PLACEMENT AGREEMENT among HOME FEDERAL STATUTORY TRUST I, Issuer HOME FEDERAL BANCORP, Sponsor and COHEN & COMPANY Placement Agent Dated as of September 13, 2006
among
HOME
FEDERAL STATUTORY TRUST I,
Issuer
Sponsor
and
XXXXX
& COMPANY
Placement
Agent
Dated
as
of September 13, 2006
PLACEMENT
AGREEMENT, dated as of September
13, 2006 (this "Agreement"), among Home Federal Statutory Trust I, a statutory
trust created under the laws of the State of Delaware (the "Issuer"), Home
Federal Bancorp, an Indiana corporation, as Sponsor under the Declaration,
as
defined below (the "Sponsor" and, together with the Issuer, the "Trust
Parties"), and Xxxxx & Company, as placement agent (the "Placement
Agent").
WHEREAS,
the Issuer proposes to issue U.S. $15,000,000 of its Capital Securities,
designated TP Securities, due September 15, 2036 (the
"Securities");
WHEREAS,
the Securities will be issued pursuant to an Amended and Restated Declaration
of
Trust to be dated as of September 15, 2006 (the "Declaration"), among Home
Federal Bancorp, as Sponsor, LaSalle Bank National Association, as Institutional
Trustee, Christiana Bank & Trust Company, as Delaware Trustee, and the
Administrators named therein;
WHEREAS,
the Issuer has agreed not later than September 15, 2006 ("Closing Date"), to
provide the Placement Agent with a copy of the Declaration and any other
documents required to be delivered pursuant to the terms hereof or the
Declaration;
WHEREAS,
the Issuer will use the proceeds from the sale of the Securities to purchase
Debentures (as defined in the Declaration); and
WHEREAS,
capitalized terms used herein but not otherwise defined herein shall have the
meaning ascribed thereto in the Declaration;
NOW
IT IS
HEREBY AGREED as follows:
1. PLACEMENT
OF SECURITIES; COMPENSATION.
(a) On
the
terms and subject to the conditions of this Agreement and in reliance upon
the
representations and warranties herein set forth, the Issuer hereby appoints
the
Placement Agent as placement agent to place Securities, and the Placement Agent
hereby accepts such appointment. From the date hereof until any termination
of
the Placement Agent's obligations hereunder, the Placement Agent shall use
its
reasonable efforts to place Securities with investors permitted by the terms
hereof.
(b) The
Securities shall be issued and sold free from all liens, charges and
encumbrances, equities and other third party rights of any nature whatsoever,
together with all rights of any nature.
(c) The
Issuer shall not be obligated to pay any fee to the Placement
Agent.
2. CLOSING.
On the
Closing Date, delivery of and payment for the Securities shall be made at the
offices of LaSalle Bank National Association or such other location or locations
as shall be mutually acceptable to the parties hereto. Delivery of the
Securities shall be made against payment of the purchase price therefor to
the
order of the Issuer in same day funds by transfer to an account designated
by
the Sponsor or by such other means in same day funds as shall be acceptable
to
the Placement Agent and Sponsor. Such payment shall be made upon authorization
from the Placement Agent (such authorization to be given if the conditions
to
the Placement Agent's obligations set forth herein are either satisfied or
waived) against delivery of the Securities. The Securities will be in the form
requested by the Placement Agent in accordance with the terms of the
Declaration.
3. PAYMENT
OF EXPENSES.
The
Sponsor agrees to pay all costs and expenses incident to the performance of
the
obligations of the Sponsor and the Issuer under this Placement Agreement,
whether or not the transactions contemplated herein are consummated or this
Placement Agreement is terminated, including all costs and expenses incident
to
(i) the authorization, issuance, sale and delivery of the Securities and any
taxes payable in connection therewith; (ii) subject to Section 6(d), the fees
and expenses of qualifying the Securities under the securities laws of
applicable jurisdictions, and (iii) the fees and expenses of the counsel, the
accountants and any other experts or advisors retained by the Sponsor or the
Issuer; provided that upon the consummation of the transactions set forth herein
the Placement Agent shall reimburse the Sponsor for fees and charges of counsel
in the amount of $25,000.
Notwithstanding
the foregoing, if the sale of the Securities provided for in this Placement
Agreement is not consummated because any condition set forth herein to be
satisfied by either the Sponsor or the Issuer is not satisfied, because this
Placement Agreement is terminated pursuant to Section
10
or
because of any failure, refusal or inability on the part of the Sponsor or
the
Issuer to perform all obligations and satisfy all conditions on its part to
be
performed or satisfied hereunder other than by a reason of a default by the
Placement Agent, the Sponsor will reimburse the Placement Agent upon demand
for
all reasonable out-of-pocket expenses (including the fees and all reasonable
expenses of special counsel retained by the Placement Agent, which fees and
expenses shall not exceed $12,500) that shall have been incurred by the
Placement Agent in connection with the proposed placement of the Securities.
The
Sponsor shall not in any event be liable to the Placement Agent for the loss
of
anticipated profits from the transactions contemplated by this Placement
Agreement.
4. REPRESENTATIONS
AND WARRANTIES.
