferred Securities or the Debentures shall remain
outstanding.
5. PAYMENT OF EXPENSES.
Whether or not this Agreement is terminated or the sale of the
Designated Preferred Securities to the Underwriters is consummated, the Company
covenants and agrees that it will pay or cause to be paid (directly or by
reimbursement) all costs and expenses incident to the performance of the
obligations of the Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and
shipping of the initial registration statement, the Preliminary Prospectus, the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements);
(b) all fees, expenses and disbursements of the Offerors'
counsel and accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as you may
request, including all filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith, if any, but not to exceed $3,000;
(d) all fees and expenses incurred in connection with
filings made with the NASD and DTC;
(e) any applicable fees and other expenses incurred in
connection with the listing of the Designated Preferred Securities and, if
applicable, the Guarantee and the Debentures on the New York Stock Exchange;
(f) the cost of furnishing to you copies of the initial
registration statements, the Preliminary Prospectus, the Registration Statement
and the Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or
registrar and the fees and disbursements of counsel for any transfer agent or
registrar;
(h) all expenses incident to the preparation, execution
and delivery of the Trust Agreement, the Indenture, the Guarantee and the
Expense Agreement; and
(i) all other costs and expenses incident to the
performance of the obligations of the Company hereunder, under the Trust
Agreement and under the Indenture that are not otherwise specifically provided
for in this Section 5.
19
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
accountable out-of-pocket expenses in connection herewith or in contemplation of
the performance of your obligations hereunder, including without limitation
travel expenses, reasonable fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any investigation of the
Offerors and the Subsidiaries, or any preparation for the marketing, purchase,
sale or delivery of the Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the Firm
Preferred Securities and, following exercise of the option granted by the
Offerors in Section 1 of this Agreement, the Option Preferred Securities, are
subject, in your sole discretion, to the accuracy of and compliance with the
representations and warranties and compliance with the agreements of the
Offerors herein as of the date hereof and as of the Closing Date (or in the case
of the Option Preferred Securities, if any, as of the Option Closing Date), to
the accuracy of the written statements of the Offerors made pursuant to the
provisions hereof, to the performance by the Offerors of their covenants and
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment
thereto filed prior to the Closing Date has not been declared effective prior to
the time of execution hereof, the Registration Statement shall become effective
not later than 10:00 a.m., St. Louis time, on the first business day following
the time of execution of this Agreement, or at such later time and date as you
may agree to in writing. If required, the Prospectus and any amendment or
supplement thereto shall have been timely filed in accordance with Rule 424(b)
and Rule 430A under the 1933 Act and Section 4(a) hereof. No stop order
suspending the effectiveness of the Registration Statement or any amendment or
supplement thereto shall have been issued under the 1933 Act or any applicable
state securities laws and no proceedings for that purpose shall have been
instituted or shall be pending, or, to the knowledge of the Offerors or the
Representatives, shall be contemplated by the Commission or any state authority.
Any request on the part of the Commission or any state authority for additional
information (to be included in the Registration Statement or Prospectus or
otherwise) shall have been disclosed to you and complied with to your
satisfaction and to the satisfaction of counsel for the Underwriters.
(b) No Underwriter shall have advised the Company at or
before the Closing Date (and, if applicable, the Option Closing Date) that the
Registration Statement or any post-effective amendment thereto, or the
Prospectus or any amendment or supplement thereto, contains an untrue statement
of a fact which, in your opinion, is material or omits to state a fact which, in
your opinion, is material and is required to be stated therein or is necessary
to make statements therein (in the case of the Prospectus or any amendment or
supplement thereto, in light of the circumstances under which they were made)
not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the Trust
Agreement, the Indenture, the Debentures and the Designated Preferred
Securities, and the authorization and form of the Registration Statement and the
20
Prospectus, other than financial statements and other financial data, and all
other legal matters relating to this Agreement and the transactions contemplated
hereby or by the Trust Agreement or the Indenture shall be reasonably
satisfactory in all material respects to counsel for the Underwriters, and the
Offerors and the Subsidiaries shall have furnished to such counsel all documents
and information relating thereto that they may reasonably request to enable them
to pass upon such matters.
(d) Xxxxxx, Xxxxx, Xxxxxxx & Xxxxxxxx, special counsel
for the Offerors, shall have furnished to you their signed opinion, dated the
Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly organized and is
existing under the laws of the State of Indiana, and is duly registered
as a bank holding company under the BHC Act.
(ii) The Debentures and Guarantee of the Company and
the preferred and common securities of the Trust conform to the
description thereof contained in the Prospectus in all material
respects. To the best of such counsel's knowledge, the authorized,
issued and outstanding capital stock of the Company as of June 30,
2002, is as set forth under the caption "Capitalization" in the
Prospectus. To the best of such counsel's knowledge, there are no
outstanding rights, options or warrants to purchase, and no
commitments, plans or arrangements to issue, any equity securities of
the Trust, except (1) as described in the Prospectus, and (2) the
registration of the Designated Preferred Securities and the sales to
the Underwriters pursuant to this Agreement.
(iii) The issuance, sale and delivery of the
Designated Preferred Securities and Debentures in accordance with the
terms and conditions of this Agreement and the Indenture have been duly
authorized by all necessary actions of the Offerors. The Designated
Preferred Securities conform to the description thereof in the
Registration Statement, the Prospectus and the Trust Agreement. The
Designated Preferred Securities have been approved for listing on the
New York Stock Exchange subject to official notice of issuance. There
are no preemptive or other rights to subscribe for or to purchase, and
other than as disclosed in the Prospectus, no restrictions upon the
voting or transfer of, any equity securities of the Trust pursuant to
the Trust Agreement, or, to the best of such counsel's knowledge, there
is no agreement or other instrument to which the Trust is a party or by
which the Trust is bound.
(iv) The Offerors have all requisite corporate and
trust power to enter into and perform their respective obligations
under this Agreement, and this Agreement has been duly and validly
authorized, executed and delivered by the Offerors and constitutes the
legal, valid and binding obligations of the Offerors enforceable in
accordance with its terms, except as the enforcement hereof or thereof
may be limited by general principles of equity and by bankruptcy or
other laws relating to or affecting creditors' rights generally, and
except as the indemnification and contribution provisions hereof may be
limited under applicable laws and certain remedies may not be available
in the case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and
the Guarantee has been duly qualified under the Trust Indenture Act,
has been duly authorized, executed and delivered by the Company, and is
a valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms, subject to the effect
of bankruptcy, insolvency, reorganization, receivership, moratorium and
other laws affecting the rights and remedies of creditors generally and
of general principles of equity.
