Exhibit 4.60
FIRST BANKS, INC.
50,000 Capital Securities
Floating Rate Capital Securities
(Liquidation Amount $1,000.00 per Capital Security)
PLACEMENT AGREEMENT
---------------
December 6, 2006
FTN Financial Capital Markets
845 Crossover Lane, Suite 150
Memphis, Tennessee
38117
Keefe, Bruyette & Woods, Inc.
787 7th Avenue
4th Floor
New York, New York
10019
Ladies and Gentlemen:
First Banks, Inc., a
Missouri corporation
(the "Company"), and its
financing subsidiary, First Bank Statutory Trust VII, a Delaware
statutory trust
(the "Trust," and hereinafter together with the Company, the
"Offerors"), hereby
confirm their agreement (this "Agreement") with you as placement agents (the
"Placement Agents"), as follows:
Section 1. Issuance
and Sale of Securities.
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1.1.
Introduction. The
Offerors propose to issue and sell at the
------------
Closing (as defined in Section 2.3.1 hereof) 50,000 of the Trust's
Floating Rate
Capital Securities,
with a liquidation amount of $1,000.00 per capital security
(the "Capital
Securities"), to First
Tennessee Bank
National Association,
a
national banking
association
organized under the
laws of the United States of
America and Preferred
Term Securities XXIV, Ltd., a company with limited
liability established
under the laws of the
Cayman Islands (the
"Purchasers")
pursuant to the terms of Subscription Agreements entered into, or to be
entered
into on or prior to the Closing Date (as defined in Section 2.3.1 hereof),
between the Offerors and the Purchasers (the "Subscription Agreements"), the
forms of which are attached hereto as Exhibit A-1 and Exhibit A-2 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 Wilmington Trust Company ("WTC"), 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
entire proceeds
<PAGE>
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 $51,547,000.00 in
principal amount of the Floating Rate Junior Subordinated Deferrable Interest
Debentures (the
"Debentures") 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 WTC, as
Delaware trustee
(the "Delaware
Trustee"), WTC, as
institutional trustee
(the "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 Debentures shall be issued pursuant to
an Indenture
(the "Indenture"),
to be dated as of the
Closing Date, between the Company and
WTC, as indenture trustee (the "Indenture Trustee"). The documents
identified in
this Section
1.2 and in Section 1.1
are referred to herein
as the "Operative
Documents."
1.3.
Rights of Purchasers.
The Capital Securities
shall be offered
--------------------
and sold by the Trust directly to the Purchasers without
registration of any
of
the Capital Securities, the Debentures 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 Offerors
agree that
this Agreement
shall be incorporated by reference into the Subscription
Agreements and the
Purchasers shall be
entitled to each of the benefits of the
Placement Agents and
the Purchasers under
this Agreement and shall be entitled
to enforce obligations
of the Offerors under
this Agreement as fully as if the
Purchasers were parties to this 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
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the same is no longer required under the applicable requirements of the
Securities Act, the Capital Securities and Debentures
certificates
shall each
contain a legend as required pursuant to any of the Operative
Documents.
Section 2. Purchase
of Capital Securities.
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2.1.
Exclusive Rights;
Purchase Price. From
the date hereof
until
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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
Purchasers at a purchase price of $1,000.00 per Capital
Security.
2.2.
Subscription
Agreements. The
Offerors hereby agree to evidence
------------------------
their acceptance of
the subscription by
countersigning
a copy of each of
the
Subscription Agreements and returning the same to the Placement
Agents.
2.3.
Closing and Delivery of Payment.
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2.3.1. Closing;
Closing Date. The sale and purchase of the
-----------------------
Capital Securities
by the Offerors to the Purchasers shall take place at a
closing (the "Closing") at the offices of Lewis, Rice &
Fingersh, L.C., at 10:00
a.m. (St. Louis time) on December 14, 2006, 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
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December 29,
2006 unless consented to by the Purchasers. Payment by the
Purchasers shall
be payable in the manner set forth in the Subscription
Agreements and shall be made prior to or on the Closing Date.
2.3.2. Delivery. The
certificates for
the Capital Securities
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shall be in definitive
form, each registered in the name of the applicable
Purchaser, or
Purchaser designee,
and in the aggregate
amount of the
Capital
Securities purchased by the Purchaser.
<PAGE>
2.3.3. Transfer Agent.
Not less than two full business days
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prior to the Closing Date, a global Capital Securities certificate
in definitive
form shall be made
available by or on behalf of the Offerors to the Placement
Agents and
the Institutional Trustee for inspection and delivery to the
Depository Trust Company ("DTC") or its custodian.