Each
Trust Party hereby represents, warrants and agrees to and with the Placement
Agent that, as of the Closing Date, and as to itself only and not as to the
other:
(a) with
respect to the Issuer, it is duly formed and validly existing under the laws
of
the State of Delaware and, with respect to the Sponsor, and its significant
subsidiaries (as defined in Rule 1-02 of Regulation S-X) (the
"Significant Subsidiaries"), each is duly organized, validly existing and (if
applicable) in good standing under the laws of the jurisdiction of its
organization, in each case, with all requisite power and authority to own or
transfer, as applicable, the Debentures, to conduct its business as required
under the Declaration, this Agreement, or any other documents relating to or
otherwise in connection with the issue and sale of the Securities (collectively,
the "Transaction Documents") and to perform its obligations hereunder and under
each Transaction Document, and is lawfully qualified to do business and is
in
good standing in those jurisdictions in which it conducts business and where
the
failure to be so qualified or in good standing would have a material adverse
effect on the condition (financial or otherwise), earnings or business of such
Trust Party, whether or not occurring in the ordinary course of business or
would otherwise be material in context of the issuance of the Securities
("Material Adverse Effect");
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(b) this
Agreement has been duly authorized, executed and delivered by such Trust Party
and constitutes, and each of the Transaction Documents to which such Trust
Party
is a party has been duly authorized by such Trust Party and, when duly executed
and delivered by the Placement Agent and the other parties thereto (if any),
on
the Closing Date, will constitute, legal, valid and binding obligations of
such
Trust Party, except as such obligations may be limited by bankruptcy,
insolvency, reorganization and other similar laws affecting the rights of
creditors generally and the application of general equitable principles
(regardless of whether the issue of enforceability is considered in a proceeding
in equity or at law);
(c) neither
the Issuer nor the Sponsor nor any of the Significant Subsidiaries is in breach
or violation of, or default under, with or without notice or lapse of time
or
both, its corporate charter, bylaws or other governing documents (including
without limitation, the Declaration);
(d) all
of
the issued and outstanding capital stock of the Sponsor has been duly authorized
and validly issued and is fully paid and nonassessable;
(e) all
of
the issued and outstanding capital stock of each Significant Subsidiary has
been
duly authorized and validly issued, is fully paid and nonassessable, and is
owned by the Sponsor, directly or through subsidiaries, free of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable right; and
none of the issued and outstanding capital stock of the Sponsor or its
Significant Subsidiaries was issued in violation of any preemptive or similar
rights arising by operation of law, under the charter, by-laws or code of
regulations of the Sponsor or any of its Significant Subsidiaries or under
any
agreement to which the Sponsor or any of its Significant Subsidiaries is a
party
or is otherwise bound;
(f) with
respect to the Issuer, on the Closing Date, the Securities have been duly
authorized by the Issuer and, when duly executed, authenticated, issued and
delivered in accordance with the Declaration against payment therefor as
contemplated herein, will be validly issued and represent undivided beneficial
interests in the assets of the Issuer, entitled to the benefits provided by
the
Declaration;
(g) with
respect to the Issuer, no consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is required
for the issue, sale or delivery of the Securities, except for those which have
been obtained and are in full force and effect, and no consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the consummation of the other
transactions contemplated by the Transaction Documents, except for those which
have been obtained and are in full force and effect, and except where the
failure to obtain such consent, approval, authorization, order, registration
or
qualification would not have a Material Adverse Effect;
(h) the
execution and delivery of the Transaction Documents, the issue of the Securities
and the consummation of the other transactions contemplated by the Transaction
Documents (and compliance with the terms thereof) do not and will not conflict
with or result in a breach of any of the terms or provisions of, or constitute
a
default under the organizational documents of such Trust Party; and the
execution and delivery of the Transaction Documents, the issue of the Securities
and the consummation of the other transactions contemplated by the Transaction
Documents (and compliance with the terms thereof) do not and will not conflict
with or result in a breach of any indenture, trust deed, mortgage or other
agreement or instrument to which such Trust Party is a party or by which it
or
any of its properties is bound, or infringe any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental body
or
court, domestic or foreign, having jurisdiction over such Trust Party or any
of
its properties, except for such conflicts, breaches, defaults or infringements
that would not have a Material Adverse Effect;
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(i) there
are
no pending actions, suits or proceedings against or affecting such Trust Party
or any of its properties and, to the best of such Trust Party's knowledge,
no
such suits or proceedings are threatened or contemplated that individually
or in
aggregate could reasonably be expected to have a Material Adverse Effect on
the
Issuer's issuance of the Securities;
(j) no
event
has occurred which, had the applicable Securities already been issued, would
reasonably be expected to (whether or not with the giving of notice and/or
the
passage of time and/or the fulfillment of any other requirement) constitute
an
Event of Default under the Declaration;
(k) the
Declaration does not require qualification under the U.S. Trust Indenture Act
of
1939, as amended;
(l) neither
the Issuer nor any affiliate of the Issuer nor any person acting on behalf
thereof has made offers or sales of the Securities under circumstances that
would require the registration of the Securities under the U.S. Securities
Act
of 1933, as amended (the "Securities Act");
(m) the
Issuer is not an "investment company" as defined in the U.S. Investment Company
Act of 1940, as amended, required to be registered under such act;
(n) with
respect to the Issuer, any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement and any Transaction
Document or the execution, delivery and sale of the Securities have been or
will
be paid on or prior to the Closing Date;
(o) there
are
no contracts, agreements or understandings between any of the Trust Parties
or
any affiliate thereof and any person granting such person the right to require
the Issuer to file a registration statement under the Securities Act, with
respect to any Securities owned or to be owned by such person; and
(p) subject
to compliance by the Placement Agent with the relevant provisions of Section
6
hereof, the sale of the Securities pursuant to this Agreement is exempt from
the
registration and prospectus delivery requirements of the Securities Act. In
the
case of each offer or sale of Securities, no form of general solicitation or
general advertising was used by the Issuer or its representatives, including,
but not limited to, advertisements, articles, notices or other communications
published in any newspaper, magazine or similar medium or broadcast over
television or radio designed to offer the Securities, or any seminar or meeting
whose attendees have been invited by any general solicitation or general
advertising. Neither the Issuer nor any person acting on its behalf (other
than
the Placement Agent) has offered or sold, nor will the Issuer or any person
acting on its behalf (other than the Placement Agent) offer or sell directly
or
indirectly, any Securities or any other security in any manner that, assuming
the accuracy of the representations and warranties and the performance of the
covenants given by the Placement Agent, would render the issuance and sale
of
any of the Securities as contemplated hereby a violation of Section 5 of the
Securities Act or the registration or qualification requirements of any state
securities laws, nor has the Issuer authorized, nor will it authorize, any
person to act in such manner.
