Exhibit 1.1
2,080,000 Preferred Securities
MB Financial Capital Trust I
[_____]% Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
_______________, 2002
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇ INVESTMENTS, INC.
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ & PARTNERS, L.P.
c/o ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
as Representatives of the Several Underwriters
named in Schedule I hereto
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
MB Financial, Inc., a Maryland corporation (the "Company"), and its
financing subsidiary, MB Financial Capital Trust I, a Delaware business trust
(the "Trust," and hereinafter together with the Company, the "Offerors"),
propose that the Trust issue and sell to the several underwriters listed on
Schedule I hereto (the "Underwriters"), pursuant to the terms of this Agreement,
2,080,000 of the Trust's [_____]% Cumulative Trust Preferred Securities, with a
liquidation amount of $25 per preferred security (the "Preferred Securities"),
to be issued under the Trust Agreement (as hereinafter defined), the terms of
which are more fully described in the Prospectus (as hereinafter defined). The
aforementioned 2,080,000 Preferred Securities to be sold to the Underwriters are
herein called the "Firm Preferred Securities." Solely for the purpose of
covering over-allotments in the sale of the Firm Preferred Securities, the
Offerors further propose that the Trust issue and sell to the Underwriters, at
their option, up to an additional 312,000 Preferred Securities (the "Option
Preferred Securities") upon exercise of the over-allotment option granted in
Section 1 hereof. The Firm Preferred Securities and any Option Preferred
Securities are herein collectively referred to as the "Designated Preferred
Securities." ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
Incorporated ▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc. and ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ & Partners, L.P.
are acting as representatives of the Underwriters and in such capacity are
sometimes herein referred to as the "Representatives."
The Offerors hereby confirm as follows their agreement with each of the
Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED SECURITIES,
DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to each of the
Underwriters and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $25 per Preferred Security (the
"Purchase Price"), the
respective number of Firm Preferred Securities set forth opposite the name of
such Underwriter in Schedule I hereto. Because the proceeds from the sale of the
Firm Preferred Securities will be used to purchase from the Company its
Debentures (as hereinafter defined and as described in the Prospectus), the
Company shall pay to each Underwriter a commission of $[_____] per Firm
Preferred Security purchased (the "Firm Preferred Securities Commission"). The
Representatives may by notice to the Company amend Schedule I to add, eliminate
or substitute names set forth therein (other than to eliminate the names of the
Representatives) and to amend the number of Firm Preferred Securities to be
purchased by any firm or corporation listed thereon, PROVIDED that the total
number of Firm Preferred Securities listed on Schedule I shall equal 2,080,000.
In addition, on the basis of the representations, warranties and agreements
herein contained and subject to the terms and conditions herein set forth, the
Trust hereby grants to the Underwriters, severally and not jointly, an option to
purchase all or any portion of the 312,000 Option Preferred Securities, and upon
the exercise of such option in accordance with this Section 1, the Offerors
hereby agree that the Trust shall issue and sell to the Underwriters, severally
and not jointly, all or any portion of the Option Preferred Securities at the
same Purchase Price per share paid for the Firm Preferred Securities. If any
Option Preferred Securities are to be purchased, each Underwriter, severally and
not jointly, agrees to purchase from the Trust that proportion (subject to
adjustment as you may determine to avoid fractional securities) of the number of
Option Preferred Securities to be purchased that the number of Firm Preferred
Securities set forth opposite the name of such Underwriter in Schedule I hereto
(or such number increased as set forth in Section 9 hereof) bears to 2,080,000.
Because the proceeds from the sale of the Option Preferred Securities will be
used to purchase from the Company its Debentures, the Company shall pay to the
Underwriters a commission of $[_____] per Option Preferred Security for each
Option Preferred Security purchased (the "Option Preferred Securities
Commission"). The option hereby granted (the "Option") shall expire 30 days
after the date upon which the Registration Statement (as hereinafter defined)
becomes effective and may be exercised only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Firm Preferred Securities. The Option may be exercised in
whole or in part at any time (but not more than once) by you giving notice
(confirmed in writing) to the Offerors setting forth the number of Option
Preferred Securities as to which the Underwriters are exercising the Option and
the time, date and place for payment and delivery of the Global Securities (as
hereafter defined) for such Option Preferred Securities. Such time and date of
payment and delivery for the Option Preferred Securities (the "Option Closing
Date") shall be determined by you, but shall not be earlier than two nor later
than five full business days after the exercise of such Option, nor in any event
prior to the Closing Date (as hereinafter defined). The Option Closing Date may
be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities Commission
and delivery of the Global Securities (as hereinafter defined) for the Firm
Preferred Securities shall be made at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company,
Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such
other place as shall be agreed to by you and the Offerors, at 10:00 a.m., St.
Louis time, on the third (or, if permitted by Rule 15c6-1(c) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), not later than 12:00 p.m. on
the fourth) full business day following the date of this Agreement (the "Closing
Date"), or unless postponed in accordance with the provisions of Section 9. The
Trust shall deliver or cause to be delivered to you for the account of the
Underwriters against payment to or upon the order of the Trust of the Purchase
Price in federal or other immediately available funds, the Firm Preferred
Securities in the form of one or more permanent global securities in definitive
form (the "Global Securities") deposited with the Property Trustee (as
identified below) as custodian for the Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry form. If the
Underwriters exercise the option to purchase any or all of the Option Preferred
Securities, payment of the Purchase Price and Option Preferred Securities
Commission for such Option Preferred Securities shall be made on the Option
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Closing Date at ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated's offices, or at such
other place as the Offerors and you shall determine. Upon delivery, the Option
Preferred Securities shall be in the form of one or more Global Securities
registered in the name of Cede & Co., as nominee of DTC and the Global
Securities for such Option Securities shall be delivered to the Property Trustee
as custodian for DTC. Such payments shall be made to an account designated by
the Trust by wire transfer of same day funds, in the amount of the Purchase
Price therefor, against delivery by or on behalf of the Trust to you for the
respective accounts of the several Underwriters of one or more Global
Certificates for the Designated Preferred Securities to be purchased by the
Underwriters.
Time shall be of the essence, and delivery of the Global Securities for the
Designated Preferred Securities at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated Preferred
Securities pursuant to an Amended and Restated Trust Agreement among Wilmington
Trust Company, as Delaware Trustee and Property Trustee, the Administrative
Trustees named therein (collectively, the "Trustees"), and the Company, in
substantially the form heretofore delivered to the Underwriters, said Agreement
being hereinafter referred to as the "Trust Agreement." In connection with the
issuance of the Designated Preferred Securities, the Company proposes (i) to
issue its [_____]% Subordinated Debentures due 2032 (the "Debentures") pursuant
to an Indenture, to be dated as of [_______________], 2002, between the Company
and Wilmington Trust Company, as indenture trustee (the "Indenture"), and (ii)
to guarantee certain payments on the Designated Preferred Securities pursuant to
a Preferred Securities Guarantee Agreement to be dated as of [AUGUST ___], 2002,
between the Company and Wilmington Trust Company, as guarantee trustee (the
"Guarantee"), to the extent described therein.
(c) As used herein, the following terms shall have the following
meanings:
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto, and any Rule
462(b) Registration Statement became or becomes effective.
"Preliminary Prospectus" shall mean any preliminary prospectus which
describes the Designated Preferred Securities and the offering thereof and is
used prior to filing of the Prospectus.
"Prospectus" shall mean the prospectus in the form first provided to the
Underwriters by the Offerors in connection with the offering and sale of the
Securities (whether or not required to be filed pursuant to Rule 424(b)).
"Registration Statement" shall mean the registration statement referred to
in Section 2(i) hereof, including exhibits and financial statements, as amended
at the date hereof (or, if not effective at the date hereof, in the form in
which it shall become effective) and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall include
any Rule 430A Information deemed to be included therein at the Effective Date as
provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the 1933
Act.
"Rule 430A Information" shall mean information with respect to the
Designated Preferred Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule 430A.
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"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 2(i)
hereof.
2. REPRESENTATIONS AND WARRANTIES.
The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters that:
(i) The Offerors have prepared and filed with the Commission a
registration statement on Form S-1 (File Numbers _____________ and
_____________), including a related prospectus, for registration under the
1933 Act of the offering and sale of the Designated Preferred Securities,
the Guarantee and up to $59,800,000 aggregate principal amount of
Debentures under the 1933 Act. The Offerors may have filed one or more
amendments to such registration statement, including a Preliminary
Prospectus, each of which has previously been furnished to you, in each
case in conformity in all material respects with the requirements of the
1933 Act, the rules and regulations promulgated thereunder (the "1933 Act
Regulations") and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations thereunder. The Offerors
shall next file with the Commission one of the following: (1) after the
Effective Date of such registration statement, a final prospectus relating
to the Designated Preferred Securities in accordance with Rules 430A and
424(b) or (2) prior to the Effective Date of such registration statement,
an amendment to such registration statement (including the form of final
prospectus). In the case of clause (1), the Offerors have included in such
registration statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the 1933 Act and the 1933
Act Regulations to be included in such registration statement and the
Prospectus. As filed, such final prospectus or such amendment and form of
final prospectus shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the date hereof
or, to the extent not completed at the date hereof, shall contain only such
specific additional information and other changes (beyond that contained in
the Prospectus and any Preliminary Prospectus) as the Company has advised
you, prior to the date hereof, shall be included or made therein. Copies of
such registration statement, including any amendments thereto, the
Prospectus and each Preliminary Prospectus contained therein and the
exhibits, financial statements and schedules to such registration
statement, as finally amended and revised, have heretofore been delivered
by the Offerors to the Representatives.
(ii) No order preventing or suspending the use of the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) has been issued by the Commission, nor has the Commission, to
the knowledge of the Offerors, threatened to issue such an order or
instituted proceedings for that purpose. Each Preliminary Prospectus, at
the time of filing thereof, (A) complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and (B) did not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that this representation and
warranty does not apply to statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Offerors by
any of the Underwriters expressly for inclusion in the Prospectus beneath
the heading "Underwriting" (such information referred to herein as the
"Underwriters' Information"). As of the date that each Preliminary
Prospectus was filed with the Commission or as of the date that the
Prospectus and any amendment or supplement thereto was filed with the
Commission (or, if not filed, on the date
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provided by the Offerors to the Underwriters in connection with the
offering and sale of the Designated Preferred Securities), as the case may
be, no event has or will have occurred which should have been set forth in
an amendment or supplement to any Preliminary Prospectus or the Prospectus
which has not been set forth in any Preliminary Prospectus, the Prospectus
or such an amendment or supplement. Each Preliminary Prospectus and the
Prospectus will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to its ▇▇▇▇▇ system, except to
the extent permitted by Regulation S-T.
