Exhibit 1.2
[FORM OF UNDERWRITING AGREEMENT FOR TRUST PREFERRED SECURITIES]
UNDERWRITING AGREEMENT FOR
TRUST PREFERRED SECURITIES
ONB CAPITAL TRUST II
% TRUST PREFERRED SECURITIES
(liquidation amount $25 per preferred security) guaranteed
on a junior subordinated basis by Old National Bancorp
UNDERWRITING AGREEMENT
-------------
To the Representatives named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
ONB Capital Trust II, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), and Old National Bancorp, a financial
holding company organized under the laws of the State of Indiana, as depositor
of the Trust and as guarantor (the "Company" and, together with the Trust, the
"Issuers"), propose subject to the terms and conditions stated herein, that the
Trust issue and sell to the several underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), _____% Trust Preferred Securities (liquidation amount $25
per preferred security) representing beneficial interests in the Trust (the
"Trust Securities"), with a Liquidation Amount at Maturity as set forth in
Schedule I hereto (the "Underwritten Securities"). The Issuers also propose to
grant to the Underwriters an option to purchase additional Trust Securities with
a Liquidation Amount at Maturity as set forth in Schedule I hereto to cover
over-allotments (the "Option Securities" and the Option Securities, together
with the Underwritten Securities, the "Securities"). The Securities are
guaranteed on a junior subordinated basis by the Company as to the payment of
distributions, and as to payments on liquidation or redemption, to the extent
set forth in a guarantee agreement to be dated _____________ (the "Guarantee")
between the Company and Bank One Trust Company, NA, as trustee (the "Guarantee
Trustee"). The Trust is to purchase, with the proceeds of the sale of the
Securities to the Underwriters and the sale of its Common Securities
(liquidation amount $25 per common security) (the "Common Securities") to the
Company, corresponding junior subordinated debentures (the "Corresponding Junior
Subordinated Debentures") of the Company in an amount equal to the combined
Liquidation Amount at Maturity of the Securities and the Common Securities,
which Corresponding Junior Subordinated Debentures are to be issued pursuant to
an indenture (the "Indenture") dated as of March 14, 2000 between the Company
and Bank One Trust Company, NA, as trustee (the "Corresponding Debt Trustee") as
supplemented by the terms and conditions set forth in an
officer's certificate dated _____________. The payments made by the Company on
the Corresponding Junior Subordinated Debentures are established at a level
sufficient to permit the Trust, upon receipt of such payments, to make payments
on the Securities in accordance with their terms.
Any reference herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
SECTION 1. Representations and Warranties. Each of the Issuers jointly and
severally represents and warrants to each Underwriter as of the date hereof, the
Closing Date referred to in Section 3 hereof and the Settlement Date, if any,
referred to in Section 1(b) hereof, and agrees with each Underwriter, as
follows:
(a) The Issuers meet the requirements for use of Form S-3 under the Act and
have prepared and filed with the Commission a registration statement (the file
number of which is set forth in Schedule I hereto) on Form S-3, including a
related basic prospectus, for registration under the Act of the offering and
sale of the Securities. The Issuers may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which has previously
been furnished to you. The Issuers will next file with the Commission one of the
following: (1) after the Effective Date of such registration statement, a Final
Prospectus relating to the Securities in accordance with Rules 430A and 424(b),
(2) prior to the Effective Date of such registration statement, an amendment to
such registration statement (including the form of Final Prospectus) or (3) a
Final Prospectus in accordance with Rules 415 and 424(b). In the case of clause
(1), the Issuers have included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required by
the Act and the rules thereunder to be included in such registration statement
and the Final Prospectus. As filed, such Final Prospectus or such amendment and
form of Final Prospectus shall contain all Rule 430A Information, together with
all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the requirements set forth
in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and when
the Final Prospectus is first filed (if required) in accordance with Rule 424(b)
and at the Closing
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Date and on any date on which Option Securities are purchased, if such date is
not the Closing Date (a "Settlement Date"), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder; on the Effective Date and at the Execution Time,
the Registration Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; on the Effective Date
and on the Closing Date the Trust Agreement (as defined below), the Indenture
and the Guarantee did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules thereunder;
and, on the Effective Date, the Final Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date and any Settlement Date, the Final Prospectus (together with
any supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Issuers make no representations or
warranties as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto).
(c) The Trust has been duly created and is validly existing as a statutory
business trust in good standing under the Business Trust Act of the State of
Delaware with the power and authority to enter into and perform its obligations
under this Agreement, the Securities, the Common Securities and the Trust
Agreement (as defined below) and to own property and conduct its business as
described in the Final Prospectus, and has conducted and will conduct no
business other than the transactions contemplated by this Agreement and as
described in the Final Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Amended and Restated
Trust Agreement to be dated as of _____________ (the "Trust Agreement") between
the Company and the trustees named therein (the "Trustees") and the agreements
and instruments contemplated by the Trust Agreement and the Final Prospectus.
