EXHIBIT 4.20
FIRST BANKS, INC.
10,000 Capital Securities
Floating Rate Capital Securities
(Liquidation Amount $1,000.00 per Capital Security)
PLACEMENT AGREEMENT
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September 27, 2007
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 XI, 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
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Closing (as defined in Section 2.3.1 hereof) 10,000 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 (the
"Purchaser") pursuant to the terms of a Subscription Agreement 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 Purchaser (the "Subscription Agreement"),
the form of which is attached hereto as Exhibit A and incorporated herein by
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this reference.
1.2. Operative Agreements. The Capital Securities shall be fully
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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
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 $10,310,000.00 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 Purchaser. The Capital Securities shall be offered
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and sold by the Trust directly to the Purchaser 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
Agreement and the Purchaser shall be entitled to each of the benefits of the
Placement Agents and the Purchaser under this Agreement and shall be entitled to
enforce obligations of the Offerors under this Agreement as fully as if the
Purchaser were a party 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
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as 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
Purchaser at a purchase price of $1,000.00 per Capital Security.
2.2. Subscription Agreement. The Offerors hereby agree to evidence
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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.
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2.3.1. Closing; Closing Date. The sale and purchase of the
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CapitalSecurities 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.(St.
Louis time) on September 28, 2007, or such other business day as may be agreed
upon by the Offerors and the Placement Agents (the "Closing Date"); provided,
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however, that in no event shall the Closing Date occur later than October 5,
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2007 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 certificate for the Capital Securities
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shall be in definitive form, registered in the name of the Purchaser, or the
Purchaser's designee, and in the aggregate amount of the Capital Securities
purchased by the Purchaser.
2.3.3. Transfer Agent. The Offerors shall deposit the
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certificatere presenting the Capital Securities with the Institutional Trustee
or other appropriate party prior to the Closing Date.
2.4. Costs and Expenses. Whether or not this Agreement is terminated
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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
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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 October 5, 2007, 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 Purchaser and the
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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
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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 Purchaser, the Placement Agents and WTC in substantially the
form set forth on Exhibit B-1 attached hereto and incorporated herein by this
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reference, (b) from Richards, Layton & Finger, P.A., special Delaware counsel to
the Offerors and addressed to the Purchaser, the Placement Agents and the
Offerors, in substantially the form set forth on Exhibit B-2 attached hereto and
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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
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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 &
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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 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 substantively identical, in all respects material to the opinion, to the
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 Purchaser and
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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 Purchaser
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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 Agreement shall (a) not be prohibited
by any applicable law or governmental regulation, (b) 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 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 Purchaser and the
Placement Agents are subject.
3.5. Consents and Permits. The Company and the Trust shall have
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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. Information. Prior to or on the Closing Date, the Offerors
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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 reasonably satisfactory in form and
substance to the Placement Agents.
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
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Offerors to sell the Capital Securities to the Purchaser 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
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Placement Agents an executed copy of this Agreement.
4.2. Fulfillment of Other Obligations. The Placement Agents shall
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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
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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 Purchaser as of the date hereof and as of the Closing
Date as follows:
5.1. Securities Law Matters.
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(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 the Purchaser.
(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, or (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.
(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.
5.2. Organization, Standing and Qualification of the Trust. The
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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
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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
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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
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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. Debentures. The Debentures have been duly authorized by the
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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,
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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
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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
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
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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
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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 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.
5.12. Conflicts, Authorizations and Approvals. Neither the Company
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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
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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.
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(a) The consolidated balance sheets of the Company and all of
its Subsidiaries as of December 31, 2006 and December 31, 2005 and related
consolidated income statements and statements of changes in shareholders' equity
for the three years ended December 31, 2006 together with the notes thereto, and
the consolidated balance sheets of the Company and all of its Subsidiaries as of
June 30, 2007 and the related consolidated income statements and statements of
changes in shareholders' equity for the six months 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 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 year-end
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
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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).
5.16. Regulatory Enforcement Matters. Neither the Company nor any of
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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, 2004, a recipient of
any supervisory letter from, or since January 1, 2004, 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, 2004, 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, 2006, 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.
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.
6.4. Purchaser. The Placement Agent has made such reasonable inquiry
---------
as is necessary to determine that the Purchaser is acquiring the Capital
Securities for its own account, except as contemplated in Section 7.8 hereto,
and that the Purchaser does not intend to distribute the Capital Securities in
contravention of the Securities Act or any other applicable securities laws.
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), or (ii) 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 Purchaser 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 Purchaser 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 the Purchaser fails to purchase the Capital Securities.
7.6. 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 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. Transfer Notice. The Offerors acknowledge that the Purchaser
---------------
may transfer the Capital Securities, in whole or in part, at any time and from
time to time following the Closing Date by delivering the notice (the "Transfer
Notice") attached as Exhibit B to the Master Custodian Agreement, dated May 27,
---------
2004, as amended, and attached as Exhibit A to the Subscription Agreement. In
---------
order to facilitate such transfer, the Company shall execute in blank five
additional Capital Securities certificates, to be delivered at Closing, such
certificates to be completed with the name of the transferee(s) to which the
Capital Securities, in whole or in part, will be transferred upon the receipt of
a Transfer Notice and authenticated by the Institutional Trustee at the time of
each such transfer.
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 the
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 Purchaser and
each of their respective agents, employees, officers and directors 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 Exchange Act,
and agents, employees, officers and directors or any such controlling person of
either of the Placement Agents or the Purchaser (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
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 Purchaser 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 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, 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.
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 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 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 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, judgments, 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 Sections 9.1 through 9.4 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. Disclosure Schedule. The term "Disclosure Schedule," as used
-------------------
herein, means the schedule, if any, attached to this Agreement that sets forth
items the disclosure of which is necessary or appropriate as an exception to one
or more representations or warranties contained in Section 5 hereof; provided,
--------
that any item set forth in the Disclosure Schedule as an exception to a
representation or warranty shall be deemed an admission by the Offerors that
such item represents an exception, fact, event or circumstance that is
reasonably likely to result in a Material Adverse Effect. The Disclosure
Schedule shall be arranged in paragraphs corresponding to the section numbers
contained in Section 5. Nothing in the Disclosure Schedule shall be deemed
adequate to disclose an exception to a representation or warranty made herein
unless the Disclosure Schedule identifies the exception with reasonable
particularity and describes the relevant facts in reasonable detail. Without
limiting the generality of the immediately preceding sentence, the mere listing
(or inclusion of a copy) of a document or other item in the Disclosure Schedule
shall not be deemed adequate to disclose an exception to a representation or
warranty made herein unless the representation or warranty has to do with the
existence of the document or other item itself. Information provided by the
Company in response to any due diligence questionnaire shall not be deemed part
of the Disclosure Schedule and shall not be deemed to be an exception to one or
more representations or warranties contained in Section 5 hereof unless such
information is specifically included on the Disclosure Schedule in accordance
with the provisions of this Section 11.1.
11.2. Legal Expenses. At Closing, the Placement Agents shall provide
--------------
a credit for the Offerors' transaction-related legal expenses in the amount of
$10,000.00.
11.3. Non-Disclosure. Except as required by applicable law, including
--------------
without limitation securities laws and regulations promulgated thereunder, (i)
the Offerors shall not, and will cause their advisors and representatives not
to, issue any press release or other public statement regarding the transactions
contemplated by this Agreement or the Operative Documents prior to or on the
Closing Date and (ii) following the Closing Date, the Offerors shall not include
in any press release, other public statement or other communication regarding
the transactions contemplated by this Agreement or the Operative Documents, any
reference to the Placement Agents, WTC, the Purchaser, the term "PreTS" or any
derivations thereof. Notwithstanding anything to the contrary, the Offerors may
(1) consult any tax advisor regarding U.S. federal income tax treatment or tax
structure of the transaction contemplated under this Agreement and the Operative
Documents and (2) disclose to any and all persons, without limitation of any
kind, the U.S. Federal income tax structure (in each case, within the meaning of
Treasury Regulation ss. 1.6011-4) of the transaction contemplated under this
Agreement and the Operative Documents and all materials of any kind (including
opinions or other tax analyses) that are provided to you relating to such tax
treatment and tax structure. For this purpose, "tax structure" is limited to any
facts relevant to the U.S. federal income tax treatment of the transaction and
does not include information relating to identity of the parties.