21
(vi) The Debentures have been duly authorized,
executed, and delivered by the Company and, when authenticated by the
Indenture Trustee, will be legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their terms,
subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of equity.
The holders of the Debentures are entitled to the benefits of the
Indenture pertaining to holders of Debentures.
(vii) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally
binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of general
principles of equity.
(viii) To the best of such counsel's knowledge,
neither of the Offerors is in breach or violation of, or default under,
with or without notice or lapse of time or both, its corporate charter,
by-laws or governing document (including without limitation, the Trust
Agreement), except for such violation breach or default which will not
have a material adverse effect on the Offerors taken as a whole. The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement and the
Trust Agreement or the other agreements contemplated hereby or thereby
do not and will not conflict with, result in the creation or imposition
of any material lien, claim, charge, encumbrance or restriction upon
any property or assets of the Offerors or the Subsidiaries or the
Designated Preferred Securities pursuant to, or constitute a material
breach or violation of, or constitute a material default under, with or
without notice or lapse of time or both, (A) any of the terms,
provisions or conditions of the charter, by-laws or governing document
(including without limitation, the Trust Agreement) of the Offerors, or
to the best of such counsel's knowledge any material contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease, franchise, license or any other agreement or instrument to which
either Offeror or the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound or (B) any order,
decree, judgment, franchise, license, Permit, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties which, in each case, is material to the Offerors
and the Subsidiaries on a consolidated basis.
(ix) No authorization, approval, consent or order of
or filing, registration or qualification with, any person (including
without limitation, any court, governmental body or authority) is
required in connection with the transactions contemplated by this
Agreement, the Trust Agreement, the Indenture, the Registration
Statement and the Prospectus, except such as have been made or obtained
under the 1933 Act, the Trust Indenture Act and the New York Stock
Exchange with respect to listing matters, and except such as may be
required under state securities laws or Interpretations or Rules of the
NASD in connection with the purchase and distribution of the Designated
Preferred Securities by the Underwriters.
(x) Each of the Registration Statement, the
Prospectus and any amendments or supplements thereto (other than the
exhibits, financial statements or other financial data included therein
or omitted therefrom and Underwriters' Information, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations as of their respective dates of effectiveness or issuance.
The Company's Annual Report on Form 10-K, Quarterly Reports on Form
10-Q, and Current
22
Reports on Form 8-K incorporated by reference in the Registration
Statement and the Prospectus (other than the exhibits, financial
statements or other financial data included therein or omitted
therefrom, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the 1934 Act
and the 1934 Act Regulations as of their respective dates of
effectiveness or filing.
(xi) To the best of such counsel's knowledge, there
are no contracts, agreements, leases or other documents of a character
required to be described in the Registration Statement, or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not so described or filed.
(xii) The statements under the captions "Risk
Factors" - Risks Relating to an Investment in Us - Our business may be
affected by the highly regulated environment in which we operate," in
the first sentence of the third paragraph thereof, "Risk Factors -
Risks Relating to an Investment in the Preferred Securities - Our
ability to make interest payments on the debentures to the trust may be
restricted if we do not receive dividends from our subsidiaries" in the
fifth and sixth sentences of the second paragraph and the first
sentence of the third paragraph thereof, "Description of the Trust,"
"Description of the Preferred Securities," "Description of the
Debentures," "Description of the Guarantee," "Relationship Among the
Preferred Securities, the Debentures and the Guarantee," "Federal
Income Tax Consequences," and "ERISA Considerations" in the Prospectus,
and the statements under the caption "Supervision and Regulation" in
the Company's Annual Report on Form 10-K for the year ended December
31, 2001, incorporated by reference into the Prospectus, insofar as
such statements constitute a description of legal and regulatory
matters, documents or instruments referred to therein, are accurate
descriptions of or references to the matters purported to be summarized
or referred to therein in all material respects and fairly present the
information called for with respect to such legal matters, documents
and instruments, other than financial and statistical data as to which
such counsel expresses no opinion or belief.
(xiii) Such counsel has been advised by the staff of
the Commission that the Registration Statement has become effective
under the 1933 Act; any required filing of the Prospectus pursuant to
Rule 424(b) has been made within the time period required by Rule
424(b); to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for a stop order are pending or threatened by
the Commission.
(xiv) Except as disclosed in the Prospectus, to the
best of such counsel's knowledge, there are no contractual encumbrances
or restrictions or material legal restrictions required to be disclosed
on the ability of the Subsidiaries (A) to pay dividends or make any
other distributions on their capital stock or to pay indebtedness owed
to the Offerors, (B) to make any loans or advances to, or investments
in, the Offerors or (C) to transfer any of their property or assets to
the Offerors.
(xv) Neither the Company nor the Trust is and, after
giving effect to the offering and sale of the Designated Preferred
Securities and the application of the proceeds thereof as described in
the Prospectus, neither the Company nor the Trust will be, an
"investment company," or an entity "controlled" by an "investment
company" as defined in the Investment Company Act.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Offerors including, without limitation,
23
certificates as to the identity of any and all material contracts, indentures,
mortgages, deeds of trust, loans or credit agreements, notes, leases,
franchises, licenses or other agreements or instruments, and all material
permits, easements, consents, licenses, franchises and government regulatory
authorizations, for purposes of paragraph (viii) hereof, and certificates of
public officials. In addition, it is contemplated that such counsel shall rely
on the opinion of Xxxxx X. Xxxxxx, Vice President - Legal of the Company, as to
matters of Indiana law. In giving such opinion, such counsel may rely upon the
opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, special Delaware counsel to the Offerors
as to certain matters relating to the Trust and the Designated Preferred
Securities which are governed by Delaware law.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Offerors
and with their independent public accountants and with you and your counsel, at
which conferences such counsel made inquiries of such officers, representatives
and accountants and discussed in detail the contents of the Registration
Statement, the Prospectus and the documents incorporated therein by reference
and such counsel has no reason to believe (A) that the Registration Statement or
any amendment thereto and the documents incorporated therein by reference
(except for the financial statements and related schedules and statistical data
included therein or omitted therefrom or Underwriters' Information, as to which
such counsel need express no opinion), at the time the Registration Statement or
any such amendment became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or (B) that
the Prospectus or any amendment or supplement thereto and the documents
incorporated therein by reference (except for the financial statements and
related schedules and statistical data included therein or omitted therefrom or
Underwriters' Information, as to which such counsel need express no opinion), at
the time the Registration Statement became effective (or, if the term
"Prospectus" refers to the prospectus first filed pursuant to Rule 424(b) of the
1933 Act Regulations, at the time the Prospectus was issued), at the time any
such amended or supplemented Prospectus was issued, at the Closing Date and, if
applicable, the Option Closing Date, contained or contains any untrue statement
of a material fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (C) that there is
any amendment to the Registration Statement required to be filed that has not
already been filed.