(d) The Common Securities have been duly authorized by the Trust and upon
delivery by the Trust to the Company against payment therefor as described in
the Final Prospectus, will be duly and validly issued and fully paid and
non-assessable beneficial interests in the Trust and will conform to the
description thereof contained in the Final Prospectus; the issuance of the
Common Securities is not subject to preemptive or other similar rights; and on
the Closing Date or any Settlement Date, all of the issued and outstanding
Common Securities of the Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(e) The Securities have been duly authorized by the Trust, and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued and, subject to the qualifications set forth herein, fully paid
and non-assessable beneficial interests in
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the Trust and will conform in all material respects to the description thereof
contained in the Final Prospectus; the issuance of the Securities is not subject
to preemptive or other similar rights; and the holders of the Securities (the
"Security holders") 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 (subject to the
obligations of the Security holders under the Trust Agreement to make certain
payments to the Trust to defray expenses such as any applicable transfer and
stamp taxes and to provide security or indemnity in connection with the
replacement of destroyed, lost or stolen certificates or in connection with
directing the Property Trustee under the Trust Agreement to exercise its rights
and powers at the request of Security holders).
(f) The Guarantee, the Corresponding Junior Subordinated Debentures, the
Trust Agreement and the Indenture (collectively, the "Company Agreements") have
each been duly authorized by the Company and when validly executed and delivered
by the Company and, in the case of the Guarantee, by the Guarantee Trustee, in
the case of the Trust Agreement, by the Trustees, in the case of the Indenture,
by the Corresponding Debt Trustee, and, in the case of the Corresponding Junior
Subordinated Debentures, when validly issued by the Company and validly
authenticated and delivered by the Corresponding Debt Trustee, will constitute
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing; the Trust Agreement, the
Indenture and the Guarantee have been duly qualified under the Trust Indenture
Act, as amended; the Corresponding Junior Subordinated Debentures are entitled
to the benefits of the Indenture; and the Company Agreements will conform to the
descriptions thereof in the Final Prospectus.
(g) This Agreement has been duly authorized, executed and delivered by each
of the Issuers.
(h) The Company is a financial holding company duly organized and validly
existing in good standing under the laws of the State of Indiana with full
corporate power and authority to enter into and perform its obligations under
this Agreement, the Trust Agreement, the Indenture, the Guarantee and the
Corresponding Junior Subordinated Debentures, and to purchase, own and hold the
Common Securities issued by the Trust.
(i) The Company has authorized capitalization as set forth in the Final
Prospectus, and all of the issued shares of capital stock of the company have
been duly and validly authorized and issued and are fully paid and
non-assessable; all the outstanding beneficial interests in the Trust have been
duly and validly authorized and issued, are fully paid and non-assessable and
conform to the descriptions thereof contained in the Final Prospectus;
(j) Each "significant subsidiary" of the Company (as such term is defined
in Rule 1-02 of Regulation S-X (each, a "Subsidiary" and, collectively, the
"Subsidiaries," and each of which is listed on Schedule III hereto) has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has power and authority
(corporate and other) to own, lease and operate its properties and to conduct
its
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business as described in the Final Prospectus, and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not singly or in the
aggregate have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Company and its
subsidiaries; and all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and all such shares owned by the Company, directly or
through subsidiaries, are owned free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or security interest;
(k) The consolidated historical financial statements, together with related
schedules and notes, included or incorporated by reference in the Registration
Statement and the Final Prospectus (and any amendment or supplement thereto),
comply as to form in all material respects with the requirements of the Act and
the Exchange Act. Such historical financial statements present fairly the
consolidated financial position of the Company and its subsidiaries at the
respective dates indicated and the results of their operations and their cash
flows for the respective periods indicated in accordance with generally accepted
accounting principles consistently applied throughout such periods.
(l) The Issuers have not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the Securities,
will not distribute any offering materials in connection with the offering and
sale of the Securities other than the Registration Statement, the Preliminary
Final Prospectus, the Final Prospectus or other materials, if any, permitted by
the Securities Act.
(m) None of the Company, the Trust or any Subsidiary is in violation of its
charter, by-laws or other organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company,
the Trust or any of the Subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company, the
Trust or any Subsidiary is subject (collectively, "Agreements and Instruments")
except for such defaults that would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"); and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement (including
the issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Final Prospectus under the caption
"Use of Proceeds") and compliance by each of the Trust and the Company with its
obligations hereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company, the Trust or any Subsidiary pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will such
action result in any violation of
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the provisions of the charter, by-laws or other organizational documents of the
Company, the Trust or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company, the Trust or any Subsidiary or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or condition
which gives the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by
the Company, the Trust or any Subsidiary.
(n) No action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the best knowledge of
the Company, threatened that could reasonably be expected to have a Material
Adverse Effect, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(o) Xxxxxx Xxxxxxxx LLP, the Company's former auditors, were independent
public accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder for fiscal years and .
PricewaterhouseCoopers LLP, the Company's current auditors, who have certified
certain financial statements of the Company and its consolidated subsidiaries
and delivered their report with respect to the audited consolidated financial
statements for fiscal years , and and schedules included in the Final
Prospectus, are independent public accountants with respect to the Company
within the meaning of the Act and the applicable published rules and regulations
thereunder.
(p) The Company, the Trust and the Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company, the Trust nor any such
Subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(q) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by each of the Issuers of
its obligations hereunder, in connection with the offering, issuance or sale of
the Securities hereunder or the consummation of the transactions contemplated by
this Agreement, except such as have been already obtained or made or as may be
required under the Act or the rules and regulations of the Commission thereunder
or state securities laws and except for the qualification of the Trust
Agreement, the Indenture and the Guarantee under the Trust Indenture Act.
