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EXHIBIT 1.1
$25,000,000 PREFERRED SECURITIES
MBHI CAPITAL TRUST I
_____% CUMULATIVE PREFERRED SECURITIES
(LIQUIDATION AMOUNT OF $25 PER PREFERRED SECURITY)
UNDERWRITING AGREEMENT
May ___, 2000
Xxxx Xxxxxx Investments, Inc.
As Representative of the several Underwriters
named in Schedule A
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Midwest Banc Holdings, Inc., a Delaware corporation (the "Company"), and
its subsidiary, Midwest Banc Capital Trust I, a statutory business trust
organized under the Delaware Business Trust Act, as amended (the "Delaware Act")
(the "Trust" and, together with the Company, the "Offerors"), propose, subject
to the terms and conditions stated herein, to issue and sell to you (the
"Underwriters"), an aggregate of $25,000,000, representing 1,000,000 securities
of the Trust's _____% Cumulative Preferred Securities, with a liquidation
preference of $25.00 per preferred security (the "Preferred Securities"). The
Offerors propose that the Trust issue the Preferred Securities pursuant to a
Trust Agreement, as amended and restated, among Wilmington Trust Company, as
Property Trustee and Delaware Trustee, the administrative trustees named therein
(the "Administrative Trustees") and the Company (the "Trust Agreement"). The
Preferred Securities will be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption and otherwise (the
"Guarantee") pursuant to a Guarantee Agreement (the "Guarantee Agreement"), to
be dated May ___, 2000, between the Company and Wilmington Trust Company, as
trustee (the "Guarantee Trustee"), and entitled to the benefits of certain
backup undertakings described in the Prospectus (as defined herein) with respect
to the Company's agreement pursuant to the Expense Agreement (as defined herein)
to pay all expenses relating to administration of the Trust.
The proceeds of the sale of the Preferred Securities will be used to
purchase junior subordinated deferrable interest debentures (the "Junior
Subordinated Debentures") issued by the Company pursuant to an Indenture, to be
dated May ___, 2000, between the Company and Wilmington Trust Company, as
trustee (the "Indenture").
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File Nos. 333-36564 and
333-36564-01) and a related preliminary prospectus for the registration of the
Preferred Securities, the Guarantee
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and the Junior Subordinated Debentures, under the Securities Act of 1933, as
amended (the "Act") and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations thereunder. The registration
statement, as amended, at the time it was declared effective, including the
information (if any) deemed to be part thereof pursuant to Rule 430A under the
Act, is herein referred to as the "Registration Statement." The form of
prospectus first filed by the Offerors with the Commission pursuant to Rules
424(b) and 430A under the Act is referred to herein as the "Prospectus." Each
preliminary prospectus included in the Registration Statement prior to the time
it becomes effective or filed with the Commission pursuant to Rule 424(a) under
the Act is referred to herein as a "Preliminary Prospectus." If the Company
elects to rely on Rule 434 of the Act, all references to "Prospectus" shall be
deemed to include, without limitation, the form of prospectus and the term
sheet, taken together, provided to the Underwriters by the Company in accordance
with Rule 434 of the Act ("Rule 434 Prospectus"). Any registration statement
(including any amendment or supplement thereto or information which is deemed
part thereof) filed by the Company under Rule 462(b) ("Rule 462(b) Registration
Statement") shall be deemed to be part of the "Registration Statement" as
defined herein, and any prospectus (including any amendment or supplement
thereto or information which is deemed part thereof) included in such
registration statement shall be deemed to be part of the "Prospectus," as
defined herein, as appropriate. The Securities Exchange Act of 1934, as amended,
is referred to herein as the "Exchange Act." Any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Form S-3 under the
Act (the "Incorporated Documents"), as of the date of such Preliminary
Prospectus or Prospectus, as the case may be. Any document filed by either the
Company or the Trust under the Exchange Act after the effective date of the
Registration Statement or the date of the Prospectus and incorporated by
reference in the Prospectus shall be deemed to be included in the Registration
Statement and the Prospectus as of the date of such filing. Copies of the
Registration Statement, including all exhibits thereto, together with copies of
all documents incorporated by reference therein, any amendments thereto and all
Preliminary Prospectuses have been delivered to you.
The Offerors hereby confirm their agreement with respect to the purchase of
the Preferred Securities by the Underwriters as follows:
Section 1. Representations and Warranties of the Offerors. (a) The Offerors
jointly and severally represent and warrant to, and agree with, each of the
Underwriters that:
(i) The Registration Statement has been declared effective under the
Act, and no post-effective amendment to the Registration Statement has been
filed with the Commission as of the date of this Agreement. No stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been instituted or threatened by the
Commission.
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder, and did not
contain an untrue statement of a material fact or omit to state a material
fact
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required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that the Offerors make no representation or warranty as
to information contained in or omitted in reliance upon, and in conformity
with, written information furnished to the Offerors by or on behalf of any
Underwriter, expressly for use in the preparation thereof.
(iii) The Registration Statement conforms, and the Prospectus and any
amendments or supplements thereto will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder. Neither the Registration Statement nor any
amendment thereto, and neither the Prospectus nor any supplement thereto,
contains or will contain, as the case may be, any untrue statement of a
material fact or omits or will omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that the Offerors make no representation or warranty as to (i)
information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Offerors by or on
behalf of any Underwriter, expressly for use in the preparation thereof or
(ii) information in those parts of the Registration Statement which
constitute the Statement of Eligibility and Qualification ("Form T-1")
under the Trust Indenture Act.
The Incorporated Documents, when they were or will be filed with the
Commission, conformed or will conform in all material respects to the
requirements of the Exchange Act and none of such documents contained or
will contain an untrue statement of a material fact or omitted or will omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(iv) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations or banking
associations in good standing under the laws of their respective places of
incorporation, with corporate power and authority to own their respective
properties and conduct their respective businesses as described in the
Prospectus; the Company and each of its non-bank subsidiaries are duly
qualified to do business as foreign corporations under the corporation law
of, and are in good standing as such in, each jurisdiction in which such
qualification is required except in any such case where the failure to so
qualify or be in good standing would not have a material adverse effect
upon the condition (financial or otherwise) or results of operations of the
Company and its subsidiaries taken as a whole; and no proceeding of which
the Company has knowledge has been instituted in any such jurisdiction,
revoking, limiting or curtailing, or seeking to revoke, limit or curtail,
such power and authority or qualification.
(v) (A) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act with full trust
power and authority to own property and to conduct its business as
described in the Registration Statement and Prospectus and is authorized to
do business in each jurisdiction in which such qualification is required,
except where the failure to so qualify would not have a material adverse
effect on the Trust's condition (financial or otherwise) or results of
operations taken as a whole;
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(B) the Trust has conducted and will conduct no business other than the
transactions contemplated by the Trust Agreement and described in the
Prospectus; (C) the Trust is not a party to or otherwise bound by any
agreement other than those described in the Prospectus; (D) the Trust is
and will be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation; and (E)
the Trust is and will be treated as a consolidated subsidiary of the
Company pursuant to generally accepted accounting principles.
(vi) The Company owns directly or indirectly 100 percent of the issued
and outstanding capital stock of each of its subsidiaries, free and clear
of any claims, liens, encumbrances or security interests, except for any
such stock pledged against borrowings of the Company or any of its
subsidiaries, and all of such capital stock has been duly authorized and
validly issued and is fully paid and nonassessable. The Company's
subsidiaries consist exclusively of the following: Midwest Bank and Trust
Company, Midwest Bank, Midwest Bank of XxXxxxx County, Midwest Bank of
Western Illinois, Xxxxxx Insurance Agency, Inc., Midwest One Financial
Services, L.L.C. and First Midwest Data Corp. Midwest Bank and Trust
Company, Midwest Bank, Midwest Bank of XxXxxxx County and Midwest Bank of
Western Illinois are collectively hereinafter referred to as the "Banks."
