EXHIBIT 4.4
MCB FINANCIAL CORPORATION
3,000 CAPITAL SECURITIES
10.60% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000.00 PER CAPITAL SECURITY)
PLACEMENT AGREEMENT
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August 31, 2000
First Tennessee Capital Markets
845 Crossover Lane, Suite 150
Memphis, Tennessee 38117
Keefe, Bruyette & Woods, Inc.
7020 S. County Line Road
Burr Ridge, Illinois 60521
Ladies and Gentlemen:
MCB Financial Corporation, a California corporation (the "Company"),
and its financing subsidiary, MCB Statutory Trust I, a Connecticut statutory
trust (the "Trust," and hereinafter together with the Company, the "Offerors"),
hereby confirm their agreement with you as placement agents (the "Placement
Agents"), as follows:
SECTION 1. ISSUANCE AND SALE OF SECURITIES.
1.1. INTRODUCTION. The Offerors propose to issue and sell at the Closing
(as defined in Section 2.3.1 hereof) 3,000 of the Trust's 10.60% Capital
Securities, with a liquidation amount of $1,000.00 per capital security (the
"Capital Securities"), to Preferred Term Securities, Ltd., a company with
limited liability established under the laws of the Cayman Islands (the
"Purchaser") pursuant to the terms of a Subscription Agreement entered into, or
to be entered into on or prior to the Closing Date, between the Offerors and the
Purchaser (the "Subscription Agreement"), the form of which is attached hereto
as EXHIBIT A and incorporated herein by this reference.
1.2. OPERATIVE AGREEMENTS. The Capital Securities shall be fully and
unconditionally guaranteed on a subordinated basis by the Company with respect
to distributions and amounts payable upon liquidation, redemption or repayment
(the "Guarantee") pursuant and subject to the Guarantee Agreement (the
"Guarantee Agreement"), to be dated as of the Closing Date and executed and
delivered by the Company and State Street Bank and Trust Company of Connecticut,
National Association, as trustee (the "Guarantee Trustee"), for the benefit from
time to time of the holders of the Capital Securities. The entire proceeds from
the sale by the Trust to the holders of the Capital Securities shall be combined
with the
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entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities"), and shall be used by the Trust to purchase
$3,093,000 in principal amount of the 10.60% Junior Subordinated Deferrable
Interest Debentures (the "Debt Securities") of the Company. The Capital
Securities and the Common Securities for the Trust shall be issued pursuant to
an Amended and Restated Declaration of Trust among State Street Bank and Trust
Company of Connecticut, National Association, as institutional trustee, the
Administrators named therein, and the Company, to be dated as of the Closing
Date and in substantially the form heretofore delivered to the Placement Agents
(the "Trust Agreement"). The Debt Securities shall be issued pursuant to an
Indenture, to be dated as of the Closing Date, between the Company and State
Street Bank and Trust Company of Connecticut, National Association, as trustee
(the "Indenture"). The documents identified in this Section 1.2 are referred to
herein as the "Operative Documents."
1.3. RIGHTS OF PURCHASER. The Capital Securities shall be offered and sold
by the Trust directly to the Purchaser without registration of any of the
Capital Securities, the Debt Securities or the Guarantee under the Securities
Act of 1933, as amended (the "Securities Act"), or any other applicable
securities laws in reliance upon exemptions from the registration requirements
of the Securities Act and other applicable securities laws. The Company agrees
that the Purchaser shall be and hereby is entitled to the benefit of, and to
rely upon, the provisions of this Agreement which are incorporated by reference
into the Subscription Agreement. The Offerors and the Placement Agents have
entered into this Agreement to set forth their understanding as to their
relationship and their respective rights, duties and obligations.
1.4. LEGENDS. Upon original issuance thereof, and until such time as the
same is no longer required under the applicable requirements of the Securities
Act, the Capital Securities and Debt Securities certificates shall each contain
a legend as required pursuant to any of the Operative Documents.
SECTION 2. PURCHASE OF CAPITAL SECURITIES.
2.1. EXCLUSIVE RIGHTS; PURCHASE PRICE. From the date hereof until the
Closing Date (which date may be extended by mutual agreement of the Offerors and
the Placement Agents), the Offerors hereby grant to the Placement Agents the
exclusive right to arrange for the sale of the Capital Securities to the
Purchaser at a purchase price of $1,000.00 per Capital Security.
2.2. SUBSCRIPTION AGREEMENT. The Offerors hereby agree to evidence their
acceptance of the subscription by countersigning a copy of the Subscription
Agreement and returning the same to the Placement Agents.
2.3. CLOSING AND DELIVERY OF PAYMENT.
2.3.1. CLOSING; CLOSING DATE. The sale and purchase of the Capital
Securities by the Offerors to the Purchaser shall take place at a closing (the
"Closing") at the offices of Lewis, Rice & Fingersh, L.C., at 10:00 a.m.
(Eastern Time) on September 7, 2000, or such other business day as may be agreed
upon by the Offerors and the Placement Agents (the "Closing Date"); PROVIDED,
HOWEVER, that in no event shall the Closing Date occur later than September 7,
2000 unless consented to by the Purchaser. Payment by the Purchaser shall be
payable in the manner set forth in the Subscription Agreement and shall be made
prior to or on the Closing Date.
2.3.2. DELIVERY. The certificates for the Capital Securities
shall be in definitive form, registered in the name of the Purchaser and in the
aggregate amount of the Capital Securities purchased by the Purchaser.
2.3.3. TRANSFER AGENT. The Offerors shall deposit the certificate
representing the Capital Securities with the institutional trustee or other
appropriate party prior to the Closing Date.
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2.4. PLACEMENT AGENTS' FEES AND EXPENSES.
2.4.1. PLACEMENT AGENTS' COMPENSATION. Because the proceeds from the
sale of the Capital Securities shall be used to purchase the Debt Securities
from the Company, the Company shall pay an aggregate of $30.00 for each $1,000
of principal amount of Debt Securities sold to the Trust (excluding the Debt
Securities related to the Common Securities purchased by the Company). Fifteen
and No/100 Dollars ($15.00) for each One Thousand and No/100 Dollars ($1,000.00)
of principal amount of Debt Securities shall be payable to First Tennessee
Capital Markets and Fifteen and No/100 Dollars ($15.00) for each One Thousand
and No/100 Dollars ($1,000.00) of principal amount of Debt Securities shall be
payable to Keefe, Bruyette & Woods, Inc. Such amount shall be delivered to the
Trustee or such other person designated by the Placement Agents on the Closing
Date and shall be allocated between and paid to the respective Placement Agents
as directed by the Placement Agents.