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(q) The
audited consolidated financial statements (including the notes thereto) and
schedules of the Sponsor and its consolidated subsidiaries for the year ended
December 31, 2005 (the “Financial Statements”) and the interim unaudited
consolidated financial statements of the Sponsor and its consolidated
subsidiaries for the period ended June 30, 2006 (the “Interim Financial
Statements”) provided to the Placement Agent are the most recent available
audited and unaudited consolidated financial statements of the Sponsor and
its
consolidated subsidiaries, respectively, and fairly present in all material
respects, in accordance with generally accepted accounting principles, the
financial position of the Sponsor and its consolidated subsidiaries, and the
results of operations and changes in financial condition as of the dates and
for
the periods therein specified, subject, in the case of Interim Financial
Statements, to year-end adjustments. There has been no material adverse change
or development with respect to the Financial Statements or earnings of the
Sponsor and its subsidiaries, taken as a whole. Such consolidated financial
statements and schedules have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein). The accountants of the Sponsor
who
certified the Financial Statements are independent public accountants of the
Sponsor and its Subsidiaries within the meaning of the Securities Act and the
rules and regulations thereunder as in effect on the date of this Agreement.
(r) The
Sponsor’s report on FR Y-9C and FR Y-9LP dated June 30, 2006, provided to the
Placement Agent is the most recent available such report and the information
therein fairly presents in all material respects the financial information
of
the Sponsor and its subsidiaries, required by such form.
(s) Since
the
respective dates of the Financial Statements, the Interim Financial Statements
and the FR Y-9C and FR Y-9LP, there has been no material adverse change or
development with respect to the financial condition or earnings of the Sponsor
and its subsidiaries, taken as a whole.
(t) The
Sponsor is duly registered as a bank 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 Sponsor’s subsidiary
depository institutions 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 is pending
or,
to the knowledge of the Sponsor, threatened.
(u) Neither
the Sponsor nor any of its Significant Subsidiaries is subject to or party
to,
or has received any notice or advice that any of them may become subject to
any
investigation with respect to, any cease-and-desist order, agreement, consent
decree, memorandum of understanding or other regulatory enforcement action,
proceeding or order with or by, or is a party to any commitment letter or
similar undertaking to, or is subject to any directive by, or has been a
recipient of any supervisory letter from, or has adopted any board resolutions
at the request of, any Regulatory Agency (as defined below) that currently
restricts in any material respect the conduct of their business or that in
any
material manner relates to their capital adequacy, their credit policies or
their management or their business (each, a “Regulatory Agreement”), nor has the
Sponsor or any of its subsidiaries been advised by any Regulatory Agency that
it
is considering issuing or requesting any such Regulatory Agreement; and there
is
no unresolved violation, criticism or exception by any Regulatory Agent with
respect to any report or statement relating to any examinations of the Sponsor
or any of its Significant Subsidiaries which, in the reasonable judgment of
the
Sponsor, is expected to result in a Material Adverse Effect. As used herein,
the
term “Regulatory Agency” means any federal or state agency charged with the
supervision or regulation of depositary institutions or holding companies of
depository institutions, or engaged in the insurance of depository institution
deposits, or any court, administrative agency or commission or other
governmental agency, authority or instrumentality having supervisory or
regulatory authority with respect to the Sponsor or its Significant
Subsidiaries.
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(v) The
Sponsor has no present intention to exercise its option to defer payments of
interest on the Debentures as provided in the Indenture. The Sponsor believes
that the likelihood that it would exercise its right to defer payments of
interest on the Debentures as provided in the Indenture at any time during
which
the Debentures are outstanding is remote.
(w) The
Sponsor is duly qualified to do business as a foreign corporation and is in
good
standing under the laws of each jurisdiction which requires such qualification
wherein it owns or leases properties or conducts business, except where the
failure to be so qualified would not, singularly or in the aggregate, have
a
Material Adverse Effect, and holds all approvals, authorizations, orders,
licenses, certificates and permits from governmental authorities necessary
for
the conduct of its business, except where the failure to hold such approvals,
authorizations, orders, licenses, certificates and/or permits would not,
singularly or in the aggregate, have a Material Adverse Effect. Each of the
Significant Subsidiaries is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction which
requires such qualification wherein it owns or leases properties or conducts
business, except where the failure to be so qualified would not, singularly
or
in the aggregate, have a Material Adverse Effect, and holds all approvals,
authorizations, orders, licenses, certificates and permits from governmental
authorities necessary for the conduct of its business, except where the failure
to hold such approvals, authorizations, orders, licenses, certificate and/or
permits would not, singularly or in the aggregate, have a Material Adverse
Effect.
5. UNDERTAKINGS
BY THE ISSUER.
The
Issuer agrees with the Placement Agent as follows:
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(a) Neither
the Issuer, nor any of its affiliates nor any person authorized to act on its
behalf (other than the Placement Agent), will engage in any directed selling
efforts with respect to the Securities to any U.S. Person except pursuant to
an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. Terms used in this paragraph have the
meanings given to them by Regulation S under the Securities Act.
(b) Neither
the Issuer, nor any of its affiliates nor any person authorized to act on its
behalf (other than the Placement Agent), will make offers or sales of Securities
under circumstances that would require the registration of the Securities under
the Securities Act.
(c) For
so
long as any of the Securities are outstanding and are "restricted securities"
within the meaning of Rule 144, the Issuer will provide or cause to be provided
to any holder of Securities and any prospective purchaser of the Securities
designated by such a holder, upon the request of such holder or prospective
purchaser, the information required to be provided to such holder or prospective
purchaser by Rule 144A(d)(4).
