$25,000,000*
GBCI CAPITAL TRUST
GOLD BANC CORPORATION, INC.
_____% Preferred Securities
(Liquidation Amount $25 per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
_______ __, 1997
ADVEST, INC.
As Representative of the Several
Underwriters
Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GBCI Capital Trust (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C. Section 3801 et
seq.), and Gold Banc Corporation, Inc., a Kansas corporation (the "Company"), as
depositor of the Trust and as guarantor, hereby confirm their agreement with you
and the several underwriters, on whose behalf you have been duly authorized to
act as their representative (the "Representative"), as follows:
SECTION 1. Introduction. The Company agrees, upon the terms and conditions
------------
set forth in this Underwriting Agreement (this "Agreement"), to issue and sell
to the several underwriters identified in Schedule A annexed hereto (the
"Underwriters"), who are acting severally and not jointly, an aggregate
liquidation amount of $25,000,000 (the "Firm Securities") of the Trust's _____%
preferred securities (the "Preferred Securities"). The Trust and the Company
also propose to issue and sell to the
______________________
* Plus an option to acquire up to an additional $3,750,000 aggregate
liquidation amount of Preferred Securities from the Trust to cover over-
allotments.
Underwriters, at the Underwriters' option, up to an additional $3,750,000
aggregate Liquidation Amount of Preferred Securities (the "Option Securities")
as set forth herein. The term "Preferred Securities" as used herein, unless
indicated otherwise, shall mean the Firm Securities and the Option Securities.
The Preferred Securities and the Common Securities (as defined herein) are
to be issued pursuant to the terms of an Amended and Restated Trust Agreement
dated as of ______ __, 1997 (the "Trust Agreement"), among the Company, as
depositor, and, together with the Trust, the "Offerors," and Bankers Trust
Company ("Trust Company"), a New York banking corporation, as property trustee
("Property Trustee") and Bankers Trust (Delaware) ("Trust Delaware" and,
together with the Trust Company, "Trustees"), a Delaware banking corporation, as
Delaware trustee ("Delaware Trustee") and the holders from time to time of
undivided interests in the assets of the Trust. The Preferred Securities will be
guaranteed by the Company on a subordinated basis and subject to certain
limitations with respect to distributions and payments upon liquidation,
redemption or otherwise (the "Guarantee") pursuant to the Guarantee Agreement
dated as of ______ __, 1997 (the "Guarantee Agreement"), between the Company and
the Trust Company, as Trustee (the "Guarantee Trustee"). The assets of the Trust
will consist of _____% junior subordinated deferrable interest debentures, due
________ __, 2027 (the "Subordinated Debentures") of the Company which will be
issued under a Junior Subordinated Indenture dated as of _____ __, 1997 (the
"Indenture"), between the Company and the Trust Company, as Trustee (the
"Indenture Trustee"). Under certain circumstances, the Subordinated Debentures
will be distributable to the holders of undivided beneficial interests in the
assets of the Trust. The entire proceeds from the sale of the Preferred
Securities will be combined with the entire proceeds from the sale by the Trust
to the Company of the Trust's common securities (the "Common Securities"), and
will be used by the Trust to purchase an equivalent amount of the Subordinated
Debentures.
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form SB-2 (Nos. 333-__________ and
333-__________-01) and a related preliminary prospectus for the registration of
the Preferred Securities, the Guarantee and the Subordinated Debentures under
the Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations thereunder (the "Securities Act Regulations"). The Offerors have
prepared and filed such amendments thereto, if any, and such amended preliminary
prospectuses, if any, as may have been required to the date hereof, and will
file such additional amendments thereto and such amended prospectuses as may
hereafter be required. The registration statement has been declared effective
under the
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Securities Act by the Commission. The registration statement as amended at the
time it became effective (including the prospectus and all information deemed to
be a part of the registration statement at the time it became effective pursuant
to Rule 430A(b) of the Securities Act Regulations) is hereinafter called the
"Registration Statement," except that, if the Company files a post-effective
amendment to such registration statement which becomes effective prior to the
Closing Date (as defined below), "Registration Statement" shall refer to such
registration statement as so amended. Each prospectus included in the
registration statement, or amendments thereof, before it became effective under
the Securities Act and any prospectus filed with the Commission by the Company
with the consent of the Underwriters pursuant to Rule 424(a) of the Securities
Act Regulations (including the documents incorporated by reference therein) is
hereinafter called the "Preliminary Prospectus." The term "Prospectus" means the
final prospectus (including the documents incorporated by reference therein, if
any), as first filed with the Commission pursuant to paragraph (1) or (4) of
Rule 424(b) of the Securities Act Regulations. The Commission has not issued any
order preventing or suspending the use of any Preliminary Prospectus.
SECTION 2. Representations and Warranties. Each of the Offerors represents
------------------------------
and warrants to, and agrees with, each of the Underwriters as follows:
(a) The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Kansas with full
power and authority (corporate and other) to own, lease, and operate its
properties and conduct its business as described in the Prospectus (as defined
in Section 2(e) of this Agreement); the Company is duly registered under the
Bank Holding Company Act of 1956, as amended; the Company has no subsidiaries
except those described in the Registration Statement (each a "Subsidiary"); the
Company owns, directly or indirectly, beneficially and of record all of the
outstanding capital stock of each Subsidiary free and clear of any claim, lien,
encumbrance or security interest, except as described in the Prospectus. The
Company and each of its Subsidiaries is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which any of them
own or lease properties, has an office, or in which the business conducted by
any of them make such qualification necessary, except where the failure to so
qualify would not have a material adverse effect on the condition (financial or
otherwise), business, prospects, assets, properties, results of operations, or
net worth of the Company and its Subsidiaries taken as a whole ("Material
Adverse Effect"); and no proceeding has been instituted in any jurisdiction
revoking, limiting or curtailing, or seeking to
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revoke, limit or curtail, such power and authority or qualification.
(b) The Preferred Securities have been duly and validly authorized
for issuance and sale to the Underwriters pursuant to this Agreement and, when
executed and authenticated in accordance with the terms of the Trust Agreement
and delivered to the Underwriters against payment of the consideration set forth
herein, will constitute valid and legally binding obligations of the Trust
enforceable in accordance with their terms and entitled to the benefits provided
by the Trust Agreement (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws relating to or affecting
creditors' rights generally or general equity principles (whether considered in
a proceeding in equity or at law)). The Trust Agreement has been duly authorized
and, when executed by the proper officers of the Trust and delivered by the
Trust, will have been duly executed and delivered by the Trust and will
constitute the valid and legally binding instrument of the Trust, enforceable in
accordance with its terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws relating to or affecting
creditors' rights generally or general equity principles (whether considered in
a proceeding in equity or at law)). The Subordinated Debentures have been duly
and validly authorized for delivery by the Company and, when duly authenticated
in accordance with the terms of the Indenture and delivered to the Trust against
payment of the consideration set forth herein, will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance
with their terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, readjustment of debt,
moratorium, fraudulent conveyance or similar laws relating to or affecting
creditors' rights generally or general equity principles (whether considered in
a proceeding in equity or at law)) and entitled to the benefits provided by the
Indenture. The Indenture has been duly authorized and, when executed by the
proper officers of the Company and delivered by the Company, will have been duly
executed and delivered by the Company and will constitute the valid and legally
binding instrument of the Company, enforceable in accordance with its terms,
(except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, readjustment of debt, moratorium,
fraudulent conveyance or similar laws relating to or affecting creditors' rights
generally or general equity principles (whether considered in a proceeding in
equity or at law)). The Guarantee Agreement has been duly authorized and, when
executed by the proper officers of the Company and delivered by the Company,
will have been duly
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executed and delivered by the Company and will constitute the valid and legally
binding instrument of the Company, enforceable in accordance with its terms,
(except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, readjustment of debt, moratorium,
fraudulent conveyance or similar laws relating to or affecting creditors' rights
generally or general equity principles (whether considered in a proceeding in
equity or at law)). The Trust Agreement, the Guarantee Agreement, and the
Indenture have been duly qualified under the Trust Indenture Act; and the
Preferred Securities, the Common Securities, the Trust Agreement, the Guarantee
Agreement, the Subordinated Debentures and the Indenture conform in all material
respects to the descriptions thereof contained in the Registration Statement and
the Prospectus.