11.4. 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:
if to the Placement Agents, to:
FTN Financial 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.
787 7th Avenue
4th Floor
New York, New York 10019
Telecopier: 212-403-2000
Telephone: 212-403-1004
Attention: Mitchell Kleinman, General Counsel
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
Attention: Thomas C. Erb, Esq.
and
Sidley Austin LLP
787 7th Avenue
New York, New York 10019
Telecopier: 212-839-5599
Telephone: 212-839-5300
Attention: Renwick Martin, Esq.
if to the Offerors, to:
First Banks, Inc.
600 James S. McDonnell Boulevard
Mail Stop - M1-199-014
Hazelwood, Missouri 63042
Telecopier: 314-592-6621
Telephone: 314-592-6603
Attention: Lisa K. Vansickle
with a copy to:
Stinson Morrison Hecker LLP
1201 Walnut Street, Suite 2900
Kansas City, Missouri 64106
Telecopier: 816-412-8117
Telephone: 816-691-3351
Attention: C. Robert Monroe, 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 Offerors, and their respective counsel, may change their respective
notice addresses from time to time by written notice to all of the foregoing
persons.
11.5. Parties in Interest, Successors and Assigns. Except as
------------------------------------------------
expressly set forth herein, 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.
11.6. 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.
11.7. Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
11.8. 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.
11.9. Entire Agreement. This Agreement, together with the Operative
----------------
Documents and the other documents delivered in connection with the transactions
contemplated by this Agreement, 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 Operative Documents and the other
documents delivered in connection with the transaction contemplated by this
Agreement, supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
11.10. 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.
11.11. 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 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 following page
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,
FIRST BANKS, INC.
By: /S/ Lisa K. Vansickle
------------------------------------
Name: Lisa K. Vansickle
----------------------------------
Title: SVP - Chief Financial Officer
---------------------------------
FIRST BANK STATUTORY TRUST XI
By: /s/ Lisa K. Vansicskle
----------------------------------
Name: Lisa K. Vansickle
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Title: Administrator
CONFIRMED AND ACCEPTED,
as of the date first set forth above
FTN FINANCIAL CAPITAL MARKETS,
a division of First Tennessee Bank
National Association,
as a Placement Agent
By: /s/ James D. Wingett
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Name: James D. Wingett
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Title: Senior Vice President
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KEEFE, BRUYETTE & WOODS, INC.,
a New York corporation, as a Placement Agent
By: /s/ Peter J. Wirth
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Name: Peter J. Wirth
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Title: Managing Director
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EXHIBIT A
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FORM OF SUBSCRIPTION AGREEMENT
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FIRST BANK STATUTORY TRUST XI
FIRST BANKS, INC.
SUBSCRIPTION AGREEMENT
September 28, 2007
THIS SUBSCRIPTION AGREEMENT (this "Agreement") made among First Bank
Statutory Trust XI (the "Trust"), a statutory trust created under the Delaware
Statutory Trust Act (Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
ss.ss. 3801, et seq.), First Banks, Inc., a Missouri corporation, with its
principal offices located at 600 James S. McDonnell Boulevard, Mail Stop -
M1-199-014, Hazelwood, Missouri 63042 (the "Company" and, collectively with the
Trust, the "Offerors"), and First Tennessee Bank National Association (the
"Purchaser").
RECITALS:
A. The Trust desires to issue 10,000 of its Floating Rate Capital
Securities (the "Capital Securities"), liquidation amount $1,000.00 per Capital
Security, representing an undivided beneficial interest in the assets of the
Trust (the "Offering"), to be issued pursuant to an Amended and Restated
Declaration of Trust (the "Declaration") by and among the Company, Wilmington
Trust Company ("WTC"), the administrators named therein, and the holders (as
defined therein), which Capital Securities are to be guaranteed by the Company
with respect to distributions and payments upon liquidation, redemption and
otherwise pursuant to the terms of a Guarantee Agreement between the Company and
WTC, as trustee (the "Guarantee"); and
B. The proceeds from the sale of the Capital Securities will be
combined with the proceeds from the sale by the Trust to the Company of its
common securities, and will be used by the Trust to purchase an equivalent
amount of Floating Rate Junior Subordinated Deferrable Interest Debentures of
the Company (the "Debentures") to be issued by the Company pursuant to an
indenture to be executed by the Company and WTC, as trustee (the "Indenture");
and
C. In consideration of the premises and the mutual representations
and covenants hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF CAPITAL SECURITIES
1.1. Upon the execution of this Agreement, the Purchaser hereby
agrees to purchase from the Trust 10,000 Capital Securities at a price equal to
$1,000.00 per Capital Security (the "Purchase Price") and the Trust agrees to
sell such Capital Securities to the Purchaser for said Purchase Price. The
rights and preferences of the Capital Securities are set forth in the
Declaration. The Purchase Price is payable in immediately available funds on
September 28, 2007, or such other business day as may be designated by the
Purchaser, but in no event later than October 5, 2007 (the "Closing Date"). The
Offerors shall provide the Purchaser wire transfer instructions no later than 1
day following the date hereof.
1.2. As a condition to its purchase of the Capital Securities,
Purchaser shall enter into the Joinder Agreement to the Master Custodian
Agreement, the form of which is attached hereto as Exhibit A (the "Custodian
Agreement") and, in accordance therewith, the certificate for the Capital
Securities shall be delivered by the Trust on the Closing Date to the custodian
in accordance with the Custodian Agreement. Purchaser shall not transfer the
Capital Securities to any person or entity except in accordance with the terms
of the Custodian Agreement.
1.3. The Placement Agreement, dated September 27, 2007 (the
"Placement Agreement"), among the Offerors and the placement agents identified
therein (the "Placement Agents") includes certain representations and
warranties, covenants and conditions to closing and certain other matters
governing the Offering. The Placement Agreement is hereby incorporated by
reference into this Agreement and the Purchaser shall be entitled to each of the
benefits of the Placement Agents and the Purchaser under the Placement Agreement
and shall be entitled to enforce the obligations of the Offerors under such
Placement Agreement as fully as if the Purchaser were a party to such Placement
Agreement.
1.4. Anything herein or in the Placement Agreement notwithstanding,
the Offerors acknowledge and agree that, so long as Purchaser holds some or all
of the Capital Securities, the Purchaser may in its discretion from time to time
transfer or sell, or sell or grant participation interests in, some or all of
such Capital Securities to one or more parties, provided that any such
transaction complies, as applicable, with the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act") and any other
applicable securities laws, is pursuant to an exemption therefrom, or is
otherwise not subject thereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1. The Purchaser understands and acknowledges that none of the
Capital Securities, the Debentures or the Guarantee have been registered under
the Securities Act or any other applicable securities law, are being offered for
sale by the Trust in transactions not requiring registration under the
Securities Act, and may not be offered, sold, pledged or otherwise transferred
by the Purchaser except in compliance with the registration requirements of the
Securities Act or any other applicable securities laws, pursuant to an exemption
therefrom or in a transaction not subject thereto.
2.2. The Purchaser represents and warrants that, except as
contemplated under Section 1.4 hereof, it is purchasing the Capital Securities
for its own account, for investment, and not with a view to, or for offer or
sale in connection with, any distribution thereof in violation of the Securities
Act or other applicable securities laws, subject to any requirement of law that
the disposition of its property be at all times within its control and subject
to its ability to resell such Capital Securities pursuant to an effective
registration statement under the Securities Act or under Rule 144A or any other
exemption from registration available under the Securities Act or any other
applicable securities law.
2.3. The Purchaser represents and warrants that neither the Offerors
nor the Placement Agents are acting as a fiduciary or financial or investment
adviser for the Purchaser.
2.4. The Purchaser represents and warrants that it is not relying
(for purposes of making any investment decision or otherwise) upon any advice,
counsel or representations (whether written or oral) of the Offerors or of the
Placement Agents.
