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EXHIBIT 1.2
2,600,000 Cumulative Preferred Securities
Flagstar Trust
__% Cumulative Preferred Securities
(Liquidation Amount of $25.00 per Cumulative Preferred Security)
UNDERWRITING AGREEMENT
Roney Capital Markets,
a division of First Chicago
Capital Markets, Inc.
McDonald Investments Inc.
Stifel, Nicolaus & Company, Incorporated
JW Genesis Capital Markets, L.L.C.
As representatives of the several
Underwriters named in Schedule A
c/o Roney Capital Markets
One Griswold Street
Detroit, Michigan 48226
Dear Sirs:
Flagstar Bancorp, Inc., a Michigan corporation (the "Company") and its
financing subsidiary, Flagstar Trust, a Delaware business trust (the "Trust,"
and hereinafter together with the Company, the "Offerors"), propose that the
Trust issue and sell to the several Underwriters named in Schedule A (the
"Underwriters"), (who are acting severally and not jointly) pursuant to the
terms of this Agreement, 2,600,000 shares of the Trust's __% Cumulative
Preferred Securities, with a liquidation amount of $25.00 per preferred security
(the "Preferred Securities"), to be issued under the Trust Agreement (as
hereinafter defined), the terms of which are more fully described in the
Prospectus (as hereinafter defined). The aforementioned 2,600,000 Preferred
Securities to be sold to the Underwriters are herein called the "Firm Preferred
Securities." Solely for the purpose of covering over-allotments in the sale of
the Firm Preferred Securities, the Offerors further propose that the Trust issue
and sell to the Underwriters, at their option, up to an additional 390,000
Preferred Securities (the "Option Preferred Securities") upon exercise of the
over-allotment option granted in Section 1 hereof. The Firm Preferred Securities
and any Option Preferred Securities are herein collectively referred to as the
"Designated Preferred Securities."
The Offerors hereby confirm as follows their agreement with the several
Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF PREFERRED SECURITIES; DESCRIPTION OF
PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and agreements herein
contained, and subject to the terms and conditions herein set forth,
the Offerors hereby
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agree that the Trust shall issue and sell to the several Underwriters,
and the Underwriters agree, severally and not jointly, to purchase from
the Trust, at a purchase price of $25.00 per Preferred Security (the
"Purchase Price"), the Firm Preferred Securities each in the amount set
forth in Schedule A. Because the proceeds from the sale of the
Preferred Securities will be used to purchase from the Company its
Debentures (as hereinafter defined and as described in the Prospectus),
the Company shall pay to the Underwriters a commission as described in
Section 3 (the "Preferred Securities Commission").
In addition, on the basis of the representations, warranties
and agreements herein contained and subject to the terms and conditions
herein set forth, the Trust hereby grants to the Underwriters an option
to purchase all or any portion of the 390,000 Option Preferred
Securities, and upon the exercise of such option in accordance with
this Section 1, the Offerors hereby agree that the Trust shall issue
and sell to the Underwriters, and the Underwriters agree to purchase
from the Trust, all or any portion of the Option Preferred Securities
at the same Purchase Price per Preferred Security paid for the Firm
Preferred Securities. Because the proceeds from the sale of the Firm
Preferred Securities will be used to purchase from the Company its
Debentures, the Company shall pay to the Underwriters the Preferred
Securities Commission described in Section 3 for each Option Preferred
Security purchased. The option hereby granted (the "Option") shall
expire 30 days after the date upon which the Registration Statement (as
hereinafter defined) becomes effective and may be exercised only for
the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Firm Preferred Securities,
and may only be exercised with the express written consent of Roney
Capital Markets, a division of First Chicago Capital Markets, Inc. (the
"Representative"). The Option may be exercised in whole or in part at
any time (but not more than once) by the Underwriters by the
Representative giving notice (confirmed in writing) to the Trust
setting forth the number of Option Preferred Securities as to which the
Underwriters are exercising the Option and the time, date and place for
payment and delivery of certificates for such Option Preferred
Securities. Such time and date of payment and delivery for the Option
Preferred Securities (the "Option Closing Date") shall be determined by
the Underwriters, but shall not be earlier than two nor later than five
full business days after the exercise of such Option, nor in any event
prior to the Closing Date (as hereinafter defined). The Option Closing
Date may be the same as the Closing Date.
Payment of the Purchase Price and the Preferred Securities
Commission and delivery of certificates for the Firm Preferred
Securities shall be made at the offices of Honigman Miller Schwartz and
Cohn, counsel for the Underwriters, 2290 First National Building,
Detroit, Michigan 48226, or such other place as shall be agreed to by
the Underwriters and the Offerors, at 10:00 a.m., Eastern time, on
___________, 1999, or at such other time not more than five full
business days thereafter as the Offerors and the Underwriters shall
determine (the "Closing Date"). If the Underwriters exercise the Option
to purchase any or all of the Option Preferred Securities, payment of
the Purchase Price and the Preferred Securities Commission and delivery
of certificates for such Option Preferred Securities shall be made on
the Option Closing Date at the Underwriter's offices, or at such other
place as the Offerors and the Underwriter shall determine. Such
payments shall be made to an account designated or on behalf of by the
Trust by wire transfer or certified or bank cashier's check, in
clearing house or similar
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next day available funds in the amount of the Purchase Price therefor,
against delivery by or on behalf of the Trust to the Underwriters of
certificates for the Designated Preferred Securities to be purchased by
the Underwriters.
The Agreement contained herein with respect to the timing of
the Closing Date and the Option Closing Date is intended to, and does,
constitute an express agreement, as described in Rule 15c6-1(c) and (d)
promulgated under the 1934 Act (as defined herein), for a settlement
date other than four business days after the date of the contract.
Certificates for Designated Preferred Securities to be
purchased hereunder shall be in book-entry form and registered in the
name of Cede & Co. not later than 12:00 noon, Eastern time, two
business days prior to the Closing Date and, if applicable, the Option
Closing Date. Delivery of the Preferred Securities may be made by
credit through full fast transfer to the accounts at The Depository
Trust Company ("DTC") designated by you and if not made by such credit
delivery with will be made to DTC. Certificates for Designated
Preferred Securities to be purchased by or on behalf of the
Underwriters and registered in the name of Cede & Co. shall be made
available by the Offerors to the Underwriters for inspection, checking
and packaging at such office as the Underwriters may designate in
writing not later than 1:00 p.m., Eastern time, on the last business
day prior to the Closing Date, and, if applicable, on the last business
day prior to the Option Closing Date.
Time shall be of the essence, and delivery of the certificates
for the Designated Preferred Securities at the time and place specified
pursuant to this Agreement is a further condition of the obligations of
the Underwriters hereunder.
(b) The Offerors propose that the Trust issue the
Designated Preferred Securities pursuant to a Trust Agreement among,
______________ Trust Company, as Delaware Trustee,
_____________________________, as the Property Trustee, the
Administrative Trustees named therein, (collectively, the "Trustees"),
and the Company, in substantially the form heretofore delivered to the
Underwriters, said Agreement being hereinafter referred to as the
"Trust Agreement." In connection with the issuance of the Designated
Preferred Securities, the Company proposes (i) to issue its Junior
Subordinated Debentures (the "Debentures") pursuant to an Indenture, to
be dated as of __________________, 1999, between the Company and
_____________________, as Trustee (the "Indenture") and (ii) to
guarantee certain payments on the Preferred Securities pursuant to a
Preferred Securities Guarantee Agreement between the Company and
______________________, as Guarantee Trustee (the "Guarantee"), to the
extent described therein.
(c) The Representative hereby represents and warrants to
the Offerors that it has the authority to enter into this Agreement on
behalf of the several Underwriters and that the Underwriters have
indicated their intention to the Representative their willingness to
purchase severally and not jointly Designated Preferred Securities as
provided herein.
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2. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant to,
and agree with, the several Underwriters that:
(i) The reports filed with the Securities and
Exchange Commission (the "Commission") by the Company under
the Securities Exchange Act of 1934, as amended (the "1934
Act") and the rules and regulations thereunder (the "1934 Act
Regulations") and incorporated into the Prospectus by
reference, at the time they were filed with the Commission,
complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations and
did not contain an untrue statement of fact or omit to state
any fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which
they were made, not misleading.
(ii) The Offerors have prepared and filed with the
Commission a registration statement on Form S-3 (File Number
333-______) for the registration of $65,000,000 aggregate
amount of the Designated Preferred Securities, the Guarantee
and Debentures under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus
subject to completion included therein, and one or more
amendments or supplements to such registration statement may
have been so filed, in each case in conformity with the
requirements of the 1933 Act, the rules and regulations
promulgated thereunder (the "1933 Act Regulations") and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the rules and regulations thereunder. Copies of such
registration statement, including any amendments thereto, each
Preliminary Prospectus (as defined herein) contained therein
and the exhibits, financial statements and schedules to such
registration statement, as finally amended and revised, have
heretofore been delivered by the Offerors to the Underwriters.
After the execution of this Agreement, the Offerors will file
with the Commission (A) if such registration statement, as it
may have been amended, has been declared by the Commission to
be effective under the 1933 Act, a prospectus in the form most
recently included in an amendment to such registration
statement (or, if no such amendment shall have been filed, in
such registration statement), with such changes or insertions
as are required by Rule 430A of the 1933 Act Regulations
("Rule 430A") or permitted by Rule 424(b) of the 1933 Act
Regulations ("Rule 424(b)") and as have been provided to and
not objected to by the Underwriters prior to (or as are agreed
to by the Underwriters subsequent to) the execution of this
Agreement, or (B) if such registration statement, as it may
have been amended, has not been declared by the Commission to
be effective under the 1933 Act, an amendment to such
registration statement, including a form of final prospectus,
necessary to permit such registration statement to become
effective, a copy of which amendment has been furnished to and
not objected to by the Underwriters prior to (or is agreed to
by the Underwriters subsequent to) the execution of this
Agreement. Except as required by applicable law as evidenced
by a written opinion of counsel relating thereto, the Offerors
will not file any amendment to the registration statement or
any amended Preliminary Prospectus
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or any amendment thereto, of which the Underwriters have not
been previously furnished a copy or to which the Underwriters
or counsel thereto shall have reasonably objected in writing.
