EXHIBIT 99.h
UNDERWRITING AGREEMENT
▇▇▇ TRUST PREFERRED FUND I
(a Delaware Business Trust)
860,000 Shares Fund Securities
$21,500,000
September __, 1999
STERNE, AGEE & ▇▇▇▇▇, INC.
As representative of the several underwriters
named in Schedule I attached hereto
2100 AmSouth ▇▇▇▇▇▇▇ Building
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
▇▇▇ Trust Preferred Fund I, a Delaware business trust (the "Fund") proposes
to sell to the several underwriters (the "Underwriters") named in Schedule I
attached hereto for whom Sterne, Agee & ▇▇▇▇▇, Inc., a Delaware corporation, is
acting as representative (the "Representative") an aggregate of 860,000 shares
("Firm Shares") of the beneficial ownership of the Fund (the "Fund Securities").
The respective amounts of the Firm Shares to be so purchased by the several
Underwriters are set forth opposite their names in Schedule I hereto. The Fund
also proposes to sell at the Underwriters' option an aggregate of up to 86,000
additional shares (the "Option Shares") of Fund Securities to cover over-
allotments.
As Representative, you have advised the Fund (a) that you are authorized to
enter into this Agreement on behalf of the several Underwriters, and (b) that
the several Underwriters are willing, acting severally and not jointly, to
purchase the numbers of Firm Shares set forth opposite their respective names in
Schedule I, plus their pro rata portion of the Option Shares if you elect to
exercise the over-allotment option in whole or in part for the accounts of the
several Underwriters. The Firm Shares and the Option Shares are hereinafter
referred to collectively as the "Shares."
It is proposed that Sterne Agee Asset Management, Inc., a Delaware
corporation (the "Manager"), will act as the Fund's manager.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Fund and the Manager.
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(a) The Fund represents and warrants to the several Underwriters as of the
date hereof as follows:
(i) A registration statement on Form N-2 (Registration Nos. 333-
82195; 811-09421) with respect to the Shares has been carefully prepared by the
Fund in conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the Investment Company Act of 1940, as amended (the
"1940 Act"), and the rules and regulations thereunder (the "Rules and
Regulations") of the Securities and Exchange Commission (the
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"Commission"). Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of Rule 430A
under the Act) contained therein and the exhibits, financial statements and
schedules, as finally amended and revised, have heretofore been delivered by the
Fund to you. Such registration statement, herein referred to as the
"Registration Statement," which shall be deemed to include all information
omitted therefrom in reliance upon Rule 430A and contained in the Prospectus
referred to below, has been declared effective by the Commission under the Act
and no post-effective amendment to the Registration Statement has been filed as
of the date of this Agreement. The form of prospectus and statement of
additional information first filed by the Fund with the Commission pursuant to
Rule 497(b) and (h) and Rule 430A is herein referred to as the "Prospectus."
Each preliminary prospectus and statement of additional information included in
the Registration Statement prior to the time is becomes effective is herein
referred to as a "Preliminary Prospectus."
(ii) The Fund has been duly organized and is validly existing as a
business trust in good standing under the laws of the State of Delaware with the
power and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement; the Fund is duly qualified
as a foreign business trust to transact business and is in good standing in each
jurisdiction in which such qualification is required; and the Fund has no
subsidiaries.
(iii) The outstanding Fund Securities have been duly authorized and
validly issued and are fully paid and non-assessable; the Shares to be issued
and sold by the Fund have been duly authorized and when issued, and paid for as
contemplated herein will be validly issued, fully paid and non-assessable; and
no preemptive rights of stockholders exist with respect to any of the Shares or
the issue and sale thereof.
(iv) The Shares conform with the statements concerning them in the
Registration Statement.
(v) The Commission has not issued an order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus relating to the proposed
offering of the Shares nor instituted proceedings for that purpose. The
Registration Statement contains and the Prospectus and any amendments or
supplements thereto will contain all statements which are required to be stated
therein by, and in all respects conforms or will conform, as the case may be, to
the requirements of the Act, the 1940 Act and the Rules and Regulations. Neither
the Registration Statement nor any amendment thereto, and neither the Prospectus
nor any supplement thereto, contains or will contain any untrue statement of a
material fact or omits or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Fund makes no representations or warranties as to information contained
in or omitted from the Registration Statement or the Prospectus, or any such
amendment or supplement, in reliance upon, and in conformity with, written
information furnished to the Fund by or on behalf of any Underwriter through the
Representative, specifically for use in the preparation thereof.
(vi) The Statement of Net Assets of the Fund, together with related
notes and schedules as set forth in the Registration Statement, presents fairly
the financial position of the Fund at the indicated date. Such financial
statements has been prepared in accordance with generally accepted principles of
accounting.
(vii) There is no action or proceeding pending or, to the knowledge
of the Fund, threatened against the Fund before any court or administrative
agency which might result in any material adverse change in the business,
condition or prospects of the Fund, except as set forth in the Registration
Statement.