2.5. The Purchaser represents and warrants that (a) it has consulted
with its own legal, regulatory, tax, business, investment, financial and
accounting advisers in connection herewith to the extent it has deemed
necessary, (b) it has had a reasonable opportunity to ask questions of and
receive answers from officers and representatives of the Offerors concerning
their respective financial condition and results of operations and the purchase
of the Capital Securities, and any such questions have been answered to its
satisfaction, (c) it has had the opportunity to review all publicly available
records and filings concerning the Offerors and it has carefully reviewed such
records and filings that it considers relevant to making an investment decision,
and (d) it has made its own investment decisions based upon its own judgment,
due diligence and advice from such advisers as it has deemed necessary and not
upon any view expressed by the Offerors or the Placement Agents.
2.6. The Purchaser represents and warrants that it is a "qualified
institutional buyer" as defined under Rule 144A under the Securities Act. If the
Purchaser is a dealer of the type described in paragraph (a)(1)(ii) of Rule 144A
under the Securities Act, it owns and invests on a discretionary basis not less
than U.S. $25,000,000.00 in securities of issuers that are not affiliated with
it. The Purchaser is not a participant-directed employee plan, such as a 401(k)
plan, or any other type of plan referred to in paragraph (a)(1)(i)(D) or
(a)(1)(i)(E) of Rule 144A, or a trust fund referred to in paragraph (a)(1)(i)(F)
of Rule 144A that holds the assets of such a plan, unless investment decisions
with respect to the plan are made solely by the fiduciary, trustee or sponsor of
such plan.
2.7. The Purchaser represents and warrants that on each day from the
date on which it acquires the Capital Securities through and including the date
on which it disposes of its interests in the Capital Securities, either (i) it
is not (a) an "employee benefit plan" (as defined in Section 3(3) of the United
States Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
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which is subject to the provisions of Part 4 of Subtitle B of Title I of ERISA,
or any entity whose underlying assets include the assets of any such plan (an
"ERISA Plan"), (b) any other "plan" (as defined in Section 4975(e)(1) of the
-----------
United States Internal Revenue Code of 1986, as amended (the "Code")) which is
----
subject to the provisions of Section 4975 of the Code or any entity whose
underlying assets include the assets of any such plan (a "Plan"), (c) an entity
----
whose underlying assets include the assets of any such ERISA Plan or other Plan
by reason of Department of Labor regulation section 2510.3-101 or otherwise, or
(d) a governmental or church plan that is subject to any federal, state or local
law which is substantially similar to the provisions of Section 406 of ERISA or
Section 4975 of the Code (a "Similar Law"); or (ii) the purchase, holding and
------------
disposition of the Capital Securities by it will satisfy the requirements for
exemptive relief under Prohibited Transaction Class Exemption ("PTCE") 84-14,
----
PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 or a similar exemption, or, in the
case of a plan subject to a Similar Law, will not result in a non-exempt
violation of such Similar Law.
2.8. The Purchaser represents and warrants hat it is acquiring the
Capital Securities as principal for its own account for investment and, except
as contemplated under Section 1.4 hereof, not for sale in connection with any
distribution thereof. It was not formed solely for the purpose of investing in
the Capital Securities, and additional capital or similar contributions were not
specifically solicited from any person owning a beneficial interest in it for
the purpose of enabling it to purchase any Capital Securities. The Purchaser is
not a (i) partnership, (ii) common trust fund or (iii) special trust, pension,
profit sharing or other retirement trust fund or plan in which the partners,
beneficiaries or participants, as applicable, may designate the particular
investments to be made or the allocation of any investment among such partners,
beneficiaries or participants, and except as contemplated under Section 1.4
hereof, it agrees that it shall not hold the Capital Securities for the benefit
of any other person and shall be the sole beneficial owner thereof for all
purposes and that it shall not sell participation interests in the Capital
Securities or enter into any other arrangement pursuant to which any other
person shall be entitled to a beneficial interest in the distribution on the
Capital Securities. The Capital Securities purchased directly or indirectly by
the Purchaser constitute an investment of no more than 40% of its assets. The
Purchaser understands and agrees that any purported transfer of the Capital
Securities to a purchaser which would cause the representations and warranties
of Section 2.6 and this Section 2.8 to be inaccurate shall be null and void ab
initio and the Offerors retain the right to resell any Capital Securities sold
to non-permitted transferees.
2.9. The Purchaser represents and warrants that it has full power
and authority to execute and deliver this Agreement, to make the representations
and warranties specified herein, and to consummate the transactions contemplated
herein and it has full right and power to subscribe for Capital Securities and
perform its obligations pursuant to this Agreement.
2.10. The Purchaser represents and warrants that no filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any governmental body, agency or court having jurisdiction over the
Purchaser, other than those that have been made or obtained, is necessary or
required for the performance by the Purchaser of its obligations under this
Agreement or to consummate the transactions contemplated herein.
2.11. The Purchaser represents and warrants that this Agreement has
been duly authorized, executed and delivered by the Purchaser.
2.12. The Purchaser understands and acknowledges that the Company
will rely upon the truth and accuracy of the foregoing acknowledgments,
representations, warranties and agreements and agrees that, if any of the
acknowledgments, representations, warranties or agreements deemed to have been
made by it by its purchase of the Capital Securities are no longer accurate, it
shall promptly notify the Company.
2.13. The Purchaser understands that no public market exists for any
of the Capital Securities, and that it is unlikely that a public market will
ever exist for the Capital Securities.
ARTICLE III
MISCELLANEOUS
3.1. Any notice or other communication given hereunder shall be
deemed sufficient if in writing and sent by registered or certified mail, return
receipt requested, international courier or delivered by hand against written
receipt therefor, or by facsimile transmission and confirmed by telephone, to
the following addresses, or such other address as may be furnished to the other
parties as herein provided:
To the Offerors: First Banks, Inc.
600 James S. McDonnell Boulevard
Mail Stop - M1-199-014
Hazelwood, Missouri 63042
Attention: Lisa K. Vansickle
Fax: 314-592-6621
To the Purchaser: First Tennessee Bank National Association
845 Crossover Lane, Suite 150
Memphis, Tennessee 38117
Attention: David Work
Fax: 901-435-7983
Unless otherwise expressly provided herein, notices shall be
deemed to have been given on the date of mailing, except notice of change of
address, which shall be deemed to have been given when received.
3.2. This Agreement shall not be changed, modified or amended except
by a writing signed by the parties to be charged, and this Agreement may not be
discharged except by performance in accordance with its terms or by a writing
signed by the party to be charged.
3.3. Upon the execution and delivery of this Agreement by the
Purchaser, this Agreement shall become a binding obligation of the Purchaser
with respect to the purchase of Capital Securities as herein provided.
3.4. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED
BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL THE TERMS AND
PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
3.5. The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this
Agreement.
3.6. This Agreement may be executed in one or more counterparts each
of which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
3.7. 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 Offerors' and the Purchaser's rights and
privileges shall be enforceable to the fullest extent permitted by law.
Signatures appear on the following page
IN WITNESS WHEREOF, this Agreement is agreed to and accepted as of the
day and year first written above.
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:
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Print Name:
--------------------------
Title:
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FIRST BANKS, INC.
By:
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Name:
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Title:
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FIRST BANK STATUTORY TRUST XI
By:
---------------------------------------
Name:
-------------------------------------
Title: Administrator
EXHIBIT A TO SUBSCRIPTION AGREEMENT
-----------------------------------
MASTER CUSTODIAN AGREEMENT
This Master Custodian Agreement (this "Agreement") is made and entered
into as of May 27, 2004 by and among each purchaser (each a "Purchaser" and
collectively the "Purchasers") that enters into a Joinder Agreement attached
hereto as Exhibit A (the "Joinder Agreement"), Wilmington Trust Company, a
Delaware banking corporation (the "Custodian") and each issuing entity (each an
"Issuer" and collectively the "Issuers") that enters into a Joinder Agreement.
The Purchasers and the Issuers are sometimes referred to herein as the
"Interested Parties".
RECITALS
A. The Purchasers intend to purchase from the Issuers or their
respective statutory business trust subsidiaries Securities issued by such
Issuers (the "Securities").
B. In order to facilitate any future transfer of all or any
portion of the Securities by the Purchasers, the Interested Parties intend to
provide for the custody of the Securities and certain other securities on the
terms set forth herein.
