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EXHIBIT 1.1
$20,000,000 PREFERRED SECURITIES*
FIRST BUSEY CAPITAL TRUST I
[ ]% CUMULATIVE PREFERRED SECURITIES
(LIQUIDATION AMOUNT OF $10 PER PREFERRED SECURITY)
UNDERWRITING AGREEMENT
June __, 2001
Xxxx Xxxxxx Investments, Inc.
Xxxxxxxx Inc.
As Representatives of Several
Underwriters Named in Schedule A
c/x Xxxx Xxxxxx Investments, Inc.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
First Busey Corporation, a Nevada corporation (the "Company"), and its
subsidiary, First Busey Capital Trust I, a statutory business trust organized
under the Delaware Business Trust Act, as amended (the "Delaware Act") (the
"Trust" and, together with the Company, the "Offerors"), propose, subject to the
terms and conditions stated herein, to issue and sell to the several
underwriters named on Schedule A (individually, an "Underwriter," and
collectively, the "Underwriters"), an aggregate of $20,000,000, representing
2,000,000 securities (the "Firm Securities") of the Trust's [ ]% Cumulative
Preferred Securities, with a liquidation preference of $10.00 per preferred
security, and, at the election of the Underwriters, up to 300,000 additional
securities (the "Option Securities"). The Firm Securities and the Option
Securities are herein collectively called the "Preferred Securities." The
Offerors propose that the Trust issue the Preferred Securities pursuant to a
Trust Agreement, as amended and restated, among Wilmington Trust Company, as
Property Trustee and Delaware Trustee, the administrative trustees named therein
(the "Administrative Trustees") and the Company (the "Trust Agreement"). The
Preferred Securities will be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption and otherwise (the
"Guarantee") pursuant to a Guarantee Agreement (the "Guarantee Agreement"), to
be dated June __, 2001, between the Company and Wilmington Trust Company, as
trustee (the "Guarantee Trustee"), and entitled to the benefits of certain
backup undertakings described in the Prospectus (as defined herein) with respect
to the Company's agreement pursuant to the Expense Agreement (as defined herein)
to pay all expenses relating to administration of the Trust.
The proceeds of the sale of the Preferred Securities will be used to
purchase junior subordinated deferrable interest debentures (the "Junior
Subordinated Debentures") issued by the Company pursuant to an Indenture, to be
dated June __, 2001, between the Company and Wilmington Trust Company, as
trustee (the "Indenture").
* The Underwriters have been granted an over-allotment option, exercisable at
their election in accordance with Section 2 herein, to purchase up to an
additional $3,000,000 Preferred Securities.
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The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (File Nos. [ ] and [ ])
and a related preliminary prospectus for the registration of the Preferred
Securities, the Guarantee and the Junior Subordinated Debentures, under the
Securities Act of 1933, as amended (the "Act"), and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and regulations
thereunder. The registration statement, as amended, at the time it was declared
effective, including the information (if any) deemed to be part thereof pursuant
to Rule 430A under the Act, is herein referred to as the "Registration
Statement." The form of prospectus first filed by the Offerors with the
Commission pursuant to Rules 424(b) and 430A under the Act is referred to herein
as the "Prospectus." Each preliminary prospectus included in the Registration
Statement prior to the time it becomes effective or filed with the Commission
pursuant to Rule 424(a) under the Act is referred to herein as a "Preliminary
Prospectus." If the Company elects to rely on Rule 434 of the Act, all
references to "Prospectus" shall be deemed to include, without limitation, the
form of prospectus and the term sheet, taken together, provided to the
Underwriters by the Company in accordance with Rule 434 of the Act ("Rule 434
Prospectus"). Any registration statement (including any amendment or supplement
thereto or information which is deemed part thereof) filed by the Offerors under
Rule 462(b) ("Rule 462(b) Registration Statement") shall be deemed to be part of
the "Registration Statement" as defined herein, and any prospectus (including
any amendment or supplement thereto or information which is deemed part thereof)
included in such registration statement shall be deemed to be part of the
"Prospectus," as defined herein, as appropriate. The Securities Exchange Act of
1934, as amended, is referred to herein as the "Exchange Act." Any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Form
S-3 under the Act (the "Incorporated Documents"), as of the date of such
Preliminary Prospectus or Prospectus, as the case may be. Any document filed by
either the Company or the Trust under the Exchange Act after the effective date
of the Registration Statement or the date of the Prospectus and incorporated by
reference in the Prospectus shall be deemed to be included in the Registration
Statement and the Prospectus as of the date of such filing. Copies of the
Registration Statement, including all exhibits thereto, together with copies of
all documents incorporated by reference therein, any amendments thereto and all
Preliminary Prospectuses have been delivered to you.
The Offerors hereby confirm their agreement with respect to the
purchase of the Preferred Securities by the Underwriters as follows:
Section 1. Representations and Warranties of the Offerors. (a) The
Offerors jointly and severally represent and warrant to, and agree with, each of
the Underwriters that:
(i) The Registration Statement has been declared effective
under the Act, and no post-effective amendment to the Registration
Statement has been filed with the Commission as of the date of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or threatened by the Commission.
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(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission
promulgated thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Offerors make no representation or warranty as to
information contained in or omitted in reliance upon, and in conformity
with, written information furnished to the Offerors by or on behalf of
any Underwriter, expressly for use in the preparation thereof.
(iii) The Registration Statement conforms, and the Prospectus
and any amendments or supplements thereto will conform, in all material
respects to the requirements of the Act, including for use of Form S-3,
and the Trust Indenture Act and the rules and regulations thereunder.
Neither the Registration Statement nor any amendment thereto, and
neither the Prospectus nor any supplement thereto, contains or will
contain, as the case may be, any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Offerors make no representation or warranty as to (A)
information contained in or omitted from the Registration Statement or
the Prospectus, or any such amendment or supplement, in reliance upon,
and in conformity with, written information furnished to the Offerors
by or on behalf of any Underwriter, expressly for use in the
preparation thereof or (B) information in those parts of the
Registration Statement which constitute the Statement of Eligibility
and Qualification ("Form T-1") under the Trust Indenture Act.
The Incorporated Documents, when they were or will be filed
with the Commission, conformed or will conform in all material respects
to the requirements of the Exchange Act and none of such documents
contained or will contain an untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iv) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations or banking
associations in good standing under the laws of their respective places
of incorporation, with corporate power and authority to own their
respective properties and conduct their respective businesses as
described in the Prospectus; the Company and each of its non-bank
subsidiaries are duly qualified to do business as foreign corporations
under the corporation law of, and are in good standing as such in, each
jurisdiction in which such qualification is required except in any such
case where the failure to so qualify or be in good standing would not
have a material adverse effect upon the condition (financial or
otherwise) or results of operations of the Company and its subsidiaries
taken as a whole; and no proceeding of which the Company has knowledge
has been instituted in any such jurisdiction,
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revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, such power and authority or qualification.
(v) (A) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act
with full trust power and authority to own property and to conduct its
business as described in the Registration Statement and Prospectus and
is authorized to do business in each jurisdiction in which such
qualification is required, except where the failure to so qualify would
not have a material adverse effect on the Trust's condition (financial
or otherwise) or results of operations taken as a whole; (B) the Trust
has conducted and will conduct no business other than the transactions
contemplated by the Trust Agreement and described in the Prospectus;
(C) the Trust is not a party to or otherwise bound by any agreement
other than those described in the Prospectus; (D) the Trust is and will
be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation; and
(E) the Trust is and will be treated as a consolidated subsidiary of
the Company pursuant to generally accepted accounting principles.
(vi) The Company owns directly or indirectly 100 percent of
the issued and outstanding capital stock of each of its subsidiaries,
in each case free and clear of any claims, liens, encumbrances or
security interests, except for any such stock or interests pledged
against borrowings of the Company or any of its subsidiaries, and all
of such capital stock has been duly authorized and validly issued and
is fully paid and nonassessable. The Company's bank subsidiaries
consist exclusively of the following: Busey Bank and Busey Bank fsb,
which are collectively hereinafter referred to as the "Banks."