(vii) All of the issued and outstanding shares of capital stock of the
Company are duly authorized, validly issued, fully paid and nonassessable,
were offered and sold in compliance with all federal and state securities
laws, and were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities. Except as
otherwise stated in the Registration Statement and Prospectus, there are no
preemptive rights or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, the Junior Subordinated
Debentures, the common securities of the Trust held by the Company (the
"Common Securities") or the Preferred Securities. Neither the filing of the
Registration Statement nor the registration of the Preferred Securities,
the Guarantee or the Junior Subordinated Debentures gives rise to any
rights for or relating to the registration of any capital stock or other
securities of the Company or the Trust. The Company has an authorized and
outstanding capitalization as set forth in the Registration Statement and
the Prospectus.
(viii) Each of this Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement and the Agreement as to Expenses and Liabilities (the
"Expense Agreement") has been duly authorized, executed and delivered by
the Company and/or the Trust, as the case may be, and constitutes a valid,
legal and binding obligation of the Company and/or the Trust, as the case
may be, enforceable in accordance with its terms, except as rights to
indemnity hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally
and subject to general principles of equity and, with respect to Section 7
hereof, by the public policy underlying the federal or state securities
laws. The execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement and the consummation of the transactions herein or therein
contemplated will not result in
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a breach of the Company's or any of its subsidiary's charter or bylaws, the
Trust Agreement or the Trust's certificate of trust filed with the State of
Delaware on May 5, 2000 (the "Certificate of Trust") or breach of violation
of any of the terms and provisions of, or constitute a default under, any
statute, any indenture, mortgage, deed of trust, loan agreement, lease,
franchise, license or other agreement or instrument to which the Trust, the
Company or any of the Company's subsidiaries is a party or by which the
Trust, the Company or any of the Company's subsidiaries is bound or to
which any property or assets of the Trust, the Company or any of the
Company's subsidiaries is subject, the Company's or any of its subsidiary's
charter or bylaws, the Trust Agreement or the Trust's certificate of trust
filed with the State of Delaware on May ___, 2000 (the "Certificate of
Trust") or any order, rule, regulation or decree of any court or
governmental agency or body having jurisdiction over the Company, any of
its subsidiaries or the Trust or having jurisdiction over any of the
properties of the Company, any of its subsidiaries or the Trust which
breach, violation or default would have a material adverse effect upon the
condition (financial or otherwise) or results of operations of the Company
and its subsidiaries taken as a whole. No consent, approval, authorization
or order of, or filing with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement or for the consummation of the transactions contemplated hereby
or thereby, including the issuance or sale of the Junior Subordinated
Debentures by the Company and the Common Securities and the Preferred
Securities by the Trust, except such as may be required under the Act, all
of which have been obtained or made, and under state securities or blue sky
laws and clearance of such offering of the Preferred Securities by the
several Underwriters with the National Association of Securities Dealers,
Inc. ("NASD") and except where any failure to obtain such consents,
approvals, authorizations or orders or make such filings will not have a
material adverse effect upon the condition (financial or otherwise) or
results of operations of the Company and its subsidiaries taken as a whole.
Each of the Company and the Trust, as the case may be, has full power and
authority to enter into this Agreement, the Indenture, the Trust Agreement,
the Guarantee Agreement and the Expense Agreement, as the case may be, and
to authorize, issue and sell the Junior Subordinated Debentures or the
Common Securities and the Preferred Securities, as the case may be, as
contemplated by this Agreement; and each of the Indenture, the Trust
Agreement and the Guarantee Agreement has been duly qualified under the
Trust Indenture Act and will conform in all material respects to the
statements relating thereto in the Registration Statement and the
Prospectus.
(ix) The Junior Subordinated Debentures have been duly authorized by
the Company and at the Closing Date will have been duly executed by the
Company and, when authenticated in the manner provided for in the Indenture
and delivered against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally
and subject to general principles of equity, will be in the form
contemplated by, and entitled to the benefits of, the Indenture, will
conform to the statements relating thereto in the
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Prospectus, and will be owned by the Trust free and clear of any security
interest, pledge, lien, encumbrance, claim or equity.
(x) The Common Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Prospectus, will be validly
issued and (subject to the terms of the Trust Agreement) fully paid and
nonassessable undivided beneficial interests in the assets of the Trust and
will conform to all statements relating thereto contained in the
Prospectus; and at the Closing Date all of the issued and outstanding
Common Securities of the Trust will be directly owned by the Company free
and clear of any security interest, pledge, lien, encumbrance, claim or
equity.
(xi) The Preferred Securities have been duly authorized by the Trust
Agreement and, when issued and delivered pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and
fully paid and non-assessable undivided beneficial interests in the Trust,
will be entitled to the benefits of the Trust Agreement and will conform to
the statements relating thereto contained in the Prospectus.
(xii) The Indenture, the Trust Agreement, the Guarantee Agreement and
the Expense Agreement are in substantially the respective forms filed as
exhibits to the Registration Statement.
(xiii) The Company's obligations under the Guarantee Agreement are
subordinated and junior in right of payment to all Senior and Subordinated
Debt (as defined in the Indenture) of the Company.
(xiv) The Junior Subordinated Debentures are subordinate and junior in
right of payment to all Senior Indebtedness of the Company.
(xv) Each of the Administrative Trustees of the Trust is an officer or
director of the Company and has been duly authorized by the Company to
execute and deliver the Trust Agreement.
(xvi) The consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement present fairly the
consolidated financial position of the Company as of the respective dates
of such financial statements, and the consolidated results of operations
and cash flows of the Company for the respective periods covered thereby,
are in conformity with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
in the Prospectus. The financial information included and incorporated by
reference in the Prospectus under "Selected Consolidated Financial Data"
presents fairly, on the basis stated in the Prospectus, the information set
forth therein.
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(xvii) The accountants who have expressed their opinions with respect
to certain of the financial statements included or incorporated by
reference in the Registration Statement are independent accountants as
required by the Act.
(xviii) Neither the Company nor any subsidiary is in violation of its
respective charter; the Trust is not in violation of the Trust Agreement or
its Certificate of Trust; and none of the Trust, the Company or the
subsidiaries is in violation or otherwise in default under any consent
decree, or in default with respect to any provision of any material lease,
loan agreement, franchise, license, permit or other contract obligation to
which it is a party which would have a material adverse effect upon the
condition (financial or otherwise) or results of operations of the Trust,
the Company and the Company's subsidiaries, taken as a whole ("Material
Adverse Effect"); and there does not exist any state of facts which
constitutes an event of default as defined in such documents or which, with
notice or lapse of time or both, would constitute such an event of default,
in each case, except for defaults which neither singly nor in the aggregate
would have a Material Adverse Effect.
(xix) There are no legal or governmental proceedings pending, or to
the Trust's or Company's knowledge, threatened to which the Trust, the
Company or any of the Company's subsidiaries is or may reasonably be
expected to be a party or of which property owned or leased by the Trust,
the Company or any of the Company's subsidiaries is or may be the subject,
or related to environmental or discrimination matters which if adversely
determined would have a Material Adverse Effect that are not disclosed in
the Prospectus, or which question the validity of this Agreement or any
action taken or to be taken pursuant hereto or thereto.