(d) During
the period from the date of this Agreement to the Closing Date, the Sponsor
and
the Issuer shall use their best efforts to cause their representations and
warranties contained in Section 4 hereof to be true as of the Closing Date,
after giving effect to the transactions contemplated by this Agreement, as
if
made on and as of the Closing Date.
(e) The
Sponsor and the Issuer will not claim and will actively resist any attempts
by
others to claim the benefits of any usury laws against holders of Capital
Securities or the Debentures.
(f) The
Sponsor shall not identify the Placement Agent in a press release or any other
written public statement without the consent of such Placement Agent, and except
as required by applicable law.
6. SELLING
RESTRICTIONS.
The
Placement Agent represents and warrants to the Issuer that:
(a) It
understands that the Securities have not been and will not be registered under
the Securities Act and may not be offered or sold within the United States
except pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act. It has not offered or sold,
and
will not offer or sell, the Securities within the United States except to
persons whom it reasonably believes to be Qualified Institutional Buyers (as
defined in Rule 144A under the Securities Act), institutional Accredited
Investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) or to certain persons in transactions outside the United States in
accordance with Regulation S under the Securities Act. In connection with any
offer or sale in the United States or to or for the benefit of a U.S. Person,
it
will take reasonable steps to ensure that the purchaser of such Securities
is
aware that such offer or sale is being made in reliance on Rule 144A or
Regulation D in a manner that would not require registration of the Securities
under the Securities Act or any blue sky law of any State and that future
transfers of the Securities may not be made except in compliance with applicable
securities laws.
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(b) Neither
it nor any person acting on its behalf has engaged or will engage in any form
of
general solicitation or general advertising (as those terms are used in Rule
502(c) of Regulation D) in connection with any offer or sale of the Securities
in the United States.
(c) It
will
not offer or sell the Securities outside the United States, except in accordance
with the representations described herein and the restrictions set forth
below:
It
has
offered and sold the Securities, and will offer and sell the Securities, during
the applicable Distribution Compliance Period (as defined in Rule 902 of
Regulation S), only in accordance with Rule 903 or 904 of Regulation S
under the Securities Act. Accordingly, it represents and agrees that neither
it,
nor any of its affiliates nor any person acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect to the
Securities, and that it and they have complied and will comply with the offering
restriction requirements of Regulation S. It agrees that, at or prior to the
confirmation of sale of Securities, it shall have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration
that
purchases the Securities through it during the applicable Distribution
Compliance Period a confirmation or notice of substantially the following
effect:
"The
Securities offered hereby have not been registered under the U.S. Securities
Act
of 1933 (the "Securities Act") and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. Persons (i) as part of
their distribution at any time or (ii) until forty calendar days after the
later
of the commencement of the offering of the Securities or the Closing Date,
to
persons other than the Placement Agent or other distributors in reliance on
Regulation S and the Closing Date, except in either case in accordance with
Regulation S or Regulation D or other exemptive provisions under the Securities
Act. Terms used above have the meanings given to them by Regulation
S."
(d) It
acknowledges that no action has been or will be taken by the Issuer or any
other
person that would permit the offer or sale of the Securities in any jurisdiction
where action to implement such offer or sale of the Securities is required.
The
Placement Agent shall not offer or sell any Securities in any jurisdiction
except in compliance with applicable law, and the Placement Agent agrees, at
its
own expense, to comply with all such laws. The Placement Agent shall at its
own
expense obtain any consent, approval or authorization required for it to offer
or sell the Securities under the laws or regulations of any jurisdiction where
it proposes to make offers or sales of Securities.
7. CONDITIONS
PRECEDENT.
The
obligations of the Placement Agent hereunder shall be subject to the accuracy
of
the representations and warranties of each Trust Party contained herein as
of
the date hereof, and, as of the Closing Date (as if made on the Closing Date),
to the accuracy of the statements of each Trust Party made in any certificates
delivered pursuant hereto on such date, to the performance by each Trust Party
of its obligations hereunder, and to the following additional
conditions:
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(a) The
Issuer shall have obtained all governmental authorizations required, if any,
in
connection with the issue and sale of the Securities and the performance of
its
obligations hereunder and under the Transaction Documents to which it is a
party.
(b) Each
Trust Party shall have furnished to the Placement Agent a certificate of such
Trust Party signed by, in the case of the Issuer, an Administrator and, in
the
case of the Sponsor, the principal executive, financial or accounting officer
of
the Issuer, dated the Closing Date, to the effect that such signatory has
examined this Agreement and that the representations and warranties of such
party in this Agreement are true and correct in all material respects on and
as
of the Closing Date with the same effect as if made on the Closing Date, and
such party has performed all its obligations and satisfied all the conditions
on
its part to be satisfied at or prior to the Closing Date.
(c) The
Placement Agent and the Purchaser (as defined below) shall have been furnished
with (i) the opinion of counsel for the Trust Parties substantially in the
form
set out in Annex A and (ii) the opinion of counsel to the Placement Agent
substantially in the form set out in Annex B hereto, each dated on the date
hereof and in a form reasonably acceptable to the Placement Agent. Each opinion
addressed to the Placement Agent and Purchaser shall state that the first
entity, if any, to which the Purchaser transfers any of the Securities either
individually or on behalf of a collateralized debt obligation investor (“CDO
Investor”) that is sponsored or advised by such entity (any such purchaser from
the Purchaser and related CDO Investors are referred to hereinafter as a
“Subsequent Purchaser”) shall be entitled to rely on such opinion.
(d) The
conditions precedent to the performance by the Issuer of its obligations under
the Declaration shall have been satisfied or waived.
(e) Prior
to
the Closing Date, the Issuer shall furnish to the Placement Agent such further
information, certificates and documents as the Placement Agent may reasonably
request.
