Exhibit 4.11
PURCHASE AGREEMENT
among
FIRST BANK STATUTORY TRUST VI,
Issuer
FIRST BANKS, INC.,
Sponsor
and
BEAR, ▇▇▇▇▇▇▇ & CO. INC.,
Initial Purchaser
Dated as of June 14, 2006
PURCHASE AGREEMENT, dated as of June 14, 2006 (this "Agreement"), among
First Bank Statutory Trust VI, a statutory trust created under the laws of the
State of Delaware (the "Issuer"), First Banks, Inc., a Missouri corporation, as
Sponsor under the Trust Agreement, as defined below (the "Sponsor" and, together
with the Issuer, the "Trust Parties"), and Bear, ▇▇▇▇▇▇▇ & Co. Inc., as initial
purchaser (the "Initial Purchaser").
WHEREAS, the Issuer proposes to issue U.S. $25,000,000 capital securities
due July 7, 2036 (the "Capital Securities");
WHEREAS, the Capital Securities will be issued pursuant to an Amended and
Restated Declaration of Trust to be dated as of June 16, 2006 (the "Trust
Agreement"), among First Banks, Inc., as Sponsor, ▇▇▇▇▇ Fargo Bank, National
Association, as Institutional Trustee, ▇▇▇▇▇ Fargo Delaware Trust Company, as
Delaware Trustee, and the Administrators named therein;
WHEREAS, the Issuer has agreed not later than June 16, 2006 (the "Closing
Date"), to provide the Initial Purchaser with a copy of the Trust Agreement and
any other documents required to be delivered pursuant to the terms hereof or the
Trust Agreement;
WHEREAS, the Issuer will use the proceeds from the sale of the Capital
Securities to purchase Debentures (as defined in the Trust Agreement); and
WHEREAS, capitalized terms used herein but not otherwise defined herein
shall have the meaning ascribed thereto in the Trust Agreement.
NOW IT IS HEREBY AGREED as follows:
1. PURCHASE AND SALE.
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(a) On the terms and subject to the conditions of this Agreement
and in reliance upon the representations and warranties herein set forth, the
Issuer agrees to sell to the Initial Purchaser, and the Initial Purchaser agrees
to purchase from the Issuer, on the Closing Date referred to above, the Capital
Securities in the aggregate principal amount of $25,000,000 less any applicable
discount as set forth in the Flow of Funds Memorandum dated June 16, 2006 (the
"Discount").
(b) The Capital Securities shall be issued and sold free from all
liens, charges and encumbrances, equities and other third party rights of any
nature whatsoever, together with all rights of any nature.
2. CLOSING. On the Closing Date, delivery of and payment for the
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Capital Securities shall be made at the offices of Bear, ▇▇▇▇▇▇▇ & Co. Inc. or
such other location or locations as shall be mutually acceptable to the parties
hereto. Delivery of the Capital Securities shall be made against payment of the
purchase price therefor to the order of the Issuer in same day funds by transfer
to an account designated by the Issuer or by such other means in same day funds
as shall be acceptable to the Initial Purchaser. Such payment shall be made upon
authorization from the Initial Purchaser (such authorization to be given if the
conditions to the Initial Purchaser's obligations set forth herein are either
satisfied or waived) against delivery of the Capital Securities. The Capital
Securities will be in the form requested by the Initial Purchaser in accordance
with the terms of the Trust Agreement.
3. PAYMENT OF EXPENSES. The Sponsor agrees to pay all costs and
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expenses incident to the performance of the obligations of the Sponsor and the
Issuer under this Purchase Agreement, whether or not the transactions
contemplated herein are consummated or this Purchase Agreement is terminated,
including all costs and expenses incident to (i) the authorization, issuance,
sale and delivery of the Capital Securities and any taxes payable in connection
therewith; (ii) the fees and expenses of qualifying the Capital Securities under
the securities laws of applicable jurisdictions, and (iii) the fees and expenses
of the counsel, the accountants and any other experts or advisors retained by
the Sponsor or the Issuer.