C. The Custodian is willing to hold and administer such securities
and to distribute the securities held by it in accordance with the agreement of
the Interested Parties and/or arbitral or judicial orders and decrees as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
herein contained and other good and valuable consideration (the receipt,
adequacy and sufficiency of which are hereby acknowledged by the parties by
their execution hereof), the parties agree as follows:
1. Joinder Agreement. On or before the delivery to the Custodian of any
-----------------
Securities issued by an Issuer, such Issuer and the applicable Purchaser or
Purchasers shall enter into a Joinder Agreement substantially in the form of
Exhibit A attached hereto, with such additional provisions as the Interested
Parties may wish to add from time to time. An executed copy of each such Joinder
Agreement shall be delivered to the Custodian on or before the date on which
such Issuer's Securities are issued. This Agreement and each Joinder Agreement
constitute the entire agreement among the Purchasers, Issuers and the Custodian
pertaining to the subject matter hereof.
2. Delivery of Securities. On or before each date on which an Issuer
------------------------
enters into a Joinder Agreement:
(a) The applicable Issuer shall deliver to the Custodian a
signed, authenticated certificate representing a beneficial interest
in such Issuer's Securities, with the Purchaser designated as owner
thereof (the "Original Securities"). The Custodian shall have no
responsibility for the genuineness, validity, market value, title or
sufficiency for any intended purpose of the Original Securities.
(b) The applicable Issuer shall deliver to the Custodian five
signed, unauthenticated and undated certificates with no holder
designated, each of which when completed representing a beneficial
interest in such Issuer's Securities (the "Replacement Securities").
The Custodian shall have no responsibility for the genuineness,
validity, market value, title or sufficiency for any intended purpose
of the Replacement Securities.
3. Timing of Release from Custody. Upon receipt of a signed transfer
-------------------------------
notice in the form of Exhibit B to be delivered in connection with the
Purchaser's transfer of all or any portion of an Issuer's Securities, on the
effective date set forth in such transfer notice, the Custodian shall:
(a) Deliver the Original Securities certificate corresponding to
he Issuer identified in the transfer notice to Wilmington Trust
Company, as Institutional Trustee under the Amended and Restated
Declaration of Trust, dated as of the date of the applicable Joinder
Agreement, among the Institutional Trustee, the Issuer and the
administrators named therein (the "Declaration") or as Trustee under
the Indenture, dated as of the date of the applicable Joinder
Agreement, between the Issuer and the Trustee (the "Indenture"), as
applicable, for the purpose of canceling the applicable Original
Securities certificate in accordance with the terms of the Issuer's
Amended and Restated Declaration of Trust or Indenture, as applicable;
and
(b) Deliver the Replacement Securities certificate(s) corresponding
to the Issuer identified in the transfer notice in the amount
designated in and in accordance with the transfer notice for the
purpose of completing and authenticating the applicable
Replacement Securities certificate(s) in accordance with the terms of
the Issuer's Declaration or Indenture, as applicable.
The initial term of this Agreement shall be one year (the "Initial
Term"). Unless FTN Financial Capital Markets or Keefe, Bruyette &
Woods, Inc. shall otherwise notify the Custodian in writing, upon
expiration of the Initial Term, this Agreement shall automatically
renew for an additional one-year term and shall continue to
automatically renew for succeeding one-year terms until terminated.
Upon termination of this Agreement, the Custodian and the Interested
Parties shall be released from all obligations hereunder, except for
the indemnification obligations set forth in paragraphs 5(b) and 5(c)
hereof.
4. Concerning the Custodian.
------------------------
(a) Each Interested Party acknowledges and agrees that the
Custodian (i) shall not be responsible for any of the agreements
referred to or described herein (including without limitation any
Issuer's Declaration or Indenture relating to such Issuer's
Securities), or for determining or compelling compliance therewith,
and shall not otherwise be bound thereby, (ii) shall be obligated only
for the performance of such duties as are expressly and specifically
set forth in this Agreement on its part to be performed, each of which
are ministerial (and shall not be construed to be fiduciary) in
nature, and no implied duties or obligations of any kind shall be read
into this Agreement against or on the part of the Custodian, (iii)
shall not be obligated to take any legal or other action hereunder
which might in its judgment involve or cause it to incur any expense
or liability unless it shall have been furnished with acceptable
indemnification, (iv) may rely on and shall be protected in acting or
refraining from acting upon any written notice, instruction,
instrument, statement, certificate, request or other document
furnished to it hereunder and believed by it to be genuine and to have
been signed or presented by the proper person, and shall have no
responsibility for determining the accuracy thereof, and (v) may
consult counsel satisfactory to it, including in-house counsel, and
the opinion or advice of such counsel in any instance shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion or advice of such counsel.
(b) The Custodian shall not be liable to anyone for any action
taken or omitted to be taken by it hereunder except in the case of the
Custodian's negligence or willful misconduct in breach of the terms of
this Agreement. In no event shall the Custodian be liable for
indirect, punitive, special or consequential damage or loss (including
but not limited to lost profits) whatsoever, even if the Custodian has
been informed of the likelihood of such loss or damage and regardless
of the form of action.
(c) The Custodian shall have no more or less responsibility or
liability on account of any action or omission of any book-entry
depository, securities intermediary or other subcustodian employed by
the Custodian than any such book-entry depository, securities
intermediary or other subcustodian has to the Custodian, except to the
extent that such action or omission of any book-entry depository,
securities intermediary or other subcustodian was caused by the
Custodian's own negligence, bad faith or willful misconduct in breach
of this Agreement.
(d) The recitals contained herein shall be taken as the
statements of each of the Issuers and the Purchaser, and the Custodian
assumes no responsibility for the correctness of the same. The
Custodian makes no representations as to the validity or sufficiency
of this Agreement or the Securities. The Custodian shall not be
accountable for the use or application by any of the Issuers or the
Purchaser of any Securities or the proceeds of any Securities.
5. Compensation, Expense Reimbursement and Indemnification.
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(a) The Custodian shall be compensated pursuant to a separate fee
agreement.
(b) Each of the Interested Parties agrees, jointly and severally,
to reimburse the Custodian on demand for all costs and expenses
incurred in connection with the administration of this Agreement or
the performance or observance of its duties hereunder which are in
excess of its customary compensation for normal services hereunder,
including without limitation, payment of any legal fees and expenses
incurred by the Custodian in connection with resolution of any claim
by any party hereunder.
(c) Each of the Interested Parties covenants and agrees, jointly
and severally, to indemnify the Custodian (and its directors, officers
and employees) and hold it (and such directors, officers and
employees) harmless from and against any loss, liability, damage, cost
and expense of any nature incurred by the Custodian arising out of or
in connection with this Agreement or with the administration of its
duties hereunder, including but not limited to attorney's fees and
other costs and expenses of defending or preparing to defend against
any claim of liability unless and except to the extent such loss,
liability, damage, cost and expense shall be caused by the Custodian's
negligence, bad faith, or willful misconduct. The provisions in this
paragraph 5 shall survive the expiration of this Agreement and the
resignation or removal of the Custodian.
6. Voting Rights. The Custodian shall be under no obligation to preserve,
--------------
protect or exercise rights in the Original Securities, and shall be responsible
only for reasonable measures to maintain the physical safekeeping thereof, and
otherwise to perform and observ e such duties on its part as are expressly set
forth in this Agreement. The Custodian shall not be responsible for forwarding
to any Interested Party, notifying any Interested Party with respect to, or
taking any action with respect to, any notice, solicitation or other document or
information, written or otherwise, received from an issuer or other person with
respect to the Original Securities, including but not limited to, proxy
material, tenders, options, the pendency of calls and maturities and expiration
of rights.
7. Resignation. The Custodian may at any time resign as Custodian
-----------
hereunder by giving thirty (30) days' prior written notice of resignation to
each of the Interested Parties. Prior to the effective date of the resignation
as specified in such notice, the Interested Parties will issue to the Custodian
a written instruction authorizing redelivery of the Original Securities and the
Replacement Securities to a bank or trust company that they select as successor
to the Custodian hereunder. If, however, the Interested Parties shall fail to
name such a successor custodian within twenty days after the notice of
resignation from the Custodian, the Purchasers shall be entitled to name such
successor custodian. If no successor custodian is named by the Interested
Parties or the Purchasers, the Custodian may apply to a court of competent
jurisdiction for appointment of a successor custodian.