(e) Xxxxx X. Xxxxxx, Vice President-Legal of the Company,
shall have furnished to you her signed opinion, dated the Closing Date or the
Option Closing Date, as the case may be, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) To the best of such counsel's knowledge, other
than the Trust, the entities listed on Exhibit A are the only
subsidiaries, direct or indirect, of the Company. Each of the
Subsidiaries is duly incorporated or organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
organization, as the case may be (other than Subsidiaries incorporated
in Indiana for which no opinion as to good standing shall be required).
Each of the Company and the Subsidiaries has full corporate, trust or
limited liability company power, as applicable, under its
organizational documents and authority to own or lease its properties
and to conduct its business as such business is described in the
Prospectus and is currently conducted in all material respects. Each of
the Company and the Subsidiaries is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required (other than
Subsidiaries so qualified in Indiana, for which no opinion as to good
standing shall be required), whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result,
individually or in the aggregate, in a material adverse effect on the
condition (financial or otherwise), business, prospects or results of
operations of the Company
24
and the Subsidiaries on a consolidated basis. All outstanding shares of
capital stock of the Subsidiaries have been duly authorized and validly
issued and are fully paid and nonassessable except to the extent such
shares may be deemed assessable under 12 U.S.C. Section 1831 and, to
the best of such counsel's knowledge, except as disclosed in the
Prospectus or as reflected on Exhibit A to this Agreement, there are no
outstanding rights, options or warrants to purchase any such shares or
securities convertible into or exchangeable for any such shares other
than pursuant to the terms of certain shareholder agreements relating
to IHE and OCC. . To the best of such counsel's knowledge, except with
respect to shares not owned directly or indirectly by the Company as
set forth on Exhibit A to this Agreement, all outstanding shares of
capital stock of the Subsidiaries are owned, directly or indirectly, by
the Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity, and none of the outstanding shares
of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such subsidiary.
(ii) The outstanding shares of capital stock of the
Company have been duly authorized and validly issued, and are fully
paid and nonassesable and none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company. To the best of
such counsel's knowledge, there are no outstanding rights, options or
warrants to purchase, no other outstanding securities convertible into
or exchangeable for, and no commitments, plans or arrangements to
issue, any shares of capital stock of the Company, except (1) as
described in the Prospectus, (2) the registration of the Designated
Preferred Securities and the sales to the Underwriters pursuant to this
Agreement, (3) issuances of common stock upon the exercise of
outstanding options, warrants and debentures or upon the conversion of
shares of preferred stock and convertible trust preferred securities
outstanding as of the date hereof, (4) grants of options or other
rights to purchase common stock and issuances of shares of common stock
under employee benefit plans and other compensatory programs in
existence on the date hereof and registrations thereof on Form S-8, and
(5) issuances of common stock pursuant to restricted stock awards made
in connection with the recruitment of market presidents to implement
the Company's banking expansion plans.
(iii) The issuance, sale and delivery of the
Designated Preferred Securities and Debentures in accordance with the
terms and conditions of this Agreement and the Indenture have been duly
authorized by all necessary actions of the Offerors. There are no
preemptive or other rights to subscribe for or to purchase, and other
than as disclosed in the Prospectus, no restrictions upon the voting or
transfer of, any equity securities of the Company or the Subsidiaries
pursuant to the corporate charter, by-laws or other governing documents
of the Company or the Subsidiaries, or, to the best of such counsel's
knowledge, any agreement or other instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of
the Subsidiaries may be bound.
(iv) The Company has all requisite corporate power to
enter into and perform its obligations under this Agreement, and this
Agreement has been duly and validly authorized, executed and delivered
by the Company and constitutes the legal, valid and binding obligations
of the Company enforceable in accordance with its terms, except as the
enforcement hereof or thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting
creditors' rights generally, and except as the indemnification and
contribution provisions hereof may be limited under applicable laws and
certain remedies may not be available in the case of a non-material
breach.
(v) Each of the Indenture, the Trust Agreement and
the Guarantee has been duly authorized, executed and delivered by the
Company, and is a valid and legally binding
25
obligation of the Company enforceable against the Company in accordance
with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
rights and remedies of creditors generally and of general principles of
equity.
(vi) The Debentures have been duly authorized,
executed, and delivered by the Company and, when authenticated by the
Indenture Trustee, will be legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their terms,
subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of equity.
(vii) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally
binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of general
principles of equity.
(viii) To the best of such counsel's knowledge,
neither of the Company nor any of the Subsidiaries is in breach or
violation of, or default under, with or without notice or lapse of time
or both, (A) its corporate charter, by-laws or governing document, or
(B) any material contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease, franchise, license or any other
agreement or instrument to which either the Company or any Subsidiary
is a party or by which any of them or any of their respective
properties may be bound, except for such violation, breach or default
which will not have a material adverse effect on the Company and the
Subsidiaries taken as a whole. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
by this Agreement and the Trust Agreement or the other agreements
contemplated hereby or thereby, do not and will not conflict with,
result in the creation or imposition of any material lien, claim,
charge, encumbrance or restriction upon any property or assets of the
Offerors or the Subsidiaries or the Designated Preferred Securities
pursuant to, or constitute a material breach or violation of, or
constitute a material default under, with or without notice or lapse of
time or both, (A) any of the terms, provisions or conditions of the
charter, by-laws or governing document (including without limitation,
the Trust Agreement) of the Offerors or IHE, Xxxxx Commercial Finance
Corporation, Xxxxx Business Finance Corporation, Xxxxx Franchise
Capital Corporation or OCC, or to the best of such counsel's knowledge
any material contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease, franchise, license or any other
agreement or instrument to which either Offeror or the Subsidiaries is
a party or by which any of them or any of their respective properties
may be bound or (B) any order, decree, judgment, franchise, license,
Permit, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, known to
such counsel having jurisdiction over the Offerors or the Subsidiaries
or any of their respective properties which, in each case, is material
to the Offerors and the Subsidiaries on a consolidated basis.