(c) Neither the Trust nor the Company or any Subsidiary, is, or with
the giving of notice or lapse of time or both will be, in violation or breach
of, or in default under, nor will the execution or delivery of, or the
performance and consummation of the transactions contemplated by this Agreement
(including the offer, sale, or delivery of the Preferred Securities), conflict
with, or result in a violation or breach of, or constitute a default under, any
provision of the organization documents of the Trust or the Articles of
Incorporation, Bylaws (as amended or restated) of the Company, or other
governing documents of the Trust, the Company or any Subsidiary, or of any
provision of any agreement, contract, mortgage, deed of trust, lease, loan
agreement, indenture, note, bond, or other evidence of indebtedness, or other
material agreement or instrument to which the Trust, the Company or any
Subsidiary is a party or by which any of them is bound or to which any of their
properties is subject, nor will the performance by the Offerors of their
obligations hereunder violate any rule, regulation, order, or decree, applicable
to the Trust, the Company or any Subsidiary of any court or any regulatory body,
administrative agency, or other governmental body having jurisdiction over the
Trust, the Company or any Subsidiary or any of their respective properties, or
any order of any court or governmental agency or authority entered in any
proceeding to which the Trust, the Company or any Subsidiary was or is now a
party or by which it is bound, except those, if any, described in the Prospectus
or which are not material to the Company and the Trust taken as a whole. No
consent, approval, filing, authorization, registration, qualification, or order,
including with or by any bank regulatory agency, is required for the execution,
delivery, and performance of this Agreement or the consummation of the
transactions contemplated by this Agreement, other than such that have been
obtained or made, except for compliance with the Securities Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the Blue Sky Laws
applicable to the public offering of the Preferred Securities by
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the Underwriters, the clearance of such offering and the underwriting
arrangements evidenced hereby with the National Association of Securities
Dealers, Inc. ("NASD"), and the listing of the Preferred Securities on the
Nasdaq Stock Market. This Agreement has been duly authorized, executed and
delivered by the Company and the Trust and constitutes a valid and binding
obligation of the Company and the Trust and is enforceable against the Company
and the Trust in accordance with its terms.
(d) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus, and each Preliminary Prospectus complies
in all material respects with the requirements of the Securities Act and the
Securities Act Regulations. As of the effective date of the Registration
Statement, and at all times subsequent thereto up to the Closing Date or any
Option Closing Date (as defined below), the Registration Statement and the
Prospectus, and any amendments or supplements thereto, contained or will contain
all material statements that are required to be stated therein in accordance
with the Securities Act and the Securities Act Regulations and conformed or will
conform in all material respects to the requirements of the Securities Act and
the Securities Act Regulations, and neither the Registration Statement nor the
Prospectus, nor any amendment or supplement thereto included or will include any
untrue statement of a material fact or omitted or will omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that no representation or warranty is made as
to information contained in or omitted from the Registration Statement, the
Prospectus or any amendment or supplement in reliance upon and in conformity
with written information furnished to the Company and the Trust by or on behalf
of the Underwriters.
(e) KPMG Peat Marwick, LLP, which has audited, reviewed, and
expressed its opinion with respect to certain of the financial statements and
schedules filed with the Commission as a part of the Registration Statement and
included or to be included, as the case may be, in the Prospectus and in the
Registration Statement, and whose report is included in the Prospectus and the
Registration Statement are independent accountants as required by the Securities
Act and the Securities Act Regulations.
(f) The financial statements and schedules and the related notes
thereto included or to be included, as the case may be, in the Registration
Statement, the Preliminary Prospectus, and the Prospectus present fairly the
financial position of the entities purported to be shown thereby as of the
respective dates of such financial statements and schedules, and the results of
operations and changes in equity and in cash flows of the entities purported to
be shown thereby for the respective periods covered
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thereby, all in conformity with generally accepted accounting principles
consistently applied throughout the periods involved, except as may be disclosed
in the Prospectus. All adjustments necessary for a fair presentation of the
results of such periods have been made. The Company had an outstanding
capitalization as set forth under "Capitalization" in the Prospectus as of the
date indicated therein and there has been no material change therein since such
date except as disclosed in the Prospectus. The financial, operating, and
statistical information set forth in the Prospectus under captions "Prospectus
Summary," "Selected Consolidated Financial Data," "Use of Proceeds,"
"Capitalization," "Management's Discussion and Analysis of Financial Condition
and Results of Operations," "Business" and "Management" are fairly presented and
prepared on a basis consistent with the audited financial statements of the
Company.
(g) There is no litigation or governmental proceeding, action, or
investigation pending or, to the knowledge of the Trust or the Company,
threatened, to which the Trust, the Company or any Subsidiary is or may be a
party or to which property owned or leased by the Company or any Subsidiary is
or may be subject, or related to environmental or discrimination matters, which
is required to be disclosed in the Registration Statement or the Prospectus by
the Securities Act or the Securities Act Regulations and is not so disclosed, or
which questions the validity of this Agreement or any action taken or to be
taken pursuant hereto.
(h) Either the Company or a Subsidiary, as the case may be, has good
and marketable title in fee simple to all items of real property and good and
marketable title to all the personal properties and assets reflected as owned by
the Company or a Subsidiary in the Prospectus (or elsewhere in the Registration
Statement), in each case clear of all liens, mortgages, pledges, charges, or
encumbrances of any kind or nature except those, if any, reflected in the
financial statements described above (or elsewhere in the Registration
Statement) or which are not material to the Company and its Subsidiaries taken
as a whole; all properties held or used by the Company or a Subsidiary under
leases, licenses, franchises or other agreements are held by them under valid,
existing, binding, and enforceable leases, franchises, licenses, or other
agreements with respect to which it is not in default.
(i) Neither the Trust nor the Company or any Subsidiary has taken or
will take, directly or indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected to constitute,
stabilization or manipulation, under the Exchange Act or otherwise, of the price
of the Preferred Securities.
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(j) Except as reflected in or contemplated by the Registration
Statement, since the respective dates as of which information is given in the
Registration Statement and prior to the Closing Date and Option Closing Date (as
such terms are hereinafter defined):
(i) neither the Company nor any Subsidiary has or will have
incurred any material liabilities or obligations, direct or contingent, or
entered into any material transaction not in the ordinary course of business
without the prior consent of the Representative;
(ii) neither the Company nor any Subsidiary has or will have
paid or declared any dividend or other distribution with respect to its capital
stock and neither the Company nor any Subsidiary has or will be delinquent in
the payment of principal or interest on any outstanding debt obligations; and
(iii) there has not been and will not be any change in the
capital stock or any material change in the indebtedness of the Company or any
Subsidiary (except as may result from the closing of the transactions
contemplated by this Agreement), or any adverse change in the condition
(financial or otherwise), or any development involving a prospective adverse
change in their respective businesses (resulting from litigation or otherwise),
prospects, properties, condition (financial or otherwise), net worth, or results
of operations which is material to the Company and its Subsidiaries taken as a
whole.
(k) There is no contract or other document, transaction, or
relationship required to be described in the Registration Statement, or to be
filed as an exhibit to the Registration Statement, by the Securities Act or by
the Securities Act Regulations that has not been described or filed as required.
(l) All documents delivered or to be delivered by the Offerors or any
of their representatives in connection with the issuance and sale of the
Preferred Securities were on the dates on which they were delivered, or will be
on the dates on which they are to be delivered, true, complete, and correct in
all material respects.
(m) The Company and each Subsidiary have filed all necessary federal
and all state and foreign income and franchise tax returns and paid all taxes
shown as due thereon; and no tax deficiency has been asserted or threatened
against the Company or any Subsidiary that would have a Material Adverse Effect,
except as described in the Prospectus.
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(n) Neither the Trust nor the Company or any Subsidiary has, directly
or indirectly, at any time:
(i) made any unlawful contribution to any candidate for
political office, or failed to disclose any contribution in violation of law; or
(ii) made any payment to any federal, state, local, or foreign
government officer or official, or other person charged with similar public or
quasi-public duties, other than payments required or permitted by the laws of
the United States or any jurisdiction thereof or applicable foreign
jurisdictions.
(o) The Company or a Subsidiary owns or possesses adequate rights to
use all patents, patent applications, trademarks, service marks, trade names,
trademark registrations, servicemark registrations, copyrights, and licenses
necessary for the conduct of the business of the Company and the Subsidiaries or
ownership of their respective properties, and neither the Company nor any
Subsidiary has received notice of conflict with the asserted rights of others in
respect thereof which has not been resolved.
