Exhibit 1.1
CONFORMED COPY
2,080,000 Preferred Securities
MB Financial Capital Trust I
8.60% Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
August 13, 2002
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXX XXXXXX INVESTMENTS, INC.
XXXXXXX X'XXXXX & PARTNERS, L.P.
c/o Xxxxxx, Xxxxxxxx & Company, Incorporated
as Representatives of the Several Underwriters
named in Schedule I hereto
000 Xxxxx Xxxxxxxx, 0xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Sirs:
MB Financial, Inc., a Maryland corporation (the "Company"), and its
financing subsidiary, MB Financial Capital Trust I, a Delaware business trust
(the "Trust," and hereinafter together with the Company, the "Offerors"),
propose that the Trust issue and sell to the several underwriters listed on
Schedule I hereto (the "Underwriters"), pursuant to the terms of this Agreement,
2,080,000 of the Trust's 8.60% Cumulative Trust Preferred Securities, with a
liquidation amount of $25 per preferred security (the "Preferred Securities"),
to be issued under the Trust Agreement (as hereinafter defined), the terms of
which are more fully described in the Prospectus (as hereinafter defined). The
aforementioned 2,080,000 Preferred Securities to be sold to the Underwriters are
herein called the "Firm Preferred Securities." Solely for the purpose of
covering over-allotments in the sale of the Firm Preferred Securities, the
Offerors further propose that the Trust issue and sell to the Underwriters, at
their option, up to an additional 312,000 Preferred Securities (the "Option
Preferred Securities") upon exercise of the over-allotment option granted in
Section 1 hereof. The Firm Preferred Securities and any Option Preferred
Securities are herein collectively referred to as the "Designated Preferred
Securities." Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxx Xxxxx Xxxx Xxxxxx,
Incorporated Xxxx Xxxxxx Investments, Inc. and Xxxxxxx X'Xxxxx & Partners, L.P.
are acting as representatives of the Underwriters and in such capacity are
sometimes herein referred to as the "Representatives."
The Offerors hereby confirm as follows their agreement with each of the
Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED SECURITIES,
DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to each of the
Underwriters and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $25 per Preferred Security (the
"Purchase Price"), the
respective number of Firm Preferred Securities set forth opposite the name of
such Underwriter in Schedule I hereto. Because the proceeds from the sale of
the Firm Preferred Securities will be used to purchase from the Company its
Debentures (as hereinafter defined and as described in the Prospectus), the
Company shall pay to each Underwriter a commission of $.8125 per Firm
Preferred Security purchased (the "Firm Preferred Securities Commission").
The Representatives may by notice to the Company amend Schedule I to add,
eliminate or substitute names set forth therein (other than to eliminate the
names of the Representatives) and to amend the number of Firm Preferred
Securities to be purchased by any firm or corporation listed thereon,
PROVIDED that the total number of Firm Preferred Securities listed on
Schedule I shall equal 2,080,000.
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants to the Underwriters, severally and not jointly,
an option to purchase all or any portion of the 312,000 Option Preferred
Securities, and upon the exercise of such option in accordance with this Section
1, the Offerors hereby agree that the Trust shall issue and sell to the
Underwriters, severally and not jointly, all or any portion of the Option
Preferred Securities at the same Purchase Price per share paid for the Firm
Preferred Securities. If any Option Preferred Securities are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Trust
that proportion (subject to adjustment as you may determine to avoid fractional
securities) of the number of Option Preferred Securities to be purchased that
the number of Firm Preferred Securities set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to 2,080,000. Because the proceeds from the sale of the
Option Preferred Securities will be used to purchase from the Company its
Debentures, the Company shall pay to the Underwriters a commission of $.8125 per
Option Preferred Security for each Option Preferred Security purchased (the
"Option Preferred Securities Commission"). The option hereby granted (the
"Option") shall expire 30 days after the date upon which the Registration
Statement (as hereinafter defined) becomes effective and may be exercised only
for the purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Firm Preferred Securities. The Option may
be exercised in whole or in part at any time (but not more than once) by you
giving notice (confirmed in writing) to the Offerors setting forth the number of
Option Preferred Securities as to which the Underwriters are exercising the
Option and the time, date and place for payment and delivery of the Global
Securities (as hereafter defined) for such Option Preferred Securities. Such
time and date of payment and delivery for the Option Preferred Securities (the
"Option Closing Date") shall be determined by you, but shall not be earlier than
two nor later than five full business days after the exercise of such Option,
nor in any event prior to the Closing Date (as hereinafter defined). The Option
Closing Date may be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities Commission
and delivery of the Global Securities (as hereinafter defined) for the Firm
Preferred Securities shall be made at the offices of Xxxxxx, Xxxxxxxx & Company,
Incorporated, 000 Xxxxx Xxxxxxxx, 0xx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or such
other place as shall be agreed to by you and the Offerors, at 10:00 a.m., St.
Louis time, on the third (or, if permitted by Rule 15c6-1(c) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), not later than 12:00 p.m. on
the fourth) full business day following the date of this Agreement (the "Closing
Date"), or unless postponed in accordance with the provisions of Section 9. The
Trust shall deliver or cause to be delivered to you for the account of the
Underwriters against payment to or upon the order of the Trust of the Purchase
Price in federal or other immediately available funds, the Firm Preferred
Securities in the form of one or more permanent global securities in definitive
form (the "Global Securities") deposited with the Property Trustee (as
identified below) as custodian for the Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry form. If the
Underwriters exercise the option to purchase any or all of the Option Preferred
Securities, payment of the Purchase Price and Option Preferred Securities
Commission for such Option Preferred Securities shall be made on the
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Option Closing Date at Xxxxxx, Xxxxxxxx & Company, Incorporated's offices, or
at such other place as the Offerors and you shall determine. Upon delivery,
the Option Preferred Securities shall be in the form of one or more Global
Securities registered in the name of Cede & Co., as nominee of DTC and the
Global Securities for such Option Securities shall be delivered to the
Property Trustee as custodian for DTC. Such payments shall be made to an
account designated by the Trust by wire transfer of same day funds, in the
amount of the Purchase Price therefor, against delivery by or on behalf of
the Trust to you for the respective accounts of the several Underwriters of
one or more Global Certificates for the Designated Preferred Securities to be
purchased by the Underwriters.
Time shall be of the essence, and delivery of the Global Securities for
the Designated Preferred Securities at the time and place specified pursuant to
this Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement among
Wilmington Trust Company, as Delaware Trustee and Property Trustee, the
Administrative Trustees named therein (collectively, the "Trustees"), and the
Company, in substantially the form heretofore delivered to the Underwriters,
said Agreement being hereinafter referred to as the "Trust Agreement." In
connection with the issuance of the Designated Preferred Securities, the Company
proposes (i) to issue its 8.60% Subordinated Debentures due 2032 (the
"Debentures") pursuant to an Indenture, to be dated as of August 16, 2002,
between the Company and Wilmington Trust Company, as indenture trustee (the
"Indenture"), and (ii) to guarantee certain payments on the Designated Preferred
Securities pursuant to a Preferred Securities Guarantee Agreement to be dated as
of August 16, 2002, between the Company and Wilmington Trust Company, as
guarantee trustee (the "Guarantee"), to the extent described therein.
(c) As used herein, the following terms shall have the
following meanings:
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto, and any Rule
462(b) Registration Statement became or becomes effective.
"Preliminary Prospectus" shall mean any preliminary prospectus which
describes the Designated Preferred Securities and the offering thereof and is
used prior to filing of the Prospectus.
"Prospectus" shall mean the final prospectus in the form provided to the
Underwriters by the Offerors in connection with the offering and sale of the
Securities (whether or not required to be filed pursuant to Rule 424(b)).
"Registration Statement" shall mean the registration statement referred to
in Section 2(i) hereof, including exhibits and financial statements, as amended
at the date hereof (or, if not effective at the date hereof, in the form in
which it shall become effective) and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall include
any Rule 430A Information deemed to be included therein at the Effective Date as
provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the 1933
Act.
"Rule 430A Information" shall mean information with respect to the
Designated Preferred Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule 430A.
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"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 2(i)
hereof.
2. REPRESENTATIONS AND WARRANTIES.
The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters that:
(i) The Offerors have prepared and filed with the Commission a
registration statement on Form S-1 (File Numbers 333-97007 and
333-97007-01), including a related prospectus, for registration under the
1933 Act of the offering and sale of the Designated Preferred Securities,
the Guarantee and up to $59,800,000 aggregate principal amount of
Debentures under the 1933 Act. The Offerors may have filed one or more
amendments to such registration statement, including a Preliminary
Prospectus, each of which has previously been furnished to you, in each
case in conformity in all material respects with the requirements of the
1933 Act, the rules and regulations promulgated thereunder (the "1933 Act
Regulations") and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations thereunder. The Offerors
shall next file with the Commission one of the following: (1) after the
Effective Date of such registration statement, a final prospectus relating
to the Designated Preferred Securities in accordance with Rules 430A and
424(b) or (2) prior to the Effective Date of such registration statement,
an amendment to such registration statement (including the form of final
prospectus). As filed, such final prospectus or such amendment and form of
final prospectus shall contain all Rule 430A Information, and, except to
the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the date hereof or, to the extent not completed at the date hereof, shall
contain only such specific additional information and other changes
(beyond that contained in the Prospectus and any Preliminary Prospectus)
as the Company has advised you, prior to the date hereof, shall be
included or made therein. Copies of such registration statement, including
any amendments thereto, the Prospectus and each Preliminary Prospectus
contained therein and the exhibits, financial statements and schedules to
such registration statement, as finally amended and revised, have
heretofore been delivered by the Offerors to the Representatives.
(ii) No order preventing or suspending the use of the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) has been issued by the Commission, nor has the
Commission, to the knowledge of the Offerors, threatened to issue such an
order or instituted proceedings for that purpose. Each Preliminary
Prospectus, at the time of filing thereof, (A) complied in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and (B) did not contain an untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that this
representation and warranty does not apply to statements or omissions made
in reliance upon and in conformity with information furnished in writing
to the Offerors by any of the Underwriters expressly for inclusion in the
Prospectus beneath the heading "Underwriting" (such information referred
to herein as the "Underwriters' Information"). As of the date that each
Preliminary Prospectus was filed with the Commission or as of the date
that the Prospectus and any amendment or supplement thereto was filed with
the Commission (or, if not filed, on the date provided by the Offerors to
the Underwriters in connection with the offering and sale of the
Designated Preferred Securities), as the case may be, no event has or will
have occurred which should have been set forth in an amendment or
supplement to any Preliminary Prospectus or the Prospectus which has not
been set forth in any Preliminary Prospectus, the Prospectus or such an
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amendment or supplement. Each Preliminary Prospectus and the Prospectus
will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to its XXXXX system, except to the extent
permitted by Regulation S-T.
(iii) The Registration Statement has been declared effective
under the 1933 Act, and no post-effective amendment to the Registration
Statement has been filed with the Commission as of the date of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the Offerors' knowledge, threatened by the Commission.