(ix) To the best of such counsel's knowledge, holders
of securities of the Offerors do not have any right that, if exercised,
would require the Offerors to cause such securities to be included in
the Registration Statement or have waived such right. To the best of
such counsel's knowledge, neither the Company nor any of the
Subsidiaries is a party to any agreement or other instrument which
grants rights for or relating to the registration of any securities of
the Offerors.
26
(x) Except as set forth in the Registration Statement
and the Prospectus, to the best of such counsel's knowledge, (A) no
action, suit or proceeding at law or in equity is pending or threatened
in writing to which the Company or the Subsidiaries is or is threatened
to be made a party, and (B) no action, suit or proceeding is pending or
threatened in writing against or affecting the Offerors or the
Subsidiaries or any of their properties, before or by any court or
governmental official, commission, board or other administrative
agency, authority or body, or any arbitrator, wherein it could
reasonably be expected that an unfavorable decision, ruling or finding
would reasonably be expected to have a material adverse effect on the
consummation of this Agreement or the issuance and sale of the
Designated Preferred Securities as contemplated herein or the condition
(financial or otherwise), business, or results of operations of the
Offerors and the Subsidiaries on a consolidated basis or which is
required to be disclosed in the Registration Statement or the
Prospectus and is not so disclosed.
(xi) The Company's Annual Report on Form 10-K,
Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K
incorporated by reference in the Registration Statement and the
Prospectus (other than the exhibits, financial statements or other
financial data included therein or omitted therefrom, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations as of their respective dates of effectiveness or filing.
(xii) To the best of such counsel's knowledge, there
are no contracts, agreements, leases or other documents of a character
required to be described in the Registration Statement, or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not so described or filed.
(xiii) The statements under the captions "Supervision
and Regulation," "Recent Developments--Impact of Recent Change to
Regulatory Capital Rules," in the Company's Annual Report on Form 10-K
for the year ended December 31, 2001, incorporated by reference into
the Prospectus, insofar as such statements constitute a description of
legal and regulatory matters, documents or instruments referred to
therein, are accurate descriptions of the matters purported to be
summarized therein in all material respects and fairly present the
information called for with respect to such legal matters, documents
and instruments, other than financial data as to which such counsel
expresses no opinion or belief. The statements under the captions "Risk
Factors--Risks Related to an Investment in Us--We are the defendant in
a class action lawsuit called Xxxxxxxxx v. Inland Mortgage
Corporation***" in the Prospectus, "Legal Proceedings" in the Company's
Annual Report on Form 10-K for the year ended December 31, 2001,
incorporated by reference into the Prospectus, "Note 7--Contingencies,"
in the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2002, "Note 8--Contingencies," and "Part II--Other
Information--Item 1. Legal Proceedings," in the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 2002, insofar as
such statements constitute a description of legal proceedings referred
to therein, are accurate descriptions of the litigation matters
purported to be summarized therein in all material respects and fairly
present the information called for with respect to such legal
proceedings as of the respective date of the filing of such document
with the Commission.
(xiv) Except as disclosed in the Prospectus, to the
best of such counsel's knowledge, there are no contractual encumbrances
or restrictions or material legal restrictions required to be disclosed
on the ability of the Subsidiaries (A) to pay dividends or make any
other distributions on their capital stock or to pay indebtedness owed
to the Offerors, (B) to make any loans or advances to, or investments
in, the Offerors or (C) to transfer any of their property or assets to
the Offerors.
27
(xv) To the best of such counsel's knowledge, (A) the
business and operations of the Company and the Subsidiaries comply in
all material respects with all statutes, ordinances, laws, rules and
regulations applicable thereto and which are material to the Company
and the Subsidiaries on a consolidated basis, except in those instances
where non-compliance would not materially impair the ability of the
Company and the Subsidiaries to conduct their business and would not
result in a material adverse effect on the condition (financial or
otherwise), business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis; and (B) the Company and
the Subsidiaries possess and are operating in all material respects in
compliance with the terms, provisions and conditions of all Permits,
consents, licenses, franchises and governmental and regulatory
authorizations ("Authorizations") required to conduct their businesses
as described in the Prospectus and which are material to the Company
and the Subsidiaries on a consolidated basis, except in those instances
where the loss thereof or non-compliance therewith would not have a
material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis; to the best of such counsel's
knowledge, all such Authorizations are valid and in full force and
effect, and, to the best of such counsel's knowledge, no action, suit
or proceeding is pending or threatened with respect to, or which is
reasonably likely to lead to the revocation, termination, suspension or
non-renewal of any such Authorization, except in those instances where
the loss thereof or non-compliance therewith would not materially
impair the ability of the Company or the Subsidiaries to conduct their
businesses and would not result in a material adverse effect on the
condition (financial or otherwise), business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, she has relied upon certificates of
officers of the Offerors including, without limitation, certificates as to the
identity of any and all material contracts, indentures, mortgages, deeds of
trust, loans or credit agreements, notes, leases, franchises, licenses or other
agreements or instruments, and all material permits, easements, consents,
licenses, franchises and government regulatory authorizations, for purposes of
paragraph (viii) hereof, and certificates of public officials. In giving such
opinion, such counsel may rely upon the opinion of Xxxxxxxx, Xxxxxx & Xxxxxx,
special Delaware counsel to the Offerors as to certain matters relating to the
Trust and the Designated Preferred Securities which are governed by Delaware
law.