2.4.2. COSTS AND EXPENSES. Whether or not this Agreement is termi-
nated or the sale of the Capital Securities is consummated, the Company hereby
covenants and agrees that it shall pay or cause to be paid (directly or by
reimbursement) all reasonable costs and expenses incident to the performance of
the obligations of the Offerors under this Agreement, including all fees,
expenses and disbursements of the counsel and accountants for the Offerors; the
reasonable costs and charges of any trustee, transfer agent or registrar and the
fees and disbursements of counsel to any trustee, transfer agent or registrar
attributable to the Debt Securities and the Capital Securities; all reasonable
expenses incident to the execution and delivery of the Trust Agreement, the
Indenture, and the Guarantee; and all other reasonable costs and expenses
incident to the performance of the obligations of the Company hereunder and
under the Trust Agreement.
2.5. FAILURE TO CLOSE. If any of the conditions to the Closing specified in
this Agreement shall not have been fulfilled to the satisfaction of the
Placement Agents or if the Closing shall not have occurred on or before 10:00
a.m. (Eastern Time) on September 7, 2000, then each party hereto,
notwithstanding anything to the contrary in this Agreement, shall be relieved of
all further obligations under this Agreement without thereby waiving any rights
it may have by reason of such nonfulfillment or failure; provided, HOWEVER, that
the obligations of the parties under Sections 2.4.2 and 9 hereof shall not be so
relieved and shall continue in full force and effect.
SECTION 3. CLOSING CONDITIONS.The obligations of the Purchaser and the Placement
Agents on the Closing Date shall be subject to the accuracy, at and as of the
Closing Date, of the representations and warranties of the Offerors contained in
this Agreement, to the accuracy, at and as of the Closing Date, of the
statements of the Offerors made in any certificates pursuant to this Agreement,
to the performance by the Offerors of their respective obligations under this
Agreement, to compliance, at and as of the Closing Date, by the Offerors with
their respective agreements herein contained, and to the following further
conditions:
3.1. OPINIONS OF COUNSEL. On the Closing Date, the Placement Agents shall
have received the following favorable opinions, each dated as of the Closing
Date: (a) from McCutcheon, Doyle, Brown & Enerson, LLP, counsel for the Offerors
and addressed to the Purchaser and the Placement Agents as to the matters set
forth on EXHIBIT B-1 attached hereto and incorporated herein by this reference,
(b) from Bingham Dana LLP, special Connecticut counsel to the Offerors and
addressed to the Purchaser, the Placement Agents and the Offerors, as to the
matters set forth on EXHIBIT B-2 attached hereto and incorporated herein by this
reference and (c) from Lewis, Rice & Fingersh, L.C., special tax counsel to the
Offerors, and addressed to the Offerors, as to the matters set forth on EXHIBIT
B-3 attached hereto and incorporated herein by this reference (collectively, the
"Offerors' Counsel Opinions"). In rendering the Offerors' Counsel Opinions,
counsel to the Offerors may rely as to factual matters upon certificates or
other documents furnished by officers, directors and trustees of the Offerors
(copies of which shall be
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delivered to the Placement Agents and the Purchaser) and by government
officials, and upon such other documents as counsel to the Offerors may, in
their reasonable opinion, deem appropriate as a basis for the Offerors' Counsel
Opinions. Counsel to the Offerors may specify the jurisdictions in which they
are admitted to practice and that they are not admitted to practice in any other
jurisdiction and are not experts in the law of any other jurisdiction. If the
Offerors' counsel is not admitted to practice in the State of New York, the
opinion of Offerors' counsel may assume, for purposes of the opinion, that the
laws of the State of New York are identical, in all respects material to the
opinion, to the internal laws of the state in which such several counsel are
admitted to practice, as the same relates to the opinions to be rendered by such
general counsel as set forth on EXHIBIT B-1.
3.2. OFFICERS' CERTIFICATE. At the Closing Date, the Purchaser and the
Placement Agents shall have received certificates from the Chief Executive
Officer and the Chief Financial Officer of the Company, dated as of the Closing
Date, stating that (i) the representations and warranties of the Offerors set
forth in Section 5 hereof are true and correct as of the Closing Date and that
the Offerors have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to the Closing Date, (ii)
since the date of this Agreement the Offerors have not incurred any liability or
obligation, direct or contingent, or entered into any material transactions,
other than in the ordinary course of business, which is material to the
Offerors, and (iii) covering such other matters as the Placement Agents may
reasonably request.
3.3. TRUSTEES CERTIFICATE. At the Closing Date, the Purchaser and the
Placement Agents shall have received a certificate of one or more Administrators
of the Trust, dated as of the Closing Date, stating that the representations and
warranties of the Trust set forth in Section 5 hereof are true and correct as of
the Closing Date and that the Trust has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Closing Date.
3.4. PURCHASE PERMITTED BY APPLICABLE LAWS; LEGAL INVESTMENT. The purchase
of and payment for the Capital Securities (a) shall not be prohibited by any
applicable law or governmental regulation, (b) shall not subject the Purchaser
or the Placement Agents to any penalty or, in the reasonable judgment of the
Purchaser and the Placement Agents, other onerous condition under or pursuant to
any applicable law or governmental regulation, and (c) shall be permitted by the
laws and regulations of the jurisdictions to which the Purchaser is subject.
3.5. CONSENTS AND PERMITS. The Company and the Trust shall have received
all consents, permits and other authorizations, and made all such filings and
declarations, as may be required from any person or entity pursuant to any law,
statute, regulation or rule (federal, state, local and foreign), or pursuant to
any agreement, order or decree to which the Company or the Trust is a party or
to which it is subject, in connection with the transactions contemplated by this
Agreement.
3.6. SALE OF THE NOTES. The Purchaser shall have sold securities issued by
the Purchaser in such an amount such that the net proceeds of such sale shall be
available on the Closing Date and shall be in an amount sufficient to purchase
the Capital Securities.
3.7. INFORMATION. Prior to or on the Closing Date, the Offerors shall have
furnished to the Placement Agents such further information, certificates,
opinions and documents addressed to the Purchaser and the Placement Agents,
which the Placement Agents may reasonably request, including, without
limitation, a complete set of the Operative Documents or any other documents or
certificates required by this Section 3; and all proceedings taken by the
Offerors in connection with the issuance, offer and sale of the Capital
Securities as herein contemplated shall be satisfactory in form and substance to
the Placement Agents.
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If any condition specified in this Section 3 shall not have been
fulfilled when and as required in this Agreement, or if any of the opinions or
certificates mentioned above or elsewhere in this Agreement shall not be
satisfactory in form and substance to the Placement Agents, this Agreement may
be terminated by the Placement Agents by notice to the Offerors at any time at
or prior to the Closing Date. Notice of such termination shall be given to the
Offerors in writing or by telephone or facsimile confirmed in writing.
SECTION 4. CONDITIONS TO THE OFFERORS' OBLIGATIONS.