(iii) The Registration Statement has been declared effective
under the 1933 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, to the Offerors' knowledge, threatened by the Commission. At
the Effective Date and at all times subsequent thereto, up to and including
the Closing Date and, if applicable, the Option Closing Date, the
Registration Statement and any post-effective amendment thereto (A)
complied and will comply in all material respects with the requirements of
the 1933 Act, the 1933 Act Regulations and the Trust Indenture Act (and the
rules and regulations thereunder) and (B) did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; PROVIDED, HOWEVER, that this representation and warranty
does not apply to the Underwriters' Information. At the Effective Date, if
the Prospectus is not required to be filed pursuant to Rule 424(b) or at
the date of filing the Prospectus pursuant to Rule 424(b), whichever is
applicable, and at all times when the Prospectus is required to be
delivered in connection with offers and sales of Designated Preferred
Securities, including, without limitation, the Closing Date and, if
applicable, the Option Closing Date, the Prospectus, as amended or
supplemented, (A) complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the Trust
Indenture Act (and the rules and regulations thereunder) and (B) did not
contain and will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that this representation and
warranty does not apply to Underwriters' Information. Since the date that
the Registration Statement was filed with the Commission, no event has or
will have occurred which should have been set forth in an amendment or
supplement to such Registration Statement which has not then been set forth
in such an amendment or supplement. The Registration Statement will be
identical to the electronically transmitted copy thereof filed with the
Commission pursuant to its ▇▇▇▇▇ system, except to the extent permitted by
Regulation S-T. As of the date hereof and at all times when the Prospectus
is required to be delivered in connection with offers and sales of
Designated Preferred Securities, including, without limitation, the Closing
Date and, if applicable, the Option Closing Date, the Trust Agreement, the
Indenture and the Guarantee did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
thereunder.
(iv) The reports filed with the Commission by the Company under
the 1934 Act and the rules and regulations thereunder (the "1934 Act
Regulations") at the time they were filed with the Commission complied as
to form in all material respects with the requirements of the 1934 Act and
the 1934 Act Regulations and did not contain an untrue statement of 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 in which they were made, not misleading. All such reports
were timely filed as required by the 1934 Act Regulations.
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(v)
(A) The Company is duly organized, validly existing and in
good standing under the laws of the State of Maryland, with full corporate
and other power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus) and as currently being conducted and is duly
registered as a bank holding company under the Bank Holding Company Act of
1956, as amended (the "BHC Act").
(B) The Trust has been duly created and is validly existing
as a statutory business trust in good standing under the Delaware Business
Trust Act with the power and authority (trust and other) to own its
property and conduct its business as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, in
the most recent Preliminary Prospectus), to issue and sell its common
securities (the "Common Securities") to the Company pursuant to the Trust
Agreement, to issue and sell the Designated Preferred Securities, to enter
into and perform its obligations under this Agreement and to consummate the
transactions herein contemplated; the Trust has no subsidiaries and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or the ownership of its property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing could not have, either individually or in
the aggregate, a material adverse effect on the Trust; the Trust has
conducted and will conduct no business other than the transactions
contemplated by this Agreement and described in the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus); the Trust
is not a party to or bound by any agreement or instrument other than this
Agreement, the Trust Agreement, and the agreements and instruments
contemplated by the Trust Agreement and described in the Prospectus (or, if
the Prospectus is not in existence, in each Preliminary Prospectus); the
Trust has no liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Trust Agreement and
described in the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus); the Trust is not a party to or subject to any
action, suit or proceeding of any nature; the Trust is, and at the Closing
Date or any Option Closing Date will be, classified as a grantor trust for
United States federal income tax purposes; the Trust is not, and at the
Closing Date or any Option Closing Date will not be, classified as an
association taxable as a corporation for United States federal income tax
purposes; and the Trust is, and as of the Closing Date or any Option
Closing Date will be, treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(vi) The Company has only the direct and indirect subsidiaries
identified on Exhibit A attached hereto and incorporated herein (the
"Subsidiaries"). The Company does not own or control, directly or
indirectly, more than 5% of any class of equity security of any
corporation, association or other entity other than the Subsidiaries and
except for Sentry Lease Equity Pool 2000-1, LLC and Summit MFR Leasing,
LLC. Each Subsidiary is a corporation, business trust or bank duly
organized or incorporated, as the case may be, validly existing and in
active status or good standing, as applicable, under the laws of its
respective jurisdiction of organization. Each such Subsidiary has full
power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, in the most recent Preliminary
Prospectus) and as currently being conducted. The deposit accounts of Union
Bank N.A., ▇▇▇▇▇▇ Centre National Bank, and MB Financial Bank, N.A.
(collectively, the "Banks", individually, a "Bank") are insured by the Bank
Insurance Fund or Savings Association Insurance Fund administered by the
Federal Deposit Insurance Corporation (the "FDIC") up to the maximum amount
provided by
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law, and no proceedings for the modification, termination or revocation of
any such insurance are pending or, to the knowledge of the Offerors,
threatened.
(vii) The Company and each of the Subsidiaries is duly qualified
to transact business as a foreign corporation, bank or business trust, as
the case may be, and is in good standing in each other jurisdiction in
which it owns or leases property or conducts its business so as to require
such qualification and in which the failure to so qualify could,
individually or in the aggregate, have a Material Adverse Effect (as
hereinafter defined). All of the issued and outstanding shares of capital
stock or membership interests of the Subsidiaries (A) have been duly
authorized and are validly issued, (B) are fully paid and nonassessable,
except to the extent such shares may be deemed assessable under 12
U.S.C. Section 1831o and (C) are wholly owned, directly or indirectly, by
the Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, restriction upon voting or transfer, preemptive rights,
claim, equity or other defect except for the pledge by the Company of the
common stock of MB Financial Bank, N.A. to LaSalle Bank, N.A. pursuant to
the Revolving Loan Agreement dated July 2, 1999, as amended, between the
Company and LaSalle Bank, N.A..
(viii) The capital stock of the Company and the equity securities
of the Trust conform in all material respects to the description thereof
contained in the Prospectus (or, if the Prospectus is not in existence, in
the most recent Preliminary Prospectus). The outstanding shares of capital
stock and equity securities of each Offeror have been duly authorized and
validly issued and are fully paid and nonassessable, and no such shares
were issued in violation of the preemptive or similar rights of any
security holder of an Offeror. No person has any preemptive or similar
right to purchase any shares of capital stock or equity securities of the
Offerors. Except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, in the most recent Preliminary Prospectus) and except for
stock options granted to current or former directors, officers and
employees of the Company and its Subsidiaries and their respective
predecessors, there are no outstanding rights, options or warrants to
acquire any securities of the Offerors or the Subsidiaries, and there are
no outstanding securities convertible into or exchangeable for any
securities of the Offerors or the Subsidiaries and, other than as provided
in Section F of Article 5 of the Company's charter, no restrictions upon
the voting or transfer of any capital stock of the Company or equity
securities of the Trust pursuant to the Company's charter of incorporation
or bylaws, the Trust Agreement or any agreement or other instrument to
which an Offeror is a party or by which an Offeror is bound. As of the date
set forth therein, the Company had an authorized and outstanding
capitalization as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus) and the capitalization of the Company immediately
following the Effective Time will be as set forth in the Prospectus.
(ix)
(A) The Trust has all requisite trust power and authority to
issue, sell and deliver the Designated Preferred Securities in accordance
with and upon the terms and conditions set forth in this Agreement, the
Trust Agreement, the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in the most recent Preliminary Prospectus).
All corporate and trust action required to be taken by the Offerors for the
authorization, issuance, sale and delivery of the Designated Preferred
Securities in accordance with such terms and conditions has been validly
and duly taken. The Designated Preferred Securities, when delivered and
paid for in accordance with this Agreement, will be duly and validly issued
and outstanding, will represent valid fully paid and nonassessable
undivided beneficial interests in the assets of the Trust, will be entitled
to the benefits of the Trust Agreement pertaining to holders of Preferred
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Securities, will not be issued in violation of or subject to any preemptive
or similar rights, and will conform to the description thereof in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, in the most recent Preliminary Prospectus) and the Trust
Agreement. None of the Designated Preferred Securities, immediately prior
to delivery, will be subject to any security interest, lien, mortgage,
pledge, encumbrance, restriction upon voting or transfer, preemptive
rights, claim, equity or other defect.
(B) The Debentures have been duly and validly authorized,
and, when duly and validly executed, authenticated and issued as provided
in the Indenture and delivered to the Trust pursuant to the Trust
Agreement, will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except to the extent that enforcement thereof may be limited by and/or
subject to 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
pertaining to holders of Debentures under the Indenture, will conform in
all material respects to the description thereof contained in the
Prospectus (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus) and will be owned by the Trust free and clear of
any security interest, mortgage, pledge, lien, encumbrance, restriction
upon transfer, preemptive rights, claim, equity or other defect.
(C) The Guarantee has been duly and validly authorized, and,
when duly and validly executed and delivered to the guarantee trustee for
the benefit of the holders of the Preferred Securities, will constitute a
valid and legally binding obligation of the Company, enforceable against
the Company in accordance with its 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, and will conform in all
material respects to the description thereof contained in the Prospectus
(or, if the Prospectus is not in existence, in the most recent Preliminary
Prospectus).
(D) The Agreement as to Expenses and Liabilities between the
Company and the Trust (the "Expense Agreement") has been duly and validly
authorized, and, when duly and validly executed and delivered by the
Company, will constitute a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by and/or
subject to bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles of
equity, and will conform in all material respects to the description
thereof contained in the Prospectus (or, if the Prospectus is not in
existence, in each Preliminary Prospectus).
(x) The Offerors and the Subsidiaries have complied in all
material respects with all foreign, federal, state and local statutes,
regulations, ordinances and rules as now in effect and applicable to the
ownership and operation of their properties or the conduct of their
businesses as described in the most recent the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, in each
Preliminary Prospectus) (the "Applicable Laws") and as currently being
conducted, except where the failure to be in compliance would not have a
material adverse effect, whether alone or together with any other failure,
exception, occurrence, cancellation, revocation, termination,
unenforceability, impairment, breach, violation, default, conflict,
creation, or imposition or unlawful action or unfavorable decision, ruling
or finding, or action, suit, or proceeding, on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Offerors and the Subsidiaries on a consolidated basis (a "Material
Adverse Effect"). Neither the Company nor any non-banking Subsidiary
engages
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directly or indirectly in any activity prohibited by the Board of Governors
of the Federal Reserve System (the "FRB") or the BHC Act or the regulations
promulgated thereunder.
(xi) The Offerors and the Subsidiaries have all permits,
easements, consents, licenses, franchises and other governmental and
regulatory authorizations from all appropriate federal, state, local or
other public authorities ("Permits") as are necessary to own and lease
their properties and conduct their businesses in the manner described in
and contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, in Preliminary Prospectus) and as
currently being conducted, except where the failure to have such Permits
would not have a Material Adverse Effect. All Permits are in full force and
effect and each of the Offerors and the Subsidiaries are complying
therewith, except where the failure to so comply would have a Material
Adverse Effect and no event has occurred that allows, or after notice or
lapse of time would allow, revocation or termination thereof or will result
in any other impairment of the rights of the holder of any such Permit
except to the extent that any such revocation, termination, or impairment
would not have a Material Adverse Effect. Such Permits contain no
restrictions that would materially impair the ability of the Company or the
Subsidiaries to conduct their businesses in the manner consistent with
their past practices. Neither the Offerors nor any of the Subsidiaries have
received notice or otherwise has knowledge of any proceeding or action
relating to the revocation or modification of any such Permit.