2.4. Costs
and Expenses. Whether
or not this Agreement is terminated
------------------
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
counsel and
accountants for the
Offerors; all
reasonable expenses
incurred by the Offerors incident to the preparation,
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. (St.
Louis time) on December 29, 2006, 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
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the obligations
of the parties
under Sections 2.4, 7.5 and 9 shall not
be so
relieved and shall continue in full force and effect.
Section 3. Closing
Conditions. The
obligations of
the Purchasers
------------------
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 Stinson Morrison Hecker LLP, counsel for the
Offerors and
addressed to the Purchasers, the Placement Agents and WTC in
substantially the
form set forth on Exhibit B-1 attached hereto and incorporated herein by this
-----------
reference, (b) from Richards, Layton & Finger, P.A., special
Delaware counsel to
the Offerors and
addressed to the
Purchasers,
the Placement Agents and the
Offerors, in substantially the form 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 Placement
Agents and
the Offerors,
addressing the items set forth on Exhibit B-3 attached hereto
and
-----------
incorporated herein by
this reference,
subject to the receipt by Lewis, Rice &
Fingersh, L.C. of a representation letter from the Company in the
form set forth
in Exhibit B-3 completed in a manner reasonably satisfactory to Lewis,
Rice &
-----------
Fingersh, L.C.
(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 delivered to the
Placement Agents and the Purchasers) 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 substantively
identical, in all
respects material to
the opinion, to
the
<PAGE>
internal laws of the
state in which such counsel is admitted to practice. Such
Offerors' Counsel
Opinions shall not state that they are to be governed or
qualified by, or that
they are otherwise
subject to, any treatise, written
policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business
Law (1991).
3.2.
Officer's Certificate.
At the Closing Date,
the Purchasers and
---------------------
the Placement Agents shall have received certificates from an
authorized 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.
Administrator's Certificate. At the Closing Date, the
Purchasers
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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 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
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purchase of and
payment for the Capital Securities as described in this
Agreement and
pursuant to the Subscription Agreements shall (a) not be
prohibited by any applicable law or governmental regulation, (b)
not subject the
Purchasers or the Placement Agents to any penalty or, in the
reasonable judgment
of the Purchasers and the Placement Agents, other onerous conditions under or
pursuant to any applicable law or governmental regulation,
and (c) be
permitted
by the laws and regulations of the jurisdictions to which the
Purchasers and the
Placement Agents are 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
either is subject,
in connection with the transactions
contemplated by this Agreement.
3.6. Sale
of Purchaser Securities. Preferred Term Securities XXIV,
----------------------------
Ltd. shall
have sold securities issued by it in an amount
such that the net
proceeds of such sale shall be (i) available on the Closing Date and
(ii) in an
amount sufficient to purchase that portion of the Capital
Securities
Preferred
Term Securities
XXIV, Ltd. agrees to purchase pursuant to the Subscription
Agreement to be entered into by it and all other capital or similar securities
contemplated to be
purchased by Preferred Term Securities XXIV, Ltd. in
agreements similar
to this Agreement and the Subscription Agreement to be
entered into by it.
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
Purchasers 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 reasonably satisfactory in form and
substance to the Placement Agents.
<PAGE>
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
reasonably
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 Purchasers and consummate the
transactions contemplated by this Agreement shall be subject to the
accuracy, at
and as of the
Closing Date, of the representations and warranties of the
Placement Agents
contained in this Agreement and to the following further
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. Except as set
----------------------------------------------
forth on the Disclosure Schedule (as defined in Section
11.1) attached
hereto,
if any, the
Offerors jointly and severally represent and warrant to the
Placement Agents and
the Purchasers as of the date hereof and as of the Closing
Date 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 any of 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
under the
Securities Act of any of the Capital Securities, the Guarantee or
the Debentures
(collectively, the
"Securities") or any other securities to be issued, or which
may be issued, by Preferred Term Securities XXIV, Ltd.
(b) Neither
the Company nor the Trust, nor any of their
Affiliates, nor any
person acting on its or their behalf has (i) other than the
Placement Agents,
offered for sale or solicited offers to purchase the
Securities, (ii)
engaged in any form of offering, general solicitation or
general advertising
(within the meaning of Regulation D) in connection with any
offer or sale of any of the Securities, or (iii) engaged or will engage in
any
"directed selling
efforts" within the meaning of Regulation S of the Securities
Act ("Regulation S") with respect to the Securities.