The obligations of the Offerors to sell the Capital Securities to the
Purchaser and consummate the transactions contemplated by this Agreement shall
be subject to the following conditions:
4.1. EXECUTED AGREEMENT. The Offerors shall have received from the
Placement Agents an executed copy of this Agreement.
4.2. FULFILLMENT OF OTHER OBLIGATIONS. The Placement Agents shall have
fulfilled all of their other obligations and duties required to be fulfilled
under this Agreement prior to or at the Closing.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE OFFERORS.
The Offerors jointly and severally represent and warrant to the
Placement Agents and the Purchaser as follows:
5.1. SECURITIES LAW MATTERS.
(a) Neither the Company nor the Trust, nor any of their
"Affiliates" (as defined in Rule 501(b) of Regulation D under the Securities Act
("Regulation D")), nor any person acting on its or their behalf has, directly or
indirectly, made offers or sales of any security, or solicited offers to buy any
security, under circumstances that would require the registration of any of the
Capital Securities, the Guarantee and the Debt Securities or any other
securities to be issued or which may be issued by the Purchaser (collectively,
the "Securities") under the Securities Act.
(b) Neither the Company nor the Trust, nor any of their
Affiliates, nor any person acting on its or their behalf (other than the
Placement Agents) has (i) offered for sale or solicited offers to purchase the
Securities, (ii) engaged or will engage, in any "directed selling efforts"
within the meaning of Regulation S under the Securities Act with respect to the
Securities, or (iii) engaged in any form of offering, solicitation or
advertising (within the meaning of Regulation D) in connection with any offer or
sale of any of the Securities or any other securities to be issued or which may
be issued by the Purchaser.
(c) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(d) Neither the Company nor the Trust is an "investment company"
or an entity "controlled" by an "investment company," in each case within the
meaning of Section 3(a) of the Investment Company Act of 1940, as amended (the
"Investment Company Act") without regard to Section 3(c) of the Investment
Company Act.
(e) Neither the Company nor the Trust has paid or agreed to pay
to any person or entity (other than the Placement Agents) any compensation for
soliciting another to purchase any of the Securities.
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5.2. ORGANIZATION, STANDING AND QUALIFICATION OF THE TRUST. The Trust has
been duly created and is validly existing in good standing as a statutory trust
under the Connecticut Statutory Trust Act (the "Statutory Trust Act") with the
power and authority to own property and to conduct the business it transacts and
proposes to transact and to enter into and perform its obligations under the
Operative Documents. The Trust is duly qualified to transact business as a
foreign entity and is in good standing in each jurisdiction in which such
qualification is necessary, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the Trust. The Trust is not
a party to or otherwise bound by any agreement other than the Operative
Documents. The Trust is and will, under current law, be classified for federal
income tax purposes as a grantor trust and not as an association taxable as a
corporation.
5.3. THE TRUST AGREEMENT. The Trust Agreement has been duly authorized by
the Company and, on the Closing Date, will have been duly executed and delivered
by the Company and the Administrators of the Trust, and, assuming due
authorization, execution and delivery by State Street Bank and Trust Company of
Connecticut, National Association, as institutional trustee, will be a valid and
binding obligation of the Company and such Administrators, enforceable against
them in accordance with its terms, subject to (a) applicable bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation and other laws
relating to or affecting creditors' rights generally, and (b) to general
principles of equity (regardless of whether considered and applied in a
proceeding in equity or at law) ("Bankruptcy and Equity"). Each of the
Administrators of the Trust is an employee of the Company or a financial
institution subsidiary of the Company and has been duly authorized by the
Company to execute and deliver the Trust Agreement.
5.4. THE GUARANTEE AGREEMENT AND THE INDENTURE. Each of the Guarantee and
the Indenture has been duly authorized by the Company and, on the Closing Date
will have been duly executed and delivered by the Company, and, assuming due
authorization, execution and delivery by the Guarantee Trustee, in the case of
the Guarantee, and by the Indenture Trustee, in the case of the Indenture, will
be a valid and binding obligation of the Company enforceable against it in
accordance with its terms, subject to Bankruptcy and Equity.
5.5. THE CAPITAL SECURITIES AND COMMON SECURITIES. The Capital Securities
and the Common Securities have been duly authorized by the Trust Agreement and,
when issued and delivered against payment therefor on the Closing Date to the
Purchaser, in the case of the Capital Securities, and to the Company, in the
case of the Common Securities, will be validly issued and represent undivided
beneficial interests in the assets of the Trust. None of the Capital Securities
or the Common Securities is subject to preemptive or other similar rights. On
the Closing Date, all of the issued and outstanding Common Securities will be
directly owned by the Company free and clear of any pledge, security interest,
claim, lien or other encumbrance.
5.6. THE DEBT SECURITIES. The Debt Securities have been duly authorized by
the Company and, at the Closing Date, will have been duly executed and delivered
to the Indenture Trustee for authentication in accordance with the Indenture,
and, when authenticated in the manner provided for in the Indenture and
delivered against payment therefor by the Trust, will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture
enforceable against the Company in accordance with their terms, subject to
Bankruptcy and Equity.
5.7. POWER AND AUTHORITY. This Agreement has been duly authorized, executed
and delivered by the Company and the Trust and constitutes the valid and binding
obligation of the Company and the Trust, enforceable against the Company and the
Trust in accordance with its terms, subject to Bankruptcy and Equity.
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5.8. NO DEFAULTS. The Trust is not in violation of the Trust Agreement or,
to its knowledge, any provision of the Statutory Trust Act. The execution,
delivery and performance by the Company or the Trust of the Operative Documents
to which it is a party, and the consummation of the transactions contemplated
herein or therein, will not conflict with or constitute a breach of, or a
default under, or result in the creation or imposition of any lien, charge or
other encumbrance upon any property or assets of the Trust, the Company or any
of the Company's subsidiaries pursuant to any contract, indenture, mortgage,
loan agreement, note lease or other instrument to which the Trust, the Company
or any of its subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of any of them is subject,
except for a conflict, breach, default, lien, charge or encumbrance which could
not reasonably be expected to have an adverse effect on the consummation of the
transactions contemplated herein or therein, nor will such action result in any
violation of the Trust Agreement or the Statutory Trust Act or require the
consent, approval, authorization or order of any court or governmental agency or
body.
5.9. ORGANIZATION, STANDING AND QUALIFICATION OF THE COMPANY The Company
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of California, with all requisite corporate power and
authority to own its properties and conduct the business it transacts and
proposes to transact, and is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction where the nature of its
activities requires such qualification except where the failure of the Company
to be so qualified would not, singly or in the aggregate, have a materially
adverse effect on the condition (financial or otherwise), earnings or business
of the Company and its subsidiaries taken as a whole, whether or not occurring
in the ordinary course of business (a "Material Adverse Effect").