(p) The Company and each Subsidiary have in place and effective such
policies of insurance, with limits of liability in such amounts, as are normal
and prudent in the ordinary scope of business similar to that of the Company and
such Subsidiary in the respective jurisdiction in which they conduct business.
(q) The Company and each Subsidiary have and hold, and at the Closing
Date or Option Closing Date will have and hold, and are operating in compliance
with, and have fulfilled and performed all of their material obligations with
respect to, all permits, certificates, franchises, grants, easements, consents,
licenses, approvals, charters, registrations, authorizations, and orders
(collectively, "Permits") required under all laws, rules, and regulations in
connection with their respective businesses, and all of such Permits are in full
force and effect; and there is no pending proceeding, and neither the Company
nor any Subsidiary has received notice of any threatened proceeding, relating to
the revocation or modification of any such Permits. Neither the Company nor any
Subsidiary is (by virtue of any action, omission to act, contract to which it is
a party or by which it is bound, or any occurrence or state of facts whatsoever)
in violation of any applicable federal, state, municipal, or local statutes,
laws, ordinances, rules, regulations and/or orders issued pursuant to foreign,
federal, state, municipal, or local statutes, laws, ordinances, rules, or
regulations (including those relating to any aspect of banking, bank holding
companies, environmental protection, occupational safety and health, and equal
employment
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practices) heretofore or currently in effect, except such violation that has
been fully cured or satisfied without recourse or that is not reasonably likely
to have a Material Adverse Effect.
(r) The provisions of any employee pension benefit plan ("Pension
Plan") as defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), in which the Company or any Subsidiary is a
participating employer are in substantial compliance with ERISA, and neither the
Company nor any Subsidiary is in violation of ERISA. The Company, each
Subsidiary, or the plan sponsor thereof, as the case may be, has duly and timely
filed the reports required to be filed by ERISA in connection with the
maintenance of any Pension Plans in which the Company or any Subsidiary is a
participating employer, and no facts, including any "reportable event" as
defined by ERISA and the regulations thereunder, exist in connection with any
Pension Plan in which the Company or any Subsidiary is a participating employer
which might constitute grounds for the termination of such plan by the Pension
Benefit Guaranty Corporation or for the appointment by the appropriate U.S.
District Court of a trustee to administer any such plan. The provisions of any
employee benefit welfare plan, as defined in Section 3(1) of ERISA, in which the
Company or any Subsidiary is a participating employer, are in substantial
compliance with ERISA, and the Company, any Subsidiary, or the plan sponsor
thereof, as the case may be, has duly and timely filed the reports required to
be filed by ERISA in connection with the maintenance of any such plans.
(s) Neither the Company nor the Trust is an open-end investment
company, unit investment trust or face-amount certificate company that is, or is
required to be, registered under Section 8 of the Investment Company Act of
1940, as amended, or subject to regulation under such Act.
(t) The deposits of Exchange National Bank, Provident Bank, f.s.b.,
Farmers National Bank, Peoples National Bank, and Citizens State Bank and Trust
Company are each insured by the Federal Deposit Insurance Corporation ("FDIC")
up to the legal limits.
(u) Neither this Agreement nor any certificate, statement or other
document delivered or to be delivered by the Offerors or any Subsidiary contains
or will contain any untrue statement of a material fact or omits or will omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
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Any certificate signed by any director or officer of the Company or the
Trust, as the case may be, and delivered to the Representative or to counsel for
the Underwriters shall be deemed a representation and warranty of the Company or
the Trust, as the case may be, to the Underwriters as to the matters covered
thereby.
Any certificate delivered by the Company or the Trust, as the case may be,
to their respective counsel for purposes of enabling such counsel to render an
opinion pursuant to Section 8 will also be furnished to the Representative and
counsel for the Underwriters and shall be deemed to be additional
representations and warranties to the Underwriters by the Company and the Trust
as to the matters covered thereby.
SECTION 3. Purchase Sale and Delivery to Underwriters, Closing. On the
---------------------------------------------------
basis of the representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Trust and the Company, as the case
may be, agree that the Trust will issue and sell to the Underwriters, and each
of the Underwriters agrees, severally and not jointly to purchase from the
Trust, the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule A at a purchase price of $25 per Firm Security.
Payment of the purchase price for, and delivery of, the Firm Securities
shall be made at the offices of Xxxxxx & Xxxxxx, 555 Twelfth Street, N.W.,
Washington, D.C., or at such other place as shall be agreed upon by the
Representative, the Trust and the Company, at 9:00 A.M. Eastern Time, on the
fourth business day (unless postponed in accordance with the provisions of
Section 14) following the date of this Agreement, or such other time not later
than ten (10) business days after such date as shall be agreed upon by the
Representative, the Trust and the Company (such time and date of payment and
delivery being herein called the "Closing Date").
As compensation (the "Underwriting Commission") for the commitments of the
Underwriters contained in this Section 3, the Company hereby agrees to pay to
the Underwriters an amount equal to 4.0% of the public offering price of the
Preferred Securities. Such payment will be made on the Closing Date or on the
Option Closing Date (as defined below) with respect to the Option Securities.
Payment for the Firm Securities shall be made to the Trust by wire transfer
of immediately available funds, against delivery to the Underwriter of the Firm
Securities to be purchased by it. The Firm Securities shall be issued in the
form of one or more fully registered global securities (the "Global Securities")
in
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book-entry form in such denominations and registered in the name of the nominee
of The Depository Trust Company (the "DTC") or in such names as the
Representative may request in writing at least two business days before the
Closing Date. The Global Securities representing the Firm Securities shall be
made available for examination by the Representative and counsel to the
Underwriters not later than 9:30 A.M. Eastern Time on the last business day
prior to the Closing Date.
In addition, on the basis of the representations, warranties, and
agreements contained herein, but subject to the terms and conditions set forth
herein, the Trust hereby grants to the Underwriters an option to purchase,
severally and not jointly, from the Trust the Option Securities in the same
proportion as the number of Preferred Securities set forth opposite their names
on Schedule A bears to the total number of Firm Securities, at the same purchase
price per Preferred Security to be paid for the Firm Securities, for use solely
in covering any over-allotments made by the Underwriters in the sale and
distribution of the Firm Securities. The option granted hereunder may be
exercised at any time (but not more than once) within thirty (30) days after the
date of this Agreement, upon notice by the Representative to the Trust which
sets forth the aggregate liquidation amount of Option Securities as to which the
Underwriters are exercising the option, and the time and place at which the
certificate representing the Option Securities will be delivered. Such time of
delivery may not be earlier than the Closing Date and herein is called the
"Option Closing Date." The Option Closing Date shall be determined by the
Representative, but if at any time other than the Closing Date, shall not be
earlier than three nor later than five full business days after delivery of such
notice to exercise. Certificates for the Option Securities will be made
available for inspection at least 24 hours prior to the Option Closing Date at
the offices of the DTC, or its designated custodian, or at such other location
as specified by the Representative. The manner of payment for a delivery of the
Option Securities shall be the same as for the Firm Securities as specified in
this Section 3.
SECTION 4. Representations and Warranties of the Underwriters. The
--------------------------------------------------
Representative, on behalf of the Underwriters, represents and warrants to the
Company that the information set forth on the inside front cover page of the
Prospectus relating to stabilization and in the third, fifth, and eighth
paragraphs of the section in the Prospectus entitled "Underwriting" was the only
written information furnished to the Company by and on behalf of any Underwriter
expressly for use in connection with the preparation of the Registration
Statement, and is correct and complete in all material respects and does not
include any untrue statement of a material fact or omit to state any material
fact
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required to be stated therein or necessary to make the statements therein not
misleading.
SECTION 5. Offering by the Underwriters. The Trust and the Company are
----------------------------
advised by the Representative that the Underwriters propose to make a public
offering of the Preferred Securities, on the terms and conditions set forth in
the Registration Statement from time to time as and when the Underwriters deem
advisable after the Registration Statement becomes effective. Because the NASD
is expected to view the Preferred Securities as interests in a direct
participation program, the offering of the Preferred Securities is being made in
compliance with the applicable provisions of Rule 2810 of the NASD's Conduct
Rules.