(xii) Neither of the Offerors nor any of the Subsidiaries are in
breach or violation of their corporate charter, articles of incorporation,
by-laws or other governing documents (including, without limitation, the
Trust Agreement) in any material respect. Neither of the Offerors nor any
of the Subsidiaries is, and to the knowledge of the Offerors no other party
is, in violation, breach or default (with or without notice or lapse of
time or both) in the performance or observance of any term, covenant,
agreement, obligation, representation, warranty or condition contained in
(A) any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any other agreement
or instrument to which it is a party or by which it or any of its
properties may be bound, which such breach, violation or default could have
a Material Adverse Effect, and to the knowledge of the Offerors, no other
party has asserted that the Offerors or any of the Subsidiaries is in such
violation, breach or default, provided, however, that the foregoing shall
not apply to defaults by borrowers from the Company and the Subsidiaries,
or (B) any order, decree, judgment, rule or regulation of any court,
arbitrator, government, or governmental agency or instrumentality, domestic
or foreign, having jurisdiction over the Offerors or the Subsidiaries or
any of their respective properties the breach, violation or default of
which could have a Material Adverse Effect.
(xiii) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this Agreement,
the Trust Agreement, the Guarantee, the Indenture, the Expense Agreement,
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, in the most recent Preliminary Prospectus) (including,
without limitation, the issuance and sale of the Designated Preferred
Securities and the use of proceeds from the sale of the Designated
Preferred Securities as described in the Prospectus under the caption "Use
of Proceeds") do not and will not conflict with, result in the creation or
imposition of any material lien, claim, charge, encumbrance or restriction
upon any property or assets of the Offerors or the Subsidiaries or the
Designated Preferred Securities pursuant to, constitute a breach or
violation of, or constitute a default under, with or without notice or
lapse of time or both, any of the terms, provisions or conditions of (A)
the corporate charter, articles of incorporation, by-laws or other
governing documents of the Company or the Subsidiaries, (B) any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license, Permit or any other agreement or instrument to which
the Offerors or the Subsidiaries is a
9
party or by which any of them or any of their respective properties may be
bound (other than under the Revolving Loan Agreement dated as of July 2,
1999 between the Company and LaSalle Bank National Association, as amended,
and related documents, with respect to all of which the Company has
received the consent and waiver of LaSalle Bank National Association), or
(C) any order, decree, judgment, rule or regulation of any court,
arbitrator, government, or governmental agency or instrumentality, domestic
or foreign, having jurisdiction over the Offerors or the Subsidiaries or
any of their respective properties which conflict, creation, imposition,
breach, violation or default could have, either individually or in the
aggregate, a Material Adverse Effect. No authorization, approval, consent
or order of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body or authority)
is required in connection with the transactions contemplated by this
Agreement, the Trust Agreement, the Indenture, the Guarantee, the Expense
Agreement, the Registration Statement and the Prospectus (or any
Preliminary Prospectus), except such as have been obtained under the 1933
Act and the Trust Indenture Act and from The Nasdaq Stock Market relating
to the listing of the Designated Preferred Securities on the Nasdaq
National Market, and such as may be required under state securities laws or
Interpretations or Rules of the National Association of Securities Dealers,
Inc. ("NASD") in connection with the purchase and distribution of the
Designated Preferred Securities by the Underwriters.
(xiv) The Company has all requisite power and authority and the
Trust has all requisite trust power and authority to enter into this
Agreement and this Agreement has been duly and validly authorized, executed
and delivered by the Offerors and constitutes the legal, valid and binding
agreement of the Offerors, enforceable against the Offerors in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the rights
of creditors generally and subject to general principles of equity and
except as any indemnification or contribution provisions thereof may be
limited under applicable securities laws. Each of the Indenture, the Trust
Agreement, the Guarantee and the Expense Agreement has been duly authorized
by the Company, and, when executed and delivered by the Company on the
Closing Date, each of said agreements will constitute a valid and legally
binding obligation of the Company and will be enforceable against the
Company in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity and except as any indemnification or contribution
provisions thereof may be limited under applicable securities laws. Each of
the Indenture, the Trust Agreement and the Guarantee has been duly
qualified under the Trust Indenture Act and will conform in all material
respects to the description thereof contained in the Prospectus.
(xv) The Company and the Subsidiaries have good and marketable
title in fee simple to all real property and good title to all personal
property owned by them and material to their business, in each case free
and clear of all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other defects except such
as are referred to in the Prospectus (or, if the Prospectus is not in
existence, in the most recent Preliminary Prospectus) or such as do not
materially affect the value of such property in the aggregate and do not
materially interfere with the use made or proposed to be made of such
property; and all of the leases under which the Company or the Subsidiaries
hold real or material personal property are valid and existing leases,
enforceable against the parties thereto, and in full force and effect with
such exceptions as are not material and do not materially interfere with
the use made or proposed to be made of such real or personal property, and
neither the Company nor any of the Subsidiaries is in default of any of the
terms or provisions of any leases that would have a Material Adverse
Effect.
10
(xvi) KPMG LLP and McGladrey & ▇▇▇▇▇▇ LLP, who have certified
certain of the consolidated financial statements of the Company and the
Subsidiaries, including the notes thereto, included in the Registration
Statement and Prospectus, are independent public accountants with respect
to the Company and the Subsidiaries, as required by the 1933 Act and the
1933 Act Regulations.
(xvii) The consolidated financial statements, including the notes
thereto, included in the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, in the most recent Preliminary
Prospectus) with respect to the Company and the Subsidiaries comply in all
material respects with the 1933 Act and the 1933 Act Regulations and
present fairly in all material respects the consolidated financial position
of the Company and the Subsidiaries as of the dates indicated and the
consolidated results of operations, cash flows and shareholders' equity of
the Company and the Subsidiaries for the periods specified and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis, except that the interim financial statements
are subject to normal year-end adjustments and do not include all footnotes
required by generally accepted accounting principles for audited financial
statements. The selected consolidated financial data concerning the Company
and the Subsidiaries included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus) comply in all material respects with the 1933 Act
and the 1933 Act Regulations, present fairly the information set forth
therein, have been derived from the financial statements or operating
records of the Company and have been compiled on a basis consistent with
that of the consolidated financial statements of the Company and the
Subsidiaries in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in the most recent Preliminary Prospectus).
The other financial, statistical and numerical information included in the
Registration Statement and the Prospectus (or such Preliminary Prospectus)
is accurate in all material respects, complies in all material respects
with the 1933 Act and the 1933 Act Regulations, has been derived from the
financial statements or operating records of the Company, presents fairly
the information shown therein, and to the extent applicable has been
compiled on a basis consistent with the consolidated financial statements
of the Company and the Subsidiaries included in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, in the most
recent Preliminary Prospectus).
(xviii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in the most recent Preliminary Prospectus),
except as otherwise stated therein:
(A) neither of the Offerors nor any of the Subsidiaries has
sustained any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree which is
material, individually or in the aggregate, to the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis;
(B) there has not been any material adverse change in, or
any development which is reasonably likely to have a Material Adverse
Effect, whether or not arising in the ordinary course of business;
(C) neither of the Offerors nor any of the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or entered
into any material transactions, other than in the ordinary course of
business, which are material, individually or in the aggregate, to the
11
condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Company and the Subsidiaries on a
consolidated basis;
(D) neither of the Offerors has declared or paid any
dividend, except for the payment by the Company on ______________, 2002 of
a cash dividend per share and neither of the Offerors nor any of the
Subsidiaries has become delinquent in the payment of principal or interest
on any outstanding borrowings;
(E) there has not been any change in the capital stock
(except for the issuance of shares upon the exercise of stock options),
equity securities, long-term debt, obligations under capital leases or,
other than in the ordinary course of business, short-term borrowings of the
Offerors or the Subsidiaries; and
(F) there has not occurred any other event and there has
arisen no set of circumstances required by the 1933 Act or the 1933 Act
Regulations to be disclosed in the Registration Statement or the Prospectus
which has not been so set forth in the Registration Statement or the
Prospectus as fairly and accurately summarized therein.
(xix) No charge, investigation, action, suit or proceeding is
pending or, to the knowledge of the Offerors, threatened, against or
affecting the Offerors or the Subsidiaries or any of their respective
properties before or by any court or any regulatory, administrative or
governmental official, commission, board, agency or other authority or
body, or any arbitrator, wherein an unfavorable decision, ruling or finding
could, individually or in the aggregate with other unfavorable decisions,
rulings or findings, have a Material Adverse Effect or which is required to
be disclosed in the Registration Statement or the Prospectus (or, if the
Prospectus is not in existence, in the most recent Preliminary Prospectus)
and is not so disclosed.
(xx) There are no contracts or other documents required to be
filed as exhibits to the Registration Statement by the 1933 Act or the 1933
Act Regulations or the Trust Indenture Act (or any rules or regulations
thereunder) which have not been filed as exhibits to the Registration
Statement, or that are required to be summarized in the Prospectus (or, if
the Prospectus is not in existence, in the most recent Preliminary
Prospectus) that are not so summarized.
(xxi) Neither of the Offerors has taken, directly or indirectly,
any action designed to result in, or which has constituted or which might
reasonably be expected to cause or result in, stabilization or manipulation
of the price of any security of the Offerors to facilitate the sale or
resale of the Designated Preferred Securities in violation of the
Commission's rules and regulations, including, but not limited to,
Regulation M, and neither of the Offerors is aware of any such action taken
or to be taken by any affiliate of the Offerors.
(xxii) The Offerors and the Subsidiaries own, or possess adequate
rights to use, all patents, copyrights, trademarks, service marks, trade
names and other rights necessary to conduct the businesses now conducted by
them in all material respects or as described in the Prospectus (or, if the
Prospectus is not in existence, in the most recent Preliminary Prospectus)
except where the failure to possess any such patents, copyrights,
trademarks, service marks, trade names or other rights would have a
Material Adverse Effect and neither the Company nor the Subsidiaries have
received any notice of infringement or conflict with asserted rights of
others with respect to any patents, copyrights, trademarks, service marks,
trade names or other rights which if the subject of an unfavorable
decision, ruling or finding, could have a Material Adverse
12
Effect, and the Offerors do not know of any basis for any such infringement
or conflict which, if the subject of an unfavorable decision, ruling or
finding, could have a Material Adverse Effect.
(xxiii) No labor dispute involving the Company or the
Subsidiaries exists or, to the knowledge of the Offerors, is imminent which
could, individually or in the aggregate with other disputes, have a
Material Adverse Effect or which is required to be disclosed in the
Prospectus (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus). Neither the Company nor any of the Subsidiaries
has received notice of any existing or threatened labor dispute by the
employees of any of its principal suppliers, customers or contractors which
could, individually or in the aggregate with other disputes, have a
Material Adverse Effect.