5.10. SUBSIDIARIES OF THE COMPANY. Each of the Company's subsidiaries that
are material to its business (the "Significant Subsidiaries") listed in EXHIBIT
C attached hereto and incorporated herein by this reference has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized, with all
requisite corporate power and authority to own its properties and conduct the
business it transacts and proposes to transact, and is duly qualified to
transact business and is in good standing as a foreign corporation in each
jurisdiction where the nature of its activities requires such qualification
except where the failure of such Significant Subsidiaries to be so qualified
would not, singly or in the aggregate, have a Material Adverse Effect.
5.11. PERMITS. The Company and each of its Significant Subsidiaries have
all requisite power and authority, and all necessary material authorizations,
approvals, orders, licenses, certificates and permits of and from regulatory or
governmental officials, bodies and tribunals, to own or lease their respective
properties and to conduct their respective businesses as now being conducted,
except such authorizations, approvals, orders, licenses, certificates and
permits which, if not obtained and maintained, would not have a Material Adverse
Effect, and neither the Company nor any of the Significant Subsidiaries has
received any notice of proceedings relating to the revocation or modification of
any such authorizations, approvals, orders, licenses, certificates or permits
which, singly or in the aggregate, if the failure to be so licensed or approved
is the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect; and the Company and its Significant Subsidiaries are in
compliance with all applicable laws, rules, regulations and orders and consents,
the violation of which would have a Material Adverse Effect.
5.12. CONFLICTS, AUTHORIZATIONS AND APPROVALS. Except as previously
disclosed to the Placement Agents in writing, neither the Company nor any of the
Significant Subsidiaries is in violation of its respective charter or by-laws or
similar organizational documents or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which either the Company or any of the Significant Subsidiaries is
a party, or by which it or any of them may be bound or to which any
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of the property or assets of the Company or any of the Significant Subsidiaries
is subject, the effect of which violation or default in performance or
observance would have a Material Adverse Effect.
5.13. BANK HOLDING COMPANY ACT, FEDERAL RESERVE AND FEDERAL DEPOSIT
INSURANCE CORPORATION. The Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended, or as a financial
holding company under the Gramm-Leach-Bliley Act and the regulations of the
Board of Governors of the Federal Reserve System (the "Federal Reserve"), and
the deposit accounts of the Company's subsidiary banks are insured by the
Federal Deposit Insurance Corporation ("FDIC") to the fullest extent permitted
by law and the rules and regulations of the FDIC, and no proceedings for the
termination of such insurance are pending or threatened.
5.14. FINANCIAL STATEMENTS.
(a) Financial Statements. The consolidated balance sheets of the
Company and all of its subsidiaries as of December 31, 1999 and 1998 and related
consolidated income statements and statements of changes in shareholders' equity
for the three (3) years ended December 31, 1999 together with the notes thereto,
and the consolidated balance sheets of the Company and all of its subsidiaries
as of March 31, 2000 and June 30, 2000, and the related consolidated income
statements and statements of changes in shareholders' equity for the three (3)
months and six (6) months, respectively, then ended, copies of each of which
have been provided to the Placement Agents (together, the "Financial
Statements"), have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as may be disclosed
therein) and fairly present in all material respects the financial position and
the results of operations and changes in shareholders' equity of the Company and
all of its subsidiaries as of the dates and for the periods indicated (subject,
in the case of interim financial statements, to normal recurring year-end
adjustments, none of which shall be material). The books and records of the
Company and all of its subsidiaries have been, and are being, maintained in all
material respect in accordance with generally accepted accounting principles and
any other applicable legal and accounting requirements and reflect only actual
transactions.
(b) FRY-9C. The Company's report on FRY-9C dated June 30, 2000
(the "FRY-9C") provided to you is the most recent available such report and the
information therein fairly presents in all material respects the financial
position of the Company and all of its subsidiaries.
(c) No Material Adverse Change. Since the respective dates
of the Financial Statements and the FRY-9C, there has been no material adverse
change or development with respect to the financial condition or earnings of the
Company and all of its subsidiaries, taken as a whole.
5.15. REGULATORY ENFORCEMENT MATTERS. Except as previously disclosed to the
Placement Agents in writing, neither the Company nor any of its subsidiaries is
subject or is party to, or has received any notice or advice that any of them
may become subject or party to, any investigation with respect to, any
cease-and-desist order, agreement, consent agreement, memorandum of
understanding or other regulatory enforcement action, proceeding or order with
or by, or is a party to any commitment letter or similar undertaking to, or is
subject to any directive by, or has been since January 1, 1997, a recipient of
any supervisory letter from, or since January 1, 1997, has adopted any board
resolutions at the request of, any Regulatory Agency (as defined below) that
currently restricts in any material respect the conduct of its business or that
in any material manner relates to their capital adequacy, their credit policies,
its management or its business (each, a "Regulatory Agreement"), nor has the
Company or any of its subsidiaries been advised since January 1, 1997, by any
Regulatory Agency that it is considering issuing or requesting any such
Regulatory Agreement. There is no material unresolved violation, criticism or
exception by any Regulatory Agency with respect to any report or statement
relating to any examinations of the Company or any of its subsidiaries. As used
herein, the term "Regulatory Agency" means any
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federal or state agency charged with the supervision or regulation of banks or
bank holding companies, or engaged in the insurance of bank deposits, or any
court, administrative agency or commission or other governmental agency,
authority or instrumentality having supervisory or regulatory authority with
respect to the Company or any of its Significant Subsidiaries.
5.16. NO MATERIAL CHANGE. Except as previously disclosed to the Placement
Agents in writing, since December 31, 1999, there has been no material adverse
change or development with respect to the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Offerors
on a consolidated basis.
5.17. NO UNDISCLOSED LIABILITIES. Neither the Company nor any of its
subsidiaries has any material liability, whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become due,
including any liability for taxes (and there is no past or present fact,
situation, circumstance, condition or other basis for any present or future
action, suit or proceeding hearing, charge, complaint, claim or demand against
the Company or its subsidiaries giving rise to any such liability), except (i)
for liabilities set forth in the Financial Statements, (ii) normal fluctuation
in the amount of the liabilities referred to in clause (i) above occurring in
the ordinary course of business of the Company and all of its subsidiaries since
the date of the most recent balance sheet included in the Financial Statements,
and (iii) as may be specifically disclosed in writing to the Placement Agents.
5.18. LITIGATION. Except as previously disclosed to the Placement Agents in
writing, no charge, investigation, action, suit or proceeding is pending or, to
the knowledge of the Offerors, threatened, against or affecting the Offerors or
any of their respective properties before or by any courts 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 on the consummation of this
Agreement or the transactions contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations of
the Offerors on a consolidated basis.