(c) The Securities
satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(d) Neither
the Company nor the Trust is or, after giving
effect to the offering and sale of the Capital Securities and the consummation
of the transactions described in this Agreement, will be 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.
<PAGE>
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 Delaware 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. 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 the Delaware Trustee and the
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) 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 or a director
of the Company or of a financial institution subsidiary of the Company and
has
been duly authorized by the Company to execute and deliver the
Trust Agreement.
5.4.
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.
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
Purchasers, 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.
Debentures. The
Debentures 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.
5.8. No
Defaults. The
Trust is not in violation of the Trust
-----------
Agreement or, to the
knowledge of the Administrators, any provision of the
Statutory Trust Act.
The execution,
delivery and performance by the Company or
the Trust of this
Agreement or the Operative Documents to which it is a
party,
and the consummation of the transactions contemplated herein or therein and
the
<PAGE>
use of the proceeds therefrom, 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 (as
defined in Section 5.11 hereof) 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, singly or in the aggregate,
reasonably be
expected to have a Material Adverse Effect 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. As used herein,
the term "Material
Adverse Effect" means any one or more
effects that
individually or in the
aggregate are material
and adverse to the
Offerors' ability to consummate the transactions contemplated herein or in the
Operative Documents
or any one or more
effects that individually or in the
aggregate are material
and adverse to the condition (financial or otherwise),
earnings, affairs,
business, prospects or
results of operations of the Company
and its Subsidiaries
taken as whole,
whether or not
occurring in the ordinary
course of business.
5.9.
Organization, Standing and Qualification of the Company. The
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Company has been duly
incorporated and is
validly existing as a corporation in
good standing under the laws of Missouri, 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 Material
Adverse Effect.
5.10.
Subsidiaries of the Company. Each of the Company's significant
---------------------------
subsidiaries (as
defined in Section 1-02(w) of Regulation S-X to the Securities
Act (the "Significant Subsidiaries")) is listed in Exhibit C
attached hereto and
---------
incorporated herein by this reference. Each Significant Subsidiary
has been duly
organized and is
validly existing and
in good standing
under the laws of
the
jurisdiction in which it is chartered or organized, with all
requisite 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
entity in each jurisdiction where the nature of its
activities requires
such qualification, except where the failure of any
such
Significant Subsidiary to be so qualified would not, singly or in
the aggregate,
have a Material
Adverse Effect.
All of the issued and
outstanding
shares of
capital stock of the Significant Subsidiaries (a) have been duly
authorized and
are validly issued,
(b) are fully paid and
nonassessable,
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.
5.11. Permits.
The Company and each of its subsidiaries (as defined in
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Section 1-02(x) of
Regulation S-X to the Securities Act) (the "Subsidiaries")
have all requisite
power and authority, and all necessary 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, singly or in the
aggregate, have a
Material Adverse
Effect, and neither
the Company nor any of
its 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, singly or in
the aggregate, have a
Material Adverse
Effect; and the
Company and its Subsidiaries are in compliance with all
applicable laws,
rules, regulations and
orders and consents,
the violation of
which would, singly or in the aggregate, have a Material Adverse
Effect.
<PAGE>
5.12. Conflicts, Authorizations and
Approvals. Neither the Company nor
---------------------------------------
any of its Subsidiaries is in violation of its respective articles or
certificate of
incorporation,
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 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 the Company
or any of its
Subsidiaries is subject, the effect of which violation or default
in performance
or observance would have, singly or in the aggregate, a Material
Adverse Effect.
5.13. Holding
Company Registration and Deposit Insurance. The Company
--------------------------------------------------
is duly registered (i)
as a bank holding
company or financial
holding company
under the Bank Holding
Company Act of 1956, as amended, and the regulations of
the Board of Governors of the Federal Reserve System (the "Federal
Reserve") or
(ii) as a savings and loan holding company under the Home Owners' Loan Act
of
1933, as amended, and
the regulations of the Office of Thrift Supervision (the
"OTS"), and
the deposit accounts of the Company's Subsidiary depository
institutions 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) The consolidated balance sheets of the Company and all
of its Subsidiaries
as of December
31, 2005 and December
31, 2004 and related
consolidated income statements and statements of changes in
shareholders' equity
for the three years ended December 31, 2005 together with the notes thereto,
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. The books and records of the Company and all of its
Subsidiaries have
been, and are being,
maintained in all
material respects in
accordance
with
generally accepted
accounting
principles and any
other applicable
legal and
accounting requirements and reflect only actual transactions.