(r) The statements set forth in (i) the Basic Prospectus under the captions
"Description of Debt Securities," "Description of Capital Securities,"
"Description of Guarantees," and "Relationship Among the Capital Securities, the
Corresponding Junior
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Subordinated Debentures and the Guarantees," and (ii) in the Final Prospectus as
amended or supplemented under the captions "Certain Terms of Preferred
Securities" and "Certain Terms of the Junior Subordinated Debentures" insofar as
they constitute a summary of the terms of the Securities, Subordinated
Debentures, the Guarantees and the Company Agreements, and (y) in the Basic
Prospectus under the caption "Underwriting" and (y) in the Final Prospectus as
amended or supplemented under the caption "Underwriting," insofar as they
purport to describe the provisions of the laws and documents referred to
therein, in each case are accurate, complete and fair;
(s) The Company is a financial holding company under the Bank Holding
Company Act of 1956, as amended (the "Bank Holding Company Act"), and the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve"), and the deposit accounts of the Company's subsidiary banks
are insured by the Federal Deposit Insurance Corporation ("FDIC") to the fullest
extent permitted by law and the rules and regulations of the FDIC, and no
proceeding for the termination of such insurance are pending or threatened.
(t) Each of the Issuers is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Final Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940 Act").
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
SECTION 2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Trust agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Trust, at the purchase price set forth in Schedule I hereto
the principal amount of the Securities set forth opposite such Underwriter's
name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Trust hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
_____________ Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time (but not more than once) on or before the 30th day after the date of
the Final Prospectus upon written or telegraphic notice by the Representatives
to the Issuers setting forth the number of shares of the Option Securities as to
which the several Underwriters are exercising the option and the Settlement
Date. The number of shares of the Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities,
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subject to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Trust by wire transfer payable in same-day funds to
an account specified by the Company. Delivery of the Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Trust will deliver the Option
Securities (at the expense of the Company) to the Representatives, at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Trust by wire transfer payable in
same-day funds to an account specified by the Trust. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the Settlement Date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
Following receipt by the Trust of any proceeds received in connection with
the exercise of the option provided for in Section 2(b) at any time prior to the
expiration thereof, the Company will issue, in accordance with the first
paragraph and Section 5(i) hereof, additional Corresponding Junior Subordinated
Debentures in an aggregate principal amount equal to the aggregate liquidation
amount of the Option Securities actually issued by the Trust, divided by 97/100
and rounded to the nearest $25.
SECTION 4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
SECTION 5. Agreements. Each of the Issuers jointly and severally covenants
with each Underwriter as follows:
(a) It will use its best efforts to cause the Registration Statement, if
not effective on the Execution Date, and any amendment thereof, to become
effective. Prior to the termination of the offering of the Securities, it will
not file any amendment of the Registration
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Statement or supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement
unless it has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Final Prospectus is
otherwise required under Rule 424(b), it will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representatives of such
timely filing. It will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule 424(b)
or when any Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the Securities,
any amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any amendment
of the Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Final Prospectus or for any additional information, (5) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) of the receipt by it of any notification with respect
to the suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. It will use its best efforts to prevent the issuance of any such stop
order or the suspension of any such qualification and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, it promptly will (1) notify the Representatives
of such event, (2) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or supplement which
will correct such statement or omission or effect such compliance and (3) supply
any supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(d) It will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Final Prospectus and the Final Prospectus and any
supplement
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thereto as the Representatives may reasonably request. It will pay the expenses
of printing or other production of all documents relating to the offering.
(e) It will arrange, if necessary, for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as required for
the distribution of the Securities and will pay any fee of the National
Association of Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction where
it is not now so subject.
(f) It will not take, directly or indirectly, any action designed to or
which has constituted or which might reasonably be expected to cause or result,
under the Exchange Act or otherwise, in stabilization or manipulation of the
price of any of its securities to facilitate the sale or resale of the
Securities.
(g) During the period of three years hereafter (i) the Company will furnish
to you, upon your request, from time to time, such information concerning the
Company as you may reasonably request, and (ii) the Trust will furnish to you,
upon your request, a copy of each report of the Trust mailed to holders of
Preferred securities or Common Securities.
(h) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to Section
11(b) hereof or by notice given by you terminating this Agreement pursuant to
Section 11 or Section 12 hereof) or if this Agreement shall be terminated by the
Underwriters because of any failure or refusal on the part of the Issuers to
comply with the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse the Representatives for all reasonable out-of-pocket
expenses (including reasonable fees and expenses of counsel for the
Underwriters) incurred by you in connection therewith.
(i) It will cause the net proceeds received by the Trust from the sale of
the Securities to be used in the manner specified in the Final Prospectus (or
any supplement thereto) under "Use of Proceeds."
(j) It will use its best efforts to cause the listing of the Securities on
any such stock exchange or exchanges as are set forth in Schedule I hereto.
(k) It will not, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx
Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Issuers or any affiliate
of the Issuers or any person in privity with the Issuers or any affiliate of the
Issuers) directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act, any
securities of its with the characteristics and terms similar to the Securities
10
or publicly announce an intention to effect any such transaction until the
Business Day set forth on Schedule I hereto.
(l) During the period when the Final Prospectus is required to be delivered
under the Act or the Exchange Act, the Company will file or cause to be filed
all documents required to be filed with the Commission pursuant to the Exchange
Act within the time periods required by the Exchange Act.
SECTION 6. Payment of Expenses. The Issuers will pay or cause to be paid
the expenses set forth in Schedule I hereto.