(xx) The Company is a bank holding company duly registered with the
Board of Governors of the Federal Reserve System ("Federal Reserve") under
the Bank Holding Company Act of 1956, as amended. The conduct of the
business of the Company and each of its subsidiaries is in compliance in
all respects with applicable federal, state, local and foreign laws and
regulations, except where the failure to be in compliance would not have a
material adverse effect upon the condition (financial or otherwise) or
results of operation of the Company and its subsidiaries taken as a whole.
The Company and its subsidiaries own or possess or have obtained all
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate their properties and to carry on their businesses as presently
conducted except where the failure to have obtained such licenses, permits,
consents, orders, approvals and other authorization would not have a
material adverse effect upon the condition (financial or otherwise) or
results of operation of the Company and its subsidiaries taken as a whole,
and neither the Company nor its subsidiaries have received any notice of
proceedings related to revocation or modification of any such licenses,
permits, consents, orders, approvals or authorizations which singly or in
the aggregate, if the subject of an unfavorable ruling or finding, would
result in a material adverse effect upon the condition (financial or
otherwise) or results of operation of the Company and its subsidiaries
taken as a whole. Neither the Company nor any Bank is a party or subject to
any agreement or memorandum with, or directive or order issued by, the
Federal Reserve, the Illinois Office of Banks and Real Estate or any other
bank regulatory authority, which
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imposes any restrictions or requirements not generally applicable to bank
holding companies or commercial banks.
(xxi) The Company and each of its subsidiaries have good and
marketable title to all the properties and assets reflected as owned in the
financial statements hereinabove described (or elsewhere in the
Prospectus), subject to no lien, mortgage, pledge, charge or encumbrance of
any kind except for such properties as are pledged against the borrowings
of the Company or any of its subsidiaries and except those, if any,
reflected in such financial statements (or elsewhere in the Prospectus) or
which are not material to the Company and its subsidiaries taken as a
whole. The Company and each of its subsidiaries hold their respective
leased properties which are material to the Company and its subsidiaries
taken as a whole under valid and binding leases.
(xxii) The Offerors have not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Preferred Securities.
(xxiii) There is no material contract or other document of a character
required to be described in the Registration Statement or the Prospectus
(or the Incorporated Documents) or to be filed as an exhibit to the
Registration Statement (or the Incorporated Documents) which is not
described or filed as required.
(xxiv) The Trust and the Company have filed all necessary federal and
state income and franchise tax returns and has paid all taxes shown as due
thereon, and there is no tax deficiency that has been or to the knowledge
of the Trust or the Company, threatened to be asserted against the Trust or
the Company or any of their properties or assets that would or could be
expected to have a Material Adverse Effect. The Company and its
subsidiaries have also filed all required applications, reports, returns
and other documents and information with all state and federal banking
authorities and agencies.
(xxv) The Trust and the Company, together with the Company's
subsidiaries, owns and possesses all right, title and interest in and to,
or has duly licensed from third parties, all patents, patent rights, trade
secrets, inventions, know-how, trademarks, trade names, copyrights, service
marks and other proprietary rights ("Trade Rights") material to the
business of the Trust and the Company and each of the Company's
subsidiaries taken as a whole. Neither the Trust, the Company nor any of
its subsidiaries has received any notice of infringement, misappropriation
or conflict from any third party as to such material Trade Rights which has
not been resolved or disposed of and to the Trust's and the Company's
knowledge neither the Trust, the Company nor any of the Company's
subsidiaries has infringed, misappropriated or otherwise conflicted with
material Trade Rights of any third parties, which infringement,
misappropriation or conflict would have a Material Adverse Effect.
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(xxvi) No statement, representation, warranty or covenant made by the
Company in this Agreement or made in any certificate or document required
by this Agreement to be delivered to you was or will be, when made,
inaccurate, untrue or incorrect.
(xxvii) Neither the Company nor its subsidiaries nor, to the Company's
knowledge, any employee or agent of the Company or its subsidiaries has
made any payment of funds of the Company or its subsidiaries or received or
retained any funds in violation of any law, rule or regulation.
(xxviii) Since the respective dates as of which information is given
in the Registration Statement, as it may be amended or supplemented, (A)
there has not been any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
condition, financial or otherwise, of the Trust, the Company and the
subsidiaries taken as a whole, or the business affairs, management,
financial position, shareholders' equity or results of operations of the
Trust, the Company and the Company's subsidiaries, taken as a whole,
whether or not occurring in the ordinary course of business, including,
without limitation, any material increase in the amount or number of
classified assets of the Banks, any decrease in net interest margin for any
month to a level below 3.50%, or any material decrease in the volume of
loan originations, the amount of deposits or the amount of loans, (B) there
has not been any transaction not in the ordinary course of business entered
into by the Trust, the Company or any of the Company's subsidiaries which
is material to the Trust, the Company and the Company's subsidiaries, taken
as a whole, other than transactions described or contemplated in the
Registration Statement, (C) the Trust, the Company and the Company's
subsidiaries have not incurred any material liabilities or obligations,
which are not in the ordinary course of business or which could result in a
material reduction in the future earnings of the Trust, the Company and the
Company's subsidiaries, taken as a whole, (D) the Trust, the Company and
the Company's subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire,
flood, windstorm, accident or other calamity, whether or not covered by
insurance, (E) since March 31, 2000, there has not been any change in the
capital stock of the Company or the Company's subsidiaries, or any material
increase in the short-term or long-term debt (including capitalized lease
obligations) of the Company and the Company's subsidiaries, taken as a
whole, and (F) except as described or contemplated in the Prospectus, since
March 31, 2000, there has not been any declaration or payment of any
dividends or any distributions of any kind with respect to the capital
stock of the Company or its subsidiaries other than any dividends or
distributions described or contemplated in the Prospectus.
(xxix) The Administrative Trustees on behalf of the Trust, the Company
and each of the Company's holds and is operating in compliance with all
required licenses, approvals, certificates and permits from governmental
and regulatory authorities, foreign and domestic, which are necessary to
the conduct of its business as described in the Prospectus. Without
limiting the generality of the foregoing, the Company has all necessary
approvals of the Federal Reserve to own the stock of its subsidiaries. None
of the Trust, the Company or any of the Company's subsidiaries has received
notice of or has
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knowledge of any basis for any proceeding or action relating specifically
to the Trust, the Company or any of the Company's subsidiaries for the
revocation or suspension of any such consent, authorization, approval,
order, license, certificate or permit or any other action or proposed
action by any regulatory authority having jurisdiction over the Trust, the
Company or any of the Company's subsidiaries that would have a material
adverse effect on the Trust, the Company or any of the Company's
subsidiaries.
(xxx) The Offerors' registration statement pursuant to Section 12(b)
of the Exchange Act with respect to the Preferred Securities, has been
declared effective by the Commission; the Preferred Securities have been
approved for quotation and trading, upon notice of issuance, on the
American Stock Exchange under the symbol "XXX.Xx."
(xxxi) The Offerors have not distributed and will not distribute any
prospectus or other offering material in connection with the offering and
sale of the Preferred Securities other than any Preliminary Prospectus or
the Prospectus or other materials permitted by the Act to be distributed by
the Company.
(xxxii) The deposit accounts of the Banks are insured by the Federal
Deposit Insurance Corporation (the "FDIC") to the fullest extent provided
by law. No proceeding for the termination of such insurance is pending or
is threatened. Neither the Company nor any of its subsidiaries has received
or is subject to any directive or order from the Federal Reserve, the FDIC,
or the Illinois Office of Banks and Real Estate, or any other regulatory
authority to make any material change in the method of conducting their
respective businesses that has not been complied with in all material
respects.
(xxxiii) Neither the Offerors nor any of their affiliates does any
business, directly or indirectly, with the government of Cuba or with any
person or entity located in Cuba.
