YORK, WITH FULL
POWER AND AUTHORITY TO OWN, LEASE AND OPERATE ITS PROPERTIES AND CONDUCT ITS
BUSINESS AS CURRENTLY BEING CONDUCTED. KEEFE, BRUYETTE & WOODS, INC. IS DULY
QUALIFIED TO TRANSACT BUSINESS AS A FOREIGN CORPORATION AND IS 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 CONDITION (FINANCIAL OR OTHERWISE), EARNINGS, BUSINESS, PROSPECTS OR
RESULTS OF OPERATIONS OF KEEFE, BRUYETTE & WOODS, INC.
6.2.
POWER AND AUTHORITY. THE PLACEMENT AGENT HAS ALL REQUISITE POWER
AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND THIS AGREEMENT HAS BEEN DULY AND
VALIDLY AUTHORIZED, EXECUTED AND DELIVERED BY THE PLACEMENT AGENT AND
CONSTITUTES THE LEGAL, VALID AND BINDING AGREEMENT OF THE PLACEMENT AGENT,
ENFORCEABLE AGAINST THE PLACEMENT AGENT IN ACCORDANCE WITH ITS TERMS, SUBJECT TO
BANKRUPTCY AND EQUITY AND EXCEPT AS ANY INDEMNIFICATION OR CONTRIBUTION
PROVISIONS THEREOF MAY BE LIMITED UNDER APPLICABLE SECURITIES LAWS.
6.3.
GENERAL SOLICITATION. IN THE CASE OF THE OFFER AND SALE OF THE
CAPITAL SECURITIES, NO FORM OF GENERAL SOLICITATION OR GENERAL ADVERTISING WAS
USED BY THE PLACEMENT AGENT OR ITS REPRESENTATIVES INCLUDING, BUT NOT LIMITED
TO, ADVERTISEMENTS, ARTICLES, NOTICES OR OTHER COMMUNICATIONS PUBLISHED IN ANY
NEWSPAPER, MAGAZINE OR SIMILAR MEDIUM OR BROADCAST OVER TELEVISION OR RADIO OR
ANY SEMINAR OR MEETING WHOSE ATTENDEES HAVE BEEN INVITED BY ANY GENERAL
SOLICITATION OR GENERAL ADVERTISING.
6.4.
PURCHASER. THE PLACEMENT AGENT HAS MADE SUCH REASONABLE INQUIRY AS
IS NECESSARY TO DETERMINE THAT THE PURCHASER IS ACQUIRING THE CAPITAL SECURITIES
FOR ITS OWN ACCOUNT, EXCEPT AS CONTEMPLATED IN SECTION 7.8 HERETO, AND THAT THE
PURCHASER DOES NOT INTEND TO DISTRIBUTE THE CAPITAL SECURITIES IN CONTRAVENTION
OF THE SECURITIES ACT OR ANY OTHER APPLICABLE SECURITIES LAWS.
6.5.
QUALIFIED PURCHASERS. THE PLACEMENT AGENT HAS NOT OFFERED OR SOLD
AND WILL NOT ARRANGE FOR THE OFFER OR SALE OF THE CAPITAL SECURITIES EXCEPT
(I) TO THOSE THE PLACEMENT AGENT REASONABLY BELIEVES ARE "ACCREDITED INVESTORS"
(AS DEFINED IN RULE 501 OF REGULATION D), OR (II) IN ANY OTHER MANNER THAT DOES
NOT REQUIRE REGISTRATION OF THE CAPITAL SECURITIES UNDER THE SECURITIES ACT.
IN
CONNECTION WITH EACH SUCH SALE, THE PLACEMENT AGENT HAS TAKEN OR WILL TAKE
REASONABLE STEPS TO ENSURE THAT THE PURCHASER IS AWARE
10
that (a) such sale is being made in reliance on an exemption under the
Securities Act and (b) future transfers of the Capital Securities will not be
made except in compliance with applicable securities laws.
6.6.
OFFERING CIRCULARS. NEITHER THE PLACEMENT AGENT NOR ITS
REPRESENTATIVES WILL INCLUDE ANY NON-PUBLIC INFORMATION ABOUT THE COMPANY, THE
TRUST OR ANY OF THEIR AFFILIATES IN ANY REGISTRATION STATEMENT, PROSPECTUS,
OFFERING CIRCULAR OR PRIVATE PLACEMENT MEMORANDUM USED IN CONNECTION WITH ANY
PURCHASE OF CAPITAL SECURITIES WITHOUT THE PRIOR WRITTEN CONSENT OF THE TRUST
AND THE COMPANY.
SECTION 7.
COVENANTS OF THE OFFERORS. THE OFFERORS COVENANT AND
AGREE WITH