SECTION 7. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Issuers contained herein as of
the Execution Time and the Closing Date, to the accuracy of the statements of
the Issuers made in any certificates pursuant to the provisions hereof, to the
performance by the Issuers of their obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later time, the
Registration Statement will become effective not later than (i) 6:00 PM New York
City time, on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) On or prior to the Closing Date, the Representatives shall have
received the favorable opinion, dated as of Closing Date, of (i) Xxxxx Xxxxxxx
LLP, counsel for the Issuers, in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters and addressed to the Underwriters, to the effect
set forth in Exhibit A and to such further effect as counsel to the Underwriters
may reasonably request. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State of
Indiana and the federal law of the United States and the General Corporation Law
of the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company, the Trust and the Company's
Subsidiaries, certificates of representatives of the applicable trustees and
certificates of public officials.
(c) On or prior to the Closing Date, the Representatives shall have
received the favorable opinion, dated as of Closing Date, of Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, the counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters and
addressed to the Underwriters with respect to such matters as the
11
Representatives may reasonably request. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York and the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company, the Trust and the
Company's Subsidiaries, certificates of representatives of the applicable
Trustees and certificates of public officials.
(d) On or before the Closing Date, the Representatives shall have received
the favorable opinion, dated as of Closing Date, of Xxxxxxxx, Xxxxxx & Finger,
P.A., special Delaware counsel for the Issuers, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters and addressed to the
Underwriters, to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Underwriters may reasonably request. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Trust, the Company and the
Company's Subsidiaries, certificates of representatives of the applicable
trustees and certificates of public officials.
(e) On the Closing Date, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the Final
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the Chief Financial Officer or Corporate Controller of the Company, dated as
of Closing Date, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Date, (iii) each of the Trust and the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or are, to the knowledge of
such officers, contemplated by the Commission.
(f) Each Issuer shall have performed all of its obligations under this
Agreement which are to be performed by the terms hereof on or before the Closing
Date.
(g) At the time of the execution of this Agreement, the Representatives
shall have received from the Company's independent public accountants,
PricewaterhouseCoopers LLP, a letter dated such date, in form and substance
satisfactory to the Representatives (substantially in the form of Exhibit C
hereto), together with signed or reproduced copies of such letter for each of
the other Underwriters and addressed to the Underwriters containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to certain financial statements and
certain financial information contained in the Preliminary Final Prospectus and
the Final Prospectus.
12
(h) On or prior to the Closing Date, the Representatives shall have
received from PricewaterhouseCoopers LLP, the Company's independent public
accountants a letter, dated as of the Closing Date, together with signed or
reproduced copies of such letter for each of the other Underwriters and
addressed to the Underwriters, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (g) of this Section, except
that the specified date referred to shall be a date not more than three business
days prior to Closing Date.
(i) On or prior to the Closing Date, the Representatives shall have
received a rating from Xxxxx'x Investors Service, Inc., Standard & Poors Rating
Services and Fitch Ratings indicating that the Securities have been rated as set
forth in Schedule I hereto. Since the date of this Agreement, there shall not
have occurred a downgrading in the rating assigned to the Securities or any of
the Company's debt securities by any "nationally recognized statistical rating
agency," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and no such organization shall have publicly announced
that it has placed under surveillance or review its rating of the Securities or
any of the Company's other debt securities.
(k) On or prior to the Closing Date, the Securities shall have been
approved for listing on such exchange or exchanges as are listed on Schedule I
hereto, subject only to official notice of issuance.
(l) On or prior to the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Issuers in connection with
the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(m) 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 Representatives by notice to the Issuers at any time on or prior to the
Closing Date and such termination shall be without liability of any party to any
other party except as provided in Section 6 and except that Sections 1, 8, 9 and
10 shall survive any such termination and remain in full force and effect.
SECTION 8. Indemnification.
(a) Each of the Issuers agrees jointly and severally to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities
as originally filed or in any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission
13
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Issuers will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Issuers by or on
behalf of any Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Issuers may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Issuers, each of their directors, each of their officers who signs
the Registration Statement, and each person who controls either of the Issuers
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Issuers to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting" in the Final Prospectus, (i)
the list of Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances and (iii)
the paragraph related to stabilization, syndicate covering transactions and
penalty bids in any Preliminary Final Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Final Prospectus or the
Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such
14
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 it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to or admission of, fault, culpability or a failure
to act by or on behalf of any such indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Issuers and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively, "Losses") to which the Issuers and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Issuers on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Issuers and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Issuers on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Issuers shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by them, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Issuers on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Issuers
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an
15
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls either
of the Issuers within the meaning of either the Act or the Exchange Act, each
officer of the Issuers who shall have signed the Registration Statement and each
director of the Issuers shall have the same rights to contribution as the
Issuers, subject in each case to the applicable terms and conditions of this
paragraph (d).
SECTION 9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
SECTION 10. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Trust, Company or any Subsidiaries of the
Company submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person, or by or on behalf of the Issuers, and shall survive
delivery of and payment for the Securities to the Underwriters.
SECTION 11. Termination of Agreement.