(viii) Since the respective dates as of which information is given in
the Registration Statement, as it may be amended or supplemented, there has not
been any material adverse change or any development involving a prospective
material adverse change in or affecting the condition, financial or otherwise,
of the Fund or the earnings, business affairs, management or business prospects
of the Fund, whether or not occurring in the ordinary course of business, and
there has not been any material transaction entered into by the Fund, other than
transaction in the ordinary course of business and changes and transactions
contemplated by the Registration Statement, as it may be
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amended or supplemented. The Fund has no material contingent obligations which
are not disclosed in the Registration Statement, as it may be amended or
supplemented.
(ix) The Fund is not in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a party or
by which it or any of its properties is bound and which default is of material
significance in respect of the business or financial condition of the Fund. The
consummation of the transactions herein contemplated and the fulfillment of the
terms hereof will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust or other agreement or instrument to which the Fund is a party, or of the
Declaration of Trust of the Fund or any order, rule or regulation applicable to
the Fund of any court or of any regulatory body or administrative agency or
other governmental body having jurisdiction.
(x) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Fund of, and the consummation of the transactions contemplated by, this
Agreement, the Management Agreement (as hereinafter defined), the Custodian
Agreement (has hereinafter defined) the Trust Preferred Purchase Agreement (as
hereinafter defined) (except such additional steps as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") the American Stock
Exchange, Inc., or may be necessary to qualify the Shares for public offering by
the Underwriter under state securities or Blue Sky laws, all of which will occur
as required) has been obtained or made and is in full force and effect and the
Shares have been approved for listing on the American Stock Exchange.
(xi) Subject to the exceptions noted above, the Fund holds all
material licenses, certificates and permits from governmental authorizes which
are necessary to the conduct of its business.
(xii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who has certified the financial statements
filed with the Commission as part of the Registration Statements, is an
independent public accountant as required by the Act, 1940 Act and the Rules and
Regulations.
(xiii) The Fund is duly registered under the 1940 Act as a closed-end,
non-diversified management investment company, and the notification of
registration of the Fund on Form N-8A (the "1940 Act Notification") has been
duly filed with the Commission and, at the time of filing thereof, conformed in
all material respects with the provisions of the 1940 Act and the rules and
regulations of the Commission thereunder, and did 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 not
misleading. The Fund has not received any notice from the Commission pursuant
to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the
Registration Statement.
(xiv) The Investment Management Agreement between the Fund and the
Manager (the "Management Agreement") has been duly authorized, executed and
delivered on behalf of the Fund, is a valid and binding obligation of the Fund
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws affecting
enforcement of creditors' rights generally and to equitable principles that may
restrict the availability of remedies and such Management Agreement is in all
respects in full compliance with all applicable provisions of the 1940 Act and
the Investment Advisers Act of 1940, as amended (the "Advisers Act").
(xv) The Mutual Fund Custody Agreement (the"Custodian Agreement")
between the Fund and The Trust Company of Sterne, Agee & ▇▇▇▇▇, Inc. has been
duly authorized, executed and delivered on behalf of the Fund, is a valid and
binding obligation of the Fund enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization and moratorium laws and
other laws affecting enforcement of creditors' rights generally and to equitable
principles that may restrict the availability of remedies and such Custodian
Agreement is in all respects in full compliance with all applicable provisions
of the 1940 Act.
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(xvi) The three respective Trust Preferred Purchase Agreements by and
among the Fund and (i) FirstBancorp, Inc. and FirstBancorp Capital Statutory
Trust, a Connecticut statutory trust controlled thereby, (ii) First Southern
Bancorp, Inc. and First Southern Capital Statutory Trust, a Connecticut
statutory trust controlled thereby and (iii) Central Community Corporation and
Central Community Capital Statutory Trust, a Connecticut statutory trust
controlled thereby have each been duly authorized, executed and delivered on
behalf of the Fund, and each is a valid and binding obligation of the Fund.
(b) The Manager represents and warrants as follows:
(i) The Manager has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct is business as
described in the Prospectus and the Manager is duly qualified to transact
business in all jurisdictions in which the conduct of its business requires such
qualification.
(ii) There is no action or proceeding pending or, to the knowledge
of the Manager, threatened against the Manager before any court or
administrative agency which might result in any material adverse change in the
business, condition or prospects of the Manager, except as set forth in the
Registration Statement.
(iii) Since the respective dates as of which information is given in
the Registration Statement, as it may be amended or supplemented, there has not
been any material adverse change or any development involving a prospective
material adverse change in or affecting the condition, financial or otherwise,
of the Manager or the earnings, business affairs, management or business
prospects of the Manager, whether or not occurring in the ordinary course of
business, and there has not been any material transaction entered into by the
Manager other than transactions in the ordinary course of business and changes
and transactions contemplated by the Registration Statement, as it may be
amended or supplemented. The Manager has no material contingent obligations
which are not disclosed in the Registration Statement, as it may be amended or
supplemented.
(iv) The Manager is not in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a party or
by which it or any of its properties is bound and which default is of material
significance in respect of the business or financial condition to the Manager.