(xxiv) The Offerors and the Subsidiaries have timely and properly
prepared and filed, or have timely and properly filed extension for, all
necessary federal, state, local and foreign tax returns which are required
to be filed and have paid all taxes shown as due thereon and have paid all
other taxes and assessments to the extent that the same shall have become
due, except such as are being contested in good faith or where the failure
to so timely and properly prepare and file could not have a Material
Adverse Effect. The Offerors have no knowledge of any tax deficiency which
has been or might be assessed against the Offerors or the Subsidiaries
which, if the subject of an unfavorable decision, ruling or finding, could
have a Material Adverse Effect.
(xxv) Each of the contracts, agreements and instruments material
to the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and its Subsidiaries on a
consolidated basis, or listed, described, or attached as an exhibit to the
Registration Statement or to the Company's Annual Report on Form 10-K for
the year ended December 31, 2001 as filed with the Commission is in full
force and effect and is the legal, valid and binding agreement of the
Offerors or the Subsidiaries and, to the knowledge of the Officers and the
Subsidiaries, of the other parties thereto, enforceable in accordance with
its terms, except as the 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, except
where the cancellation, termination or unenforceability could not have a
Material Adverse Effect. Neither the Company nor any Subsidiary is (with or
without notice or lapse of time or both) in breach or default in any
material respect under any such contacts, agreements or instruments
referred to in the preceding sentence (or upon consummation of the
transactions contemplated by this Agreement will be in breach or default in
any material respect thereunder) and, to the knowledge of the Offerors, no
other party to any such agreement is (with or without notice or lapse of
time or both) in breach or default in any material respect thereunder.
(xxvi) No relationship, direct or indirect, exists between or
among the Company or the Subsidiaries, on the one hand, and the directors,
officers, trustees, shareholders, customers or suppliers of the Company or
the Subsidiaries, on the other hand, which is required to be described in
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, in the most recent Preliminary Prospectus) which is not
described therein sufficiently to satisfy the requirements of the 1933 Act
and the 1933 Act Regulations.
(xxvii) No person has the right to request or require the
Offerors or the Subsidiaries to register any securities for offering and
sale under the 1933 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the Designated
Preferred Securities.
13
(xxviii) The Designated Preferred Securities have been approved
for quotation on the Nasdaq National Market subject to official notice of
issuance.
(xxix) Except as described in the Prospectus (or, if the
Prospectus is not in existence, in the most recent Preliminary Prospectus)
and as provided in the Company's bylaws, there are no contractual
encumbrances or restrictions or requirements or material legal restrictions
or requirements required to be described therein, on the ability of the
Subsidiaries (A) to pay dividends or make any other distributions on its
capital stock or to pay any indebtedness owed to the Company, (B) to make
any loans or advances to, or investments in, the Company or (C) to transfer
any of its property or assets to the Company. Except as described in the
Prospectus (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus), there are no restrictions, encumbrances or
requirements affecting the payment of dividends or the making of any other
distributions on any of the capital stock of the Company.
(xxx) Neither of the Offerors is, or intends to conduct business
in a manner in which would cause it to become, an "investment company", an
entity "controlled" by an "investment company" or an "investment adviser"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act") or the Investment Advisers Act of 1940, as
amended (the "Investment Advisers Act").
(xxxi) The Offerors have not distributed and will not distribute
prior to the Closing Date or, if applicable, the Option Closing Date, any
prospectus in connection with the Offering, other than a Preliminary
Prospectus, the Prospectus, the Registration Statement and the other
materials permitted by the 1933 Act and the 1933 Act Regulations and
reviewed by the Representatives.
(xxxii) The activities of the Offerors and the Subsidiaries are
permitted under applicable federal and state banking laws and regulations.
The Company has all necessary approvals, including the approval of the
Office of the Comptroller of the Currency (the "OCC"), the FDIC, the Office
of Banks and Real Estate of the State of Illinois (the "OBRE"), the
Oklahoma State Banking Department (the "OSBD"), the Department of Banking
of the State of Texas ("DBT") and the FRB, as applicable, to own the
capital stock of the Subsidiaries. Neither the Company nor any of the
Subsidiaries is a party or subject to any agreement or memorandum with, or
directive or other order issued by, the FRB, the OCC, the FDIC, the OBRE,
the OSBD, the DBT or other regulatory authority having jurisdiction over it
(each, a "Regulator", and collectively, the "Regulators"), which imposes
any restrictions or requirements not generally applicable to entities of
the same type as the Company and the Subsidiaries. Neither the Company nor
any Subsidiary is subject to any order or other directive from any
Regulator to make any material change in the method of conducting their
respective businesses, and no such directive is pending or, to the
knowledge for the Offerors and Subsidiaries, threatened by such Regulators.
(xxxiii) The Banks and the other Subsidiaries have properly
administered all accounts for which they act as a fiduciary, including but
not limited to accounts for which they serve as a trustee, agent,
custodian, personal representative, guardian, conservator or investment
advisor, in accordance with the terms of the governing documents and
applicable state and federal law and regulation and common law, except
where the failure to be in compliance could not have a Material Adverse
Effect. None of the Banks or other Subsidiaries nor any of their directors,
officers or employees has committed any material breach of trust with
respect to any such fiduciary account, and the accountings for each such
fiduciary account are true and correct in all
14
material respects and accurately reflect the assets of such fiduciary
account in all material respects.
(xxxiv) 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 thereby.
(xxxv) No report or application filed by the Company or any of
its Subsidiaries with the FRB, the OCC, the FDIC, the OBRE, the OSBD, the
DBT or any other Regulator, as of the date it was filed or amended,
contained an 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 when made or failed to comply in all
material respects with the applicable requirements of the FRB, the OCC, the
FDIC, the OBRE, the OSBD, the DBT or such other Regulator, as the case may
be.
(xxxvi) Based upon current guidelines of the FRB, proceeds from
the sale of the Debentures will constitute "Tier 1" capital (as defined in
12 C.F.R. Part 225), subject to applicable regulatory restrictions on the
amount thereof that can be included in Tier 1 capital.
(xxxvii) Except to the extent that any of the following unlawful
actions or violations could not have a Material Adverse Effect, none of the
Offerors, the Subsidiaries or, to the knowledge of the Offerors, any other
person associated with or acting on behalf of the Offerors or any of the
Subsidiaries, including, without limitation, any director, officer, agent,
or employee of any of the Subsidiaries or the Company has, directly or
indirectly, while acting on behalf of such Offeror or Subsidiary (i) used
any corporate funds for unlawful contributions, gifts, entertainment, or
other unlawful expenses relating to political activity; (ii) made any
unlawful contribution to any candidate for foreign or domestic office, or
to any foreign or domestic government officials or employees or other
person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof or to foreign or domestic political parties or
campaigns from corporate funds, or failed to disclose fully any
contribution in violation of law; (iii) violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any other
payment of funds for either or both of the Offerors or a Subsidiary or
retained any funds which constitute a violation of any law, rule or
regulation or which was or is required to be disclosed in the Registration
Statement or the Prospectus pursuant to the requirements of the 1933 Act or
the 1933 Act Regulations.
(xxxviii) Neither the Company nor any Subsidiary has any
liability under any "pension plan", as defined in the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). The employee benefit
plans, including employee welfare benefit plans, of the Company and each of
the Subsidiaries (the "Employee Plans") have been operated in material
compliance with the applicable provisions of ERISA, the Internal Revenue
Code of 1986, as amended (the "Code"), all regulations, rulings and
announcements promulgated or issued thereunder and all other applicable
governmental laws and regulations (except to the extent such noncompliance
could not have a Material Adverse Effect. No reportable event under Section
4043(c) of ERISA has occurred with respect to any Employee Plan of the
Company or any of the Subsidiaries for which the reporting requirements
have not been waived by the Pension Benefit Guaranty Corporation (except to
the extent that the occurrence of such unwaived reportable event could not
have a Material Adverse Effect). No prohibited transaction under Section
406 of ERISA, for which an exemption does not apply, has occurred with
respect to any
15
Employee Plan of the Company or any of the Subsidiaries (except to the
extent that the occurrence of such non-exempt prohibited transaction could
not have a Material Adverse Effect). There are no pending or, to the
knowledge of the Offerors, threatened, claims by or on behalf of any
Employee Plan, by any employee or beneficiary covered under any such
Employee Plan or by any governmental authority or otherwise involving such
Employee Plans or any of their respective fiduciaries (other than for
routine claims for benefits). All Employee Plans that are group health
plans have been operated in material compliance with the group health plan
continuation coverage requirements of Section 4980B of the Code.
(xxxix) The Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's general or specific authorizations, (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 assets is permitted only in
accordance with management's general or specific authorization, and (D) the
recorded accounts for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto.
The books, records and accounts and systems of internal accounting controls
of the Company and its Subsidiaries comply in all material respects with
the requirements of Section 13(b)(2) of the 1934 Act.
(xl) Except as described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), and to the knowledge of the Offerors and the
Subsidiaries, there is no factual basis for any action, suit or other
proceeding involving the Company or the Subsidiaries or any of their
material assets for any failure of the Company or any of the Subsidiaries,
or any predecessor thereof, to comply with any requirements of federal,
state or local regulation relating to air, water, solid waste management,
hazardous or toxic substances, or the protection of health or the
environment; except where such action, suit or other proceeding could not
have a Material Adverse Effect. Except as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, in
the most recent Preliminary Prospectus) or as could not have a Material
Adverse Effect, none of the property owned or leased by the Company or any
of the Subsidiaries or their predecessors is contaminated with any waste or
hazardous substances, and neither the Company nor any of the Subsidiaries
may be deemed an "owner or operator" of a "facility" or "vessel" which
owns, possesses, transports, generates or disposes of a "hazardous
substance" as those terms are defined in Section 9601 of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. Section 9601 ET SEQ.
(xli) The Company and the Subsidiaries maintain insurance
covering in all material respects their properties, personnel and business.
Such insurance insures against such losses and risks as, in the judgment of
the executive officers of the Company, are adequate to protect in all
material respects the Company and the Subsidiaries and their businesses.
Neither the Company nor any of the Subsidiaries has received notice from
any insurer or agent of such insurer that substantial capital improvements
or other expenditures shall have to be made in order to continue such
insurance. All such insurance is outstanding and duly in force on the date
hereof and shall be outstanding and duly in force on the Closing Date and,
if applicable, the Option Closing Date, with such exceptions as would not
have a Material Adverse Effect.
(xlii) Neither the Company nor any Subsidiary has any agreement
or understanding with any person (A) concerning the future acquisition by
the Company or the Banks of a controlling interest in any entity or (B)
concerning the future acquisition by any person of a controlling interest
in the Company or any Subsidiary, in either case that is required
16
by the 1933 Act or the 1933 Act Regulations to be disclosed by the Company
that is not disclosed in the Prospectus.
3. OFFERING BY THE UNDERWRITERS.
After the Registration Statement becomes effective or, if the Registration
Statement is already effective, after this Agreement becomes effective, the
Underwriters propose to offer the Firm Preferred Securities for sale to the
public upon the terms and conditions set forth in the Prospectus. The
Underwriters may from time to time thereafter reduce the public offering price
and change the other selling terms, provided the proceeds to the Trust shall not
be reduced as a result of such reduction or change. Because the NASD is expected
to view the Preferred Securities as interests in a direct participation program,
the offering of the Preferred Securities is being made in compliance with the
applicable provisions of Rule 2810 of the NASD's conduct rules.