(vii) All of the issued and outstanding shares of capital
stock of the Company are duly authorized, validly issued, fully paid
and nonassessable, were offered and sold in compliance with all federal
and state securities laws, and were not issued in violation of or
subject to any preemptive rights or other rights to subscribe for or
purchase securities. Except as otherwise stated in the Registration
Statement and Prospectus, there are no preemptive rights or other
rights to subscribe for or to purchase, or any restriction upon the
voting or transfer of, the Junior Subordinated Debentures, the common
securities of the Trust held by the Company (the "Common Securities")
or the Preferred Securities. Neither the filing of the Registration
Statement nor the registration of the Preferred Securities, the
Guarantee or the Junior Subordinated Debentures gives rise to any
rights for or relating to the registration of any capital stock or
other securities of the Company or the Trust. The Company has an
authorized and outstanding capitalization as set forth in the
Registration Statement and the Prospectus.
(viii) Each of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement and the Agreement as to Expenses and
Liabilities (the "Expense Agreement") has been duly authorized,
executed and delivered by the Company and/or the Trust, as the case may
be, and constitutes a valid, legal and binding obligation of the
Company and/or the Trust, as the case may be, enforceable in accordance
with its
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terms, except as rights to indemnity hereunder may be limited by
federal or state securities laws and except as such enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity and, with respect to Section 7 hereof, by the
public policy underlying the federal or state securities laws. The
execution, delivery and performance of this Agreement, the Indenture,
the Trust Agreement, the Guarantee Agreement and the Expense Agreement
and the consummation of the transactions herein or therein contemplated
will not result in a breach of the Company's or any of its
subsidiaries' charters or bylaws, the Trust Agreement or the Trust's
certificate of trust filed with the State of Delaware on May 15, 2001
(the "Certificate of Trust") or breach or violation of any of the terms
and provisions of, or constitute a default under, any statute, any
indenture, mortgage, deed of trust, loan agreement, lease, franchise,
license or other agreement or instrument to which the Trust, the
Company or any of the Company's subsidiaries is a party or by which the
Trust, the Company or any of the Company's subsidiaries is bound or to
which any property or assets of the Trust, the Company or any of the
Company's subsidiaries is subject, or any order, rule, regulation or
decree of any court or governmental agency or body having jurisdiction
over the Company, any of its subsidiaries or the Trust or having
jurisdiction over any of the properties of the Company, any of its
subsidiaries or the Trust which breach, violation or default would have
a material adverse effect upon the condition (financial or otherwise)
or results of operations of the Company and its subsidiaries taken as a
whole. No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the execution,
delivery and performance of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement and the Expense Agreement or for the
consummation of the transactions contemplated hereby or thereby,
including the issuance or sale of the Junior Subordinated Debentures by
the Company and the Common Securities and the Preferred Securities by
the Trust, except such as may be required under the Act, all of which
have been obtained or made, and under state securities or blue sky laws
and clearance of such offering of the Preferred Securities by the
Underwriters with the National Association of Securities Dealers, Inc.
("NASD") and except where any failure to obtain such consents,
approvals, authorizations or orders or to make such filings will not
have a material adverse effect upon the condition (financial or
otherwise) or results of operations of the Company and its subsidiaries
taken as a whole. Each of the Company and the Trust, as the case may
be, has full power and authority to enter into this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement, as the case may be, and to authorize, issue and sell the
Junior Subordinated Debentures or the Common Securities and the
Preferred Securities, as the case may be, as contemplated by this
Agreement; and each of the Indenture, the Trust Agreement and the
Guarantee Agreement has been duly qualified under the Trust Indenture
Act and will conform in all material respects to the statements
relating thereto in the Registration Statement and the Prospectus.
(ix) The Junior Subordinated Debentures have been duly
authorized by the Company and at the Closing Date or the Option Closing
Date (each as defined below),
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as the case may be, will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity, will
be in the form contemplated by, and entitled to the benefits of, the
Indenture, will conform to the statements relating thereto in the
Prospectus, and will be owned by the Trust free and clear of any
security interest, pledge, lien, encumbrance, claim or equity.
(x) The Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Prospectus, will
be validly issued and (subject to the terms of the Trust Agreement)
fully paid and nonassessable undivided beneficial interests in the
assets of the Trust and will conform to all statements relating thereto
contained in the Prospectus; and at the Closing Date or the Option
Closing Date, as the case may be, all of the issued and outstanding
Common Securities of the Trust will be directly owned by the Company
free and clear of any security interest, pledge, lien, encumbrance,
claim or equity.
(xi) The Preferred Securities have been duly authorized by the
Trust Agreement and, when issued and delivered pursuant to this
Agreement against payment of the consideration set forth herein, will
be validly issued and fully paid and non-assessable undivided
beneficial interests in the Trust, will be entitled to the benefits of
the Trust Agreement and will conform to the statements relating thereto
contained in the Prospectus.
(xii) The Indenture, the Trust Agreement, the Guarantee
Agreement and the Expense Agreement are in substantially the respective
forms filed as exhibits to the Registration Statement.
(xiii) The Company's obligations under the Guarantee Agreement
are subordinated and junior in right of payment to all Senior
Indebtedness (as defined in the Indenture) of the Company.
(xiv) The Junior Subordinated Debentures are subordinate and
junior in right of payment to all Senior Indebtedness of the Company.
(xv) Each of the Administrative Trustees of the Trust is an
officer or director of the Company and has been duly authorized by the
Company to execute and deliver the Trust Agreement.
(xvi) The consolidated financial statements of the Company
included or incorporated by reference in the Registration Statement
present fairly the consolidated financial position of the Company as of
the respective dates of such financial
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statements, and the consolidated results of operations and cash flows
of the Company for the respective periods covered thereby, are in
conformity with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed in the
Prospectus. The financial information included and incorporated by
reference in the Prospectus under "Selected Consolidated Financial and
Other Data" presents fairly, on the basis stated in the Prospectus, the
information set forth therein.
(xvii) The accountants who have expressed their opinions with
respect to certain of the financial statements included or incorporated
by reference in the Registration Statement are independent accountants
as required by the Act.
(xviii) Neither the Company nor any subsidiary is in violation
of its respective charter; the Trust is not in violation of the Trust
Agreement or its Certificate of Trust; and none of the Trust, the
Company or its subsidiaries is in violation or otherwise in default
under any consent decree, or in default with respect to any provision
of any material lease, loan agreement, franchise, license, permit or
other contract obligation to which it is a party which would have a
material adverse effect upon the condition (financial or otherwise) or
results of operations of the Trust, the Company and the Company's
subsidiaries, taken as a whole ("Material Adverse Effect"); and there
does not exist any state of facts which constitutes an Event of Default
as defined in such documents or which, with notice or lapse of time or
both, would constitute such an Event of Default, in each case, except
for defaults which neither singly nor in the aggregate would have a
Material Adverse Effect.
(xix) With the exception of Xxxxxx Xxxxxx vs. Mastercard
International, Inc. et al., which has been previously disclosed to the
Representatives, there are no legal or governmental proceedings
pending, or to the Trust's or Company's knowledge, threatened to which
the Trust, the Company or any of the Company's subsidiaries is or may
reasonably be expected to be a party or of which property owned or
leased by the Trust, the Company or any of the Company's subsidiaries
is or may reasonably be expected to be the subject, or related to
environmental or discrimination matters which if adversely determined
would have a Material Adverse Effect that are not disclosed in the
Prospectus.