(b) The information in the Company's most recently filed (i)
FR Y-9C filed with the Federal Reserve if the Company is a bank
holding company,
(ii) FR Y-9SP filed
with the Federal
Reserve if the Company is a small bank
holding company or
(iii) H-(b)11 filed with the OTS if the Company is a savings
and loan holding company (the "Regulatory Report"), previously provided to the
Placement Agents fairly presents in all material respects the
financial position
of the Company and, where applicable, all of its Subsidiaries as of the
end of
the period represented by such Regulatory Report.
(c) Since the
respective dates of the Financial Statements and
the Regulatory Report,
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.
(d) The accountants of
the Company who certified the Financial
Statements are
independent
public
accountants
of the Company and its
Subsidiaries within
the meaning of the Securities Act and the rules and
regulations thereunder.
5.15. Exchange
Act Reporting. The
reports filed with
the Securities
----------------------
and Exchange
Commission (the
"Commission") by the Company under the Securities
Exchange Act of 1934, as amended (the "1934 Act") and the
regulations thereunder
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 such
reports 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
except to the
extent superseded
by a subsequent report filed by the Company with the
Commission.
<PAGE>
5.16. Regulatory
Enforcement Matters.
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, 2003, a recipient of
any supervisory
letter from, or since
January 1, 2003,
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
their business or
that in any material
manner relates to
their capital
adequacy, their credit
policies, their
ability or authority to pay dividends or make distributions to
their shareholders
or make payments of principal or interest on their debt
obligations,
their management
or their business (each, a "Regulatory
Agreement"), nor has
the Company or any of its Subsidiaries been advised since
January 1, 2003, 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 federal or
state agency
charged
with the supervision or regulation of depository
institutions, bank,
financial or savings and loan holding companies, or engaged
in the insurance of depository institution 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 Subsidiaries. Neither the Company nor any of the
Subsidiaries is currently unable to pay dividends or make
distributions to
its
shareholders with respect to any class of its equity securities, or prohibited
from paying principal or interest on its debt obligations,
due to a
restriction
or limitation, whether by statute, contract or otherwise, and, in
the reasonable
judgment of the
Company's management, neither the Company nor any of the
Subsidiaries will be
unable in the foreseeable future to pay dividends or
make
distributions with respect to any class of equity securities, or be prohibited
from paying principal or interest on its debt obligations,
due to a
restriction
or limitation, whether by statute, contract or otherwise.
5.17. No
Material Change. Since
December 31, 2005,
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 Company or its
Subsidiaries
on a consolidated basis, whether or not
arising in the ordinary course of business.
5.18. 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, 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 and (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.
5.19.
Litigation. No charge, investigation, action, suit or
proceeding
----------
is pending
or, to the knowledge of the Offerors, threatened, against or
affecting the Company or its Subsidiaries 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,
singly or in the aggregate, a Material Adverse Effect.
<PAGE>
5.20. Deferral
of Interest Payments on Debentures. The Company has no
-------------------------------------------
present intention to
exercise its option to
defer payments of
interest on the
Debentures as
provided in the Indenture. The Company believes that the
likelihood that it would exercise its right to defer payments of
interest on the
Debentures as provided in the Indenture at any time during which
the Debentures
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 Debentures.
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) FTN Financial Capital Markets is a division of First
Tennessee Bank
National Association, 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. FTN Financial 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
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 FTN Financial Capital
Markets.
(b)
Keefe, Bruyette & Woods, Inc. is a corporation duly
organized, 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, subject to
Bankruptcy and
Equity 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 with respect to the Capital
Securities.
6.4.
Purchasers. The Placement Agent has made such reasonable
inquiry
----------
as is necessary
to determine
that each Purchaser is acquiring the Capital
Securities for its own
account and that the Purchasers do not intend to
distribute the Capital
Securities in contravention of the Securities Act or any
other applicable securities laws.
<PAGE>
6.5.
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) to those the Placement Agent reasonably believes are
"accredited
investors"
(as defined
in Rule 501 of
Regulation
D), (ii) in an offshore transaction
complying with Rule
903 of Regulation S, or (iii) in any other manner that does
not require
registration of the Capital Securities under the Securities Act.
In
connection with
each such sale, the Placement Agent has taken or will take
reasonable steps to
ensure that the
purchasers is aware
that (a) such sale is
being made in reliance on an exemption under the Securities Act and (b) future
transfers of the Capital Securities will not be made except in
compliance with
applicable securities laws.
6.6.
Offering Circulars.