As used in this Agreement, the term "Registration Statement"
means such registration statement, as amended at the time when
it was or is declared effective under the 1933 Act, including
(1) all financial schedules and exhibits thereto, (2) all
documents (or portions thereof) incorporated by reference
therein filed under the 1934 Act, and (3) any information
omitted therefrom pursuant to Rule 430A and included in the
Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each preliminary prospectus subject to
completion filed with such registration statement or any
amendment thereto including all documents (or portions
thereof) incorporated by reference therein to documents filed
under the 1934 Act (including the preliminary prospectus
subject to completion, if any, included in the Registration
Statement and each prospectus filed pursuant to Rule 424(a)
under the 1933 Act); and the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule
424(b)(1) or (4) if no prospectus is required to be filed
pursuant to Rule 424(b)(1) or (4), the prospectus included in
the Registration Statement, in each case including the
financial schedules and all documents (or portions thereof)
incorporated by reference therein to documents filed under the
1934 Act. The date on which the Registration Statement becomes
effective under the 1933 Act is hereinafter referred to as the
"Effective Date."
(iii) The documents incorporated by reference in the
Preliminary Prospectus or Prospectus when they became
effective or were filed with the Commission, as the case may
be, complied in all material respects with the requirements of
the 1934 Act and the 1934 Act Regulations, and when read
together and with the other information in the Preliminary
Prospectus or Prospectus, as the case may be, at the time the
Registration Statement became or becomes effective and at the
Closing Date and any Option Closing Date, did not or will not,
as the case may be, contain an untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading.
(iv) No order preventing or suspending the use of
any Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) has been issued by the
Commission, nor has the Commission, to the knowledge of the
Offerors, threatened to issue such an order or instituted
proceedings for that purpose. Each Preliminary Prospectus, at
the time of filing thereof, (A) complied in all material
respects with the requirements of the 1933 Act and the 1933
Act Regulations and (B) did not contain an untrue statement of
fact or omit to state any fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that this representation and warranty does
not apply to statements or omissions made in reliance upon and
in conformity with information furnished in writing to the
Offerors by the Underwriters expressly for inclusion in the
Prospectus beneath the heading "Underwriting" and on the cover
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page of the Prospectus with respect to price, underwriting
discount and terms of the offering (such information referred
to herein as the "Underwriter Information").
(v) At the Effective Date and at all times
subsequent thereto, up to and including the Closing Date and,
if applicable, the Option Closing Date, the Registration
Statement and any post-effective amendment thereto (A)
complied and will comply in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations and the
Trust Indenture Act (and the rules and regulations thereunder)
and (B) did not and will not contain an untrue statement of
fact or omit to state any fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. At
the Effective Date and at all times when the Prospectus is
required to be delivered in connection with offers and sales
of Designated Preferred Securities, including, without
limitation, the Closing Date and, if applicable, the Option
Closing Date, the Prospectus, as amended or supplemented, (1)
complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and
the Trust Indenture Act (and the rules and regulations
thereunder) and (2) did not contain and will not contain an
untrue statement of fact or omit to state any fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty does not apply to Underwriter Information. (vi) The
Company is duly incorporated, validly existing and in good
standing under the laws of the State of Michigan, with full
corporate power and authority to own, lease and operate its
properties and conduct its business as described in and
contemplated by the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted.
(vii) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under
the Delaware Business Trust Act with the power and authority
(trust and other) to own its property and conduct its business
as described in the Registration Statement and Prospectus, to
issue and sell its common securities (the "Common Securities")
to the Company pursuant to the Trust Agreement, to issue and
sell the Designated Preferred Securities, to enter into and
perform its obligations under this Agreement and to consummate
the transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of
its business or the ownership of its property requires such
qualification, except to the extent that the failure to be so
qualified or to be in good standing would not have a material
adverse effect on the Trust; the Trust has conducted and will
conduct no business other than the transactions contemplated
by this Agreement and described in the Prospectus; the Trust
is not a party to or bound by any agreement or instrument
other than this Agreement, the Trust Agreement and the
agreements and instruments contemplated by the Trust
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Agreement and described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Trust
Agreement and described in the Prospectus; the Trust is not a
party to or subject to any action, suit or proceeding of any
nature; the Trust is not, and at the Closing Date or any
Option Closing Date will not be, to the knowledge of the
Offerors, classified as an association taxable as a
corporation for United States federal income tax purposes; and
the Trust is, and as of the Closing Date or any Option Closing
Date will be, treated as a consolidated subsidiary of the
Company pursuant to generally accepted accounting principles.
(viii) The Company has six subsidiaries, Flagstar
Bank, FSB (the "Bank"), the Trust, Douglas Insurance Agency,
Inc. ("DIA"), FSSB Real Estate Development Corporation
("REDC"), Mortgage Video Network, Inc. ("Video"), and First
Security Investment Group, Inc. ("Investment"). The Bank, the
Trust, DIA, REDC, Video and Investment are hereinafter
collectively referred to as the "Subsidiaries". The Company
does not own or control, directly or indirectly, more than 5%
of any class of equity security of any corporation,
association or other entity other than the Subsidiaries. The
Bank is a federally chartered stock savings bank, validly
existing and in good standing under the federal Home Owners'
Loan Act. The Bank has full corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and as
currently being conducted. The Bank is a member of the Federal
Reserve System, and no proceedings for the termination or
revocation of such membership are pending, or, to the
knowledge of the Company, threatened. The deposit accounts of
the Bank are insured by the Savings Association Insurance Fund
("SAIF") administered by the Federal Deposit Insurance
Corporation (the "FDIC") up to the maximum amount provided by
law; and no proceedings for the modification, termination or
revocation of any such insurance are pending or, to the
knowledge of the Offerors, threatened.
(ix) The Company, the Bank, DIA, REDC, Video and
Investment are each duly qualified to transact business as a
foreign corporation and are each in good standing in each
other jurisdiction in which it owns or leases property or
conducts its business so as to require such qualification and
in which the failure to so qualify would, individually or in
the aggregate, have a material adverse effect on the financial
condition, earnings, business, prospects or results of
operations of the Company and the Subsidiaries on a
consolidated basis. All of the issued and outstanding shares
of capital stock of the Subsidiaries (A) have been duly
authorized and are validly issued, (B) are fully paid and
nonassessable and (C) except as disclosed in the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), are directly owned by the Company
free and clear of any security interest, mortgage, pledge,
lien, encumbrance, restriction upon voting or transfer,
preemptive rights, claim or equity. Except as disclosed in the
Prospectus, there are no outstanding rights, warrants or
options to acquire or
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instruments convertible into or exchangeable for any capital
stock or equity securities of the Subsidiaries.
(x) The capital stock of the Company and the
equity securities of the Trust conform to the description
thereof contained in the Prospectus or the financial
information included therein (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). The
outstanding shares of capital stock and equity securities of
each Offeror have been duly authorized and validly issued and
are fully paid and nonassessable, and no such shares were
issued in violation of the preemptive or similar rights of any
security holder of an Offeror; no person has any preemptive or
similar right to purchase any shares of capital stock or
equity securities of the Offerors. Except as disclosed in the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), there are no outstanding
rights, options or warrants to acquire from the Offerors any
securities of the Offerors other than options and warrants
issued under the Company's 1997 Employees and Directors Stock
Option Plan, and there are no outstanding securities
convertible into or exchangeable for any such securities and
no restrictions upon the voting or transfer of any capital
stock of the Company or equity securities of the Trust
pursuant to the Company's corporate charter or bylaws, the
Trust Agreement or any agreement or other instrument to which
an Offeror is a party or by which an Offeror is bound.
(xi) (A) The Trust has all requisite power
and authority to issue, sell and deliver the
Designated Preferred Securities in accordance with and
upon the terms and conditions set forth in this
Agreement, the Trust Agreement, the Registration
Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary
Prospectus). All corporate and trust action required
to be taken by the Offerors for the authorization,
issuance, sale and delivery of the Designated
Preferred Securities in accordance with such terms and
conditions has been validly and sufficiently taken.
The Designated Preferred Securities, when delivered in
accordance with this Agreement, will be duly and
validly issued and outstanding, will be fully paid and
nonassessable undivided beneficial interests in the
assets of the Trust, will be entitled to the benefits
of the Trust Agreement, will not be issued in
violation of or subject to any preemptive or similar
rights, and will conform in all material respects to
the description thereof in the Registration Statement
and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and
the Trust Agreement. None of the Designated Preferred
Securities, immediately prior to delivery, will be
subject to any security interest, lien, mortgage,
pledge, encumbrance, restriction upon voting or
transfer, preemptive rights, claim, equity or other
defect.
(B) The Debentures have been duly and
validly authorized, and, when duly and validly
executed, authenticated and issued as provided in the
Indenture and delivered to the Trust pursuant to the
Trust Agreement, will constitute valid and legally
binding obligations of the
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Company entitled to the benefits of the Indenture and
will conform in all material respects to the
description thereof contained in the Prospectus.
(C) The Guarantee has been duly and
validly authorized, and, when duly and validly
executed and delivered to the Guarantee Trustee for
the benefit of the Trust, will constitute a valid and
legally binding obligation of the Company and will
conform in all material respects to the description
thereof contained in the Prospectus.
(D) The Agreement as to Expenses and
Liabilities (the "Expense Agreement") has been duly
and validly authorized, and, when duly and validly
executed and delivered by the Company, will constitute
a valid and legally binding obligation of the Company
and will conform in all material respects to the
description thereof contained in the Prospectus.
(xii) The Offerors and the Subsidiaries have
complied with all federal, state and local statutes,
regulations, ordinances and rules applicable to the ownership
and operation of their properties or the conduct of their
businesses as described in and contemplated by the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted except for such
matters as would not be expected to have a materially adverse
effect thereon.
(xiii) The Offerors and the Subsidiaries have all
governmental and regulatory permits, easements, consents,
licenses, franchises and other authorizations from all
appropriate federal, state, local or other public authorities
("Permits") as are necessary to own and lease their properties
and conduct their businesses in the manner described in and
contemplated by the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted,
except as such matters that would not have a material adverse
effect on the Offerors and the Subsidiaries or their financial
condition, earnings, business, prospects or results of
operations. All such Permits are in full force and effect and
each of the Offerors and the Subsidiaries are complying
therewith in all material respects, and no event has occurred
that allows, or after notice or lapse of time would allow,
revocation or termination thereof or will result in any other
impairment of the rights of the holder of any such Permit,
subject in each case to such qualification as may be
adequately disclosed in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus)
except as such matters that would not have a material adverse
effect on the Offerors and the Subsidiaries or their financial
condition, earnings, business, prospects or results of
operations. Such Permits contain no restrictions that would
materially impair the ability of the Company or the
Subsidiaries to conduct their businesses in the manner
consistent with their past practices. Neither of the Offerors
nor any of the Subsidiaries has received notice or otherwise
has knowledge of any proceeding or action relating to the
revocation or modification of any such Permit.