The consummation of the transactions herein contemplated and the fulfillment of
the terms hereof will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Manager is a party,
or of the Certificate of Incorporation or By-Laws of the Manager or any order,
rule or regulation applicable to the Manager of any court or any regulatory body
or administrative agency or other governmental body having jurisdiction.
(v) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Manager of, and the consummation of the transactions contemplated by, this
Agreement or the Management Agreement (except such additional steps as may be
required by the NASD or may be necessary to qualify the Shares for public
offering by the Underwriters under state securities or Blue Sky laws, all of
which will occur as required) has been obtained or made and is in full force and
effect.
(vi) Subject to the exceptions noted above, the Manager holds all
material licenses, certificates and permits from governmental authorities which
are necessary to be conduct of it business.
(vii) The Manager is duly registered with the Commission under the
Advisers Act as an investment adviser, and there does not exist any proceeding
or any facts or circumstances the existence of which could lead to any
proceeding which would adversely affect the registration or good standing of the
Manager with the Commission. The Manager is not prohibited from performing its
obligations under the Management Agreement.
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(viii) The Management Agreement has been duly authorized, executed and
delivered on behalf of the Manager, and is a valid and binding obligation of the
Manager in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws affecting
enforcement of creditors' rights generally and to equitable principles that may
restrict the availability of remedies and such Management Agreement is in all
respects in full compliance with all applicable provisions of the 1940 Act and
the Advisers Act.
(ix) The Commission has not issued an order preventing or suspending
the use of any Preliminary Prospectus relating to the proposed offering of the
Shares nor instituted proceedings for that purpose. The Registration Statement
contains, and the Prospectus and any amendments or supplements thereto will
contain, all statements which are required to be stated therein by, and in all
respects conforms and will conform, as the case may be, to the requirements of,
the Act, the 1940 Act and the Rules and Regulations. Neither the Registration
Statement nor any amendment thereto contains, and neither the Prospectus nor any
supplement thereto will contain, any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading; provided, however, that the Manager
makes no representation or warranties as to information contained in or omitted
from the Registration Statement, or any such amendment or supplement, in
reliance upon, and in conformity with, written information furnished to the Fund
or the Manager by or on behalf of any Underwriter through the Representative,
specifically for use in the preparation thereof.
2. Purchase, Sale and Delivery of Firm Shares. On the basis of the
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representations, warranties and covenants herein contained, and subject to the
conditions herein set forth, the Fund agrees to sell to the Underwriters and
each Underwriter agrees, severally and not jointly, to purchase, at a price of
$25.00 per share, the number of Firm Shares set forth opposite the name of each
Underwriter in Schedule I hereof, subject to adjustments in accordance with
Section 9 hereof.
Payment for the Firm Shares to be sold hereunder is to be made in New York
Clearing House funds by certified or banks cashier's checks drawn to the order
of the Fund against delivery of certificates therefor to the Representative for
the several accounts of the Underwriters. Such payment and delivery are to be
made at the offices of Sterne, Agee & ▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, at 10:00 a.m., Atlanta time, on the third business day after
the date of this Agreement or at such other time and date not later than three
business days thereafter as you and the Fund shall agree upon, such time and
date being herein referred to as the "Closing Date." The certificates for the
Firm Shares will be delivered in such denominations and in such registrations as
the Representative request in writing not later than the third full business day
prior to the Closing Date, and will be made available for inspection by the
Representative at least one business day prior to the Closing Date.
In addition, on the basis of the representation and warranties herein
contained and subject to the terms and conditions herein set forth, the Fund
hereby grants an option to the several Underwriters to purchase the Option
Shares at the price per share and pursuant to the same conditions, contingencies
and adjustments as set forth in the first paragraph of this Section 2. The
option granted hereby may be exercised in whole or in part (if in part, subject
to a maximum of one exercise, with the aggregate number of Shares purchased
through such option not to exceed the number of Option Shares set forth in the
opening paragraph of this Agreement), upon written notice given within 30 days
after the date of this Agreement, by you, as Representative of the several
Underwriters, to the Fund setting forth the number of Option Shares as to which
the several Underwriters are exercising the option, the names and denominations
in which the Option Shares are to be registered and the time and date at which
such certificates are to be delivered. The time and date at which certificates
for Option Shares are to be delivered shall be determined by the Representative,
but shall not be earlier than three nor later than 10 full business days after
the exercise of such option, nor in any event prior to the Closing Date (each
such time and date being herein referred to as the "Option Closing Date"). If
the date of exercise of the option is three or more business days before the
Closing Date, the notice of exercise shall set the Closing Date as the Option
Closing Date. The number of Option Shares to be purchased by each Underwriter
shall be in the same proportion to the total number of Option Shares being
purchased as the number of Firm Shares being purchased by such Underwriter bears
to 860,000, adjusted by you in such manner as to avoid
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fractional shares. The option with respect to the Option Shares granted
hereunder may be exercised only to cover over-allotments in the sale of the Firm
Shares by the Underwriters. You, as Representative of the several Underwriters,
may cancel such option at any time prior to its expiration by giving written
notice of such cancellation to the Fund. To the extent, if any, that the option
is exercised, payment for the Option Shares shall be made on the Option Closing
Date in New York Clearing House funds by certified or bank cashier's check drawn
to the order of the Fund against delivery of certificates therefor at the
offices of Sterne, Agee & ▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇.