5.19. DEFERRAL OF INTEREST PAYMENTS ON DEBT SECURITIES. The Company has no
present intention to exercise its option to defer payments of interest on the
Debt Securities as provided in the Indenture. The Company believes that the
likelihood that it would exercise its right to defer payments of interest on the
Debt Securities as provided in the Indenture at any time during which the Debt
Securities are outstanding is remote because of the restrictions that would be
imposed on the Company's ability to declare or pay dividends or distributions
on, or to redeem, purchase, acquire or make a liquidation payment with respect
to, any of the Company's capital stock and on the Company's ability to make any
payments of principal, interest or premium on, or repay, repurchase or redeem,
any of its debt securities that rank PARI PASSU in all respects with or junior
in interest to the Debt Securities.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE PLACEMENT AGENTS.
Each Placement Agent represents and warrants to the Offerors as to
itself (but not as to the other Placement Agent) as follows:
6.1. ORGANIZATION, STANDING AND QUALIFICATION.
(a) First Tennessee Capital Markets is a division of First
Tennessee Bank, N.A., a national banking association duly organized, validly
existing and in good standing under the laws of the United States, with full
power and authority to own, lease and operate its properties and conduct its
business as currently being conducted. First Tennessee Capital Markets is duly
qualified to transact business as a foreign corporation and is in good standing
in each other jurisdiction in which it owns or
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<PAGE>
leases property or conducts its business so as to require such qualification and
in which the failure to so qualify would, individually or in the aggregate, have
a material adverse effect on the condition (financial or otherwise), earnings,
business, prospects or results of operations of First Tennessee Capital Markets.
(b) Keefe, Bruyette & Woods, Inc. is a corporation, validly
existing and in good standing under the laws of the State of New York, with full
power and authority to own, lease and operate its properties and conduct its
business as currently being conducted. Keefe, Bruyette & Woods, Inc. is duly
qualified to transact business as a foreign corporation 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 would, individually or in the aggregate, have a material adverse effect
on the condition (financial or otherwise), earnings, business, prospects or
results of operations of Keefe, Bruyette & Woods, Inc.
6.2. POWER AND AUTHORITY. The Placement Agent has all requisite power and
authority to enter into this Agreement, and this Agreement has been duly and
validly authorized, executed and delivered by the Placement Agent and
constitutes the legal, valid and binding agreement of the Placement Agent,
enforceable against the Placement Agent in accordance with its terms, except as
the enforcement 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 any indemnification or contribution provisions thereof may be
limited under applicable securities laws.
6.3. GENERAL SOLICITATION. In the case of the offer and sale of the Capital
Securities, no form of general solicitation or general advertising was used by
the Placement Agent or its representatives including, but not limited to,
advertisements, articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over television or radio or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Neither the Placement Agent nor its
representatives have engaged or will engage in any "directed selling efforts"
within the meaning of Regulation S under the Securities Act with respect to the
Capital Securities.
6.4. PURCHASER. The Placement Agent has made such reasonable inquiry as is
necessary to a determination that the Purchaser is acquiring the Capital
Securities for its own account and that the Purchaser does not intend to
distribute the Capital Securities in contravention of the Securities Act or any
other applicable securities laws and that the Purchaser is not a "U.S. person"
as that term is defined under Rule 902 of the Securities Act.
6.5. QUALIFIED INSTITUTIONAL BUYERS AND QUALIFIED PURCHASERS. The Placement
Agent has not offered or sold and will not arrange for the offer or sale of the
Capital Securities except (i) in an offshore transaction complying with Rule 903
of Regulation S under the Securities Act or (ii) to those the Placement Agent
reasonably believes are "accredited investors" (as defined in Rule 501 of
Regulation D under the Securities Act) or (iii) in any other manner that does
not require registration of the Capital Securities under the Securities Act and
that in connection with each such sale, the Placement Agent has taken or will
take reasonable steps to ensure that the purchaser of any Capital Securities is
aware that such sale is being made in reliance on Rule 144A.
SECTION 7. COVENANTS OF THE OFFERORS.The Offerors covenant and agree with the
Placement Agents and the Purchasers as follows:
7.1. COMPLIANCE WITH REPRESENTATIONS AND WARRANTIES. During the period from
the date of this Agreement to the Closing Date, the Offerors shall use their
best efforts and take all action necessary or appropriate to cause their
representations and warranties contained in Section 5 hereof to be true as of
Closing Date, after giving effect to the transactions contemplated by this
Agreement, as if made on and as of the Closing Date.
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7.2. SALE OF OTHER SECURITIES. The Offerors and their affiliates shall not
sell, offer for sale or solicit offers to buy or otherwise negotiate in respect
of any security (as defined in the Securities Act) that would or could be
integrated with the sale of the Capital Securities in a manner that would
require the registration under the Securities Act of the Capital Securities, the
Debt Securities or the Guarantee.
7.3. USE OF PROCEEDS. The Trust shall use the proceeds from the sale of the
Capital Securities to purchase the Debt Securities from the Company.
7.4. INVESTMENT COMPANY. The Offerors shall not engage, or permit any
subsidiary to engage, in any activity which would cause it or any subsidiary to
be an "investment company" under the provisions of the Investment Company Act.
7.5. REIMBURSEMENT OF EXPENSES. If the sale of the Capital Securities
provided for herein is not consummated because any condition set forth in
Section 3 hereof is not satisfied, or because of any refusal, inability or
failure on the part of the Company or the Trust to perform any agreement herein
or comply with any provision hereof other than by reason of a breach by the
Placement Agents, the Company shall reimburse the Placement Agents upon demand
for all of their pro rata share of out-of-pocket expenses (including reasonable
fees and disbursements of counsel) in an amount not to exceed $50,000.00 that
shall have been incurred by them in connection with the proposed purchase and
sale of the Capital Securities. Notwithstanding the foregoing, the Company shall
have no obligation to reimburse the Placement Agents for their out-of-pocket
expenses if the sale of the Capital Securities fails to occur because the
condition set forth in Section 3.6 is not satisfied or because either of the
Placement Agents fails to fulfill a condition set forth in Section 4.
7.6. DIRECTED SELLING EFFORTS. The Offerors will not, nor will either of
them permit any of their Affiliates to, nor will either of them permit any
person acting on its or their behalf to (other than the Placement Agents),
engage in any "directed selling efforts" within the meaning of Regulation S
under the Securities Act with respect to the Securities.
7.7. REGISTRATION OF THE SECURITIES UNDER THE SECURITIES ACT. The Offerors
will not, nor will either of them permit any of their Affiliates, nor will
either of them permit any person acting on its or their behalf (other than the
Placement Agents), to, directly or indirectly, make offers or sales of any
security, or solicit offers to buy any security, under circumstances that would
require the registration of any of the Securities under the Securities Act.