8. Dispute Resolution. It is understood and agreed that should any
-------------------
dispute arise with respect to the delivery, ownership, right of possession,
and/or disposition of the Original Securities or the Replacement Securities, or
should any claim be made upon the Custodian, the Original Securities or the
Replacement Securities by a third party, the Custodian upon receipt of notice of
such dispute or claim is authorized and shall be entitled (at its sole option
and election) to retain in its possession without liability to anyone, all or
any of said Original Securities and Replacement Securities until such dispute
shall have been settled either by the mutual written agreement of the parties
involved or by a final order, decree or judgment of a court in the United States
of America, the time for perfection of an appeal of such order, decree or
judgment having expired. The Custodian may, but shall be under no duty
whatsoever to, institute or defend any legal proceedings which relate to the
Original Securities and Replacement Securities.
9. Consent to Jurisdiction and Service. Each of the Interested Parties
-----------------------------------
hereby absolutely and irrevocably consents and submits to the jurisdiction of
the courts in the State of Delaware and of any Federal court located in said
State in connection with any actions or proceedings brought against any of the
Interested Parties (or each of them) by the Custodian arising out of or relating
to this Agreement. In any such action or proceeding, the Interested Parties each
hereby absolutely and irrevocably (i) waives any objection to jurisdiction or
venue, (ii) waives personal service of any summons, complaint, declaration or
other process, and (iii) agrees that the service thereof may be made by
certified or registered first-class mail directed to such party, as the case may
be, at their respective addresses in accordance with paragraph 10 hereof.
10. Force Majeure. The Custodian shall not be responsible for delays or
-------------
failures in performance resulting from acts beyond its control. Such acts shall
include but not be limited to acts of God, strikes, lockouts, riots, acts of
war, epidemics, governmental regulations superimposed after the fact, fire,
communication line failures, computer viruses, power failures, earthquakes or
other disasters.
11. Notices.
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(a) Any notice permitted or required hereunder shall be in
writing, and shall be sent by personal delivery, overnight delivery by
a recognized courier or delivery service, mailed by registered or
certified mail, return receipt requested, postage prepaid, or by
confirmed facsimile accompanied by mailing of the original on the same
day by first class mail, postage prepaid, in each case the parties at
their address set forth below (or to such other address as any such
party may hereafter designate by written notice to the other parties).
If to an Issuer, to the address appearing on such Issuer's Joinder
Agreement
If to the Purchaser, to the address appearing on such Purchaser's
Joinder Agreement
If to the Custodian:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-1600
Attention: Chris Slaybaugh - Corporate Trust Administration
Fax: 302-636-4140
12. Miscellaneous.
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(a) Binding Effect. This Agreement shall be binding upon the
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respective parties hereto and their heirs, executors, successors and
assigns.
(b) Modifications. This Agreement may not be altered or modified
-------------
without the express written consent of the parties hereto. No course
of conduct shall constitute a waiver of any of the terms and
conditions of this Agreement, unless such waiver is specified in
writing, and then only to the extent so specified. A waiver of any of
the terms and conditions of this Agreement on one occasion shall not
constitute a waiver of the other terms of this Agreement, or of such
terms and conditions on any other occasion.
(c) Governing Law. This Agreement shall be governed by and
--------------
construed in accordance with the internal laws of the State of
Delaware.
(d) Reproduction of Documents. This Agreement and all documents
-------------------------
relating thereto, including, without limitation, (a) consents, waivers
and modifications which may hereafter be executed, and (b)
certificates and other information previously or hereafter furnished,
may be reproduced by any photographic, photostatic, microfilm, optical
disk, micro-card, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or
not such reproduction was made by a party in the regular course of
business, and that any enlargement, facsimile or further reproduction
of such reproduction shall likewise be admissible in evidence.
(e) Counterparts. This Agreement may be executed in several
------------
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
signatures appear on the following page
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day first above written.
WILMINGTON TRUST COMPANY
By: /s/ Christopher J. Slaybaugh
-----------------------------
Print Name: Christopher J. Slaybaugh
------------------------
Title: Financial Services Officer
--------------------------
EXHIBIT A TO MASTER CUSTODIAN AGREEMENT
---------------------------------------
FORM OF JOINDER AGREEMENT
-------------------------
September 28, 2007
This Joinder Agreement (this "Agreement") is entered into as of
September 28, 2007 by First Tennessee Bank National Association (the
"Purchaser") and First Bank Statutory Trust XI (the "Issuer").
RECITALS
A. Wilmington Trust Company (the "Custodian") is party to that
certain Master Custodian Agreement dated as of May 27, 2004, as amended (the
"Custodian Agreement").
B. The Custodian Agreement provides that certain financial
institutions that have issued securities (or whose statutory trust subsidiaries
have issued securities) and the Purchaser of such securities will join into the
Custodian Agreement pursuant to the terms of a joinder agreement.
C. On the date hereof, Issuer is issuing securities to the
Purchaser and the Issuer and the Purchaser desire to enter into this Agreement
to facilitate the subsequent transfer of the Issuer's securities by the
Custodian.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
herein contained and other good and valuable consideration (the receipt,
adequacy and sufficiency of which are hereby acknowledged by the Issuer by its
execution hereof), the Issuer agrees as follows:
1. Joinder. The Issuer and Purchaser hereby join in the Custodian
-------
Agreement and agree to be subject to, and bound by, the terms and provisions of
the Custodian Agreement that are ascribed to "Issuers" and "Purchasers"
respectively therein to the same extent as if the Issuer and Purchaser had
signed the Custodian Agreement as an original party thereto.
2. Notice. Any notice permitted or required to be sent to an
------
Issuer under the Custodian Agreement shall be sent to the following address:
First Bank Statutory Trust XI
c/o First Banks, Inc.
600 James S. McDonnell Boulevard
Mail Stop - M1-199-014
Hazelwood, Missouri 63042
Attention: Lisa K. Vansickle
Any notice permitted or required to be sent to a Purchaser under the
Custodian Agreement shall be sent to the following address:
First Tennessee Bank National Association
845 Crossover Lane, Suite 150
Memphis, Tennessee 38117
Attention: David Work
3. Termination. This Agreement and the Purchaser's and Issuer's
-----------
respective rights and obligations under the Custodian Agreement shall terminate
upon the transfer of all of Issuer's securities pursuant to the Custodian
Agreement.
4. Entire Agreement. This Agreement and the Custodian Agreement
----------------
constitute the entire agreement among the Purchaser, Issuer and the Custodian
pertaining to the subject matter hereof.
IN WITNESS WHEREOF, the Issuer and Purchaser have executed this
Agreement as of the day first above written.
FIRST BANK STATUTORY TRUST XI
By:
---------------------------------------
Name:
-------------------------------------
Title: Administrator
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT B TO MASTER CUSTODIAN AGREEMENT
---------------------------------------
FORM OF TRANSFER NOTICE
[DATE]
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-1600
Attention: Corporate Trust Administration
Dear Sir or Madam:
The undersigned hereby notifies you of the transfer of [________] of
the Capital Securities of First Bank Statutory Trust XI, such transfer to be
effective on [DATE OF TRANSFER]. Capitalized terms used in this notice and not
otherwise defined shall have the meanings ascribed to such terms in the
Placement Agreement dated September 27, 2007 between the Offerors and the
placement agents named therein.
The undersigned hereby instructs you as Custodian to deliver the
Original Securities certificate to Wilmington Trust Company, as Institutional
Trustee (the "Trustee") under the Amended and Restated Trust Agreement dated
September 28, 2007 among the Trustee, First Banks, Inc. and the administrative
trustees named therein (the "Trust Agreement") for cancellation in accordance
with the terms of the Trust Agreement and to deliver the Replacement Securities
certificate to the Trustee for authentication in accordance with the terms of
the Trust Agreement.
By copy of this notice, the Institutional Trustee is hereby instructed
to make the Replacement Securities certificate registered to [NAME, ADDRESS AND
IDENTITY OF TRANSFEREE] in the liquidation amount of [_________] and bearing the
identification number "CUSIP NO. [__________]" and to authenticate and deliver
the Replacement Securities certificate to [_____________].
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
cc: First Banks, Inc.