SECTION 6. Agreements of the Offerors. Each of the Offerors covenants and
--------------------------
agrees with the Underwriter that:
(a) If any information shall have been omitted from the Registration
Statement in reliance upon Rule 430A, the Company, at the earliest possible
time, will furnish the Representative with a copy of the Prospectus to be filed
by the Offerors with the Commission to comply with Rule 424(b) and Rule 430A
under the Securities Act, and, will file such Prospectus with the Commission in
compliance with such Rules. Upon compliance with such Rules, the Company will so
advise the Representative promptly. The Company will advise the Representative
and counsel to the Underwriters promptly of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of
the institution of any proceedings for that purpose, or of any notification
received by the Company of the suspension of qualification of the Preferred
Securities for sale in any jurisdiction or the initiation or threatening of any
proceedings for that purpose. The Company also will advise the Representative
and counsel to the Underwriters promptly of any request of the Commission for
amendment or supplement of the Registration Statement, of any Preliminary
Prospectus, or of the Prospectus, or for additional information, and the
Offerors will not file any amendment or supplement to the Registration Statement
(either before or after it becomes effective), to any Preliminary Prospectus, or
to the Prospectus (including a prospectus filed pursuant to Rule 424(b)) if the
Representative has not been furnished with a copy prior to such filing or if the
Representative reasonably objects to such filing.
(b) For the period during which a Prospectus relating to the
Preferred Securities is required to be delivered under the Securities Act, the
Offerors shall comply with all requirements imposed on them by the Securities
Act, as now and hereafter amended, and by the Securities Act Regulations, as
from time to
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time in force, so far as is necessary to permit the continuance of sales or
dealings in the Preferred Securities as contemplated by the provisions hereof
and the Prospectus. If any event occurs as a result of which the Prospectus,
including any subsequent amendment or supplement, would include an untrue
statement of a material fact, or would omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it
becomes necessary at any time to amend the Prospectus, including any amendment
or supplement thereto, to comply with the Securities Act, the Company promptly
will advise the Representative and counsel to the Underwriters thereof and the
Offerors will promptly prepare and file with the Commission an amendment or
supplement that will correct such statement or omission or an amendment that
will effect such compliance; and, if any Underwriter is required to deliver a
prospectus nine (9) months or more after the effective date of the Registration
Statement, the Company, upon request of the Representative but at the expense of
such Underwriter, will prepare promptly such prospectus or prospectuses as may
be necessary to permit compliance with the requirements of Section 10(a)(3) of
the Securities Act.
(c) The Offerors will not, prior to the Option Closing Date or thirty
(30) days after the date of this Agreement, whichever occurs first, without the
prior consent of the Representative, incur any material liability or obligation,
direct or contingent, or enter into any material transaction, other than in the
ordinary course of business, or any transaction with a related party which is
required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-
K under the Securities Act, except as contemplated by the Prospectus.
(d) The Company will make generally available to its security holders
and the Representative an earnings statement of the Company as soon as
practicable, but in no event later than fifteen (15) months after the end of the
Company's current fiscal quarter, covering a period of twelve (12) consecutive
calendar months beginning after the effective date of the Registration
Statement, but beginning not later than four (4) months after such effective
date, which will satisfy the provisions of the last subsection of Section 11(a)
of the Securities Act and Rule 158 promulgated thereunder.
(e) During such period as a prospectus is required by law to be
delivered in connection with sales by an underwriter or dealer, the Company will
furnish to the Representative, at the expense of the Company, copies of the
Registration Statement, the Prospectus, any Preliminary Prospectus, and all
amendments and supplements to any such documents in each case as soon as
- 14 -
available and in such quantities as the Representative may reasonably request,
for the purposes contemplated by the Securities Act.
(f) The Offerors will use their best efforts to take or cause to be
taken in cooperation with the Representative and counsel to the Underwriters all
actions required in qualifying or registering the Preferred Securities for sale
under the Blue Sky Laws of such jurisdictions as the Representative may
reasonably designate, provided the Offerors shall not be required to qualify
generally as foreign corporations or as a dealer in securities or to consent
generally to the service of process under the law of any such state (except with
respect to the offering and sale of the Preferred Securities), and will continue
such qualifications or registrations in effect so long as reasonably requested
by the Representative to effect the distribution of the Preferred Securities
(including, without limitation, compliance with all undertakings given pursuant
to such qualifications or registrations). In each jurisdiction where any of the
Preferred Securities shall have been qualified as provided above, the Offerors
will file such reports and statements as may be required to continue such
qualification for a period of not less than one (1) year from the date of this
Agreement.
(g) The Company will furnish to its security holders annual reports
containing financial statements audited by independent public accountants.
During the period ending three (3) years after the date of this Agreement, (i)
as soon as practicable after the end of the fiscal year, the Company will
furnish to the Representative two copies of the annual report of the Company
containing the audited consolidated balance sheet of the Company as of the close
of such fiscal year and corresponding audited consolidated statements of
earnings, stockholders' equity and cash flows for the year then ended, and (ii)
the Company will file promptly and will furnish to the Representative at or
before the filing thereof copies of all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13, 14, or 15 of the Exchange Act. During such three-year
period the Company also will furnish to the Representative one copy of the
following:
(i) as soon as practicable after the filing thereof, each other
report, statement, or other document filed by the Company with the Commission;
(ii) as soon as practicable after the filing thereof, all
reports, statements, other documents and financial statements furnished by the
Company to Nasdaq pursuant to requirements of or agreements with Nasdaq; and
- 15 -
(iii) as soon as available,each report, statement, or other
document of the Company mailed to its stockholders.
(h) The Offerors will use their best efforts to satisfy or cause to
be satisfied the conditions to the obligations of the Underwriters in Section 8
hereof.
(i) The Offerors shall deliver the requisite notice of issuance to
the NASD and shall take all necessary or appropriate action within its power to
maintain the authorization for trading of the Preferred Securities on the Nasdaq
Stock Market for a period of at least thirty-six (36) months after the date of
this Agreement.
(j) The Trust shall comply in all respects with the undertakings
given by the Trust in connection with the qualification or registration of the
Preferred Securities for offering and sale under the Blue Sky Laws.
(k) The Trust shall apply the proceeds from its sale of the Preferred
Securities, combined with the entire proceeds from the sale by the Trust to the
Company of the Trust's Common Securities, to purchase an equivalent amount of
Subordinated Debentures. All the proceeds to be received by the Company from the
sale of the Subordinated Debentures will be used in the manner and for the
purposes specified under the heading "Use of Proceeds" in the Prospectus. The
Offerors shall file, and will furnish or cause to be furnished to the
Underwriter and counsel to the Underwriters copies of all reports as may be
required in accordance with Rule 463 under the Securities Act.
(l) Except for the sale of Preferred Securities pursuant to this
Agreement, neither the Company nor any Subsidiary shall, directly or indirectly,
offer, sell, contract to sell, issue, distribute, grant any option, right, or
warrant to purchase or otherwise dispose of any shares of the Preferred
Securities or substantially similar securities, in the open market or otherwise,
for a period of one hundred eighty (180) days after the later of the effective
date of the Registration Statement or the date of this Agreement, without the
express prior written consent of the Representative.
SECTION 7. Payment of Expenses and Fees
----------------------------
(a) Whether or not the transactions contemplated hereunder are
consummated, or if this Agreement is terminated for any reason, the Company will
pay or cause to be paid the costs, fees, and expenses incurred in connection
with the offering of the Preferred Securities as follows:
- 16 -
(i) All costs, fees, and expenses incurred in connection with
the performance of the Company and the Trust's obligations hereunder, including
all fees and expenses of the Company and the Trust's accountants and counsel,
all costs and expenses incurred in connection with the preparation, printing,
filing, and distribution (including delivery and shipping costs) of the
Registration Statement, each Preliminary Prospectus, and the Prospectus
(including all amendments and exhibits thereto and the financial statements
therein), and agreements and supplements provided for herein, this Agreement and
other underwriting documents, including various Underwriters' letters, and the
Preliminary and Supplemental Blue Sky Memoranda;
(ii) All filing and registration fees and expenses, including
the legal fees and disbursements of counsel, incurred in connection with
qualifying or registering all or any part of the Preferred Securities, the
Guarantee and the Subordinated Debentures for offer and sale under the Blue Sky
Laws;
(iii) All fees and expenses of the Offerors' registrar and
transfer agent; all transfer taxes, if any, and all other fees and expenses
incurred in connection with the sale and delivery of the Preferred Securities to
the Underwriters;
(iv) The filing fees of the NASD and applicable fees charged by
Nasdaq for inclusion of the Preferred Securities for quotation on the National
Market System; and
(v) All other costs and expenses incident to the performance of
the Company's and the Trust's obligations hereunder which are not otherwise
provided for in this Section 7(a).