At the Effective Date and at all times subsequent thereto, up to and
including the Closing Date and, if applicable, the Option Closing Date,
the Registration Statement and any post-effective amendment thereto (A)
complied and will comply in all material respects with the requirements of
the 1933 Act, the 1933 Act Regulations and the Trust Indenture Act (and
the rules and regulations thereunder) and (B) did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; PROVIDED, HOWEVER, that this representation and warranty
does not apply to the Underwriters' Information. At the Effective Date, if
the Prospectus is not required to be filed pursuant to Rule 424(b) or at
the date of filing the Prospectus pursuant to Rule 424(b), whichever is
applicable, and at all times when the Prospectus is required to be
delivered in connection with offers and sales of Designated Preferred
Securities, including, without limitation, the Closing Date and, if
applicable, the Option Closing Date, the Prospectus, as amended or
supplemented, (A) complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the
Trust Indenture Act (and the rules and regulations thereunder) and (B) did
not contain and will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading; PROVIDED, HOWEVER, that this
representation and warranty does not apply to Underwriters' Information.
Since the date that the Registration Statement was filed with the
Commission, no event has or will have occurred which should have been set
forth in an amendment or supplement to such Registration Statement which
has not then been set forth in such an amendment or supplement. The
Registration Statement will be identical to the electronically transmitted
copy thereof filed with the Commission pursuant to its XXXXX system,
except to the extent permitted by Regulation S-T. As of the date hereof
and at all times when the Prospectus is required to be delivered in
connection with offers and sales of Designated Preferred Securities,
including, without limitation, the Closing Date and, if applicable, the
Option Closing Date, the Trust Agreement, the Indenture and the Guarantee
did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder.
(iv) The Offerors have not acted in a manner or taken any
action that does not comply with or violates Section 5 of the 1933 Act.
(v) The reports filed with the Commission by the Company under
the 1934 Act and the rules and regulations thereunder (the "1934 Act
Regulations") at the time they were filed with the Commission complied as
to form in all material respects with the requirements of the 1934 Act and
the 1934 Act Regulations and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading. All such reports
were timely filed as required by the 1934 Act Regulations.
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(vi)
(A) The Company is duly organized, validly existing and
in good standing under the laws of the State of Maryland, with full
corporate and other power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
in the most recent Preliminary Prospectus) and as currently being
conducted and is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended (the "BHC Act").
(B) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the Delaware
Business Trust Act with the power and authority (trust and other) to own
its property and conduct its business as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
in the most recent Preliminary Prospectus), to issue and sell its common
securities (the "Common Securities") to the Company pursuant to the Trust
Agreement, to issue and sell the Designated Preferred Securities, to enter
into and perform its obligations under this Agreement and to consummate
the transactions herein contemplated; the Trust has no subsidiaries and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of its
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing could not have, either
individually or in the aggregate, a material adverse effect on the Trust;
the Trust has conducted and will conduct no business other than the
transactions contemplated by this Agreement and described in the
Prospectus (or, if the Prospectus is not in existence, in each Preliminary
Prospectus); the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Trust Agreement, and the
agreements and instruments contemplated by the Trust Agreement and
described in the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus); the Trust has no liabilities or obligations
other than those arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the Prospectus (or, if
the Prospectus is not in existence, in each Preliminary Prospectus); the
Trust is not a party to or subject to any action, suit or proceeding of
any nature; the Trust is, and at the Closing Date or any Option Closing
Date will be, classified as a grantor trust for United States federal
income tax purposes; the Trust is not, and at the Closing Date or any
Option Closing Date will not be, classified as an association taxable as a
corporation for United States federal income tax purposes; and the Trust
is, and as of the Closing Date or any Option Closing Date will be, treated
as a consolidated subsidiary of the Company pursuant to generally accepted
accounting principles.
(vii) The Company has only the direct and indirect
subsidiaries identified on Exhibit A attached hereto and incorporated
herein (the "Subsidiaries"). The Company does not own or control, directly
or indirectly, more than 5% of any class of equity security of any
corporation, association or other entity other than the Subsidiaries and
except for Sentry Lease Equity Pool 2000-1, LLC and Summit MFR Leasing,
LLC. Each Subsidiary is a corporation, business trust, limited liability
company or bank duly organized or incorporated, as the case may be,
validly existing and in active status or good standing, as applicable,
under the laws of its respective jurisdiction of organization. Each such
Subsidiary has full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
in the most recent Preliminary Prospectus) and as currently being
conducted. The deposit accounts of Union Bank N.A., Xxxxxx Centre National
Bank, and MB Financial Bank, N.A. (collectively, the "Banks",
individually, a "Bank") are insured by the Bank Insurance Fund or Savings
Association Insurance Fund administered by the Federal Deposit Insurance
Corporation (the "FDIC") up to the
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maximum amount provided by law, and no proceedings for the modification,
termination or revocation of any such insurance are pending or, to the
knowledge of the Offerors, threatened.
(viii) The Company and each of the Subsidiaries is duly
qualified to transact business as a foreign corporation, bank or business
trust, as the case may be, and is in good standing in each other
jurisdiction in which it owns or leases property or conducts its business
so as to require such qualification and in which the failure to so qualify
could, individually or in the aggregate, have a Material Adverse Effect
(as hereinafter defined). All of the issued and outstanding shares of
capital stock or membership interests of the Subsidiaries (A) have been
duly authorized and are validly issued, (B) are fully paid and
nonassessable, except to the extent such shares may be deemed assessable
under 12 U.S.C. Section 1831o and (C) are wholly owned, directly or
indirectly, by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, restriction upon voting or transfer,
preemptive rights, claim, equity or other defect except for the pledge by
the Company of the common stock of MB Financial Bank, N.A. to LaSalle
Bank, N.A. pursuant to the Revolving Loan Agreement dated July 2, 1999, as
amended, between the Company and LaSalle Bank, N.A..
(ix) The capital stock of the Company and the equity
securities of the Trust conform in all material respects to the
description thereof contained in the Prospectus (or, if the Prospectus is
not in existence, in the most recent Preliminary Prospectus). The
outstanding shares of capital stock and equity securities of each Offeror
have been duly authorized and validly issued and are fully paid and
nonassessable, and no such shares were issued in violation of the
preemptive or similar rights of any security holder of an Offeror. No
person has any preemptive or similar right to purchase any shares of
capital stock or equity securities of the Offerors. Except as disclosed in
the Prospectus (or, if the Prospectus is not in existence, in the most
recent Preliminary Prospectus) and except for stock options granted to
current or former directors, officers and employees of the Company and its
Subsidiaries and their respective predecessors, there are no outstanding
rights, options or warrants to acquire any securities of the Offerors or
the Subsidiaries, and there are no outstanding securities convertible into
or exchangeable for any securities of the Offerors or the Subsidiaries
and, other than as provided in Section F of Article 5 of the Company's
charter, no restrictions upon the voting or transfer of any capital stock
of the Company or equity securities of the Trust pursuant to the Company's
charter or bylaws, the Trust Agreement or any agreement or other
instrument to which an Offeror is a party or by which an Offeror is bound.
As of the date set forth therein, the Company had an authorized and
outstanding capitalization as set forth in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, in the most
recent Preliminary Prospectus) and the capitalization of the Company
immediately following the Effective Time will be as set forth in the
Prospectus.
(x)
(A) The Trust has all requisite trust power and
authority to issue, sell and deliver the Designated Preferred Securities
in accordance with and upon the terms and conditions set forth in this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus). All corporate and trust action required to be
taken by the Offerors for the authorization, issuance, sale and delivery
of the Designated Preferred Securities in accordance with such terms and
conditions has been validly and duly taken. The Designated Preferred
Securities, when delivered and paid for in accordance with this Agreement,
will be duly and validly issued and outstanding, will represent valid
fully paid and nonassessable undivided beneficial interests in the assets
of the Trust, will be entitled to the benefits of the Trust Agreement
pertaining to holders of Preferred Securities, will not be issued in
violation of or subject to any preemptive or similar rights, and
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will conform to the description thereof in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, in the most
recent Preliminary Prospectus) and the Trust Agreement. None of the
Designated Preferred Securities, immediately prior to delivery, will be
subject to any security interest, lien, mortgage, pledge, encumbrance,
restriction upon voting or transfer, preemptive rights, claim, equity or
other defect.
(B) The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated and issued
as provided in the Indenture and delivered to the Trust pursuant to the
Trust Agreement, will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by
and/or subject to bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity, will be in the form contemplated by, and entitled to
the benefits pertaining to holders of Debentures under the Indenture, will
conform in all material respects to the description thereof contained in
the Prospectus (or, if the Prospectus is not in existence, in the most
recent Preliminary Prospectus) and will be owned by the Trust free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
restriction upon transfer, preemptive rights, claim, equity or other
defect.
(C) The Guarantee has been duly and validly authorized,
and, when duly and validly executed and delivered to the guarantee trustee
for the benefit of the holders of the Preferred Securities, will
constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, or similar laws affecting the rights of
creditors generally and subject to general principles of equity, and will
conform in all material respects to the description thereof contained in
the Prospectus (or, if the Prospectus is not in existence, in the most
recent Preliminary Prospectus).
(D) The Agreement as to Expenses and Liabilities between
the Company and the Trust (the "Expense Agreement") has been duly and
validly authorized, and, when duly and validly executed and delivered by
the Company, will constitute a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by and/or
subject to bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity, and will conform in all material respects to the
description thereof contained in the Prospectus (or, if the Prospectus is
not in existence, in the most recent Preliminary Prospectus).
(xi) The Offerors and the Subsidiaries have complied in all
material respects with all foreign, federal, state and local statutes,
regulations, ordinances and rules as now in effect and applicable to the
ownership and operation of their properties or the conduct of their
businesses as described in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, in the most recent Preliminary
Prospectus) (the "Applicable Laws") and as currently being conducted,
except where the failure to be in compliance would not,have a material
adverse effect, whether individually or in the aggregate, on the condition
(financial or otherwise), business affairs, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated basis (a
"Material Adverse Effect"). Neither the Company nor any non-banking
Subsidiary engages directly or indirectly in any activity prohibited by
the Board of Governors of the Federal Reserve System (the "FRB") or the
BHC Act or the regulations promulgated thereunder.
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(xii) The Offerors and the Subsidiaries have all permits,
easements, consents, licenses, franchises and other governmental and
regulatory authorizations from all appropriate federal, state, local or
other public authorities ("Permits") as are necessary to own and lease
their properties and conduct their businesses in the manner described in
and contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, in Preliminary Prospectus) and as
currently being conducted, except where the failure to have such Permits
would not have a Material Adverse Effect. All Permits are in full force
and effect and each of the Offerors and the Subsidiaries are complying
therewith, except where the failure to so comply would not have a Material
Adverse Effect and no event has occurred that allows, or after notice or
lapse of time would allow, revocation or termination thereof or will
result in any other impairment of the rights of the holder of any such
Permit except to the extent that any such revocation, termination, or
impairment would not have a Material Adverse Effect. Such Permits contain
no restrictions that would materially impair the ability of the Company or
the Subsidiaries to conduct their businesses in the manner consistent with
their past practices. Neither the Offerors nor any of the Subsidiaries
have received notice or otherwise has knowledge of any proceeding or
action relating to the revocation or modification of any such Permit.