If
any of
the conditions specified in this Section 7 shall not have been fulfilled in
all
material respects when and as provided in this Agreement, or if any of the
opinions and certificates referred to in or contemplated by this Agreement
shall
not be in all material respects reasonably
satisfactory in form and substance to the Placement Agent and its counsel,
this
Agreement and all obligations of the Placement Agent hereunder may be canceled
by the Placement Agent at, or at any time prior to, the Closing Date. Notice
of
such cancellation shall be given to the Issuer in writing or by telephone or
facsimile confirmed in writing.
8. INDEMNIFICATION.
(a) Each
Trust Party agrees, jointly and severally, to indemnify and hold harmless the
Placement Agent and each person, if any, who controls the Placement Agent within
the meaning of the Securities Act, or the U.S. Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the respective affiliates, officers,
directors and employees of the Placement Agent and each such person (and each
and all referred to in Section 8(b) as an "indemnified party"), against any
losses, claims, damages or liabilities, joint or several, to which the Placement
Agent or such controlling person and the respective affiliates, officers,
directors and employees of the Placement Agent and each such person may become
subject, under the Securities Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arising out of, or based upon, in whole or part (i) any untrue statement or
alleged untrue statement of a material fact contained in any information or
documents executed in favor of or furnished to the Placement Agent by a Trust
Party or any omission in such information or documents of a material fact
required to be stated therein to make the statements not misleading or (ii)
any
breach of the representations and warranties set forth herein. Each Trust Party
agrees, jointly and severally, to reimburse the Placement Agent and each such
affiliate, officer, director, employee or controlling person for any legal
or
other expenses reasonably incurred by the Placement Agent and each such
affiliate, officer, director, employee or controlling person in connection
with
investigating or defending any such loss, claim, damage, liability or action
described in this Section 8(a). This indemnity agreement will be in addition
to
any liability that any of the Trust Parties may otherwise have.
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(b) 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 of the commencement thereof; but the omission
and/or delay to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party unless such omission and/or
delay caused actual prejudice to the indemnifying party; in case any such action
is brought against any indemnified party, and it notified the indemnifying
party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may elect by written notice,
to
assume the defense thereof, with counsel satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not
be
liable to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the
defense thereof other than reasonable costs of investigation. Counsel provided
by the indemnifying party may represent the indemnifying party as well as all
indemnified parties hereunder subject to the following provisions. If the
defendants in any 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 that are
different from or additional to or in conflict with those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or
parties. The reasonable fees and expenses of one (1) such separate counsel
for
the indemnified party shall be paid by the indemnifying party. Notwithstanding
anything to the contrary contained herein, such indemnified party may continue
any such action on its own at its own expense. The indemnifying party may avoid
its duty to indemnify under this Section 8 if the indemnified party, without
the
prior written consent of the indemnifying party (which consent shall not be
unreasonably withheld), effects any settlement or compromise of, or consents
to
the entry of any judgment in, any pending or threatened action in respect of
which any indemnifying party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnifying party from all liability
on any claims that are the subject matter of such action. The indemnifying
party
shall not be liable for any settlement of any claim effected without its
consent.
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10
-
9. CONTRIBUTION.
(a) In
order
to provide for just and equitable contribution in circumstances under which
the
indemnification provided for in Section 8 hereof is for any reason held to
be
unenforceable for the benefit of an Indemnified Party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party,
as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Sponsor and the Trust, on the one hand, and the
Placement Agent, on the other hand, from the offering of the Securities or
(ii)
if the allocation provided by clause (i) is not permitted by applicable law,
in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above, but also the relative fault of the Sponsor
and
the Trust, on the one hand, and the Placement Agent, on the other hand, in
connection with the statements, omissions or breaches, which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
(b) The
Sponsor and the Trust and the Placement Agent agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by
pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 9. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an Indemnified Party and referred to above in this Section 9 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement, omission or alleged omission or breach or alleged
breach.
(c) No
person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(d) For
purposes of this Section 9, the Placement Agent, each person, if any, who
controls the Placement Agent within the meaning of section 15 of the Securities
Act or Section 20 of the Exchange Act and the respective partners, directors,
officers, employees and agents of the Placement Agent or any such controlling
person shall have the same rights to contribution as the Placement Agent, while
each officer and director of the Sponsor, each officer and director of the
Company, each trustee of the Trust and each person, if any, who controls either
the Company or the Sponsor within the meaning of section 15 of the Securities
Act or section 20 of the Exchange Act shall have the same rights to contribution
as the Company and the Trust.
10. TERMINATION.
This
Agreement shall be subject to termination in the absolute discretion of the
Placement Agent, by written notice given to the Sponsor and the Issuer prior
to
delivery of and payment for the Securities, if prior to such time (i) a
downgrading shall have occurred in the rating accorded the Sponsor's debt
securities or preferred stock, if any, by any "nationally recognized statistical
rating organization," as that term is used by the Commission in Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act, or such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Sponsor's debt securities or preferred
stock, if any, (ii) the Issuer shall be unable to sell and deliver to Bear,
Xxxxxxx & Co., Inc. or such other purchaser(s) of the Securities acceptable
to the Placement Agent (the "Purchaser") at least $15,000,000 stated liquidation
value of Securities, (iii) the Sponsor or any of its subsidiaries that is an
insured depository institution shall cease to be "adequately-capitalized" within
the meaning of 12 U.S.C. §1831 and applicable regulations adopted thereunder, or
any formal administrative or judicial action is taken by any appropriate federal
banking agency against the Sponsor or any such insured subsidiary for unsafe
and
unsound banking practices, or violations of law, (iv) a suspension or material
limitation in trading in securities generally shall have occurred on the New
York Stock Exchange, (v) a suspension or material limitation in trading in
any
of the Sponsor's securities shall have occurred on the exchange or quotation
system upon which the Sponsor's securities are traded, if any, (vi) a general
moratorium on commercial banking activities shall have been declared either
by
federal or Delaware authorities or (vii) there shall have occurred any outbreak
or escalation of hostilities, or declaration by the United States of a national
emergency or war or other calamity or crisis, including acts of terrorism,
the
effect of which on financial markets is such as to make it, in the Placement
Agent's judgment, impracticable or inadvisable to proceed with the offering
or
delivery of the Securities.