(xx) The Company is a financial holding company duly
registered with the Board of Governors of the Federal Reserve System
("Federal Reserve") under the Bank Holding Company Act of 1956, as
amended. The conduct of the business of the Company and each of its
subsidiaries is in compliance in all respects with applicable federal,
state, local and foreign laws and regulations, except where the failure
to be in compliance would not have a material adverse effect upon the
condition (financial or otherwise) or results of operation of the
Company and its subsidiaries taken as a whole. The Company and its
subsidiaries own or possess or have obtained all governmental licenses,
permits, consents, orders, approvals and other authorizations necessary
to lease or own, as the case may be, and to operate their properties
and to carry on their businesses as presently conducted except where
the failure to have obtained such licenses, permits, consents, orders,
approvals and other authorization would not have a material adverse
effect upon the condition (financial or otherwise) or results of
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operation of the Company and its subsidiaries taken as a whole, and
neither the Company nor its subsidiaries have received any notice of
proceedings related to revocation or modification of any such licenses,
permits, consents, orders, approvals or authorizations which singly or
in the aggregate, if the subject of an unfavorable ruling or finding,
would result in a material adverse effect upon the condition (financial
or otherwise) or results of operation of the Company and its
subsidiaries taken as a whole. Neither the Company nor any Bank is a
party or subject to any agreement or memorandum with, or directive or
order issued by, the Federal Reserve, the Office of Thrift Supervision,
the Illinois Office of Banks and Real Estate or any other bank
regulatory authority, which imposes any restrictions or requirements
not generally applicable to bank holding companies or commercial banks,
except as described or contemplated in the Prospectus.
(xxi) The Company and each of its subsidiaries have good and
marketable title to all the properties and assets reflected as owned in
the financial statements hereinabove described (or elsewhere in the
Prospectus), subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except for such properties as are pledged
against the borrowings of the Company or any of its subsidiaries and
except those, if any, reflected in such financial statements (or
elsewhere in the Prospectus) or which are not material to the Company
and its subsidiaries taken as a whole. The Company and each of its
subsidiaries hold their respective leased properties which are material
to the Company and its subsidiaries taken as a whole under valid and
binding leases.
(xxii) The Offerors have not taken and will not take, directly
or indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange Act
or otherwise, in stabilization or manipulation of the price of the
Preferred Securities.
(xxiii) There is no material contract or other document of a
character required to be described in the Registration Statement or the
Prospectus (or the Incorporated Documents) or to be filed as an exhibit
to the Registration Statement (or the Incorporated Documents) which is
not described or filed as required.
(xxiv) The Trust and the Company have filed all necessary
federal and state income and franchise tax returns and have paid all
taxes shown as due thereon, and there is no tax deficiency that has
been or to the knowledge of the Trust or the Company, threatened to be
asserted against the Trust or the Company or any of their properties or
assets that would or could be expected to have a Material Adverse
Effect.
(xxv) The Trust and the Company, together with the Company's
subsidiaries, own and possess all right, title and interest in and to,
or have duly licensed from third parties, all patents, patent rights,
trade secrets, inventions, know-how, trademarks, trade names,
copyrights, service marks and other proprietary rights ("Trade Rights")
material to the business of the Trust and the Company and each of the
Company's subsidiaries taken as a whole. Neither the Trust, the Company
nor any of its
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subsidiaries has received any notice of infringement, misappropriation
or conflict from any third party as to such material Trade Rights which
has not been resolved or disposed of and to the Trust's and the
Company's knowledge neither the Trust, the Company nor any of the
Company's subsidiaries has infringed, misappropriated or otherwise
conflicted with material Trade Rights of any third parties, which
infringement, misappropriation or conflict would have a Material
Adverse Effect.
(xxvi) No statement, representation, warranty or covenant made
by the Company in this Agreement or made in any certificate or document
required by this Agreement to be delivered to will be, when made,
inaccurate, untrue or incorrect.
(xxvii) Neither the Company nor its subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or its
subsidiaries has made any payment of funds of the Company or its
subsidiaries or received or retained any funds in violation of any law,
rule or regulation.
(xxviii) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or
supplemented, (A) there has not been any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the condition, financial or otherwise, of the Company and the
subsidiaries taken as a whole, or the business affairs, management,
financial position, shareholders' equity or results of operations of
the Trust, the Company and the Company's subsidiaries, taken as a
whole, whether or not occurring in the ordinary course of business,
including, without limitation, any material increase in the amount or
number of classified assets of the Banks, any decrease in net interest
margin for any month to a level below 3.25%, or any material decrease
in the volume of loan originations, the amount of deposits or the
amount of loans, (B) there has not been any transaction not in the
ordinary course of business entered into by the Trust, the Company or
any of the Company's subsidiaries which is material to the Trust, the
Company and the Company's subsidiaries, taken as a whole, other than
transactions described or contemplated in the Registration Statement,
(C) the Trust, the Company and the Company's subsidiaries have not
incurred any material liabilities or obligations, which are not in the
ordinary course of business or which could result in a material
reduction in the future earnings of the Trust, the Company and the
Company's subsidiaries, taken as a whole, (D) the Company and the
Company's subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire,
flood, windstorm, accident or other calamity, whether or not covered by
insurance, (E) except as described or contemplated in the Prospectus,
since December 31, 2000, there has not been any material change in the
capital stock of the Company or the Company's subsidiaries, or any
material increase in the short-term or long-term debt (including
capitalized lease obligations) of the Company and the Company's
subsidiaries, taken as a whole, and (F) except as described or
contemplated in the Prospectus, since December 31, 2000, there has not
been any declaration or payment of any dividends or any distributions
of any kind with respect to the capital stock of the Company.
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(xxix) Other than a Certificate of Trust filed with the
Secretary of State of Delaware on May 15, 2001, there are no required
licenses, approvals, certificates and permits from governmental and
regulatory authorities, foreign and domestic, which are necessary to
the conduct of its business as described in the Prospectus. The Company
has all necessary approvals of the Federal Reserve to own the stock of
its subsidiaries. None of the Trust, the Company or any of the
Company's subsidiaries has received notice of or has knowledge of any
basis for any proceeding or action relating specifically to the Trust,
the Company or any of the Company's subsidiaries for the revocation or
suspension of any such consent, authorization, approval, order,
license, certificate or permit or any other action or proposed action
by any regulatory authority having jurisdiction over the Trust, the
Company or any of the Company's subsidiaries that would have a material
adverse effect on the Trust, the Company or any of the Company's
subsidiaries.
(xxx) The Offerors' registration statement pursuant to Section
12(b) of the Exchange Act with respect to the Preferred Securities, has
been declared effective by the Commission and the Preferred Securities
have been approved for inclusion on The Nasdaq National Market under
the symbol "BUSEP".
(xxxi) The Offerors have not distributed and will not
distribute any prospectus or other offering material in connection with
the offering and sale of the Preferred Securities other than any
Preliminary Prospectus or the Prospectus or other materials permitted
by the Act to be distributed by the Company.
(xxxii) The deposit accounts of the Banks are insured by the
Federal Deposit Insurance Corporation (the "FDIC") to the fullest
extent provided by law. No proceeding for the termination of such
insurance is pending or is threatened. Except as described in the
Prospectus, neither the Company nor any of its subsidiaries has
received or is subject to any directive or order from the Federal
Reserve, the FDIC, the Office of Thrift Supervision or the Illinois
Office of Banks and Real Estate, or any other regulatory authority to
make any material change in the method of conducting their respective
businesses that has not been complied with in all material respects.
(xxxiii) Neither the Offerors nor any of their affiliates does
any business, directly or indirectly, with the government of Cuba or
with any person or entity located in Cuba.
(xxxiv) None of the Trust, the Company or any of the Company's
subsidiaries is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, or an "investment adviser" within the meaning of
the Investment Advisers Act of 1940, as amended.
(xxxv) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorization;
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(B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (C) access to
records is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxxvi) Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred
any liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
(xxxvii) No report or application filed by the Company or any
of its subsidiaries with the Federal Reserve, the FDIC, the Office of
Thrift Supervision or the Illinois Office of Banks and Real Estate, as
of the date it was filed, failed to comply with the applicable
requirements of the Federal Reserve, the FDIC, the Office of Thrift
Supervision or the Illinois Office of Banks and Real Estate, as the
case may be, in any material respect.
(xxxviii) The proceeds from the sale of the Preferred
Securities will constitute "Tier 1" capital (as defined in 12 C.F.R.
Part 325), subject to applicable regulatory restrictions on the amount
thereof that can be included in Tier 1 capital.
(b) Any certificate signed by or on behalf of the Trust or the Company
and delivered to the Underwriters or counsel to the Underwriters shall be deemed
to be a representation and warranty of the Trust or the Company to each
Underwriter as to the matters covered thereby.