Such counsel shall state that she is a member in good standing of the
bar of the State of Indiana, have been a member of such bar since 1987 and have
been continuously practicing law since that date. She has been employed as Vice
President - Legal of the Company since 1997 and, in such capacity, she
periodically opines on legal matters on behalf of the Company that are similar
in scope and substance to the opinions rendered above.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Offerors
and with their independent public accountants and with you and your counsel, at
which conferences such counsel made inquiries of such officers, representatives
and accountants and discussed in detail the contents of the Registration
Statement, the Prospectus and the documents incorporated therein by reference
and such counsel has no reason to believe (A) that the Registration Statement or
any amendment thereto and the documents incorporated therein by reference
(except for the financial statements and related schedules and statistical data
included therein or omitted therefrom or Underwriters' Information, as to which
such counsel need express no opinion), at the time the Registration Statement or
any such amendment became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or (B) that
the Prospectus or any amendment or supplement thereto and
28
the documents incorporated therein by reference (except for the financial
statements and related schedules and statistical data included therein or
omitted therefrom or Underwriters' Information, as to which such counsel need
express no opinion), at the time the Registration Statement became effective
(or, if the term "Prospectus" refers to the prospectus first filed pursuant to
Rule 424(b) of the 1933 Act Regulations, at the time the Prospectus was issued),
at the time any such amended or supplemented Prospectus was issued, at the
Closing Date and, if applicable, the Option Closing Date, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (C) that there is any amendment to the Registration Statement
required to be filed that has not already been filed.
(f) Xxxxxxxx, Xxxxxx & Xxxxxx, special Delaware counsel
to the Offerors, shall have furnished to you their signed opinion, dated as of
Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to such counsel, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Statutory Trust Act and, under the Trust Agreement and the Delaware
Statutory Trust Act, has the trust power and authority to conduct its
business as described in the Prospectus.
(ii) The Trust has all requisite trust power to enter
into and perform its obligations under this Agreement. The Trust
Agreement is a legal, valid and binding agreement of the Company, as
sponsor, and the Trustees, and is enforceable against the Company, as
sponsor, and the Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware
Statutory Trust Act, this Agreement and its execution and delivery by
the Trust, and the performance by the Trust of its obligations
thereunder, have been authorized by all requisite trust action on the
part of the Trust.
(iv) The issuance, sale and delivery of the
Designated Preferred Securities in accordance with the Trust Agreement
have been duly authorized by all necessary action of the Trust. The
Designated Preferred Securities have been duly and validly authorized
by the Trust Agreement, and when issued and sold in accordance with the
Trust Agreement, the Designated Preferred Securities will be, subject
to the qualifications set forth in paragraph (v) below, fully paid and
nonassessable beneficial interest in the assets of the Trust and
entitled to the benefits of the Trust Agreement. The form of
certificate to evidence the Designated Preferred Securities has been
approved by the Trust and is in due and proper form and complies with
all applicable requirements of the Delaware Statutory Trust Act.
(v) Holders of Designated Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same limitation
of personal liability extended to shareholders of private, for-profit
corporations organized under the General Corporation Law of the State
of Delaware. Such opinion may note that the holders of Designated
Preferred Securities may be obligated to make payments as set forth in
the Trust Agreement.
(vi) Under the Delaware Statutory Trust Act and the
Trust Agreement, the issuance of the Designated Preferred Securities is
not subject to preemptive rights or other similar rights.
(vii) The issuance and sale by the Trust of the
Designated Preferred Securities and the Common Securities, the
execution, delivery and performance by the Trust of this
29
Agreement, and the consummation of the transactions contemplated by
this Agreement, do not violate (a) the Trust Agreement, or (b) any
applicable Delaware law, rule or regulation.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(g) Xxxxx, Xxxx & Xxxxxxxx, X.X., counsel for the
Underwriters, shall have furnished you their signed opinion, dated the Closing
Date or the Option Closing Date, as the case may be, with respect to the
sufficiency of all corporate procedures and other legal matters relating to this
Agreement, the validity of the Designated Preferred Securities, the Registration
Statement, the Prospectus and such other related matters as you may reasonably
request and there shall have been furnished to such counsel such documents and
other information as they may request to enable them to pass on such matters. In
giving such opinion, Xxxxx, Xxxx & Xxxxxxxx, X.X. may rely as to matters of fact
upon statements and certifications of officers of the Offerors and of other
appropriate persons and may rely as to matters of law, other than law of the
United States and the State of Missouri, upon the opinions of Xxxxxx, Xxxxx,
Xxxxxxx & Xxxxxxxx, Xxxxx X. Xxxxxx, Vice-President-Legal of the Company and
Xxxxxxxx, Xxxxxx & Xxxxxx described herein.
(h) On the date of this Agreement and on the Closing Date
(and, if applicable, any Option Closing Date), the Representatives shall have
received from PricewaterhouseCoopers LLP 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 the Representatives,
confirming that they are independent public accountants with respect to the
Company within the meaning of the 1933 Act and the 1933 Act Regulations and
stating in effect that:
(i) In their opinion, the consolidated financial
statements of the Company audited by them and included or incorporated
by reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations.
(ii) On the basis of the procedures specified by the
American Institute of Certified Public Accountants as described in SAS
No. 71, "Interim Financial Information," inquiries of officials of the
Company responsible for financial and accounting matters, and such
other inquiries and procedures as may be specified in such letter,
which procedures do not constitute an audit in accordance with U.S.
generally accepted auditing standards, nothing came to their attention
that caused them to believe that, if applicable, the unaudited interim
consolidated financial statements of the Company included in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations or are not in conformity with U.S.
generally accepted accounting principles applied on a basis
substantially consistent, except as noted in the Registration
Statement, with the basis for the audited consolidated financial
statements of the Company included in the Registration Statement.
(iii) On the basis of limited procedures, not
constituting an audit in accordance with U.S. generally accepted
auditing standards, consisting of a reading of the unaudited interim
financial statements and other information referred to below, a reading
of the
30
latest available unaudited condensed consolidated financial statements
of the Company inspection of the minute books of the Company since the
date of the latest audited financial statements of the Company included
or incorporated by reference in the Registration Statement, inquiries
of officials of the Company responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in
such letter, nothing came to their attention that caused them to
believe that:
(A) as of a specified date not more than
five days prior to the date of such letter, there have been any changes
in the consolidated capital stock of the Company, any increase in the
consolidated debt of the Company or decreases in consolidated
shareholders' equity of the Company or any changes, decreases or
increases in other items specified by the Representatives, in each case
as compared with amounts shown in the latest unaudited interim
consolidated statement of financial condition of the Company included
or incorporated by reference in the Registration Statement except in
each case for changes, increases or decreases which the Registration
Statement specifically discloses have occurred or may occur or which
are described in such letter; and
(B) for the period from the date of the
latest unaudited interim consolidated financial statements of the
Company included or incorporated by reference in the Registration
Statement to the specified date referred to in clause (iii)(A), there
were any decreases in the consolidated net income of the Company or in
the per share amount of net income of the Company or any changes,
decreases or increases in other items specified by the Representatives
as compared with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases which
the Registration Statement discloses have occurred or may occur, or
which are described in such letter.