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(xiv) Neither of the Offerors nor any of the
Subsidiaries is in breach or violation of their corporate
charter, bylaws or other governing documents (including
without limitation, the Trust Agreement). Neither of the
Offerors nor any of the Subsidiaries is, and to the knowledge
of the Offerors no other party is, in violation, breach or
default (with or without notice or lapse of time or both) in
the performance or observance of any term, covenant,
agreement, obligation, representation, warranty or condition
contained in (A) any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise,
license, Permit or any other agreement or instrument to which
it is a party or by which it or any of its properties may be
bound, which such breach, violation or default would
reasonably be expected to have a material adverse effect on
the Offerors and the Subsidiaries on a consolidated basis, and
to the knowledge of the Offerors, no other party has asserted
that the Offerors or any of the Subsidiaries is in such
violation, breach or default (provided that the foregoing
representations in clause (A) shall not apply to defaults by
borrowers from the Bank), or (B) except as disclosed in the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), any order, decree,
judgment, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality,
domestic or foreign, having jurisdiction over the Offerors or
the Subsidiaries or any of their respective properties the
breach, violation or default of which would have a material
adverse effect on the financial condition, earnings, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis.
(xv) The execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement, the Trust Agreement, the
Guarantee, the Expense Agreement, the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) do not and will not
conflict with, result in the creation or imposition of any
lien, claim, charge, encumbrance or restriction upon any
property or assets of the Offerors or the Subsidiaries or the
Designated Preferred Securities pursuant to, constitute a
breach or violation of, or constitute a default under, with or
without notice or lapse of time or both, any of the terms,
provisions or conditions of the charter or bylaws of the
Company or the Subsidiaries, the Trust Agreement, the
Guarantee, the Expense Agreement, the Indenture, any contract,
indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, franchise, license, Permit or any other agreement
or instrument to which the Offerors or the Subsidiaries is a
party or by which any of them or any of their respective
properties may be bound or any order, decree, judgment, rule
or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign,
having jurisdiction over the Offerors or the Subsidiaries or
any of their respective properties which conflict, creation,
imposition, breach, violation or default would have either
singly or in the aggregate a material adverse effect on the
financial condition, earnings, business, prospects or results
of operations of the Offerors and the Subsidiaries on a
consolidated basis. No authorization, approval, consent or
order of, or filing, registration or qualification with, any
person (including, without limitation, any
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court, governmental body or authority) is required in
connection with the transactions contemplated by this
Agreement, the Trust Agreement, the Indenture, the Guarantee,
the Expense Agreement, the Registration Statement and the
Prospectus, except such as may be required by, and have been
obtained under, the 1933 Act, the Trust Indenture Act, state
securities laws, Interpretations or Rules of the National
Association of Securities Dealers, Inc. ("NASD") in connection
with the purchase and distribution of the Designated Preferred
Securities by the Underwriters, and from the Nasdaq Stock
Market's National Market relating to the listing of the
Designated Preferred Securities.
(xvi) The Offerors have all requisite corporate
power and authority to enter into this Agreement and this
Agreement has been duly and validly authorized, executed and
delivered by the Offerors and constitutes the legal, valid and
binding agreement of the Offerors, enforceable against the
Offerors in accordance with its terms, except as the
enforcement thereof may be limited by general principles of
equity and by bankruptcy, moratorium, reorganization,
fraudulent conveyance or other laws relating to or affecting
creditors' rights generally and except as any indemnification
or contribution provisions thereof may be limited under
applicable securities laws or public policy. Each of the
Indenture, the Trust Agreement, the Guarantee and the Expense
Agreement has been duly authorized by the Company, and, when
executed and delivered by the Company on the Closing Date,
each of said agreements will constitute a valid and legally
binding obligation of the Company and will be enforceable
against the Company in accordance with its terms, except as
the enforcement thereof may be limited by general principles
of equity and by bankruptcy, moratorium, reorganization,
fraudulent transfer or other laws relating to or affecting
creditors, rights generally and except as any indemnification
or contribution provisions thereof may be limited under
applicable securities laws or public policy. Each of the
Indenture, the Trust Agreement and the Guarantee has been duly
qualified under the Trust Indenture Act and will conform in
all material respects to the description thereof contained in
the Prospectus.
(xvii) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good
title to all personal property owned by them, in each case
free and clear of all security interests, liens, mortgages,
pledges, encumbrances, restrictions, claims, equities and
other defects except such as are referred to in or are
incorporated by reference into the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) or such as do not materially affect the value of
such property in the aggregate and do not materially interfere
with the use made or proposed to be made of such property; and
all of the leases under which the Company or the Subsidiaries
hold real or personal property are valid, existing and
enforceable leases and in full force and effect and do not
interfere with the use made or proposed to be made of such
real or personal property, and neither the Company nor any of
the Subsidiaries is in default of any of the terms or
provisions of any leases, except as such matters that would
not have a material adverse effect on the Offerors and the
Subsidiaries or their financial condition, earnings, business,
prospects or results of operations.
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(xviii) Grant Thornton LLP, who have certified certain
of the consolidated financial statements of the Company and
the Subsidiaries including the notes thereto, included in the
Registration Statement and Prospectus, are independent public
accountants with respect to the Company and the Subsidiaries,
as required by the 1933 Act and the 1933 Act Regulations.
(xix) The consolidated financial statements
including the notes thereto, included in or incorporated by
reference or otherwise in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) with respect to the
Company and the Subsidiaries comply with the 1933 Act and the
1933 Act Regulations and present fairly the consolidated
financial position of the Company and the Subsidiaries as of
the dates indicated and the consolidated results of
operations, cash flows and shareholders' equity of the Company
and the Subsidiaries for the periods specified and have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis. The selected and
summary consolidated financial data concerning the Offerors
and the Subsidiaries included in the Registration Statement
and the Prospectus (or such Preliminary Prospectus) comply
with the 1933 Act and the 1933 Act Regulations, present fairly
the information set forth therein, and have been compiled on a
basis consistent with that of the consolidated financial
statements of the Offerors and the Subsidiaries in the
Registration Statement and the Prospectus (or such Preliminary
Prospectus). The other financial, statistical and numerical
information with respect to the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or
such Preliminary Prospectus) comply with the 1933 Act and the
1933 Act Regulations, present fairly the information shown
therein, and to the extent applicable have been compiled on a
basis consistent with the consolidated financial statements of
the Company and the Subsidiaries included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus).
(xx) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), except as otherwise
stated therein:
(A) neither of the Offerors nor any of the
Subsidiaries has sustained any loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action,
order or decree which would have a material adverse
effect on the financial condition, earnings, business,
prospects or results of operations of the Offerors and
the Subsidiaries on a consolidated basis;
(B) there has not been any change in, or
any development which is likely to have a material
adverse effect on, the financial condition, earnings,
business, prospects or results of operations of the
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Offerors and the Subsidiaries on a consolidated basis,
whether or not arising in the ordinary course of
business;
(C) neither of the Offerors nor any of the
Subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into any
transactions, other than in the ordinary course of
business which would have a material adverse effect on
the financial condition, earnings, business, prospects
or results of operations of the Offerors and the
Subsidiaries on a consolidated basis;
(D) neither of the Offerors has declared
or paid any dividend and neither of the Offerors nor
any of the Subsidiaries has become delinquent in the
payment of principal or interest on any outstanding
borrowings; and
(E) there has not been any change in the
capital stock (except for the exercise of employee
stock options issued under the Company's 1997
Employees and Directors Stock Option Plan, and
disclosed as outstanding), equity securities,
long-term debt, obligations under capital leases or,
other than in the ordinary course of business,
short-term borrowings of the Offerors or the
Subsidiaries.
(xxi) Except as set forth in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), no
investigation, action, suit or proceeding is pending or, to
the knowledge of the Offerors, threatened, against or
affecting the Offerors or the Subsidiaries or any of their
respective properties before or by any court or any
regulatory, administrative or governmental official,
commission, board, agency or other authority or body, or any
arbitrator, wherein an unfavorable decision, ruling or finding
would have a material adverse effect on the consummation of
this Agreement or the transactions contemplated herein or the
financial condition, earnings, business, prospects or results
of operations of the Offerors and the Subsidiaries on a
consolidated basis or which is required to be disclosed in the
Registration Statement or the Prospectus (or such Preliminary
Prospectus) and is not so disclosed.
(xxii) There are no contracts or other documents
required to be filed as exhibits to the Registration Statement
under the 1933 Act or the 1933 Act Regulations or the Trust
Indenture Act (or any rules or regulations thereunder) which
have not been filed as exhibits or incorporated by reference
to the Registration Statement, or that are required to be
summarized in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) that are
not so summarized.
(xxiii) Neither of the Offerors has taken, directly
or indirectly, any action designed to result in or which has
constituted or which might cause or result in stabilization or
manipulation of the price of any security of the Offerors to
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facilitate the sale or resale of the Designated Preferred
Securities, and neither of the Offerors is aware of any such
action taken or to be taken by any affiliate of the Offerors.
(xxiv) The Offerors and the Subsidiaries own, or
possess adequate rights to use, all patents, copyrights,
trademarks, service marks, trade names and other rights
necessary to conduct the businesses now conducted by them or
as described in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) and
neither of the Offerors nor any of the Subsidiaries has
received any notice of infringement or conflict with asserted
rights of others with respect to any patents, copyrights,
trademarks, service marks, trade names or other rights which,
individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material
adverse effect on the financial condition, earnings, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis, and the Offerors do not
know of any basis for any such infringement or conflict.
(xxv) Except as adequately disclosed in the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), no labor dispute
involving the Company or the Subsidiaries exists or, to the
knowledge of the Offerors, is imminent which would reasonably
be expected to have a material adverse effect on the financial
condition, earnings, business, prospects or results of
operations of the Offerors and the Subsidiaries on a
consolidated basis or which is required to be disclosed in the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus). Neither the Company nor
any of the Subsidiaries has received notice of any existing or
threatened labor dispute by the employees of any of its
principal suppliers, customers or contractors which might be
expected to have an adverse effect on the condition (financial
or otherwise), earnings, affairs, business, prospects or
results of operations of the Company and the Subsidiaries on a
consolidated basis.
(xxvi) Each of the Offerors and the Subsidiaries has
timely and properly prepared and filed all necessary federal,
state, local and foreign tax returns which are required to be
filed and has paid all taxes shown as due thereon and has paid
all other taxes and assessments to the extent that the same
shall have become due, except such as are being contested in
good faith or where the failure to so timely and properly
prepare and file would not have a material adverse effect on
the financial condition, earnings, business, prospects or
results of operations of the Offerors and the Subsidiaries on
a consolidated basis. The Offerors have no knowledge of any
tax deficiency which has been or might be assessed against the
Offerors or the Subsidiaries which, if the subject of an
unfavorable decision, ruling or finding, would have a material
adverse effect on the financial condition, earnings, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis.