3. Offering by the Underwriters. It is understood that the several
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Underwriters are to make a public offering of the Firm Shares as soon as the
Representative deem it advisable to do so. The Firm Shares are to be initially
offered to the public at the initial public offering price set forth in the
Prospectus. The Representative may from time to time thereafter change the
public offering price and other selling terms. To the extent, if at all, that
any Option Shares are purchased pursuant to Section 2 hereof, the Underwriters
will offer them to the public on the foregoing terms.
It is further understood that you will act as the Representative for the
Underwriters in the offering and sale of the Shares, in accordance with the
Master Agreement Among Underwriters which has been entered into by you and the
several other Underwriters.
4. Covenants of the Fund. The Fund covenants and agrees with the several
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Underwriters that:
(a) Pursuant to their respective Trust Preferred Purchase Agreements with
the Fund, the Fund will use the proceeds of the Offering to purchase cumulative
trust preferred securities of FirstBancorp, Inc. and FirstBancorp Capital
Statutory Trust, a Connecticut statutory trust controlled thereby; First
Southern Bancorp, Inc. and First Southern Capital Statutory Trust, a Connecticut
statutory trust controlled thereby; and Central Community Corporation and
Central Community Capital Statutory Trust, a Connecticut statutory trust
controlled thereby.
(b) The Fund will advise the Representative promptly of any request of the
Commission for amendment of the Registration Statement or for supplement to the
Prospectus or for any additional information, or of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the use of the Prospectus or any order under Section 8(e) of the
1940 Act or of the institution of any proceedings for those purposes, and the
Fund will use its best efforts to prevent the issuance of any orders preventing
or suspending the use of the prospectus and to obtain as soon as possible the
lifting thereof, if issued.
(c) The Fund will cooperate with the Representative in endeavoring to
qualify the Shares for sale under the securities laws of such jurisdictions as
the Representative may reasonably have designated in writing and will make such
applications, file such documents, and furnish such information as may be
reasonable required for that purpose, provided the Fund shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or required to file
such a consent. The Fund will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be required to continue
such qualifications in effect for so long a period as the Representative may
reasonably request for distribution of the Shares.
(d) The Fund will deliver to, or upon the order of, the Representative,
from time to time, as many copies of any Preliminary Prospectus as the
Representative may reasonably request. The Fund will deliver to, or upon the
order of, the Representative during the period when delivery of a Prospectus is
required under the Act, as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Representative may reasonably
request. The Fund will deliver to the Representative at or before the Closing
Date, four signed copies of the Registration Statement and all amendments
thereto including all exhibits filed therewith, and will deliver to the
Representative such number of copies of the 1940 Act Notification and the
Registration Statement, but without exhibits, and of all amendments thereto, as
the Representative may reasonably request.
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(e) If during the period in which a Prospectus is required by law to be
delivered by an Underwriter or dealer any event shall occur as a result of
which, in the judgment of the Fund or in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, not misleading, or, if
it is necessary at any time to amend or supplement the Prospectus to comply with
any law, the Fund promptly will prepared and file with the Commission an
appropriate amendment or supplement to the Prospectus so that the Prospectus as
so amended or supplemented will not, in the light of the circumstances when it
is so delivered, be misleading, or so that the Prospectus will comply with the
law.
(f) The Fund will make generally available to its shareholders, as soon as
it is practicable to do so, but in any event not later than 15 months after the
effective date of the Registration Statement, an earnings statement (which need
not be audited) in reasonable detail, covering a period of at least 12
consecutive months beginning after the effective date of the Registration
Statement, which earnings statement shall satisfy the requirements of Section
11(a) of the Act and Rule 158 under the Act and will advise you in writing when
such statement has been so made available.
(g) The Fund will, for a period of five years from the Closing Date,
deliver to the Representative copies of annual reports and copies of all other
documents, reports and information furnished by the Fund to its shareholders or
filed with any securities exchange pursuant to the requirements of such exchange
or with the Commission pursuant to the Act or the Securities Exchange Act of
1934, as amended.
(h) As soon as the Fund is advised thereof, it will advise the
Representative, and confirm the advice in writing, that the Registration
Statement shall have become effective.
(i) The Fund will use its best efforts to list, subject to notice of
issuance, the Shares on the American Stock Exchange or, if unavailable, the
Nasdaq/NMS.