(b) On the consummation of the offering of the Preferred Securities,
the Company shall pay Advest, Inc. $25,000 as a financial advisory fee.
SECTION 8. Conditions to the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the Underwriters under this Agreement shall be subject to the
accuracy of the representations and warranties on the part of the Company and
the Trust set forth herein as of the Closing Date, and if applicable, as of the
Option Closing Date, as the case may be, to the accuracy of the statements of
the Offerors' directors and officers, to the performance by the Company and the
Trust of their obligations hereunder, and to the following additional
conditions, except to the extent expressly waived in writing by the
Representative:
- 17 -
(a) The Registration Statement and all post-effective amendments
thereto shall have been declared effective by the Commission no later than 5:30
p.m. Eastern Time, on the date of this Agreement, or such later time as shall
have been consented to by the Representative, but in any event not later than
5:30 p.m., Eastern Time, on the third full business day following the date
hereof; if the Offerors omitted information from the Registration Statement at
the time it became effective in reliance on Rule 430A under the Securities Act,
the Prospectus shall have been filed with the Commission in compliance with Rule
424(b) and Rule 430A under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or any amendment or supplement
thereto shall have been issued; no proceeding for the issuance of such an order
shall have been initiated or shall be pending or, to the knowledge of the
Offerors or the Representative, threatened or contemplated by the Commission;
and any request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have been
disclosed to the Representative and complied with to the Representative's
satisfaction.
(b) The Preferred Securities, the Guarantee and the Subordinated
Debentures shall have been qualified or registered for sale, or subject to an
available exemption from such qualification or registration, under the Blue Sky
Laws of such jurisdictions as shall have been reasonably specified by the
Representative and the offering contemplated by this Agreement shall have been
cleared by the NASD.
(c) Since the dates as of which information is given in the
Registration Statement:
(i) There shall not have been any material adverse change, or
any development involving a prospective material adverse change, in the ability
of the Company or any Subsidiary to conduct their respective business (whether
by reason of any court, legislative, other governmental action, order, decree,
or otherwise), or in the general affairs, condition (financial and otherwise)
business, prospects, properties, management, financial position or earnings,
results of operations, or net worth of the Company or any Subsidiary, whether or
not arising from transactions in the ordinary course of business; and
(ii) Neither the Company nor any Subsidiary shall have sustained
any loss or interference from any labor dispute, strike, fire, flood, windstorm,
accident, or other calamity (whether or not insured) or from any court or
governmental action, order, or decree; the effect of which on the Company or any
Subsidiary, in any such case described in clause (c)(i) or (ii) above, is in the
reasonable opinion of the Representative so
- 18 -
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Preferred Securities on the terms and
in the manner contemplated in the Registration Statement and the Prospectus.
(d) There shall have been furnished to the Representative on the
Closing Date and the Option Closing Date, except as otherwise expressly provided
below:
(i) An opinion of Xxxxxxxxx, Sanders, Matheny, Weary &
Xxxxxxxx, LLP, counsel to the Company, dated as of the Closing Date and any
Option Closing Date, in form and substance substantially in the form attached
hereto as Exhibit A.
(ii) The favorable opinion, dated the Closing Date and the
Option Closing Date, of White & Case, counsel to the Trust Company and Trust
Delaware, substantially in the form attached hereto as Exhibit B.
(iii) The favorable opinion, dated the Closing Date and the
Option Closing Date, of Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to
the Company and the Trust, substantially to the effect and in the form attached
hereto as Exhibit C.
(iv) The favorable opinion, dated the Closing Date and the
Option Closing Date, of Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to
Trust Delaware, substantially to the effect and in the form attached hereto as
Exhibit D.
(v) The favorable opinion, dated the Closing Date and the
Option Closing Date, of Xxxxxx & Xxxxxx, counsel to the Underwriters as to such
matters as the Representative shall reasonably request.
In rendering such opinions specified in clause (d)(ii), (iii) or
(iv) above, counsel may rely upon an opinion or opinions, each dated the Closing
Date and the Option Closing Date, of other counsel retained by them or the
Company as to laws of any jurisdiction other than the United States or the State
of New York, provided that (A) such reliance is expressly authorized by each
opinion so relied upon and a copy of each such opinion is delivered to the
Representative, and (B) counsel shall state in their opinion that they believe
that they and the Underwriters are justified in relying thereon. Insofar as such
opinions involve factual matters, such counsel may rely, to the extent such
counsel deems proper, upon certificates of officers of the Company, its
subsidiaries and the Trust and certificates of public officials.
- 19 -
(e) At the time this Agreement is executed and also on the Closing
Date and the Option Closing Date, as the case may be, there shall be delivered
to the Representative a letter addressed to the Representative from KPMG Peat
Marwick LLP, the Company's independent accountants, the first letter to be dated
the date of this Agreement, the second letter to be dated the Closing Date, and
the third letter to be dated the Option Closing Date, if any, which shall be in
form and substance reasonably satisfactory to the Representative and shall
contain information as of a date within five days of the date of such letter.
There shall not have been any change set forth in any letter referred to in this
subsection (e) that makes it impracticable or inadvisable in the judgment of the
Representative to proceed with the public offering or purchase of the Preferred
Securities as contemplated hereby.
(f) On the Closing Date and on the Option Closing Date, a certificate
signed by the Chairman of the Board, the President, a Vice Chairman of the Board
or any Executive or Senior Vice President and the principal financial or
accounting officer of the Company, dated the Closing Date or the Option Closing
Date, as the case may be, to the effect that the signers of such certificate
have carefully examined the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Offerors in this
Agreement are true and correct in all material respects on and as of the Closing
Date or the Option Closing Date, as the case may be, with the same effect as if
made on the Closing Date or the Option Closing Date, as the case may be, and the
Offerors have complied in all material respects with all the agreements and
satisfied in all material respects all the conditions on its part to be
performed or satisfied at or prior to the Closing Date or the Option Closing
Date, as the case may be; and
(ii) The Commission has not issued an order preventing or
suspending the use of the Prospectus or any Preliminary Prospectus or any
amendment thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued; and, to the knowledge of the respective
signatories, no proceeding for that purpose has been instituted or is pending or
contemplated under the Securities Act;
(iii) Each of the respective signatories of the certificate has
carefully examined the Registration Statement, the Prospectus, and any
amendments or supplements thereto, and such documents contain all material
statements and information required to be made therein, and neither the
Registration Statement nor any amendment or supplement thereto includes any
untrue statement of a
- 20 -
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and, since the date
on which the Registration Statement was initially filed, no event has occurred
that was required to be set forth in an amended or supplemented prospectus or in
an amendment to the Registration Statement that has not been so set forth;
provided, however, that no representation need be made as to information
contained in or omitted from the Registration Statement or any amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company and the Trust by or on behalf of any Underwriter through the
Representative; and
(iv) Since the date on which the Registration Statement was
initially filed with the Commission, there has not been any material adverse
change or a development involving a prospective material adverse change in the
business, properties, financial condition, or earnings of the Company and its
Subsidiaries taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as disclosed in the Registration Statement
as heretofore amended or (but only if the Representative expressly consents
thereto in writing) as disclosed in an amendment or supplement thereto filed
with the Commission and delivered to the Representative after the execution of
this Agreement; since such date and except as so disclosed or in the ordinary
course of business, neither the Company nor any Subsidiary has incurred any
liability or obligation, direct or indirect, or entered into any transaction
that is material to the Company or such Subsidiary, as the case may be, not
contemplated in the Prospectus; since such date and except as so disclosed there
has not been any change in the outstanding capital stock of the Company, or any
change that is material to the Company and its Subsidiaries taken as a whole in
the short-term debt or long-term debt of the Company or any Subsidiary; since
such date and except as so disclosed, neither the Company nor any of its
Subsidiaries have incurred any material contingent obligations, and no material
litigation is pending or, to their knowledge threatened against the Company or
any Subsidiary; and, since such date and except as so disclosed, neither the
Company nor any of its Subsidiaries have sustained any material loss or
interference from any strike, fire, flood, windstorm, accident or other calamity
(whether or not insured) or from any court or governmental action, order, or
decree.
(g) Prior to the Closing Date and any Option Closing Date, the
Company shall have furnished to the Representative such further information,
certificates and documents as the Representative may reasonably request in
connection with the offering of the Preferred Securities.
- 21 -
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notice from the Representative to the Company at any time
without liability on the part of any Underwriters, including the Representative,
or the Company, except for expenses to be paid by the Company pursuant to
Section 7 hereof or reimbursed by the Company pursuant to Section 9 and except
to the extent provided in Section 11.