(xxvii) Each of the contracts, agreements and
instruments described or referred to in the Registration
Statement or the Prospectus (or, if the Prospectus is
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not in existence, the most recent Preliminary Prospectus) and
each contract, agreement and instrument filed as an exhibit to
the Registration Statement is in full force and effect and is
the legal, valid and binding agreement of the Offerors or the
Subsidiaries, enforceable in accordance with its terms, except
as the enforcement thereof may be limited by general
principles of equity and by bankruptcy, moratorium,
reorganization, fraudulent transfer or other laws relating to
or affecting creditors rights generally, except as such
matters that would not have a material adverse effect on the
Offerors or their financial condition, earnings, business,
prospects or results of operations. Except as disclosed in the
Prospectus (or such Preliminary Prospectus), to the knowledge
of the Offerors, no other party to any such agreement is (with
or without notice or lapse of time or both) in breach or
default thereunder, except as to such matters that would not
have a material adverse effect on the Offerors or their
financial condition, earnings, business, prospects or results
of operations; provided however, that the foregoing shall not
apply to defaults by borrowers from the Bank.
(xxviii) No relationship, direct or indirect, exists
between or among the Offerors or the Subsidiaries, on the one
hand, and the directors, officers, trustees, shareholders,
customers or suppliers of the Offerors or the Subsidiaries, on
the other hand, which is required to be described in the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) which is not adequately described therein.
(xxix) Except as adequately disclosed in the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), persons with the right to request or require the
Offerors or the Subsidiaries to register any securities for
offering and sale under the 1933 Act by reason of the filing
of the Registration Statement with the Commission or the
issuance and sale of the Designated Preferred Securities have
executed waivers of such rights.
(xxx) The Designated Preferred Securities have been
approved for quotation on the Nasdaq National Market subject
to official notice of issuance.
(xxxi) Except as described in the Prospectus (or, if
the Prospectus is not in existence, the most recent
Preliminary Prospectus), there are no contractual encumbrances
or restrictions or legal restrictions on the ability of the
Subsidiaries (A) to pay dividends or make any other
distributions on its capital stock or to pay any indebtedness
owed to the Offerors, (B) to make any loans or advances to, or
investments in, the Offerors or (C) to transfer any of its
property or assets to the Offerors.
(xxxii) Neither of the Offerors is an "investment
company" or a company "controlled" by an investment company as
such terms are defined in the Investment Company Act of 1940,
as amended (the "Investment Company Act").
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(xxxiii) Other than due diligence material
distributed to the Underwriters, the Offerors have not
distributed and will not distribute prior to the Closing Date
any prospectus in connection with the offering of the
Designated Preferred Securities, other than a Preliminary
Prospectus, the Prospectus, the Registration Statement and the
other materials permitted by the 1933 Act and the 1933 Act
Regulations and reviewed by the Underwriters.
3. OFFERING BY THE UNDERWRITERS. After the Registration Statement
becomes effective or, if the Registration Statement is already effective, after
this Agreement becomes effective, the Underwriters propose severally and not
jointly to offer the Designated Preferred Securities for sale to the public upon
the terms and conditions set forth in the Prospectus. Each Underwriter may from
time to time thereafter reduce the public offering price and change the other
selling terms, provided that the proceeds to the Trust shall not be reduced as a
result of such reduction or change.
Each Underwriter shall be entitled to a commission from the Company of
$0.7875 per Firm Preferred Security sold by such Underwriter. Each Underwriter
shall be entitled to a commission of $0.7875 per Option Preferred Security sold
by such Underwriter.
Each Underwriter may reserve and sell such of the Designated Preferred
Securities purchased by such Underwriter as such Underwriter may elect to
dealers chosen by it (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS. The Offerors jointly and
severally covenant with the several Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the
Registration Statement and any amendments thereto, if not effective at
the time of execution of this Agreement, to become effective as
promptly after execution as possible. If the Registration Statement has
become or becomes effective pursuant to Rule 430A and information has
been omitted therefrom in reliance on Rule 430A, then the Offerors will
prepare and file in accordance with Rule 430A and Rule 424(b) copies of
the Prospectus or, if required by Rule 430A, a post-effective amendment
to the Registration Statement (including the Prospectus) containing all
information so omitted and will provide evidence satisfactory to the
Underwriters of such timely filing.
(b) The Offerors shall notify the Underwriters immediately,
and confirm such notice in writing:
(i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, has
become effective, or when the Prospectus or any supplement to
the Prospectus or any amended Prospectus has been filed with
the Commission;
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(ii) of the receipt of any comments or requests
from the Commission relating to the Registration Statement and
any 1934 Act documents incorporated by reference therein;
(iii) of any request of the Commission to amend or
supplement the Registration Statement, any Preliminary
Prospectus, the Prospectus or the 1934 Act documents
incorporated therein by reference or for additional
information relating thereto; and
(iv) of the issuance by the Commission or any state
or other regulatory body of any stop order or other order
suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectus
or the Prospectus, or suspending the qualification of any of
the Designated Preferred Securities for offering or sale in
any jurisdiction or the institution or threat of institution
of any proceedings for any of such purposes. The Offerors
shall use their best efforts to prevent the issuance of any
such stop order or of any other such order and if any such
order is issued, to cause such order to be withdrawn or lifted
as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from
time to time without charge, as soon as available, as many copies as
the Underwriters may reasonably request of (i) the registration
statement as originally filed and of all amendments thereto, in
executed form, including exhibits, whether filed before or after the
Registration Statement becomes effective, (ii) all exhibits and
documents incorporated therein or filed therewith, (iii) all consents
and certificates of experts in executed form, (iv) each Preliminary
Prospectus and all amendments and supplements thereto, and (v) the
Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be
delivered under the 1933 Act, the Offerors shall comply with the 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Preferred Securities as contemplated herein and in the Trust Agreement
and the Prospectus. Except as required by applicable law as evidenced
by a written opinion of counsel relating thereto, the Offerors shall
not file any amendment to the registration statement as originally
filed or to the Registration Statement and shall not file any amendment
thereto or make any amendment or supplement to any Preliminary
Prospectus or to the Prospectus of which the Underwriters shall not
previously have been advised in writing and provided a copy a
reasonable time prior to the proposed filings thereof or to which the
Underwriters or counsel to the Underwriters shall reasonably object. If
it is necessary, in the Underwriters' reasonable opinion or in the
reasonable written opinion of counsel to the Underwriters to amend or
supplement the Registration Statement or the Prospectus in connection
with the distribution of the Designated Preferred Securities, the
Offerors shall forthwith amend or supplement the Registration Statement
or the Prospectus, as the case may be, by preparing and filing with the
Commission and furnishing to the Underwriters, such number of copies as
the Underwriters may reasonably request of an amendment or amendments
of, or a supplement or supplements to, the Registration Statement or
the Prospectus, as the case
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may be (in form and substance reasonably satisfactory to the
Underwriters and counsel to the Underwriters). If any event shall occur
as a result of which it is necessary to amend or supplement the
Prospectus to correct an untrue statement of fact or to include any
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if for any
reason it is necessary at any time to amend or supplement the
Prospectus to comply with the 1933 Act and the 1933 Act Regulations,
the Offerors shall, subject to the second sentence of this subsection
(d), forthwith amend or supplement the Prospectus by preparing and
filing with the Commission, and furnishing to the Underwriters, such
number of copies as the Underwriters may reasonably request of an
amendment or amendments of, or a supplement or supplements to, the
Prospectus (in form and substance satisfactory to the Underwriters and
counsel to the Underwriters) so that, as so amended or supplemented,
the Prospectus shall not contain an untrue statement of fact or omit to
state any fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with the Underwriters and
counsel to the Underwriters in order to qualify the Designated
Preferred Securities for offering and sale under the securities or blue
sky laws of such jurisdictions as the Underwriters may reasonably
request and shall continue such qualifications in effect so long as may
be advisable for distribution of the Designated Preferred Securities;
provided, however, that the Offerors shall not be required to qualify
to do business as a foreign corporation or file a general consent to
service of process in any jurisdiction in connection with the
foregoing. The Offerors shall file such statements and reports as may
be required by the laws of each jurisdiction in which the Designated
Preferred Securities have been qualified as above. The Offerors will
notify the Underwriters immediately of, and confirm in writing, the
suspension of qualification of the Preferred Securities or threat
thereof in any jurisdiction.
(f) The Offerors shall make generally available to their
security holders in the manner contemplated by Rule 158 of the 1933 Act
Regulations and furnish to the Underwriters as soon as practicable, but
in any event not later than 16 months after the Effective Date, a
consolidated earnings statement of the Offerors conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of
the Designated Preferred Securities to be sold by the Trust hereunder
in the manner specified in the Prospectus under the caption "Use of
Proceeds."
(h) For five years from the Effective Date, the Offerors
shall furnish to the Underwriters copies of all reports and
communications (financial or otherwise) furnished by the Offerors to
the holders of the Designated Preferred Securities as a class, copies
of all reports and financial statements filed with or furnished to the
Commission (other than portions for which confidential treatment has
been obtained from the commission) or with any national securities
exchange or the Nasdaq National Market.
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(i) For a period of 180 days from the Effective Date, the
Offerors, the Bank and their executive officers and directors shall
not, directly or indirectly, offer for sale, sell or agree to sell or
otherwise dispose of any Designated Preferred Securities other than
pursuant to this Agreement, any other beneficial interests in the
assets of the Trust or any securities of the Trust or the Company that
are substantially similar to the Preferred Securities, including any
guarantee of such beneficial interests or substantially similar
securities, or securities convertible into or exchangeable for or that
represent the right to receive any such beneficial interest or
substantially similar securities, without the Representative's prior
written consent.
(j) The Offerors shall use their best efforts to cause the
Designated Preferred Securities to become quoted on the Nasdaq National
Market, or in lieu thereof a national securities exchange, and to
remain so quoted for at least five years from the Effective Date or for
such shorter period as may be specified in a written consent of the
Underwriters, provided this shall not prevent the Company from
redeeming the Designated Preferred Securities pursuant to the terms of
the Trust Agreement. If the Designated Preferred Securities are
exchanged for Debentures, the Company will use its best efforts to have
the Debentures promptly listed on the Nasdaq National Market or other
organization on which the Designated Preferred Securities are then
listed, and to have the Debentures promptly registered under Section 12
of the Exchange Act.
(k) The Offerors shall not, for a period of 180 days after
the date hereof, without the Representative's prior written consent,
purchase, redeem or call for redemption, or prepay or give notice of
prepayment (or announce any redemption or call for redemption, or any
repayment or notice of prepayment) of the Offerors' securities;
provided, however, that the foregoing shall not prevent an employee
from delivering the Company's securities in payment of the exercise
price of options issued under the Company's 1997 Employees and
Directors Stock Option Plan.