7.8. GENERAL SOLICITATION OR GENERAL ADVERTISING. The Offerors will not,
nor will either of them permit any of their Affiliates, nor will either of them
permit any person acting on its or their behalf (other than the Placement
Agent), to, engage in any form of solicitation or advertising (within the
meaning of Regulation D) in connection with any offer or sale of any of the
Securities.
7.9. COMPLIANCE WITH RULE 144A(D)(4) UNDER THE SECURITIES ACT. So long as
any of the Securities are outstanding and are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, the Offerors will, during
any period in which they are not subject to and in compliance with Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or the Offerors are not exempt from such reporting requirements pursuant to and
in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each holder
of such restricted securities and to each prospective purchaser (as designated
by such holder) of such restricted securities, upon the request of such holder
or prospective purchaser, any information required to be provided by Rule
144A(d)(4) under the Securities Act. This covenant is intended to be for the
benefit of the holders, and the prospective purchasers designated by such
holders, from time to time of such restricted securities. The information
provided by the Offerors pursuant to this Section 7.9 hereof will not, at the
date thereof, contain any
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untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
7.10. QUARTERLY REPORTS. The Offerors within fifty (50) days of the end of
each calendar year quarter and within one hundred (100) days of the end of each
calendar year shall submit to the Placement Agents the following financial data:
(a) ratio of "Tier 1 Capital" to risk weighted assets, and the
ratio of double leverage;
(b) ratio of non-performing assets to loans and other real
estate owned, ratio of reserves to non-performing loans, and ratio of net
charge-offs to loans;
(c) return on assets, net interest margin, and efficiency ratio;
and
(d) ratio of loans to assets, ratio of loans to deposits, total
assets, and net income.
SECTION 8. COVENANTS OF THE PLACEMENT AGENTS.
The Placement Agents covenant and agree with the Offerors that, during
the period from the date of this Agreement to the Closing Date, the Placement
Agents shall use their best efforts and take all action necessary or appropriate
to cause their representations and warranties contained in Section 6 hereof to
be true as of Closing Date, after giving effect to the transactions contemplated
by this Agreement, as if made on and as of the Closing Date.
SECTION 9. INDEMNIFICATION.
9.1. INDEMNIFICATION OBLIGATION. The Offerors shall jointly and severally
indemnify and hold harmless the Placement Agents and the Purchaser and each
person that controls either of the Placement Agents or the Purchaser within the
meaning of Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and agents, employees,
officers and directors or any such controlling person of either of the Placement
Agents or the Purchaser (each such indemnified party, an "Indemnified Party")
from and against any and all losses, claims, damages, judgments, liabilities or
expenses, joint or several, to which such Indemnified Party may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Offerors), insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) arise out of, or are based upon, or relate to, in
whole or in part, (a) any untrue statement or alleged untrue statement of a
material fact contained in any information (whether written or oral) or
documents furnished or made available to the Placement Agents or the Purchaser
by the Offerors, or (b) any omission or alleged omission to state in any
information (whether written or oral) or documents furnished or made available
to the Placement Agents or the Purchaser by the Offerors a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each Indemnified Party for any legal and other
expenses as such expenses are reasonably incurred by such Indemnified Party in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action described in this Section
9.1. In addition to their other obligations under this Section 9, the Offerors
hereby agree that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of, or based
upon, or related to the matters described above in this Section 9.1, they shall
reimburse each Indemnified Party on a quarterly basis for all reasonable legal
or other expenses incurred in connection with investigating or defending any
such claim, action, investigation, inquiry or other proceeding, notwithstanding
the absence of a judicial determination as to the propriety and enforceability
of the possibility that such payments might later be held to have been improper
by a court of competent
12
<PAGE>
jurisdiction. To the extent that any such interim reimbursement payment is so
held to have been improper, each Indemnified Party shall promptly return such
amounts to the Offerors together with interest, determined on the basis of the
prime rate (or other commercial lending rate for borrowers of the highest credit
standing) announced from time to time by First Tennessee Bank, N.A. (the "Prime
Rate"). Any such interim reimbursement payments which are not made to an
Indemnified Party within 30 days of a request for reimbursement, shall bear
interest at the Prime Rate from the date of such request.
9.2. CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after receipt by an
Indemnified Party under this Section 9 of notice of the commencement of any
action, such Indemnified Party shall, if a claim in respect thereof is to be
made against the Offerors under this Section 9, notify the Offerors in writing
of the commencement thereof; but the omission to so notify the Offerors shall
not relieve them from any liability which the Offerors may have to any
Indemnified Party. In case any such action is brought against any Indemnified
Party and such Indemnified Party seeks or intends to seek indemnity from the
Offerors, the Offerors shall be entitled to participate in, and, to the extent
that they may wish, to assume the defense thereof with counsel reasonably
satisfactory to such Indemnified Party; PROVIDED, HOWEVER, if the defendants in
any such action include both the Indemnified Party and the Offerors and the
Indemnified Party shall have reasonably concluded that there may be a conflict
between the positions of the Offerors and the Indemnified Party in conducting
the defense of any such action or that there may be legal defenses available to
it and/or other Indemnified Parties which are different from or additional to
those available to the Offerors, the Indemnified Party shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such Indemnified Party.
Upon receipt of notice from the Offerors to such Indemnified Party of their
election to so assume the defense of such action and approval by the Indemnified
Party of counsel, the Offerors shall not be liable to such Indemnified Party
under this Section 9 for any legal or other expenses subsequently incurred by
such Indemnified Party in connection with the defense thereof unless (i) the
Indemnified Party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with the proviso in the preceding
sentence (it being understood, however, that the Offerors shall not be liable
for the expenses of more than one separate counsel representing the Indemnified
Parties who are parties to such action), or (ii) the Offerors shall not have
employed counsel reasonably satisfactory to the Indemnified Party to represent
the Indemnified Party within a reasonable time after notice of commencement of
the action, in each of which cases the fees and expenses of counsel shall be at
the expense of the Offerors.