(xxxiv) None of the Trust, the Company or any of the Company's
subsidiaries is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended, or an "investment adviser" within the meaning of the
Investment Advisers Act of 1940, as amended.
(xxxv) The Company and its subsidiaries maintain, and the Trust will
maintain, a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with
management's general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (C) access to records is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxxvi) Other than as contemplated by this Agreement and as disclosed
in the Registration Statement, the Company has not incurred any liability
for any finder's or
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xxxxxx's fee or agent's commission in connection with the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xxxvii) No report or application filed by the Company or any of its
subsidiaries with the Federal Reserve, the FDIC, or the Illinois Office of
Banks and Real Estate, as of the date it was filed, 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 with the applicable requirements
of the Federal Reserve, the FDIC, or the Illinois Office of Banks and Real
Estate, as the case may be.
(xxxviii) The proceeds from the sale of the Preferred Securities will
constitute "Tier 1" capital (as defined in 12 C.F.R. Part 325), subject to
applicable regulatory restrictions on the amount thereof that can be
included in Tier 1 capital.
(b) Any certificate signed by or on behalf of the Trust or the Company and
delivered to the Underwriters or counsel to the Underwriters shall be deemed to
be a representation and warranty of the Trust or the Company to each Underwriter
as to the matters covered thereby.
Section 2. Purchase, Sale and Delivery of Preferred Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Trust agrees to issue
and sell to each Underwriter, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Trust, at a purchase price per Preferred
Security of $25.00, the number of Preferred Securities set forth opposite the
name of such Underwriter in Schedule A hereto. As compensation to the
Underwriters for their commitments hereunder and in view of the fact that the
proceeds of the sale of the Preferred Securities (together with the entire
proceeds from the sale by the Trust to the Company of the Common Securities)
will be used to purchase the Junior Subordinated Debentures, the Company hereby
agrees to pay at the Closing Date (defined below) to the Representative a
commission of _____ per Preferred Security sold by the Trust hereunder.
The Preferred Securities will be delivered by the Company to the
Representative against payment of the purchase price therefor at the offices
Vedder, Price, Xxxxxxx & Kammholz, Chicago, Illinois, or such other location as
may be mutually acceptable, at 9:00 a.m., central time on May ___, 2000, or such
other time and date as the Representative and the Company may agree upon in
writing, such time and date of delivery being herein referred to as the "Closing
Date." The purchase price shall be payable by wire transfer of immediately
available funds to an account, such account to be designated by the Trust at
least two business days preceding the Closing Date. The Underwriters' commission
shall be payable by wire transfer of immediately available funds to an account,
such account to be designated by the Underwriters at least two business days
preceding the Closing Date. Delivery of the Preferred Securities may be made by
credit through full fast transfer to the accounts at The Depository Trust
Company designated by you. Certificates representing the Preferred Securities,
in definitive form and in such denominations and registered in such names as you
may request upon at least two business days' prior notice to the Company shall
be prepared and will be made available for checking and packaging, not later
than 10:30 a.m., central time, on the business day next preceding the Closing
Date at the offices of
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Xxxx Xxxxxx Investments, Inc., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, or such other location as may be mutually acceptable.
It is understood that any Underwriter may (but shall not be obligated to)
make payment to the Company on behalf of the other Underwriter for the Preferred
Securities to be purchased by such Underwriter. Any such payment shall not
relieve such other Underwriter of any of its obligations hereunder. Nothing
herein contained shall constitute the Underwriters an unincorporated association
or partner with either or both Offerors.
Section 3. Offering by Underwriters. (a) It is understood that the several
Underwriters propose to make a public offering of the Preferred Securities as
soon as the Underwriters deem it advisable to do so. The Preferred Securities
are to be initially offered to the public at the initial public offering price
set forth in the Prospectus. The Underwriters may from time to time thereafter
change the public offering price and other selling terms.
(b) The Representative, on behalf of the several Underwriters, represents
and warrants to the Company that the information set forth (i) on the cover page
of the Prospectus with respect to price, underwriting compensation and terms of
the offering and (ii) under "Underwriting" in the Prospectus was furnished to
the Company by and on behalf of the Underwriters for use in connection with the
preparation of the Registration Statement and is correct and complete in all
material respects.
Section 4. Covenants of the Offerors. The Offerors jointly and severally
covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust
will prepare and timely file with the Commission under Rule 424(b) under
the Act a Prospectus containing information previously omitted at the time
of effectiveness of the Registration Statement in reliance on Rule 430A
under the Act, and will not file any amendment to the Registration
Statement or supplement to the Prospectus of which the Underwriters shall
not previously have been advised and furnished with a copy and as to which
the Underwriters shall have reasonably objected in writing promptly after
reasonable notice thereof or which is not in compliance with the Act or the
rules and regulations thereunder.
(b) If the Offerors elect to rely on Rule 434 of the Act, the Offerors
will prepare a term sheet that complies with the requirements of Rule 434.
If the Offerors elect not to rely on Rule 434, the Offerors will provide
the Underwriters with copies of the form of prospectus, in such numbers as
the Underwriters may reasonably request, and file with the Commission such
prospectus in accordance with Rule 424(b) of the Act by the close of
business in New York City on the second business day immediately succeeding
the date of pricing of the offering of the Preferred Securities (the
"Pricing Date"). If the Offerors elect to rely on Rule 434, the Offerors
will provide the Underwriters with copies of the form of Rule 434
Prospectus, in such numbers as the Underwriters may reasonably request, by
the close of business in New York on the business day immediately
succeeding the Pricing Date.
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(c) The Offerors will advise the Underwriters promptly of any request
of the Commission for amendment of the Registration Statement or for
supplement to the Prospectus or for any additional information, or of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the use of the Prospectus, of the
suspension of the qualification of the Preferred Securities for offering or
sale in any jurisdiction, or of the institution or threatening of any
proceedings for that purpose, and the Offerors will use their best efforts
to prevent the issuance of any such stop order preventing or suspending the
use of the Prospectus or suspending such qualification and to obtain as
soon as possible the lifting thereof, if issued.
(d) The Offerors will cooperate with you and your counsel in order to
qualify the Preferred Securities for sale under the securities laws of such
jurisdictions as the Underwriters may reasonably have designated and to
continue such qualifications in effect for so long as the Underwriters may
reasonably request for distribution of the Preferred Securities (or obtain
exemptions from the application of such laws). The Offerors will, from time
to time, prepare and file such statements, reports and other documents as
may be requested by the Underwriters for that purpose.
(e) The Offerors will furnish the Underwriters with as many copies of
any Preliminary Prospectus as the Underwriters may reasonably request and,
during the period when delivery of a prospectus is required under the Act,
the Offerors will furnish the Underwriters with as many copies of the
Prospectus in final form, or as thereafter amended or supplemented, as the
Underwriters may, from time to time, reasonably request. The Offerors will
deliver to the Underwriters, at or before the Closing Date, two signed
copies of the Registration Statement and all amendments thereto including
all exhibits filed therewith, together with the Incorporated Documents, and
will deliver to the Underwriters such number of conformed copies of the
Registration Statement, without exhibits, and of all amendments thereto,
together with the Incorporated Documents, as the Underwriters may
reasonably request.
(f) If at any time when a prospectus relating to the Preferred
Securities is required to be delivered under the Act any event occurs as a
result of which the Prospectus, including any amendments or supplements,
would include an untrue statement of a material fact, or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Prospectus, including any amendments or supplements thereto and including
any revised prospectus which the Offerors propose for use by the
Underwriters in connection with the offering of the Preferred Securities
which differs from the prospectus on file with the Commission at the time
of effectiveness of the Registration Statement, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) to comply with
the Act, the Offerors promptly will advise you thereof and will promptly
prepare and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance; and, in case any Underwriter is required to deliver a
prospectus nine months or more after the effective date of the Registration
Statement, the Offerors upon request, but at the expense of such
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Underwriter, will prepare promptly such prospectus or prospectuses as may
be necessary to permit compliance with the requirements of Section 10(a)(3)
of the Act.