(l) The Offerors shall not take, directly or indirectly,
any action designed to result in or which has constituted or which
might cause or result in stabilization or manipulation of the price of
any security of the Offerors to facilitate the sale or resale of the
Designated Preferred Securities and the Offerors are not aware of any
such action taken or to be taken by any affiliate of the Offerors.
(m) Prior to the Closing Date, the Offerors will not issue
any press release or other communication directly or indirectly or hold
any press conference with respect to the Offerors, the Subsidiaries or
the offering of the Designated Preferred Securities (the "Offering")
without the Representative's prior written consent, which will not be
unreasonably withheld.
5. PAYMENT OF EXPENSES. Whether or not this Agreement is
terminated or the sale of the Designated Preferred Securities to the
Underwriters is consummated, each of the Company, the Bank and the Trust,
jointly and severally, covenants and agrees that it will pay or cause to be paid
(directly or by reimbursement) all costs and expenses incident to the
performance of the obligations of the Offerors under this Agreement, including:
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(a) the preparation, printing, filing, delivery and
shipping of the initial registration statement, the Preliminary
Prospectus or Prospectuses, the Registration Statement and the
Prospectus and any amendments or supplements thereto, and the printing,
delivery and shipping of this Agreement and any other underwriting
documents (including, without limitation, selected dealers agreements),
the certificates for the Designated Preferred Securities and the
Preliminary and Final Blue Sky Memoranda and any legal investment
surveys and any supplements thereto;
(b) all fees, expenses and disbursements of the Offerors'
counsel and accountants;
(c) with respect to the Trust only, all fees and expenses
incurred in connection with the qualification of the Designated
Preferred Securities, Debentures and the Guarantee under the securities
or blue sky laws of such jurisdictions as the Underwriters may request,
including all filing fees and reasonable fees and disbursements of
counsel to the Underwriters in connection therewith, including, without
limitation, in connection with the preparation of the Preliminary and
Final Blue Sky Memoranda and any legal investment surveys and any
supplements thereto;
(d) payment to the Representative of its documented
expenses up to $75,000 for legal counsel and up to $25,000 for all
other expenses;
(e) all fees and expenses incurred in connection with
filings made with the NASD;
(f) any applicable fees and other expenses incurred in
connection with the listing of the Designated Preferred Securities and,
if applicable, the Guarantee and the Debentures on the Nasdaq National
Market;
(g) the cost of furnishing to the Underwriters copies of
the initial registration statements, any Preliminary Prospectus, the
Registration Statement and the Prospectus and all amendments or
supplements thereto;
(h) the costs and charges of any transfer agent or
registrar and the fees and disbursements of counsel to any transfer
agent or registrar;
(i) all costs and expenses (including stock transfer taxes)
incurred in connection with the printing, issuance and delivery of the
Designated Preferred Securities to the Underwriters;
(j) all expenses incident to the preparation, execution and
delivery of the Trust Agreement, the Indenture, the Guarantee and the
Expense Agreement; and
(k) all other costs and expenses incident to the
performance of the obligations of the Company hereunder and under the
Trust Agreement that are not otherwise specifically provided for in
this Section 5.
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If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to a default of this Agreement by the Company
(including a termination pursuant to Section 8(a), (b) or (c)), the Company will
pay the Underwriters their accountable out-of-pocket expenses in connection
herewith or in contemplation of the performance of the Underwriters' obligations
hereunder, including without limitation travel expenses, reasonable fees,
expenses and disbursements of counsel or other out-of-pocket expenses incurred
by the Underwriters in connection with any discussion of the Offering or the
contents of the Registration Statement, any investigation of the Offerors and
the Subsidiaries, or any preparation for the marketing, purchase, sale or
delivery of the Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations
of each of the several Underwriters to purchase and pay for the Firm Preferred
Securities and, following exercise of the Option granted by the Offerors in
Section 1 of this Agreement, the Option Preferred Securities, as set forth in
Schedule A, are subject to the accuracy of and compliance with the
representations and warranties and agreements of the Offerors herein as of the
date hereof and as of the Closing Date (or in the case of the Option Preferred
Securities, if any, as of the Option Closing Date), to the accuracy of the
written statements of the Offerors made pursuant to the provisions hereof, to
the performance by the Offerors of their covenants and obligations hereunder and
to the following additional conditions:
(a) If the Registration Statement or any amendment
thereto filed prior to the Closing Date has not been declared effective
prior to the time of execution hereof, the Registration Statement shall
become effective not later than 10:00 a.m., Eastern time, on the first
business day following the time of execution of this Agreement, or at
such later time and date as the Underwriters may agree to in writing.
If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule
430A under the 1933 Act and Section 4(a) hereof. No stop order
suspending the effectiveness of the Registration Statement or any
amendment or supplement thereto shall have been issued under the 1933
Act or any applicable state securities laws and no proceedings for that
purpose shall have been instituted or shall be pending, or, to the
knowledge of the Offerors or the Underwriters, shall be contemplated by
the Commission or any state authority. Any request on the part of the
Commission or any state authority for additional information (to be
included in the Registration Statement or Prospectus or otherwise)
shall have been disclosed to the Underwriters and complied with to the
Underwriters' reasonable satisfaction and to the reasonable
satisfaction of counsel to the Underwriters.
(b) The Underwriters shall not have advised the Company at
or before the Closing Date (and, if applicable, the Option Closing
Date) that the Registration Statement or any post-effective amendment
thereto, or the Prospectus (including any 1934 Act document
incorporated by reference therein) or any amendment or supplement
thereto, contains an untrue statement of fact which, in the
Underwriters' opinion, is material or omits to state any fact which, in
the Underwriters' opinion, is material and is required to be stated
therein or is necessary to make statements therein (in the case of the
Prospectus or any amendment or supplement thereto, in light of the
circumstances under which they
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were made) not misleading or, if so advised, the Company shall have
cured such disclosure to the satisfaction of the Underwriters.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
Trust Agreement, and the Designated Preferred Securities, and the
authorization and form of the Registration Statement and Prospectus,
other than financial statements and other financial data, and all other
legal matters relating to this Agreement and the transactions
contemplated hereby or by the Trust Agreement shall be reasonably
satisfactory in all respects to counsel to the Underwriters, and the
Offerors and the Subsidiaries shall have furnished to such counsel all
documents and information relating thereto that they may reasonably
request to enable them to pass upon such matters.
(d) Kutak Rock, counsel to the Offerors, shall have
furnished to the Underwriters their opinion, dated the Closing Date, or
the Option Closing Date, as the case may be, in form and substance
reasonably satisfactory to counsel to the Underwriters, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the
State of Michigan, and is duly registered as a bank holding
company under the BHC Act. Each of the Subsidiaries is duly
incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization.
Each of the Company and the Subsidiaries has full corporate
and trust power and authority to own or lease its properties
and to conduct its business as such business is described in
the Prospectus and is currently conducted. All outstanding
shares of capital stock of the Subsidiaries have been duly
authorized and validly issued and are fully paid and
nonassessable and, except as disclosed in the Prospectus,
there are no outstanding rights, options or warrants to
purchase any such shares or securities convertible into or
exchangeable for any such shares. The Bank is a member of the
Federal Reserve System, and no proceedings for termination or
revocation of such membership are pending or, to the best
knowledge of such counsel, threatened. The deposit accounts of
the Bank are insured by the SAIF up to the maximum amount
provided by law, and no proceedings for the termination or
revocation of such insurance are pending or, to the best
knowledge of such counsel, threatened.
(ii) The capital stock, Debentures and Guarantee of
the Company and the equity securities of the Trust conform in
all material respects to the description thereof contained in
the Prospectus. The capital stock of the Company authorized
and issued as of __________________ is as set forth under the
caption "Capitalization" in the Prospectus, has been duly
authorized and validly issued, and is fully paid and
nonassessable. The form of certificates to evidence the
Designated Preferred Securities has been approved by or on
behalf of the Trust and is in due and proper form and complies
with all applicable requirements. There are no outstanding
rights, options or warrants to purchase from the Company, no
other outstanding securities convertible into or
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exchangeable for, and no commitments, plans or arrangements to
issue, any shares of capital stock of the Company or equity
securities of the Trust, except as described in the
Prospectus.
(iii) The Offerors have all requisite corporate
power and authority to issue, sell and deliver the Designated
Preferred Securities and Debentures in accordance with and
upon the terms and conditions set forth in this Agreement, the
Indenture, the Trust Agreement, the Registration Statement and
the Prospectus. All corporate or trust action required to be
taken by the Offerors for the authorization, issuance, sale
and delivery of the Designated Preferred Securities and
Debentures in accordance with such terms and conditions has
been validly and sufficiently taken. All of the Designated
Preferred Securities have been duly and validly authorized
and, when delivered in accordance with this Agreement will be
duly and validly issued, fully paid and nonassessable, and
will conform in all material respects to the description
thereof in the Registration Statement, the Prospectus and the
Trust Agreement. The Designated Preferred Securities have been
approved for quotation on the Nasdaq National Market subject
to official notice of issuance. There are no preemptive or
other rights to subscribe for or to purchase, and other than
as disclosed in the Prospectus no restrictions upon the voting
or transfer of, any shares of capital stock or equity
securities of the Offerors or the Subsidiaries pursuant to the
corporate charter, bylaws or other governing documents
(including without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or, to such counsel's knowledge,
any agreement or other instrument to which either Offeror or
any of the Subsidiaries is a party or by which either Offeror
or any of the Subsidiaries may be bound.
(iv) The Offerors have all requisite corporate and
trust power to enter into and perform their obligations under
this Agreement, and this Agreement has been duly and validly
authorized, executed and delivered by the Offerors and
constitutes the legal, valid and binding obligations of the
Offerors enforceable in accordance with its terms, except as
the enforcement hereof or thereof may be limited by general
principles of equity and by bankruptcy, insolvency,
reorganization, receivership, fraudulent transfer, moratorium
or other laws relating to or affecting creditors rights
generally, and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and
public policy and certain remedies may not be available in the
case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement
and the Guarantee has been duly qualified under the Trust
Indenture Act, has been duly authorized, executed and
delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, fraudulent transfer, moratorium
or other laws affecting the rights and remedies of creditors
generally and of general principles of equity and public
policy.
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(vi) The Debentures have been duly authorized,
executed, authenticated and delivered by the Company, are
entitled to the benefits of the Indenture and are 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,
fraudulent transfer, moratorium and other laws affecting the
rights and remedies of creditors generally and of general
principles of equity and public policy.
(vii) The Expense Agreement has been duly
authorized, executed and delivered by the Company, and is a
valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization,
receivership, fraudulent transfer, moratorium and other laws
affecting the rights and remedies of creditors generally and
of general principles of equity and public policy.