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11
-
11. SURVIVAL
OF REPRESENTATIONS AND OBLIGATIONS.
The
representations, warranties, agreements and undertakings in this Agreement
shall
continue in full force and effect despite completion of the arrangements for
the
issue and placement of the Securities or any investigation made by or on behalf
of the Placement Agent.
12. NOTICES.
(a) Any
communication shall be given by letter or facsimile, in the case of notices
to
the Issuer, to it at:
Home
Federal Statutory Trust I
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxx 00000
Facsimile:
(812) 373-738
Attention:
Xxxx X.
Xxxxxx
in
the
case of notices to the Sponsor, to it at:
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxx X. Xxxxxx
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12
-
and
in
the case of notices to the Placement Agent, to it at:
Xxxxx
& Company
0000
Xxxx
Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Asset Backed Securities
(b) Any
such
communication shall take effect, in the case of a letter, at the time of
delivery and in the case of facsimile, at the time of dispatch.
(c) Any
communication sent by facsimile shall be confirmed by letter but failure to
send
or receive the letter of confirmation shall not invalidate the original
communication.
13. GOVERNING
LAW.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York without reference to its conflict of laws
provisions.
14. JURISDICTION.
Each of
the parties hereto hereby irrevocably submits to the non-exclusive jurisdiction
of any New York State or United States federal court sitting in The City and
County of New York over any suit, action or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby which is
brought by the Placement Agent, the Issuer or the Sponsor and irrevocably
waives, to the fullest extent it may effectively do so, any objection which
it
may now or hereafter have to the laying of venue of any such
proceeding.
15. NO
BANKRUPTCY PETITION.
The
Placement Agent covenants and agrees that, prior to the date which is one year
and one day after the payment in full of all Securities issued by the Issuer,
it
will not institute against, or join any other Person in instituting against,
the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any federal or state bankruptcy or
similar law. The provisions of this Section shall survive termination of this
Agreement for any reason whatsoever.
16. SUCCESSORS.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns, and no other person will have
any
right or obligations hereunder.
17. COUNTERPARTS.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all such counterparts shall together constitute
one and the same Agreement.
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13
-
IN
WITNESS WHEREOF, this Agreement has been entered into as of the date hereinabove
set forth.
|
By:
|
/s/
Xxxx X. Xxxxxx
|
|||||
|
Name:
|
Xxxx
X. Xxxxxx
|
|||||
|
Title:
|
EVP/CFO
|
Home Federal Statutory Trust I
By:
Home Federal Bancorp, as Sponsor
|
By:
|
/s/
Xxxx X. Xxxxxx
|
|||||
|
Name:
|
Xxxx
X. Xxxxxx
|
|||||
|
Title:
|
EVP/CFO
|
Xxxxx & Company, as Placement Agent
|
By:
|
/s/
E. Xxxxxx Xxxx III
|
|||||
|
Name:
|
E.
Xxxxxx Xxxx III
|
|||||
|
Title:
|
Director
|
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14
-
ANNEX
A
Pursuant
to Section 7(c) of the Placement Agreement, special counsel for the Offerors
shall deliver an opinion in substantially the following form:
September
15, 2006
Ladies
and Gentlemen:
We
have
acted as special counsel for Home Federal Bancorp, an Indiana corporation (the
“Company”), in connection with the issue and sale by the Home Federal Statutory
Trust I (the “Trust”) of 15,000 Capital Securities (liquidation amount $1,000
per capital security) representing undivided beneficial interests in the assets
of the Trust (the “Capital Securities”), the subsequent purchase by the Trust
from the Company of $15,464,000 in aggregate principal amount of Junior
Subordinated Deferrable Interest Debentures (the “Debt Securities”) and the
guarantee by the Company of the Capital Securities pursuant to a Guarantee
Agreement (the “Guarantee Agreement”). Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Placement Agreement
effective as of September 13, 2006, by and among the Company, the Trust and
Xxxxx & Company (the “Placement Agreement”). This opinion letter is
furnished pursuant to the Placement Agreement.
We
have
examined originals or copies of (i) the Articles of Incorporation of the
Company, together with all amendments thereto (“Articles of Incorporation”),
(ii) the Bylaws of the Company, as amended (“Bylaws”), (iii) certain resolutions
of the Board of Directors of the Company, (iv) the Certificate of Trust of
the
Trust as filed with the Secretary of State of the State of Delaware on September
13, 2006, (v) the Declaration of Trust of the Trust effective as of September
13, 2006 between the Company, Christiana Bank & Trust Company, as trustee
(“Delaware Trustee”) and administrators of the Trust (the “Administrators”),
(vi) the Amended and Restated Declaration of Trust (the “Declaration”) effective
as of September 15, 2006 among the Company, the Delaware Trustee, LaSalle Bank
National Association, as trustee (“Institutional Trustee”) and the
Administrators, (vii) the Guarantee Agreement effective as of September 15,
2006 between the Company and LaSalle Bank National Association, as Guarantee
Trustee, (viii) the Indenture effective as of September 15, 2006 between the
Company and LaSalle Bank National Association, as Debenture Trustee (the
“Indenture”), (ix) the Common Securities Subscription Agreement between the
Trust and the Company dated September 15, 2006, and the Debenture Subscription
Agreement between the Company and the Trust dated September 15, 2006 (together,
the “Subscription Agreements”), (x) the Capital Securities Purchase Agreement
between the Trust, the Company, and the Purchaser dated September 13, 2006
(the
“Capital Securities Purchase Agreement”), and (xi) such other documents and
records as we have deemed necessary and relevant for purposes hereof. The
documents in subparagraphs (iv) through (x) shall be referred to herein as
the
Operative Documents.