(xiii) Neither of the Offerors nor any of the Subsidiaries are
in breach or violation of their corporate charter, articles of
incorporation, by-laws or other governing documents (including, without
limitation, the Trust Agreement) in any material respect. Neither of the
Offerors nor any of the Subsidiaries is, and to the knowledge of the
Offerors no other party is, in violation, breach or default (with or
without notice or lapse of time or both) in the performance or observance
of any term, covenant, agreement, obligation, representation, warranty or
condition contained in (A) any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise, license, Permit
or any other agreement or instrument to which it is a party or by which it
or any of its properties may be bound, which such breach, violation or
default could have a Material Adverse Effect, and to the knowledge of the
Offerors, no other party has asserted that the Offerors or any of the
Subsidiaries is in such violation, breach or default, provided, however,
that the foregoing shall not apply to defaults by borrowers from the
Company and the Subsidiaries, or (B) any order, decree, judgment, rule or
regulation of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the
Offerors or the Subsidiaries or any of their respective properties the
breach, violation or default of which could have a Material Adverse
Effect.
(xiv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement, the Trust Agreement, the Guarantee, the Indenture, the Expense
Agreement, the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in the most recent Preliminary Prospectus)
(including, without limitation, the issuance and sale of the Designated
Preferred Securities and the use of proceeds from the sale of the
Designated Preferred Securities as described in the Prospectus under the
caption "Use of Proceeds") do not and will not conflict with, result in
the creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the Offerors or
the Subsidiaries or the Designated Preferred Securities pursuant to,
constitute a breach or violation of, or constitute a default under, with
or without notice or lapse of time or both, any of the terms, provisions
or conditions of (A) the corporate charter, articles of incorporation,
by-laws or other governing documents of the Company or the Subsidiaries,
(B) any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any other agreement
or instrument to which the Offerors or the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound, or
(C) any order, decree, judgment, rule or regulation of any court,
arbitrator, government, or governmental agency or instrumentality,
domestic or foreign, having jurisdiction over the Offerors or the
9
Subsidiaries or any of their respective properties which conflict,
creation, imposition, breach, violation or default could have, either
individually or in the aggregate, a Material Adverse Effect. No
authorization, approval, consent or order of or filing, registration or
qualification with, any person (including, without limitation, any court,
governmental body or authority) is required in connection with the
transactions contemplated by this Agreement, the Trust Agreement, the
Indenture, the Guarantee, the Expense Agreement, the Registration
Statement and the Prospectus (or any Preliminary Prospectus), except such
as have been obtained under the 1933 Act and the Trust Indenture Act and
from The Nasdaq Stock Market relating to the listing of the Designated
Preferred Securities on the Nasdaq National Market, and such as may be
required under state securities laws or Interpretations or Rules of the
National Association of Securities Dealers, Inc. ("NASD") in connection
with the purchase and distribution of the Designated Preferred Securities
by the Underwriters.
(xv) The Company has all requisite power and authority and the
Trust has all requisite trust power and authority to enter into this
Agreement and this Agreement has been duly and validly authorized,
executed and delivered by the Offerors and constitutes the legal, valid
and binding agreement of the Offerors, enforceable against the Offerors in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity and except as any indemnification or contribution
provisions thereof may be limited under applicable securities laws. Each
of the Indenture, the Trust Agreement, the Guarantee and the Expense
Agreement has been duly authorized by the Company, and, when executed and
delivered by the Company on the Closing Date, each of said agreements will
constitute a valid and legally binding obligation of the Company and will
be enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally
and subject to general principles of equity and except as any
indemnification or contribution provisions thereof may be limited under
applicable securities laws. Each of the Indenture, the Trust Agreement and
the Guarantee has been duly qualified under the Trust Indenture Act and
will conform in all material respects to the description thereof contained
in the Prospectus.
(xvi) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good title to all
personal property owned by them and material to their business, in each
case free and clear of all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other defects except such
as are referred to in the Prospectus (or, if the Prospectus is not in
existence, in the most recent Preliminary Prospectus) or such as do not
have a Material Adverse Effect; and all of the leases material to the
operations of the Company and the Subsidiaries under which the Company or
the Subsidiaries hold real or material personal property are valid and
existing leases, enforceable against the parties thereto, and in full
force and effect with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of such real
or personal property, and neither the Company nor any of the Subsidiaries
is in default of any of the terms or provisions of any leases that would
have a Material Adverse Effect.
(xvii) KPMG LLP and McGladrey & Xxxxxx LLP, who have certified
certain of the consolidated financial statements of the Company and the
Subsidiaries, including the notes thereto, included in the Registration
Statement and Prospectus, are independent public accountants with respect
to the Company and the Subsidiaries, as required by the 1933 Act and the
1933 Act Regulations.
10
(xviii) The consolidated financial statements, including the
notes thereto, included in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, in the most recent Preliminary
Prospectus) with respect to the Company and the Subsidiaries comply in all
material respects with the 1933 Act and the 1933 Act Regulations and
present fairly in all material respects the consolidated financial
position of the Company and the Subsidiaries as of the dates indicated and
the consolidated results of operations, cash flows and shareholders'
equity of the Company and the Subsidiaries for the periods specified and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, except that the interim
financial statements are subject to normal year-end adjustments and do not
include all footnotes required by generally accepted accounting principles
for audited financial statements. The selected consolidated financial data
concerning the Company and the Subsidiaries included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
in the most recent Preliminary Prospectus) comply in all material respects
with the 1933 Act and the 1933 Act Regulations, present fairly the
information set forth therein, have been derived from the financial
statements or operating records of the Company and have been compiled on a
basis consistent with that of the consolidated financial statements of the
Company and the Subsidiaries in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus). The other financial, statistical and numerical
information included in the Registration Statement and the Prospectus (or
such Preliminary Prospectus) is accurate in all material respects,
complies in all material respects with the 1933 Act and the 1933 Act
Regulations, has been derived from the financial statements or operating
records of the Company, presents fairly the information shown therein, and
to the extent applicable has been compiled on a basis consistent with the
consolidated financial statements of the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in the most recent Preliminary
Prospectus).
(xix) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in the most recent Preliminary
Prospectus), except as otherwise stated therein:
(A) neither of the Offerors nor any of the Subsidiaries
has sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree
which has a Material Adverse Effect;
(B) there has not been any material adverse change in,
or any development which is reasonably likely to have a Material Adverse
Effect, whether or not arising in the ordinary course of business;
(C) neither of the Offerors nor any of the Subsidiaries
has incurred any liabilities or obligations, direct or contingent, or
entered into any material transactions, other than in the ordinary course
of business, which are material, individually or in the aggregate, to the
condition (financial or otherwise), business affairs, prospects or results
of operations of the Company and the Subsidiaries on a consolidated basis;
(D) neither of the Offerors has declared or paid any
dividend, except for the declaration of a $0.15 per share cash dividend to
be paid on August 15, 2002 and neither of the Offerors nor any of the
Subsidiaries has become delinquent in the payment of principal or interest
on any outstanding borrowings; and
11
(E) there has not been any change in the capital stock
(except for the issuance of shares upon the exercise of stock options),
equity securities, long-term debt, obligations under capital leases or,
other than in the ordinary course of business, short-term borrowings of
the Offerors or the Subsidiaries.
(xx) No charge, investigation, action, suit or proceeding is
pending or, to the knowledge of the Offerors, threatened, against or
affecting the Offerors or the Subsidiaries or any of their respective
properties before or by any court or any regulatory, administrative or
governmental official, commission, board, agency or other authority or
body, or any arbitrator, wherein an unfavorable decision, ruling or
finding could have a Material Adverse Effect or which is required to be
disclosed in the Registration Statement or the Prospectus (or, if the
Prospectus is not in existence, in the most recent Preliminary Prospectus)
and is not so disclosed.
(xxi) There are no contracts or other documents required to be
filed as exhibits to the Registration Statement by the 1933 Act or the
1933 Act Regulations or the Trust Indenture Act (or any rules or
regulations thereunder) which have not been filed as exhibits to the
Registration Statement, or that are required to be summarized in the
Prospectus (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus) that are not so summarized.
(xxii) Neither of the Offerors has taken, directly or
indirectly, any action designed to result in, or which has constituted or
which might reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Offerors to facilitate
the sale or resale of the Designated Preferred Securities in violation of
the Commission's rules and regulations, including, but not limited to,
Regulation M, and neither of the Offerors is aware of any such action
taken or to be taken by any affiliate of the Offerors.
(xxiii) The Offerors and the Subsidiaries own, or possess
adequate rights to use, all patents, copyrights, trademarks, service
marks, trade names and other rights necessary to conduct the businesses
now conducted by them in all material respects or as described in the
Prospectus (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus) except where the failure to possess any such
patents, copyrights, trademarks, service marks, trade names or other
rights would not have a Material Adverse Effect and neither the Company
nor the Subsidiaries have received any notice of infringement or conflict
with asserted rights of others with respect to any patents, copyrights,
trademarks, service marks, trade names or other rights which if the
subject of an unfavorable decision, ruling or finding, could have a
Material Adverse Effect, and the Offerors do not know of any basis for any
such infringement or conflict which, if the subject of an unfavorable
decision, ruling or finding, could have a Material Adverse Effect.
(xxiv) No labor dispute involving the Company or the
Subsidiaries exists or, to the knowledge of the Offerors, is imminent
which could, individually or in the aggregate with other disputes, have a
Material Adverse Effect or which is required to be disclosed in the
Prospectus (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus). Neither the Company nor any of the Subsidiaries
has received notice of any existing or threatened labor dispute by the
employees of any of its principal suppliers, customers or contractors
which could, individually or in the aggregate with other disputes, have a
Material Adverse Effect.
(xxv) The Offerors and the Subsidiaries have timely and
properly prepared and filed, or have timely and properly filed extension
for, all necessary federal, state, local and foreign tax returns which are
required to be filed and have paid all taxes shown as due thereon and have
paid all other taxes and assessments to the extent that the same shall
have become due,
12
except such as are being contested in good faith or where the failure to
so timely and properly prepare and file could not have a Material Adverse
Effect. The Offerors have no knowledge of any tax deficiency which has
been or might be assessed against the Offerors or the Subsidiaries which,
if the subject of an unfavorable decision, ruling or finding, could have
a Material Adverse Effect.
(xxvi) Each of the contracts, agreements and instruments
material to the condition (financial or otherwise), business affairs,
prospects or results of operations of the Company and its Subsidiaries on
a consolidated basis, or listed, described, or attached as an exhibit to
the Registration Statement is in full force and effect and is the legal,
valid and binding agreement of the Offerors or the Subsidiaries and, to
the knowledge of the Offerors and the Subsidiaries, of the other parties
thereto, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally
and subject to general principles of equity, except where the
cancellation, termination or unenforceability could not have a Material
Adverse Effect. Neither the Company nor any Subsidiary is (with or without
notice or lapse of time or both) in breach or default in any material
respect under any such contacts, agreements or instruments referred to in
the preceding sentence (or upon consummation of the transactions
contemplated by this Agreement will be in breach or default in any
material respect thereunder) and, to the knowledge of the Offerors, no
other party to any such agreement is (with or without notice or lapse of
time or both) in breach or default in any material respect thereunder.