5. Cost and Expenses. The costs, expenses and fees incident to the
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performance of the obligations of the Fund under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting fees
of the Fund; the fees and disbursements of counsel for the Fund; the cost of
printing and delivering to, as requested by the Underwriters, copies of the
Registration Statement, Preliminary Prospectuses, the Prospectus, the 1940 Act
Notification, this Agreement, any Underwriters' Selling Memorandum, any sales
literature to dealers or prospective purchasers, the Underwriters' Invitation
Letter, the Listing Application, any Blue Sky Survey and any supplements or
amendments thereto; the filing fees of the Commission; the filing fees and
expenses incident to securing any required review by the NASD of the terms of
the sale of the Shares; the listing fee of the AMEX or Nasdaq/NMS, as
applicable; and the expenses, including the fees and disbursements of counsel
for the Underwriter, incurred in connection with the qualification of the Shares
under state securities or Blue Sky laws and the review of the terms of the sale
of the Shares by the NASD will be paid for by the bank holding companies in
which the Fund will invest the proceeds of the Shares, to the extent provided in
the Trust Preferred Purchase Agreements.
6. Conditions of Obligations of the Underwriters. The several obligations
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of the Underwriters to purchase the Firm Shares on the Closing Date and the
Option Shares, if any, on the Option Closing Date are subject to the accuracy,
as of the Closing Date or the Option Closing Date, as the case may be, of the
representations and warranties of the Fund and the Manager contained herein, and
to the performance by the Fund and the manager of their obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statements shall have been issued and no proceeding for that purpose shall have
been taken or, to the knowledge of the Fund or the Manager, shall be
contemplated by the Commission.
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(b) The Representative shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP counsel for the Fund, dated the Closing Date or the Option Closing Date, as
the case may be, addressed to the Underwriters to the effect that:
(i) The Fund has been duly organized and is validly existing as a
business trust in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus; and the Fund is duly qualified to transact business
in all jurisdictions in which the conduct of its business requires such
qualification, or in which the failure to qualify would have a materially
adverse effect upon the business of the Fund.
(ii) The Shares have been duly authorized; all of the Shares conform
to the description thereof contained in the Prospectus; the certificates for the
Shares are in due and proper form; the Firm Shares and the Option Shares, if
any, to be sold by the Fund pursuant to this Agreement have been duly authorized
and will be validly issued, fully paid and non-assessable when issued and paid
for as contemplated by this Agreement.
(iii) The Registration Statement has become effective under the Act
and to the best of the knowledge of such counsel no stop order proceeding with
respect thereto have been instituted or are pending or threatened under the Act.
(iv) The Registration Statement, all Preliminary Prospectuses and
the Prospectus and any amendments or supplements thereto (other than the
financial statements, schedules and other financial information included
therein, as to which such counsel need express no opinion) and the 1940 Act
Notification comply as to form in all material respects with the requirements of
the Act or the 1940 Act, as applicable, and the applicable rules and regulations
thereunder; nothing has come to the attention of such counsel that would lead
them to believe that the Registration Statement, at the time it became
effective, or the Prospectus, at the time it was filed with the Commission
pursuant to Rule 497 of the Rules and Regulations or the Registration Statement
and the Prospectus at the Closing Date or the Option Closing Date, as the case
may be, (or, as of its date, any amendment or supplement thereto), contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading
(except that such counsel need express no view as to financial statements,
schedules and other financial information included therein, and such counsel may
state that their belief is based upon the procedures set forth therein, but is
without independent check and verification).
(v) The statements under the captions "The Fund's Investments,"
"Fund Shares" and "Tax Matters" in the Prospectus, to the extent that they
constitute matters of law or legal descriptions, are accurate, and fairly and
correctly present the information called for with respect to such matters.
(vi) Such counsel does not know of any contracts or documents
required to be filed as exhibits to the Registration Statement or described in
the Registration Statement or the Prospectus which are not so filed or described
as required, and such contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly summarized in all material
respects.
(vii) Such counsel knows of no material legal proceedings pending or
threatened against the Fund except as set forth in the Prospectus.
(viii) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not and will not
conflict with or result in a breach of any of the terms or provision of, or
constitute a default under, the Declaration of Trust of the Fund, or any
agreement or instrument known to such counsel to which the Fund is a party or by
which the Fund may be bound.
(ix) This Agreement has been duly authorized, executed and delivered
by the Fund and is the binding obligation of the Fund in accordance with its
terms.
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(x) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body is necessary in connection with the execution and delivery of
this Agreement and the consummations by the Fund of the transactions herein
contemplated (other than as may be required by the NASD, the American Stock
Exchange, Inc. or as required by state securities and Blue Sky laws as to which
such counsel need express no opinion) except such as have been obtained or made,
specifying the same.
(xi) The Management Agreement, the Custodian Agreement and the Trust
Preferred Purchase Agreements have each been duly authorized and approved by the
Fund and comply with all applicable provisions of the 1940 Act, and the
Management Agreement, the Custodian Agreement and the Trust Preferred Purchase
Agreements have each been duly executed and delivered by the Fund and constitute
the valid and binding agreements of the Fund enforceable in accordance with
their respective terms, subject to applicable bankruptcy, insolvency,
reorganization and moratorium laws and other laws affecting enforcement of
creditors' rights generally and to equitable principles that may restrict the
availability of remedies.