The
law
covered by the opinions expressed herein is limited to the law of the United
States of America and of the State of Indiana.
As
to all
matters of fact (including factual conclusions and characterizations and
descriptions of purpose, intention or other state of mind), we have relied,
with
your permission, entirely upon (i) the representations and warranties of
the parties set forth in the Operative Documents and (ii) certificates
delivered to us by the management of the Company, and have assumed, with your
permission, without independent inquiry, the accuracy of those representations,
warranties and certificates.
A-1
We
have
assumed, with your permission, the genuineness of all signatures (other than
those on behalf of the Company), the conformity of the originals of all
documents reviewed by us as copies, the authenticity and completeness of all
original documents reviewed by us in original or copy form and the legal
competence of each individual executing any document (other than those
individuals executing documents on behalf of the Company).
When
an
opinion set forth below is given to the best of our knowledge, or to our
knowledge, or with reference to matters of which we are aware or which are
known
to us, or with another similar qualification, the relevant knowledge or
awareness is limited to the actual knowledge or awareness of the individual
lawyers in the firm who have participated directly and substantively in the
specific transactions to which this opinion relates and without any special
or
additional investigation undertaken for the purposes of this opinion except
as
indicated herein, and such lawyer or lawyers have relied exclusively on
certificates of officers or representatives of the Company (after discussing
the
contents thereof with such officers), as to the existence or nonexistence of
the
circumstances upon which our opinion is predicated. We have no reason to
believe, however, that any such certificate is untrue or inaccurate in any
material respect.
Based
upon and subject to the foregoing, assuming that the final Operative Documents
will be substantially identical to the forms examined and that there will be
full compliance with the Operative Documents, and subject to the further
qualifications set forth below, we are of the opinion as of the date hereof
that:
(1) The
Company has been duly incorporated and is validly existing under the laws of
the
State of Indiana, and is duly registered as a bank holding company under
applicable rules and regulations. To the best of our knowledge, HomeFederal
Bank
(the “Bank”) is duly organized and validly existing under the laws of its
jurisdiction of organization and each of the Company and the Bank has full
corporate power and authority to own or lease its properties and conduct its
business as such business is currently conducted in all material respects.
To
the best of our knowledge, all outstanding shares of capital stock of the Bank
have been duly authorized and validly issued and are fully paid and
nonassessable.
(2) The
issuance, sale and delivery of the Capital Securities and Debt Securities in
accordance with the terms and conditions of the Placement Agreement, the Capital
Securities Purchase Agreement, the Subscription Agreements and the Operative
Documents have been duly authorized by all necessary actions of the Company’s
Board of Directors (the “Board”). There are no preemptive or other rights to
subscribe for or to purchase any shares of capital stock or equity securities
of
the Company or, to the best of our knowledge, without a duty of inquiry, the
Bank pursuant to the corporate Articles of Incorporation, Bylaws or other
governing documents or, to the best of our knowledge, any agreement or other
instrument to which either the Company or the Bank may be bound.
A-2
(3) The
Company has all requisite corporate power to enter into and perform its
obligations under the Placement Agreement, the Capital Securities Purchase
Agreement and the Subscription Agreements, and the Placement Agreement, the
Capital Securities Purchase Agreement and the Subscription Agreements have
been
duly and validly authorized, executed and delivered by the Company and
constitute the legal, valid and binding obligations of the Company enforceable
in accordance with their terms, except as the enforcement thereof may be limited
by general principles of equity and by bankruptcy, insolvency, reorganization,
receivership, moratorium, fraudulent conveyance or other laws relating to or
affecting creditors' rights generally, and except as the indemnification and
contribution provisions thereof may be limited under applicable laws and certain
remedies may not be available in the case of a non-material breach.
(4) Each
of
the Indenture, the Declaration and the Guarantee Agreement has been duly
authorized, executed and delivered by the Company, and (in the case of the
Indenture, the Declaration, and the Guarantee, respectively, assuming it is
duly
authorized, executed and delivered by the respective trustees) constitutes
a
valid and legally binding obligation of the Company enforceable in accordance
with its terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium, fraudulent conveyance and other laws affecting the
rights and remedies of creditors generally and to general principles of
equity.
(5) The
Debt
Securities have been duly authorized, executed and delivered by the Company,
are
entitled to the benefits of the Indenture and when authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the Trust,
will constitute legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent
conveyance and other laws affecting the rights and remedies of creditors
generally and to general principles of equity.
(6) To
the
best of our knowledge, neither the Company nor the Bank is in breach or
violation of, or default under, with or without notice or lapse of time or
both,
its corporate charter, bylaws or other governing documents. The execution,
delivery and performance of the Placement Agreement, the Capital Securities
Purchase Agreement and the Subscription Agreements and the consummation of
the
transactions contemplated by the Placement Agreement, the Capital Securities
Purchase Agreement, the Subscription Agreements and the Declaration do not
and
will not conflict with, result in the creation or imposition of any material
lien, claim, charge, encumbrance or restriction upon any property or assets
of
the Company or, to the best of our knowledge, the Bank, or constitute a material
breach or violation of, or constitute a material default under, with or without
notice or lapse of time or both, any of the terms, provisions or conditions
of
the articles of incorporation or charter, or bylaws of the Company or the Bank
or, to the best of our knowledge, without a duty of inquiry, any material
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease, franchise, license or any other agreement or instrument to which the
Company or the Bank is a party or by which any of them or any of their
respective properties may be bound or any order, decree, judgment, franchise,
license, permit, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, known to us as
having jurisdiction over the Company or the Bank or any of their respective
properties which, in each case, is material to (i) the Company and the Bank
on a
consolidated basis and (ii) the transactions contemplated by the Placement
Agreement in connection with the offer and sale of the Capital Securities;
provided that the issuance of the subordinated debentures under the Indenture
by
the Company will violate a loan agreement between the Company and LaSalle Bank
National Association dated February 15, 2006, but we have been advised by the
Company that all loans outstanding under such agreement are to be paid off
by
the Company and a covenant waiver has been received from LaSalle Bank National
Association as to the Company’s issuance of the Debt Securities.