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by them (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS.
The Offerors jointly and severally covenant with the Underwriters as
follows:
(a) The Offerors shall use their best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the time
of execution of this Agreement, to become effective as promptly as possible. If
the Registration Statement has become or becomes effective pursuant to Rule 430A
and information has been omitted therefrom in reliance on Rule 430A, then, the
Offerors will prepare and file in accordance with Rule 430A and Rule 424(b)
copies of the Prospectus or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including the Prospectus) containing
all information so omitted and will provide evidence satisfactory to the
Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and, if requested by
you, shall promptly confirm such notice in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when the
Prospectus or any supplement to the Prospectus or any amended Prospectus
has been filed;
(ii) of the receipt of any comments or requests from the
Commission;
(iii) of any request of the Commission to amend or supplement the
Registration Statement, any Preliminary Prospectus or the Prospectus or for
additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, or suspending the
qualification of any of the Designated Preferred Securities for offering or
sale in any
17
jurisdiction or the institution or threat of institution of any proceedings
for any of such purposes. The Offerors shall use their best efforts to
prevent the issuance of any such stop order or of any other such order and
if any such order is issued, to cause such order to be withdrawn or lifted
as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time
without charge, as soon as available, as many copies as the Underwriters may
reasonably request of (i) the registration statement as originally filed and of
all amendments thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective, (ii) all exhibits
and documents filed therewith, (iii) all consents and certificates of experts in
executed form, (iv) the Preliminary Prospectus and all amendments and
supplements thereto, and (v) the Prospectus, and all amendments and supplements
thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Designated Preferred Securities as
contemplated herein and in the Trust Agreement and the Prospectus. The Offerors
shall not file any amendment to the registration statement as originally filed
or to the Registration Statement and shall not file any amendment thereto or
make any amendment or supplement to any Preliminary Prospectus or to the
Prospectus of which you shall not previously have been advised in writing and
provided a copy a reasonable time prior to the proposed filings thereof or to
which you or counsel for the Underwriters shall reasonably object. If it is
necessary, in the Company's reasonable opinion or in the reasonable opinion of
the Company's counsel, to amend or supplement the Registration Statement or the
Prospectus in connection with the distribution of the Designated Preferred
Securities, the Offerors shall forthwith amend or supplement the Registration
Statement or the Prospectus, as the case may be, by preparing and filing with
the Commission (provided the Underwriters or counsel for the Underwriters does
not reasonably object), and furnishing to you such number of copies as you may
reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Registration Statement or the Prospectus, as the case may be
(in form and substance satisfactory to you and counsel for the Underwriters). If
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus to correct an untrue statement of a material fact or
to include a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or if for any
reason it is necessary at any time to amend or supplement the Prospectus to
comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall,
subject to the second sentence of this subsection (d), forthwith at their cost
and expense amend or supplement the Prospectus by preparing and filing with the
Commission, and furnishing to you, such number of copies as you may reasonably
request of an amendment or amendments of, or a supplement or supplements to, the
Prospectus (in form and substance satisfactory to you and counsel for the
Underwriters) so that, as so amended or supplemented, the Prospectus shall not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the
Underwriters in order to qualify the Designated Preferred Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
you may reasonably request and shall continue such qualifications in effect so
long as may be advisable for distribution of the Designated Preferred
Securities; PROVIDED, HOWEVER, that the Offerors shall not be required to
qualify to do business as a foreign corporation or file a general consent to
service of process in any jurisdiction in connection with the foregoing. The
Offerors shall file such statements and reports as may be required by the laws
of each jurisdiction in which the Designated Preferred Securities have been
qualified as above. The Offerors will notify you immediately of, and
18
confirm in writing, the suspension of qualification of the Designated Preferred
Securities or any threat thereof of which they are aware in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the Preferred
Securities to be eligible for clearance and settlement through the facilities of
DTC.
(g) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than 16 months
after the Effective Date, a consolidated earnings statement of the Offerors in
reasonable detail, covering a period of at least 12 consecutive months beginning
after the effective date of the Registration Statement, conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner,
and only in the manner, specified in the Prospectus under the caption "Use of
Proceeds."
(i) For five years from the Effective Date, the Offerors shall furnish
to the Representatives copies of all reports and communications (financial or
otherwise) furnished by the Offerors to the holders of the Designated Preferred
Securities as a class, copies of all reports and financial statements filed with
or furnished to the Commission (other than portions for which confidential
treatment has been obtained from the Commission) or with any national securities
exchange or the Nasdaq National Market or other self-regulatory organization and
such other documents, reports and information concerning the business and
financial conditions of the Offerors as the Representatives may reasonably
request, other than such documents, reports and information for which the
Offerors has the legal obligation not to reveal to the Representatives.
(j) Without the prior written consent of the Representatives for a
period of 90 days from the Effective Date, the Offerors shall not, directly or
indirectly, offer for sale, sell or agree to sell or otherwise dispose of any
Designated Preferred Securities, any other beneficial interests in the assets of
the Trust or any securities of the Trust or the Company that are substantially
similar to the Designated Preferred Securities (other than the issuance to and
purchase by the Company of the Common Securities of the Trust), including any
guarantee of such beneficial interests or substantially similar securities, or
securities convertible into or exchangeable for or that represent the right to
receive any such beneficial interest or substantially similar securities, except
for the registration of the Designated Preferred Securities and the sales to the
Underwriters pursuant to this Agreement.
(k) The Offerors shall use their best efforts to cause the Designated
Preferred Securities to become quoted on the Nasdaq National Market, or in lieu
thereof a national securities exchange, and to remain so quoted, provided this
shall not prevent the Company from redeeming the Designated Preferred Securities
pursuant to the terms of the Trust Agreement. If the Designated Preferred
Securities are exchanged for Debentures, the Company shall use its best efforts
to have the Debentures promptly listed on a national securities exchange or
include them in a comparable automated quotation system on or in which the
Designated Preferred Securities are then listed or included and to have the
Debentures promptly registered under the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriters'
option to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriters shall elect to purchase, except as described in
the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any
action (or refrain from taking any action)
19
which will result in the Offerors or the Subsidiaries incurring any material
liability or obligation, direct or contingent, or enter into any material
transaction, except in the ordinary course of business, or take or refrain from
taking any action which will cause or result in any material adverse change in
the financial position, capital stock, or any material increase in long-term
debt, obligations under capital leases or short-term borrowings of the Offerors
and the Subsidiaries on a consolidated basis.
(m) Except as described in the Prospectus, the Offerors shall not, for
a period of 180 days after the date hereof, without the prior written consent of
the Representatives, purchase, redeem or call for redemption, or prepay or give
notice of prepayment (or announce any redemption or call for redemption, or any
repayment or notice of prepayment) of the Offerors' securities.
(n) The Offerors shall not take, directly or indirectly, any action
designed to result in or which constitutes or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of any security
of the Offerors in connection with the sale or resale of the Designated
Preferred Securities in violation of the Commission's rules and regulations,
including, but not limited to, Regulation M, and the Offerors are not aware of
any such action taken or to be taken by any affiliate of the Offerors.
(o) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Offerors will not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the
Offerors, the Subsidiaries or the offering of the Designated Preferred
Securities without your prior consent.
(p) The Offerors shall comply with all registration, filing and
reporting requirements of the 1934 Act for so long as the Preferred Securities
or the Debentures shall remain outstanding.
5. PAYMENT OF EXPENSES.
Whether or not this Agreement is terminated or the sale of the Designated
Preferred Securities to the Underwriters is consummated, the Company covenants
and agrees that it will pay or cause to be paid (directly or by reimbursement)
all costs and expenses incident to the performance of the obligations of the
Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, each Preliminary Prospectus, the Registration
Statement and the Prospectus and any amendments or supplements thereto, and the
printing, delivery and shipping of this Agreement and any other underwriting
documents (including, without limitation, selected dealers agreements);
(b) all fees, expenses and disbursements of the Offerors' counsel and
accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as you may
request, including all filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith;
(d) all fees and expenses incurred in connection with filings made
with the NASD;
(e) any applicable fees and other expenses incurred in connection with
the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on the Nasdaq National Market;
20
(f) the cost of furnishing to you copies of the initial registration
statements, any Preliminary Prospectus, the Registration Statement and the
Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated
Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution and delivery
of the Trust Agreement, the Indenture, the Guarantee and the Expense Agreement;
and
(j) all other costs and expenses incident to the performance of the
obligations of the Company hereunder and under the Trust Agreement that are not
otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
accountable out-of-pocket expenses in connection herewith or in contemplation of
the performance of your obligations hereunder, including without limitation
travel expenses, fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any investigation of the
Offerors and the Subsidiaries, or any preparation for the marketing, purchase,
sale or delivery of the Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the Firm
Preferred Securities and, following exercise, if any, of the Option, the Option
Preferred Securities, are subject, in your sole discretion, to the accuracy of
the representations and warranties and compliance with the agreements of the
Offerors herein as of the date hereof and as of the Closing Date (or in the case
of the Option Preferred Securities, if any, as of the Option Closing Date), to
the accuracy of the written statements of the Offerors made pursuant to the
provisions hereof, to the performance by the Offerors of their covenants and
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed prior
to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Offerors or the Representatives, shall be contemplated
by the Commission or any state authority. Any request on the part of the
Commission or
21
any state authority for additional information (to be included in the
Registration Statement or Prospectus or otherwise) shall have been disclosed to
you and complied with to your satisfaction and to the satisfaction of counsel
for the Underwriters.
(b) No Underwriter shall have advised the Company at or before the
Closing Date (and, if applicable, the Option Closing Date) that the Registration
Statement or any post-effective amendment thereto, or the Prospectus or any
amendment or supplement thereto, contains an untrue statement of a fact which,
in your opinion, is material or omits to state a fact which, in your opinion, is
material and is required to be stated therein or is necessary to make statements
therein (in the case of the Prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Trust Agreement, and the
Designated Preferred Securities, and the authorization and form of the
Registration Statement and the Prospectus, other than financial statements and
other financial data, and all other legal matters relating to this Agreement and
the transactions contemplated hereby or by the Trust Agreement shall be
satisfactory in all material respects to counsel for the Underwriters, and the
Offerors and the Subsidiaries shall have furnished to such counsel all documents
and information relating thereto that they may reasonably request to enable them
to pass upon such matters.
(d) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel for the Offerors, shall
have furnished to you their signed opinion, given under Maryland and other
applicable law, dated the Closing Date or the Option Closing Date, as the case
may be, in form and substance satisfactory to counsel for the Underwriters, to
the effect that:
(A) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Maryland, and
is duly registered as a bank holding company under the BHC Act. The
entities listed on Exhibit A are the only subsidiaries, direct or indirect,
of the Company except for Sentry Lease Equity Pool 2000-1, LLC and Summit
MFR Leasing, LLC, each of which is 60% owned by the Company. Each of the
Subsidiaries is validly existing and in active status or good standing, as
applicable, under the laws of its jurisdiction of incorporation or
organization, as the case may be. Each of the Company and the Subsidiaries
has full power (corporate or otherwise) and authority to own or lease its
properties and to conduct its business as such business is described in the
Prospectus and is currently conducted in all material respects.
