__________________________________________________________________________
Wintrust Financial Corporation
Wintrust Capital Trust I
_________________________
1,242,000 _____% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Trust Preferred Security)
__________ __, 1998
UNDERWRITING AGREEMENT
EVEREN Securities, Inc.
ABN AMRO Incorporated
Xxxxx Xxxxxxx Inc.
__________________________________________________________________________
Wintrust Financial Corporation
Wintrust Capital Trust I
________________________________
1,242,000 _____% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Trust Preferred Security)
UNDERWRITING AGREEMENT
__________ __, 1998
EVEREN Securities, Inc.
ABN AMRO Incorporated
Xxxxx Xxxxxxx Inc.
Individually and as Representatives of
the Several Underwriters
c/o EVEREN Securities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Wintrust Financial Corporation, an Illinois corporation (the "Company"), and
its fiduciary subsidiary, Wintrust Capital Trust I (the "Trust" and, together
with the Company, the "Offerors"), a statutory business trust organized under
the Delaware Business Trust Act (the "Delaware Act"), confirm their agreement
with the several underwriters listed in Schedule I hereto (the "Underwriters"),
for whom EVEREN Securities, Inc., ABN AMRO Incorporated and Xxxxx Xxxxxxx Inc.
have been duly authorized to act as representatives, with respect to the
proposed issuance and sale by the Trust of its _____% Cumulative Trust Preferred
Securities (liquidation amount $25 per security) representing undivided
beneficial interests in the assets of the Trust (the "Trust Preferred
Securities"). The Offerors propose that the Trust issue the Trust Preferred
Securities pursuant to an Amended and Restated Trust Agreement among Wilmington
Trust Company, as property trustee (the "Property Trustee"), the
administrative trustees named therein (the "Administrative Trustees") and the
Company (the "Trust Agreement"). The Trust Preferred Securities will be
guaranteed by the Company with respect to distributions and payments upon
liquidation, redemption and otherwise pursuant to a Preferred Securities
Guarantee Agreement (the "Guarantee Agreement") between the Company and
Wilmington Trust Company, as trustee (the "Guarantee Trustee"). The Company also
will, pursuant to an Agreement as to Expenses and Liabilities (the "Expense
Agreement") between the Company and the Trust, guarantee the full payment of any
costs, expense or liabilities of the Trust, other than payments to the holders
of Trust Preferred Securities pursuant to the terms of the Trust Preferred
Securities. The proceeds of the sale of the Trust Preferred Securities will be
combined with the proceeds from the sale by the Trust to the Company of the
Trust's common securities (the "Common Securities") and will be used to purchase
_____% subordinated debentures (the "Subordinated Debentures") issued by the
Company pursuant to an Indenture ("Indenture") between the Company and
Wilmington Trust Company, as trustee (the "Indenture Trustee"). The Offerors
hereby confirm their respective agreements with the Underwriters as follows:
1. The Trust Preferred Securities. The 1,080,000 Trust Preferred Securities
proposed to be sold by the Trust are hereinafter referred to as the "Firm
Securities." The Trust also proposes to grant to the Underwriters an option to
purchase up to 162,000 additional Trust Preferred Securities (the "Additional
Securities") if requested by the Underwriters as provided in Section 3 hereof.
The Firm Securities and the Additional Securities are herein collectively called
the "Securities."
2. Registration Statement and Prospectus. The Offerors have prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations (the "Rules and Regulations") of the Commission
thereunder (collectively, the "Act"), and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), a registration statement on Form S-3 (File
Nos. 333-61667 and 333-61667-01) including a prospectus, relating to the
Securities, the Subordinated Debentures and the Guarantee Agreement, that may
have been amended; each such amendment was so prepared and filed. The
registration statement, as amended at the time when it became or becomes
effective, including all financial schedules and exhibits thereto and all of the
information (if any) deemed to be part of the registration statement at the time
of its effectiveness pursuant to Rule 430A under the Act ("Rule 430A"), is
hereinafter referred to as the "Registration Statement"; the prospectus in the
form first provided to the Underwriters by the Offerors in connection with the
offering and sale of the
Securities (whether or not required to be filed pursuant to Rule 424(b) under
the Act ("Rule 424(b)")) is hereinafter referred to as the "Prospectus," except
that if any revised prospectus shall be provided to the Underwriters by the
Offerors for use in connection with the offering of the Securities that differs
from the Prospectus (whether or not any such revised prospectus is required to
be filed by the Offerors pursuant to Rule 424(b)), the term "Prospectus" shall
refer to the revised prospectus from and after the time it is first provided to
the Underwriters for such use; and each preliminary prospectus included in the
Registration Statement prior to the time it became or becomes effective is
herein referred to as a "Preliminary Prospectus."
3. Agreements to Sell and Purchase. On the basis of the representations and
warranties contained in this Agreement, and subject to the terms and conditions
hereof, (i) the Trust agrees to issue and sell to the Underwriters, at a price
of $25.00 per Security (the "Purchase Price"), 1,080,000 Firm Securities; and
(ii) each Underwriter agrees, severally and not jointly, to purchase from the
Trust, at the Purchase Price, the aggregate number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I hereto. As compensation to
the Underwriters for their commitments hereunder and in view of the fact that
the proceeds of the sale of the Securities (together with the proceeds from the
sale by the Trust to the Company of the Common Securities) will be used to
purchase the Subordinated Debentures, the Company hereby agrees to pay at the
Closing Date to the Underwriters a commission per Security equal to $0.90 per
Security, or $972,000 in the aggregate ($1,117,800 if the over-allotment with
respect to the Additional Securities is exercised in full).
On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof, (i) the Trust agrees
to sell to the Underwriters, at the Purchase Price, up to 162,000 Additional
Securities; and (ii) the Underwriters shall have the right to purchase,
severally and not jointly, from time to time, up to an aggregate of 162,000
Additional Securities at the Purchase Price. Additional Securities may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Securities. If
any Additional Securities are to be purchased, each Underwriter, severally and
not jointly, agrees to purchase the number of Additional Securities that bears
the same proportion to the total number of Additional Securities to be purchased
as the number of Firm Securities set forth opposite the name of such Underwriter
in Schedule I bears to the total number of Firm Securities.
4. Agreements of the Offerors as to Delivery and Payment. The Offerors
agrees with each Underwriter that:
(a) Delivery to the Underwriters of, and payment to the Trust for, the
Firm Securities shall be made at 10:00 A.M., Chicago time, on the third (or
if the Firm Securities are priced, as contemplated by Rule 15c6-1(c) under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after
4:30 p.m. Eastern time, on the fourth) full business day (such time and
date being referred to as the "Closing Date") following the date of the
initial public offering of the Firm Securities as advised to you by the
Company, at such place as you shall designate.
(b) Delivery to the Underwriters of and payment for any Additional
Securities to be purchased by the Underwriters shall be made at such place
as you shall designate, at 10:00 A.M., Chicago time, on such date (the
"Option Closing Date"), which may be the same as the Closing Date but shall
in no event be earlier than the Closing Date, as shall be specified in a
written notice from you to the Offerors of the Underwriters' determination
to purchase a number, specified in said notice, of Additional Securities.
Any such notice may be given at any time within 30 days after the date of
this Agreement.
(c) The Securities will be delivered by the Trust to the Underwriters
on the Closing Date or the Option Closing Date against payment of the
Purchase Price therefor by certified or official bank check or wire
transfer of next-day funds payable to the order of the Trust to an account
designated by the Trust. Delivery of the Securities may be made by credit
through full fast transfer to the accounts at The Depository Trust Company
designated by you. Certificates representing the Securities, in definitive
form and in such denominations and registered in such names as you may
request in writing not less than two business days prior to the Closing
Date or the Option Closing Date notice to the Offerors shall be prepared
and will be made available for inspection not later than 9:30 A.M., Chicago
time, on the business day next preceding the Closing Date or the Option
Closing Date, with any transfer taxes payable upon initial issuance or the
transfer thereof duly paid by the Company for the respective accounts of
the Underwriters against payment of the Purchase Price therefor.