(xii) The Fund is duly registered with the Commission under the 1940
Act as a closed-end, non-diversified management investment company, and all
required action has been taken by the Fund under the Act, the 1940 Act and the
Securities Exchange Act of 1934, as amended, to make the public offering and
consummate the sale of the Shares pursuant to this Agreement; and the provisions
of the Declaration of Trust of the Fund comply as to form in all material
respects with the requirements of the 1940 Act. The execution and delivery of
the Custodian Agreement, the Management Agreement and the Trust Preferred
Purchase Agreement and fulfillment of the terms thereof will not result in a
breach or violation of the terms and provisions of, or constitute a default
under, any agreement or instrument known to such counsel to which the Fund is a
party or of which its property is the subject nor will such action result in any
violation of the terms and provisions of the Declaration of Trust of the Fund or
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Fund or any of its properties.
In rendering such opinion ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may rely upon
certificates of officers of the Fund and of public officials as to matters of
fact, and may rely as to matters governed by the laws of states other than the
Treatment of Business Trusts under Delaware Law, the laws of the District of
Columbia and Federal laws on local counsel in such jurisdictions, provided that
in each case ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP shall state that they believe that they
and the Underwriters are justified in relying on such other counsel.
(c) The Representative shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L. L.
C., special counsel to the Manager, dated the Closing Date or the Option Closing
Date, as the case may be, addressed to the Underwriters to the effect that:
(i) The Manager has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus; and the Manager is duly qualified to transact
business in all jurisdictions in which the conduct of its business requires such
qualification, or in which the failure to qualify would have a material adverse
effect upon its business.
(ii) Such counsel knows of no material legal proceedings pending or
threatened against the Manager except as set forth in the Prospectus.
(iii) This Agreement has been duly authorized, executed and delivered
by the Manager.
(iv) The Manager is duly registered as a manager under the Advisers
Act and is not prohibited by the Advisers Act or the 1940 Act, or the rules and
regulations under such Acts, from acting as Manager for the Fund as contemplated
by the Prospectus.
9
(v) The Management Agreement has been duly authorized, executed and
delivered on behalf of the Manager and constitutes a valid and binding agreement
of the Manager enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and moratorium laws and other laws
affecting availability of remedies; and neither the execution and delivery by
the Manager of this Agreement or the Management Agreement nor the performance by
the Manager of its obligations thereunder for hereunder will result in a breach
or violation of the terms and provisions of, or constitute a default under, any
agreement or instrument known to such counsel to which the Manager is a party or
of which its property is the subject nor will such action result in any
violation of the provisions of the Certificate Incorporation or By-Laws of the
Manager or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Manager or any of its
properties.
In rendering such opinion, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.C. may rely upon
certificates of officers of the Manager and of public officials as to matters of
fact, and may rely as to matters governed by the laws of states other than
Alabama, the Delaware General Corporation Laws and Federal laws, on local
counsel in such jurisdictions, provided that in each case they shall state that
they believe that they and the Underwriters are justified in relying on such
other counsel.
(d) The Representative shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.C.,
counsel for the Underwriters, an opinion dated the Closing Date or the Option
Closing Date, as the case may be, with respect to the organization and existence
of the Fund, the validity of the Shares and other matters as the Underwriters
may reasonably request. In rendering such opinion, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.C. may
rely as to all matters governed other than by the laws of the State of Alabama
or Federal laws on the opinion of counsel referred to in paragraph (b) of this
Section 6. In addition, such opinion shall also include a statement to the
effect that nothing has come to the attention of such counsel which leads them
to believe that the Registration Statement, the Prospectus or any amendment or
supplement thereto contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading (except that such counsel need express no view
as to financial statements, schedules and other financial information included
therein). With respect to such statement, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.C. may state
that their belief is based upon the procedures set forth therein, but is without
independent check and verification.
(e) The Representative shall have received at or prior to the Closing Date
from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.C a memorandum or summary, in form and substance
satisfactory to the Representative, with respect to the qualification for
offering and sale by the Underwriters of the Shares under the state securities
or Blue Sky laws of such jurisdictions as the Representative may request.
(f) The Representative shall have received on the Closing Date or the
Option Closing Date, as the case may be, a signed letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, dated the Closing Date or the Option Closing Date, as the case may be, in
form and substance satisfactory to the Representative, to the effect that:
(i) They are independent accountants with respect to the Fund
within the meaning of the Act, 1940 Act and the Rules and Regulations;
(ii) In their opinion, the Statement of Net Assets for the Fund
examined by them and included in the Registration Statement complies as to form
in all material respects with the applicable accounting requirements of the Act,
the 1940 Act and the Rules and Regulations; and
(iii) They have performed specified procedures, not constituting an
audit, including a reading of the latest available interim financial statements
of the Fund, a reading of the minute books of the Fund, inquiries of officials
of the Fund responsible for financial accounting matters and such other inquires
and procedures as may be specified in such letter, and on the basis of such
inquires and procedures nothing came to their attention that caused them to
believe that at the date of the latest available balance sheet read by such
accountants, or at a subsequent specified date not more than 5 business days
prior to the Closing Date or the Option Closing Date, as
10
the case may be, there was any change in the capital stock or net assets of the
Fund as compared with amounts shown on the Statement of Net Assets included in
the Prospectus.