(viii) To such counsel's knowledge, neither of the
Offerors nor any of the 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 governing document
(including without limitation, the Trust Agreement). The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this
Agreement, the Indenture, the Guarantee, the Expense Agreement
and the Trust Agreement do not and will not conflict with,
result in the creation or imposition of any lien, claim,
charge, encumbrance or restriction upon any property or assets
of the Offerors or any of the Subsidiaries or the Designated
Preferred Securities pursuant to, or constitute a breach or
violation of, or constitute a default under, with or without
notice or lapse of time or both, any of the terms, provisions
or conditions of the charter, bylaws or governing document
(including, without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or to such counsel's knowledge,
any material contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease, franchise, license or
any other agreement or instrument to which either Offeror or
the Subsidiaries is a party or by which any of them or any of
their respective properties may be bound or any order, decree,
judgment, franchise, license, Permit, rule or regulation of
any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to such counsel
having jurisdiction over the Offerors or the Subsidiaries or
any of their respective properties. 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
Michigan or Delaware law in connection with the transactions
contemplated by this Agreement in connection with the purchase
and distribution of the Designated Preferred Securities by the
Underwriters.
(ix) To such counsel's knowledge, holders of
securities of the Offerors either do not have any right that,
if exercised, would require the Offerors to cause such
securities to be included in the Registration Statement or
have waived such right. To such counsel's knowledge, neither
the Offerors nor any of the
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Subsidiaries is a party to any agreement or other instrument
which grants rights for or relating to the registration of any
securities of the Offerors.
(x) Except as set forth in the Registration
Statement and the Prospectus, (A) no action, suit or
proceeding at law or in equity is pending or threatened in
writing to which any of the Offerors or the Subsidiaries is or
may be a party, and (B) no action, suit or proceeding is
pending or threatened in writing against or affecting any of
the Offerors or the Subsidiaries or any of their properties,
before or by any court or governmental official, commission,
board or other administrative agency, authority or body, or
any arbitrator, wherein an unfavorable decision, ruling or
finding would have a material adverse effect on the
consummation of the transactions contemplated by this
Agreement or the issuance and sale of the Designated Preferred
Securities as contemplated herein or the financial condition,
earnings, business, or results of operations of the Offerors
and the Subsidiaries on a consolidated basis or which is
required to be disclosed in the Registration Statement or the
Prospectus and is not so disclosed.
(xi) No authorization, approval, consent or order
of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body
or authority) is required in connection with the transactions
contemplated by this Agreement, the Trust Agreement, the
Registration Statement and the Prospectus, except such as may
be required by, and have been obtained under, the 1933 Act,
the Trust Indenture Act, state securities laws, or
Interpretations or Rules of the NASD in connection with the
purchase and distribution of the Designated Preferred
Securities by the Underwriters, and from the Nasdaq Stock
Market's National Market relating to the listing of the
Designated Preferred Securities.
(xii) The Registration Statement and the Prospectus
and any amendments or supplements thereto and any documents
incorporated therein by reference (other than the financial
statements or other financial and/or statistical data included
therein or omitted therefrom and Underwriter Information, as
to which such counsel need express no opinion) comply as to
form with the requirements of the 1933 Act and the 1933 Act
Regulations as of their respective dates of effectiveness.
(xiii) There are no contracts, agreements, leases or
other documents of a character required to be disclosed in the
Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so
disclosed or filed.
(xiv) The statements under the captions
"Capitalization," "Description of the Preferred Securities,"
"Description of the Junior Subordinated Debentures,"
"Description of Guarantee," "Relationship Among the Preferred
Securities, the Junior Subordinated Debentures and the
Guarantee," "Certain Federal Income Tax Consequences," "ERISA
Considerations," "Supervision and Regulation," "Bank Holding
Company Regulation" and "Regulatory Capital Requirements" in
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the Prospectus or incorporated therein by reference in the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, insofar as such statements constitute a
summary of legal and regulatory matters, documents,
instruments or proceedings referred to therein are accurate
descriptions of the matters summarized therein and fairly
present in all material respects the information called for
with respect to such legal and regulatory matters, documents,
instruments and proceedings, other than financial and
statistical data as to which said counsel expresses no opinion
or belief.
(xv) Such counsel has been advised by the staff of
the Commission that the Registration Statement has become
effective under the 1933 Act; any required filing of the
Prospectus pursuant to Rule 424(b) has been made within the
time period required by Rule 424(b); to such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
a stop order are pending or threatened by the Commission.
(xvi) Except as set forth in the Prospectus, to such
counsel's knowledge, there are no contractual encumbrances or
restrictions, or legal restrictions (excluding any
encumbrances or restrictions of general application to state
banks contained in laws, rules and regulations of applicable
regulatory authorities) on the ability of the Subsidiaries (A)
to pay dividends or make any other distributions on its
capital stock or to pay indebtedness owed to the Offerors, (B)
to make any loans or advances to, or investments in, the
Offerors or (C) to transfer any of its property or assets to
the Offerors.
(xvii) The Trust will be classified for United States
federal income tax purposes as a grantor trust and not as an
association taxable as a corporation for United States federal
income tax purposes, and as a result, each beneficial owner of
Preferred Securities (a "Securityholder") will be treated as
owning an undivided beneficial interest in the Junior
Subordinated Debentures.
(xviii) Unless the Company exercises its option to
extend the interest payment period, stated interest on the
Junior Subordinated Debentures generally will be included in
income by a Securityholder at the time such interest income is
paid or accrued in accordance with the Securityholder's
regular method of tax accounting.
(xix) Gain or loss will be recognized by a
Securityholder on a sale of Preferred Securities (including a
redemption for cash) in an amount equal to the difference
between the amount realized (which for this purpose, will
exclude amounts attributable to accrued interest or original
issue discount not previously included in income) and the
Securityholder's adjusted tax basis in the Preferred
Securities sold or so redeemed. Gain or loss recognized by the
Securityholder on Preferred Securities held for more than one
year will generally be taxable as long-term capital gain or
loss.
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In giving the above opinion, such counsel may state that,
insofar as such opinion involves factual matters, they have relied upon
certificates of officers of the Offerors including, without limitation,
certificates as to the identity of any and all contracts, indentures,
mortgages, deeds of trust, loans or credit agreements, notes, leases,
franchises, licenses or other agreements or instruments, and all
permits, easements, consents, licenses, franchises and government
regulatory authorizations, for purposes of paragraphs (viii), (xiii)
and (xvii) hereof and certificates of public officials. In giving such
opinion, such counsel may rely as to matters of Delaware law upon the
opinion of _______________ described herein.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel
has participated in conferences with officers and representatives of
the Offerors and with their independent public accountants and with the
Underwriters and counsel to the Underwriters, at which conferences such
counsel made inquiries of such officers, representatives and
accountants and discussed in detail the contents of the Registration
Statement and Prospectus and the documents incorporated therein by
reference and such counsel has no reason to believe (A) that the
Registration Statement or any amendment thereto (except for the
financial statements and related schedules and financial and
statistical data included therein or omitted therefrom or Underwriter
Information, as to which such counsel need express no opinion), at the
time the Registration Statement or any such amendment became effective,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading or (B) that the Prospectus or any amendment
or supplement thereto or the documents contained therein by reference
(except for the financial statements and related schedules and
financial and statistical data included therein or omitted therefrom or
Underwriter Information, as to which such counsel need express no
opinion), at the time the Registration Statement became effective (or,
if the term "Prospectus" refers to the prospectus first filed pursuant
to Rule 424(b) of the 1933 Act Regulations, at the time the Prospectus
was issued), at the time any such amended or supplemented Prospectus
was issued, at the Closing Date and, if applicable, the Option Closing
Date, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of
the circumstances under which they were made, or (C) that there is any
amendment to the Registration Statement required to be filed that has
not already been filed.
(e) ____________________, special Delaware counsel to the
Offerors, shall have furnished to the Underwriters their signed
opinion, dated as of Closing Date or the Option Closing Date, as the
case may be, in form and substance satisfactory to such counsel, to the
effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act and, under the Trust Agreement and
the Delaware Business Trust Act, has the trust power and
authority to conduct its business as described in the
Prospectus.
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(ii) The Trust Agreement is a legal, valid and
binding agreement of the Trust and the Trustees, and is
enforceable against the Company, as sponsor, and the Trustees,
in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware
Business Trust Act, the execution and delivery of the
Underwriting Agreement by the Trust, and the performance by
the Trust of its obligations thereunder, have been authorized
by all requisite trust action on the part of the Trust.
(iv) The Designated Preferred Securities have been
duly authorized by the Trust Agreement, and when issued and
sold in accordance with the Trust Agreement, the Designated
Preferred Securities will be, subject to the qualifications
set forth in paragraph (v) below, fully paid and nonassessable
beneficial interest in the assets of the Trust and entitled to
the benefits of the Trust Agreement. The form of certificates
to evidence the Designated Preferred Securities has been
approved by the Trust and is in due and proper form and
complies with all applicable requirements of the Delaware
Business Trust Act.
(v) Holders of Designated Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to shareholders of
private, for-profit corporations organized under the General
Corporation Law of the State of Delaware. Such opinion may
note that the holders of Designated Preferred Securities may
be obligated to make payments as set forth in the Trust
Agreement.
(vi) Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Designated Preferred
Securities is not subject to preemptive rights.
(vii) The issuance and sale by the Trust of the
Designated Preferred Securities and the Common Securities, the
execution, delivery and performance by the Trust of this
Agreement, and the consummation of the transactions
contemplated by this Agreement, do not violate (A) the Trust
Agreement, or (B) any applicable Delaware law, rule or
regulation.
Such opinion may state that it is limited to the laws of the
State of Delaware and that the opinion expressed in paragraph (ii)
above is subject to the effect upon the Trust Agreement of (i)
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance and other similar laws relating to
or affecting the rights and remedies of creditors generally, (ii)
principles of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding in
equity or at law), and (iii) the effect of applicable public policy on
the enforceability of provisions relating to indemnification or
contribution.
(f) Honigman Miller Schwartz and Cohn, counsel to the
Underwriters, shall have furnished to the Underwriters their opinion,
dated the Closing Date or the Option Closing Date, as the case may be,
with respect to the sufficiency of all corporate
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proceedings and other legal matters relating to this Agreement, the
validity of the Designated Preferred Securities, the Registration
Statement, the Prospectus and such other related matters as the
Underwriters may reasonably request and there shall have been furnished
to such counsel such documents and other information as they may
request to enable them to pass on such matters. In giving such opinion,
Honigman Miller Schwartz and Cohn may rely as to matters of fact upon
statements and certifications of officers of the Offerors and of other
appropriate persons and may rely as to matters of law, other than law
of the United States and the State of Michigan, upon the opinion of
_________________ described herein.
(g) On the date of this Agreement and on the Closing Date,
the Underwriters shall have received from Grant Thornton LLP a letter,
dated the date of this Agreement and the Closing Date (and, if
applicable, any Option Closing Date), respectively, in form and
substance satisfactory to the Underwriters, confirming that they are
independent public accountants with respect to the Company and the
Bank, within the meaning of the 1933 Act and the 1933 Act Regulations,
and stating in effect that:
(i) In their opinion, the consolidated financial
statements of the Company and the Bank audited by them and
included in the Registration Statement comply as to form with
the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations.