(a) The Representatives may, in their sole discretion, terminate this
Agreement, by notice to the Issuers, at any time on or prior to the Closing Date
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Final Prospectus,
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise or the Trust, whether or not arising
in the ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any declaration by the United States of a
national emergency or war or the outbreak of hostilities or escalation thereof
or other calamity or crisis the effect of which is such as to make it, in the
sole judgment
16
of the Representatives, impracticable or inadvisable to market the Securities or
to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or limited by the Commission or the
New York Stock Exchange, or if trading generally on the American Stock Exchange,
the Nasdaq National Market System or the New York Stock Exchange has been
suspended or limited (other than to provide for an orderly market), or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 6, 8, 9 and
10 shall survive such termination and remain in full force and effect.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at the address set forth
on Schedule I; notices to the Issuers shall be directed to them at 000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, attention of the Corporate Secretary.
SECTION 13. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Issuers and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters,
the Issuers and their respective successors and the controlling persons and
officers and directors referred to in Sections 8 and 10 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Issuers and their respective
successors, and said controlling persons and officers, directors, trustees and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 14. Governing Law and Time. This agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly within such state. Except as otherwise
set forth herein, specified times of day refer to New York City time.
SECTION 15. Effect of Headings. The Article and Section headings herein are
for convenience only and shall not affect the construction hereof.
SECTION 16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17
SECTION 17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415," "Rule 424," "Rule 430A" and "Rule 462" refer to such rules
under the Act.
18
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
19
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Issuers
and the several Underwriters.
Very truly yours,
OLD NATIONAL BANCORP
By: ___________________________________
Name:
Title:
ONB CAPITAL TRUST II
By: ___________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
first written above.
[NAME(S) OF REPRESENTATIVES]
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By: ____________________________
Name:
Title:
For themselves and the other
Underwriters named in Schedule II
to the foregoing Agreement
20
SCHEDULE I
ONB CAPITAL TRUST II
Underwriting Agreement dated: _____________
Registration Statement No.: _____________
Representative(s):
Title, Purchase Price and Description of Securities:
Title: _____% Trust Preferred Securities.
Liquidation Amount at Maturity of $_____________ (liquidation amount $25 per preferred security).
Underwritten Securities:
Liquidation Amount of Maturity of Option $_____________.
Securities:
Distributions: _____% per annum, from _____________, payable quarterly on
_____________, _____________, _____________ and _____________,
commencing _____________.
Maturity:
Optional Redemption:
Sinking Fund:
Listing:
Rating:
Expenses:
Purchase Price: ____% of liquidation amount.
Underwriters' Compensations: As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the
Securities will be used by the Trust to purchase the Corresponding
Junior Subordinated Debentures of the Company, the Company hereby
agrees to pay at Closing to Xxxxxxx Xxxxx Barney Inc., for the
accounts of the several Underwriters, an amount equal to $._____ per
Security ($_____________ in the aggregate if the overallotment
option is unexercised and up to an additional $_____________ if the
overallotment option is exercised).
Closing: _____ a.m. on _____________, at the offices of [Federal (same day)]
funds.
Settlement and Trading: [Physical certificated form.] [Book-Entry Only via the Depository
Trust Company ("DTC").] The Securities [will][will not] trade in
DTC's Same Day Funds Settlement System.
Type of Offering: Registered.
Date referred to in Section 5(k) after which
the Company may offer or sell debt
securities issued or guaranteed by the
Company without the consent of the
Representatives:
Notices: Notices to be given to the Underwriters should be directed to the
Representatives as follows:
The respective numbers of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule II hereto.
2
SCHEDULE II
ONB CAPITAL TRUST II
Number of Preferred
Underwriters Securitiesto be Purchased
------------ -------------------------
SCHEDULE III
OLD NATIONAL BANCORP
List of Significant Subsidiaries
Old National Bank, Evansville, Indiana
Exhibit A
FORM OF OPINION OF ISSUERS' COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 7(b)
Capitalized terms used herein shall have the same definitions as set forth
in the underwriting agreement (the "Agreement") to which this Exhibit A is
attached.
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Indiana. The Company
has corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Final Prospectus and to enter into
and perform its obligations under the Agreement and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction that requires such qualification.
(ii) Each Subsidiary set forth on Schedule III to the Agreement has been
duly incorporated and is validly existing as a corporation under the laws of the
jurisdiction of its incorporation, and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Final Prospectus; except as otherwise disclosed in the Registration Statement,
all of the issued and outstanding capital stock of each Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, to the best
of our knowledge, is owned by the Company, directly or through Subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; to the best of our knowledge, none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Subsidiary.
(iii) The Agreement has been duly authorized, executed and delivered by the
Company.
(iv) The Guarantee, the Corresponding Junior Subordinated Debentures, the
Trust Agreement and the Indenture have each been duly authorized by the Company
and when validly executed and delivered by the Company and, in the case of the
Guarantee, by the Guarantee Trustee, in the case of Trust Agreement, by the
Trustees and, in the case of the Indenture, by the Corresponding Debt Trustee,
and, in the case of Corresponding Junior Subordinated Debentures, when validly
issued by the Company and validly authenticated and delivered by the
Corresponding Debt Trustee, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law); the Trust
Agreement, the Indenture and the Guarantee have been duly qualified under the
Trust Indenture Act, as amended; the Corresponding Junior Subordinated
Debentures are entitled to the benefits of the Indenture; and the Company
Agreements conform in all material respects to the descriptions thereof in the
Final Prospectus.