(ii) The capital stock, the Debentures and Guarantee of the
Company and the equity securities of the Trust conform to the descriptions
thereof contained in the Prospectus in all material respects. The capital
stock of the Company authorized as of March 31, 2002 is as set forth under
the caption "Capitalization" in the Prospectus. The capital stock of the
Company has been duly authorized and validly issued, and is fully paid and
nonassesable except to the extent such shares may be deemed assessable
under 12 U.S.C. ss.1831o. The form of certificates to evidence the
Designated Preferred Securities has been approved by the Trust and is in
due and proper form and complies with all applicable requirements. To the
best of such counsel's knowledge, there are no outstanding rights, options
or warrants to purchase, no other outstanding securities convertible into
or exchangeable for, and no commitments, plans or arrangements to issue,
any shares of capital stock of the Company or equity securities of the
Trust, except as described in the Prospectus and except for stock options
granted to current or former directors, offices and employees of the
Company or the Subsidiaries and their respective predecessors.
22
(iii) The issuance, sale and delivery of the Designated Preferred
Securities and Debentures in accordance with the terms and conditions of
this Agreement and the Indenture have been duly authorized by all necessary
actions of the Offerors. All of the Designated Preferred Securities have
been duly and validly authorized and, when delivered and paid for in
accordance with this Agreement, will be duly and validly issued, fully paid
and nonassessable, and will conform in all material respects to the
description thereof in the Registration Statement, the Prospectus and will
conform with the description thereof in the Trust Agreement. The Designated
Preferred Securities have been approved for quotation on the Nasdaq
National Market subject to official notice of issuance. There are no
preemptive or other rights to subscribe for or to purchase, and other than
as disclosed in the Prospectus and as provided in Section F of Article 5 of
the Company's charter, no restrictions upon the voting or transfer of, any
equity securities of the Offerors or the Subsidiaries pursuant to the
corporate charter, articles of incorporation, by-laws or other governing
documents (including without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or, to the best of such counsel's knowledge,
any agreement or other instrument to which either Offeror or any of the
Subsidiaries is a party or by which either Offeror or any of the
Subsidiaries may be bound.
(iv) The Offerors have all requisite corporate and trust power to
enter into and perform their obligations under this Agreement, and this
Agreement has been duly and validly authorized, executed and delivered by
the Offerors and constitutes the legal, valid and binding obligations of
the Offerors enforceable in accordance with its terms, except as the
enforcement hereof or thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting creditors'
rights generally, and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and certain remedies
may not be available in the case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and the Guarantee
has been duly qualified under the Trust Indenture Act, has been duly
authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable against the Company
in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of general
principles of equity.
(vi) The Debentures have been duly authorized, executed, and
delivered by the Company and are legal, valid and binding obligations of
the Company enforceable against the Company in accordance with their terms,
subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies
of creditors generally and of general principles of equity. The holders of
the Debentures are entitled to the benefits of the Indenture pertaining to
holders of Debentures.
(vii) The Expense Agreement has been duly authorized, executed
and delivered by the Company, and is a valid and legally binding obligation
of the Company enforceable against the Company in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies
of creditors generally and of general principles of equity.
(viii) To the best knowledge of such counsel, after due inquiry,
neither of the Offerors nor any of the Subsidiaries is in breach or
violation of, or default under, with or without notice or lapse of time or
both, its corporate charter, articles of incorporation, by-laws or
governing document (including without limitation, the Trust Agreement). The
execution, delivery and performance of this Agreement and the consummation
of the transactions
23
contemplated by this Agreement, the Trust Agreement, the Indenture, the
Guarantee or the other agreements contemplated hereby or thereby do not and
will not conflict with, result in the creation or imposition of any
material lien, claim, charge, encumbrance or restriction upon any property
or assets of the Offerors or the Subsidiaries or the Designated Preferred
Securities pursuant to, or constitute a breach or violation of, or
constitute a default under, with or without notice or lapse of time or
both, any of the terms, provisions or conditions of the charter, articles
of incorporation, by-laws or other governing document (including without
limitation, the Trust Agreement) of the Offerors or the Subsidiaries, or to
the best of such counsel's knowledge, any material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease, franchise,
license or any other agreement or instrument to which either Offeror or the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound or any order, decree, judgment, franchise, license,
material Permit, rule or regulation of any court, arbitrator, government,
or governmental agency or instrumentality, domestic or foreign, known to
such counsel having jurisdiction over the Offerors or the Subsidiaries or
any of their respective properties which, in each case, is material to the
Offerors and the Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of, or filing, registration or qualification
with, any person (including, without limitation, any court, governmental
body or authority) is required in connection with the transactions
contemplated by this Agreement with respect to the purchase and
distribution of the Designated Preferred Securities by the Underwriters.
(ix) To the best of such counsel's knowledge, holders of
securities of the Offerors either do not have any right that, if exercised,
would require the Offerors to cause such securities to be included in the
Registration Statement or have waived such right. To the best of such
counsel's knowledge, neither the Company nor any of the Subsidiaries is a
party to any agreement or other instrument which grants rights for or
relating to the registration of any securities of the Offerors.
(x) To the best of such counsel's knowledge, (ii) no action, suit
or proceeding at law or in equity is pending or threatened to which the
Offerors or the Subsidiaries is or is threatened to be made a party, and
(ii) no action, suit or proceeding is pending or threatened against or
affecting the Offerors or the Subsidiaries or any of their properties,
before or by any court or governmental official, commission, board or other
administrative agency, authority or body, or any arbitrator, wherein an
unfavorable decision, ruling or finding could reasonably be expected to
have a material adverse effect on the consummation of this Agreement or the
issuance and sale of the Designated Preferred Securities as contemplated
herein or which is required to be disclosed in the Registration Statement
or the Prospectus and is not so disclosed.
(xi) No authorization, approval, consent or order of or filing,
registration or qualification with, any person (including without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus, except such as
have been obtained under the 1933 Act, the Trust Indenture Act and the
Nasdaq National Market with respect to listing matters, and except such as
may be required under state securities laws or Interpretations or Rules of
the NASD in connection with the purchase and distribution of the Designated
Preferred Securities by the Underwriters, as to which such counsel need
express no opinion.
(xii) Each of the Registration Statement, the Prospectus and any
amendments or supplements thereto (other than the exhibits, financial
statements or other financial data included therein or omitted therefrom
and Underwriters' Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the
24
requirements of the 1933 Act and the 1933 Act Regulations as of their
respective dates of effectiveness or filing.
(xiii) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character required to
be disclosed in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not so disclosed or
filed.
(xiv) The statements under the captions "Risk Factors",
"Description of the Trust", "Description of the Preferred Securities",
"Description of the Debentures", "Description of the Guarantee",
"Relationship Among the Preferred Securities, the Debentures and the
Guarantee", "Federal Income Tax Consequences", and "ERISA Considerations",
and "Supervision and "Regulation", "Legal Proceedings" and "Merger-related
Bylaw Provisions" in "Business" and "Employment Agreements" in "Management"
in the Prospectus, insofar as such statements constitute a description of
legal or regulatory matters, documents or instruments referred to therein,
are accurate descriptions of the matters purported to be summarized therein
in all material respects and fairly present the information called for with
respect to such legal or regulatory matters, documents and instruments.
(xv) Such counsel has been advised by the staff of the Commission
that the Registration Statement has become effective under the 1933 Act;
any required filing of the Prospectus pursuant to Rule 424(b) has been made
within the time period required by Rule 424(b); to the best of such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for a stop order
are pending or threatened by the Commission.
(xvi) Except as disclosed in the Prospectus and provided in the
Company's bylaws, to such counsel's knowledge, after due inquiry, there are
no contractual encumbrances, restrictions or requirements, or material
legal restrictions or requirements required to be disclosed on the ability
of the Subsidiaries (A) to pay dividends or make any other distributions on
its capital stock or to pay indebtedness owed to the Offerors, (B) to make
any loans or advances to, or investments in, the Offerors (except as may be
restricted by law or regulation in the content of transactions between or
among affiliated parties) or (C) to transfer any of its property or assets
to the Offerors. Except as described in the Prospectus (or, if the
Prospectus is not in existence, in the most recent Preliminary Prospectus)
and as provided in the Company's bylaws, to the knowledge of such counsel,
there are no restrictions, encumbrances or requirements affecting the
payment of dividends or the making of any other distributions on any of the
capital stock of the Company required to be described in the Prospectus
(or, if the Prospectus is not in existence, in the most recent Preliminary
Prospectus).
In giving the above opinion, such counsel may state that, insofar as such
opinion involves factual matters, they have relied upon certificates of officers
of the Offerors including, without limitation, certificates as to the identity
of any and all material contracts, indentures, mortgages, deeds of trust, loans
or credit agreements, notes, leases, franchises, licenses or other agreements or
instruments, and all material permits, easements, consents, licenses, franchises
and government regulatory authorizations, for purposes of paragraphs (viii) and
(xvii) hereof, and certificates of public officials. In giving such opinion,
such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special
Delaware counsel to the Offerors as to certain matters relating to the Trust and
the Designated Preferred Securities which are governed by Delaware law.
25
Such counsel shall also confirm that, in connection with the preparation of
the Registration Statement and Prospectus, such counsel has participated in
conferences with officers and representatives of the Offerors and with their
independent public accountants and with you and your counsel, at which
conferences such counsel made inquiries of such officers, representatives and
accountants and discussed in detail the contents of the Registration Statement
and the Prospectus and such counsel has no reason to believe (A) that the
Registration Statement or any amendment thereto (except for the financial
statements and related schedules and statistical data and exhibits, included
therein or omitted therefrom or Underwriters' Information, as to which such
counsel need express no opinion), at the time the Registration Statement or any
such amendment became effective, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or (B) that the
Prospectus or any amendment or supplement thereto (except for the financial
statements and related schedules and statistical data and exhibits, included
therein or omitted therefrom or Underwriters' Information, as to which such
counsel need express no opinion), at the time the Registration Statement became
effective (or, if the term "Prospectus" refers to the prospectus first filed
pursuant to Rule 424(b) of the 1933 Act Regulations, at the time the Prospectus
was issued), at the time any such amended or supplemented Prospectus was issued,
at the Closing Date and, if applicable, the Option Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state
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 or (C) that there is any amendment to the Registration Statement
required to be filed that has not already been filed.
(e) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to such counsel, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act
and, under the Trust Agreement and the Delaware Business Trust Act, has the
trust power and authority to conduct its business as described in the
Prospectus.
(ii) The Trust has all requisite trust power to enter into and
perform its obligations under this Agreement. The Trust Agreement is a
legal, valid and binding agreement of the Company, as sponsor, and the
Trustees, and is enforceable against the Company, as sponsor, and the
Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Business Trust
Act, this Agreement and its execution and delivery by the Trust, and the
performance by the Trust of its obligations thereunder, have been
authorized by all requisite trust action on the part of the Trust.