(ii) On the basis of the procedures specified by
the American Institute of Certified Public Accountants as
described in SAS No. 71, "Interim Financial Information,"
inquiries of officials of the Company and the Bank responsible
for financial and accounting matters, and such other inquiries
and procedures as may be specified in such letter, which
procedures do not constitute an audit in accordance with U.S.
generally accepted auditing standards, nothing came to their
attention that caused them to believe that, if applicable, the
unaudited interim consolidated financial statements of the
Company and its subsidiary included in the Registration
Statement do not comply as to form with the applicable
accounting requirements of the 1933 Act and 1933 Act
Regulations or are not in conformity with U.S. generally
accepted accounting principles applied on a basis
substantially consistent, except as noted in the Registration
Statement, with the basis for the audited consolidated
financial statements of the Company and its subsidiary
included in the Registration Statement.
(iii) On the basis of limited procedures, not
constituting an audit in accordance with U.S. generally
accepted auditing standards, consisting of a reading of the
unaudited interim financial statements and other information
referred to below, a reading of the latest available unaudited
condensed consolidated financial statements of the Company and
its subsidiary, inspection of the minute books of the Company
and the Bank since the date of the latest audited financial
statements of the Company and its subsidiary included in the
Registration Statement, inquiries of officials of the Company
and the Bank responsible for financial and accounting matters
and such other inquiries and
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procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) as of a specified date not more than
five days prior to the date of such letter, there have
been any changes in the consolidated capital stock,
allowance for loan losses, or net loans receivable of
the Company and its subsidiary, any increase in the
consolidated long-term debt, short term borrowings,
obligations under capital leases or real estate owned
of the Company and its subsidiary, any decreases in
consolidated total assets or shareholders equity of the
Company and its subsidiary, or any changes, decreases
or increases in other items specified by the
Underwriters, in each case as compared with amounts
shown in the latest unaudited interim consolidated
statement of financial condition of the Company and its
subsidiary included in the Registration Statement
except in each case for changes, increases or decreases
which the Registration Statement specifically
discloses, have occurred or may occur or which are
described in such letter; and
(B) for the period from the date of the
latest unaudited interim consolidated financial
statements included in the Registration Statement to
the specified date referred to in clause (iii)(A),
there were any decreases in the consolidated interest
income, net interest income, other operating income or
net income of the Company and its subsidiary or in the
per share amount of net income of the Company and its
subsidiary, any increase in consolidated other
operating expense of the Company and its subsidiary, or
any changes, decreases or increases in any other items
specified by the Underwriters, in each case as compared
with the comparable period of the preceding year and
with any other period of corresponding length specified
by the Underwriters, except in each case for increases
or decreases which the Registration Statement discloses
have occurred or may occur, or which are described in
such letter.
(iv) In addition to the audit referred to in their
report included in the Registration Statement and the limited
procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (ii) and (iii) above,
they have carried out certain specified procedures, not
constituting an audit in accordance with U.S. generally
accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the
Underwriters which are derived from the general accounting
records and consolidated financial statements of the Company
and its subsidiary which appear in the Registration Statement
specified by the Underwriters in the Registration Statement,
and have compared such amounts, percentages and financial
information with the accounting records and the material
derived from such records and consolidated financial
statements of the Company and its subsidiary have found them
to be in agreement.
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In the event that the letters to be delivered referred to
above set forth any such changes, decreases or increases as specified
in Clauses (iii)(A) or (iii)(B) above, or any exceptions from such
agreement specified in Clause (iv) above, it shall be a further
condition to the obligations of the Underwriters that the Underwriters
shall have determined, after discussions with officers of the Company
and the Bank responsible for financial and accounting matters, that
such changes, decreases, increases or exceptions as are set forth in
such letters do not (x) reflect an adverse change in the items
specified in Clause (iii)(A) above as compared with the amounts shown
in the latest unaudited consolidated statement of financial condition
of the Company and its subsidiary included in the Registration
Statement, (y) reflect an adverse change in the items specified in
Clause (iii)(B) above as compared with the corresponding periods of the
prior year or other period specified by the Underwriters, or (z)
reflect a material change in items specified in Clause (iv) above from
the amounts shown in the Preliminary Prospectus distributed by the
Underwriters in connection with the offering contemplated hereby or
from the amounts shown in the Prospectus.
(h) At the Closing Date (and, if applicable, the Option
Closing Date), the Underwriters shall have received certificates of the
chief executive officer and the chief financial and accounting officer
of the Company, which certificates shall be deemed to be made on behalf
of the Company dated as of the Closing Date (and, if applicable, the
Option Closing Date), evidencing satisfaction of the conditions of
Section 6(a) and stating that (i) the representations and warranties of
the Company set forth in Section 2(a) hereof are accurate as of the
Closing Date (and, if applicable, the Option Closing Date), and that
the Offerors have complied in all material respects with all agreements
and satisfied all conditions on their part to be performed or satisfied
at or prior to such Closing Date; (ii) since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change in the
financial condition, earnings, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis; (iii) since such dates there has not been any transaction
entered into by the Offerors or the Subsidiaries other than
transactions in the ordinary course of business; and (iv) they have
carefully examined the Registration Statement and the Prospectus as
amended or supplemented and nothing has come to their attention that
would lead them to believe that either the Registration Statement or
the Prospectus, or any amendment or supplement thereto as of their
respective effective or issue dates, contained, and the Prospectus as
amended or supplemented at such Closing Date (and, if applicable, the
Option Closing Date), contains any untrue statement of a material fact,
or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The officers
certificate of the Company shall further state that no stop order
affecting the Registration Statement is in effect or, to their
knowledge, threatened.
(i) At the Closing Date (and, if applicable, the Option
Closing Date), the Underwriters shall have received a certificate of an
authorized representative of the Trust to the effect that to the best
of his or her knowledge after due investigation, the representations
and warranties of the Trust in this Agreement are true and correct as
though made on and as of the Closing Date (and, if applicable, the
Option Closing Date);
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the Trust has complied with all the agreements and satisfied all the
conditions required by this Agreement to be performed or satisfied by
the Trust on or prior to the Closing Date and since the most recent
date as of which information is given in the Prospectus, except as
contemplated by the Prospectus, the Trust has not incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions not in the ordinary course of business and there has not
been any adverse change in the condition (financial or otherwise) of
the Trust.
(j) On the Closing Date, the Underwriters shall have received
duly executed counterparts of the Trust Agreement, the Guarantee, the
Indenture and the Expense Agreement.
(k) The NASD, upon review of the terms of the public offering
of the Preferred Securities, shall not have objected to the
Underwriters' participation in such offering.
(l) Prior to the Closing Date, the Offerors shall have
furnished to the Underwriters and counsel to the Underwriters all such
other documents, certificates and opinions as they have reasonably
requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Underwriters. Any certificate signed by an officer
of an Offeror and delivered to the Underwriters pursuant hereto shall also be
deemed to be a representation and warranty of such Offeror to the Underwriters
as to the statements made therein. The Offerors shall furnish to the
Underwriters conformed copies of such opinions, certificates, letters and other
documents as the Underwriters may reasonably request.
If any of the conditions referred to in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all of
the several Underwriters' obligations hereunder may be terminated by the
Underwriters on notice to the Company at, or at any time before, the Closing
Date or the Option Closing Date. Any such termination shall be without liability
of the Underwriters to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors agree to jointly and severally indemnify
and hold harmless each of the Underwriters, each of their directors,
officers and agents, and each person, if any, who controls any
Underwriter within the meaning of the 1933 Act and the 1934 Act,
against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and reasonable attorney
fees and expenses), joint or several, arising out of or based (i) upon
any untrue statement or alleged untrue statement of fact made by the
Company or the Trust contained in the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment or
supplement thereto, (ii) upon any untrue statement or alleged untrue
statement of fact made by the Company or the Trust upon any blue sky
application or other document executed by the Company or the Trust
specifically for that purpose or based upon written information
furnished by the Company
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or the Trust filed in any state or other jurisdiction in order to
qualify any of the Designated Preferred Securities under the securities
laws thereof (any such application, document or information being
hereinafter referred to as a "Blue Sky Application"), (iii) any
omission or alleged omission to state a material fact in the
Registration Statement, any Preliminary Prospectus or the Prospectus,
or in any amendment or supplement thereto, or in any Blue Sky
Application required to be stated therein or necessary to make the
statements therein not misleading, and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs
of investigation and attorney fees), arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus or the Prospectus, or in any
amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading or (iv) the enforcement of this indemnification provision or
the contribution provisions of Section 7(d); and shall reimburse each
such indemnified party for any reasonable legal or other expenses as
incurred, but in no event less frequently than 30 days after each
invoice is submitted, incurred by them in connection with investigating
or defending against any such loss, claim, damage, liability or action,
notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be
promptly refunded; provided, however, that the Offerors shall not be
liable in any such case to the extent, but only to the extent, that any
such losses, claims, damages, liabilities and expenses arise out of or
are based upon any untrue statement or omission or allegation thereof
that has been made therein or omitted therefrom in reliance upon and in
conformity with the Underwriter Information; provided further that the
indemnification contained in this paragraph with respect to any
Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) to the
extent any such losses, claims, damages, liabilities or expenses result
from the fact that such Underwriter sold Designated Preferred
Securities to a person to whom there was not sent or given, at or prior
to the written confirmation of such sale, a copy of the Prospectus (as
amended or supplemented if any amendments or supplements thereto shall
have been furnished to such Underwriter in sufficient time to
distribute same with or prior to the written confirmation of the sale
involved), if required by law, and if such loss, claim, damage,
liability or expense would not have arisen but for the failure to give
or send such person such document. The foregoing indemnity agreement is
in addition to any liability the Company or the Trust may otherwise
have to any such indemnified party.
(b) Each Underwriter severally agrees to indemnify and hold
harmless each Offeror, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls
an Offeror within the meaning of the 1933 Act, to the same extent as
required by the foregoing indemnity from the Company to the
Underwriters, but only with respect to the Underwriter Information or
information furnished by an Underwriter in a Blue Sky Application and
only for failure to deliver a final prospectus to investors in
accordance with the 1933 Act. The foregoing indemnity agreement is in
addition to any liability which any such Underwriter may otherwise have
to any such indemnified party.