(vi) The Registration Statement has been declared effective under the Act;
any required filing of the Basic Prospects, the Preliminary Final Prospectus and
the Final Prospectus
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pursuant to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); and, to the best of our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued under
the Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(vii) The Registration Statement, the Final Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Final Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements and supporting schedules included
therein or omitted therefrom and the Statements of Eligibility on Form T-1 of
the applicable trustees, as to which we express no opinion) appear on their face
to comply as to form in all material respects with the requirements of the Act
and the Trust Indenture Act and the respective rules thereunder.
(viii) The documents incorporated by reference in the Final Prospectus
(other than the financial statements and supporting schedules included therein
or omitted therefrom, as to which we express no opinion), when they became
effective or were filed with the Commission, as the case may be, appear on their
face to comply as to form in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
(ix) Neither the Company nor any Subsidiary is in violation of its charter
or by-laws and no default by the Company or any Subsidiary exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Final Prospectus or filed or incorporated by
reference as an exhibit to the Registration Statement.
(x) No action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the best knowledge of
the Company, threatened that could reasonably be expected to have a Material
Adverse Effect, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final Prospectus.
(xi) The Company, the Trust and the Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company, the Trust nor any such
Subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in
the Final Prospectus.
(xii) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign (other than under the Act and the Trust Indenture
Act, which have been obtained or made, or as may be required under the
securities or blue sky laws of the various states, as to which we
A-2
express no opinion) is necessary or required in connection with the due
authorization, execution and delivery of the Agreement or the transactions
contemplated in the Agreement.
(xiii) The Securities are duly listed, admitted and authorized for trading
on the New York Stock Exchange subject to official notice of issuance, and,
except as set forth in the Final Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, the Securities are
outstanding.
(xiv) The execution, delivery and performance of the Agreement and the
Company Agreements and the consummation of the transactions contemplated in the
Agreement and in the Registration Statement (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Final Prospectus under the caption "Use Of Proceeds") and
compliance by each of the Company and the Trust with its obligations under the
Agreement and the Company Agreements do not and will not, whether with or
without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or similar event under or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Subsidiary pursuant to any written contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument, known to us, to which the Company or any
Subsidiary is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any Subsidiary is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or by-laws of
the Company or any Subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their respective properties, assets or
operations.
(xv) Neither the Company nor the Trust is and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Final Prospectus, will be an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in the
0000 Xxx.
(xvi) The Company is duly registered as a financial holding company under
the Bank Holding Company Act, and the regulations of the Board of Governors of
the Federal Reserve System (the "Federal Reserve"), and the deposit accounts of
the Company's subsidiary banks are insured by the Federal Deposit Insurance
Corporation ("FDIC") to the fullest extent permitted by law and the rules and
regulations of the FDIC, and no proceeding for the termination of such insurance
are pending or threatened.
(xvii) The statements set forth in (i) the Basic Prospectus under the
captions "Description of Debt Securities," "Description of Capital Securities,"
"Description of Guarantees" and "Relationship Among the Capital Securities, the
Corresponding Junior Subordinated Debentures and the Guarantees," and (ii) in
the Final Prospectus as amended or supplemented under the captions "Certain
Terms of the Preferred Securities" and "Certain Terms of the Junior Subordinated
Debentures" insofar as they constitute a summary of the terms of the Securities,
Subordinated Debentures, the Guarantees and the Company Agreements, and (x) in
A-3
the Basic Prospectus under the caption "Underwriting" and (y) in the Final
Prospectus as amended or supplemented under the caption "Underwriting," insofar
as they purport to describe the provisions of the laws and documents referred to
therein, in each case are accurate, complete and fair.
(xviii) The statements made in the Final Prospectus under the caption
"United States Federal Income Taxation," to the extent they are matters of law
or legal conclusions, have been reviewed by such counsel and are accurate and
correct in all material respects and fairly present the information set forth
therein.
(xix) The Junior Subordinated Debentures will be treated for United States
federal income tax purposes as indebtedness of the Company.
(x) The Trust will be treated for United States federal income tax purposes
as a grantor trust and not as an association taxable as a corporation.
We have participated in conferences with officers and other representatives
of the Issuers, representatives of the Underwriters and representatives of the
independent public accountants for the Issuers at which conferences the contents
of the Preliminary Final Prospectus, Final Prospectus and the Registration
Statement and related matters were discussed and, although we have not
independently verified, are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Final Prospectus (except as
otherwise indicated above), we advise you that, on the basis of the foregoing
(relying as to materiality to the extent we deem appropriate upon the opinions
of officers and other representatives of the Issuers), no facts have come to our
attention that lead us to believe that the Registration Statement or any
amendment thereto, at the time such Registration Statement or any such amendment
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Preliminary Final Prospectus or
Final Prospectus, in each case as of its date and as of the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that we express no comment with respect to the Forms T-1 or the
financial statements, including the notes thereto, or any other financial or
statistical data found in or derived from the internal accounting and other
records of the Company and its Subsidiaries set forth or referred to in the
Registration Statement or the Final Prospectus).
A-4
Exhibit B
FORM OF OPINION OF DELAWARE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 7(d)
Capitalized terms used herein shall have the same definitions as set forth
in the underwriting agreement (the "Agreement") to which this Exhibit B is
attached.
(i) The Trust is a duly formed and validly existing statutory business
trust in good standing under the Business Trust Act of the State of Delaware
with the business trust power and authority to enter into and perform its
obligations under this Agreement, the Securities, the Common Securities and the
Trust Agreement and to own property and conduct its business as described in the
Final Prospectus.