Section 2. Purchase, Sale and Delivery of Preferred Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Trust agrees to issue
and sell to each Underwriter, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Trust, at a purchase price of $10.00 per
security, the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule A hereto.
In addition, on the basis of the representations, warranties and
covenants herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants to the several Underwriters an option to
purchase, at their election, up to 300,000 Option Securities at a price of
$10.00 per security, for the sole purpose of covering overallotments in the sale
of the Firm Securities. The option granted hereby may be exercised in whole or
in part, but only once, and at any time upon written notice given within 30 days
after the date of this Agreement, by you, as Representatives of the several
Underwriters, to the Trust setting forth the number of Option Securities as to
which the several Underwriters are exercising the option and the time and date
at which certificates are to be delivered. If any Option Securities are
purchased, each Underwriter agrees, severally and not jointly, to purchase that
portion of the number of Option Securities as to which such election shall have
been exercised (subject to
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adjustment to eliminate fractional shares) determined by multiplying such number
of Option Securities by a fraction the numerator of which is the maximum number
of Option Securities which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule A hereto and the denominator
of which is the maximum number of Option Securities which all of the
Underwriters are entitled to purchase hereunder. If the date of exercise of the
option is three or more full days before the Closing Date, the notice of
exercise shall set the Closing Date as the Option Closing Date.
As compensation to the Underwriters for their commitments hereunder and
in view of the fact that the proceeds of the sale of the Preferred Securities
(together with the entire proceeds from the sale by the Trust to the Company of
the Common Securities) will be used to purchase the Junior Subordinated
Debentures, the Company hereby agrees to pay at the Closing Date, or the Option
Closing Date, as the case may be (each as defined below) to the Representatives
a commission of $[ ] per Preferred Security sold by the Trust hereunder on each
respective date.
The Firm Securities will be delivered by the Company to the
Representatives against payment of the purchase price therefor at the offices of
Xxxxxxx and Xxxxxx, Chicago, Illinois, or such other location as may be mutually
acceptable, at 9:00 a.m., central time on June __, 2001, or such other time and
date as the Representatives and the Company may agree upon in writing, such time
and date of delivery being herein referred to as the "Closing Date," and, with
respect to the Option Securities, at the time and on the date specified by you
in the written notice given by you of the Underwriters' election to purchase the
Option Securities, or such other time and date as you and the Company may agree
upon in writing, such time and date being referred to herein as the "Option
Closing Date." The purchase price shall be payable by wire transfer of
immediately available funds to an account, such account to be designated by the
Trust at least two business days preceding the Closing Date or the Option
Closing Date, as the case may be. The Underwriters' commission shall be payable
by wire transfer of immediately available funds to an account, such account to
be designated by the Underwriters at least two business days preceding the
Closing Date or the Option Closing Date, as the case may be. Delivery of the
Preferred Securities may be made by credit through full fast transfer to the
accounts at The Depository Trust Company designated by you. Certificates
representing the Preferred Securities, in definitive form and in such
denominations and registered in such names as you may request upon at least two
business days' prior notice to the Company shall be prepared and will be made
available for checking and packaging, not later than 10:30 a.m., central time,
on the business day next preceding the Closing Date or the Option Closing Date,
as the case may be, at the offices of Xxxx Xxxxxx Investments, Inc., 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or such other location as may be
mutually acceptable.
It is understood that any Underwriter may (but shall not be obligated
to) make payment to the Company on behalf of the other Underwriters for the
Preferred Securities to be purchased by such Underwriters. Any such payment
shall not relieve such other Underwriters of any of their obligations hereunder.
Nothing herein contained shall cause the Underwriters to be construed as an
unincorporated association or partner with either or both Offerors.
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Section 3. Offering by Underwriters. (a) It is understood that the
Underwriters propose to make a public offering of the Firm Securities as soon as
the Underwriters deem it advisable to do so. The Firm Securities are to be
initially offered to the public at the initial public offering price set forth
in the Prospectus.
(b) The Representatives, on behalf of the Underwriters, represent and
warrant to the Company that the information set forth (i) on the cover page of
the Prospectus with respect to price, underwriting compensation and terms of the
offering and (ii) under "Underwriting" in the Prospectus was furnished to the
Offerors by and on behalf of the Underwriters for use in connection with the
preparation of the Registration Statement and is correct and complete in all
material respects.
Section 4. Covenants of the Offerors. The Offerors jointly and
severally covenant and agree with the Underwriters that:
(a) The Company and the Administrative Trustees on behalf of
the Trust will prepare and timely file with the Commission under Rule
424(b) under the Act a Prospectus containing information previously
omitted at the time of effectiveness of the Registration Statement in
reliance on Rule 430A under the Act, and will not file any amendment to
the Registration Statement or supplement to the Prospectus of which the
Underwriters shall not previously have been advised and furnished with
a copy and as to which the Underwriters shall have reasonably objected
in writing promptly after reasonable notice thereof or which is not in
compliance with the Act or the rules and regulations thereunder.
(b) If the Offerors elect to rely on Rule 434 of the Act, the
Offerors will prepare a term sheet that complies with the requirements
of Rule 434. If the Offerors elect not to rely on Rule 434, the
Offerors will provide the Underwriters with copies of the form of
prospectus, in such numbers as the Underwriters may reasonably request,
and file with the Commission such prospectus in accordance with Rule
424(b) of the Act by the close of business in New York City on the
second business day immediately succeeding the date of pricing of the
offering of the Preferred Securities (the "Pricing Date"). If the
Offerors elect to rely on Rule 434, the Offerors will provide the
Underwriters with copies of the form of Rule 434 Prospectus, in such
numbers as the Underwriters may reasonably request, by the close of
business in New York on the business day immediately succeeding the
Pricing Date.
(c) The Offerors will advise the Underwriters promptly of any
request of the Commission for amendment of the Registration Statement
or for supplement to the Prospectus or for any additional information,
or of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the
Prospectus, of the suspension of the qualification of the Preferred
Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for that purpose, and the
Offerors will use their best efforts to prevent the issuance of any
such stop order preventing or suspending the use of the Prospectus or
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suspending such qualification and to obtain as soon as possible the
lifting thereof, if issued.
(d) The Offerors will cooperate with you and your counsel in
order to qualify the Preferred Securities for sale under the securities
laws of such jurisdictions as the Underwriters may reasonably have
designated and to continue such qualifications in effect for so long as
the Underwriters may reasonably request for distribution of the
Preferred Securities (or obtain exemptions from the application of such
laws). The Offerors will, from time to time, prepare and file such
statements, reports and other documents as may be requested by the
Underwriters for that purpose.
(e) The Offerors will furnish the Underwriters with as many
copies of any Preliminary Prospectus as the Underwriters may reasonably
request and, during the period when delivery of a prospectus is
required under the Act, the Offerors will furnish the Underwriters with
as many copies of the Prospectus in final form, or as thereafter
amended or supplemented, as the Underwriters may, from time to time,
reasonably request. The Offerors will deliver to the Underwriters, at
or before the Closing Date or the Option Closing Date, as the case may
be, two signed copies of the Registration Statement and all amendments
thereto including all exhibits filed therewith, together with the
Incorporated Documents, and will deliver to the Underwriters such
number of conformed copies of the Registration Statement, without
exhibits, and of all amendments thereto, together with the Incorporated
Documents, as the Underwriters may reasonably request.
(f) If at any time when a prospectus relating to the Preferred
Securities is required to be delivered under the Act any event occurs
as a result of which the Prospectus, including any amendments or
supplements, would include 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 the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus, including any amendments
or supplements thereto and including any revised prospectus which the
Offerors propose for use by the Underwriters in connection with the
offering of the Preferred Securities which differs from the prospectus
on file with the Commission at the time of effectiveness of the
Registration Statement, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) to comply with the Act,
the Offerors promptly will advise you thereof and will promptly prepare
and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect
such compliance; and, in case any Underwriter is required to deliver a
prospectus nine months or more after the effective date of the
Registration Statement, the Offerors upon request, but at the expense
of such Underwriter, will prepare promptly such prospectus or
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act.