(xxvii) No relationship, direct or indirect, exists between or
among the Company or the Subsidiaries, on the one hand, and the directors,
officers, trustees, shareholders, customers or suppliers of the Company or
the Subsidiaries, on the other hand, which is required to be described in
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, in the most recent Preliminary Prospectus) which is not
described therein sufficiently to satisfy the requirements of the 1933 Act
and the 1933 Act Regulations.
(xxviii) No person has the right to request or require the
Offerors or the Subsidiaries to register any securities for offering and
sale under the 1933 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the Designated
Preferred Securities.
(xxix) The Designated Preferred Securities have been approved
for quotation on the Nasdaq National Market subject to official notice of
issuance.
(xxx) Except as described in the Prospectus (or, if the
Prospectus is not in existence, in the most recent Preliminary
Prospectus), as provided in the Company's bylaws, and as provided in that
certain Revolving Loan Agreement dated July 2, 1999, as amended (the
"Revolving Loan Agreement"), between Company and LaSalle Bank N.A., there
are no contractual encumbrances or restrictions or requirements or
material legal restrictions or requirements required to be described
therein, on the ability of the Subsidiaries (A) to pay dividends or make
any other distributions on its capital stock or to pay any indebtedness
owed to the Company, (B) to make any loans or advances to, or investments
in, the Company or (C) to transfer any of its property or assets to the
Company. Except as described in the Prospectus (or, if the Prospectus is
not in existence, in the most recent Preliminary Prospectus), and as
provided in the Revolving Loan Agreement, there are no restrictions,
encumbrances or requirements affecting the payment of dividends or the
making of any other distributions on any of the capital stock of the
Company.
13
(xxxi) Neither of the Offerors is, or intends to conduct
business in a manner in which would cause it to become, an "investment
company", an entity "controlled" by an "investment company" or an
"investment adviser" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act") or the Investment Advisers
Act of 1940, as amended (the "Investment Advisers Act").
(xxxii) The Offerors have not distributed and will not
distribute prior to the Closing Date or, if applicable, the Option Closing
Date, any prospectus in connection with the Offering, other than a
Preliminary Prospectus, the Prospectus, the Registration Statement and the
other materials permitted by the 1933 Act and the 1933 Act Regulations and
reviewed by the Representatives.
(xxxiii) The activities of the Offerors and the Subsidiaries
are permitted under applicable federal and state banking laws and
regulations. The Company has all necessary approvals, including the
approval of the Office of the Comptroller of the Currency (the "OCC"), the
FDIC, the Office of Banks and Real Estate of the State of Illinois (the
"OBRE"), the Oklahoma State Banking Department (the "OSBD"), the
Department of Banking of the State of Texas ("DBT") and the FRB, as
applicable, to own the capital stock of the Subsidiaries. Neither the
Company nor any of the Subsidiaries is a party or subject to any agreement
or memorandum with, or directive or other order issued by, the FRB, the
OCC, the FDIC, the OBRE, the OSBD, the DBT or other regulatory authority
having jurisdiction over it (each, a "Regulator", and collectively, the
"Regulators"), which imposes any restrictions or requirements not
generally applicable to entities of the same type as the Company and the
Subsidiaries. Neither the Company nor any Subsidiary is subject to any
order or other directive from any Regulator to make any material change in
the method of conducting their respective businesses, and no such
directive is pending or, to the knowledge of the Offerors and
Subsidiaries, threatened by such Regulators.
(xxxiv) The Banks and the other Subsidiaries have properly
administered all accounts for which they act as a fiduciary, including but
not limited to accounts for which they serve as a trustee, agent,
custodian, personal representative, guardian, conservator or investment
advisor, in accordance with the terms of the governing documents and
applicable state and federal law and regulation and common law, except
where the failure to be in compliance could not have a Material Adverse
Effect. None of the Banks or other Subsidiaries nor any of their
directors, officers or employees has committed any material breach of
trust with respect to any such fiduciary account, and the accountings for
each such fiduciary account are true and correct in all material respects
and accurately reflect the assets of such fiduciary account in all
material respects.
(xxxv) Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred any
liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated thereby.
(xxxvi) No report or application filed by the Company or any
of its Subsidiaries with the FRB, the OCC, the FDIC, the OBRE, the OSBD,
the DBT or any other Regulator, as of the date it was filed or amended,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading when made or failed to comply in all
material respects with the applicable requirements of the FRB, the OCC,
the FDIC, the OBRE, the OSBD, the DBT or such other Regulator, as the case
may be.
(xxxvii) To the knowledge of the Company, based upon current
guidelines of the FRB and correspondence received from the Federal Reserve
Bank of Chicago, proceeds from the sale of the Debentures will constitute
"Tier 1" capital (as defined in 12 C.F.R. Part 225), subject to applicable
regulatory restrictions on the amount thereof that can be included in Tier
1 capital.
14
(xxxviii) Except to the extent that any of the following
unlawful actions or violations could not have a Material Adverse Effect,
none of the Offerors, the Subsidiaries or, to the knowledge of the
Offerors, any other person associated with or acting on behalf of the
Offerors or any of the Subsidiaries, including, without limitation, any
director, officer, agent, or employee of any of the Subsidiaries or the
Company has, directly or indirectly, while acting on behalf of such
Offeror or Subsidiary (i) used any corporate funds for unlawful
contributions, gifts, entertainment, or other unlawful expenses relating
to political activity; (ii) made any unlawful contribution to any
candidate for foreign or domestic office, or to any foreign or domestic
government officials or employees or other person charged with similar
public or quasi-public duties, other than payments required or permitted
by the laws of the United States or any jurisdiction thereof or to foreign
or domestic political parties or campaigns from corporate funds, or failed
to disclose fully any contribution in violation of law; (iii) violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or
(iv) made any other payment of funds for either or both of the Offerors or
a Subsidiary or retained any funds which constitute a violation of any
law, rule or regulation or which was or is required to be disclosed in the
Registration Statement or the Prospectus pursuant to the requirements of
the 1933 Act or the 1933 Act Regulations.
(xxxix) Except as disclosed in the Prospectus, neither the
Company nor any Subsidiary has any unaccrued liability under any "pension
plan", as defined in the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"). The employee benefit plans, including employee
welfare benefit plans, of the Company and each of the Subsidiaries (the
"Employee Plans") have been operated in material compliance with the
applicable provisions of ERISA, the Internal Revenue Code of 1986, as
amended (the "Code"), all regulations, rulings and announcements
promulgated or issued thereunder and all other applicable governmental
laws and regulations (except to the extent such noncompliance could not
have a Material Adverse Effect). No reportable event under Section 4043(c)
of ERISA has occurred with respect to any Employee Plan of the Company or
any of the Subsidiaries for which the reporting requirements have not been
waived by the Pension Benefit Guaranty Corporation (except to the extent
that the occurrence of such unwaived reportable event could not have a
Material Adverse Effect). No prohibited transaction under Section 406 of
ERISA, for which an exemption does not apply, has occurred with respect to
any Employee Plan of the Company or any of the Subsidiaries (except to the
extent that the occurrence of such non-exempt prohibited transaction could
not have a Material Adverse Effect). There are no pending or, to the
knowledge of the Offerors, threatened, claims by or on behalf of any
Employee Plan, by any employee or beneficiary covered under any such
Employee Plan or by any governmental authority or otherwise involving such
Employee Plans or any of their respective fiduciaries (other than for
routine claims for benefits). All Employee Plans that are group health
plans have been operated in material compliance with the group health plan
continuation coverage requirements of Section 4980B of the Code.
(xl) The Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's general or specific authorizations, (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets, (C) access to
15
assets is permitted only in accordance with management's general or
specific authorization, and (D) the recorded accounts for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect thereto. The books, records and accounts
and systems of internal accounting controls of the Company and its
Subsidiaries comply in all material respects with the requirements of
Section 13(b)(2) of the 1934 Act.
(xli) Except as described in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), and to the knowledge of the Offerors and the
Subsidiaries, there is no factual basis for any action, suit or other
proceeding involving the Company or the Subsidiaries or any of their
material assets for any failure of the Company or any of the Subsidiaries,
or any predecessor thereof, to comply with any requirements of federal,
state or local regulation relating to air, water, solid waste management,
hazardous or toxic substances, or the protection of health or the
environment; except where such action, suit or other proceeding could not
have a Material Adverse Effect. Except as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
in the most recent Preliminary Prospectus) or as could not have a Material
Adverse Effect, none of the property owned or leased by the Company or any
of the Subsidiaries or their predecessors is contaminated with any waste
or hazardous substances, and neither the Company nor any of the
Subsidiaries may be deemed an "owner or operator" of a "facility" or
"vessel" which owns, possesses, transports, generates or disposes of a
"hazardous substance" as those terms are defined in Section 9601 of the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. Section 9601 ET SEQ.
(xlii) The Company and the Subsidiaries maintain insurance
covering in all material respects their properties, personnel and
business. Such insurance insures against such losses and risks as, in the
judgment of the executive officers of the Company, are adequate to protect
in all material respects the Company and the Subsidiaries and their
businesses. Neither the Company nor any of the Subsidiaries has received
notice from any insurer or agent of such insurer that substantial capital
improvements or other expenditures shall have to be made in order to
continue such insurance. All such insurance is outstanding and duly in
force on the date hereof and shall be outstanding and duly in force on the
Closing Date and, if applicable, the Option Closing Date, with such
exceptions as would not have a Material Adverse Effect.
(xliii) Except as disclosed in the Prospectus, neither the
Company nor any Subsidiary has any agreement, whether written or oral,
with any person (A) concerning the future acquisition by the Company or
the Banks of a controlling interest in any entity or (B) concerning the
future acquisition by any person of a controlling interest in the Company
or any Subsidiary, in either case that is required by the 1933 Act or the
1933 Act Regulations to be disclosed by the Company that is not disclosed
in the Prospectus.
3. OFFERING BY THE UNDERWRITERS.
After the Registration Statement becomes effective or, if the Registration
Statement is already effective, after this Agreement becomes effective, the
Underwriters propose to offer the Firm Preferred Securities for sale to the
public upon the terms and conditions set forth in the Prospectus. The
Underwriters may from time to time thereafter reduce the public offering price
and change the other selling terms, provided the proceeds to the Trust shall not
be reduced as a result of such reduction or change. Because the NASD is expected
to view the Preferred Securities as interests in a direct participation program,
the offering of the Preferred Securities is being made in compliance with the
applicable provisions of Rule 2810 of the NASD's conduct rules.
16
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by them (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS.
The Offerors jointly and severally covenant with the Underwriters as
follows:
(a) The Offerors shall use their best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the time
of execution of this Agreement, to become effective as promptly as possible. If
the Registration Statement has become or becomes effective pursuant to Rule 430A
and information has been omitted therefrom in reliance on Rule 430A, then, the
Offerors will prepare and file in accordance with Rule 430A and Rule 424(b)
copies of the Prospectus or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including the Prospectus) containing
all information so omitted and will provide evidence satisfactory to the
Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and, if requested by
you, shall promptly confirm such notice in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when the
Prospectus or any supplement to the Prospectus or any amended Prospectus
has been filed;
(ii) of the receipt of any comments or requests from the
Commission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or
supplement the Registration Statement, any Preliminary Prospectus or
the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, or suspending the
qualification of any of the Designated Preferred Securities for offering
or sale in any jurisdiction or the institution or threat of institution of
any proceedings for any of such purposes. The Offerors shall use their
best efforts to prevent the issuance of any such stop order or of any
other such order and if any such order is issued, to cause such order to
be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to
time without charge, as soon as available, as many copies as the Underwriters
may reasonably request of (i) the registration statement as originally filed and
of all amendments thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective, (ii) all exhibits
and documents filed therewith, (iii) all consents and certificates of experts in
executed form, (iv) the Preliminary Prospectus and all amendments and
supplements thereto, and (v) the Prospectus, and all amendments and supplements
thereto.