5. Further Agreements of the Offerors. The Offerors also agree with each
Underwriter that:
(a) they will, if the Registration Statement has not heretofore become
effective under the Act, file an amendment to the Registration Statement
or, if necessary pursuant to Rule 430A under the Act, a post-effective
amendment to the Registration Statement, as soon as practicable
after the execution and delivery of this Agreement, and will use their best
efforts to cause the Registration Statement or such post-effective
amendment to become effective at the earliest possible time; and the
Offerors will comply fully and in a timely manner with the applicable
provisions of Rule 424(b) and Rule 430A under the Act;
(b) they will advise you promptly and, if requested by you, confirm
such advice in writing, (i) when the Registration Statement has become
effective, if and when the Prospectus is sent for filing pursuant to Rule
424 under the Act and when any post-effective amendment to the Registration
Statement becomes effective, (ii) of the receipt of any comments from the
Commission that relate to the Registration Statement or requests by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement, or of the suspension of qualification of the
Securities for offering or sale in any jurisdiction, or the initiation or,
to the best knowledge of the Offerors, threat of any proceedings for such
purpose by the Commission or any state securities commission or other
regulatory authority, and (iv) of the happening of any event or information
becoming known during the period referred to in paragraph (e) below that
makes any statement of a material fact made in the Registration Statement
untrue or that requires the making of any additions to or changes in the
Registration Statement (as amended or supplemented from time to time) in
order to make the statements therein not misleading or that makes any
statement of a material fact made in the Prospectus (as amended or
supplemented from time to time) untrue or that requires the making of any
additions to or changes in the Prospectus (as amended or supplemented from
time to time) in order to make the statements therein, not misleading; if
at any time the Commission shall issue or institute proceedings (or
threaten to institute any such proceedings) to issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue or
institute proceedings (or threaten to institute proceedings) to issue an
order suspending the qualification or exemption of the Securities under any
state securities or blue sky laws, the Offerors shall use best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time;
(c) they will furnish to you without charge one signed copy of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits filed therewith, and will furnish
to you and each Underwriter designated by you such number of conformed
copies of
the Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request;
(d) they will not file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
make any amendment or supplement to the Prospectus of which you shall not
previously have been advised and provided a copy a reasonable period of
time prior to the filing thereof or to which you or your counsel shall
reasonably object, and they will prepare and file with the Commission,
promptly upon your reasonable request, any amendment to the Registration
Statement or supplement to the Prospectus that may be necessary or
advisable in connection with the distribution of the Securities by you in
your or your counsel's opinion, and will use best efforts to cause the same
to become effective as promptly as possible;
(e) promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as a prospectus is required by
the Act to be delivered in connection with the sales by an underwriter or a
dealer (in the opinion of your counsel), they will furnish to each
Underwriter and dealer without charge as many copies of the Prospectus (and
any amendment or supplement of the Prospectus) as such Underwriter or
dealer may reasonably request for the purposes contemplated by the Act, and
the Offerors consent to the use of the Prospectus and any amendment or
supplement thereto by any Underwriter or any dealer, both in connection
with the offering or sale of the Securities and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection therewith;
(f) if during the period specified in paragraph (e) any event shall
occur or information become known as a result of which in the opinion of
your counsel it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in light of the circumstances
existing as of the date the Prospectus is delivered to a purchaser, not
misleading, or it is necessary to amend or supplement the Prospectus to
comply with any law, forthwith to prepare and, subject to paragraph 5(d)
above, they will file with the Commission at the sole expense of the
Company an appropriate amendment or supplement to the Prospectus so that
the statements of any material facts in the Prospectus, as so amended and
supplemented, will not in light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with law
and it will furnish to the Underwriters and to such dealers as the
Underwriters shall specify, at the sole expense of the
Company, such number of copies thereof as such Underwriters or dealers may
reasonably request;
(g) prior to any public offering of the Securities, it will cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the Securities for offer and sale by the
several Underwriters and by dealers under the state securities or blue sky
laws of such jurisdictions as you may request (provided that the Offerors
shall not be obligated to qualify as foreign corporations in any
jurisdiction in which they are not so qualified or to take any action which
would subject them to general consent to service of process in any
jurisdiction in which they are not now so subject), and the Offerors will
continue such qualification in effect so long as required by law for the
distribution of the Securities and will file such consents to service of
process or other documents as may be necessary in order to effect such
registration or qualification (provided that the Offerors shall not be
obligated to take any action that would subject it to general consent to
service of process in any jurisdiction in which they are not now so
subject);
(h) they will not, prior to the exercise in full or termination or
expiration of the option to purchase the Option Securities, incur any
liability or obligation, direct or contingent, or enter into any material
transaction, other than in the ordinary course of business, except as
contemplated by the Prospectus;
(i) they will mail and make generally available to their security
holders and furnish to the Underwriters as soon as reasonably practicable a
consolidated earnings statement covering a period of at least 12 months
beginning after the "effective date" (as defined in Rule 158 under the Act)
of the Registration Statement (but in no event commencing later than 90
days after such date) that will satisfy the provisions of Section 11(a) of
the Act and Rule 158 thereunder, and will advise you in writing when such
statement has been made so available;
(j) during the period of five years after the date of this Agreement,
they will furnish to you a copy (i) as soon as practicable after the filing
thereof, of each report filed by either of the Offerors with the
Commission, any securities exchange or the National Association of
Securities Dealers, Inc. ("NASD"); (ii) as soon as practicable after the
release thereof, of each material press release in respect of either of the
Offerors; (iii) as soon as available, of each report of the Company mailed
to shareholders; and (iv) as soon as
available, such other publicly available information concerning the
Offerors as you may reasonably request;
(k) whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective as to all of its provisions
or is terminated, to pay all costs, fees and expenses incident to the
performance by the Offerors of their obligations hereunder, including (i)
the preparation, printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits), each
Preliminary Prospectus and all amendments and supplements to any of them
prior to or during the period specified in paragraph (e) above of this
Section 5, (ii) the word processing, reproduction and distribution of this
Agreement, the Blue Sky Survey and any other agreements, memoranda,
correspondence and other documents prepared and delivered by the
Underwriters or their counsel in connection with the offering of the
Securities (including in the case of the Blue Sky Survey any disbursements
of counsel for the Underwriters relating to such preparation and delivery),
(iii) the registration or qualification of the Securities for offer and
sale under the securities or blue sky laws of the several states, including
in each case the fees and disbursements of counsel for the Underwriters,
relating to such registration or qualification and memoranda relating
thereto, (iv) filings and clearance with the NASD in connection with the
offering and sale of the Securities, (v) the listing of the Securities on
the Nasdaq National Market ("Nasdaq"), (vi) furnishing such copies of the
Registration Statement, each Preliminary Prospectus, the Prospectus and all
amendments and supplements thereto as may be requested for use in
connection with the offering or sale of the Securities by the Underwriters
or by dealers to whom the Securities may be sold, (vii) obtaining the
opinions to be provided pursuant to Sections 8(e) and 8(f) of this
Agreement and (viii) the performance by the Offerors of all of their other
obligations under this Agreement; if the sale of the Securities provided
for herein is not consummated because the Underwriters exercise their right
to terminate this Agreement pursuant to Section 9 hereof and any of the
following have occurred during the term of this Agreement: (a) there has
been any material adverse change in the condition (financial or otherwise),
earnings, affairs, business or prospects of the Company, or (b) either
Offeror shall refuse or be unable to comply with any provision hereof
(except as the result of a breach of this Agreement by the Underwriters),
the Company will promptly reimburse the Underwriters upon demand for all
reasonable out-of-pocket expenses (including the fees and disbursements of
counsel for the Underwriters), not to exceed $5,000 in the aggregate, that
shall have been incurred by the Underwriters in connection with the
proposed purchase and sale of Securities;
(l) they will use the net proceeds received by them from the sale of
the Securities and the Subordinated Debentures in the manner specified in
the Prospectus and will file such reports with the Commission with respect
to the application of the proceeds therefrom as may be required in
accordance with Rule 463 under the Act and will furnish you copies of any
such reports as soon as practicable after the filing thereof;
(m) if, at the time of effectiveness of the Registration Statement,
any information shall have been omitted therefrom in reliance upon Rule
430A, then immediately following the execution and delivery of this
Agreement, they will prepare, and file or transmit for filing with the
Commission in accordance with such Rule 430A and Rule 424(b), copies of an
amended prospectus, or, if required by such Rule 430A, a post-effective
amendment to the Registration Statement (including an amended prospectus),
containing all information so omitted;
(n) they will cause the Securities to be listed, subject to notice of
issuance or sale, on Nasdaq and will comply with all registration, filing
and reporting requirements of Nasdaq;
(o) they will not take, directly or indirectly, any action designed
to or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of either
Offeror to facilitate the sale or resale of the Securities;
(p) they will inform the Florida Department of Banking and Finance at
any time prior to the consummation of the distribution of the Securities by
the Underwriters if either of them commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba, with
such information to be provided within 90 days after the commencement
thereof or after a change occurs with respect to previously reported
information; and
(q) they will use its best efforts to do and perform all things
required to be done and performed under this Agreement by them prior to or
after the Closing Date or any Option Closing Date, as the case may be, and
to satisfy all conditions precedent to the delivery of the Securities.
6. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant to, and
agree with, each Underwriter as of the date hereof, the Closing Date and
each Option Closing Date (except for such representations that are
specified as being made as of a particular date) as follows:
(i) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus relating to the
proposed offering of the Securities nor instituted or threatened any
proceedings for that purpose. The Registration Statement, on the date
it was or is declared effective by the Commission, each Preliminary
Prospectus, on the date of the filing thereof with the Commission, and
the Prospectus and any amendment or supplement thereto, on the date of
filing thereof with the Commission (or if not filed, on the date
provided by the Offerors to the Underwriters in connection with the
offering and sale of the securities) and, as may have been amended or
supplemented through such date, at the Closing Date and the Option
Closing Date, conformed or will conform with the requirements of the
Act, the Rules and Regulations and the Trust Indenture Act and the
rules and regulations thereunder. The Registration Statement, on the
date it was or is declared effective by the Commission, upon the
filing or first delivery to the Underwriters of the Prospectus (or any
supplement to the Prospectus) and at the Closing Date and the Option
Closing Date, if any, did not or will not contain an untrue statement
of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; the
Prospectus and any amendment or supplement thereto, on the date of
filing thereof with the Commission (or if not filed, on the date
provided by the Offerors to the Underwriters in connection with the
offering and sale of the Securities) and at the Closing Date and each
Option Closing Date did not and will not include an untrue statement
of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading;
provided that the foregoing shall not apply to statements in or
omissions from the Registration Statement and the Prospectus made or
omitted in reliance upon, and in conformity with, information relating
to the Underwriters furnished in writing to the Offerors by or on
behalf of the Underwriters with your consent expressly for use
therein. The Offerors hereby acknowledge for all purposes under this
Agreement that (A) the statements set forth under the caption
"Underwriting" in the Prospectus and (B) the stabilization
legend on page ii of the Prospectus constitute the only written
information furnished to the Offerors by or on behalf of the
Underwriters for use in the preparation of the Registration Statement
or the Prospectus or any amendment or supplement thereto.
(ii) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of Illinois and
is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended (the "BHC Act"), supervised by the
Board of Governors of the Federal Reserve System (the "FRB"). North
Shore Community Bank and Trust Company, Lake Forest Bank and Trust
Company, Hinsdale Bank and Trust Company, Libertyville Bank and Trust
Company, Barrington Bank and Trust Company, N.A. and Crystal Lake Bank
and Trust Company, N.A. (collectively, the "Banks"), First Insurance
Funding Corporation ("FIFC"), and Wintrust Asset Management Company
(in organization) ("WAMC" and, together with the Banks and FIFC, the
"Subsidiaries") constitute the only direct or indirect operational
subsidiaries of the Company. Each Subsidiary has been duly organized
and is validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization, as the case may be.
Each of the Company and its Subsidiaries has full power and authority,
corporate or otherwise, to own or lease its properties and assets and
to conduct its business as described in the Registration Statement and
the Prospectus and is duly qualified to do business and in good
standing in each jurisdiction in which it owns or leases real property
or in which the conduct of its business or the ownership or leasing of
property requires such qualification, except where the failure to be
so qualified, either individually or in the aggregate, would not have
a material adverse effect on the condition (financial or otherwise),
business, assets, prospects, net worth or results of operations of the
Trust, the Company and the Subsidiaries, taken as a whole (a "Material
Adverse Effect"). Other than the Trust and the Subsidiaries, the
Company owns no capital stock or other equity, ownership or
proprietary interest in any company, partnership, association, trust
or other entity. The accounts of the Banks are insured by the Bank
Insurance Fund of the Federal Deposit Insurance Corporation (the
"FDIC") up to the maximum applicable amount in accordance with the
rules and regulations of the FDIC, and no proceedings for the
termination or revocation of such membership or insurance are pending,
or to the best knowledge of the Offerors, threatened.
(iii) 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 to enter
into and perform its obligations under this Agreement, the Securities,
the Common Securities and the Trust Agreement 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. The Trust has conducted and will conduct no business
other than the transactions contemplated by the Trust Agreement and
described in the Prospectus. The Trust is not a party to or otherwise
bound by any agreement other than those described in the Prospectus.
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. The Trust is and will be treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting
principles.
(iv) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and Prospectus, (A) none of the Offerors or the
Subsidiaries has incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions not in
the ordinary course of business, nor purchased any of its outstanding
capital stock or declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock or otherwise, and (B)
there has not been any material adverse change in either Offeror's or
any Subsidiary's condition (financial or otherwise), business,
affairs, prospects or results of operations or any material change in
their respective capital stock, short-term debt or long-term debt.
(v) The 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 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 as enforceability of the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general equity
principles, will be in the form contemplated by, and entitled to the
benefits of, the Indenture and will conform in all material respects
to the statements relating thereto in the Prospectus.
(vi) The Common Securities have been duly authorized by the
Trust and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Registration Statement
and 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. The issuance
of the Common Securities is not subject to preemptive or other similar
rights. 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, mortgage, pledge, lien, encumbrance,
claim or equity.
(vii) The 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 in all material respects conform to the statements
relating thereto contained in the Prospectus. The issuance of the
Securities is not subject to preemptive or other similar rights.
Holders of Securities will be entitled to the same limitation of
personal liability under Delaware law as extended to stockholders of a
private corporation for profit.