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(g) Not later than September 30, 2002, the Company will make
generally available to its security holders an earnings statement
(which need not be audited) covering a period of at least 12 months
beginning after the effective date of the Registration Statement, which
will satisfy the provisions of the last paragraph of Section 11(a) of
the Act.
(h) During the period of five years hereafter, the Company
will furnish you with a copy (i) as soon as practicable after the
filing thereof, of each report filed by the Company with the
Commission, any securities exchange or the NASD; (ii) as soon as
practicable after the release thereof, of each material press release
in respect of the Company; and (iii) as soon as available, of each
report of the Company mailed to stockholders.
(i) The Offerors will use the net proceeds received by it from
the sale of the Preferred Securities in the manner specified in the
Prospectus.
(j) If, at the time of effectiveness of the Registration
Statement, any information shall have been omitted therefrom in
reliance upon Rule 430A and/or Rule 434, then on the Pricing Date, the
Offerors will prepare, and file or transmit for filing with the
Commission in accordance with such Rule 430A, Rule 424(b) and/or Rule
434, copies of an amended Prospectus, or, if required by such Rule 430A
and/or Rule 434, a post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all information
so omitted. If required, the Offerors will prepare and file, or
transmit for filing, a Rule 462(b) Registration Statement not later
than the date of the execution of the Pricing Agreement. If a Rule
462(b) Registration Statement is filed, the Offerors shall make payment
of, or arrange for payment of, the additional registration fee owing to
the Commission required by Rule 111.
(k) The Offerors will comply with all registration, filing and
reporting requirements of the Exchange Act and The Nasdaq National
Market.
Section 5. Costs and Expenses. The Offerors will pay (directly or by
reimbursement) all costs, expenses and fees incident to the performance of the
obligations of the Offerors under this Agreement, including, without limiting
the generality of the foregoing, the following: accounting fees of the Offerors;
the fees and disbursements of counsel for the Offerors; the cost of preparing,
printing and filing of the Registration Statement, Preliminary Prospectuses and
the Prospectus and any amendments and supplements thereto and the printing,
mailing and delivery to the Underwriters and dealers of copies thereof and of
this Agreement, the Selected Dealers Agreement, any blue sky memorandum, if
deemed necessary by the Underwriters, after consultation with the Offerors, and
any supplements or amendments thereto (excluding, except as provided below, fees
and expenses of counsel to the Underwriters); the filing fees of the Commission;
the filing fees incident to securing any required review by NASD of the
terms of the sale of the Preferred Securities; the fees and expenses of the
Indenture Trustee, including the fees and disbursements of counsel for the
Indenture
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Trustee in connection with the Indenture and Junior Subordinated Debentures; the
fees and expenses of the Property Trustee and the Delaware Trustee, including
the fees and disbursements of counsel for the Property Trustee and the Delaware
Trustee in connection with the Trust Agreement and the Certificate of Trust; the
fees and expenses of the Guarantee Trustee, including the fees and disbursements
of counsel for the Guarantee Trustee in connection with the Guarantee and
Guarantee Agreement; listing fees, if any, transfer taxes and the expenses,
including the fees and disbursements of counsel for the Underwriters, incurred
in connection with the qualification of the Preferred Securities under state
securities or blue sky laws (which shall not exceed $2,000); the fees and
expenses incurred in connection with the listing of the Preferred Securities on
The Nasdaq National Market; the costs of preparing certificates representing
Junior Subordinated Debentures or Preferred Securities; the costs and fees of
any registrar or transfer agent and all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 5. The Offerors shall not be required to pay for
any of the Underwriters' expenses (other than those related to qualification of
the Preferred Securities under state securities or blue sky laws which shall be
paid by the Offerors as provided above) except that, if this Agreement shall not
be consummated because the conditions in Section 6 hereof are not satisfied, or
because this Agreement is terminated by the Underwriters pursuant to Section 9
hereof, or by reason of any failure, refusal or inability on the part of the
Offerors to perform any undertaking or satisfy any condition of this Agreement
or to comply with any of the terms hereof on either of their parts to be
performed, unless such failure to satisfy said condition or to comply with said
terms shall be due to the default or omission of any Underwriter, then the
Offerors promptly upon request by the Underwriters shall reimburse the
Underwriters for all actual, accountable out-of-pocket expenses, including fees
and disbursements of counsel reasonably incurred in connection with
investigating, marketing and proposing to market the Preferred Securities or in
contemplation of performing their obligations hereunder, up to $10,000 but the
Offerors shall not in any event be liable to any of the Underwriters for damages
on account of loss of anticipated profits from the sale by them of the Preferred
Securities.
Section 6. Conditions of Obligations of the Underwriters. The several
obligations of the Underwriters to purchase the Firm Securities on the Closing
Date and the Option Securities, if any, on the Option Closing Date are subject
to the condition that all representations and warranties of the Offerors
contained herein are true and correct, at and as of the Closing Date or the
Option Closing Date, as the case may be, and the condition that each Offeror
shall have performed all of its covenants and obligations hereunder and to the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 4(a) hereof; no stop order suspending the
effectiveness of the Registration Statement, as amended from time to
time, or any part thereof shall have been issued and no proceedings for
that purpose shall have been initiated or threatened by the Commission;
and all requests for
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additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of the Underwriters.
(b) The Underwriters shall have received on the Closing Date
or the Option Closing Date, as the case may be, the opinion of Xxxxxxx
and Xxxxxx, counsel for the Offerors, dated the Closing Date or the
Option Closing Date, as the case may be, addressed to the Underwriters,
to the effect that:
(i) (A) the Company is validly existing as a corporation in
good standing under the laws of the State of Nevada with corporate
power and authority to own its properties and conduct its business as
described in the Prospectus; and, to the best of such counsel's
knowledge the Company is duly qualified to do business as a foreign
corporation under the corporation laws of, and is in good standing as
such in, every jurisdiction where such qualification is required except
where the failure so to qualify would not have a material adverse
effect upon the condition (financial or otherwise) or results of
operations of the Company and its subsidiaries taken as a whole;
(B) an opinion to the same general effect as clause
(A) of this subparagraph (i) in respect of each non-bank subsidiary of
the Company;
(ii) the Company owns directly or indirectly 100 percent of
the outstanding capital stock of each subsidiary;
(iii) since 1998, the issued and outstanding capital stock of
the Company has been duly authorized and validly issued and is fully
paid and nonassessable;
(iv) the Registration Statement has become effective under the
Act, and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement
(including the information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A(b) and/or
Rule 434, if applicable), the Prospectus and each amendment or
supplement thereto (except for the financial statements and other
statistical or financial data included therein as to which such counsel
need express no opinion and except for the parts of the registration
statement which constitute the Form T-1 under the Trust Indenture Act
as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act; all documents
incorporated by reference in the Prospectus, when they were filed with
the Commission, complied as to form in all material respects with the
requirements of the Exchange Act; and such counsel have no reason to
believe that any of such documents, when they were so filed, contained
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which such statements were made when such
documents were so filed, not misleading (such counsel need express no
opinion as to the financial statements or other financial or
statistical data contained in any such document); such counsel have no
reason to believe that either the
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Registration Statement (including the information deemed to be part of
the Registration Statement at the time of effectiveness pursuant to
Rule 430A(b) and/or Rule 434, if applicable), or the Registration
Statement as amended (except as aforesaid), as of their respective
effective dates, 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 not misleading or that the
Prospectus as amended or supplemented, if applicable, as of the issue
date and as of the Closing Date or the Option Closing Date, as the case
may be, contained any untrue statement of a material fact or omitted to
state any material fact necessary to make the statements therein not
misleading in light of the circumstances under which they were made
(except for the financial statements and other statistical or financial
data included therein as to which such counsel need express no
opinion); and such counsel does not know of any legal or governmental
proceedings pending or threatened required to be described in the
Prospectus which are not described as required, nor of any contracts or
documents of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement which are not described or filed, as required;
(v) the statements under the captions "Description of the
Preferred Securities," "Description of the Debentures," "Book-Entry
Issuance," "Description of the Guarantee," "Relationship Among the