(iv) In addition to the audit referred to in their
report included or incorporated by reference in the Registration
Statement and the limited procedures, inspection of minute books,
inquiries and other procedures referred to in paragraphs (ii) and (iii)
above, they have carried out certain specified procedures, not
constituting an audit in accordance with U.S. generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are
derived from the general accounting records and consolidated financial
statements of the Company which appear in the Registration Statement
and the documents incorporated by reference therein specified by the
Representatives, and have compared such amounts, percentages and
financial information with the accounting records and the material
derived from such records and consolidated financial statements of the
Company have found them to be in agreement.
In the event that the letters to be delivered on the date hereof, on
the Closing Date (and, if applicable, any Option Closing Date) referred to above
set forth any such changes, decreases or increases as specified in clauses
(iii)(A) or (iii)(B) above, or any exceptions from such agreement specified in
clause (iv) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
clause (iii)(A) above as compared with the amounts shown in the latest
consolidated statement of financial condition of the Company included or
incorporated by reference in the Registration Statement, (y) reflect a material
adverse change in the items specified in clause (iii)(B) above as compared with
the corresponding periods of the prior year or other period specified by the
Representatives, or (z) reflect a material adverse change in items specified in
clause (iv) above from the amounts shown in the Preliminary Prospectus
distributed
31
by the Underwriters in connection with the offering contemplated hereby or from
the amounts shown in the Prospectus.
(i) At the Closing Date and, if applicable, the Option
Closing Date, you shall have received certificates of the chief executive
officer and the chief financial and accounting officer of the Company, which
certificates shall be deemed to be made on behalf of the Company, dated as of
the Closing Date and, if applicable, the Option Closing Date, evidencing
satisfaction of the conditions of Section 6(a) and stating that (i) the
representations and warranties of the Company set forth in Section 2 hereof are
accurate as of the Closing Date and, if applicable, the Option Closing Date, and
that each of the Offerors has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to such Closing
Date and, if applicable, the Option Closing Date; (ii) since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change in the condition
(financial or otherwise), business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis; (iii) since such dates
there has not been any material transaction entered into by the Offerors or the
Subsidiaries other than transactions in the ordinary course of business; and
(iv) they have carefully examined the Registration Statement and the Prospectus
as amended or supplemented and nothing has come to their attention that would
lead them to believe that either the Registration Statement or the Prospectus,
or any amendment or supplement thereto as of their respective effective or issue
dates, contained, and the Prospectus as amended or supplemented at such Closing
Date (and, if applicable, the Option Closing Date), contains any untrue
statement of a material fact, or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein (in the case
of the Prospectus, in the light of the circumstances under which they were made)
not misleading; and (v) covering such other matters as you may reasonably
request. The officers' certificate of the Company shall further state that no
stop order affecting the Registration Statement is in effect or, to their
knowledge, threatened.
(j) At the Closing Date and, if applicable, the Option
Closing Date, you shall have received a certificate of an authorized
representative of the Trust to the effect that to the best of his or her
knowledge based upon a reasonable investigation, the representations and
warranties of the Trust in this Agreement are true and correct as though made on
and as of the Closing Date (and, if applicable, the Option Closing Date); the
Trust has complied with all the agreements and satisfied all the conditions
required by this Agreement to be performed or satisfied by the Trust on or prior
to the Closing Date, and since the most recent date as of which information is
given in the Prospectus, except as described in the Prospectus, the Trust has
not incurred any material liabilities or obligations, direct or contingent, or
entered into any material transactions not in the ordinary course of business
and there has not been any material adverse change in the condition (financial
or otherwise) of the Trust.
(k) On the Closing Date, all conditions precedent under
each of the Trust Agreement, the Guarantee, the Indenture and the Expense
Agreement shall have been satisfied or duly waived, and you shall have received
copies of all documentation required to evidence same.
(l) The NASD, upon review of the terms of the public
offering of the Designated Preferred Securities, shall not have objected to the
Underwriters' participation in such offering.
(m) Prior to the Closing Date and, if applicable, the
Option Closing Date, the Offerors shall have furnished to you and counsel for
the Underwriters all such other documents, certificates and opinions as they
have reasonably requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish
32
you with conformed copies of such opinions, certificates, letters and other
documents as you shall reasonably request.