(viii) Each of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement and 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 legal, valid and binding
obligation of the Company and/or the Trust, as the case may be,
enforceable in accordance with its terms, except as enforceability of
the same may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and by general equity principles. Each Offeror 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, in the case of the Trust, to authorize, issue and
sell the Securities as contemplated by this Agreement, and each of the
Indenture and the Trust 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) Neither the Company nor any Subsidiary is in violation of
its respective charter or by-laws. The Trust is not in violation of
the Trust Agreement or its amended certificate of trust filed with the
State of Delaware on September __, 1998 (the "Certificate of Trust").
Neither Offeror nor any Subsidiary is in violation of or in breach of
or in default in (nor has any event occurred that with notice or lapse
of time, or both, would be a breach of or a default in) the
performance of any obligation, agreement or condition contained in any
agreement, lease, contract, permit, license, franchise agreement,
mortgage, loan agreement, debenture, note, deed of trust, bond,
indenture or other evidence of indebtedness or any other instrument or
obligation (collectively, "Obligations and Instruments") to which any
of them is a party or by which any of them or any of their respective
properties or assets is bound or affected (except for such
contravention or default as would not have a Material Adverse Effect).
Neither Offeror nor any Subsidiary is in violation of any statute,
judgment, decree, order, rule or regulation (collectively, "Laws")
applicable to any of them or any of their respective properties or
assets that, alone, or together with other violations of Laws, would
result in a Material Adverse Effect. To the best knowledge of the
Offerors, no other party under any contract or other agreement to
which either Offeror or any Subsidiary is a party is in material
default thereunder except for such defaults as would not individually
or in the aggregate result in a Material Adverse Effect.
(x) 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
contemplated hereby or thereby will not, alone or upon notice or the
passage of time or both, (A) require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body or third party
(except such as may be required under the Act and the securities or
blue sky laws of the various states or by the NASD), (B) result in the
creation or imposition of any lien, charge or encumbrance upon any of
the properties or assets of either Offeror pursuant to the terms and
provisions of any Obligation or Instrument, (C) conflict with or
constitute a breach or default under any Obligation or Instrument to
which either Offeror is a party or by which either of them or any of
their respective properties or assets is bound (except for such
creation, conflict, breach or default as would not have a Material
Adverse Effect), or conflict with or result in a breach or violation
of any of the terms and provisions of the Company's charter or by-
laws, the Trust's Trust Agreement or its Certificate of Trust, or (D)
assuming compliance with the Act and all applicable state securities
or Blue Sky laws, violate or conflict with any Laws applicable to the
Company or any of its properties or assets (except for such violation
or conflict as could not have a Material Adverse Effect). No action,
suit or proceeding before any court or arbitrator or any governmental
body, agency or official (domestic or foreign) is pending against or,
to the best knowledge of the Offerors, threatened against either
Offeror, that, if adversely determined, could reasonably be expected
to in any manner invalidate this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement or the Expense Agreement.
(xi) Except as set forth in the Prospectus, there is no action,
suit, proceeding, inquiry or investigation, governmental or otherwise
before any court, arbitrator or governmental agency or body
(collectively, "Proceedings") pending to which either Offeror or any
Subsidiary is a party or to which any of their respective properties
or assets are subject, that is reasonably expected to result in a
Material Adverse Effect, or that seeks to restrain, enjoin, prevent
the consummation of or otherwise challenge the issuance or sale of any
of the Securities to be sold hereunder, and, to the best knowledge of
the Offerors, no such Proceedings are threatened or contemplated.
(xii) There is no contract, document, agreement or transaction
to which either Offeror or any Subsidiary is a party, or that involved
or involves any of them or any of their respective properties or
assets that is required to be described in or filed as exhibits to the
Registration Statement or the Prospectus by the Act or the Rules and
Regulations that have not been so described or filed.
(xiii) No action has been taken with respect to either Offeror,
and, to the best knowledge of the Offerors, no statute, rule,
regulation or order has been enacted, adopted or issued by any
governmental agency that suspends the effectiveness of the
Registration Statement, prevents or suspends the use of any
Preliminary Prospectus or the Prospectus or suspends the sale of the
Securities in any jurisdiction referred to in Section 5(g) hereof. No
injunction, restraining order or order of any nature by a federal or
state court of competent jurisdiction has been issued with respect to
either Offeror that might prevent the issuance of the Securities,
suspend the effectiveness of the Registration Statement, prevent or
suspend the use of any Preliminary Prospectus or the Prospectus or
suspend the sale of the Securities in any jurisdiction referred to in
Section 5(g) hereof.
(xiv) The capital stock of the Company conforms to the
description thereof in the Registration Statement and Prospectus under
the caption "Capitalization." Neither the filing of the Registration
Statement nor the offering or sale of the Subordinated Debentures or
Securities as contemplated by this Agreement gives, rise to any rights
for or relating to the registration of any shares of capital stock of
the Company. All of the issued and outstanding shares of capital stock
of each Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and the Company owns of record
and beneficially, free and clear of any securities interests, claims,
liens, proxies, equities or other encumbrances, all of the issued and
outstanding shares of such stock. Except as described in the
Registration Statement and the Prospectus, there are no options,
warrants, agreements, contracts or other rights in existence to
purchase or acquire from any Subsidiary any shares of the capital
stock of such Subsidiary.
(xv) 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.
(xvi) The Company's obligations under the Guarantee Agreement
are subordinated and junior in right of payment to all "Senior Debt,"
"Subordinated Debt" and "Additional Senior Obligations" (each as
defined in the Indenture) of the Company.
(xvii) The Subordinated Debentures are subordinate and junior
in right of payment to all "Senior Debt," "Subordinated Debt" and
"Additional Senior Obligations" of the Company.
(xviii) Each of the Administrative Trustees is an employee of
the Company and has been duly authorized by the Company to execute and
deliver the Trust Agreement.
(xix) To the best knowledge of the Company, neither Offeror
nor any Subsidiary has violated any foreign, federal, state or local
law or regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws") that, in each case
or in the aggregate, might result in a Material Adverse Effect, nor is
any of the property owned or leased by either Offeror or any
Subsidiary is contaminated with any waste or hazardous substances.
Neither of the Offerors nor any Subsidiary is an "owner or operator"
of a "facility" or "vessel" that owns, possesses, transports,
generates, discharges or disposes of a "hazardous substance" as those
terms are defined in (S)9601 of the Comprehensive Response
Compensation and Liability Act of 1980, U.S.C. (S)9601 et seq.
(xx) Neither the Company nor any Subsidiary has any liability
under any "pension plan," as defined in the Employee Retirement Income
Security Act of 1974, as amended.
(xxi) The Offerors and the Subsidiaries hold such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities or third parties ("Permits"), including, without
limitation, under any applicable Environmental Laws, as are necessary
to own, lease and operate their respective properties and assets and
to conduct their respective businesses, except where the failure to
have any such Permit would not have a Material Adverse Effect. The
Offerors and the Subsidiaries have fulfilled and performed all of
their respective material obligations with respect to such Permits,
and no event has occurred that allows, or after notice or lapse of
time or both, would allow revocation or termination thereof or result
in any other material impairment of the rights of the holder of any
such Permit.
(xxii) Neither of the Offerors nor any Subsidiary is an
"investment company", a company "controlled" by an "investment
company" or an "investment adviser" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(xxiii) The Offerors and the Subsidiaries have good and
marketable title, free and clear of all liens, claims, encumbrances
and restrictions (except liens for taxes not yet due and payable) to
all property and assets described in the Registration Statement as
being owned by them, except as described or referred to in the
Prospectus. All leases to which either Offeror or any Subsidiary is a
party are subsisting, valid and binding and no default of such Offeror
or Subsidiary or, to the best knowledge of the Offerors, any other
person has occurred or is continuing thereunder that might result in a
Material Adverse Effect. Such Offeror or Subsidiary enjoys peaceful
and undisturbed possession under all such leases to which they are a
party as lessee with such exceptions as do not materially interfere
with the use made thereof by such Offeror or Subsidiary.