(ii) Under the Delaware Business Trust Act and the Trust Agreement, the
execution and delivery by the Trust of this Agreement, and the performance by
the Trust of its obligations hereunder, have been duly authorized by all
necessary business trust action on the part of the Trust.
(iii) The Trust Agreement constitutes a valid and binding obligation of the
Company, the Trustees and the Administrators, enforceable against the Company,
the Trustees and the Administrators, in accordance with its terms, subject, as
to enforcement, to the effect of (a) bankruptcy, insolvency, moratorium,
receivership, liquidation, fraudulent conveyance, reorganization and other
similar laws relating to or affecting the remedies and rights of creditors, (b)
general principles of equity (regardless of whether considered or applied in a
proceeding in equity or at law), (c) considerations of public policy or the
effect of applicable law relating to fiduciary duties, and (d) principles of
course of dealing or course of performance and standards of good faith, fair
dealing, materiality or reasonableness that may be applied by a court to the
exercise of rights or remedies.
(iv) The Common Securities have been duly authorized for issuance by the
Trust and upon issuance and delivery by the Trust to the Company against payment
therefor as described in the Trust Agreement, will be duly and validly issued
and, subject to the qualifications set forth herein, fully paid and
non-assessable beneficial interests in the Trust and [NOTE: counsel may note
that the holders of Common Securities may be required to make payment or provide
indemnity or security as set forth in the Trust Agreement] the issuance of the
Common Securities is not subject to preemptive or other similar rights under the
Trust Agreement or the Business Trust Act.
(v) The Securities have been duly authorized for issuance by the Trust,
and, when issued and delivered against payment therefor as provided herein, will
be duly and validly issued and, subject to the qualifications set forth herein,
fully paid and non-assessable beneficial interests in the Trust [NOTE: counsel
may note that the holders of Common Securities may be required to make payment
or provide indemnity or security as set forth in the Trust Agreement]; the
issuance of the Securities is not subject to preemptive or other similar rights
B-1
under the Trust Agreement or the Business Trust Act; and the Security holders
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. [NOTE: counsel need express no opinion
as to any holder of a Security that is, was or becomes a named Trustee of the
Trust.]
(vi) The issuance and sale by the Trust of the Securities and the Common
Securities, the execution, delivery and performance by the Trust of the
Agreement, the consummation by the Trust of the transactions contemplated
therein and the compliance by the Trust with its obligations thereunder do not
violate (a) any of the provisions of the Certificate of Trust of the Trust or
the Trust Agreement or (b) any applicable Delaware law or Delaware
administrative regulation.
(vii) Assuming that the Trust derives no income from or connected with
sources within the State of Delaware and has no assets, activities (other than
having a Delaware trustee as required by the Delaware Business Trust Act and the
filing of documents with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, no authorization, approval, consent or order
of any Delaware court or Delaware governmental authority or Delaware agency is
required to be obtained by the Trust solely as a result of the issuance and sale
of the Securities, the consummation by the Trust of the transactions
contemplated herein or the compliance by the Trust of its obligations hereunder,
except such as have been obtained and such as may be required by the securities
laws of the State of Delaware (as to which such counsel need express no
opinion).
(viii) Assuming that the Trust derives no income from or connected with
sources within the State of Delaware and has no assets, activities (other than
having a Delaware trustee as required by the Delaware Business Trust Act and the
filing of documents with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, and assuming that the Trust is treated as a
grantor trust for federal income tax purposes and that the holders of the
Securities are viewed for federal income tax purposes as owners of either all
of, or their liquidation and accrued but unpaid share of, the Corresponding
Subordinated Debt Securities held by the Trust, the Security holders (other than
those holders of the Securities, or persons who are partners or S corporation
shareholders for federal income tax purposes in such holders of Securities, who
reside or are domiciled in the State of Delaware or who are otherwise subject to
income taxation in the State of Delaware) will have no liability for income
taxes imposed by the State of Delaware solely as a result of their participation
in the Trust, and the Trust will not be liable for any income tax imposed by the
State of Delaware (in rendering the opinion expressed in this paragraph (viii),
such counsel need express no opinion concerning the securities laws of the State
of Delaware).
B-2
Exhibit C
FORM OF ACCOUNTANTS' COMFORT LETTER
-------------------------:
We have audited the consolidated financial statements of Old National Bancorp
(the "Company") and subsidiaries as of December 31, _____________ and _______
and for each of the _______ years in the period ended December 31, ___________
incorporated by reference in the Company's annual report on Form 10-K for the
year ended _____________ (the "Form 10-K"), incorporated by reference in the
registration statement (No._____________) on Form S-3 filed by the Company under
the Securities Act of 1933 (the "Act"); our report with respect thereto is also
incorporated by reference in such registration statement. Such registration
statement, including, without limitation, the preliminary prospectus supplement
dated _____________ and the prospectus supplement dated _____________, is herein
referred to as the "Registration Statement."
In connection with the Registration Statement:
1. We are independent certified public accountants with respect to the Company
within the meaning of the Act and the applicable rules and regulations
thereunder adopted by the Securities and Exchange Commission ("the SEC").
2. In our opinion, the consolidated financial statements audited by us and
incorporated by reference in the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of the
Act and the Securities Exchange Act of 1934 and the related rules and
regulations adopted by the SEC.
3. We have not audited any financial statements of the Company as of any date
or for any period subsequent to December 31,__________. Therefore, we are
unable to and do not express any opinion on the company's financial
position, results of operations or cash flows as of any date or for any
period subsequent to -------------.