SECTION 9. Reimbursement of Underwriters' Expenses. If the sale of the
---------------------------------------
Preferred Securities to the Underwriters on the Closing Date is not consummated
because the offering is terminated or indefinitely suspended by the Company or
by the Representative for any reason permitted by this Agreement, other than the
Underwriters' inability to legally act as such, the Company will reimburse the
Representative for the Underwriters' reasonable out-of-pocket expenses,
including fees and disbursements of counsel, that shall have been incurred by
the Underwriters in connection with the proposed purchase and sale of the
Preferred Securities. Any such termination or suspension shall be without
liability of any party to the other except that the provisions of this Section
9, and Sections 7 and 11 shall remain effective and shall apply.
SECTION 10. Maintain Effectiveness of Registration Statement. The
------------------------------------------------
Representative and the Company will use their respective best efforts to prevent
the issuance of any stop order or other such order suspending the effectiveness
of the Registration Statement and, if such stop order is issued, to obtain the
lifting thereof as soon as possible.
SECTION 11. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages, expenses, liabilities, or actions in respect thereof ("Claims"), joint
or several to which such Underwriter or each such controlling person may become
subject under the Securities Act, the Exchange Act, the Securities Act
Regulations, Blue Sky Laws or other federal or state statutory laws or
regulations, at common law or otherwise (including payments made in settlement
of any litigation, if such settlement is effected with the written consent of
the Company, which consent shall not be unreasonably withheld), insofar as such
Claims arise out of or are based upon the inaccuracy or breach of any
representation, warranty, or covenant of the Company or the Trust contained in
this Agreement, any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
- 22 -
Prospectus, or any amendment or supplement thereto, or in any application filed
under any Blue Sky Law or other document executed by the Offerors for that
purpose or based upon written information furnished by the Offerors and filed in
any state or other jurisdiction to qualify or register any or all of the
Preferred Securities under the securities laws thereof (any such document,
application, or information being hereinafter called a "Blue Sky Application"),
or arise out of or are based upon the omission or alleged omission to state in
any of the foregoing a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Company agrees to reimburse
each Underwriter and each such controlling person promptly for any legal fees or
other expenses incurred by such Underwriter or any such controlling person in
connection with investigating or defending any such Claim or appearing as a
third-party witness in connection with any such Claim; provided, however, that
the Company will not be liable in any such case to the extent that:
(i) Any such Claim arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto or in any Blue Sky Application in reliance upon
and in conformity with the written information furnished by or on behalf of the
Underwriters to the Offerors expressly for use therein pursuant to Section 4 of
this Agreement; or
(ii) Such statement or omission was contained or made in any
Preliminary Prospectus and corrected in the Prospectus and (1) any such Claim
suffered or incurred by any Underwriter (or any person who controls such
Underwriter) resulted from an action, claim, or suit by any person who purchased
Preferred Securities that are the subject thereof from such Underwriter in the
offering of the Preferred Securities, and (2) such Underwriter failed to deliver
a copy of the Prospectus (as then amended if the Offerors shall have amended the
Prospectus) to such person at or prior to the confirmation of the sale of such
Preferred Securities in any case where such delivery is required by the
Securities Act, unless such failure was due to failure by the Company to provide
copies of the Prospectus (as so amended) to the Underwriter as required by this
Agreement.
(b) Each Underwriter severally, but not jointly, agrees to indemnify
and hold harmless the Offerors, each of their directors, each of their officers
who sign the Registration Statement, and each person who controls the Company or
the Trust within the meaning of the Securities Act, against any Claim to which
the Offerors, or any such director, officer, or controlling person may become
subject under the Securities Act, the Exchange
- 23 -
Act, the Securities Act Regulations, Blue Sky Laws, or other federal or state
statutory laws or regulations, at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Underwriter and the Representative, which consent shall not be
unreasonably withheld), insofar as such Claim arises out of or is based upon any
untrue or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or in any Blue Sky Application, or arises out
of or is based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement, any Preliminary Prospectus, the Prospectus,
or any amendment or supplement thereto, or in any Blue Sky Application, in
reliance upon and in conformity with the written information furnished by or on
behalf of such Underwriter to the Offerors pursuant to Section 4 of this
Agreement. Each Underwriter will severally reimburse any legal fees or other
expenses reasonably incurred by the Offerors, or any such director, officer, or
controlling person in connection with investigating or defending any such Claim,
and from any and all Claims resulting from failure of such Underwriter to
deliver a copy of the Prospectus, if the person asserting such Claim purchased
Preferred Securities from such Underwriter and a copy of the Prospectus (as then
amended if the Offerors shall have amended the Prospectus) was not sent or given
by or on behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of the
Preferred Securities to such person, and if the Prospectus (as so amended) would
have cured the defect giving rise to such Claim (unless such failure was due to
a failure by the Company and the Trust to provide sufficient copies of the
Prospectuses (as so amended) to each Underwriter).
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) of this Section 11 of notice of the commencement of any action in
respect of a Claim, such indemnified party will, if a Claim in respect thereof
is to be made against an indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof. In case any such
action is brought against any indemnified party, and such indemnified party
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in and, to the extent that it may wish,
jointly with all other indemnifying parties, similarly notified, assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any
- 24 -
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to the indemnified party and/or other indemnified parties
that are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties.
(d) Upon receipt of notice from the indemnifying party to such
indemnified party of the indemnifying party's election to assume the defense of
such action and upon approval by the indemnified party of counsel selected by
the indemnifying party, the indemnifying party will not be liable to such
indemnified party under subsection (a) or (b) of this Section 11 for any legal
fees or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, unless:
(i) the indemnified party shall have employed separate counsel
in connection with the assumption of legal defenses in accordance with the
proviso to the last sentence of subsection (c) of this Section 11 (it being
understood, however, that the indemnified party shall not be liable for the
legal fees and expenses of more than one separate counsel (plus local counsel),
approved by the Representative if one or more of the Underwriters or their
controlling persons are the indemnified parties); or
(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after the indemnified party's notice to the
indemnifying party of commencement of the action.
(e) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party or insufficient to hold harmless an
indemnified party under subsection (a) or (b) of this Section 11 in respect of
any Claim referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall, subject, to the limitations
hereinafter set forth, contribute to the amount paid or payable by such
indemnified party as a result of such Claim:
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Offerors on the one hand and the Underwriters
on the other hand from the offering of the Preferred Securities; or
- 25 -
(ii) if the allocation provided by clause (e)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (e)(i) above, but also the
relative fault of the Offerors on the one hand and the Underwriters on the other
hand in connection with the statements or omissions that resulted in such Claim,
as well as any other relevant equitable considerations.
The respective relative benefits received by the Offerors on the one hand
and the Underwriters on the other hand shall be deemed to be in such proportion
that the Underwriters are responsible for that portion of a Claim represented by
the percentage that the amount of the Underwriting Commission bears to the
public offering price of the Preferred Securities, and the Company (including
the Company's directors, officers, and controlling persons) is responsible for
the remaining portion of such Claim.
The relative fault of the Offerors on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Offerors on the one hand or the Underwriters on the other hand and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such untrue statement or omission. The amount paid or payable by a party
as a result of the Claims referred to above shall be deemed to include, subject
to the limitations set forth in subsections (c) and (d) of this Section 11, any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
(f) The Offerors and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 11 were determined by pro
rata or per capita allocation or by any other method or allocation that does not
take into account the equitable considerations referred to in subsection (e) of
this Section 11. Notwithstanding the other provisions of this Section 11, no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Preferred Securities underwritten by it
and distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligation to contribute pursuant to this
Section 11
- 26 -
are several in proportion to their respective underwriting commitments and not
joint.
(g) The obligations of the Company, the Trust and the Underwriters
under this Section 11 shall be in addition to any liability that the Company,
the Trust or the Underwriters may otherwise have.