17
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Designated Preferred Securities as
contemplated herein and in the Trust Agreement and the Prospectus. The Offerors
shall not file any amendment to the registration statement as originally filed
or to the Registration Statement and shall not file any amendment thereto or
make any amendment or supplement to any Preliminary Prospectus or to the
Prospectus of which you shall not previously have been advised in writing and
provided a copy a reasonable time prior to the proposed filings thereof or to
which you or counsel for the Underwriters shall reasonably object. If it is
necessary, in the Company's reasonable opinion or in the reasonable opinion of
the Company's counsel, to amend or supplement the Registration Statement or the
Prospectus in connection with the distribution of the Designated Preferred
Securities, the Offerors shall forthwith amend or supplement the Registration
Statement or the Prospectus, as the case may be, by preparing and filing with
the Commission (provided the Underwriters or counsel for the Underwriters does
not reasonably object), and furnishing to you such number of copies as you may
reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Registration Statement or the Prospectus, as the case may be
(in form and substance reasonably satisfactory to you and counsel for the
Underwriters). If any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus to correct an untrue statement of a material
fact or to include a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or if for
any reason it is necessary at any time to amend or supplement the Prospectus to
comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall,
subject to the second sentence of this subsection (d), forthwith at their cost
and expense amend or supplement the Prospectus by preparing and filing with the
Commission, and furnishing to you, such number of copies as you may reasonably
request of an amendment or amendments of, or a supplement or supplements to, the
Prospectus (in form and substance satisfactory to you and counsel for the
Underwriters) so that, as so amended or supplemented, the Prospectus shall not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the
Underwriters in order to qualify the Designated Preferred Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
you may reasonably request and shall continue such qualifications in effect so
long as may be advisable for distribution of the Designated Preferred
Securities; PROVIDED, HOWEVER, that the Offerors shall not be required to
qualify to do business as a foreign corporation or file a general consent to
service of process in any jurisdiction in connection with the foregoing. The
Offerors shall file such statements and reports as may be required by the laws
of each jurisdiction in which the Designated Preferred Securities have been
qualified as above. The Offerors will notify you immediately of, and confirm in
writing, the suspension of qualification of the Designated Preferred Securities
or any threat thereof of which they are aware in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the
Preferred Securities to be eligible for clearance and settlement through the
facilities of DTC.
(g) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than 16 months
after the Effective Date, a consolidated earnings statement of the Offerors in
reasonable detail, covering a period of at least 12 consecutive months beginning
after the effective date of the Registration Statement, conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158.
18
(h) The Offerors shall use the net proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner,
and only in the manner, specified in the Prospectus under the caption "Use of
Proceeds."
(i) For five years from the Effective Date, the Offerors shall
furnish to the Representatives copies of all reports and communications
(financial or otherwise) furnished by the Offerors to the holders of the
Designated Preferred Securities as a class, copies of all annual and quarterly
reports and financial statements filed with or furnished to the Commission
(other than portions for which confidential treatment has been obtained from the
Commission) or all reports and financial statements filed with or furnished to
any national securities exchange or the Nasdaq Stock Market or other
self-regulatory organization.
(j) Without the prior written consent of the Representatives, for a
period of 90 days from the Effective Date, the Offerors shall not, directly or
indirectly, offer for sale, sell or agree to sell or otherwise dispose of any
Designated Preferred Securities, any other beneficial interests in the assets of
the Trust or any securities of the Trust or the Company that are substantially
similar to the Designated Preferred Securities (other than the issuance to and
purchase by the Company of the Common Securities of the Trust), including any
guarantee of such beneficial interests or substantially similar securities, or
securities convertible into or exchangeable for or that represent the right to
receive any such beneficial interest or substantially similar securities, except
for the registration of the Designated Preferred Securities and the sales to the
Underwriters pursuant to this Agreement.
(k) The Offerors shall use their best efforts to cause the
Designated Preferred Securities to become quoted on the Nasdaq National Market,
or in lieu thereof a national securities exchange, and to remain so quoted,
provided this shall not prevent the Company from redeeming the Designated
Preferred Securities pursuant to the terms of the Trust Agreement. If the
Designated Preferred Securities are exchanged for Debentures, the Company shall
use its best efforts to have the Debentures promptly listed on a national
securities exchange or include them in a comparable automated quotation system
on or in which the Designated Preferred Securities are then listed or included
and to have the Debentures promptly registered under the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriters'
option to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriters shall elect to purchase, except as described in
the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any
action (or refrain from taking any action) which will result in the Offerors or
the Subsidiaries incurring any material liability or obligation, direct or
contingent, or enter into any material transaction, except in the ordinary
course of business, or take or refrain from taking any action which will cause
or result in any material adverse change in the financial position, capital
stock, or any material increase in long-term debt, obligations under capital
leases or short-term borrowings of the Offerors and the Subsidiaries on a
consolidated basis.
(m) Except as described in the Prospectus, the Offerors shall not,
for a period of 180 days after the date hereof, without the prior written
consent of the Representatives, purchase, redeem or call for redemption, or
prepay or give notice of prepayment (or announce any redemption or call for
redemption, or any repayment or notice of prepayment) of the Offerors'
securities.
(n) The Offerors shall not take, directly or indirectly, any action
designed to result in or which constitutes or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of any security
of the Offerors in connection with the sale or resale of the Designated
Preferred Securities in violation of the Commission's rules and regulations,
including, but not
19
limited to, Regulation M, and the Offerors are not aware of any such action
taken or to be taken by any affiliate of the Offerors.
(o) Prior to the Closing Date (and, if applicable, the Option
Closing Date), the Offerors will not issue any press release or other
communication directly or indirectly or hold any press conference with respect
to the Offerors, the Subsidiaries or the offering of the Designated Preferred
Securities without your prior consent, which consent shall not be unreasonably
withheld.
(p) The Offerors shall comply with all registration, filing and
reporting requirements of the 1934 Act for so long as the Preferred Securities
or the Debentures shall remain outstanding.
5. PAYMENT OF EXPENSES.
Whether or not this Agreement is terminated or the sale of the Designated
Preferred Securities to the Underwriters is consummated, the Company covenants
and agrees that it will pay or cause to be paid (directly or by reimbursement)
all costs and expenses incident to the performance of the obligations of the
Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, each Preliminary Prospectus, the Registration
Statement and the Prospectus and any amendments or supplements thereto, and the
printing, delivery and shipping of this Agreement and any other underwriting
documents (including, without limitation, selected dealers agreements);
(b) all fees, expenses and disbursements of the Offerors'
counsel and accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as you may
request, including all filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith;
(d) all fees and expenses incurred in connection with filings
made with the NASD;
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on the Nasdaq National Market;
(f) the cost of furnishing to you copies of the initial registration
statements, any Preliminary Prospectus, the Registration Statement and the
Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar
and the fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated
Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution and
delivery of the Trust Agreement, the Indenture, the Guarantee and the Expense
Agreement; and
20
(j) all other costs and expenses incident to the performance of the
obligations of the Company hereunder and under the Trust Agreement that are not
otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
accountable out-of-pocket expenses in connection herewith or in contemplation of
the performance of your obligations hereunder, including without limitation
travel expenses, fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any investigation of the
Offerors and the Subsidiaries, or any preparation for the marketing, purchase,
sale or delivery of the Designated Preferred Securities up to $100,000, in each
case following presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the Firm
Preferred Securities and, following exercise, if any, of the Option, the Option
Preferred Securities, are subject to the accuracy of the representations and
warranties and compliance with the agreements of the Offerors herein as of the
date hereof and as of the Closing Date (or in the case of the Option Preferred
Securities, if any, as of the Option Closing Date), to the accuracy of the
written statements of the Offerors made pursuant to the provisions hereof, to
the performance by the Offerors of their covenants and obligations hereunder and
to the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Offerors or the Representatives, shall be contemplated
by the Commission or any state authority. Any request on the part of the
Commission or any state authority for additional information (to be included in
the Registration Statement or Prospectus or otherwise) shall have been disclosed
to you and complied with to your satisfaction and to the satisfaction of counsel
for the Underwriters.
(b) No Underwriter shall have advised the Company at or before the
Closing Date (and, if applicable, the Option Closing Date) that the Registration
Statement or any post-effective amendment thereto, or the Prospectus or any
amendment or supplement thereto, contains an untrue statement of a fact which,
in your opinion, is material or omits to state a fact which, in your opinion, is
material and is required to be stated therein or is necessary to make statements
therein (in the case of the Prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not misleading.
21
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Trust Agreement, and
the Designated Preferred Securities, and the authorization and form of the
Registration Statement and the Prospectus, other than financial statements and
other financial data, and all other legal matters relating to this Agreement and
the transactions contemplated hereby or by the Trust Agreement shall be
satisfactory in all material respects to counsel for the Underwriters, and the
Offerors and the Subsidiaries shall have furnished to such counsel all documents
and information relating thereto that they may reasonably request to enable them
to pass upon such matters.
(d) Xxxxxx, Xxxxxxxx & Xxxx, L.L.P., counsel for the Offerors, shall
have furnished to you their signed opinion, given under Maryland and other
applicable law, dated the Closing Date or the Option Closing Date, as the case
may be, in form and substance satisfactory to counsel for the Underwriters, to
the effect that:
(A) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the State of
Maryland, and is duly registered as a bank holding company under the BHC
Act. To the best knowledge of such counsel, the entities listed on Exhibit
A are the only subsidiaries, direct or indirect, of the Company except for
Sentry Lease Equity Pool 2000-1, LLC and Summit MFR Leasing, LLC, each of
which is 60% owned by the Company. Each of the Subsidiaries is validly
existing and in active status or good standing, as applicable, under the
laws of its jurisdiction of incorporation or organization, as the case may
be. Each of the Company, MB Financial Bank, N.A., Union Bank, N.A. and
Xxxxxx Centre National Bank has full power (corporate or otherwise) and
authority to own or lease its properties and to conduct its business as
such business is described in the Prospectus.
(ii) The capital stock, the Debentures and Guarantee of the
Company and the equity securities of the Trust conform to the descriptions
thereof contained in the Prospectus in all material respects. The capital
stock of the Company authorized as of March 31, 2002 is as set forth under
the caption "Capitalization" in the Prospectus. The outstanding shares of
capital stock of the Company have been duly authorized and validly issued,
and are fully paid and nonassesable. The form of certificates to evidence
the Designated Preferred Securities has been approved by the Trust and is
in due and proper form and complies with all applicable requirements. To
the best of such counsel's knowledge, there are no outstanding rights,
options or warrants to purchase, no other outstanding securities
convertible into or exchangeable for, and no commitments, plans or
arrangements to issue, any shares of capital stock of the Company or
equity securities of the Trust, except as described in the Prospectus and
except for stock options granted to current or former directors, offices
and employees of the Company or the Subsidiaries and their respective
predecessors.