Preferred Securities, the Debentures and the Guarantee," "Material
Federal Income Tax Consequences" and "ERISA Considerations" in the
Prospectus, insofar as such statements constitute a summary of
documents referred to therein or matters of law, are accurate summaries
and fairly present, in all material respects, the information called
for with respect to such documents and matters;
(vi) the holders of the Company's outstanding securities are
not entitled to any preemptive or other rights to subscribe for the
Junior Subordinated Debentures or the Preferred Securities under the
Company's bylaws and, to the knowledge of such counsel, no such rights
exist under any other agreement or arrangement;
(vii) all of the issued and outstanding Common Securities of
the Trust are owned by the Company and, to the best of such counsel's
knowledge, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitable right;
(viii) the Trust Agreement, the Indenture and the Guarantee
have been duly qualified under the Trust Indenture Act;
(ix) the Junior Subordinated Debentures are in the form
contemplated by the Indenture, have been duly authorized, executed and
delivered by the Company and, when authenticated by the Indenture
Trustee in the manner provided for in the Indenture and delivered
against payment therefor, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof may be
limited by bankruptcy,
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insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity;
(x) the Junior Subordinated Debentures are subordinate and
junior in right of payment to all Senior Indebtedness (as defined in
the Indenture) of the Company;
(xi) to the best of such counsel's knowledge and information
after due inquiry, (A) the Trust is not required to be authorized to do
business in any jurisdiction other than Delaware, except where the
failure to be so authorized would not have a material adverse effect on
the Trust's condition (financial or otherwise) or results of operations
taken as a whole; and (B) the Trust is not a party to or otherwise
bound by any material agreement other than those described in the
Prospectus;
(xii) the Trust Agreement has been duly executed and delivered
by the Administrative Trustees;
(xiii) the Company has full corporate power and authority and
the Trust has full trust power and authority to enter into this
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement
and the Expense Agreement, as applicable, and to issue the Junior
Subordinated Debentures and to effect the transactions contemplated by
this Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement and the Expense Agreement, as applicable, and each of this
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement
and the Expense Agreement have been duly authorized, executed and
delivered by the Company and the Trust, as applicable, and constitutes
a valid, legal and binding obligation of the Company and the Trust, as
applicable, enforceable in accordance with its terms (except as rights
to indemnity hereunder may be limited by federal or state securities
laws and except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity). The
execution, delivery and performance of this Agreement, the Indenture,
the Trust Agreement, the Guarantee Agreement, the Preferred Securities,
the Common Securities, the Junior Subordinated Debentures and the
Expense Agreement and the consummation of the transactions herein or
therein contemplated will not, to the best of such counsel's knowledge,
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, rule or regulation (except
that such counsel need express no opinion regarding any blue sky or
state securities laws), any lease, contract, indenture, mortgage, loan
agreement or other agreement or instrument known to such counsel to
which the Company, the Trust or any of the Company's subsidiaries is a
party or by which it is bound or to which any of its property is
subject, the Company's or any of its subsidiaries' charter or bylaws,
or the Certificate of Trust or any permit, judgment, order or decree
known to such counsel of any court or governmental agency or body
having jurisdiction over the Company, the Trust or any of the Company's
subsidiaries or any of their respective properties, except for any
breach, violation or default which would not have a material adverse
effect on the Company or the Trust; and no consent, approval,
authorization, order of,
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designation, declaration or filing by or with, any court or any
regulatory, administrative or governmental agency or body is required
for the execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement, the Expense
Agreement, the Common Securities, the Preferred Securities, or the
Junior Subordinated Debentures, or for the consummation of the
transactions contemplated hereby or thereby (other than as may be
required by federal or state laws governing banks or bank holding
companies, the NASD, or by state securities and blue sky laws, as to
which such counsel need express no opinion), including the issuance or
sale of the Junior Subordinated Debentures by the Company and the
Common Securities and Preferred Securities by the Trust, except (A)
such as may be required under the Act, which have been obtained or
made, and (B) the qualification of the Trust Agreement, the Guarantee
Agreement and the Indenture under the Trust Indenture Act and the
regulations thereunder, all of which have been effected. The filing of
the Registration Statement and the registration of the Junior
Subordinated Debentures, the Guarantee and the Preferred Securities
under the Act does not give rise to any rights for or relating to the
registration of any shares of capital stock or other securities of the
Company;
(xiv) neither the Company nor the Trust is, and immediately
upon completion of the sale of Preferred Securities contemplated
hereby, neither the Company nor the Trust will be, an "investment
company" or a company "controlled" by an investment company under the
Investment Company Act of 1940, as amended;
(xv) Busey Bank is validly existing as an Illinois banking
corporation in good standing under the laws of the State of Illinois
and Busey Bank fsb is a federally chartered savings bank in good
standing under the laws of the United States, each with power and
authority to own its respective properties and conduct its respective
business as described in the Prospectus;
(xvi) no Capital Treatment Event (as defined in the Indenture)
has occurred; and
(xvii) the Offerors satisfy all of the requirements of the Act
for use of Form S-3 for the offering of Preferred Securities
contemplated by this Agreement.
In rendering such opinion, such counsel may state that insofar as their
opinion under clause (iv) above relates to the accuracy and completeness of the
Prospectus and Registration Statement, including the Incorporated Documents, it
is based upon a general review with the Offerors' representatives and
independent accountants of the information contained therein, without
independent verification by such counsel of the accuracy or completeness of such
information. Such counsel may also rely upon the opinions of other competent
counsel and, as to factual matters, on certificates of officers of the Offerors
and of federal or state agencies or officials, in which case their opinion is to
state that they are so doing and copies of said opinions or certificates are to
be attached to the opinion unless said opinions or certificates (or,
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in the case of certificates, the information therein) have been furnished to the
Representatives in other form.
(c) The Underwriters shall have received on the Closing Date
and the Option Closing Date, as the case may be, the opinion of Xxxxxxx
and Xxxxxx, dated the Closing Date or the Option Closing Date,
addressed to the Underwriters, to the effect that:
(i) under current law, 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;
accordingly, for United States federal income tax purposes
each beneficial owner of Preferred Securities will be treated
as owning an undivided beneficial interest in the Junior
Subordinated Debentures, and stated interest on the Junior
Subordinated Debentures generally will be included in income
by a holder of Capital Securities at the time such interest
income is paid or accrued in accordance with such holder's
regular method of tax accounting; and
(ii) for federal income tax purposes, (a) the Junior
Subordinated Debentures will constitute indebtedness of the
Company and (b) the interest on the Junior Subordinated
Debentures will be deductible by the Company on an economic
accrual basis in accordance with Section 163(e) of the
Internal Revenue Code of 1986, as amended, and Treasury
Regulation Section 1.163-7.
(d) The Underwriters shall have received on the Closing Date
or the Option Closing Date, as the case may be, the opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to Wilmington Trust Company,
as Property Trustee under the Trust Agreement, Indenture Trustee under
the Indenture, and Guarantee Trustee under the Guarantee Agreement,
dated the Closing Date or the Option Closing Date, as the case may be,
addressed to the Underwriters, to the effect that:
(i) Wilmington Trust Company is duly incorporated and
is validly existing in good standing as a banking corporation
under the laws of the State of Delaware;
(ii) Wilmington Trust Company has the power and
authority to execute, deliver and perform its obligations
under the Trust Agreement, the Indenture and the Guarantee
Agreement;
(iii) each of the Trust Agreement, the Indenture and
the Guarantee Agreement has been duly authorized, executed and
delivered by Wilmington Trust Company and constitutes a legal,
valid and binding obligation of Wilmington Trust Company,
enforceable against Wilmington Trust Company, in accordance
with its terms;
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(iv) the execution, delivery and performance by
Wilmington Trust Company of the Trust Agreement, the Indenture
and the Guarantee Agreement do not conflict with or constitute
a breach of the charter or bylaws of Wilmington Trust Company;
and
(v) no consent, approval or authorization of, or
registration with or notice to, any governmental authority or
agency of the State of Delaware or the United States of
America governing the banking or trust powers of Wilmington
Trust Company is required for the execution, delivery or
performance by Wilmington Trust Company of the Trust
Agreement, the Indenture and the Guarantee Agreement.