Wilmington Trust Company, as Trustee
EXHIBIT B-1
-----------
FORM OF COMPANY COUNSEL OPINION
-------------------------------
September 28, 2007
First Tennessee Bank National Association FTN Financial Capital Markets
845 Crossover Lane, Suite 150 845 Crossover Lane, Suite 150
Memphis, Tennessee 38117 Memphis, Tennessee 38117
Wilmington Trust Company Keefe, Bruyette & Woods, Inc.
Rodney Square North 787 7th Avenue, 4th Floor
1100 North Market Street New York, New York 10019
Wilmington, Delaware 19890-1600
Ladies and Gentlemen:
We have acted as counsel to First Banks, Inc. (the "Company"), a
Missouri corporation in connection with a certain Placement Agreement, dated
September 27, 2007, (the "Placement Agreement"), between the Company and First
Bank Statutory Trust XI (the "Trust"), on one hand, and FTN Financial Capital
Markets and Keefe, Bruyette & Woods, Inc. (the "Placement Agents"), on the other
hand. Pursuant to the Placement Agreement, and subject to the terms and
conditions stated therein, the Trust will issue and sell to First Tennessee Bank
National Association (the "Purchaser"), $10,000,000.00 aggregate principal
amount of Floating Rate Capital Securities (liquidation amount $1,000.00 per
capital security) (the "Capital Securities").
Capitalized terms used herein and not otherwise defined shall have the
same meanings ascribed to them in the Placement Agreement.
The law covered by the opinions expressed herein is limited to the law
of the United States of America and of the State of Missouri.
We have made such investigations of law as, in our judgment, were
necessary to render the following opinions. We have also reviewed (a) the
Company's Articles of Incorporation, as amended, and its By-Laws, as amended;
and (b) such corporate documents, records, information and certificates of the
Company and the Subsidiaries, certificates of public officials or government
authorities and other documents as we have deemed necessary or appropriate as a
basis for the opinions hereinafter expressed. As to certain facts material to
our opinions, we have relied, with your permission, upon statements,
certificates or representations, including those delivered or made in connection
with the above-referenced transaction, of officers and other representatives of
the Company and the Subsidiaries and the Trust.
As used herein, the phrases "to the best of our knowledge" or "known to
us" or other similar phrases mean the actual knowledge of the attorneys who have
had active involvement in the transactions described above or who have prepared
or signed this opinion letter, or who otherwise have devoted substantial
attention to legal matters for the Company.
Based upon and subject to the foregoing and the further qualifications
set forth below, we are of the opinion as of the date hereof that:
1. The Company is validly existing and in good standing under the
laws of the State of Missouri and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended. Each of the Significant
Subsidiaries is validly existing and in good standing under the laws of its
jurisdiction of organization. Each of the Company and the Significant
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 our knowledge, all outstanding shares
of capital stock of the Significant 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 or 12 U.S.C.
Section 55, and are owned of record and beneficially, directly or indirectly, by
the Company.
2. The issuance, sale and delivery of the Debentures in accordance
with the terms and conditions of the Placement Agreement and the Operative
Documents have been duly authorized by all necessary actions of the Company. The
issuance, sale and delivery of the Debentures by the Company and the issuance,
sale and delivery of the Capital Securities and the Common Securities by the
Trust do not give rise to any preemptive or other rights to subscribe for or to
purchase any shares of capital stock or equity securities of the Company or the
Significant Subsidiaries pursuant to the corporate Articles of Incorporation or
Charter, By-Laws or other governing documents of the Company or the Significant
Subsidiaries, or, to the best of our knowledge, any agreement or other
instrument to which either the Company or the Subsidiaries is a party or by
which the Company or the Significant Subsidiaries may be bound.
3. The Company has all requisite corporate power to enter into and
perform its obligations under the Placement Agreement and the Subscription
Agreement, and the Placement Agreement and the Subscription Agreement have been
duly and validly authorized, executed and delivered by the Company and
constitute the legal, valid and binding obligations of the Company 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 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 Debentures 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 our knowledge, neither the Company, the Trust,
nor any of the Subsidiaries is in breach or violation of, or default under, with
or without notice or lapse of time or both, its Articles of Incorporation or
Charter, By-Laws or other governing documents (including without limitation, the
Trust Agreement). The execution, delivery and performance of the Placement
Agreement and the Operative Documents and the consummation of the transactions
contemplated by the Placement Agreement and the Operative Documents do not and
will not (i) result in the creation or imposition of any material lien, claim,
charge, encumbrance or restriction upon any property or assets of the Company or
the Subsidiaries, or (ii) conflict with, 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 (A) the
Articles of Incorporation or Charter, By-Laws or other governing documents of
the Company or the Subsidiaries, or (B) to the best of our 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 Company or the Subsidiaries is a party or by which any of them or any of
their respective properties may be bound or (C) any order, decree, judgment,
franchise, license, permit, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or foreign,
known to us having jurisdiction over the Company or the Subsidiaries or any of
their respective properties which, in the case of each of (i) or (ii) above, is
material to the Company and the Subsidiaries on a consolidated basis.
7. Except for filings, registrations or qualifications that may be
required by applicable 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
the laws of the State of Missouri in connection with the transactions
contemplated by the Placement Agreement and the Operative Documents in
connection with the offer and sale of the Capital Securities as contemplated by
the Placement Agreement and the Operative Documents.
8. To the best of our knowledge (i) no action, suit or proceeding
at law or in equity is pending or threatened to which the Company, the Trust or
the Subsidiaries are or may be a party, and (ii) no action, suit or proceeding
is pending or threatened against or affecting the Company, the Trust 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 transactions contemplated by the Placement Agreement and the Operative
Documents 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 Company, the Trust and the Subsidiaries on a
consolidated basis.
9. Assuming the truth and accuracy of the representations and
warranties of the Placement Agents in the Placement Agreement and the Purchaser
in the Subscription Agreement, it is not necessary in connection with the
offering, sale and delivery of the Capital Securities, the Debentures and the
Guarantee Agreement (or the Guarantee) to register the same under the Securities
Act of 1933, as amended, under the circumstances contemplated in the Placement
Agreement and the Subscription Agreement.
10. 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 the Placement Agreement will be, 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, without
regard to Section 3(c) of such Act.
The opinion expressed in the first two sentences of numbered paragraph
1 of this opinion is based solely upon certain certificates and confirmations
issued by the applicable governmental officer or authority with respect to each
of the Company and the Significant Subsidiaries.
With respect to the foregoing opinions, since no member of this firm is
actively engaged in the practice of law in the States of Delaware or New York,
we do not express any opinions as to the laws of such states and have (i)
relied, with your approval, upon the opinion of Richards, Layton & Finger, P.A.
with respect to matters of Delaware law and (ii) assumed, with your approval and
without rendering any opinion to such effect, that the laws of the State of New
York, in all respects material to this opinion, are substantively identical to
the laws of the State of Missouri, without regard to conflict of law provisions.
The opinions expressed herein are rendered to you solely pursuant to
Section 3.1(a) of the Placement Agreement. As such, they may be relied upon by
you only and may not be used or relied upon by any other person for any purpose
whatsoever without our prior written consent.