9.3. CONTRIBUTION. If the indemnification provided for in this Section 9 is
required by its terms, but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an Indemnified Party under Section 9.1
in respect of any losses, claims, damages, liabilities or expenses referred to
herein or therein, then the Offerors shall contribute to the amount paid or
payable by such Indemnified Party as a result of any losses, claims, damages,
liabilities or expenses referred to herein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors and the
Placement Agents from the offering of such Capital Securities, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Offerors and
the Placement Agents in connection with the statements or omissions or
inaccuracies in the representations and warranties herein or other breaches
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The respective relative benefits
received by the Offerors and the Placement Agents shall be deemed to be in the
same proportion, in the case of the Offerors, as the total price paid to the
Offerors for the Capital Securities sold by the Offerors to the Purchaser (net
of the compensation paid to the Placement Agents hereunder, but before deducting
expenses), and in the case of the Placement Agents, as the compensation received
by them, bears to the total of such amounts paid to the Offerors and received by
the Placement Agents as compensation. The relative fault of the Offerors and the
Placement Agents shall be determined by reference to, among other things,
whether the untrue statement or alleged
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<PAGE>
untrue statement of a material fact or the omission or alleged omission of a
material fact or the inaccurate or the alleged inaccurate representation and/or
warranty relates to information supplied by the Offerors or the Placement Agents
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses claims, damages, liabilities and
expenses referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in Section 9.2 with
respect to notice of commencement of any action shall apply if a claim for
contribution is made under this Section 9.3; PROVIDED, HOWEVER, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 9.2 for purposes of indemnification. The Offerors
and the Placement Agents agree that it would not be just and equitable if
contribution pursuant to this Section 9.3 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in this Section 9.3. The amount paid or payable by an
Indemnified Party, as a result of the losses, claims, damages, liabilities or
expenses referred to in this Section 9.3 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. In no event shall the liability of the Placement Agents
hereunder be greater in amount than the dollar amount of the compensation (net
of payment of all expenses) received by the Placement Agents upon the sale of
the Capital Securities giving rise to such obligation. No person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
found guilty of such fraudulent misrepresentation.
9.4. ADDITIONAL REMEDIES. The indemnity and contribution agreements
contained in this Section 9 are in addition to any liability that the Offerors
may otherwise have to any Indemnified Party.
9.5. ADDITIONAL INDEMNIFICATION. The Company shall indemnify and hold
harmless the Trust against all loss, liability, claim, damage and expense
whatsoever, as due from the Trust under Section 9.1 hereof.
SECTION 10. RIGHTS AND RESPONSIBILITIES OF PLACEMENT AGENTS.
10.1. RELIANCE. In performing their duties under this Agreement, the
Placement Agents shall be entitled to rely upon any notice, signature or writing
which they shall in good faith believe to be genuine and to be signed or
presented by a proper party or parties. The Placement Agents may rely upon any
opinions or certificates or other documents delivered by the Offerors or their
counsel or designees to either the Placement Agents or the Purchaser.
10.2. RIGHTS OF PLACEMENT AGENTS. In connection with the performance of
their duties under this Agreement, the Placement Agents shall not be liable for
any error of judgment or any action taken or omitted to be taken unless the
Placement Agents were grossly negligent or engaged in willful misconduct in
connection with such performance or non-performance. No provision of this
Agreement shall require the Placement Agents to expend or risk their own funds
or otherwise incur any financial liability on behalf of the Purchaser in
connection with the performance of any of their duties hereunder. The Placement
Agents shall be under no obligation to exercise any of the rights or powers
vested in them by this Agreement.
SECTION 11. MISCELLANEOUS.
11.1. NOTICES. Prior to the Closing, and thereafter with respect to matters
pertaining to this Agreement only, all notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier or overnight air courier guaranteeing next
day delivery:
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<PAGE>
if to the Placement Agents, to:
First Tennessee Capital Markets
845 Crossover Lane, Suite 150
Memphis, Tennessee 38117
Telecopier: (901) 435-4706
Telephone: (800) 456-5460
Attention: James D. Wingett
and
Keefe, Bruyette & Woods, Inc.
Two World Trade Center
New York, New York 10048
Telecopier: (212) 323-8404
Telephone: (800) 966-1559
Attention: Mitch Kleinman, Esq.
with a copy to:
Lewis, Rice & Fingersh, L.C.
500 North Broadway, Suite 2000
St. Louis, Missouri 63102
Telecopier: (314) 241-6056
Telephone: (314) 444-7600
Attn: Thomas C. Erb, Esq.
and
Brown & Wood LLP
One World Trade Center
New York, New York 10048
Telecopier: (212) 839-5599
Telephone: (212) 839-5300
Attention: Renwick Martin, Esq.
if to the Offerors, to:
MCB Financial Corporation
1248 Fifth Avenue
San Rafael, California 94901
Telecopier: (415) 721-4808
Telephone: (415) 459-2265
Attn: Pat Phelan
15
<PAGE>
with a copy to:
McCutcheon, Doyle, Brown & Enerson, LLP
3 Embarcadero Center
San Francisco, California 94111
Telecopier: (415) 393-2286
Telephone: (415) 393-2180
Attn: Keith Ungles, Esq.
All such notices and communications shall be deemed to have been duly
given (i) at the time delivered by hand, if personally delivered, (ii) five
business days after being deposited in the mail, postage prepaid, if mailed,
(iii) when answered back, if telexed, (iv) the next business day after being
telecopied, or (v) the next business day after timely delivery to a courier, if
sent by overnight air courier guaranteeing next day delivery. From and after the
Closing, the foregoing notice provisions shall be superseded by any notice
provisions of the Operative Documents under which notice is given. The Placement
Agents, the Company, and their respective counsel, may change their respective
notice addresses from time to time by written notice to all of the foregoing
persons.
11.2. PARTIES IN INTEREST, SUCCESSORS AND ASSIGNS. This Agreement is made
solely for the benefit of the Placement Agents, the Purchaser and the Offerors
and any person controlling the Placement Agents, the Purchaser or the Offerors
and their respective successors and assigns; and no other person shall acquire
or have any right under or by virtue of this Agreement. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties.
11.3. COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
11.4. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
11.5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAWS PERTAINING TO CONFLICTS OF
LAWS) OF THE STATE OF NEW YORK.
11.6. ENTIRE AGREEMENT. This Agreement, together with the other Operative
Documents, is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This
Agreement, together with the other Operative Documents, supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
11.7. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected, it
being intended that all of the Placement Agents' and the Purchaser's rights and
privileges shall be enforceable to the fullest extent permitted by law.
11.8. SURVIVAL. The Placement Agents and the Offerors, respectively, agree
that the representations, warranties and agreements made by each of them in this
Agreement and in any certificate
16
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or other instrument delivered pursuant hereto shall remain in full force and
effect and shall survive the delivery of, and payment for, the Capital
Securities.
[SIGNATURES APPEAR ON THE NEXT PAGE]
17
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If this Agreement is satisfactory to you, please so indicate by signing
the acceptance of this Agreement and deliver such counterpart to the Offerors
whereupon this Agreement will become binding between us in accordance with its
terms.
Very truly yours,
MCB FINANCIAL CORPORATION
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
MCB STATUTORY TRUST I
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title: Administrator
FIRST TENNESSEE CAPITAL MARKETS,
A DIVISION OF FIRST TENNESSEE BANK, N.A.,
AS A PLACEMENT AGENT
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
KEEFE, BRUYETTE & WOODS, INC.