(e) The Underwriters shall have received on the Closing Date
or the Option Closing Date, as the case may be, the opinion of
Xxxxxxxx, Xxxxxx & Finger, as special Delaware counsel for the Offerors
that:
(i) the Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Act, and all filings required as of the date hereof
under the Delaware Act with respect to the creation and valid
existence of the Trust as a business trust have been made;
(ii) under the Trust Agreement and the Delaware Act,
the Trust has the trust power and authority to own property
and to conduct its business, all as described in the
Prospectus;
(iii) the Trust Agreement constitutes a valid and
binding obligation of the Company, the Property Trustee and
each of the Administrative Trustees, and is enforceable
against the Company, the Property Trustee and each of the
Administrative Trustees in accordance with its terms;
(iv) under the Trust Agreement and the Delaware Act,
the Trust has the trust power and authority (A) to execute and
deliver, and to perform its obligations under, this Agreement,
and (B) to issue, and to perform its obligations under, the
Preferred Securities and the Common Securities;
(v) under the Trust Agreement and the Delaware Act,
the execution and delivery by the Trust of this Agreement, and
the performance by the Trust of its obligations under this
Agreement, have been duly authorized by all necessary trust
action on the part of the Trust;
(vi) under the Delaware Act, the certificate attached
to the Trust Agreement as Exhibit D is an appropriate form of
certificate to evidence ownership of the Preferred Securities.
The Preferred Securities and the Common Securities have been
duly authorized by the Trust Agreement and are duly and
validly issued and, subject to the qualifications hereinafter
expressed in this paragraph (vi), fully paid and
non-assessable undivided beneficial interests
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in the assets of the Trust. The respective holders of the
Preferred Securities and the Common Securities, as beneficial
owners of the Trust, will be entitled to the same limitation
of personal liability extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware. Such counsel may
note that the respective holders of the Preferred Securities
and the Common Securities may be obligated, pursuant to the
Trust Agreement, to make certain payments under the Trust
Agreement;
(vii) under the Trust Agreement and the Delaware Act,
the issuance of the Preferred Securities and the Common
Securities is not subject to preemptive or similar rights; and
(viii) the issuance and sale by the Trust of the
Preferred Securities and the Common Securities, the purchase
by the Trust of the Junior Subordinated Debentures, the
execution, delivery and performance by the Trust of this
Agreement and the Guarantee Agreement, the consummation by the
Trust of the transactions contemplated by this Agreement and
compliance by the Trust with its obligations under this
Agreement do not violate (A) any of the provisions of the
Certificate of Trust or the Trust Agreement or (B) any
applicable Delaware law or Delaware administrative
regulations.
(f) The Underwriters shall have received from Barack
Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx, Chicago, Illinois, counsel
for the Underwriters, an opinion dated the Closing Date or the Option
Closing Date, as the case may be, with respect to the formation of the
Trust, the validity of the Preferred Securities, the Indenture, the
Trust Agreement, the Guarantee Agreement, the Expense Agreement, this
Agreement, the Registration Statement, the Prospectus, and other
related matters as the Underwriters may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
(g) The Underwriters shall have received on the date hereof,
the Closing Date and, if applicable, the Option Closing Date, a signed
letter, dated as of the date hereof, the Closing Date or the Option
Closing Date, as the case may be, respectively, in form and substance
satisfactory to the Underwriters, from McGladrey & Xxxxxx, LLP to the
effect that they are independent public accountants with respect to the
Trust, the Company and the Company's subsidiaries within the meaning of
the Act and the related rules and regulations and containing statements
and information of the type ordinarily included in accountants'
"comfort letters" to Underwriters with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus (and the Incorporated
Documents).
(h) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date or the Option Closing Date, as the case
may be, there shall not have been any change or any development
involving a reasonably foreseeable change, in or
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affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Offerors
otherwise than as set forth or contemplated in the Prospectus,
the effect of which, in your reasonable judgment, is material
and adverse to the Offerors and makes it impracticable or
inadvisable to proceed with the public offering or the
delivery of the Preferred Securities being delivered at the
Closing Date, or the Option Closing Date, as the case may be,
on the terms and in the manner contemplated in the Prospectus.
(i) The Underwriters shall have received on the Closing Date
or the Option Closing Date, as the case may be, a certificate or
certificates of the chief executive officer and the principal financial
officer of the Company, to the effect that, as of the Closing Date or
the Option Closing Date, as the case may be, each of them severally
represents as follows:
(i) The Prospectus was filed with the Commission
pursuant to Rule 424(b) within the applicable period
prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 4 of this Agreement; no
stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose
have been initiated or are, to his knowledge, threatened by
the Commission.
(ii) The representations and warranties of the
Company set forth in Section 1 of this Agreement are true and
correct at and as of the Closing Date or the Option Closing
Date, as the case may be, and the Company has performed all of
its obligations under this Agreement to be performed at or
prior to the Closing Date or the Option Closing Date, as the
case may be.
(j) The Underwriters shall have received on the Closing Date
or the Option Closing Date, as the case may be, a certificate or
certificates of the Administrative Trustees, to the effect that, as of
the Closing Date or the Option Closing Date, as the case may be, each
of them severally represents as follows:
(i) The Prospectus was filed with the Commission
pursuant to Rule 424(b) within the applicable period
prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 4 of this Agreement; no
stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose
have been initiated or are, to his knowledge, threatened by
the Commission.
(ii) The representations and warranties of the Trust
set forth in Section 1 of this Agreement are true and correct
at and as of the Closing Date or the Option Closing Date, as
the case may be, and the Trust has performed all of its
obligations under this Agreement to be performed at or prior
to the Closing Date or the Option Closing Date, as the case
may be.
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(k) The Offerors shall have furnished to the Underwriters such
further certificates and documents as the Underwriters may reasonably
have requested, including with respect to (i) the treatment of the
Junior Subordinated Debentures as indebtedness of the Company and (ii)
the deductibility of the interest on the Junior Subordinated Debenture.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Underwriters and to Barack
Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Underwriters by notifying the Company and the Trust of such termination in
writing or by telegram at or prior to the Closing Date or the Option Closing
Date, as the case may be. In such event, the Offerors and the Underwriters shall
not be under any obligation to each other (except to the extent provided in
Sections 5 and 7 hereof).
Section 7. Indemnification.
(a) The Offerors jointly and severally agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Act or the Exchange Act against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise (including in settlement of any litigation if such settlement
is effected with the written consent of the Offerors), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are (i) based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, including the information
deemed to be part of the Registration Statement at the time of effectiveness
pursuant to Rule 430A and/or Rule 434, if applicable, any Preliminary
Prospectus, the Prospectus, the Incorporated Documents or any amendment or
supplement thereto, or (ii) arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; and will reimburse
each Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Offerors will not be liable in
any such case to the extent that (A) any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, any
Preliminary Prospectus, the Prospectus, the Incorporated Documents or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Offerors by or on behalf of any Underwriter,
specifically for use therein; or (B) if such statement or omission was contained
or made in any Preliminary Prospectus and corrected in
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the Prospectus and (1) any such loss, claim, damage or liability suffered or
incurred by any Underwriter (or any person who controls any Underwriter)
resulted from an action, claim or suit by any person who purchased Preferred
Securities which are the subject thereof from such Underwriter in the offering
and (2) such Underwriter failed to deliver or provide a copy of the Prospectus
to such person at or prior to the confirmation of the sale of such Preferred
Securities in any case where such delivery is required by the Act. In addition
to its other obligations under this Section 7(a), the Offerors agree that, as an
interim measure during the pendency of any claim, action, investigation, inquiry
or other proceeding arising out of or based upon any statement or omission, or
any alleged statement or omission, described in this Section 7(a), it will
reimburse the Underwriters on a quarterly basis for all reasonable legal and
other expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and enforceability of
the Offerors' obligation to reimburse the Underwriters for such expenses and the
possibility that such payments might later be held to have been improper by a
court of competent jurisdiction. To the extent that any such interim
reimbursement payment is held by a court of competent jurisdiction to have been
improper, each recipient thereof will promptly return it to the Offerors. This
indemnity agreement will be in addition to any liability which the Offerors may
otherwise have.