Very truly yours,
EXHIBIT B-2
-----------
FORM OF DELAWARE COUNSEL OPINION
--------------------------------
To Each of the Persons
Listed on Schedule A Hereto
Re: First Bank Statutory Trust XI
-----------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for First Bank
Statutory Trust XI, a Delaware statutory trust (the "Trust"), in connection with
the matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust (the "Certificate
of Trust"), as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on [FILE DATE], 2007;
(b) The Declaration of Trust, dated as of [FILE DATE],
2007, among First Banks, Inc., a Missouri corporation (the "Company"),
Wilmington Trust Company, a Delaware banking corporation ("WTC"), as trustee and
the administrators named therein (the "Administrators");
(c) The Amended and Restated Declaration of Trust of the
Trust, dated as of September 28, 2007 (including the form of Capital Securities
Certificate attached thereto as Exhibit A-1 and the terms of the Capital
Securities attached as Annex I) (the "Declaration of Trust"), among the Company,
as sponsor, WTC, as Delaware trustee (the "Delaware Trustee") and institutional
trustee (the "Institutional Trustee"), the Administrators and the holders, from
time to time, of undivided beneficial interests in the assets of the Trust;
(d) The Placement Agreement, dated September 27, 2007 (the
"Placement Agreement"), among the Company, the Trust, and FTN Financial Capital
Markets and Keefe, Bruyette & Woods, Inc., as placement agents;
(e) The Subscription Agreement, dated September 28, 2007
(the "Subscription Agreement"), among the Trust, the Company and First Tennessee
Bank National Association (the documents identified in items (c) through (e)
being collectively referred to as the "Operative Documents");
(f) The Capital Securities being issued on the date hereof
(the "Capital Securities");
(g) The Common Securities being issued on the date hereof
(the "Common Securities") (the documents identified in items (f) and (g) being
collectively referred to as the "Trust Securities"); and
(h) A Certificate of Good Standing for the Trust, dated
September 27, 2007, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are
used as defined in the Declaration of Trust, except that reference herein to any
document shall mean such document as in effect on the date hereof. This opinion
is being delivered pursuant to Section 3.1 of the Placement Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (h) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (h) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration of Trust constitutes the entire agreement among the parties thereto
with respect to the subject matter thereof, including with respect to the
creation, operation, and termination of the Trust, and that the Declaration of
Trust and the Certificate of Trust are in full force and effect and have not
been amended further, (ii) that there are no proceedings pending or
contemplated, for the merger, consolidation, liquidation, dissolution or
termination of the Trust, (iii) except to the extent provided in paragraph 1
below, the due creation, due formation or due organization, as the case may be,
and valid existence in good standing of each party to the documents examined by
us under the laws of the jurisdiction governing its creation, formation or
organization, (iv) that each party to the documents examined by us is qualified
to do business in each jurisdiction where such qualification is required
generally or necessary in order for such party to enforce its rights under the
documents examined by us, (v) the legal capacity of each natural person who is a
party to the documents examined by us, (vi) except to the extent set forth in
paragraph 2 below, that each of the parties to the documents examined by us has
the power and authority to execute and deliver, and to perform its obligations
under, such documents, (vii) except to the extent provided in paragraph 3 below,
that each of the parties to the documents examined by us has duly authorized,
executed and delivered such documents, (viii) the receipt by each Person to whom
a Capital Security is to be issued by the Trust (the "Capital Security Holders")
of a Capital Security Certificate for the Capital Security and the payment for
the Capital Securities acquired by it, in accordance with the Declaration of
Trust and the Subscription Agreement, (ix) that the Capital Securities are
issued and sold to the Holders of the Capital Securities in accordance with the
Declaration of Trust and the Subscription Agreement, (x) the receipt by the
Person (the "Common Securityholder") to whom the common securities of the Trust
representing common undivided beneficial interests in the assets of the Trust
(the "Common Securities" and, together with the Capital Securities, the "Trust
Securities") are to be issued by the Trust of a Common Security Certificate for
the Common Securities and the payment for the Common Securities acquired by it,
in accordance with the Declaration of Trust, (xi) that the Common Securities are
issued and sold to the Common Securityholder in accordance with the Declaration
of Trust, (xii) that each of the parties to the documents reviewed by us has
agreed to and received the stated consideration for the incurrence of its
obligations under such documents, (xiii) that each of the documents reviewed by
us (other than the Declaration of Trust) is a legal, valid, binding and
enforceable obligation of the parties thereto in accordance with the terms
thereof and (xiv) that the Trust derives no income from or connected with
sources within the State of Delaware and has no assets, activities (other than
having a trustee and the filing of documents with the Secretary of State) or
employees in the State of Delaware. We have not participated in the preparation
of any offering materials with respect to the Trust Securities and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
We express no opinion as to (i) the effect of suretyship
defenses, or defenses in the nature thereof, with respect to the obligations of
any applicable guarantor, joint obligor, surety, accommodation party, or other
secondary obligor or any provisions of the Declaration of Trust with respect to
indemnification or contribution and (ii) the accuracy or completeness of any
exhibits or schedules to the Operative Documents. No opinion is given herein as
to the choice of law or internal substantive rules of law that any court or
other tribunal may apply to the transactions contemplated by the Operative
Documents.
We express no opinion as to the enforceability of any
particular provision of the Declaration of Trust or the other Operative
Documents relating to remedies after default.
We express no opinion as to the enforceability of any
particular provision of any of the Operative Documents relating to (i) waivers
of rights to object to jurisdiction or venue, or consents to jurisdiction or
venue, (ii) waivers of rights to (or methods of) service of process, or rights
to trial by jury, or other rights or benefits bestowed by operation of law,
(iii) waivers of any applicable defenses, setoffs, recoupments, or
counterclaims, (iv) waivers or variations of provisions which are not capable of
waiver or variation under the Uniform Commercial Code ("UCC") of the State, (v)
the grant of powers of attorney to any person or entity, or (vi) exculpation or
exoneration clauses, indemnity clauses, and clauses relating to releases or
waivers of unmatured claims or rights.
We have made no examination of, and no opinion is given herein
as to the Trustee's or the Trust's title to or other ownership rights in, or the
existence of any liens, charges or encumbrances on, or adverse claims against,
any asset or property held by the Institutional Trustee or the Trust. We express
no opinion as to the creation, validity, attachment, perfection or priority of
any mortgage, security interest or lien in any asset or property held by the
Institutional Trustee or the Trust.
We express no opinion as to the effect of events occurring,
circumstances arising, or changes of law becoming effective or occurring, after
the date hereof on the matters addressed in this opinion letter, and we assume
no responsibility to inform you of additional or changed facts, or changes in
law, of which we may become aware.
We express no opinion as to any requirement that any party to
the Operative Documents (or any other persons or entities purportedly entitled
to the benefits thereof) qualify or register to do business in any jurisdiction
in order to be able to enforce its rights thereunder or obtain the benefits
thereof.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing
in good standing as a statutory trust under the Delaware Statutory Trust Act (12
Del. C. ss. 3801, et seq.) (the "Act"). All filings required under the laws of
- ------ -- ---
the State of Delaware with respect to the creation and valid existence of the
Trust as a statutory trust have been made.
2. Under the Declaration of Trust and the Act, the Trust
has the trust power and authority to (A) execute and deliver the Operative
Documents, (B) perform its obligations under such Operative Documents and (C)
issue the Trust Securities.
3. The execution an delivery by the Trust of th Operative
Documents, and the performance by the Trust of its obligations thereunder, have
been duly authorized by all necessary trust action on the part of the Trust.
4. The Declaration of Trust constitutes a legal, valid and
binding obligation of the Company, the Trustees and the Administrators, and is
enforceable against the Company, the Trustees and the Administrators, in
accordance with its terms.
5. Each of the Operative Documents constitutes a legal,
valid and binding obligation of the Trust, enforceable against the Trust, in
accordance with its terms.
6. The Capital Securities have been duly authorized for
issuance by the Declaration of Trust, and, when duly executed and delivered to
and paid for by the purchasers thereof in accordance with the Declaration of
Trust, the Subscription Agreement and the Placement Agreement, the Capital
Securities will be validly issued, fully paid and, subject to the qualifications
set forth in paragraph 8 below, nonassessable undivided beneficial interests in
the assets of the Trust and will entitle the Capital Securities Holders to the
benefits of the Declaration of Trust. The issuance of the Capital Securities is
not subject to preemptive or other similar rights under the Act or the
Declaration of Trust.
7. The Common Securities have been duly authorized for
issuance by the Declaration of Trust and, when duly executed and delivered to
the Company as Common Security Holder in accordance with the Declaration of
Trust, will be validly issued, fully paid and, subject to paragraph 8 below and
Section 9.1(b) of the Declaration of Trust (which provides that the Holder of
the Common Securities are liable for debts and obligations of Trust),
nonassessable undivided beneficial interests in the assets of the Trust and will
entitle the Common Security Holder to the benefits of the Declaration of Trust.
The issuance of the Common Securities is not subject to preemptive or other
similar rights under the Act or the Declaration of Trust.
8. Under the Declaration of Trust and the Act, the Holders
of the Capital Securities, as beneficial owners of the Trust, will be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware. We note that the Holders of the Capital Securities and the Holder
of the Common Securities may be obligated, pursuant to the Declaration of Trust,
(A) to provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Capital Security
Certificates and the issuance of replacement Capital Security Certificates, and
(B) to provide security or indemnity in connection with requests of or
directions to the Institutional Trustee to exercise its rights and powers under
the Declaration of Trust.