(g) The Fund and the Manager shall have furnished to the Representative
such further certificates and documents confirming the representations and
warranties contained herein and related matters as the Representative may
reasonably have requested.
(h) The Bank Holding Company Agreements shall have been duly executed and
shall be in effect, shall not have been terminated and shall be binding against
the Bank Holding Companies in accordance with their terms.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects satisfactory to the Representative and to ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.C.,
counsel for the Underwriters.
If any of the conditions herein above provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Representative by notifying the Fund of such termination in writing or by
telegram at or prior to the Closing Date or the Option Closing Date, as the case
may be.
In such event, the Manager, the Fund and the Underwriters shall not be
under any obligation to each other (except to the extent provided in Sections 5
and 8 hereof).
7. Conditions of the Obligations of the Fund. The obligations of the Fund
-----------------------------------------
to sell and deliver the Shares required to be delivered as and when specified in
this Agreement are subject to the conditions that at the Closing Date or the
Option Closing Date, as the case may be, no stop order suspending the
effectiveness of the Registration Statement or order under Section 8(e) of the
1940 Act or under the Act shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. Indemnification.
---------------
(a) The Fund and the Manager, jointly and severally, agree to indemnify
and hold harmless each Underwriter within the meaning of the Act against any
losses, claims, damages or liabilities to which such Underwriter or such
controlling person may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any breach of any
representation, warranty, agreement or covenant of the Fund herein contained
(ii) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or the 1940 Act Notification,
(iii) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or (iv) the Fund or the Manager not complying with the Act, the 1940 Act, the
Advisers Act, the Securities Exchange Act of 1934, as amended, or other
applicable United States securities laws and regulations; and will reimburse
each Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that the Fund and Manager
will not be liable in any case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement, or alleged
untrue statement, or omission or alleged omission made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or such amendment or
supplement, or 1940 Act Notification, in reliance upon and in conformity with
written information furnished to the Fund by or through the Representative
specifically for use in the preparation thereof. This indemnity agreement will
be in addition to any liability which the Fund or the Manager may otherwise
have.
11
(b) Each Underwriter will indemnify and hold harmless the Fund, its
Trustees and shareholders, each of its officers who have signed the Registration
Statement, the Manager, and each person, if any, who controls the Fund or the
Manager, within the meaning of the Act and the 1940 Act, against any losses,
claims, damages or liabilities to which the Fund or any such director, officer,
Manager, or controlling person may become subject, under the Act, the 1940 Act
or otherwise, insofar as such losses, claims, damages or liabilities (of actions
or proceedings in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or the 1940 Act Notification, or arise out of
or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made; and will reimburse any legal or other expenses reasonably incurred by the
Fund or any such director, officer, Manager, or controlling person in connection
with investigating or defending any such loss, claim, damage, liability, action
or proceeding; provided, however, that each Underwriter will be liable in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or such
amendment or supplement, or 1940 Act Notification, in reliance upon and in
conformity with written information furnished to the Fund by or through the
Representative specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 8, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided in this Section
8(a) or (b) hereof shall be available to any party who shall fail to give notice
as provided in this Section 8(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
prejudiced by the failure to give such notice, but the failure to give such
notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for contribution or otherwise
than on account of the provisions of Section 8(a) or (b). In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred the fees and expenses of the counsel
retained by the indemnified party in the event (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by you in the case of parties
indemnified pursuant to Section 8(a) and by the Fund and the Manager in the case
of parties indemnified pursuant to Section 8(b). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent but if settled with such consent or if there be a final judgement for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgement.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under Section 8(a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Fund and the Manager on the one hand and
the Underwriters on the other from the offering of the Shares. If,
12
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under Section 8(c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Fund and the Manager on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Fund and the Manager on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Fund and the Manager bear to the total underwriting
fees and commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the ommision or alleged commission to
state a material fact related to information suppled by the Fund, or the Manager
on the one had or the Underwriter on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Fund, the Manager and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 8(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 8(d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), (i) no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts and commissions
applicable to the Shares purchased by such Underwriter, and (ii) 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. The Underwriters' obligations in this Section
8(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto or
1940 Act Notification, each party against whom contribution may be sought under
this Section 8 hereby consents to the jurisdiction of any court having
jurisdiction over any other contributing party, agrees that process issuing from
such court may be served upon him or it by any other contributing party and
consents to the service of such process and agrees that any other contributing
party may join him or it as an additional defendant in any such proceeding in
which such other contributing party is a party.