(iii) The issuance, sale and delivery of the Designated
Preferred Securities and Debentures in accordance with the terms and
conditions of this Agreement and the Indenture have been duly authorized
by all necessary actions of the Offerors. All of the Designated Preferred
Securities have been duly and validly authorized and, when delivered and
paid for in accordance with this Agreement, will be duly and validly
issued, fully paid and nonassessable, and will conform in all material
respects to the description thereof in the Registration Statement, the
Prospectus and will conform with the description thereof in the Trust
Agreement. The Designated Preferred Securities have been approved for
quotation on the Nasdaq National Market subject to official notice of
issuance.
(iv) The Offerors have all requisite corporate and trust power
to enter into and perform their obligations under this Agreement, and this
Agreement has been duly and
22
validly authorized, executed and delivered by the Offerors and
constitutes the legal, valid and binding obligations of the Offerors
enforceable in accordance with its terms, except as the enforcement hereof
or thereof may be limited by general principles of equity and by
bankruptcy or other laws relating to or affecting creditors' rights
generally, and except as the indemnification and contribution provisions
hereof may be limited under applicable laws and certain remedies may not
be available in the case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act, has been
duly authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable against the Company
in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of general
principles of equity.
(vi) The Debentures have been duly authorized, executed, and
delivered by the Company and are legal, valid and binding obligations of
the Company enforceable against the Company in accordance with their
terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies
of creditors generally and of general principles of equity. The holders of
the Debentures are entitled to the benefits of the Indenture pertaining to
holders of Debentures.
(vii) The Expense Agreement has been duly authorized, executed
and delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable against the Company in accordance
with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
rights and remedies of creditors generally and of general principles of
equity.
(viii) To the best knowledge of such counsel, neither of the
Offerors nor any of the Subsidiaries is in breach or violation of, or
default under, with or without notice or lapse of time or both, its
corporate charter, articles of incorporation, by-laws or governing
document (including without limitation, the Trust Agreement). The
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated by this Agreement, the Trust Agreement,
the Indenture, the Guarantee or the other agreements contemplated hereby
or thereby do not and will not conflict with, result in the creation or
imposition of any material lien, claim, charge, encumbrance or restriction
upon any property or assets of the Offerors or the Subsidiaries or the
Designated Preferred Securities pursuant to, or constitute a breach or
violation of, or constitute a default under, with or without notice or
lapse of time or both, any of the terms, provisions or conditions of the
charter, articles of incorporation, by-laws or other governing document
(including without limitation, the Trust Agreement) of the Offerors or the
Subsidiaries, or to the best of such counsel's knowledge, any material
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, franchise, license or any other agreement or instrument to
which either Offeror or the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound or any order,
decree, judgment, franchise, license, material Permit, rule or regulation
of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties which, in each case, is material to the Offerors and
the Subsidiaries on a consolidated basis.
(ix) To the best of such counsel's knowledge, holders of
securities of the Offerors either do not have any right that, if
exercised, would require the Offerors to cause such securities to be
included in the Registration Statement or have waived such right. To the
best of
23
such counsel's knowledge, neither the Company nor any of the Subsidiaries
is a party to any agreement or other instrument which grants rights for
or relating to the registration of any securities of the Offerors to
be included in the Registration Statement.
(x) To the best of such counsel's knowledge, (ii) no action,
suit or proceeding at law or in equity is pending or threatened to which
the Offerors or the Subsidiaries is or is threatened to be made a party,
and (ii) no action, suit or proceeding is pending or threatened against or
affecting the Offerors or the Subsidiaries or any of their properties,
before or by any court or governmental official, commission, board or
other administrative agency, authority or body, or any arbitrator, wherein
an unfavorable decision, ruling or finding could reasonably be expected to
have a material adverse effect on the consummation of this Agreement or
the issuance and sale of the Designated Preferred Securities as
contemplated herein or which is required to be disclosed in the
Registration Statement or the Prospectus and is not so disclosed.
(xi) No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus, except such as
have been obtained under the 1933 Act, the Trust Indenture Act and the
Nasdaq Stock Market with respect to listing the Designated Preferred
Securities on the Nasdaq National Market, and except such as may be
required under state securities laws or Interpretations or Rules of the
NASD in connection with the purchase and distribution of the Designated
Preferred Securities by the Underwriters, as to which such counsel need
express no opinion.
(xii) Each of the Registration Statement, the Prospectus and
any amendments or supplements thereto (other than the exhibits, financial
statements or other financial data included therein or omitted therefrom
and Underwriters' Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations as of their respective dates
of effectiveness or filing.
(xiii) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character required
to be disclosed in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not so disclosed
or filed.
(xiv) The statements under the captions "Risk Factors",
"Description of the Trust", "Description of the Preferred Securities",
"Description of the Debentures", "Description of the Guarantee",
"Relationship Among the Preferred Securities, the Debentures and the
Guarantee", "Federal Income Tax Consequences", and "ERISA Considerations",
and "Supervision and "Regulation", "Legal Proceedings" and "Merger-related
Bylaw Provisions" in "Business" and "Employment Agreements" in
"Management" in the Prospectus, insofar as such statements constitute a
description of legal or regulatory matters, documents or instruments
referred to therein, are accurate descriptions of the matters purported to
be summarized therein in all material respects and fairly present the
information called for with respect to such legal or regulatory matters,
documents and instruments.
(xv) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective under the
1933 Act; any required filing of the Prospectus pursuant to Rule 424(b)
has been made within the time period required by Rule 424(b); to the best
of such counsel's knowledge, no stop order suspending the effectiveness
24
of the Registration Statement has been issued and no proceedings for a
stop order are pending or threatened by the Commission.
(xvi) Except as disclosed in the Prospectus, restricted by law
or regulation or provided in the Company's bylaws or the Revolving Loan
Agreement, to such counsel's knowledge there are no contractual
encumbrances, restrictions or requirements, or material legal restrictions
or requirements required to be disclosed on the ability of the
Subsidiaries (A) to pay dividends or make any other distributions on its
capital stock or to pay indebtedness owed to the Offerors, (B) to make any
loans or advances to, or investments in, the Offerors or (C) to transfer
any of its property or assets to the Offerors. Except as described in the
Prospectus (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus), as provided in the Company's bylaws and as
provided in the Revolving Loan Agreement, to the knowledge of such
counsel, there are no restrictions, encumbrances or requirements affecting
the payment of dividends or the making of any other distributions on any
of the capital stock of the Company required to be described in the
Prospectus (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus).
In giving the above opinion, such counsel may state that, insofar as such
opinion involves factual matters, they have relied upon certificates of officers
of the Offerors including, without limitation, certificates as to the identity
of any and all material contracts, indentures, mortgages, deeds of trust, loans
or credit agreements, notes, leases, franchises, licenses or other agreements or
instruments, and all material permits, easements, consents, licenses, franchises
and government regulatory authorizations, for purposes of paragraphs (viii),
(ix), (xiii), and (xvi) hereof, and certificates of public officials. In giving
such opinion, such counsel may rely upon the opinion of Xxxxxxxx, Xxxxxx &
Xxxxxx, special Delaware counsel to the Offerors as to certain matters relating
to the Trust and the Designated Preferred Securities which are governed by
Delaware law.
Such counsel shall also confirm that, in connection with the preparation
of the Registration Statement and Prospectus, such counsel has participated in
conferences with officers and representatives of the Offerors and with their
independent public accountants and with you and your counsel, at which
conferences such counsel made inquiries of such officers, representatives and
accountants and discussed in detail the contents of the Registration Statement
and the Prospectus and such counsel has no reason to believe (A) that the
Registration Statement or any amendment thereto (except for the financial
statements and related schedules and statistical data and exhibits, included
therein or omitted therefrom or Underwriters' Information, as to which such
counsel need express no opinion), at the time the Registration Statement or any
such amendment became effective, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or (B) that the
Prospectus or any amendment or supplement thereto (except for the financial
statements and related schedules and statistical data and exhibits, included
therein or omitted therefrom or Underwriters' Information, as to which such
counsel need express no opinion), at the time the Registration Statement became
effective (or, if the term "Prospectus" refers to the prospectus first filed
pursuant to Rule 424(b) of the 1933 Act Regulations, at the time the Prospectus
was issued), at the time any such amended or supplemented Prospectus was issued,
at the Closing Date and, if applicable, the Option Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading or (C) that there is any amendment to the Registration Statement
required to be filed that has not already been filed.
(e) Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to such counsel, to the effect that:
25
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act
and, under the Trust Agreement and the Delaware Business Trust Act, has
the trust power and authority to conduct its business as described in the
Prospectus.
(ii) The Trust has all requisite trust power to enter into and
perform its obligations under this Agreement. The Trust Agreement is a
legal, valid and binding agreement of the Company, as sponsor, and the
Trustees, and is enforceable against the Company, as sponsor, and the
Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Business
Trust Act, this Agreement and its execution and delivery by the Trust, and
the performance by the Trust of its obligations thereunder, have been
authorized by all requisite trust action on the part of the Trust.
(iv) The issuance, sale and delivery of the Designated
Preferred Securities in accordance with the Trust Agreement have been duly
authorized by all necessary action of the Trust. The Designated Preferred
Securities have been duly and validly authorized by the Trust Agreement,
and when issued and sold in accordance with the Trust Agreement, the
Designated Preferred Securities will be, subject to the qualifications set
forth in paragraph (v) below, fully paid and nonassessable beneficial
interest in the assets of the Trust and entitled to the benefits of the
Trust Agreement. The form of certificate to evidence the Designated
Preferred Securities has been approved by the Trust and is in due and
proper form and complies with all applicable requirements of the Delaware
Business Trust Act.
(v) Holders of Designated Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to shareholders of private, for-profit corporations
organized under the General Corporation Law of the State of Delaware. Such
opinion may note that the holders of Designated Preferred Securities may
be obligated to make payments as set forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Preferred Securities is not
subject to preemptive rights or other similar rights.
(vii) The issuance and sale by the Trust of the Designated
Preferred Securities and the Common Securities, the execution, delivery
and performance by the Trust of this Agreement, and the consummation of
the transactions contemplated by this Agreement, do not violate (a) the
Trust Agreement, or (b) any applicable Delaware law, rule or regulation.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(f) Xxxxxx Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLC, counsel
for the Underwriters, shall have furnished you their signed opinion, dated the
Closing Date or the Option Closing Date, as the case may be, with respect to the
sufficiency of all corporate procedures and other legal matters relating to this
Agreement, the validity of the Designated Preferred Securities, the Registration
26
Statement, the Prospectus and such other related matters as you may reasonably
request and there shall have been furnished to such counsel such documents and
other information as they may request to enable them to pass on such matters. In
giving such opinion, Xxxxxx Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLC may
rely as to matters of fact upon statements and certifications of officers of the
Offerors and of other appropriate persons and may rely as to matters of law,
other than law of the United States and the State of Illinois, and upon the
opinions of Silver, Xxxxxxxx & Xxxx, L.L.P. and Xxxxxxxx, Xxxxxx & Xxxxxx
described herein.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representatives shall have received
from KPMG LLP a letter, dated the date of this Agreement and the Closing Date
(and, if applicable, the Option Closing Date), respectively, in form and
substance satisfactory to the Representatives, confirming that KPMG LLP is an
independent public accountants with respect to the Company and the Subsidiaries,
within the meaning of the 1933 Act and the 1933 Act Regulations and stating in
effect that.