(xxiv) The Offerors and the Subsidiaries maintain reasonably
adequate insurance for the conduct of their respective businesses in
accordance with prudent business practices with reputable third-party
insurers.
(xxv) KPMG Peat Marwick LLP, the accounting firm that has
certified the financial statements incorporated by reference in the
Registration Statement and the Prospectus, is an independent public
accounting firm with respect to the Trust, the Company and the
Subsidiaries as required by the Act.
(xxvi) The audited consolidated financial statements of the
Company, together with related notes, incorporated by reference in the
Registration Statement and the Prospectus, comply in all material
respects with the requirements of the Act and the Exchange Act, are
accurate and present fairly the financial position, results of
operations and cash flows of the Company at the indicated dates and
for the indicated periods. Such financial statements of have been
prepared in accordance with generally accepted accounting principles
("GAAP") consistently applied throughout the periods involved, and all
adjustments necessary for a fair presentation of results for such
periods have been made. The unaudited interim financial information
and the summary and selected financial and operating data incorporated
by
reference in the Registration Statement and the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with the audited financial statements included therein.
(xxvii) No holder of any security of either Offeror has any
right to require inclusion of any such security in the Registration
Statement. There are no preemptive rights with respect to the offering
being made by the Prospectus.
(xxviii) No labor dispute with the employees of the Company or
any Subsidiary exists or, to the best knowledge of the Company, is
imminent, that could reasonably be expected to result in a Material
Adverse Effect.
(xxix) Each of the Offerors and each Subsidiary has filed or
caused to be filed, or has properly filed extensions for, all foreign,
federal, state and local income, value added and franchise tax returns
and has paid all taxes and assessments shown thereon as due, except
for such taxes and assessments as are disclosed or adequately reserved
against and that are being contested in good faith by appropriate
proceedings, promptly instituted and diligently conducted. All
material tax liabilities are adequately provided for on the books of
such Offeror or Subsidiary, and there is no material tax deficiency
that has been or might be asserted against any of them that is not so
provided for.
(xxx) Each Offeror and each Subsidiary is conducting and
intends to conduct its business so as to comply in all material
respects with applicable federal, state, local and foreign government
Laws, except where the failure to comply would not have a Material
Adverse Effect. Except as set forth in the Registration Statement and
the Prospectus, neither of the Offerors nor any Subsidiary is charged
with or, to the best knowledge of the Offerors, under investigation
with respect to, any material violation of any such Laws.
(xxxi) Neither Offeror has taken or will take, directly or
indirectly, any action designed to or which has constituted or that
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 either Offeror to facilitate the sale or resale of the
Securities.
(xxxii) None of the Offerors, any Subsidiary nor, to the best
knowledge of the Offerors, any employee or agent of any of them has
made any payment of funds of such Offeror or Subsidiary or received
has retained any funds in violation of any Law, rule or regulation
(including, without limitation, the Foreign Corrupt Practices Act) or
of a character required to be disclosed in the Prospectus. Neither of
the Offerors nor any Subsidiary has, at any time during the past five
years, (A) made any unlawful contributions to any candidate for any
political office, or failed fully to disclose any contribution in
violation of law, or (B) made any unlawful payment to state, federal
or foreign government officer or officers, or other person charged
with similar public or quasi-public duty.
(xxxiii) Each of the Company and the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, and (iii)
access to assets is permitted only in accordance with management's
general or specific authorization.
(xxxiv) The Offerors have not distributed and will not
distribute any prospectus or other offering material in connection
with the offering and sale of the Securities other than any
Preliminary Prospectus or the Prospectus or other materials permitted
by the Act to be distributed by the Company.
(xxxv) Other than as contemplated by this Agreement or
described in the Registration Statement, neither Offeror has incurred
any liability for any finder's or broker's fee or agent's commission
in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
(xxxvi) Each of Barrington Bank and Trust Company, N.A. and
Crystal Lake Bank and Trust Company, N.A. is in good standing with the
Office of the Comptroller of the Currency (the "OCC"); each of the
other Subsidiaries is in good standing with the Illinois Commissioner
of Banks and Real Estate (the "Commissioner"); and the activities of
the Company and the Subsidiaries are permitted under applicable
federal and state banking laws and regulations. FIFC is validly
licensed by the
Illinois Department of Financial Institutions and in all other
jurisdictions in which the conduct of its business requires license or
qualification. The Company has all necessary approvals, including the
approvals of the OCC, the Commissioner and the FRB, as applicable, to
own the capital stock of the Subsidiaries, [except that the
application of WAMC for a trust company charter is currently pending
with the OCC]. Neither the Company nor any of the Subsidiaries is a
party or subject to any agreement or memorandum with, or directive or
order issued by, the FRB, the OCC, the Commissioner, the FDIC or other
regulatory authority having jurisdiction over it (the "Regulators"),
which imposes any restrictions or requirements not generally
applicable to entities of the same type as the Company and the
Subsidiaries. Neither the Company nor any Subsidiary is subject to any
directive from any Banking Regulator to make any material change in
the method of conducting their respective businesses, and no such
directive is pending or threatened by such Banking Regulators.
(xxxvii) The Offerors expect that the Securities will qualify
as "tier 1" capital (as defined in 12 C.F.R. Part 325).
(xxxviii) The Banks have properly administered, in all material
respects, all accounts for which any of them acts as a fiduciary,
including but not limited to accounts for which any of them serves as
a trustee, agent, custodian, personal representative, guardian,
conservator or investment advisor, in accordance with the terms of the
governing documents and applicable state and federal law and
regulation and common law. Neither any Bank nor any of their
respective directors, officers or employees has committed any material
breach of trust with respect to any such fiduciary account, and the
accountings for each such fiduciary account are true and correct in
all material respects and accurately reflect the assets of such
fiduciary account in all material respects.
(xxxix) The conditions for use of Form S-3, as set forth in
the General Instructions thereto, have been satisfied.
(xl) The Offerors and the Subsidiaries are in compliance
with all provisions of Section 1 of Florida Statutes, Section 517.075,
An Act Relating to Disclosure of Doing Business with Cuba.
(b) Any certificate signed by any officer of the Company or a trustee
of the Trust and delivered to you or to counsel for the Underwriters shall
be deemed a representation and warranty jointly and severally made by the
Offerors to each Underwriter as to the matters covered thereby and shall be
deemed incorporated herein in its entirety and shall be effective as if
such representation and warranty were made herein.
7. Indemnification.
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each of the Underwriters and each person, if any, who controls
each of the Underwriters within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act (the "indemnified parties") from and against
any and all losses, claims, damages, liabilities and judgments caused by,
arising out of, related to or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(as amended or supplemented if the Offerors shall have furnished any
amendments or supplements thereto), including the information deemed to be
part of the Registration Statement at the time of effectiveness pursuant to
Rule 430A, if applicable, or the Prospectus or any Preliminary Prospectus
or caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Offerors shall not be liable in any
such case to the extent that such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission made or omitted in
reliance upon, and in conformity with, information relating to the
Underwriters furnished in writing to the Offerors by or on behalf of the
Underwriters with your consent expressly for use therein.