SECTION 12. Default of Underwriters. It shall be a condition to this
-----------------------
Agreement and to the obligations of the Trust to sell and deliver the Preferred
Securities hereunder, and to the obligations of each Underwriter to purchase the
Preferred Securities in the manner described herein, that, except as hereinafter
provided in this Section 12, each of the Underwriters (except a defaulting
Underwriter) shall purchase and pay for all the Preferred Securities agreed to
be purchased by such Underwriter hereunder upon tender to the Representative of
all such Preferred Securities in accordance with the terms hereof. If any
Underwriter or Underwriters default in its or their obligations to purchase
Preferred Securities hereunder on either the Closing Date or the Option Closing
Date and the aggregate number of Preferred Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed ten
percent (10%) of the liquidation amount of Preferred Securities the Underwriters
are obligated to purchase on such Closing Date, the Representative may make
arrangements for the purchase of such Preferred Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date or Option Closing Date the nondefaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Preferred Securities such defaulting Underwriters agreed but failed
to purchase on such Closing Date or Option Closing Date. If any Underwriter or
Underwriters so default and the liquidation amount of Preferred Securities with
respect to which such default or defaults occur is greater than the above
percentage and arrangements satisfactory to the Representative for the purchase
of such Preferred Securities by other person are not made within thirty-six (36)
hours after such default, this Agreement will terminate without liability on the
part of any nondefaulting Underwriter or the Company, except to the extent
provided in Section 11.
If Preferred Securities to which a default relates are to be purchased by
the nondefaulting Underwriters or by another party or parties, the
Representative or the Company shall have the right to postpone the Closing Date
or Option Closing Date, as the case may be, for not more than seven (7) business
days in order that the necessary changes, if any, in the Registration Statement,
Prospectus, and any other documents, as well as any other arrangements, may be
effected. As used in this Agreement, the
- 27 -
term "Underwriter" includes any person substituted for an Underwriter under this
Section 12. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
SECTION 13. Effective Date. This Agreement shall become effective
--------------
immediately on the date hereof.
SECTION 14. Termination. Without limiting the right to terminate this
-----------
Agreement pursuant to any other provision hereof, this Agreement may be
terminated by the Representative prior to the Closing Date and the option from
the Company and the Trust referred to in Section 3, if exercised, may be
canceled by the Representative at any time prior to the Option Closing Date, if:
(a) The Offerors shall have failed, refused, or been unable, at or
prior to the Closing Date or Option Closing Date, as the case may be to perform
any agreement on its part to be performed hereunder.
(b) Any other condition to the obligations of the Underwriters
hereunder is not fulfilled; or
(c) In the Representative's reasonable judgment, payment for and
delivery of the Preferred Securities is rendered impracticable or inadvisable
because:
(i) Additional governmental restrictions, not in force and
effect on the date hereof, shall have been imposed upon trading in securities
generally or minimum or maximum prices shall have been generally established on
any national securities exchange or over-the-counter market, or trading in
securities generally shall have suspended on any national securities exchange or
on the Nasdaq Stock Market, or a general banking moratorium shall have been
established by federal or state authorities;
(ii) Any event shall have occurred or shall exist that makes
untrue or incorrect in any material respect any statement or information
contained in the Registration Statement or that is not reflected in the
Registration Statement but should be reflected therein to make the statements or
information contained therein not misleading in any material respect; or
(iii) Any outbreak or escalation of major hostilities or other
national or international calamity or any substantial change in political,
financial or economic conditions shall have occurred or shall have accelerated
to such extent, in the Representative's reasonable judgment, as to have a
material adverse effect on the general securities market or make it
impracticable or inadvisable to proceed with completion of the
- 28 -
sale and payment for the Preferred Securities as provided in this Agreement.
Any termination pursuant to this Section 14 shall be without liability on
the part of any Underwriter to the Company or on the part of the Company to any
Underwriter (except for expenses to be paid by the Company pursuant to Section 7
or reimbursed by the Company pursuant to Section 9 and except as to
indemnification and contribution to the extent provided in Section 11).
SECTION 15. Representations and Indemnities to Survive Delivery. The
---------------------------------------------------
respective indemnity and contribution agreements of the Company and the
Underwriters, and the representations, warranties, covenants, other statements
of the Offerors and of their directors and officers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, the Offerors, or any
of its or their partners, officers, directors, or any controlling person, as the
case may be, and will survive delivery of and payment for the Preferred
Securities sold hereunder. The respective indemnity and contribution of the
Company and the Underwriters, the provisions of Section 7(a) and Section 9 of
this Agreement, and the representations and warranties of the Offerors will
survive the termination or cancellation of this Agreement.
SECTION 16. Notices. All communications hereunder shall be in writing
-------
and, if sent to the Representative, will be mailed, delivered, or telecopied
(with receipt confirmed) to Advest, Inc., at Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, Managing Director (Fax
No. (000) 000-0000) with a copy to Xxxxxx Xxxxxx, Xxxxxx & Xxxxxx, 000 Xxxxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, (Fax No. (000) 000-0000; and if sent to
the Company or the Trust will be mailed, delivered, or telecopied (with receipt
confirmed) to Gold Banc Corporation, Inc., 00000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxx
00000, Attention: Xxxxx X. Xxxxxxx, Executive Vice President and Chief Financial
Officer (Fax No. (000)000-0000) with a copy to Xxxxx X. Carman, Blackwell,
Sanders, Matheny, Weary and Xxxxxxxx, LLP, Two Pershing Square, 0000 Xxxx
Xxxxxx, Xxxxx 0000, X.X. Xxx 00000, Xxxxxx Xxxx, XX 00000 (Fax. No. (816)274-
6914).
SECTION 17. Successors. This Agreement will inure to the benefit of and
----------
be binding upon the parties hereto and their respective successors or assigns,
and to the benefit of the directors and officers (and their personal
representatives) and controlling persons referred to in Section 11, and no other
person shall acquire or have any right or obligation hereunder. The terms
"successors or assigns," as used in this Agreement, shall
- 29 -
not include any purchaser of the Preferred Securities from any Underwriter
merely by reason of such purchase.
SECTION 18. Partial Unenforceability. If any section, subsection, clause,
------------------------
or provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, subsection, clause, or provision hereof.
SECTION 19. Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the internal laws of the State of New York.
SECTION 20. Entire Agreement. This Agreement embodies the entire
----------------
agreement among the parties hereto with respect to the transactions contemplated
herein, and there have been and are no agreements among the parties with respect
to such transactions other than as set forth or provided for herein.
SECTION 21. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed counterparts hereof, whereupon it will
become a binding agreement among the Company, the Trust and the Underwriters,
including the Representative, in accordance with its terms.
Very truly yours,
GOLD BANC CORPORATION, INC.
By:________________________________
Title:_____________________________
GBCI CAPITAL TRUST
By: GOLD BANC CORPORATION, INC.
as Depositor
By:________________________________
Title:______________________________
- 30 -
ADVEST, INC.
As representative of the several
Underwriters listed in Schedule A.
By:________________________________
Title:_____________________________
- 31 -
GBCI CAPITAL TRUST
GOLD BANC CORPORATION, INC.
SCHEDULE A
Liquidation Amount of
Firm Securities to be
Name of Underwriter Purchased
------------------- ---------------------
Advest, Inc. .............................. $17,500,000
Aggregate Liquidation Amount............... $__________
EXHIBIT A
---------
The opinion of special counsel to the Company to be delivered pursuant to
Section 8(d)(i) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Company is a corporation existing and in good standing under the laws
of the State of Kansas, with requisite corporate power and authority to own its
properties and conduct its business as described in the Registration Statement,
except for such power and authority the absence of which would not have a
material adverse effect on the Company, and is registered as bank holding
company under the Bank Holding Company Act of 1956, as amended.
2. The Company and each Subsidiary have been duly incorporated or organized
and are validly existing as corporations or banking associations in good
standing under the laws of the jurisdiction of organization, with full corporate
power and authority to own, lease, and operate their respective properties and
conduct their respective businesses as described in the Registration Statement;
the Company and each Subsidiary are qualified to do business as foreign
corporations under the corporation laws of each jurisdiction in which the
Company or such Subsidiary, as the case may be, owns or leases properties, has
an office, or in which business is conducted and such qualification is required,
except where the failure to so qualify would not have a material adverse effect.
3. The Company and the Trust each has full corporate power and authority to
execute, deliver, and perform the Underwriting Agreement and to issue, sell, and
deliver the Preferred Securities to be sold by it to the Underwriters as
provided herein; the Underwriting Agreement has been duly authorized, executed
and delivered by the Company and the Trust, and constitutes a legal, valid, and
binding obligation of each of the Company and the Trust and is enforceable
against each of the Company and the Trust in accordance with its terms, except
as enforceability of this Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditors' rights
generally, and by equitable principles limiting the right to specific
performance or other equitable relief and except as the obligations of the
Company under the indemnification and contribution provisions of
Section 11 of the Agreement may be limited by laws or unenforceable as against
public policy, as to which no opinion is expressed, and an implied covenant of
good faith and fair dealing.