9. Neither the execution, delivery and performance by the
Trust of the Operative Documents, nor the consummation by the Trust of any of
the transactions contemplated thereby, requires the consent or approval of, the
authorization of, the withholding of objection on the part of, the giving of
notice to, the filing, registration or qualification with, or the taking of any
other action in respect of, any governmental authority or agency of the State of
Delaware, other than the filing of the Certificate of Trust with the Secretary
of State (which Certificate of Trust has been duly filed).
10. Neither the execution, delivery and performance by the
Trust of the Trust Documents, nor the consummation by the Trust of the
transactions contemplated thereby, (i) is in violation of the Declaration of
Trust or of any law, rule or regulation of the State of Delaware applicable to
the Trust or (ii) to the best of our knowledge, without independent
investigation, violates, contravenes or constitutes a default under, or results
in a breach of or in the creation of any lien (other than as permitted by the
Operative Documents) upon any property of the Trust under any indenture,
mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan
or credit agreement, license or other agreement or instrument to which the Trust
is a party or by which it is bound.
11. 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 under Subpart E, Part I of Subchapter J of the
Internal Revenue Code of 1986, as amended, the Trust will not be subject to any
tax, fee or governmental charge under the laws of the State of Delaware.
The opinions expressed in paragraph 4, 5, 6, 7 and 8 above are
subject, as to enforcement, to the effect upon the Declaration of Trust of (i)
bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance and transfer, and other similar laws relating to or
affecting the rights and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at law), and (iii)
the effect of applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
Circular 230 Notice. Any advice contained in this communication
with respect to any federal tax matter was not intended or written to be used,
and it cannot be used by any taxpayer, for the purpose of avoiding penalties
that the Internal Revenue Service may impose on the taxpayer. If any such advice
is made to any person other than to our client for whom the advice was prepared,
the advice expressed above is being delivered to support the promotion or
marketing (by a person other than Richards, Layton & Finger) of the transaction
or matter discussed or referenced, and such taxpayer should seek advice based on
the taxpayer's particular circumstances from an independent tax advisor.
In basing the opinions set forth herein on "our knowledge," the
words "our knowledge" signify that no information has come to the attention of
the attorneys in the firm who are directly involved in the representation of the
Trust in this transaction that would give us actual knowledge that any such
opinions are not accurate. Except as otherwise stated herein, we have undertaken
no independent investigation or verification of such matters.
We consent to your relying as to matters of Delaware law upon
this opinion in connection with the Placement Agreement. We also consent to
Lewis, Rice & Fingersh, L.C.'s and Stinson Morrison Hecker LLP's relying as to
matters of Delaware law upon this opinion in connection with opinions to be
rendered by them on the date hereof pursuant to the Placement Agreement. Except
as stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
SCHEDULE A
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Wilmington Trust Company
FTN Financial Capital Markets
Keefe, Bruyette & Woods, Inc.
First Tennessee Bank National Association
First Banks, Inc.
EXHIBIT B-3
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TAX COUNSEL OPINION ITEMS
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1. The Debentures will be classified as indebtedness of the Company for
U.S. federal income tax purposes.
2. The Trust will be characterized as a grantor trust and not as an
association taxable as a corporation for U.S. federal income tax
purposes.
Lewis, Rice & Fingersh, L.C.
500 N. Broadway, Suite 2000
St. Louis, Missouri 63102
Re: Representations Concerning the Issuance of Junior Subordinated
Deferrable Interest Debentures (the "Debentures") to First Bank
Statutory Trust XI (the "Trust") and Sale of Trust Securities
(the "Trust Securities") of the Trust
Ladies and Gentlemen:
In accordance with your request, First Banks, Inc. (the "Company")
hereby makes the following representations in connection with the preparation of
your opinion letter as to the United States federal income tax consequences of
the issuance by the Company of the Debentures to the Trust and the sale of the
Trust Securities.
Company hereby represents that:
1. The sole assets of the Trust will be the Debentures, any
interest paid on the Debentures to the extent not distributed, proceeds of the
Debentures, or any of the foregoing.
2. The Company intends to use the net proceeds from the sale of the
Debentures for general corporate purposes and future acquisitions.
3. The Trust was not formed to conduct any trade or business and
is not authorized to conduct any trade or business. The Trust exists for the
exclusive purposes of (i) issuing and selling the Trust Securities, (ii) using
the proceeds from the sale of Trust Securities to acquire the Debentures, and
(iii) engaging only in activities necessary or incidental thereto.
4. The Company has not entered into an agency agreement with the
Trust or authorized the trustee to act as its agent in dealing with third
parties. To Company's knowledge, after due inquiry, the Trust has not acted as
the agent of the Company or of anyone else in dealing with third parties.
5. The Trust was formed to facilitate direct investment in the
assets of the Trust, and the existence of multiple classes of ownership is
incidental to that purpose. There is no intent to provide holders of such
interests in the Trust with diverse interests in the assets of the Trust.
6. The Company intends to create a debtor-creditor relationship
between the Company, as debtor, and the Trust, as a creditor, upon the issuance
and sale of the Debentures to the Trust by the Company. The Company will (i)
record and at all times continue to reflect the Debentures as indebtedness on
its separate books and records for financial accounting purposes, and (ii) treat
the Debentures as indebtedness for all United States tax purposes.
7. During each year, the Trust's income will consist solely of
payments made by the Company with respect to the Debentures. Such payments will
not be derived from the active conduct of a financial business by the Trust.
Both the Company's obligation to make such payments and the measurement of the
amounts payable by the Company are defined by the terms of the Debentures.
Neither the Company's obligation to make such payments nor the measurement of
the amounts payable by the Company is dependent on income or profits of Company
or any affiliate of the Company.
8. The Company expects that it will be able to make, and will
make, timely payment of amounts identified by the Debentures as principal and
interest in accordance with the terms of the Debentures with available capital
or accumulated earnings.
9. The Company presently has no intention to defer interest
payments on the Debentures, and it considers the likelihood of such a deferral
to be remote because, if it were to exercise its right to defer payments of
interest with respect to the Debentures, it would not be permitted to declare or
pay any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any capital stock of the Company or any
affiliate of the Company (other than payments of dividends or distributions to
the Company or payments of dividends from direct or indirect subsidiaries of the
Company to their parent corporations, which also shall be direct or indirect
subsidiaries of the Company) or make any payment of principal of or interest or
premium, if any, on or repay, repurchase, or redeem any debt securities of the
Company or any affiliate of the Company that rank pari passu in all respects
with or junior in interest to the Debentures, in each case subject to limited
exceptions stated in Section 2.11 of the Indenture to be entered into in
connection with the issuance of the Debentures.
10. The Company has no present intention (a) to take the position
that a deferral of interest payments on the Debentures is not a remote
contingency, or (b) to make an explicit disclosure on the Company's tax return,
under Reg. ss. 1.1275-2(h)(5) that its determination as holder with respect to
remote contingency status is different from its determination as issuer.
11. Immediately after the issuance of the Debentures, the
debt-to-equity ratio of the Company (as determined for financial accounting
purposes, but excluding deposit liabilities from the Company's debt) will be
within standard depository institution industry norms and, in any event, will be
no higher than four to one (4 : 1).
12. To the est of our knowledge, the Company is currently in
compliance with all federal, state, and local capital requirements, except to
the extent that failure to comply with any such requirements would not have a
material adverse effect on the Company and its affiliates.
13. The Company will not issue any class of common stock or
preferred stock senior to the Debentures during their term.
14. The Internal Revenue Service has not challenged the interest
deduction on any class of the Company's subordinated debt in the last ten (10)
years on the basis that such debt constitutes equity for federal income tax
purposes.
The above representations are accurate as of the date below and will
continue to be accurate through the issuance of the Trust Securities, unless you
are otherwise notified by us in writing. The undersigned understands that you
will rely on the foregoing in connection with rendering certain legal opinions,
and possesses the authority to make the representations set forth in this letter
on behalf of the Company.
Very truly yours,
FIRST BANKS, INC.
Date: September 27, 2007 By: __________________________________
Title: __________________________________
EXHIBIT C
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SIGNIFICANT SUBSIDIARIES
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First Bank
The San Francisco Company