(b) In case any action shall be brought against any of the
indemnified parties, based upon any Preliminary Prospectus, the
Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the
Offerors, such indemnified parties shall promptly notify the Offerors in
writing (but the failure so to notify shall not relieve the Offerors of any
liability that they may otherwise have to such indemnified parties under
this Section 7 (although the Offerors' liability to an indemnified party
may be reduced on a monetary basis to the extent, but only to the extent,
they have been prejudiced by such failure on the part of such indemnified
party)) and the Offerors shall promptly assume the defense thereof,
including the employment of counsel satisfactory to such
indemnified party and payment of all fees and expenses. The indemnified
parties shall each have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such indemnified parties unless (i)
the employment of such counsel shall have been specifically authorized by
the Offerors, (ii) the Offerors shall have failed to assume promptly the
defense or to employ counsel reasonably satisfactory to such indemnified
party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified parties and the Offerors,
and an indemnified party shall have been advised by counsel that there may
be one or more legal defenses available to one or more of the indemnified
parties that are different from or additional to those available to the
Offerors (in which case the Offerors shall not have the right to assume the
defense of such action on behalf of such indemnified party, it being
understood, however, that the Offerors shall not, in connection with any
one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for the
indemnified parties, which firm shall be designated in writing by you, and
that all such fees and expenses shall be reimbursed promptly as they are
incurred). The Offerors shall not be liable for any settlement of any such
action effected without their written consent, which consent shall not be
unreasonably withheld, but if settled with the written consent of the
Offerors, the Offerors agree to indemnify and hold harmless the indemnified
parties from and against any and all loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second sentence of this paragraph, the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 10
business days after delivery by registered or certified mail to the proper
address for notice to such indemnifying party of the aforesaid request
(whether or not such delivery is accepted) and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. 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 and complete release in writing of such
indemnified party from any and all liability on claims that are the subject
matter of such proceeding, which such settlement shall be in form and
substance satisfactory to the indemnified party. The indemnification
provided in this Section 7 will be in addition to any liability which the
Offerors may otherwise have.
(c) The Underwriters agree, severally and not jointly, to indemnify
and hold harmless the Offerors and their directors, officers and trustees
who sign the Registration Statement and any person controlling the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Offerors to the
Underwriters but only with reference to information stated in or omitted
from the Registration Statement, the Prospectus or any Preliminary
Prospectus in reliance upon, and in conformity with, information relating
to the Underwriters furnished in writing to the Offerors by or on behalf of
the Underwriters with your consent expressly for use therein. In case any
action shall be brought against the Offerors or any other such person based
on the Registration Statement, the Prospectus or any Preliminary Prospectus
and in respect of which indemnity may be sought against the Underwriters,
the Underwriters shall have the rights and duties given to the Offerors by
Section 7(b) hereof (except that if the Offerors shall have assumed the
defense thereof, such Underwriter shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of such
Underwriter), and the Offerors and such other persons shall have the rights
and duties given to the "indemnified parties" by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is for any
reason unavailable to an indemnified party or insufficient to hold such
indemnified party harmless in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities and judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Offerors
on the one hand and the Underwriters on the other from the offering of the
Securities or (ii) if the allocation provided in clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Offerors on the one hand and the
Underwriters on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims,
damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering and sale of the
Securities (before deducting expenses) received by the Offerors on the one
hand, and the total underwriting discounts and commissions received by the
Underwriters on the other, bears to the total price to the public of the
Securities, in each case as set forth in the table (and the footnotes
thereto) on the cover page of 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 the alleged omission to state a material fact
relates to information supplied by the Offerors or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or judgments referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the 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 paid or 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'
obligation in this Section 7(d) to contribute are several in proportion to
the respective amount of Securities purchased hereunder by each Underwriter
and not joint.
8. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
Closing Date and the Option Securities on any Option Closing Date are subject to
the fulfillment of each of the following conditions on or prior to the Closing
Date and each Option Closing Date:
(a) All the representations and warranties of the Offerors contained
in this Agreement and in any certificate delivered hereunder shall be true
and correct on the Closing Date and the Option Closing Date with the same
force and effect as if made on and as of the Closing Date or Option Closing
Date, as applicable, except for any such representations and warranties
made as of a specified date, which shall be true and correct as of such
date. The Offerors shall not have failed at or prior to the Closing Date or
Option Closing Date, as applicable, to perform or comply in all respects
with any of the agreements herein contained and required to be performed or
complied with by them at or prior to the Closing Date or Option Closing
Date, as applicable.
(b) If the Registration Statement is not effective at the time of the
execution and delivery of this Agreement, the Registration Statement shall
have become effective (or, if a post-effective amendment is required to be
filed pursuant to Rule 430A under the Act, such post-effective amendment
shall have become effective) not later than 4:30 P.M., Chicago time, on the
date immediately following the date of this Agreement or such later time as
you may approve in writing or, if the Registration Statement has been
declared effective prior to the execution and delivery hereof in reliance
on Rule 430A, the Prospectus shall have been filed as required hereby, if
necessary; and at the Closing Date and each applicable Option Closing Date,
no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
commenced or shall be pending before or, to the best knowledge of the
Underwriters and the Offerors, threatened by the Commission. Every request
for additional information on the part of the Commission shall have been
complied with to the Underwriters' satisfaction. No stop order suspending
the sale of the Securities in any jurisdiction referred to in Section 5(g)
shall have been issued, and no proceeding for that purpose shall have been
commenced or shall be pending or threatened.
(c) The Securities shall have been qualified for sale, if required,
under the blue sky laws of such states as shall have been specified by you.
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any material change, or any material development
involving a prospective change, in or affecting particularly the business
or properties of the Offerors or the Subsidiaries, whether or not arising
in the ordinary course of business, that, in your judgment, makes it
impractical or inadvisable to proceed with the public offering or purchase
of the Securities as contemplated hereby.
(e) You shall have received an opinion (satisfactory to you and your
counsel) dated the Closing Date or the Option Closing Date, as the case may
be, of Xxxxxx, Xxxxx, Xxxxxxx & Xxxxxxxx, counsel for the Offerors, to the
effect that:
(i) The Company has been duly organized and is a validly
existing corporation in good standing under the laws of Illinois. Each
of Barrington Bank and Trust Company, N.A. and Crystal Lake Bank and
Trust Company, N.A. is validly existing as a national banking
association in good standing under the federal laws of the United
States. Each of the other Subsidiaries is validly existing as a bank
or other entity in good standing under the laws under which it was
organized. Each of the Company and the Subsidiaries has all necessary
power and authority, corporate or otherwise, to own, lease and operate
their respective properties and assets and to conduct their respective
businesses as described in the Registration Statement and the
Prospectus, and FIFC is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which its
ownership or lease or real property or the conduct of its business
makes such qualification necessary and in which the failure to so
qualify could have a Material Adverse Effect.
(ii) The Company has all necessary power and authority,
corporate, trust or otherwise, to enter into and perform this
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement
and the Expense Agreement, as applicable, and to effect the
transactions contemplated hereby or thereby. The performance of the
Company's respective obligations hereunder and under the Indenture,
the Trust Agreement, the Guarantee Agreement and the Expense
Agreement, as applicable, have been duly authorized by all necessary
action. This Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement and the Expense Agreement have been duly executed
and delivered by and on behalf of the Company, and, assuming due
authorization, execution and delivery of such agreements by the other
parties thereto, constitute legal, valid and binding agreements of the
Company, enforceable in accordance with their respective terms, except
as enforceability of the same may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws of
general applicability relating to or affecting creditors' rights
generally and by general equity principles. No approval, consent,
order, authorization, designation, declaration or filing by or with
any regulatory, administrative or other governmental body or, to the
best of such counsel's knowledge, third party, is necessary in
connection with the execution and delivery of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement or the Expense
Agreement and the consummation of the transactions contemplated herein
or therein or as contemplated by the Prospectus (other than as may be
required by the Trust Indenture Act, the NASD or as required by state
securities or blue sky laws, as to which such counsel need express no
opinion) except such as have been obtained or made, with counsel
specifying the same.