(g) Not later than September 1, 2001 the Company will make generally
available to its security holders an earnings statement (which need not be
audited) covering a period of at least 12 months beginning after the
effective date of the Registration Statement, which will satisfy the
provisions of the last paragraph of Section 11(a) of the Act.
(h) During the period of five years hereafter, the Company will
furnish you with a copy (i) as soon as practicable after the filing
thereof, of each report filed by the Company with the Commission, any
securities exchange or the NASD; (ii) as soon as practicable after the
release thereof, of each material press release in respect of the Company;
and (iii) as soon as available, of each report of the Company mailed to
stockholders.
(i) The Offerors will use the net proceeds received by it from the
sale of the Preferred Securities in the manner specified in the Prospectus.
(j) If, at the time of effectiveness of the Registration Statement,
any information shall have been omitted therefrom in reliance upon Rule
430A and/or Rule 434, then on the Pricing Date, the Offerors will prepare,
and file or transmit for filing with the Commission in accordance with such
Rule 430A, Rule 424(b) and/or Rule 434, copies of an amended Prospectus,
or, if required by such Rule 430A and/or Rule 434, a post-effective
amendment to the Registration Statement (including an amended Prospectus),
containing all information so omitted. If required, the Offerors will
prepare and file, or transmit for filing, a Rule 462(b) Registration
Statement not later than the date of the execution of the Pricing
Agreement. If a Rule 462(b) Registration Statement is filed, the Offerors
shall make payment of, or arrange for payment of, the additional
registration fee owing to the Commission required by Rule 111.
(k) The Offerors will comply with all registration, filing and
reporting requirements of the Exchange Act and the American Stock Exchange.
Section 5. Costs and Expenses. The Offerors will pay (directly or by
reimbursement) all costs, expenses and fees incident to the performance of the
obligations of the Offerors under this Agreement, including, without limiting
the generality of the foregoing, the following: accounting fees of the Offerors;
the fees and disbursements of counsel for the Offerors; the cost of preparing,
printing and filing of the Registration Statement, Preliminary Prospectuses and
the Prospectus, including all Incorporated Documents and any amendments and
supplements thereto and the printing, mailing and delivery to the Underwriters
and dealers of copies thereof and of this Agreement, the Selected Dealers
Agreement, any blue sky memorandum, if deemed necessary by the Underwriters,
after consultation with the Offerors, and any supplements or amendments thereto
(excluding, except as provided below, fees and expenses of counsel to the
Underwriters); the filing fees of the Commission; the filing fees and expenses
(including legal fees and disbursements of counsel for the Underwriters)
incident to securing any required review by NASD
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of the terms of the sale of the Preferred Securities; the fees and expenses of
the Indenture Trustee, including the fees and disbursements of counsel for the
Indenture Trustee in connection with the Indenture and Junior Subordinated
Debentures; the fees and expenses of the Property Trustee and the Delaware
Trustee, including the fees and disbursements of counsel for the Property
Trustee and the Delaware Trustee in connection with the Trust Agreement and the
Certificate of Trust; the fees and expenses of the Guarantee Trustee, including
the fees and disbursements of counsel for the Guarantee Trustee in connection
with the Guarantee and Guarantee Agreement; listing fees, if any, transfer taxes
and the expenses, including the fees and disbursements of counsel for the
Underwriters, incurred in connection with the qualification of the Preferred
Securities under state securities or blue sky laws; the fees and expenses
incurred in connection with the listing of the Preferred Securities on the
American Stock Exchange; the costs of preparing certificates representing Junior
Subordinated Debentures or Preferred Securities; the costs and fees of any
registrar or transfer agent and all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 5. The Offerors shall not be required to pay for
any of the Underwriters' expenses (other than those related to qualification of
the Preferred Securities under state securities or blue sky laws and those
incident to securing any required review by the NASD of the terms of the sale of
the Preferred Securities which shall be paid by the Offerors as provided above)
except that, if this Agreement shall not be consummated because the conditions
in Section 6 hereof are not satisfied, or because this Agreement is terminated
by the Underwriters pursuant to Section 9 hereof, or by reason of any failure,
refusal or inability on the part of the Offerors to perform any undertaking or
satisfy any condition of this Agreement or to comply with any of the terms
hereof on either of their parts to be performed, unless such failure to satisfy
said condition or to comply with said terms shall be due to the default or
omission of any Underwriter, then the Offerors promptly upon request by the
Underwriters shall reimburse the several Underwriters for all actual,
accountable out-of-pocket expenses, including fees and disbursements of counsel
reasonably incurred in connection with investigating, marketing and proposing to
market the Preferred Securities or in contemplation of performing their
obligations hereunder, up to $15,000; but the Offerors shall not in any event be
liable to any of the several Underwriters for damages on account of loss of
anticipated profits from the sale by them of the Preferred Securities.
Section 6. Conditions of Obligations of the Underwriters. The several
obligations of the Underwriters to purchase the Preferred Securities on the
Closing Date are subject to the condition that all representations and
warranties of the Offerors contained herein are true and correct, at and as of
the Closing Date, and the condition that each Offeror shall have performed all
of its covenants and obligations hereunder and to the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
4(a) hereof; no stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, or any part thereof shall have
been issued and no proceedings for that purpose shall have been initiated
or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to
the reasonable satisfaction of the Underwriters.