A NEW YORK CORPORATION, AS A PLACEMENT AGENT
By:
----------------------------------------
Name:
--------------------------------------
Title
--------------------------------------
18
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EXHIBIT A
FORM OF SUBSCRIPTION AGREEMENT
See attached
A-1
<PAGE>
EXHIBIT B-1
OPINION MATTERS OF COUNSEL TO OFFERORS
1. The Company has been duly incorporated and is validly existing and in
good standing under the laws of the State of California, and is duly registered
as a bank holding company under the BHC Act. Each of the Subsidiaries is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization. Each of the Company and the Subsidiaries has full
corporate power and authority to own or lease its properties and to conduct its
business as such business is currently conducted in all material respects. To
the best of such counsel's knowledge, all outstanding shares of capital stock of
the Subsidiaries have been duly authorized and validly issued and are fully paid
and nonassessable except to the extent such shares may be deemed assessable
under 12 U.S.C. Section 1831o.
2. The issuance, sale and delivery of the Capital Securities and Debt
Securities in accordance with the terms and conditions of the Agreement, the
Subscription Agreement and the Operative Documents have been duly authorized by
all necessary actions of the Offerors. All of the Capital Securities have been
duly and validly authorized and, when delivered in accordance with the Agreement
and the Subscription Agreement, will be duly and validly issued, fully paid and
nonassessable, and will conform to the description thereof in the Trust
Agreement. There are no preemptive or other rights to subscribe for or to
purchase any shares of capital stock or equity securities of the Offerors or the
Subsidiaries pursuant to the corporate articles of incorporation or charter,
by-laws or other governing documents (including without limitation, the Trust
Agreement) of the Offerors or the Subsidiaries, or, to the best of such
counsel's knowledge, any agreement or other instrument to which either Offeror
or any of the Subsidiaries is a party or by which either Offeror or any of the
Subsidiaries may be bound.
3. The Offerors have all requisite corporate and trust power to enter into
and perform their obligations under the Agreement and the Subscription
Agreement, and the Agreement and the Subscription Agreement have been duly and
validly authorized, executed and delivered by the Offerors and constitute the
legal, valid and binding obligations of the Offerors enforceable in accordance
with their terms, except as the enforcement 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 thereof may be limited under applicable laws and certain remedies may
not be available in the case of a non-material breach.
4. Each of the Indenture, the Trust Agreement and the Guarantee Agreement
has been duly authorized, executed and delivered by the Company, and is a valid
and legally binding obligation of the Company enforceable 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.
5. The Debt Securities have been duly authorized, executed and delivered by
the Company, are entitled to the benefits of the Indenture 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.
6. To the best of such counsel's knowledge, neither the Offerors nor
Subsidiaries is in breach or violation of, or default under, with or without
notice or lapse of time or both, its corporate charter, by-laws or other
governing documents (including without limitation, the Trust Agreement). The
execution, delivery and performance of the Agreement and the Subscription
Agreement and the consummation of the transactions contemplated by the
Agreement, the Subscription Agreement and the
B-1-1
<PAGE>
Trust Agreement 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 Capital
Securities pursuant to, or constitute a material breach or violation of, or
constitute a material default under, with or without notice or lapse of time or
both, any of the terms, provisions or conditions of the articles of
incorporation or charter, by-laws or other governing documents (including
without limitation, the Trust Agreement) of the Offerors or the Subsidiaries, or
to the best of such counsel's knowledge, any material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease, franchise,
license 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 any order, decree, judgment, franchise, license,
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.
7. Except for filings, registrations or qualifications that may be required
by securities laws, 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 under [state of domicile
and incorporation of Company] in connection with the transactions contemplated
by the Agreement in connection with the offer and sale of the Capital Securities
as contemplated by the Agreement.
8. To the best of such counsel's knowledge (i) no action, suit or
proceeding at law or in equity is pending or threatened to which the Offerors or
the Subsidiaries is or may be 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 the
Agreement or the issuance and sale of the Capital Securities as contemplated
therein or the condition (financial or otherwise), earnings, affairs, business,
or results of operations of the Offerors and the Subsidiaries on a consolidated
basis.
9. It is not necessary in connection with the offering, sale and delivery
of the Capital Securities, the Debt Securities and the Guarantee Agreement (or
the Guarantee) to register the same under the Securities Act under the
circumstances contemplated in the Agreement and the Subscription Agreement.
10. Neither the Company nor the Trust is an "investment company" or an
entity "controlled" by an "investment company", in each case within the meaning
of the Investment Company Act of 1940, as amended.
B-1-2
<PAGE>
EXHIBIT B-2
CONNECTICUT COUNSEL OPINION MATTERS
1. The Trust has been duly formed and is validly existing as a statutory
trust under the Connecticut Statutory Trust Act and, under the Trust Agreement
and the Connecticut Statutory Trust Act, has the requisite trust power and
authority to execute and deliver and to perform its obligations under, the
Operative Documents.
2. Assuming that the Trust will not be taxable as a corporation for federal
income tax purposes, but, rather will be classified for such purposes as a
grantor trust, the Trust will not be subject to any tax, fee or other government
charge under the laws of the State of Connecticut or any political subdivision
thereof.
3. The Trust Agreement is a valid and binding agreement of the Company, the
Institutional Trustee and the Administrators, and is enforceable against each of
the parties, in accordance with its terms.
4. Under the Trust Agreement and the Connecticut Statutory Trust Act, the
execution and delivery of the Placement Agreement by an Administrator of 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.
5. The Trust Securities have been duly authorized by the Trust, and when
issued and sold in accordance with the Trust Agreement, the Trust Securities
will be, subject to the qualifications set forth in paragraph (5) below, fully
paid and nonassessable beneficial interests in the assets of the Trust and
entitled to the benefits of the Trust Agreement.
6. Holders of Capital Securities, as beneficial owners of the Trust, will
be entitled to the same limitation on personal liability extended to
shareholders of private, for-profit corporations organized under the laws of the
State of Connecticut. Such opinion may note that the holders of Capital
Securities may be obligated to make payments as set forth in the Trust
Agreement.
7. The issuance and sale by the Trust of the Trust 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, (b) any applicable Connecticut law, rule or regulation
governing the Trust or (c) to such counsel's knowledge, any judgment or order of
any court or other tribunal applicable or binding on the Trust.
Such opinion may state that it is limited to the laws of the State of
Connecticut and that the opinion expressed in paragraph 3 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), (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution, and
(iv) such other exceptions, qualifications and assumptions as deemed necessary
by Bingham Dana in their sole discretion.
B-2-1
<PAGE>
EXHIBIT B-3
SPECIAL TAX COUNSEL OPINION MATTERS
1. The Trust will be characterized for United States federal income tax
purposes as a grantor trust and not as an association taxable as a corporation.
2. The Debt Securities will constitute indebtedness of the Company for
United States federal income tax purposes.
B-3-1
<PAGE>
EXHIBIT C
COMPANY SUBSIDIARIES
Metro Commerce Bank