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(c) If any action or claim shall be brought or asserted
against any indemnified party or any person controlling an indemnified
party in respect of which indemnity may be sought from the indemnifying
party, such indemnified party or controlling person shall promptly
notify the indemnifying party in writing, and the indemnifying party
shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to the indemnified party and the payment of all
expenses; provided, however, that the failure so to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under such paragraph, and
further, shall only relieve it from liability under such paragraph to
the extent prejudiced thereby. Any indemnified party or any such
controlling person shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party or such controlling person unless (i) the employment
thereof as separate counsel and the payment of such counsel's fees has
been specifically authorized by the indemnifying party in writing, (ii)
the indemnifying party has failed to assume the defense or to employ
counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties)
include both such indemnified party or such controlling person and the
indemnifying party and such indemnified party or such controlling
person shall have been advised in writing by such counsel that the
representation of both parties by the same counsel would be
inappropriate due to the actual or potential differing interests
between them (in which case, if such indemnified party or controlling
person notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not be required to assume the defense of such
action on behalf of such indemnified party or such controlling person)
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any
time and for all such indemnified party and controlling persons, which
firm shall be designated in writing by the indemnified party and shall
be reasonably acceptable to the indemnifying party. Each indemnified
party and each controlling person, as a condition of such indemnity,
shall use reasonable best efforts to cooperate with the indemnifying
party in the defense of any such action or claim. The indemnifying
party shall not be liable for any settlement of any such action
effected without its prior written consent, but if there be a final
judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party and any
such controlling person from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written
consent of each indemnified party, settle, compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit
or proceeding in respect of which indemnity may be sought hereunder
(whether or not such indemnified party or any person who controls such
indemnified party within the meaning of the 1933 Act is a party to such
claim, action, suit or proceeding), unless such settlement, compromise
or consent includes a release of each such indemnified party reasonably
satisfactory to each such indemnified party and each such controlling
person from all liability arising out of such
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claim, action, suit or proceeding or unless the indemnifying party
shall confirm in a written agreement with each indemnified party, that
notwithstanding any federal, state or common law, such settlement,
compromise or consent shall not alter the right of any indemnified
party or controlling person to indemnification or contribution as
provided in this Agreement.
(d) If the indemnification provided for in this Section 7
is legally unavailable or insufficient to hold harmless an indemnified
party under paragraphs (a), (b) or (c) hereof in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Offerors on the one hand and
the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Offerors on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Designated Preferred
Securities (before deducting expenses) received by the Offerors bear to
the total underwriting discounts, commissions and compensation received
by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Offerors on the
one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of fact or the omission or alleged omission to state a fact
relates to information supplied by the Offerors or by the Underwriters
and the parties, relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The Offerors and each of the Underwriters agree that it would not be
just and equitable if contribution pursuant to this paragraph (d) were
determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses
referred to in the first sentence of this paragraph (d) shall be deemed
to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), an Underwriter
shall not be required to contribute any amount in excess of the amount
by which the total price at which the Designated Preferred Securities
underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
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For purposes of this paragraph (d), each person who controls
an Underwriter within the meaning of the 1933 Act shall have the same
rights to contribution as the Underwriters, and each person who
controls an Offeror within the meaning of the 1933 Act and the 1934
Act, each officer and trustee of an Offeror who shall have signed the
Registration Statement and each director of an Offeror shall have the
same rights to contribution as the Offerors subject in each case to the
preceding sentence. The obligations of the Offerors under this
paragraph (d) shall be in addition to any liability which the Offerors
may otherwise have and the obligations of the Underwriters under this
paragraph (d) shall be in addition to any liability that the
Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Offerors
set forth in this Agreement shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of
the Underwriters or any person controlling an Underwriter or by or on
behalf of the Offerors, or such directors, trustees or officers (or any
person controlling an Offeror), (ii) acceptance of any Designated
Preferred Securities and payment therefor hereunder and (iii) any
termination of this Agreement. A successor of an Underwriter or of an
Offeror, such directors, trustees or officers (or of any person
controlling an Underwriter or an Offeror) shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
(f) The Company agrees to indemnify the Trust against any
and all losses, claims, damages or liabilities that may become due from
the Trust under this Section 7.
8. TERMINATION. The Underwriters shall have the right to
terminate this Agreement at any time at or prior to the Closing Date or, with
respect to the Underwriters' option to purchase the Option Preferred Securities,
at any time at or prior to the Option Closing Date, without liability on the
part of the Underwriters to the Offerors, if:
(a) either Offeror shall have failed, refused, or been
unable to perform any agreement on its part to be performed under this
Agreement, or any of the conditions referred to in Section 6 shall not
have been fulfilled, when and as required by this Agreement;
(b) the Offerors or any of the Subsidiaries shall have
sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree which in the judgment of the Underwriters impairs in
any material respect the investment quality of the Designated Preferred
Securities;
(c) there has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus,
any material adverse change in, or any development which is likely to
have a material adverse effect on, the financial condition, earnings,
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
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(d) there has occurred any outbreak of hostilities or other
calamity or crisis or change in general economic, political or
financial conditions, or internal conditions, the effect of which on
the financial markets of the United States is such as to make it, in
the Underwriters' reasonable judgment, impracticable to market the
Designated Preferred Securities or enforce contracts for the sale of
the Designated Preferred Securities;
(e) trading generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been
suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been
required, by any of said exchanges or market system or by the
Commission or any other governmental authority;
(f) a banking moratorium shall have been declared by either
federal or Michigan authorities; or
(g) any action shall have been taken by any government in
respect of its monetary affairs which, in the Underwriters' reasonable
judgment, has an adverse effect on the United States securities
markets.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. DEFAULT 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 Firm Preferred Securities, as the case may be, which such
Underwriter has agreed to purchase and pay for on such date otherwise than by
reason of the nonfulfillment of any condition to its obligation to do so
hereunder, you, as Representative of the Underwriters, shall use your best
efforts to procure within 36 hours thereafter one or more of the other
Underwriters, or any others, to purchase such amounts as may be agreed upon, and
upon the terms set forth herein, of the Firm Preferred Securities or Option
Preferred Securities, as the case may be, which the defaulting Underwriter or
Underwriters failed to purchase. If during such 36 hours you, as Representative,
shall not have procured such other Underwriters, or any others, to purchase the
Firm Preferred Securities or Option Preferred Securities, as the case may be,
agreed to be purchased by the defaulting Underwriter or Underwriters, then (a)
if the aggregate number of Preferred Securities with respect to which such
default shall occur does not exceed 10% of the Firm Preferred Securities or
Option Preferred Securities, as the case may be, which they are obligated to
purchase hereunder, you and the other non-defaulting Underwriters each agree to
purchase your pro rata share (based on the number of Preferred Securities which
each non-defaulting Underwriter agreed to purchase hereunder) of the Firm
Preferred Securities or Option Preferred Securities, as the case may be, which
such defaulting Underwriter or Underwriters failed to purchase, or (b) if the
aggregate number of Preferred Securities with respect to which such default
shall occur exceeds 10% of the Firm Preferred Securities or Option Preferred
Securities, as the case may be, covered hereby, you as the Representative of the
Underwriters will have the right, by written notice given within the next
36-hour period to the parties to this Agreement, to terminate this Agreement
without liability on the part of the nondefaulting Underwriters or of the
Offerors except for expenses to be borne by the Offerors and the Underwriters as
provided in Section 5 hereof and the indemnity and contribution agreements in
Section 7 hereof. In the event
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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 effected. The
term "Underwriter" includes any person substituted for a 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. EFFECTIVE DATE OF AGREEMENT. If the Registration Statement is
not effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time the Commission declares the
Registration Statement effective. The Company shall immediately notify the
Underwriters when the Registration Statement becomes effective.
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. Eastern time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Underwriters shall
release the Designated Preferred Securities for initial public offering. The
Underwriters shall notify the Offerors immediately after it has taken any action
which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may
be terminated by the Offerors, by notifying the Representative, or by the
Underwriters, by notifying either Offeror, except that the provisions of
Sections 5 and 7 shall at all times be effective.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. The representations, warranties, indemnities, agreements and other
statements of the Offerors and their officers and trustees set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Offerors or controlling persons
of either Offeror, or by or on behalf of the Underwriters or controlling persons
of the Underwriters or any termination or cancellation of this Agreement and
shall survive delivery of and payment for the Designated Preferred Securities.
12. NOTICES. Except as otherwise provided in this Agreement, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered by hand, mailed by registered or
certified mail, return receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to either Offeror shall be sent to 2600
Telegraph Road, Bloomfield Hills, Michigan 48302, Attention: Thomas J. Hammond
(with a copy to Kutak Rock, 1101 Connecticut Avenue, N.W., Washington, D.C.
20036-4374, Attention: Matthew Ash, Esq.); and notices to the Underwriters shall
be sent c/o Roney Capital Markets, a division of First Chicago Capital Markets,
Inc., One Griswold, Roney Building, Detroit, Michigan 48226, Attention: John
Donnelly (with a copy to Honigman Miller Schwartz and Cohn, 2290 First National
Building, Detroit, Michigan 48226, Attention: Donald J. Kunz, Esq.).
13. PARTIES. The Agreement herein set forth is made solely for the
benefit of the Underwriters and the Offerors and, to the extent expressed,
directors, trustees and officers of the Offerors, any person controlling the
Offerors or the Underwriters, and their respective successors
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and assigns. No other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser, in his status as such purchaser, from the Underwriters of the
Designated Preferred Securities.
14. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Michigan, without giving effect to the choice of law or conflicts
of law principles thereof.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
[Remainder of page intentionally left blank.]
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If the foregoing is in accordance with the Underwriters' understanding
of our agreement, please sign and return to us a counterpart hereof, whereupon
this shall become a binding agreement between the Company, the Trust and the
Underwriters in accordance with its terms.
Very truly yours,
FLAGSTAR BANCORP, INC.
By________________________
Name______________________
Title_____________________
FLAGSTAR TRUST
By________________________
Name______________________
Title_____________________
CONFIRMED AND ACCEPTED,
as of ________________________, 1999.
RONEY CAPITAL MARKETS, a division of
First Chicago Capital Markets, Inc.
Acting on behalf of itself and the several
Underwriters named in Schedule A
By________________________________________
Name______________________________________
Title_____________________________________
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SCHEDULE A
NUMBER OF PREFERRED
UNDERWRITER SECURITIES TO BE PURCHASED
Roney Capital Markets
McDonald Investments Inc.
Stifel & Nicolaus & Company, Incorporated
JWGenesis Capital Markets, L.L.C.
A-1