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(b) The Underwriters shall have received on the Closing Date the
opinion of Xxxxxx, Xxxxx, Xxxxxxx & Xxxxxxxx, counsel for the Offerors,
dated the Closing Date, addressed to the Underwriters, to the effect that:
(i) (A) the Company is validly existing as a corporation in good
standing under the laws of the State of Delaware with corporate power
and authority to own its properties and conduct its business as
described in the Prospectus; and, to the best of such counsel's
knowledge the Company is duly qualified to do business as a foreign
corporation under the corporation law of, and is in good standing as
such in, every jurisdiction where such qualification is required
except where the failure so to qualify would not have a material
adverse effect upon the condition (financial or otherwise) or results
of operations of the Company and its subsidiaries taken as a whole;
(B) an opinion to the same general effect as clause (A) of
this subparagraph (i) in respect of each non-bank subsidiary of the
Company;
(ii) the Company owns directly or indirectly 100 percent of the
outstanding capital stock of each subsidiary;
(iii) the issued and outstanding capital stock of the Company has
been duly authorized and validly issued and is fully paid and
nonassessable;
(iv) the Registration Statement has become effective under the
Act, and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement
(including the information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A(b) and/or
Rule 434, if applicable), the Prospectus and each amendment or
supplement thereto (except for the financial statements and other
statistical or financial data included therein as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act; all documents incorporated
by reference in the Prospectus, when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Exchange Act; and such counsel have no reason to
believe that any of such documents, when they were so filed, contained
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which such statements were made when such
documents were so filed, not misleading, such counsel need express no
opinion as to the financial statements or other financial or
statistical data contained in any such document); such counsel have no
reason to believe that either the Registration Statement (including
the information deemed to be part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A(b) and/or Rule 434, if
applicable) or the Prospectus, or the Registration Statement or the
Prospectus as amended or supplemented (except as aforesaid), as of
their
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respective effective or issue dates, contained any untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus as amended or supplemented, if
applicable, as of the issue date and as of the Closing Date, contained
any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein not misleading
in light of the circumstances under which they were made (except for
the financial statements and other statistical or financial data
included therein as to which such counsel need express no opinion);
and such counsel does not know of any legal or governmental
proceedings pending or threatened required to be described in the
Prospectus which are not described as required, nor of any contracts
or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described or filed, as required;
(v) the statements under the captions "Description of the Trust,"
"Description of the Preferred Securities," "Description of the
Debentures," "Book-Entry Issuance," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Debentures and the
Guarantee" and "Federal Income Tax Consequences" in the Prospectus,
insofar as such statements constitute a summary of documents referred
to therein or matters of law, are accurate summaries and fairly
present, in all material respects, the information called for with
respect to such documents and matters;
(vi) the holders of the Company's outstanding securities are not
entitled to any preemptive or other rights to subscribe for the Junior
Subordinated Debentures or the Preferred Securities under the
Company's bylaws and, to the knowledge of such counsel, no such rights
exist under any other agreement or arrangement;
(vii) all of the issued and outstanding Common Securities of the
Trust are owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable
right;
(viii) the Trust Agreement, the Indenture, the Guarantee, the
Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as trustee under the Indenture, the Form T-1 Statement of Eligibility
of Wilmington Trust Company to act as trustee under the Trust
Agreement, and the Form T-1 Statement of Eligibility of Wilmington
Trust Company to act as trustee under the Guarantee Agreement have
been duly qualified under the Trust Indenture Act;
(ix) the Junior Subordinated Debentures are in the form
contemplated by the Indenture, have been duly authorized, executed and
delivered by the Company and, when authenticated by the Indenture
Trustee in the manner provided for in the Indenture and delivered
against payment therefor, will constitute valid and binding
obligations of the Company, enforceable against the
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Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity;
(x) the Junior Subordinated Debentures are subordinate and junior
in right of payment to all "Senior and Indebtedness" (as defined in
the Indenture) of the Company;
(xi) under current law, the Trust will be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; accordingly, for United States
federal income tax purposes each beneficial owner of Preferred
Securities will be treated as owning an undivided beneficial interest
in the Junior Subordinated Debentures, and stated interest on the
Junior Subordinated Debentures generally will be included in income by
a holder of Preferred Securities at the time such interest income is
paid or accrued in accordance with such xxxxxx's regular method of tax
accounting;
(xii) to the best of such counsel's knowledge and information
after due inquiry, (A) the Trust is not required to be authorized to
do business in any other jurisdiction other than Delaware, except
where the failure to be so authorized would not have a material
adverse effect on the Trust's condition (financial or otherwise) or
results of operations taken as a whole and (B) the Trust is not a
party to or otherwise bound by any material agreement other than those
described in the Prospectus;
(xiii) the Trust Agreement has been duly executed and delivered
by the Administrative Trustees;
(xiv) the Company has full corporate power and authority and the
Trust has full trust power and authority to enter into this Agreement,
the Indenture, the Trust Agreement, the Guarantee Agreement and the
Expense Agreement, as applicable, and to issue the Junior Subordinated
Debentures or the Common Securities and Preferred Securities, as the
case may be, and to effect the transactions contemplated by this
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement
and the Expense Agreement, as applicable, and each of this Agreement,
the Indenture, the Trust Agreement, the Guarantee Agreement and the
Expense Agreement have been duly authorized, executed and delivered by
the Company and the Trust, as applicable, and constitutes a valid,
legal and binding obligation of the Company and the Trust, as
applicable, enforceable in accordance with its terms (except as rights
to indemnity hereunder may be limited by federal or state securities
laws and except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity). The
execution, delivery and performance of this Agreement, the Indenture,
the Trust Agreement, the Guarantee Agreement, the Preferred
Securities, the Common Securities, the
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Junior Subordinated Debentures and the Expense Agreement and the
consummation of the transactions herein or therein contemplated will
not, to the best of such counsel's knowledge, result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, rule or regulation (except that such
counsel need express no opinion regarding any blue sky or state
securities laws), any lease, contract, indenture, mortgage, loan
agreement or other agreement or instrument known to such counsel to
which the Company, the Trust or any of the Company's subsidiaries is a
party or by which it is bound or to which any of its property is
subject, the Company's or any of its subsidiaries' charter or bylaws,
or the Certificate of Trust or any permit, judgment, order or decree
known to such counsel of any court or governmental agency or body
having jurisdiction over the Company, the Trust or any of the
Company's subsidiaries or any of their respective properties, except
for any breach, violation or default which would not have a material
adverse effect on the Company or the Trust; and no consent, approval,
authorization, order of, designation, declaration or filing by or
with, any court or any regulatory, administrative or governmental
agency or body is required for the execution, delivery and performance
of this Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement, the Expense Agreement, the Common Securities, the Preferred
Securities, or the Junior Subordinated Debentures, or for the
consummation of the transactions contemplated hereby or thereby (other
than as may be required by federal or state laws governing banks or
bank holding companies, the NASD, or by state securities and blue sky
laws, as to which such counsel need express no opinion), including the
issuance or sale of the Junior Subordinated Debentures by the Company
and the Common Securities and Preferred Securities by the Trust,
except (a) such as may be required under the Act, which have been
obtained or made, and (b) the qualification of the Trust Agreement,
the Guarantee Agreement and the Indenture under the Trust Indenture
Act and the regulations thereunder, all of which have been effected.
The filing of the Registration Statement and the registration of the
Junior Subordinated Debentures, the Guarantee and the Preferred
Securities under the Act does not give rise to any rights for or
relating to the registration of any shares of capital stock or other
securities of the Company;
(xv) neither the Company nor the Trust is, and immediately upon
completion of the sale of Preferred Securities contemplated hereby,
neither the Company nor the Trust will be, an "investment company" or
a company "controlled" by an investment company under the Investment
Company Act of 1940, as amended; and
(xvi) to the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is in violation of its respective
charter or bylaws.
(xvii) the Banks have been duly chartered to conduct the business
of banking in their state of domicile and the Company has all
necessary power and authority to own the Banks. The Company and the
Banks have all necessary consents and approvals under applicable
federal and state laws and regulations
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relating to banks and bank holding companies ("banking laws") to own
their respective assets and carry on their respective businesses as
currently conducted;
(xviii) the proceeds from the sale of the Preferred Securities
will constitute "Tier 1" capital (as defined in 12 C.F.R. Part 325),
subject to applicable regulatory limitations on the amount thereof
that can be included in Tier 1 capital.
In rendering such opinion, such counsel may state that insofar as their
opinion under clause (v) above relates to the accuracy and completeness of the
Prospectus and Registration Statement, including the Incorporated Documents, it
is based upon a general review with the Offerors' representatives and
independent accountants of the information contained therein, without
independent verification by such counsel of the accuracy or completeness of such
information. Such counsel may also rely upon the opinions of other competent
counsel and, as to factual matters, on certificates of officers of the Offerors
and of federal or state agencies or officials, in which case their opinion is to
state that they are so doing and copies of said opinions or certificates are to
be attached to the opinion unless said opinions or certificates (or, in the case
of certificates, the information therein) have been furnished to the
Representative in other form.