4. The Trust Agreement has been duly authorized, executed and delivered by the
Company, and is a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
receivership, readjustment of debt, moratorium, fraudulent conveyance or similar
laws relating to or affecting creditors' rights generally, general equity
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
5. The Guarantee Agreement has been duly authorized, executed and delivered by
the Company and is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
receivership, readjustment of debt, moratorium, fraudulent conveyance or similar
laws relating to or affecting creditors' rights generally, general equity
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
6. The Indenture has been duly authorized, executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act, and is a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws relating to or affecting
creditors' rights generally, general equity principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
7. The Subordinated Debentures have been duly authorized, executed and
delivered by the Company and when duly authenticated in accordance with the
Indenture and delivered and paid for in accordance with the Junior Subordinated
Debenture Purchase Agreement dated as of _____ __, 1997, by and between the
Company and the Trust, will be valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their
- 2 -
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, readjustment of debt, moratorium,
fraudulent conveyance or similar laws relating to or affecting creditors' rights
generally, general equity principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
8. The Trust is not an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in Investment Company Act of
1940, as amended.
9. The statements set forth in the Registration Statement under the captions
"Supervision and Regulation," "Description of Preferred Securities,"
"Description of Junior Subordinated Debentures," "Description of Guarantee" and
"Relationship Among the Preferred Securities, the Junior Subordinated Debentures
and the Guarantee," insofar as they purport to describe the provisions of the
laws referred to therein, fairly summarize the legal matters described therein.
10. The statements of law or legal conclusions and opinions set forth in the
Registration Statement under the caption "Certain Federal Income Tax
Consequences," subject to the assumptions and conditions described therein,
constitute such counsel's opinion.
11. The Registration Statement was declared effective under the Securities Act
as of the date and time specified in such opinion and, to such counsel's
knowledge and information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no
proceedings therefor have been initiated or threatened by the Commission.
12. The Registration Statement and the Prospectus and any amendment or
supplement thereto made by the Company prior to the Closing Date or any Option
Closing Date (other than the financial statements and financial and statistical
data included therein, as to which no opinion need be rendered), when it or they
became effective or were filed with the Commission, as the case may be, and in
each case at the Closing Date or any Option Closing Date, complied as to form in
all material respects with the requirements of the Securities Act, the Trust
Indenture Act and the applicable rules and regulations under said acts, and such
counsel has no
- 3 -
reason to believe that the Registration Statement, at the time it became
effective, contained any untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements contained therein, not
misleading, or that the Prospectus, at the time it was filed with the Commission
or at the Closing Date or any Option Closing Date, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
13. Such counsel knows of no material legal or governmental proceedings pending
to which the Company or any Subsidiary is a party or of which any property of
the Company or any Subsidiary is the subject which are required to be disclosed
in the Registration Statement or which would affect the consummation of the
transactions contemplated in this Agreement, the Indenture or the Preferred
Securities; and such counsel knows of no such proceedings which are threatened
or contemplated by governmental authorities or threatened by others.
14. Such counsel knows of no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described in the Registration
Statement or to be filed as exhibits thereto other than those described therein
or filed or incorporated by reference as exhibits thereto, and such instruments
as are summarized in the Registration Statement are fairly summarized in all
material respects.
15. No approval, authorization, consent, registration, qualification or other
order of any public board or body is required in connection with the execution
and delivery of this Agreement, the Trust Agreement, the Guarantee Agreement,
and the Indenture or the issuance and sale of the Preferred Securities or the
consummation by the Company of the other transactions contemplated by this
Agreement, the Trust Agreement, the Guarantee Agreement, or the Indenture,
except such as have been obtained under the Securities Act, the Exchange Act and
the Trust Indenture Act or such as may be required under the blue sky or
securities laws of various states in connection with the offering and sale of
the Preferred Securities (as to which such counsel need express no opinion).
- 4 -
16. The execution and delivery of this Agreement, the Trust Agreement, the
Guarantee Agreement, and the Indenture, the issue and sale of the Preferred
Securities and the Subordinated Debentures, the compliance by the Company with
the provisions of the Preferred Securities, the Subordinated Debentures, the
Indenture and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or constitute a breach of, or
default under, the articles of incorporation or by-laws of the Company or a
breach or default under any contract, indenture, mortgage, loan agreement, note,
lease or other instrument known to such counsel to which either the Company or
any Subsidiary is a party or by which either of them or any of their respective
properties may be bound except for such breaches as would not have a material
adverse effect on the Company and its Subsidiaries considered as one enterprise,
nor will such action result in a violation on the part of the Company or any
Subsidiary of any applicable law or regulation or of any administrative,
regulatory or court decree known to such counsel.
- 5 -
EXHIBIT B
---------
The opinion of counsel to the Trust Company and Trust Delaware to be delivered
pursuant to Section 8(d)(ii) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Trust Company is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of New York.
2. The Indenture Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Indenture, and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of the Indenture.
3. The Guarantee Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Guarantee Agreement, and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of the Guarantee Agreement.
4. The Property Trustee has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
5. Each of the Indenture and the Guarantee Agreement has been duly executed
and delivered by the Indenture Trustee and the Guarantee Trustee, respectively,
and constitutes a legal, valid and binding obligation of the Indenture Trustee
and the Guarantee Trustee, respectively, enforceable against the Indenture
Trustee and the Guarantee Trustee, respectively in accordance with its
respective terms, except that certain payment obligations may be enforceable
solely against the assets of the Trust and except that such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, liquidation,
fraudulent conveyance and transfer or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability is considered
in a proceeding in equity or at law), and by the effect of applicable public
policy on the
enforceability of provisions relating to indemnification or contribution.
6. The Subordinated Debentures delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
- 2 -
EXHIBIT C
---------
The opinion of counsel, as special Delaware counsel to the Company and the Trust
to be delivered pursuant to Section 8(d)(iii) of the Underwriting Agreement
shall be substantially to the effect that:
1. The Trust has been duly created and is validly existing in good standing as
a business trust under the Delaware Business Trust Act, and all filings required
under the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
2. Under the Delaware Business Trust Act and the Trust Agreement the Trust has
the trust power and authority to own its property and to its conduct its
business, all as described in the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of the
Company and the Trustees, and is enforceable against the Company and the
Trustees, in accordance with its terms.
4. Under the Delaware Business Trust Act and the Trust Agreement, the Trust
has the trust power and authority (i) to execute and deliver, and to perform its
obligations under, the Underwriting Agreement, and (ii) to issue and perform its
obligations under the Preferred Securities and the Common Securities.
5. Under the Delaware Business Trust Act and the Trust Agreement, the
execution and delivery by the Trust of the Underwriting Agreement, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary trust action on the part of the Trust.
6. The Preferred Securities have been duly authorized by the Trust Agreement
and are duly and validly issued and, subject to the qualifications set forth
herein, fully paid and nonassessable undivided beneficial interests in the
assets of the Trust and are entitled to the benefits of the Trust Agreement. The
Holders, as beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware. We note that the Holders may be obligated,
pursuant to the Trust Agreement, (i) to provide indemnity and/or security in
connection with and pay taxes or governmental charges arising from transfers or
exchanges of Preferred Securities Certificates and the issuance of replacement
Preferred Securities Certificates, and (ii) to provide security or indemnity in
connection with requests of or directions to the Property Trustee to exercise
its rights and powers under the Trust Agreement.
7. Under the Delaware Business Trust Act and the Trust Agreement, the issuance
of the Preferred Securities and Common Securities is not subject to preemptive
rights.
8. The Common Securities have been duly authorized by the Trust Agreement and
are duly and validly issued undivided beneficial interests in the assets of the
Trust and are entitled to the benefits of the Trust Agreement.
9. The issuance and sale by the Trust of the Preferred Securities and Common
Securities, the purchase by the Trust of the Subordinated Debentures, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the compliance by the Trust with its obligations
thereunder will not violate (i) any of the provisions of the Certificate of
Trust or the Trust Agreement or (ii) any applicable Delaware law or
administrative regulation.
- 2 -
EXHIBIT D
---------
The opinion of counsel, as special Delaware counsel to Trust Delaware to be
delivered pursuant to Section 8(d)(iv) of the Underwriting Agreement shall be
substantially to the effect that:
1. Trust Delaware is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of Delaware.
2. The Trust Delaware has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