(b) Each Underwriter will severally indemnify and hold
harmless the Offerors, the trustees, and the Company's directors, each of the
Company's officers who signed the Registration Statement and each person, if
any, who controls either Offeror within the meaning of the Act or the Exchange
Act, against any losses, claims, damages or liabilities to which the Offerors,
or any such director, officer or controlling person may become subject under the
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of such Underwriter), insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto in reliance upon any written
information furnished to the Offerors by such Underwriter specifically for use
in the preparation thereof; and will reimburse any legal or other expenses
reasonably incurred by the Offerors, or any such director, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action. In addition to their other obligations under
this Section 7(b), each Underwriter agrees that, as an interim measure during
the pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged statement
or omission, described in this Section 7(b), the Underwriters will reimburse the
Offerors on a quarterly basis for all reasonable legal and other expenses
incurred in connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
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judicial determination as to the propriety and enforceability of the
Underwriters' obligation to reimburse the Offerors for such expenses and the
possibility that such payments might later be held to have been improper by a
court of competent jurisdiction. To the extent that any such interim
reimbursement payment is held by a court of competent jurisdiction to have been
improper, each recipient thereof will promptly return it to the Underwriters.
This indemnity agreement will be in addition to any liability which the
Underwriters may otherwise have.
(c) The Company agrees to indemnify the Trust against all
loss, liability, claim damage and expense whatsoever, which may become due from
the Trust under paragraph (a).
(d) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party except to the extent
that the indemnifying party was prejudiced by such failure to notify. In case
any such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
all other indemnifying parties similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, or the indemnified and indemnifying parties may have
conflicting interests which would make it inappropriate for the same counsel to
represent both of them, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defense and otherwise to
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defense in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of paragraph (a)
representing all indemnified parties not having different or additional defenses
or potential conflicting interests among themselves who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
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sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability arising out
of such proceeding.
(e) If the indemnification provided for in this Section is
unavailable to an indemnified party under paragraphs (a) or (b) hereof in
respect of any losses, claims, damages or liabilities referred to therein, then
each applicable 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 or liabilities (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 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 which resulted in such
losses, claims, damages or liabilities, 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 (before deducting expenses) received
by the Offerors bears to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the Prospectus. The
relative fault of the Offerors and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material 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 statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages and liabilities referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section, no Underwriter shall be required
to contribute any amount in excess of the amount by which the total price at
which the Preferred Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section are several in proportion to their respective
underwriting commitments and not joint.
(f) The provisions of this Section shall survive any
termination of the Agreement.
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Section 8. Default of Underwriters. It shall be a condition to the
agreement and obligation of the Offerors to sell and deliver the Preferred
Securities hereunder, and of each Underwriter to purchase the Preferred
Securities hereunder, that, except as hereinafter in this paragraph provided,
each of the Underwriters shall purchase and pay for all Preferred Securities
agreed to be purchased by such Underwriter hereunder upon tender to the
Representatives of all such Preferred Securities in accordance with the terms
hereof. If an Underwriter defaults in its obligation to purchase Preferred
Securities hereunder on the Closing Date or the Option Closing Date, as the case
may be, and the aggregate number of Preferred Securities which such defaulting
Underwriter agreed but failed to purchase does not exceed 10 percent of the
total number of Firm Securities or Option Securities, as the case may be, which
the Underwriters are obligated to purchase on the Closing Date or the Option
Closing Date, as the case may be, the Representatives may make arrangements
satisfactory to the Offerors for the purchase of such Preferred Securities by
other persons, including the Representatives, but if no such arrangements are
made by such date the nondefaulting Underwriter shall be obligated to purchase
the Preferred Securities which such defaulting Underwriter agreed but failed to
purchase on such date. If any Underwriter so defaults and the aggregate number
of Preferred Securities with respect to which such default occurs is more than
the above percentage and arrangements satisfactory to the Representatives and
the Offerors for the purchase of such Preferred Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of the nondefaulting Underwriter or the Offerors,
except for the expenses to be paid by the Offerors pursuant to Section 5 hereof
and except to the extent provided in Section 7 hereof.
In the event that Preferred Securities to which a default relates are
to be purchased by the nondefaulting Underwriter or by another party or parties,
the Representatives or the Offerors shall have the right to postpone the Closing
Date or the Option Closing Date, as the case may be, for not more than seven
business days in order that the necessary changes in the Registration Statement,
Prospectus and any other documents, as well as any other arrangements, may be
effected. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
Section 9. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof, this Agreement may be
terminated by you prior to the Closing Date or the Option Closing Date, as the
case may be, if (i) trading in securities on The Nasdaq National Market shall
have been suspended or minimum prices shall have been established on such
exchange, or (ii) a banking moratorium shall have been declared by Illinois, New
York, or United States authorities, or (iii) there shall have been any material
adverse change in financial markets or in political, economic or financial
conditions from the date hereof which, in the reasonable opinion of both of the
Representatives, either renders it impracticable or inadvisable to proceed with
the offering and sale of the Preferred Securities on the terms set forth in the
Prospectus or materially and adversely affects the market for the Preferred
Securities, or (iv) there shall have been an outbreak of major armed hostilities
between the United States and any foreign power which in the reasonable opinion
of both of the Representatives makes it impractical or inadvisable to offer or
sell the Preferred Securities.
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Any termination pursuant to this paragraph shall be without liability on the
part of any Underwriter to the Offerors or on the part of the Offerors to any
Underwriter (except for expenses to be paid or reimbursed pursuant to Section 7
hereof and except to the extent provided in Section 5 hereof).
Section 10. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Offerors, the Trustees, any of the Company's officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or the Offerors or any of its or their partners, officers or
directors or any controlling person, as the case may be, and will survive
delivery of and payment for the Preferred Securities sold hereunder.
Section 11. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters will be mailed, delivered or sent by facsimile
transmission and confirmed to you c/x Xxxx Xxxxxx Investments, Inc., 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. X'Xxxxxx with a copy
to Xxxx X. Xxxxxxxxx, Esq., Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx,
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000; and if sent to the
Company will be mailed, delivered or telegraphed and confirmed to the Company,
Attention: Xxxxxxx X. Xxxxx, at its corporate headquarters with a copy to Xxxxxx
Xxxxx, Esq., Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
Section 12. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors, personal
representatives and assigns, and to the benefit of the officers and directors
and controlling persons referred to in Section 7, and no other person will have
any right or obligation hereunder. The term "successors" shall not include any
purchaser of the Preferred Securities as such from any of the Underwriters
merely by reason of such purchase.
Section 13. Representation of Underwriters. You will act as
Representatives for the Underwriters in connection with this financing, and any
action under or in respect of this Agreement taken by either of you will be
binding upon all the Underwriters.
Section 14. Partial Unenforceability. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
Section 15. Miscellaneous. Each provision of this Agreement shall be
interpreted in such a manner to be effective and valid under applicable law, but
if any provision of this Agreement is held to be invalid, illegal or
unenforceable under any applicable law or rule in any jurisdiction, such
provision will be ineffective only to the extent of such invalidity, illegality
or unenforceability in such jurisdiction or any provision hereof in any other
jurisdiction.
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This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Illinois.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Offerors and the
Underwriters including you, all in accordance with its terms.
Very truly yours,
FIRST BUSEY CORPORATION
By________________________________________
Xxxxxxx X. Xxxxx
Its Chairman of the Board and
Chief Executive Officer
FIRST BUSEY CAPITAL TRUST I
By________________________________________
Xxxxxxx X. Xxxx
Its Administrative Trustee
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXX XXXXXX INVESTMENTS, INC. XXXXXXXX INC.
Acting as Representative of the Acting as Representative of the
Underwriters named in Schedule A Underwriters named in Schedule A
By:________________________________ By:________________________________
Name:______________________________ Name:______________________________
Its:_______________________________ Its:_______________________________
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SCHEDULE A
SCHEDULE OF UNDERWRITERS
NUMBER OF
PREFERRED SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Xxxx Xxxxxx Investments, Inc.
Xxxxxxxx Inc.
Total 2,000,000
=========
* Not including an over-allotment option of up to $3,000,000 of Preferred
Securities.