(c) The Underwriters shall have received on the Closing Date the
opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to Wilmington Trust
Company, as Property Trustee under the Trust Agreement, Indenture Trustee
under the Indenture, and Guarantee Trustee under the Guarantee Agreement,
dated the Closing Date, addressed to the Underwriters, to the effect that:
(i) Wilmington Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation under the laws of
the State of Delaware;
(ii) Wilmington Trust Company has the power and authority to
execute, deliver and perform its obligations under the Trust
Agreement, the Indenture and the Guarantee Agreement;
(iii) each of the Trust Agreement, the Indenture and the
Guarantee Agreement has been duly authorized, executed and delivered
by Wilmington Trust Company and constitutes a legal, valid and binding
obligation of Wilmington Trust Company, enforceable against Wilmington
Trust Company, in accordance with its terms;
(iv) the execution, delivery and performance by Wilmington Trust
Company of the Trust Agreement, the Indenture and the Guarantee
Agreement do not conflict with or constitute a breach of the charter
or bylaws of Wilmington Trust Company; and
(v) no consent, approval or authorization of, or registration
with or notice to, any governmental authority or agency of the State
of Delaware or the United States of America governing the banking or
trust powers of Wilmington
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Trust Company is required for the execution, delivery or performance
by Wilmington Trust Company of the Trust Agreement, the Indenture and
the Guarantee Agreement.
(d) The underwriters shall have received on the Closing Date the
opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., as special counsel for the
Offerors that:
(i) the Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act, and all
filings required as of the date hereof under the Delaware Act with
respect to the creation and valid existence of the Trust as a business
trust have been made;
(ii) under the Trust Agreement and the Delaware Act, the Trust
has the trust power and authority to own property and to conduct its
business, all as described in the Prospectus;
(iii) the Trust Agreement constitutes a valid and binding
obligation of the Company, the Property Trustee and each of the
Administrative Trustees, and is enforceable against the Company, the
Property Trustee and each of the Administrative Trustees in accordance
with its terms;
(iv) under the Trust Agreement and the Delaware Act, the Trust
has the trust power and authority (a) to execute and deliver, and to
perform its obligations under, this Agreement, and (b) to issue, and
to perform its obligations under, the Preferred Securities and the
Common Securities;
(v) under the Trust Agreement and the Delaware Act, the execution
and delivery by the Trust of this Agreement, and the performance by
the Trust of its obligations under this Agreement, have been duly
authorized by all necessary trust action on the part of the Trust;
(vi) under the Delaware Act, the certificate attached to the
Trust Agreement as [Exhibit E] is an appropriate form of certificate
to evidence ownership of the Preferred Securities. The Preferred
Securities and the Common Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications hereinafter expressed in this paragraph (vi), fully
paid and non-assessable undivided beneficial interests in the assets
of the Trust. The respective holders of the Preferred Securities and
the Common Securities, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. Such counsel may
note that the respective holders of the Preferred Securities and the
Common Securities may be obligated, pursuant to the Trust Agreement,
to make certain payments under the Trust Agreement;
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(vii) under the Trust Agreement and the Delaware Act, the
issuance of the Preferred Securities and the Common Securities is not
subject to preemptive or similar rights; and
(viii) the issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the purchase by the Trust of the
Junior Subordinated Debentures, the execution, delivery and
performance by the Trust of this Agreement and the Guarantee
Agreement, the consummation by the Trust of the transactions
contemplated by this Agreement and compliance by the Trust with its
obligations under this Agreement do not violate (A) any of the
provisions of the Certificate of Trust or the Trust Agreement or (B)
any applicable Delaware law or Delaware administrative regulations.
(e) The Underwriters shall have received from Xxxxxxx and Xxxxxx,
Chicago, Illinois, counsel for the Underwriters, an opinion dated the
Closing Date, with respect to the formation of the Trust, the validity of
the Preferred Securities, the Indenture, the Trust Agreement, the Guarantee
Agreement, the Expense Agreement, this Agreement, the Registration
Statement, the Prospectus, and other related matters as the Underwriters
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters.
(f) The Underwriters shall have received on the date hereof, and the
Closing Date a signed letter, dated as of the date hereof, and the Closing
Date, respectively, in form and substance satisfactory to the Underwriters,
from Xxxxx, Xxxxxx and Company to the effect that they are independent
public accountants with respect to the Trust, the Company and the Company's
subsidiaries within the meaning of the Act and the related rules and
regulations and containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus (and the
Incorporated Documents).
(g) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any change or any
development involving a reasonably foreseeable change, in or affecting the
general affairs, management, financial position, shareholders' equity or
results of operations of the Offerors otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in your reasonable
judgment, is material and adverse to the Offerors and makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Preferred Securities being delivered at the Closing Date,
on the terms and in the manner contemplated in the Prospectus.
(h) The Underwriters shall have received on the Closing Date, a
certificate or certificates of the chief executive officer and the
principal financial officer of the Company, to the effect that, as of the
Closing Date each of them severally represents as follows:
(i) The Prospectus was filed with the Commission pursuant to Rule
424(b) within the applicable period prescribed for such filing by the
rules and
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regulations under the Act and in accordance with Section 4 of this
Agreement; no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been initiated or are, to his knowledge, threatened by
the Commission.
(ii) The representations and warranties of the Company set forth
in Section 1 of this Agreement are true and correct at and as of the
Closing Date, and the Company has performed all of its obligations
under this Agreement to be performed at or prior to the Closing Date.
(i) The Underwriters shall have received on the Closing Date a
certificate or certificates of the Administrative Trustees, to the effect
that, as of the Closing Date each of them severally represents as follows:
(i) The Prospectus was filed with the Commission pursuant to Rule
424(b) within the applicable period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 4
of this Agreement; no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been initiated or are, to his knowledge, threatened by
the Commission.
(ii) The representations and warranties of the Trust set forth in
Section 1 of this Agreement are true and correct at and as of the
Closing Date and the Trust has performed all of its obligations under
this Agreement to be performed at or prior to the Closing Date.
(j) The Offerors shall have furnished to the Underwriters such further
certificates and documents as the Underwriters may reasonably have
requested, including with respect to (i) the treatment of the Junior
Subordinated Debentures as indebtedness of the Company and (ii) the
deductibility of the interest on the Junior Subordinated Debenture.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects reasonably satisfactory to the Underwriters and to Xxxxxxx and Xxxxxx,
counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Underwriters by notifying the Company and the Trust of such termination in
writing or by telegram at or prior to the Closing Date. In such event, the
Offerors and the Underwriters shall not be under any obligation to each other
(except to the extent provided in Sections 5 and 7 hereof).
Section 7. Indemnification. (a) The Offerors jointly and severally agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Act or the Exchange Act
against any losses, claims, damages or liabilities, joint
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or several, to which such Underwriter or such controlling person may become
subject under the Act, the Exchange Act or other federal or state statutory law
or regulation, at common law or otherwise (including in settlement of any
litigation if such settlement is effected with the written consent of the
Offerors), insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
including the information deemed to be part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A and/or Rule 434, if applicable, any
preliminary prospectus, the Prospectus, the Incorporated Documents or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; and will
reimburse each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Offerors will not be
liable in any such case to the extent that (i) any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
any preliminary prospectus, the Prospectus, the Incorporated Documents or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Offerors by or on behalf of any Underwriter through
the Representative, specifically for use therein; or (ii) if such statement or
omission was contained or made in any preliminary prospectus and corrected in
the Prospectus and (1) any such loss, claim, damage or liability suffered or
incurred by any Underwriter (or any person who controls any Underwriter)
resulted from an action, claim or suit by any person who purchased Preferred
Securities which are the subject thereof from such Underwriter in the offering
and (2) such Underwriter failed to deliver or provide a copy of the Prospectus
to such person at or prior to the confirmation of the sale of such Preferred
Securities in any case where such delivery is required by the Act. In addition
to its other obligations under this Section 10(a), the Offerors agree that, as
an interim measure during the pendency of any claim, action, investigation,
inquiry or other proceeding arising out of or based upon any statement or
omission, or any alleged statement or omission, described in this Section 10(a),
it will reimburse the Underwriters on a quarterly basis for all reasonable legal
and other expenses incurred in connection with investigating or defending any
such claim, action, investigation, inquiry or other proceeding, notwithstanding
the absence of a judicial determination as to the propriety and enforceability
of the Offerors' obligation to reimburse the Underwriters for such expenses and
the possibility that such payments might later be held to have been improper by
a court of competent jurisdiction. To the extent that any such interim
reimbursement payment is held by a court of competent jurisdiction to have been
improper, each recipient thereof will promptly return it to the Offerors. This
indemnity agreement will be in addition to any liability which the Offerors may
otherwise have.