(i) In its opinion, the consolidated financial statements of
the Company audited by them and included in the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1934 Act and the related rules and
regulations adopted by the SEC.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information", inquiries of officials of the Company
responsible for financial and accounting matters, which procedures do not
constitute an audit in accordance with U.S. generally accepted auditing
standards, nothing came to its attention that caused it to believe that,
with respect to the three-month period ended March 31, 2002 included in
the Registration Statement, and the three-month and six-month periods
ended June 30, 2002 not included in the Registration Statement that (i)
any material modifications should be made to such unaudited consolidated
financial statements for them to be in conformity with accounting
principles generally accepted in the United State of America and (ii) do
not comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1934 Act and the related
rules and regulations adopted by the SEC.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company,
inspection of the minute books of the Company since the date of the latest
audited financial statements of the Company, included in the Registration
Statement, inquiries of officials of the Company responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to its attention that caused it to
believe that:
(A) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock of the Company, any increase in the
consolidated debt or long-term debt of the Company or allowance for loan
losses, or any decreases in consolidated total assets, loans, investments,
deposits, consolidated stockholders' equity of the Company, or any
changes, decreases or increases in other items specified by the
Representatives, in each case as compared with amounts shown in the latest
consolidated statement of financial condition of the Company, included in
the Registration Statement except in each case for changes, increases or
decreases which the Registration
27
Statement specifically discloses have occurred or may occur or which are
described in such letter except that the outstanding shares of capital
stock of the Company increased from 17,564,170 shares as of March 31,
2002 to 17,568,067 shares as of June 30, 2002; and
(B) for the period from the date of the latest
consolidated financial statements of the Company included in the
Registration Statement to the specified date referred to in clause
(iii)(A), there were any decreases in the consolidated interest income,
net interest income or net income of the Company or in the per share
amount of net income of the Company or any changes, decreases or increases
in other items specified by the Representatives as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each case
for increases or decreases which the Registration Statement discloses have
occurred or may occur, or which are described in such letter.
(iv) For purposes of such letter, they have also read the
following sections of the registration statement: (a) "Summary
Consolidated Financial and Other Data", and (b) "Capitalization", and they
have performed the following additional procedures:
(A) They have compared the information included under
the heading "Summary Consolidated Financial and Other Data" with the
requirements of items 301 and 503(d) of Regulation S-K and also have
inquired of certain officials of the Company who have responsibility for
financial and accounting matters whether this information conforms in all
material respects with the disclosure requirements of items 301 and 503(d)
of Regulation S-K. Based upon the foregoing procedures, nothing has come
to their attention that has caused them to believe that this information
does not conform in all material respects with the disclosure requirements
of items 301 and 503(d) of Regulation S-K, provided that they are not
obligated to make any comment as to the appropriateness of the assumptions
used in determining the amount of rental expense included in fixed
charges.
(B) Under the heading "Capitalization," they have
compared the amounts and numbers of shares listed under the caption
"Actual" with the balances in the accounting records of the Company as of
March 31, 2002, and have found them to be in agreement. They have compared
the amounts and numbers of shares listed under the caption "Actual"
adjusted for the issuance of the debentures to be offered by means of the
Registration Statement and for the proposed use of the proceeds thereof as
described under "Use of Proceeds" (without making any comment regarding
the reasonableness of the "Use of Proceeds" or whether such use will
actually take place) with the amounts and numbers of shares shown under
the caption "As Adjusted" and have found such amounts and numbers of
shares to be in agreement. They have compared the description of the
securities and the information included in the notes to the table headed
"Capitalization" with the corresponding descriptions and information in
the Company's consolidated financial statements, including the notes
thereto included in the Registration Statement, and have found such
descriptions and information to be in agreement.
(v) In addition to the audit referred to in their report
included in the Registration Statement and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (ii) and (iii) above, they have carried out certain specified
procedures, not constituting an audit in accordance with U.S. generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which are
derived from the general accounting records and consolidated financial
statements of the Company which appear in the Registration Statement, and
have compared such amounts, percentages and financial information with the
accounting
28
records and the material derived from such records and consolidated
financial statements of the Company and have found them to be in
agreement.
In the event that the letter to be delivered on the date hereof, on the
Closing Date (and, if applicable, any Option Closing Date) referred to above set
forth any such changes, decreases or increases as specified in clauses (iii)(A)
or (iii)(B) above, or any exceptions from such agreement specified in clause
(iv) or (v) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letter do not (x) reflect a material adverse change in the items specified in
clause (iii)(A) above as compared with the amounts shown in the latest
consolidated statement of financial condition of the Company included in the
Registration Statement, (y) reflect a material adverse change in the items
specified in clause (iii)(B) above as compared with the corresponding periods of
the prior year or other period specified by the Representatives, or (z) reflect
a material adverse change in items specified in clause (iv) or (v) above from
the amounts shown in the Preliminary Prospectus distributed by the Underwriters
in connection with the offering contemplated hereby or from the amounts shown in
the Prospectus.
(h) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received certificates of the chief executive officer and the
chief financial and accounting officer of the Company, which certificates shall
be deemed to be made on behalf of the Company, dated as of the Closing Date and,
if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (i) the representations and
warranties of the Company set forth in Section 2 hereof are accurate as of the
Closing Date and, if applicable, the Option Closing Date, and that each of the
Offerors has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to such Closing Date and, if
applicable, the Option Closing Date; (ii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any material adverse change in the condition (financial or otherwise),
business affairs, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis; (iii) since such dates there has not been
any material transaction entered into by the Offerors or the Subsidiaries other
than transactions in the ordinary course of business; and (iv) they have
carefully examined the Registration Statement and the Prospectus as amended or
supplemented and nothing has come to their attention that would lead them to
believe that either the Registration Statement or the Prospectus, or any
amendment or supplement thereto as of their respective effective or issue dates,
contained, and the Prospectus as amended or supplemented at such Closing Date
(and, if applicable, the Option Closing Date), contains any untrue statement of
a material fact, or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were made) not
misleading; and (v) covering such other matters as you may reasonably request.
The officers' certificate of the Company shall further state that no stop order
affecting the Registration Statement is in effect or, to their knowledge,
threatened.
(i) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received a certificate of an authorized representative of the
Trust to the effect that to the best of his or her knowledge based upon a
reasonable investigation, the representations and warranties of the Trust in
this Agreement are true and correct as though made on and as of the Closing Date
(and, if applicable, the Option Closing Date); the Trust has complied with all
the agreements and satisfied all the conditions required by this Agreement to be
performed or satisfied by the Trust on or prior to the Closing Date, and since
the most recent date as of which information is given in the Prospectus, except
as described in the Prospectus, the Trust has not incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise) of the Trust.
29
(j) On the Closing Date, all conditions precedent under each of the
Trust Agreement, the Guarantee, the Indenture and the Expense Agreement shall
have been satisfied or duly waived, and you shall have received copies of all
documentation required to evidence same.
(k) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities, shall not have objected to the Underwriters'
participation in such offering.
(l) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received the exemption, consent or waiver of LaSalle Bank, N.A.,
which exemption, consent or waiver may be pursuant to that certain Third
Amendment to the Revolving Loan Agreement dated as of July 2, 1999, between the
Company and LaSalle Bank, N.A., permitting the execution, delivery and
performance of, and the consummation of the transactions contemplated on the
Closing Date or the Option Closing Date, as the case may be, by this Agreement,
the Trust Agreement, the Indenture, the Guarantee or the other agreements
contemplated hereby or thereby.
(m) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received the exemption, consent or waiver of LaSalle Bank, N.A.,
which exemption, consent or waiver may be pursuant to that certain Third
Amendment to the Revolving Loan Agreement dated as of July 2, 1999, between the
Company and LaSalle Bank, N.A., to the consummation by the Company of the
transaction with LaSalle Systems Leasing Inc. and LaSalle Equipment Limited
Partnership described in the Prospectus.
(n) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to you and counsel for the Underwriters
all such other documents, certificates and opinions as they have reasonably
requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
If any of the conditions referred to in this Section 6 shall not have been
fulfilled when and as required by this Agreement, this Agreement and all of the
Underwriters' obligations hereunder may be terminated by you on notice to the
Company at, or at any time before, the Closing Date or the Option Closing Date,
as applicable. Any such termination shall be without liability of the
Underwriters to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter, each of its directors, officers and agents, and each
person, if any, who controls any Underwriter within the meaning of the 1933 Act,
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorneys fees and expenses), joint or
several, arising out of or based upon (i) any breach of or untrue statement
contained in Section 2(iv) of this Agreement, (ii) any untrue statement or
alleged untrue statement of a material fact made by or on behalf of the Company
or the Trust contained in the registration statement as originally filed or the
Registration Statement, any Preliminary Prospectus, the Prospectus, or in any
amendment or supplement thereto, (iii) any omission or alleged omission to state
a material fact in the registration statement as originally filed or the
Registration Statement, any Preliminary Prospectus, the Prospectus, or in any
amendment or supplement thereto, required to be stated therein or necessary to
make the statements therein not misleading, and against any and all losses,
claims, damages, liabilities and expenses (including
30
reasonable costs of investigation and attorneys fees), joint or several,
arising out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, or in any
amendment or supplement thereto, or arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (iv) the
enforcement of this indemnification provision or the contribution provisions
of Section 7(d); and shall reimburse each such indemnified party for any
reasonable legal or other expenses as incurred, but in no event less
frequently than 30 days after each invoice is submitted, incurred by them in
connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage,
liability or action, notwithstanding the possibility that payments for such
expenses might later be held to be improper, in which case such payments
shall be promptly refunded; PROVIDED, HOWEVER, that the Offerors shall not be
liable in any such case to the extent, but only to the extent, that any such
losses, claims, damages, liabilities and expenses arise out of or are based
upon any untrue statement or omission or allegation thereof that has been
made therein or omitted therefrom in reliance upon and in conformity with the
Underwriters' Information; PROVIDED, FURTHER, that the indemnification
contained in this paragraph with respect to any Preliminary Prospectus shall
not inure to the benefit of any Underwriter (or of any person controlling any
Underwriter) to the extent any such losses, claims, damages, liabilities or
expenses directly results from the fact that such Underwriter sold Designated
Preferred Securities to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus (as
amended or supplemented if any amendments or supplements thereto shall have
been furnished to you in sufficient time to distribute same with or prior to
the written confirmation of the sale involved), if required by law, and if
such loss, claim, damage, liability or expense would not have arisen but for
the failure to give or send such person such document. The foregoing
indemnity agreement is in addition to any liability the Company or the Trust
may otherwise have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each Offeror, each of the Company's directors, each of the
Company's officers who signed the Registration Statement, each of the
Administrative Trustees of the Trust and each person, if any, who controls an
Offeror within the meaning of the 1933 Act, to the same extent as required by
the foregoing indemnity from the Company to each Underwriter, but only with
respect to the Underwriters' Information. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to any
such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; PROVIDED, HOWEVER, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at
31
the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such action on behalf of such indemnified
party or such controlling person) it being understood, however, that the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time and for all such indemnified party and controlling
persons, which firm shall be designated in writing by the indemnified party
(and, if such indemnified parties are Underwriters, by you, as
Representatives). Each indemnified party and each controlling person, as a
condition of such indemnity, shall use reasonable efforts to cooperate with
the indemnifying party in the defense of any such action or claim. The
indemnifying party shall not be liable for any settlement of any such action
effected without its written consent, but if there shall be a final judgment
for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party and any such controlling
person from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of each
indemnified party, settle, compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnity may be sought hereunder (whether or not such indemnified party or any
person who controls such indemnified party within the meaning of the 1933 Act is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes a release of each such indemnified party
reasonably satisfactory to each such indemnified party and each such controlling
person from all liability arising out of such claim, action, suit or proceeding
or unless the indemnifying party shall confirm in a written agreement with each
indemnified party, that notwithstanding any federal, state or common law, such
settlement, compromise or consent shall not alter the right of any indemnified
party or controlling person to indemnification or contribution as provided in
this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total underwriting discounts, commissions and compensation received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses
32
referred to in the first sentence of this paragraph (d) shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this paragraph (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Designated Preferred Securities underwritten by such Underwriter
and distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriters has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls an Offeror within
the meaning of the 1933 Act, each officer and trustee of an Offeror who shall
have signed the Registration Statement and each director of an Offeror shall
have the same rights to contribution as the Offerors subject in each case to the
preceding sentence. The obligations of the Offerors under this paragraph (d)
shall be in addition to any liability which the Offerors may otherwise have and
the obligations of the Underwriters under this paragraph (d) shall be in
addition to any liability that the Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Underwriter or any person
controlling an Underwriter or by or on behalf of the Offerors, or such
directors, trustees or officers (or any person controlling an Offeror), (ii)
acceptance of any Designated Preferred Securities and payment therefor hereunder
and (iii) any termination of this Agreement. A successor of any Underwriter or
of an Offeror, such directors, trustees or officers (or of any person
controlling an Underwriter or an Offeror) shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section 7.