4. For purposes of this letter, we have read the minutes of the ______meetings
of the Board of Directors of the Company as set forth in the minute books
at _____________, officials of the Company having advised us that the
minutes of all such meetings through that date were set forth therein
except for the minutes of the _____________ Board of Directors meeting
which were not approved in final form, for which drafts were provided to
us; officials of the Company have represented that such drafts include all
substantive actions taken at such meeting, and have carried out other
procedures to _____________ (our work did not extend to the period from
_____________ to _____________, inclusive) as follows:
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With respect to the period from _____________ to _____________, we have:
(i) read the unaudited consolidated financial data of the Company and
subsidiaries for _____________ and _____________ of both _______ and
_______ furnished us by the Company (such financial information is
incomplete in that it omits the statement of cash flows and other
disclosures), officials of the Company having advised us that no such
financial data as of any date or for any period subsequent to
_____________ were available; and
(ii) inquired of certain officials of the Company who have responsibility
for financial and accounting matters as to whether the unaudited
consolidated financial data referred to in (i) above are stated on a
basis substantially consistent with that of the audited consolidated
financial statements incorporated by reference in the Registration
Statement.
The foregoing procedures do not constitute an audit made in accordance with
generally accepted auditing standards. Also, they would not necessarily
reveal matters of significance with respect to the comments in the
following paragraph. Accordingly, we make no representations as to the
sufficiency of the foregoing procedures for your purposes.
5. Nothing came to our attention as a result of the foregoing procedures,
however, that caused us to believe that (i) at _____________ there was any
change in common stock, decreases in total assets, total deposits,
shareholders' equity, or increase in long-term debt of the Company and
subsidiaries consolidated as compared with amounts shown in the December
31,__________ consolidated balance sheet incorporated by reference in the
Registration Statement, or (ii) for the period from _____________ to
_____________ there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated net interest income or in net
income, except in all instances for changes, increases or decreases which
the Registration Statement discloses have occurred or may occur and except
as described in the following sentence. The unaudited consolidated balance
sheet as of _____________, which we were furnished by the Company, showed a
decrease in consolidated total deposits and an increase in consolidated
long-term debt as compared with amounts shown in the December
31,____________ consolidated balance sheet incorporated by reference in the
Registration Statement as follows (in millions of dollars):
---------------------------------------------------------------------
Total Deposits Long-term Debt
---------------------------------------------------------------------
December 31,
---------------------------------------------------------------------
---------------------------------------------------------------------
6. As mentioned in 4, Company officials have advised us that no consolidated
financial data as of any date or for any period subsequent to _____________
are available; accordingly, the procedures carried out by us with respect
to changes in financial statement items after _____________ have, of
necessity, been even more limited than those with respect to the periods
referred to in 4. We have inquired of certain officials of the Company who
have
C-2
responsibility for financial and accounting matters as to whether (a) at
_____________ there was any change in common stock, decreases in total
assets, total deposits, shareholders' equity, or increase in long-term debt
of the Company and subsidiaries consolidated as compared with amounts shown
in the December 31,_____________ audited consolidated balance sheet
incorporated by reference in the Registration Statement; or (b) for the
period from _____________ to _____________, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated net interest income or in net income. On the basis of these
inquiries and our reading of the minutes as described in 4, nothing came to
our attention that caused us to believe that there was any such change,
increase or decrease, except in all instances for changes, increases or
decreases which the Registration Statement discloses have occurred or may
occur and except as described in the following sentence. We have been
informed by officials of the Company that there continues to be a decrease
in consolidated total deposits and an increase in consolidated long-term
debt that is estimated to be approximately the same amount as set forth in
5 above.
7. For purposes of this letter, we have also read the items identified by you
on the attached copy of the prospectus supplement forming part of the
Registration Statement and have performed the following procedures, which
were applied as indicated with respect to the symbols explained below:
A Compared to or recalculated from the audited consolidated financial
statements and notes included in the Company's annual report on Form
10-K for the year ended December 31,___________ and incorporated by
reference in the Registration Statement and found the amounts or
percentages to be in agreement after rounding.
B Compared to or recalculated from the audited consolidated financial
statements and notes included in the Company's annual reports on Form
10-K for the years ended December 31,__________ and _______ and found
the amounts or percentages to be in agreement after rounding.
M Verified mathematical accuracy.
P Compared to or recalculated from schedules prepared by the Company
from its accounting records and found the amounts or percentages to be
in agreement. Amounts were rounded to the nearest whole dollar or
percentage where applicable. Our work included agreeing the amounts on
the schedules with the Company's accounting records and verifying the
mathematical accuracy of the schedules.
R Compared to or recalculated from schedules prepared by the Company
from its accounting records and found the amounts or percentages to be
in agreement. Amounts were rounded to the nearest whole dollar or
percentage where applicable. Our work included agreeing the amounts on
the schedules with the Company's accounting records and verifying the
mathematical accuracy of the schedules. We make no comment as to the
appropriateness of the allocation of rental expense that is
representative of the interest factor of such rental.
T Compared and agreed or recalculated and agreed, as appropriate, the
dollar amounts or percentages to analyses and schedules prepared by
the Company from its detailed accounting records. We make no comment
as to the appropriateness of the tax rates used in the Company's
taxable-equivalent adjustment.
C-3