(b) Each Underwriter will severally indemnify and hold harmless the
Offerors, the trustees, and its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Offerors within
the meaning of the Act or the Exchange Act, against any losses, claims, damages
or liabilities to which the Offerors, or any such director, officer or
controlling person may become subject under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with
the written consent of such Underwriter),
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insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue or alleged untrue statement
of any material fact contained in the Registration Statement, any preliminary
prospectus, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any preliminary prospectus, the
Prospectus, or any amendment or supplement thereto in reliance upon any written
information furnished to the Offerors by such Underwriter through the
Representative specifically for use in the preparation thereof; and will
reimburse any legal or other expenses reasonably incurred by the Offerors, or
any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability which such
Underwriter may otherwise have.
(c) The Company agrees to indemnify the Trust against all loss, liability,
claim damage and expense whatsoever, which may become due from the Trust under
paragraph (a).
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party except to the extent that
the indemnifying party was prejudiced by such failure to notify. In case any
such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
all other indemnifying parties similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, or the indemnified and indemnifying parties may have
conflicting interests which would make it inappropriate for the same counsel to
represent both of them, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defense and otherwise to
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defense in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representative in the case of paragraph (a)
representing all indemnified parties not having different or additional defenses
or potential conflicting interests among themselves who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a
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reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability arising out
of such proceeding.
(e) If the indemnification provided for in this Section is unavailable to
an indemnified party under paragraphs (a) or (b) hereof in respect of any
losses, claims, damages or liabilities referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors and the
Underwriters from the offering of the Preferred Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Offerors and
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The respective relative benefits received by the
Offerors and the Underwriters shall be deemed to be in the same proportion in
the case of the Offerors as the total price paid to the Offerors for the
Preferred Securities by the Underwriters (net of underwriting discount but
before deducting expenses), and in the case of the Underwriters as the
underwriting discount received by them bears to the total of such amounts paid
to the Offerors and received by the Underwriters as underwriting discount in
each case as contemplated by the Prospectus. The relative fault of the Offerors
and the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages and liabilities referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section, no Underwriter shall be required
to contribute any amount in excess of the amount by which the total price at
which the Preferred Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section are several in proportion to their respective
underwriting commitments and not joint.
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(f) The provisions of this Section shall survive any termination of the
Agreement.
Section 8. Default of Underwriters. It shall be a condition to the
agreement and obligation of the Offerors to sell and deliver the Preferred
Securities hereunder, and of each Underwriter to purchase the Preferred
Securities hereunder, that, except as hereinafter in this paragraph provided,
each of the Underwriters shall purchase and pay for all Preferred Securities
agreed to be purchased by such Underwriter hereunder upon tender to the
Representative of all such Preferred Securities in accordance with the terms
hereof. If any Underwriter or Underwriters default in their obligations to
purchase Preferred Securities hereunder on the Closing Date and the aggregate
number of Preferred Securities which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10 percent of the total number of
Preferred Securities which the Underwriters are obligated to purchase on the
Closing Date, the Representative may make arrangements satisfactory to the
Offerors for the purchase of such Preferred Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
date the nondefaulting Underwriters shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the Preferred Securities
which such defaulting Underwriters agreed but failed to purchase on such date.
If any Underwriter or Underwriters so default and the aggregate number of
Preferred Securities with respect to which such default or defaults occur is
more than the above percentage and arrangements satisfactory to the
Representative and the Offerors for the purchase of such Preferred Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any nondefaulting Underwriter or
the Offerors, except for the expenses to be paid by the Offerors pursuant to
Section 5 hereof and except to the extent provided in Section 7 hereof.
In the event that Preferred Securities to which a default relates are to be
purchased by the nondefaulting Underwriters or by another party or parties, the
Representative or the Offerors shall have the right to postpone the Closing Date
for not more than seven business days in order that the necessary changes in the
Registration Statement, Prospectus and any other documents, as well as any other
arrangements, may be effected. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
Section 9. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof, this Agreement may be
terminated by you prior to the Closing Date, if (i) trading in securities on the
New York Stock Exchange shall have been suspended or minimum prices shall have
been established on such exchange, or (ii) a banking moratorium shall have been
declared by Illinois, New York, or United States authorities, or (iii) there
shall have been any material adverse change in financial markets or in
political, economic or financial conditions from the date hereof which, in the
opinion of the Representative, either renders it impracticable or inadvisable to
proceed with the offering and sale of the Preferred Securities on the terms set
forth in the Prospectus or materially and adversely affects the market for the
Preferred Securities, or (iv) there shall have been an outbreak of major armed
hostilities between the United States and any foreign power which in the
reasonable opinion of the Representative makes it impractical or inadvisable to
offer or sell the Preferred Securities. Any termination pursuant to this
paragraph shall be without liability on the part of any Underwriter to
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the Offerors or on the part of the Offerors to any Underwriter (except for
expenses to be paid or reimbursed pursuant to Section 7 hereof and except to the
extent provided in Section 5 hereof).
Section 10. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Offerors, the Trustees, any of the Company's officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Offerors or any of its or their partners,
officers or directors or any controlling person, as the case may be, and will
survive delivery of and payment for the Preferred Securities sold hereunder.
Section 11. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters will be mailed, delivered or sent by facsimile
transmission and confirmed to you c/o Xxxxxx X. Xxxxxxxx, Xxxx Xxxxxx
Investments, Inc., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, with a
copy to Xxxxxxx X. Xxxx, Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000; and if sent to the Company will be mailed, delivered or
telegraphed and confirmed to the Company, Attention: Xxxxxx X. Xxxxxxx at its
corporate headquarters with a copy to Xxxxxxxx X. Xxxxx, Xxxxxx, Xxxxx, Xxxxxxx
& Kammholz, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
Section 12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors, personal
representatives and assigns, and to the benefit of the officers and directors
and controlling persons referred to in Section 7, and no other person will have
any right or obligation hereunder. The term "successors" shall not include any
purchaser of the Shares as such from any of the Underwriters merely by reason of
such purchase.
Section 13. Representation of Underwriters. You will act as Representative
for the several Underwriters in connection with this financing, and any action
under or in respect of this Agreement taken by you will be binding upon all the
Underwriters.
Section 14. Partial Unenforceability. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
Each provision of this Agreement shall be interpreted in such a manner to
be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule in any jurisdiction, such provision will be ineffective only to the
extent of such invalidity, illegality or unenforceability in such jurisdiction
or any provision hereof in any other jurisdiction.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Illinois.
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If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Offerors and the several Underwriters
including you, all in accordance with its terms.
Very truly yours,
MIDWEST BANC HOLDINGS, INC.
By
-----------------------------------
Its
--------------------------------
MBHI CAPITAL TRUST I, a Delaware business
trust
By
-----------------------------------
----------------
Administrative Trustee
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
XXXX XXXXXX INVESTMENTS, INC.
Acting as Representative of the several
Underwriters named in Schedule A
By
----------------------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President
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SCHEDULE A
SCHEDULE OF UNDERWRITERS
NUMBER OF
PREFERRED SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Xxxx Xxxxxx Investments, Inc.....................
---------
TOTAL: 1,000,000
=========