Neither
the Placement Agent nor its
-------------------
representatives will
include any non-public
information about the Company, the
Trust or any of their
Affiliates in any
registration
statement,
prospectus,
offering circular or
private placement
memorandum used in
connection with any
purchase of Capital
Securities without the
prior written consent
of the Trust
and the Company.
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 the Closing Date,
after giving effect to the transactions contemplated by
this Agreement, as if made on and as of the Closing Date.
7.2. Sale
and Registration of
Securities. The
Offerors and their
------------------------------------
Affiliates shall not
nor shall any of them
permit any person
acting on their
behalf (other than the Placement Agents), to directly or indirectly
(i) 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
Securities or (ii) make offers or
sales of any such Security, or solicit offers to buy any such Security,
under
circumstances that
would require the
registration
of any of such
Securities
under the Securities Act.
7.3. Use
of Proceeds. The Trust
shall use the proceeds from the sale
---------------
of the Capital
Securities and the Common Securities to purchase the
Debentures
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 (i) because any condition set
forth in Section 3 hereof is not satisfied, or (ii) 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 Placement
Agents fail to fulfill a condition set forth in Section 4
or either Purchaser fails to purchase the Capital Securities.
<PAGE>
7.6.
Directed Selling Efforts, Solicitation and Advertising. In
----------------------------------------------------------
connection with any offer or sale of any of the Securities, the Offerors shall
not, nor shall
either of them
permit any of their Affiliates or any person
acting on their behalf, other than the Placement
Agents, to (i) engage in any
"directed selling efforts" within the meaning of Regulation S, or
(ii) engage in
any form of general solicitation or general advertising (as defined in
Regulation D).
7.7.
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 in connection with any
proposed
transfer, any
information required
to be provided by Rule 144A(d)(4) under the
Securities Act, if
applicable. 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 7.7 will not, at the date
thereof, contain any
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.
7.8.
Quarterly Reports.
Within 50 days of the end of each
calendar
-----------------
year quarter and within 100 days of the end of each calendar year during which
the Debentures are issued and outstanding, the Offerors shall
submit to The Bank
of New York a completed quarterly report in the form
attached hereto as Exhibit
-------
D, with a copy provided to First Tennessee during the period when it holds
any
-
of the Capital Securities.
7.9.
Book-Entry Registration. Each Offeror will cooperate with the
-----------------------
Placement Agents and use all commercially reasonable efforts to
make the Capital
Securities, and in the
event the Debentures
are distributed to
holders of the
Capital Securities,
to make the Debentures, eligible for clearance and
settlement as
book-entry
securities
through the
facilities of DTC, and
will
execute, deliver and
comply with all
representations made
to, and agreements
with, DTC and Nasdaq's PORTAL system.
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 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.
The Placement
Agents further covenant and agree not to
engage in hedging
transactions with
respect to the Capital
Securities unless
such transactions are conducted in compliance with the Securities
Act.
Section 9.
Indemnification.
---------------
9.1.
Indemnification Obligation. The Offerors shall jointly and
--------------------------
severally indemnify
and hold harmless the Placement Agents and the Purchasers
and each of their respective agents, employees, officers and directors and
each
person that controls either of the Placement Agents or the
Purchasers within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act,
and agents, employees,
officers and directors or any such controlling person of
either of the Placement Agents or the Purchasers (each such person
or entity, 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
<PAGE>
the written consent of the Offerors), insofar as such losses, claims,
damages,
judgments, 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
executed in favor of, furnished or made
available to the Placement Agents or the Purchasers by the
Offerors, or (b)
any
omission or alleged
omission to state in any information (whether written or
oral) or documents
executed in favor of,
furnished or made available to the
Placement Agents or
the Purchasers 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, judgments, 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
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
National Association (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, subject to Section 9.4, the
omission to so
notify the Offerors
shall not relieve them from any liability pursuant to
Section 9.1 which the Offerors may have to any Indemnified Party unless and to
the extent that the
Offerors did not
otherwise learn of such action and such
failure by the
Indemnified Party
results in the
forfeiture by the Offerors of
substantial rights and defenses. 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 of such
Indemnified Party shall be at the expense of the Offerors.
<PAGE>
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,
judgments, liabilities
or expenses referred to herein (i) in such proportion as
is appropriate to reflect the relative benefits received by the
Offerors, on the
one hand, and the
Indemnified Party,
on the other hand,
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, on the one hand, and the Placement
Agents,
on the other hand, 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, judgments, liabilities or
expenses, as well as any other relevant equitable considerations.
The respective
relative benefits
received by the Offerors, on the one hand, and the
Placement
Agents, on the other hand, 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 Purchasers (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 r