9. Default by Underwriters. If on the Closing Date or the Option Closing
-----------------------
Date, as the case may be, any Underwriter shall fail to purchase and pay for the
portion of the Shares which such Underwriter has agreed to purchase and pay for
hereunder on such date (otherwise than by reason of any default on the part of
the Fund or the Manager), you, as Representative of the Underwriters, shall use
your best efforts to procure within 24 hours thereafter one or more of the other
Underwriters, or any others, to purchase from the Fund such amounts as may be
agreed upon and upon the terms set forth herein, the Firm Shares or Option
Shares, as the case may be, which the defaulting Underwriter or Underwriters
failed to purchase. If during such 24 hours you, as such Representative, shall
not have procured such other Underwriters, or any others, to purchase the Firm
Shares or Option Shares, as the case may be, agreed to be purchased by the
defaulting Underwriter or Underwriters, then (a) if the aggregate number of
shares with respect to which such default shall occur does not exceed 10% of the
Firm Shares or Option Shares, as the case may be, covered hereby, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Firm Shares or Option Shares, as the case may be, which they are
obligated to purchase hereunder, to purchase the Firm Shares or Option Shares,
as the case may be, which such defaulting Underwriter or Underwriters failed to
purchase, or (b) if the aggregate number of shares of Firm Shares or Option
Shares, as the case may be, with respect to which such default shall occur
exceeds 10% of the Firm Shares or Option Shares, as the case may be, covered
hereby, the Fund or you as the Representative of the Underwriters will have the
right, by
13
written notice given within the next 24-hour period to the parties to this
Agreement, to terminate this Agreement without liability on the part of the
nondefaulting Underwriters or of the Fund except to the extent provided in
Section 8 hereof. In the event of a default by any Underwriter or Underwriters,
as set forth in this Section 9, the Closing Date or Option Closing Date, as the
case may be, may be postponed for such period, not exceeding seven days, as you,
as Representative, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be affected, the term "Underwriter" includes any person
substituted for defaulting Underwriter. Any action taken under this Section 9
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. 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 written telecommunication. Notices to the Underwriter shall
be directed to Sterne, Agee & ▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President;
notices to the Fund shall be directed to ▇▇▇ Trust Preferred Fund I, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇. and notices to the Adviser shall be directed to Sterne Agee Asset
Management, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, President.
11. Termination. This Agreement may be terminated by you by notice to the
-----------
Fund as follows:
(a) at any time prior to the earlier of (i) the time the Shares are
released by you for sale by notice to the Underwriters, or (ii) 11:30 A.M. on
the first business day following the date of this Agreement;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse change or
any development involving a prospective material adverse change in or affecting
the condition, financial or otherwise, of the Fund or the Manager or the
earnings, business affairs, management, or business prospects of the Fund or the
Manager, whether or not arising in the ordinary course of business, (ii) any
outbreak, escalation of hostilities or declaration of war or national emergency,
if the effect of such outbreak, escalation or declaration on the financial
markets of the United States would, in your reasonable judgment, make the
offering or delivery of the Shares impracticable or inadvisable, (iii) any
national or international calamity or crisis or change in economic or political
conditions if the effect of such calamity, crisis or change on the financial
markets of the United States would in your reasonable judgement make the
offering or delivery of the Shares impracticable, (iv) suspension of trading in
securities on the New York Stock Exchange, the American Stock Exchange, the
Nasdaq/NMS or other limitation on prices (other than limitations on hours or
numbers of days of trading) for securities on either of such exchanges or the
Nasdaq/NMS, (v) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority which in your reasonable opinion materially and adversely
affects or will materially or adversely affect the business or operations of the
Fund, (vi) declaration of a banking moratorium by either federal, Texas, Florida
or New York State authorities, or (vii) the taking of any action by any federal,
state or local government or agency in respect of its monetary or fiscal affairs
which in your reasonable opinion has a material adverse effect on the securities
markets in the United States; or
(c) as provided in Section 6 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the Fund, as to
any obligation of the Underwriters to purchase the Option Shares, upon the
occurrence at any time prior to the Option Closing Date of any of the events
described in subparagraph (b) above or as provided in Sections 6 and 9 of this
Agreement.
12. Successors. This Agreement has been and is made solely for the benefit
----------
of the Underwriters, the Fund and the Manager and their respective successors,
executors, administrators, heirs and assigns, and the officers, directors and
controlling persons referred to herein, and no other person will have any right
or obligation hereunder. The term "successors" shall not include any purchaser
of the Shares merely because of such purchase.
13. Miscellaneous. The reimbursement, indemnification and contribution
-------------
agreements contained in this Agreement and the representations, warranties and
covenants of the Fund, the Manager and the several Underwriters in this
Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any
14
investigation made by or on behalf of any Underwriter or controlling person
thereof, or by or on behalf of the Fund or its directors or officers, and (c)
delivery of and payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Alabama.
15
If the foregoing is in accordance with your understanding of our Agreement,
please sign and return to us a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a single binding agreement between the
Underwriter and the Fund and the Manager in accordance with its terms.
Very truly yours,
▇▇▇ TRUST PREFERRED FUND I
By:______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
President
STERNE AGEE ASSET MANAGEMENT, INC.
By:______________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
President
Confirmed and Accepted, as of the
date first above written:
As Representative of the Several
Underwriters listed on Schedule I
By: STERNE, AGEE & ▇▇▇▇▇, INC.
By: __________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Chairman & CEO
16
SCHEDULE I
Schedule of Underwriters
Underwriter Number of Firm Shares to be Purchased
Sterne, Agee & ▇▇▇▇▇, Inc. .....................................................
[other underwriters]............................................................
[To be completed]
17