(iv) The issuance, sale and delivery of the Designated Preferred
Securities in accordance with the Trust Agreement have been duly authorized
by all necessary action of the Trust. The Designated Preferred Securities
have been duly and validly authorized by the Trust Agreement, and when
issued and sold in accordance with the Trust Agreement, the Designated
Preferred Securities will be, subject to the qualifications set forth in
paragraph (v) below, fully paid and nonassessable beneficial interest in
the assets of the Trust and entitled to the benefits of the Trust
Agreement. The form of certificate to evidence the Designated Preferred
Securities has been approved by the Trust and is in due and proper form and
complies with all applicable requirements of the Delaware Business Trust
Act.
(v) Holders of Designated Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to shareholders of
26
private, for-profit corporations organized under the General Corporation
Law of the State of Delaware. Such opinion may note that the holders of
Designated Preferred Securities may be obligated to make payments as set
forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Preferred Securities is not
subject to preemptive rights or other similar rights.
(vii) The issuance and sale by the Trust of the Designated
Preferred Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation of the
transactions contemplated by this Agreement, do not violate (a) the Trust
Agreement, or (b) any applicable Delaware law, rule or regulation.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(f) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLC, counsel for
the Underwriters, shall have furnished you their signed opinion, dated the
Closing Date or the Option Closing Date, as the case may be, with respect to the
sufficiency of all corporate procedures and other legal matters relating to this
Agreement, the validity of the Designated Preferred Securities, the Registration
Statement, the Prospectus and such other related matters as you may reasonably
request and there shall have been furnished to such counsel such documents and
other information as they may request to enable them to pass on such matters. In
giving such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLC may
rely as to matters of fact upon statements and certifications of officers of the
Offerors and of other appropriate persons and may rely as to matters of law,
other than law of the United States and the State of Illinois, and upon the
opinions of Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P. and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
described herein.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representatives shall have received
from KPMG LLP a letter, dated the date of this Agreement and the Closing Date
(and, if applicable, the Option Closing Date), respectively, in form and
substance satisfactory to the Representatives, confirming that KPMG LLP is an
independent public accountants with respect to the Company and the Subsidiaries,
within the meaning of the 1933 Act and the 1933 Act Regulations and stating in
effect that.
(i) In its opinion, the consolidated financial statements of the
Company audited by them and included in the Registration Statement comply
as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1934 Act and the related rules and
regulations adopted by the SEC.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information", inquiries of officials of the Company
responsible for financial and accounting matters, which procedures do not
constitute an audit in accordance with U.S. generally accepted auditing
standards, nothing came to its attention that caused it to believe that,
with respect to the three-month period ended March 31, 2002 included in the
Registration Statement, and the three-month
27
and six-month periods ended June 30, 2002 not included in the Registration
Statement that (i) any material modifications should be made to such
unaudited consolidated financial statements for them to be in conformity
with accounting principles generally accepted in the United State of
America and (ii) do not comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act, the 1934 Act and the
related rules and regulations adopted by the SEC.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company,
inspection of the minute books of the Company since the date of the latest
audited financial statements of the Company, included in the Registration
Statement, inquiries of officials of the Company responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to its attention that caused it to
believe that:
(A) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the consolidated
capital stock of the Company, any increase in the consolidated debt or
long-term debt of the Company or allowance for loan losses, or any
decreases in consolidated total assets, loans, investments, deposits,
consolidated stockholders' equity of the Company, or any changes, decreases
or increases in other items specified by the Representatives, in each case
as compared with amounts shown in the latest consolidated statement of
financial condition of the Company, included in the Registration Statement
except in each case for changes, increases or decreases which the
Registration Statement specifically discloses have occurred or may occur or
which are described in such letter except that the consolidated capital
stock of the Company increased from 17,564,170 shares as of March 31, 2002
to 17,568,067 shares as of June 30, 2002; and
(B) for the period from the date of the latest consolidated
financial statements of the Company included in the Registration Statement
to the specified date referred to in clause (iii)(A), there were any
decreases in the consolidated interest income, net interest income or net
income of the Company or in the per share amount of net income of the
Company or any changes, decreases or increases in other items specified by
the Representatives as compared with the comparable period of the preceding
year and with any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases which the
Registration Statement discloses have occurred or may occur, or which are
described in such letter.
(iv) For purposes of such letter, they have also read the
following sections of the registration statement: (a) "Summary Consolidated
Financial and Other Data", and (b) "Capitalization", and they have
performed the following additional procedures:
(A) They have compared the information included under the
heading "Summary Consolidated Financial and Other Data" with the
requirements of items 301 and 503(d) of Regulation S-K and also have
inquired of certain officials of the Company who have responsibility for
financial and accounting matters whether this information conforms in all
material respects with the disclosure requirements of items 301 and 503(d)
of Regulation S-K. Based upon the foregoing procedures, nothing has come to
their attention that has caused them to believe that this information does
not conform in all material respects with the disclosure requirements of
items 301 and 503(d) of Regulation S-K provided that they are not obligated
to
28
make any comment as to the appropriateness of the assumptions used in
determining the amount of rental expense included in fixed charges.
(B) Under the heading "Capitalization," they have compared
the amounts and numbers of shares listed under the caption "Actual" with
the balances in the accounting records of the Company as of March 31, 2002,
and have found them to be in agreement. They have compared the amounts and
numbers of shares listed under the caption "Actual" adjusted for the
issuance of the debentures to be offered by means of the Registration
Statement and for the proposed use of the proceeds thereof as described
under "Use of Proceeds" (without making any comment regarding the
reasonableness of the "Use of Proceeds" or whether such use will actually
take place) with the amounts and numbers of shares shown under the caption
"As Adjusted" and have found such amounts and numbers of shares to be in
agreement. They have compared the description of the securities and the
information included in the notes to the table headed "Capitalization" with
the corresponding descriptions and information in the Company's
consolidated financial statements, including the notes thereto included in
the Registration Statement, and have found such descriptions and
information to be in agreement.
(v) In addition to the audit referred to in their report included
in the Registration Statement and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs (ii)
and (iii) above, they have carried out certain specified procedures, not
constituting an audit in accordance with U.S. generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the
general accounting records and consolidated financial statements of the
Company which appear in the Registration Statement, and have compared such
amounts, percentages and financial information with the accounting records
and the material derived from such records and consolidated financial
statements of the Company and have found them to be in agreement.
In the event that the letter to be delivered on the date hereof, on the
Closing Date (and, if applicable, any Option Closing Date) referred to above set
forth any such changes, decreases or increases as specified in clauses (iii)(A)
or (iii)(B) above, or any exceptions from such agreement specified in clause
(iv) or (v) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letter do not (x) reflect a material adverse change in the items specified in
clause (iii)(A) above as compared with the amounts shown in the latest
consolidated statement of financial condition of the Company included in the
Registration Statement, (y) reflect a material adverse change in the items
specified in clause (iii)(B) above as compared with the corresponding periods of
the prior year or other period specified by the Representatives, or (z) reflect
a material adverse change in items specified in clause (iv) or (v) above from
the amounts shown in the Preliminary Prospectus distributed by the Underwriters
in connection with the offering contemplated hereby or from the amounts shown in
the Prospectus.
(h) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received certificates of the chief executive officer and the
chief financial and accounting officer of the Company, which certificates shall
be deemed to be made on behalf of the Company, dated as of the Closing Date and,
if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (i) the representations and
warranties of the Company set forth in Section 2 hereof are accurate as of the
Closing Date and, if applicable, the Option Closing Date, and that each of the
Offerors has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to such Closing Date and, if
applicable, the Option Closing Date; (ii) since the
29
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any material adverse change in the
condition (financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Company and the Subsidiaries on a consolidated
basis; (iii) since such dates there has not been any material transaction
entered into by the Offerors or the Subsidiaries other than transactions in the
ordinary course of business; and (iv) they have carefully examined the
Registration Statement and the Prospectus as amended or supplemented and nothing
has come to their attention that would lead them to believe that either the
Registration Statement or the Prospectus, or any amendment or supplement thereto
as of their respective effective or issue dates, contained, and the Prospectus
as amended or supplemented at such Closing Date (and, if applicable, the Option
Closing Date), contains any untrue statement of a material fact, or omits to
state a material fact required to be stated therein or necessary in order to
make the statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading; and (v) covering such
other matters as you may reasonably request. The officers' certificate of the
Company shall further state that no stop order affecting the Registration
Statement is in effect or, to their knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received a certificate of an authorized representative of the
Trust to the effect that to the best of his or her knowledge based upon a
reasonable investigation, the representations and warranties of the Trust in
this Agreement are true and correct as though made on and as of the Closing Date
(and, if applicable, the Option Closing Date); the Trust has complied with all
the agreements and satisfied all the conditions required by this Agreement to be
performed or satisfied by the Trust on or prior to the Closing Date, and since
the most recent date as of which information is given in the Prospectus, except
as described in the Prospectus, the Trust has not incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise) of the Trust.
(j) On the Closing Date, all conditions precedent under each of the
Trust Agreement, the Guarantee, the Indenture and the Expense Agreement shall
have been satisfied or duly waived, and you shall have received copies of all
documentation required to evidence same.
(k) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities, shall not have objected to the Underwriters'
participation in such offering.
(l) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received the consent and waiver of LaSalle Bank National
Association under the Revolving Loan Agreement dated as of July 2, 1999, as
amended, and related documents to the execution, delivery and performance of,
and the consummation of the transactions contemplated on the Closing Date or the
Option Closing Date, as the case may be, by this Agreement, the Trust Agreement,
the Indenture, the Guarantee or the other agreements contemplated hereby or
thereby.
(a) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to you and counsel for the Underwriters
all such other documents, certificates and opinions as they have reasonably
requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
30
If any of the conditions referred to in this Section 6 shall not have been
fulfilled when and as required by this Agreement, this Agreement and all of the
Underwriters' obligations hereunder may be terminated by you on notice to the
Company at, or at any time before, the Closing Date or the Option Closing Date,
as applicable. Any such termination shall be without liability of the
Underwriters to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter, each of its directors, officers and agents, and each
person, if any, who controls any Underwriter within the meaning of the 1933 Act,
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorneys fees and expenses), joint or
several, arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact made by or on behalf of the Company or the Trust
contained in Section 2 of this Agreement (or any certificate delivered by or on
behalf of the Company or the Trust pursuant to Sections 6(h), 6(i) and 6(l)
hereto) or in the registration statement as originally filed or the Registration
Statement, any Preliminary Prospectus, the Prospectus, or in any amendment or
supplement thereto, (ii) any omission or alleged omission to state a material
fact in the registration statement as originally filed or the Registration
Statement, any Preliminary Prospectus, the Prospectus, or in any amendment or
supplement thereto, required to be stated therein or necessary to make the
statements therein not misleading, and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation
and attorneys fees), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, or in any amendment or supplement thereto, or arising
out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (iii) the enforcement of this indemnification provision or the
contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any reasonable legal or other expenses as incurred, but in
no event less frequently than 30 days after each invoice is submitted, incurred
by them in connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; PROVIDED, HOWEVER, that the Offerors shall not be liable in any such
case to the extent, but only to the extent, that any such losses, claims,
damages, liabilities and expenses arise out of or are based upon any untrue
statement or omission or allegation thereof that has been made therein or
omitted therefrom in reliance upon and in conformity with the Underwriters'
Information. The foregoing indemnity agreement is in addition to any liability
the Company or the Trust may otherwise have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each Offeror, each of the Company's directors, each of the
Company's officers who signed the Registration Statement, each of the
Administrative Trustees of the Trust and each person, if any, who controls an
Offeror within the meaning of the 1933 Act, to the same extent as required by
the foregoing indemnity from the Company to each Underwriter, but only with
respect to the Underwriters' Information. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to any
such indemnified party.