If any of the conditions referred to in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all of
the Underwriters' obligations hereunder may be terminated by you on notice to
the Company at, or at any time before, the Closing Date or the Option Closing
Date, as applicable. Any such termination shall be without liability of the
Underwriters to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors jointly and severally agree to indemnify
and hold harmless each Underwriter, each of its directors, officers and agents,
and each person, if any, who controls any Underwriter within the meaning of the
1933 Act, against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and reasonable attorney fees and
expenses), joint or several, arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact made by the Company or
the Trust contained in Section 2 of this Agreement (or any certificate delivered
by or on behalf of the Company or the Trust pursuant to Sections 6(h), 6(i) and
6(l) hereto) or in the registration statement as originally filed or the
Registration Statement, the Preliminary Prospectus, the Prospectus or in any
amendment or supplement thereto, (ii) any omission or alleged omission to state
a material fact in the registration statement as originally filed or the
Registration Statement, the Preliminary Prospectus, the Prospectus or in any
amendment or supplement thereto, required to be stated therein or necessary to
make the statements therein (in the case of the Preliminary Prospectus and the
Prospectus, in light of the circumstances in which they were made), not
misleading, or (iii) the enforcement of this indemnification provision or the
contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any reasonable legal or other expenses as incurred, but in
no event less frequently than 30 days after each invoice is submitted, incurred
by them in connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Offerors shall not be liable in any such
case to the extent, but only to the extent, that any such losses, claims,
damages, liabilities and expenses arise out of or are based upon any untrue
statement or omission or allegation thereof that has been made therein or
omitted therefrom in reliance upon and in conformity with the Underwriters'
Information; provided further, however, that the indemnification contained in
this Section 7(d) with respect to the Preliminary Prospectus shall not inure to
the benefit of any Underwriter (or of any person controlling any Underwriter) to
the extent any such losses, claims, damages, liabilities or expenses directly
results from the fact that such Underwriter sold Designated Preferred Securities
to a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as amended or supplemented,
if any) provided such Prospectus shall have been furnished to you in sufficient
time to distribute same with or prior to the written confirmation of the sale
involved), if required by law, and if such loss, claim, damage, liability or
expense would not have arisen but for the failure to give or send such person
such document. The foregoing indemnity agreement is in addition to any liability
the Company or the Trust may otherwise have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees
to indemnify and hold harmless each Offeror, each of the Company's directors,
each of the Company's officers who signed the Registration Statement, each of
the Administrative Trustees of the Trust and each person, if any, who controls
an Offeror within the meaning of the 1933 Act, to the same extent as required by
the foregoing indemnity from the Company to each Underwriter, but only with
respect to the Underwriters'
33
Information. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to any such indemnified party.
(c) If any action or claim shall be brought or asserted
against any indemnified party or any person controlling an indemnified party in
respect of which indemnity may be sought from the indemnifying party, such
indemnified party or controlling person shall promptly notify the indemnifying
party in writing, and the indemnifying party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all expenses; provided, however, that the failure so to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 7, and
further, shall only relieve it from liability under this Section 7 to the extent
prejudiced thereby. Any indemnified party or any such controlling person shall
have the right to employ separate counsel in any such action and to participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party, or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person) it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time and for all
such indemnified party(ies) and controlling persons, which firm shall be
designated in writing by the indemnified party(ies) (and, if such indemnified
parties are Underwriters, by you, as the Representatives). Each indemnified
party and each controlling person, as a condition of such indemnity, shall use
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. The indemnifying party shall not be liable for any
settlement of any such action effected without its written consent, but if there
shall be a final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall not alter the
right of any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7
is unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of
34
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Offerors on the one hand and the Underwriters
on the other from the offering of the Designated Preferred Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Offerors on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Offerors on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Designated Preferred Securities (before deducting
expenses) received by the Offerors bear to the total underwriting discounts,
commissions and compensation received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Offerors on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Offerors or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Offerors and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages, liabilities and
expenses referred to in the first sentence of this Section 7(d) shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Designated Preferred Securities underwritten by such Underwriter and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriters has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7(d), each
person who controls an Underwriter within the meaning of the 1933 Act shall have
the same rights to contribution as such Underwriter, and each person who
controls an Offeror within the meaning of the 1933 Act, each officer and trustee
of an Offeror who shall have signed the Registration Statement and each director
of the Company shall have the same rights to contribution as the Offerors
subject in each case to the preceding sentence. The obligations of the Offerors
under this Section 7(d) shall be in addition to any liability which the Offerors
may otherwise have and the obligations of the Underwriters under this Section
7(d) shall be in addition to any liability that the Underwriters may otherwise
have.
(e) The indemnity and contribution agreements contained
in this Section 7 shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling an Underwriter or by or on behalf of the Offerors, or
such directors, trustees or officers (or any person controlling an Offeror),
(ii) acceptance of any Designated Preferred Securities and payment therefor
hereunder and (iii) any termination of this Agreement. A successor of any
Underwriter or of an Offeror, such directors, trustees or officers (or of any
person controlling an Underwriter or an Offeror) shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 7.
(f) The Company agrees to indemnify the Trust against any
and all losses, claims, damages or liabilities that may become due from the
Trust under this Section 7.
35
8. TERMINATION.
You shall have the right to terminate this Agreement at any time at or
prior to the Closing Date or, with respect to the Underwriters' obligation to
purchase the Option Preferred Securities, at any time at or prior to the Option
Closing Date, without liability on the part of the Underwriters to the Offerors,
if:
(a) Either Offeror shall have failed, refused, or been
unable to perform any agreement on its part to be performed under this
Agreement, or any of the conditions referred to in Section 6 shall not have been
fulfilled, when and as required by this Agreement;
(b) The Offerors or any of the Subsidiaries shall have
sustained any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree which in the
judgment of the Representatives materially impairs the investment quality of the
Designated Preferred Securities;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which in your reasonable
judgment is reasonably likely to have a material adverse effect on, the
condition (financial or otherwise), business, prospects or results of operations
of the Offerors and the Subsidiaries on a consolidated basis, whether or not
arising in the ordinary course of business;
(d) There has occurred any outbreak or escalation of
hostilities or other calamity or crisis (including, without limitation, an act
of terrorism) or material change in general economic, political or financial
conditions, or internal conditions, the effect of which on the financial markets
of the United States is such as to make it, in your reasonable judgment,
impracticable to market the Designated Preferred Securities or enforce contracts
for the sale of the Designated Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the
American Stock Exchange or The Nasdaq Stock Market's National Market shall have
been suspended, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been required, by any of
said exchanges or market system or by the Commission or any other governmental
authority; or
(f) A banking moratorium shall have been declared by
either federal, New York or Indiana authorities; or
(g) Any action shall have been taken by any government in
respect of its monetary affairs which, in your reasonable judgment, has a
material adverse effect on the United States securities markets so as to make
it, in your reasonable judgment, impracticable to market the Designated
Preferred Securities or to enforce contracts for the sale of the Designated
Preferred Securities.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. DEFAULT OF UNDERWRITERS.
If any Underwriter or Underwriters shall default in its or their
obligations to purchase Designated Preferred Securities hereunder, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Designated Preferred Securities which
such defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that the non-defaulting
36
Underwriters shall be under no obligation to purchase such Designated Preferred
Securities if the aggregate number of Designated Preferred Securities to be
purchased by such non-defaulting Underwriters shall exceed 110% of the aggregate
underwriting commitments set forth in Schedule I hereto, and provided further,
that no non-defaulting Underwriter shall be obligated to purchase Designated
Preferred Securities to the extent that the number of such Designated Preferred
Securities is more than 110% of such Underwriter's underwriting commitment set
forth in Schedule I hereto.