(iii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under "Capitalization."
(iv) The Registration Statement has become effective under the
Act, the Prospectus has been filed as required by this Agreement, if
necessary, and to the best of such counsel's knowledge: (a) after
telephonic inquiry of the Commission, no stop order suspending the
effectiveness of the Registration Statement has been issued, and (b)
no proceedings for that purpose are pending or have been initiated or
threatened by the Commission. The Registration Statement (including
the information deemed to be part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A, 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 and
the Rules and Regulations.
(v) The descriptions in the Registration Statement and
Prospectus of contracts, instruments and other documents filed as
exhibits to the Registration Statement are accurate in all material
respects, and such counsel does not know of any Proceedings required
to be described in the Prospectus that are not described, or of any
contracts or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that were not described and filed as
required.
(vi) Neither the filing of the Registration Statement or any
amendment nor the execution and performance of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement or the Expense
Agreement, nor the consummation of the transactions contemplated
herein or therein, will contravene any of the provisions of, or result
in a default under (nor, to the best of such counsel's knowledge, has
any event occurred which with notice or lapse of time, or both, would
constitute a breach or default under), the Revolving Loan Agreement
with LaSalle National Bank, as amended through the date hereof, or any
other material contract, filed by the Company with the Commission, to
which the Company is a party or by which their property is bound
(except for such contravention or default which its not have a
Material Adverse Effect), or violate any of the provisions of the
charter or by-laws of the Company or the Certificate of Trust of the
Trust, or violate any Laws known to such counsel.
(vii) Neither the Trust, the Company nor any Subsidiary is an
"investment company" or a company controlled by an "investment
company" within the meaning of the Investment Company Act.
(viii) The statements in the Prospectus under the caption
"Description of the Trust Preferred Securities," "Description of the
Subordinated Debentures," "Description of the Guarantee" and
"Relationship among the Trust Preferred Securities, the Subordinated
Debentures and the Guarantee," insofar as such statements constitute
matters of law applicable to the Offerors or summaries of documents,
fairly present the information required to be included therein in all
material respects.
(ix) 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.
(x) Each of the Indenture and the Trust Agreement has been
duly qualified under the Trust Indenture Act.
(xi) The Subordinated Debentures are subordinate and junior in
right of payment to all Senior Debt, Subordinated Debt and Additional
Senior Obligations (each as defined in the Indenture) of the Company.
(xii) No Tax Event, Capital Treatment Event or Investment Company
Event (each as defined in the Indenture) has occurred.
(xiii) The statements set forth in the Prospectus under the caption
"Certain Federal Income Tax Consequences" constitute a fair and accurate
summary of the matters addressed therein, based upon current law and the
assumptions stated or referred to therein.
(xiv) To the best of such counsel's knowledge and information after
due inquiry, the Trust is not required to be authorized to do business in
any other jurisdiction, and the Trust is not a party to or otherwise bound
by any agreement other than those described in the Prospectus.
In addition, such counsel shall state that they have participated in conferences
with officers and other representatives of the Offerors, representatives of the
independent public accountants of the Company and representatives of the
Underwriters and their counsel, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed and, although
such counsel is not passing upon, and does not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (except as set forth above) and has
not made any independent check or verification thereof, on the basis of the
foregoing (relying as to materiality upon the statements of officers and other
representatives of the Company), no facts have come to such counsel's attention
that lead such counsel to believe that either the Registration Statement or any
amendment (including any post-effective amendment) thereto at the time such
Registration Statement or amendment became effective, and as of the Closing Date
and the Option Closing Date, if any, contained or contains 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, in light of the
circumstances under which they were made, not misleading, or that the Prospectus
or any amendment or supplement thereto as of their respective dates and as of
the Closing Date and the Option Closing Date, if any, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that such counsel need express no opinion with respect to the financial
statements, schedules and other financial data included in the Registration
Statement or the Prospectus.
(f) You shall have received an opinion (satisfactory to you and your
counsel) dated the Closing Date or the Option Closing Date, as the case may be,
of Xxxxxxxx, Xxxxxx & Finger, counsel for the Property Trustee under the Trust
Agreement, the Indenture Trustee under the Indenture and the Guarantee Trustee
under the Guarantee Agreement, and special Delaware counsel to the Offerors, 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 Indenture, the Trust
Agreement and the Guarantee Agreement.
(iii) Each of the Indenture, the Trust Agreement 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 it in accordance with its
terms.
(iv) The execution, delivery and performance by Wilmington Trust
Company of the Indenture, the Trust Agreement and the Guarantee Agreement
do not conflict with or constitute a breach of the charter or by-laws of
Wilmington Trust Company.
(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 governing the banking or trust powers of Wilmington
Trust Company is required for the execution, delivery or performance by
Wilmington Trust Company of the Indenture, the Trust Agreement or the
Guarantee Agreement.
(vi) 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.
(vii) 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.
(viii) The Trust Agreement constitutes a valid and binding obligation
of the Company and each of the Property Trustee and the Administrative
Trustees, and is enforceable against the Company and each of the Property
Trustee and the Administrative Trustees in accordance with its terms.
(ix) 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 Securities and the Common Securities.
(x) Under the Trust Agreement and the Delaware Act, the execution
and delivery by the Trust of this Agreement, and the performance by it of
its obligations hereunder, have been duly authorized by all necessary trust
action on the part of the Trust.
(xi) The Securities and the Common Securities have been duly
authorized by the Trust Agreement and are duly and validly issued and fully
paid and non-assessable undivided beneficial interests in the assets of the
Trust. The respective holders of the 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.
(xii) Under the Trust Agreement and the Delaware Act, the issuance of
the Securities and the Common Securities is not subject to preemptive or
similar rights.
(xiii) The issuance and sale by the Trust of the Securities and the
Common Securities, the purchase by the Trust of the Subordinated
Debentures, the execution, delivery and performance by the Trust of this
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 administrative regulation.
(g) You shall have received an opinion of Xxxxxx Xxxxxxxxxx Xxxxxxxxxx
Xxxxxxx & Xxxxxxxxx, counsel for the Underwriters, dated the Closing Date or the
Option Closing Date, as the case may be, in form and substance reasonably
satisfactory to you.
(h) You shall have received, in connection with the execution of this
Agreement and on the Closing Date and each Option Closing Date, a "cold comfort"
letter from KPMG Peat Marwick LLP, dated as of each such date, in form and
substance satisfactory to you, with respect to the financial statements
incorporated by reference in the Registration Statement and Prospectus and
certain financial information contained in the Registration Statement and the
Prospectus.
(i) You shall have received from the Company a certificate, signed by the
Chief Executive Officer and Chief Financial Officer of the Company, addressed to
the Underwriters and dated the Closing Date or Option Closing Date, as
applicable, to the effect that:
(i) such officers do not know of any Proceedings instituted,
threatened or contemplated against the Company of a character required to
be disclosed in the Prospectus that are not so disclosed, and such officers
do not know of any material contract required to be filed as an exhibit to
the Registration Statement which is not so filed;
(ii) such officers have carefully examined the Registration Statement
and the Prospectus and all amendments or supplements thereto and, in the
opinion of such officers, such Registration Statement or such amendment as
of its effective date and as of the Closing Date, and the Prospectus or
such supplement as of its date and as of the Closing Date, did not contain
an untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading and, in the opinion of such officers, since the effective date
of the Registration Statement, no event has occurred or information become
known that should have been set forth in an amendment to the Registration
Statement or a supplement to the Prospectus which has not been so set forth
in such amendment or supplement;
(iii) the representations and warranties of the Company set forth in
Section 6(a) of this Agreement are true and correct as of the date of this
Agreement and as of the Closing Date or the Option Closing Date, as the
case may be (except for any such representations and warranties made as of
a specified date, which shall be true and correct as of such date), and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to such
Closing Date; and
(iv) the Commission has not issued an order preventing or suspending
the use of the Prospectus or any preliminary prospectus filed as a part of
the Registration Statement or any amendment thereto; no stop order
suspending the effectiveness of the Registration Statement has been issued,
and, to the best knowledge of such officers, no proceedings for that
purpose have been instituted or are pending or contemplated under the Act.