(b) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; PROVIDED,
31
HOWEVER, that the failure so to notify the indemnifying party shall not relieve
it from any liability which it may have to an indemnified party otherwise than
under such paragraph, and further, shall only relieve it from liability under
such paragraph to the extent prejudiced thereby. Any indemnified party or any
such controlling person shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such indemnified party or such
controlling person unless (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) the indemnifying party has
failed to assume the defense or to employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both such indemnified party or such controlling
person and the indemnifying party and such indemnified party or such controlling
person shall have been advised by such counsel that there may be one or more
legal defenses available to it that are different from or in addition to those
available to the indemnifying party (in which case, if such indemnified party or
controlling person notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party or such controlling person) it being
understood, however, that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys at any time and for all such indemnified party and
controlling persons, which firm shall be designated in writing by the
indemnified party (and, if such indemnified parties are Underwriters, by you, as
Representatives). Each indemnified party and each controlling person, as a
condition of such indemnity, shall use reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. The indemnifying
party shall not be liable for any settlement of any such action effected without
its written consent, but if there shall be a final judgment for the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of each
indemnified party, settle, compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnity may be sought hereunder (whether or not such indemnified party or any
person who controls such indemnified party within the meaning of the 1933 Act is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes a release of each such indemnified party
reasonably satisfactory to each such indemnified party and each such controlling
person from all liability arising out of such claim, action, suit or proceeding
or unless the indemnifying party shall confirm in a written agreement with each
indemnified party, that notwithstanding any federal, state or common law, such
settlement, compromise or consent shall not alter the right of any indemnified
party or controlling person to indemnification or contribution as provided in
this Agreement.
(c) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable
32
considerations. The relative benefits received by the Offerors on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Designated Preferred
Securities (before deducting expenses) received by the Offerors bear to the
total underwriting discounts, commissions and compensation received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of 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 untrue statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriters has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls an Underwriter
within the meaning of the 1933 Act shall have the same rights to contribution as
such Underwriter, and each person who controls an Offeror within the meaning of
the 1933 Act, each officer and trustee of an Offeror who shall have signed the
Registration Statement and each director of an Offeror shall have the same
rights to contribution as the Offerors subject in each case to the preceding
sentence. The obligations of the Offerors under this paragraph (d) shall be in
addition to any liability which the Offerors may otherwise have and the
obligations of the Underwriters under this paragraph (d) shall be in addition to
any liability that the Underwriters may otherwise have.
(d) The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Offerors set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
an Underwriter or by or on behalf of the Offerors, or such directors, trustees
or officers (or any person controlling an Offeror), (ii) acceptance of any
Designated Preferred Securities and payment therefor hereunder and (iii) any
termination of this Agreement. A successor of any Underwriter or of an Offeror,
such directors, trustees or officers (or of any person controlling an
Underwriter or an Offeror) shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 7.
(c) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust under
this Section 7.
8. TERMINATION.
You shall have the right to terminate this Agreement at any time, and if
requested by you, shall confirm such termination in writing, at or prior to the
Closing Date or, with respect to the Underwriters'
33
obligation to purchase the Option Preferred Securities, at any time at or prior
to the Option Closing Date, without liability on the part of the Underwriters to
the Offerors, if:
(a) Either of the Offerors shall have failed, refused, or been unable
to perform any agreement on its part to be performed under this Agreement, or
any of the conditions referred to in Section 6 shall not have been fulfilled,
when and as required by this Agreement;
(b) Either of the Offerors or any of the Subsidiaries shall have
sustained any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree which in the
judgment of the Representatives materially impairs the investment quality of the
Designated Preferred Securities;
(c) There has been since the respective dates as of which information
is given in the Registration Statement or the Prospectus, any materially adverse
change in, or any development which in your reasonable judgment is reasonably
likely to have a Material Adverse Effect, whether or not arising in the ordinary
course of business;
(d) There has occurred any outbreak or escalation of hostilities or
other calamity or crisis (including, without limitation, an act of terrorism) or
material change in general economic, political or financial conditions, or
internal conditions, the effect of which on the financial markets of the United
States is such as to make it, in your reasonable judgment, impracticable to
market the Designated Preferred Securities or enforce contracts for the sale of
the Designated Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by any of said exchanges or
market system or by the Commission or any other governmental authority; or
(f) A banking moratorium shall have been declared by any federal, New
York, Illinois, Oklahoma or Texas authority; or
(d) Any action shall have been taken by any government in respect of
its monetary affairs which, in your reasonable judgment, has a material adverse
effect on the United States securities markets so as to make it, in your
reasonable judgment, impracticable to market the Designated Preferred Securities
or to enforce contracts for the sale of the Designated Preferred Securities.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. DEFAULT OF UNDERWRITERS.
If any Underwriter or Underwriters shall default in its or their
obligations to purchase Designated Preferred Securities hereunder, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Designated Preferred Securities which
such defaulting Underwriter or Underwriters agreed but failed to purchase;
PROVIDED, HOWEVER, that the non-defaulting Underwriters shall be under no
obligation to purchase such Designated Preferred Securities if the aggregate
number of Designated Preferred Securities to be purchased by such non-defaulting
Underwriters shall exceed 110% of the aggregate underwriting commitments set
forth in Schedule I hereto, and provided further, that no non-defaulting
Underwriter shall be obligated to purchase
34
Designated Preferred Securities to the extent that the number of such Designated
Preferred Securities is more than 110% of such Underwriter's underwriting
commitment set forth in Schedule I hereto.
In the event that the non-defaulting Underwriters are not obligated under
the above paragraph to purchase the Designated Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representatives may in its discretion arrange for one or more of the
Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representatives do not arrange for the purchase of such
Designated Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representatives to purchase such Designated Preferred
Securities on such terms.
In the event that the Representatives or the Company does not arrange for
the purchase of any Designated Preferred Securities to which a default relates
as provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Preferred Securities
of a defaulting Underwriter or Underwriters as provided in this Section 9, (i)
you shall have the right to postpone the Closing Date for a period of not more
than five full business days, in order to effect any changes that, in the
opinion of counsel for the Underwriters or the Company, may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file any amendments
to the Registration Statement or supplements to the Prospectus which, in its
opinion, may thereby be made necessary and (ii) the respective numbers of
Designated Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of any liability it may have for damages
occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 9 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 5 and except for the provisions of Section 7.
10. EFFECTIVE DATE OF AGREEMENT.
If the Registration Statement is not effective at the time of execution of
this Agreement, this Agreement shall become effective on the Effective Date at
the time the Commission declares the Registration Statement effective. The
Company shall immediately notify the Underwriters when the Registration
Statement becomes effective.
If the Registration Statement is effective at the time of execution of this
Agreement, this Agreement shall become effective at the earlier of 11:00 a.m.
St. Louis time, on the first full business day following the day on which this
Agreement is executed, or at such earlier time as the Representatives shall
release the Designated Preferred Securities for initial public offering. The
Representatives shall notify the Offerors immediately after they have taken any
action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may be
terminated by the Offerors, by notifying you or by you, as Representatives of
the several Underwriters, by notifying either Offeror, except that the
provisions of Sections 5 and 7 shall at all times be effective.
35
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
The representations, warranties, indemnities, agreements and other
statements of the Offerors and their officers and trustees set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Offerors or controlling persons
of either Offeror, or by or on behalf of the Underwriters or controlling persons
of the Underwriters or any termination or cancellation of this Agreement and
shall survive delivery of and payment for the Designated Preferred Securities.
12. NOTICES.
Except as otherwise provided in this Agreement, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand, mailed by registered or certified mail, return
receipt requested, or transmitted by any standard form of telecommunication and
confirmed. Notices to Offerors shall be sent to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇ (with a copy to Silver, ▇▇▇▇▇▇▇▇ &
▇▇▇▇, L.L.P., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.) and notices to the Underwriters shall be sent to
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ (with a copy to ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, Esq.). In all
dealings with the Company under this Agreement, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company,
Incorporated shall act as representative of and on behalf of the several
Underwriters, and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of the Underwriters, made or
given by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated on behalf of the Underwriters,
as if the same shall have been made or given in writing by the Underwriters.
13. PARTIES.
The Agreement herein set forth is made solely for the benefit of the
Underwriters and the Offerors and, to the extent expressed, directors, trustees
and officers of the Offerors, any person controlling the Offerors or the
Underwriters, and their respective successors and assigns. No other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, in his status as such
purchaser, from the Underwriters of the Designated Preferred Securities.
14. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Missouri,
without giving effect to the choice of law or conflicts of law principles
thereof.
15. AUTHORITY.
Any certificate signed by an authorized officer of the Company or the Trust
and delivered to the Representatives or to counsel for the Underwriters pursuant
to this Agreement shall be deemed a representation and warranty by the Company
and the Trust to the Underwriters as to the matters covered thereby.
36
16. COUNTERPARTS.
This Agreement may be executed by facsimile and in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
SIGNATURES APPEAR ON THE NEXT PAGE
37
If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
MB FINANCIAL, INC.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
MB FINANCIAL CAPITAL TRUST I
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
CONFIRMED AND ACCEPTED,
as of [_______________], 2002
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
For itself and as a Representative of the several
Underwriters named in Schedule I hereto.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
For itself and as a Representative of the several
Underwriters named in Schedule I hereto.
38
▇▇▇▇ ▇▇▇▇▇▇ INVESTMENTS, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
For itself and as a Representative of the several
Underwriters named in Schedule I hereto.
SANDLER ▇'▇▇▇▇▇ & PARTNERS, L.P.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
For itself and as a Representative of the several
Underwriters named in Schedule I hereto.
39
SCHEDULE I
UNDERWRITER NUMBER OF SECURITIES
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated....................................
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Incorporated.........................................
▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc................................................
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ & Partners, L.P. ...........................................
Total..............................................................2,080,000
EXHIBIT A
LIST OF SUBSIDIARIES
▇▇▇▇▇▇ Centre Bancshares Inc.
▇▇▇▇▇▇ Centre National Bank (Texas)
Ashland Management Agency
Coal City Capital Trust I
Manufacturers Deferred Exchange Corporation
Manufacturers Community Development Corporation
MB 1200 Corporation
MB Financial Bank, N.A.
MB Financial Insurance Agency, Inc.
Union Bank N.A. (Oklahoma)