(f) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust under
this Section 7.
8. TERMINATION.
You shall have the right to terminate this Agreement at any time, and if
requested by you, shall confirm such termination in writing, at or prior to the
Closing Date or, with respect to the Underwriters' obligation to purchase the
Option Preferred Securities, at any time at or prior to the Option Closing Date,
without liability on the part of the Underwriters to the Offerors, if:
(a) Either of the Offerors shall have failed, refused, or been
unable to perform any agreement on its part to be performed under this
Agreement, or any of the conditions referred to in Section 6 shall not have been
fulfilled, when and as required by this Agreement;
(b) Either of the Offerors or any of the Subsidiaries shall have
sustained any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree which in the
judgment of the Representatives materially impairs the investment quality of the
Designated Preferred Securities;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which in
33
your reasonable judgment is reasonably likely to have a Material Adverse
Effect, whether or not arising in the ordinary course of business;
(d) There has occurred any outbreak or escalation of hostilities or
other calamity or crisis (including, without limitation, an act of terrorism) or
material change in general economic, political or financial conditions, or
internal conditions, the effect of which on the financial markets of the United
States is such as to make it, in your reasonable judgment, impracticable to
market the Designated Preferred Securities or enforce contracts for the sale of
the Designated Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by any of said exchanges or
market system or by the Commission or any other governmental authority; or
(f) A banking moratorium shall have been declared by any federal,
New York, Illinois, Oklahoma or Texas authority; or
(g) Any action shall have been taken by any government in respect of
its monetary affairs which, in your reasonable judgment, has a material adverse
effect on the United States securities markets so as to make it, in your
reasonable judgment, impracticable to market the Designated Preferred Securities
or to enforce contracts for the sale of the Designated Preferred Securities.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. DEFAULT OF UNDERWRITERS.
If any Underwriter or Underwriters shall default in its or their
obligations to purchase Designated Preferred Securities hereunder, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Designated Preferred Securities which
such defaulting Underwriter or Underwriters agreed but failed to purchase;
PROVIDED, HOWEVER, that the non-defaulting Underwriters shall be under no
obligation to purchase such Designated Preferred Securities if the aggregate
number of Designated Preferred Securities to be purchased by such non-defaulting
Underwriters shall exceed 110% of the aggregate underwriting commitments set
forth in Schedule I hereto, and provided further, that no non-defaulting
Underwriter shall be obligated to purchase Designated Preferred Securities to
the extent that the number of such Designated Preferred Securities is more than
110% of such Underwriter's underwriting commitment set forth in Schedule I
hereto.
In the event that the non-defaulting Underwriters are not obligated under
the above paragraph to purchase the Designated Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representatives may in its discretion arrange for one or more of the
Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representatives do not arrange for the purchase of such
Designated Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representatives to purchase such Designated Preferred
Securities on such terms.
In the event that the Representatives or the Company does not arrange for
the purchase of any Designated Preferred Securities to which a default relates
as provided above, this Agreement shall be terminated.
34
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Preferred Securities
of a defaulting Underwriter or Underwriters as provided in this Section 9, (i)
you shall have the right to postpone the Closing Date for a period of not more
than five full business days, in order to effect any changes that, in the
opinion of counsel for the Underwriters or the Company, may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file any amendments
to the Registration Statement or supplements to the Prospectus which, in its
opinion, may thereby be made necessary and (ii) the respective numbers of
Designated Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of any liability it may have for damages
occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 9 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 5 and except for the provisions of Section 7.
10. EFFECTIVE DATE OF AGREEMENT.
If the Registration Statement is not effective at the time of execution of
this Agreement, this Agreement shall become effective on the Effective Date at
the time the Commission declares the Registration Statement effective. The
Company shall immediately notify the Underwriters when the Registration
Statement becomes effective.
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. St. Louis time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Representatives shall
release the Designated Preferred Securities for initial public offering. The
Representatives shall notify the Offerors immediately after they have taken any
action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may be
terminated by the Offerors, by notifying you or by you, as Representatives of
the several Underwriters, by notifying either Offeror, except that the
provisions of Sections 5 and 7 shall at all times be effective.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
The representations, warranties, indemnities, agreements and other
statements of the Offerors and their officers and trustees set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Offerors or controlling persons
of either Offeror, or by or on behalf of the Underwriters or controlling persons
of the Underwriters or any termination or cancellation of this Agreement and
shall survive delivery of and payment for the Designated Preferred Securities.
12. NOTICES.
Except as otherwise provided in this Agreement, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand, mailed by registered or certified mail, return
receipt requested, or transmitted by any standard form of telecommunication and
confirmed. Notices to Offerors shall be sent to 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxx (with a copy to Silver, Xxxxxxxx &
Xxxx, L.L.P., 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention:
Xxxx X. Xxxxxxxxxx, Esq.) and notices to the Underwriters shall be
35
sent to Xxxxxx, Xxxxxxxx & Company, Incorporated, 000 Xxxxx Xxxxxxxx, 0xx
Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx (with a copy to
Xxxxxx Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLC, 000 Xxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. del Hierro, Esq.).
In all dealings with the Company under this Agreement, Xxxxxx, Xxxxxxxx &
Company, Incorporated shall act as representative of and on behalf of the
several Underwriters, and the Company shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of the Underwriters,
made or given by Xxxxxx, Xxxxxxxx & Company, Incorporated on behalf of the
Underwriters, as if the same shall have been made or given in writing by the
Underwriters.
13. PARTIES.
The Agreement herein set forth is made solely for the benefit of the
Underwriters and the Offerors and, to the extent expressed, directors, trustees
and officers of the Offerors, any person controlling the Offerors or the
Underwriters, and their respective successors and assigns. No other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, in his status as such
purchaser, from the Underwriters of the Designated Preferred Securities.
14. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Missouri,
without giving effect to the choice of law or conflicts of law principles
thereof.
15. AUTHORITY.
Any certificate signed by an authorized officer of the Company or the
Trust and delivered to the Representatives or to counsel for the Underwriters
pursuant to this Agreement shall be deemed a representation and warranty by the
Company and the Trust to the Underwriters as to the matters covered thereby.
16. COUNTERPARTS.
This Agreement may be executed by facsimile and in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
SIGNATURES APPEAR ON THE NEXT PAGE
36
If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
MB FINANCIAL, INC.
By: /s/ Xxxx X. Xxxx
----------------------------------------------
Name: Xxxx X. Xxxx
--------------------------------------------
Title: Vice President and Chief Financial Officer
-------------------------------------------
MB FINANCIAL CAPITAL TRUST I
By: /s/ Xxxx X. Xxxx
----------------------------------------------
Name: Xxxx X. Xxxx
--------------------------------------------
Title: Administrative Trustee
-------------------------------------------
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
CONFIRMED AND ACCEPTED,
as of August 13, 2002
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
-------------------------------------
Title: Senior Managing Director
------------------------------------
For itself and as a Representative of the
several Underwriters named in Schedule I
hereto.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
For itself and as a Representative of the
several Underwriters named in Schedule I
hereto.
37
XXXX XXXXXX INVESTMENTS, INC.
By: /s/ Xxx Xxxxxxxx
---------------------------------------
Name: Xxx Xxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
For itself and as a Representative of the
several Underwriters named in Schedule I
hereto.
SANDLER X'XXXXX & PARTNERS, L.P.
By: XXXXXXX X'XXXXX & PARTNERS CORP.,
the sole general partner
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
--------------------------------------
Title: Vice President
------------------------------------
For itself and as a Representative of the
several Underwriters named in Schedule I
hereto.
38
SCHEDULE I
UNDERWRITER NUMBER OF SECURITIES
Xxxxxx, Xxxxxxxx & Company, Incorporated.........................835,690
Xxxx Xxxxx Xxxx Xxxxxx Incorporated..............................557,770
Xxxx Xxxxxx Investments, Inc.....................................463,200
Xxxxxxx X'Xxxxx & Partners, L.P. .................................73,340
Advest, Inc.......................................................20,000
Xxxxxxxxxx & Co. Inc..............................................20,000
Xxxxxx, Xxxxx Xxxxx, Inc..........................................20,000
Xxxxxxxx, Xxxxxxxx, Xxxxxx & Co., Inc.............................20,000
Xxxxx, Xxxxxxxx & Xxxxx, Inc......................................20,000
Xxxxxx Xxxxxx & Company...........................................20,000
SunTrust Xxxxxxxx Xxxxxxxx Capital Markets, a Division of
SunTrust Capital Markets, Inc.................................20,000
Mesirow Financial, Inc.............................................5,000
Xxxxxxxxxx Securities Inc..........................................5,000
Total..........................................................2,080,000
EXHIBIT A
LIST OF SUBSIDIARIES
Xxxxxx Centre Bancshares Inc.
Xxxxxx Centre National Bank (Texas)
Ashland Management Agency
Coal City Capital Trust I
LaSalle Systems Leasing, Inc. (formerly MB Financial Acquisition Corp I)
Manufacturers Deferred Exchange Corporation
Manufacturers Community Development Corporation
MB 1200 Corporation
MB Financial Bank, N.A.
MB Financial Insurance, Inc.
MB Real Estate Holdings LLC
MBRE Holdings LLC
MidCity Insurance Agency, Inc.
Union Bank N.A. (Oklahoma)