In the event that the non-defaulting Underwriters are not obligated
under the above paragraph to purchase the Designated Preferred Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representatives may in their discretion arrange for one or more of the
Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representatives do not arrange for the purchase of such
Designated Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representatives to purchase such Designated Preferred
Securities on such terms.
In the event that the Representatives or the Company do not arrange for
the purchase of any Designated Preferred Securities to which a default relates
as provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Preferred Securities
of a defaulting Underwriter or Underwriters as provided in this Section 9, (i)
you shall have the right to postpone the Closing Date for a period of not more
than five full business days, in order to effect any changes that, in the
opinion of counsel for the Underwriters or the Company, may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file any amendments
to the Registration Statement or supplements to the Prospectus which, in its
opinion, may thereby be made necessary and (ii) the respective numbers of
Designated Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of any liability it may have for damages
occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 9 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 5 and except for the provisions of Section 7.
10. EFFECTIVE DATE OF AGREEMENT.
If the Registration Statement is not effective at the time of execution
of this Agreement, this Agreement shall become effective on the Effective Date
at the time the Commission declares the Registration Statement effective. The
Company shall immediately notify the Underwriters when the Registration
Statement becomes effective.
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. St. Louis time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Representatives shall
release the Designated Preferred Securities for initial public offering. The
Representatives shall notify the Offerors immediately after they have taken any
action which causes this Agreement to become effective.
37
Until such time as this Agreement shall have become effective, it may
be terminated by the Offerors, by notifying you or by you, as the
Representatives of the several Underwriters, by notifying either Offeror, except
that the provisions of Sections 5 and 7 shall at all times be effective.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
The representations, warranties, indemnities, agreements and other
statements of the Offerors and their officers and trustees set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Offerors or controlling persons
of either Offeror, or by or on behalf of the Underwriters or controlling persons
of the Underwriters and shall survive delivery of and payment for the Designated
Preferred Securities.
12. NOTICES.
Except as otherwise provided in this Agreement, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand, mailed by registered or certified mail, return
receipt requested, or transmitted by any standard form of telecommunication and
confirmed. Notices to the Offerors shall be sent to 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx 00000 Attention: Xxxxxxx X. Xxxxxxxx (with a copy to Vedder,
Price, Xxxxxxx & Kammholz, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000
Attention: Xxxxxxxx X. Xxxxx) and notices to the Underwriters shall be sent to
Xxxxxx, Xxxxxxxx & Company, Incorporated, 000 Xxxxx Xxxxxxxx, 0xx Xxxxx, Xx.
Xxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx (with a copy to Xxxxx, Xxxx &
Xxxxxxxx, X.X., 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxx, Esq.). In all dealings with the Company under this
Agreement, Xxxxxx, Xxxxxxxx & Company, Incorporated shall act as representative
of and on behalf of the several Underwriters, and the Company shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
the Underwriters, made or given by Xxxxxx, Xxxxxxxx & Company, Incorporated on
behalf of the Underwriters, as if the same shall have been made or given in
writing by the Underwriters.
13. PARTIES.
The Agreement herein set forth is made solely for the benefit of the
Underwriters and the Offerors and, to the extent expressed, directors, trustees
and officers of the Offerors, any person controlling the Offerors or the
Underwriters, and their respective successors and assigns. No other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, in his status as such
purchaser, from the Underwriters of the Designated Preferred Securities.
14. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Missouri,
without giving effect to the choice of law or conflicts of law principles
thereof.
15. AUTHORITY.
Any certificate signed by an authorized officer of the Company or the
Trust and delivered to either of the Representatives or to counsel for the
Underwriters pursuant to this Agreement shall be deemed a representation and
warranty by the Company and the Trust to the Underwriters as to the matters
covered thereby.
38
16. COUNTERPARTS.
This Agreement may be executed by facsimile and in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
Signatures appear on the next page
39
If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement among the Company, the Trust and you in
accordance with its terms.
Very truly yours,
XXXXX FINANCIAL CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
ATTEST:
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
IFC CAPITAL TRUST VI
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
For itself and as co-representative of the several
Underwriters named in Schedule I hereto.
RBC XXXX XXXXXXXX INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
For itself and as co-representative of the several
Underwriters named in Schedule I hereto.
40
SCHEDULE I
----------
UNDERWRITER NUMBER OF SECURITIES
Xxxxxx, Xxxxxxxx & Company, Incorporated..............................
RBC Xxxx Xxxxxxxx Inc.................................................
EXHIBIT A
---------
LIST OF SUBSIDIARIES
XXXXX FINANCIAL CORPORATION
Xxxxx Union Bank and Trust Company
100%
Xxxxx Union Realty Corporation
100%
Xxxxx Union Collateral, Inc.
100%
Xxxxx Commercial Finance Corporation
95%
Xxxxx Business Finance Corporation
96.5%
Xxxxx Franchise Capital Corporation
95%
Xxxxx International Corporation
100%
Onset Capital Corporation
77.88%
Onset Alberta Ltd.
100%
Xxxxx Union Securities, Inc.
100%
Xxxxx Reinsurance Corporation
100%
Xxxxx Union Insurance, Inc.
100%
Xxxxx Union Advisory Services, Inc.
100%
Xxxxx Home Equity Corporation
90%
IHE Funding Corp. II
100%
Xxxxx Union Investor Services, Inc.
100%
Xxxxx Union Bank, F.S.B.
100%
IFC Capital Trust I
100%
IFC Capital Trust II
100%
IFC Capital Trust III
100%
IFC Capital Trust IV
100%
IFC Capital Trust V
100%
Xxxxx Union Credit Insurance Corp.
100%
Xxxxx Residual Holdings Corporation
100%
Xxxxx Funding Corp.
100%
Xxxxx Funding Corp. II
100%
Xxxxx Residual Holdings Corporation II
90%
IHE Funding Corp.
100%
IFC Mortgage Corporation
100%
Xxxxx Mortgage Corporation
100%
Xxxxx Ventures LLC
100%
Xxxxx Ventures SBIC LLC
100%
Xxxxx Equipment Finance Corp.
100%
Xxxxx Leasing Corporation
100%