The delivery of the certificate provided for in this subparagraph shall be and
constitute a representation and warranty of the Company as to the facts required
in the immediately foregoing clauses (iii) and (iv) of this subparagraph to be
set forth in said certificate.
(j) You shall have received from the Trust a certificate, signed by the
Administrative Trustees, addressed to the Underwriters and dated the Closing
Date or Option Closing Date, as applicable, to the effect that:
(i) such persons have carefully examined the Registration Statement
and the Prospectus and all amendments or supplements thereto and, in the
opinion of such persons, such Registration Statement or such amendment as
of its effective date and as of the Closing Date, and the Prospectus or
such supplement as of its date and as of the Closing Date, did not contain
an untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading and, in the opinion of such persons, since the effective date of
the Registration Statement, no event has occurred or information become
known that should have been set forth in an amendment to the Registration
Statement or a supplement to the Prospectus which has not been so set forth
in such amendment or supplement;
(ii) the representations and warranties of the Trust set forth
in Section 6(a) of this Agreement are true and correct as of the date
of this Agreement and as of the Closing Date or the Option Closing
Date, as the case may be, and the Trust has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date; and
(iii) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary prospectus
filed as a part of the Registration Statement or any amendment
thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued, and, to the best knowledge of
the respective signers, no proceedings for that purpose have been
instituted or are pending or contemplated under the Act.
The delivery of the certificate provided for in this subparagraph shall
be and constitute a representation and warranty of the Trust as to the
facts required in the immediately foregoing clauses (ii) and (iii) of this
subparagraph to be set forth in said certificate.
(k) You and your counsel shall have received on or before the Closing
Date or the Option Closing Date, as the case may be, such further
documents, opinions, certificates and schedules or instruments relating to
the business, corporate, legal and financial affairs of the Offerors as you
and they shall have reasonably requested from the Offerors.
9. Termination and Defaults. This Agreement may be terminated at any
time prior to the Closing Date and any exercise of the option to purchase
Additional Securities may be cancelled at any time prior to the Option Closing
Date by the Underwriters by written notice to the Offerors if any of the
following has occurred: (i) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any material adverse
change or development involving a prospective material adverse change in the
condition, financial or otherwise, of the Company, the Subsidiaries and the
Trust, taken as a whole, or the earnings, affairs, management, or business of
the Company, the Subsidiaries and the Trust, taken as a whole, whether or not
arising in the ordinary course of business, that would, in your sole judgment,
make it impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus, (ii) any outbreak or escalation of hostilities
or other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States that, in your sole
judgment, is material
and adverse and would, in your sole judgment, make it impracticable to market
the Securities on the terms and in the manner contemplated in the Prospectus,
(iii) the suspension or material limitation of trading in securities on the
Nasdaq, (iv) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority that in your opinion materially and adversely affects, or
will materially and adversely affect, the business or operations of the Company,
the Subsidiaries and the Trust, taken as a whole, (v) the declaration of a
banking moratorium by either federal or Illinois state authorities, (vi) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs that in your opinion has a material
adverse effect on the financial markets in the United States or (vii) any change
in financial markets or in political, economic or financial conditions which, in
your opinion, either renders it impracticable or inadvisable to proceed with the
offering and sale of the Securities on the terms set forth in the Prospectus or
materially adversely affects the market for the Securities.
If on the Closing Date or on the Option Closing Date, as the case may be, any
of the Underwriters shall fail or refuse to purchase the Firm Securities or
Additional Securities, as the case may be, which it has agreed to purchase
hereunder on such date, and the aggregate number of Firm Securities or
Additional Securities, as the case may be, that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed, in the
aggregate, 10% of the total number of Securities that all Underwriters are
obligated to purchase on such date, each non-defaulting Underwriter shall be
obligated, in the proportion which the number of Firm Securities set forth
opposite its name in Schedule I hereto bears to the total number of Firm
Securities or Additional Securities, as the case may be, that all the non-
defaulting Underwriters have agreed to purchase, or in such other proportion as
you may specify, to purchase the Firm Securities or Additional Securities, as
the case may be, that such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date. If, on the Closing Date or on the
Option Closing Date, as the case may be, any of the Underwriters shall fail or
refuse to purchase the Firm Securities or Additional Securities, as the case may
be, in an amount that exceeds, in the aggregate, 10% of the total number of the
Securities, and arrangements satisfactory to you and the Offerors for the
purchase of such Securities are not made within 48 hours after such default,
this Agreement shall terminate without liability on the part of the non-
defaulting Underwriters and the Offerors, except as otherwise provided in this
Section 9. In any such case that does not result in termination of this
Agreement, either you or the Offerors may postpone the Closing Date or the
Option Closing Date, as the case may be, for not longer than seven (7) days, in
order that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this
paragraph shall not relieve a defaulting Underwriter from liability in respect
of any default of any such Underwriter under this Agreement.
The indemnity and contribution provisions and other agreements,
representations and warranties of the Offerors set forth in or made pursuant to
this Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Securities, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any of the Underwriters or by or on behalf of the Offerors, (ii) acceptance of
the Securities and payment therefor hereunder or (iii) termination of this
Agreement. Notwithstanding any termination of this Agreement, the Company shall
be liable for and shall pay all expenses it has agreed to pay pursuant to
Section 5(k).
Except as otherwise provided, this Agreement has been and is made solely for
the benefit of, and shall be binding upon, the Offerors, the Underwriters, any
indemnified person referred to herein and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
terms "successors and assigns" shall not include a purchaser of any of the
Securities from any of the several Underwriters merely because of such purchase.
10. Effectiveness of Registration Statement. You and the Offerors will
use your and their best efforts to cause the Registration Statement to become
effective, if it has not yet become effective, and to prevent the issuance of
any stop order suspending the effectiveness of the Registration Statement and,
if such stop order be issued, to obtain as soon as possible the lifting thereof.
11. Miscellaneous. All communications hereunder will be in writing and,
if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to you c/o EVEREN Securities, Inc., 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, Attention: Syndicate Department, with a copy to Xxxxxx
Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. xxx Xxxxxx; and if sent to the
Company or the Trust will be mailed, delivered or telegraphed and confirmed to
the Company or the Trust at the Company's corporate headquarters with a copy to
Vedder, Price, Xxxxxxx & Kammholz, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000-0000, Attention: Xxxxxxxx X. Xxxxx.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF ILLINOIS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement among the
Company, the Trust and the several Underwriters, including you.
Very truly yours,
WINTRUST FINANCIAL CORPORATION
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
WINTRUST CAPITAL TRUST I
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
EVEREN Securities, Inc.
ABN AMRO Incorporated
Xxxxx Xxxxxxx Inc.
Acting as representative of the
several Underwriters named in Schedule I.
By: EVEREN Securities, Inc.
By: ________________________________
Name: ______________________________
Title: _____________________________
Schedule I
Number of Firm
Securities to
Underwriter be Purchased
----------- --------------
EVEREN Securities, Inc.
ABN AMRO Incorporated
Xxxxx Xxxxxxx Inc.
TOTAL