A-3
(7) Except
for filings, registrations, or qualifications that may be required by securities
laws, no authorization, approval, consent or order of, or filing, registration
or qualification with, any person (including, without limitation, any court,
governmental body or authority) is required under the laws of the State of
Indiana in connection with the transactions contemplated by the Placement
Agreement in connection with the offer and sale of the Capital Securities as
contemplated by the Placement Agreement.
(8) To
the
best of our knowledge, no action, suit or proceeding at law or in equity is
pending or threatened to which the Company or the Bank is or may be a party,
and
no action, suit or proceeding is pending or threatened against or affecting
the
Company or the Bank or any of their properties, before or by any court or
governmental official, commission, board or other administrative agency,
authority or body, or any arbitrator, wherein an unfavorable decision, ruling
or
finding could reasonably be expected to have a material adverse effect on the
consummation of the Placement Agreement or the issuance and sale of the Capital
Securities as contemplated therein or the condition (financial or otherwise),
earnings, affairs, business, or results of operations of the Company and the
Bank on a consolidated basis.
(9) Assuming
the accuracy of the representations and warranties and compliance with the
agreements contained in the Operative Documents and in the Placement Agreement,
it is not necessary in connection with the offering, sale and delivery of the
Capital Securities, the Debt Securities and the Guarantee Agreement to register
the same under the Securities Act of 1933, as amended, under the circumstances
contemplated in the Placement Agreement, the Subscription Agreements, and the
Capital Securities Purchase Agreement.
(10) Neither
the Company nor the Trust is an “investment company” or an entity “controlled”
by an “investment company,” in each case within the meaning of the Investment
Company Act of 1940, as amended.
The
opinion expressed in the first two sentences of numbered paragraph 1 of this
opinion letter is based solely upon certain certificates and confirmations
issued by the applicable governmental officer or authority with respect to
each
of the Company and the Bank.
A-4
With
respect to the foregoing opinions, since no member of this firm is actively
engaged in the practice of law in the States of Delaware or New York, we do
not
express any opinions as to the laws of such states and have (i) relied,
with your approval, upon the opinion of Morris, James, Hitchens & Xxxxxxxx
LLP with respect to matters of Delaware law and (ii) assumed, with your
approval and without rendering any opinion to such effect, that the laws of
the
State of New York, in all respects material to this opinion, are substantively
identical to the laws of the State of Indiana, without regard to conflict of
law
provisions.
This
opinion is delivered solely to you (except that a Subsequent Purchaser as
defined under Section 7(c) of the Placement Agreement may also rely on this
opinion) and may not be used for any other purpose and may not be quoted,
circulated or published, in whole or in part, or otherwise referred to or
furnished to any other person other than your counsel, without our express
prior
written authorization.
A-5
ANNEX
B
Pursuant
to Section 7(c) of the Placement Agreement, Counsel shall deliver an opinion
in
substantially the following form:
We
have
acted as special tax counsel to Home
Federal Bancorp,
an
Indiana corporation (the "Company"), in connection with the offering by
Home
Federal Statutory Trust I
(the
"Trust") of 15,000
TP
Securities (liquidation amount $1,000 per capital security) (the "Capital
Securities"),
and the
subsequent purchase by the Trust from the Company of $15,464,000 in aggregate
principal amount of Junior Subordinated Deferrable Interest Debentures (the
"Subordinated Debt Securities"). Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Placement Agreement
effective as of September 13, 2006, by and among the Company, the Trust and
Xxxxx & Company (the "Placement Agreement"). This opinion letter is
furnished pursuant to the Placement Agreement.
In
arriving at the opinions expressed below we have examined executed copies of
(i)
the Amended and Restated Declaration of Trust of the Trust dated the date hereof
(the "Declaration"), and (ii) the Indenture relating to the issuance of the
Subordinated Debt Securities dated the date hereof (the "Indenture") (together,
the "Operative Documents"). In addition, we have made such investigations of
law
and fact as we have deemed appropriate as a basis for the opinion expressed
below.
It
is our
opinion that, under current law and assuming the performance of the Operative
Documents in accordance with the terms described therein, the Subordinated
Debt
Securities will be treated for United States federal income tax purposes as
indebtedness of the Company. It is our opinion that the Trust will not be
classified for United States federal income tax purposes as an association
taxable as a corporation.
Our
opinion is based on and limited to the U.S. Internal Revenue Code of 1986,
as
amended, Treasury Regulations promulgated thereunder, and administrative and
judicial interpretations thereof, all as of the date hereof and all of which
are
subject to change, possibly on a retroactive basis. In rendering this opinion,
we are expressing our views only as to the federal income tax laws of the United
States of America. We can give no assurance that, after such change, our opinion
would not be different. We undertake no responsibility to update or supplement
our opinion. This opinion is not binding upon the Internal Revenue Service,
and
there can be no assurance, and none is hereby given, that the Internal Revenue
Service will not take a position contrary to one or more of the positions
reflected in the foregoing opinion, or that our opinion will be upheld by the
courts if challenged by the Internal Revenue Service.
This
opinion is being furnished to you solely for your benefit in connection with
the
transactions set forth above (except that a Subsequent Purchaser as defined
under Section 7(c) of the Placement Agreement may also rely on this opinion).
It
may not be relied upon by, nor a copy of it delivered to any other party,
without our prior written consent. This opinion is based upon our knowledge
of
the law and facts as of the date hereof, and we assume no duty to communicate
with you with respect to any matter that comes to our attention
hereafter.
B-1