Notwithstanding the foregoing, if the sale of the Capital Securities
provided for in this Purchase Agreement is not consummated because any condition
set forth herein to be satisfied by either the Sponsor or the Issuer is not
satisfied, because this Purchase Agreement is terminated pursuant to clause (i),
(ii), (iii) or (v) of Section 10 or because of any failure, refusal or inability
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on the part of the Sponsor or the Issuer to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder the Sponsor
will reimburse the Initial Purchaser upon demand for (i) all reasonable
out-of-pocket expenses (including the fees and all reasonable expenses of the
Trustee and special counsel retained by the Initial Purchaser) that shall have
been incurred by the Initial Purchaser in connection with the proposed purchase
and sale of the Capital Securities and (ii) any and all costs or fees directly
associated with providing the Sponsor a fixed interest rate of ____% (the "Fixed
Rate"), in advance of the issuance of the Capital Securities, for a period of
five years (the "Fixed Rate Period") from the date of issuance of the Capital
Securities (including, but not limited to, unwinding, terminating or otherwise
breaking any forward interest rate swap or similar agreement or related
commitment therefor entered into by the Initial Purchaser or any person or
entity acting on behalf thereof with respect to the Fixed Rate for the Fixed
Rate Period for the Capital Securities in advance of the issuance thereof and
the reasonable fees and expenses of any counsel engaged by the Initial Purchaser
or any person or entity acting on behalf thereof to enforce the obligations of
the Sponsor hereunder).
4. REPRESENTATIONS AND WARRANTIES. Each Trust Party hereby
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represents, warrants and agrees to and with the Initial Purchaser that, as of
the Closing Date, and as to itself only and not as to the other:
(a) with respect to the Issuer, it is duly formed and validly
existing under the laws of the State of Delaware and, with respect to the
Sponsor, and its significant subsidiaries (as defined in Rule 1-02 of Regulation
S-X) (the "Significant Subsidiaries"), each is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, in
each case, with all requisite power and authority to own or transfer, as
applicable, the Debentures, to conduct its business as required under the Trust
Agreement, this Agreement or any other documents relating to or otherwise in
connection with the issue and sale of the Capital Securities (collectively, the
"Transaction Documents") and to perform its obligations hereunder and under each
Transaction Document, and is lawfully qualified to do business and is in good
standing in those jurisdictions in which it conducts business and where the
failure to be so qualified or in good standing would have a material adverse
effect on the condition (financial or otherwise), earnings or business of such
Trust Party, whether or not occurring in the ordinary course of business, or
would otherwise be material in context of the issuance of the Capital Securities
("Material Adverse Effect");
(b) this Agreement has been duly authorized, executed and
delivered by such Trust Party and constitutes, and each of the Transaction
Documents to which such Trust Party is a party has been duly authorized by such
Trust Party and, when duly executed and delivered by the other parties thereto,
on the Closing Date, will constitute, legal, valid and binding obligations of
such Trust Party, except as such obligations may be limited by bankruptcy,
insolvency, reorganization and other similar laws affecting the rights of
creditors generally and the application of general equitable principles
(regardless of whether the issue of enforceability is considered in a proceeding
in equity or at law);
(c) neither the Issuer nor the Sponsor nor any of the
Significant Subsidiaries is in breach or violation of, or default under, with or
without notice or lapse of time or both, its corporate charter, bylaws or other
governing documents (including without limitation, the Trust Agreement);
(d) with respect to the Issuer, on the Closing Date, the
Capital Securities have been duly authorized by the Issuer and, when duly
executed, authenticated, issued and delivered in accordance with the Trust
Agreement against payment therefor as contemplated herein, will be validly
issued and represent undivided beneficial interests in the assets of the Issuer,
entitled to the benefits provided by the Trust Agreement;
(e) with respect to the Issuer, no consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the issue, sale or delivery of the
Capital Securities, except for those which have been obtained and are in full
force and effect, and no consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is required
for the consummation of the other transactions contemplated by the Transaction
Documents, except for those which have been obtained and are in full force and
effect, and except where the failure to obtain such consent, approval,
authorization, order, registration or qualification would not have a Material
Adverse Effect;
(f) the execution and delivery of the Transaction Documents, the
issue of the Capital Securities and the consummation of the other transactions
contemplated by the Transaction Documents (and compliance with the terms
thereof) do not and will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under the organizational
documents of such Trust Party; and the execution and delivery of the Transaction
Documents, the issue of the Capital Securities and the consummation of the other
transactions contemplated by the Transaction Documents (and compliance with the
terms thereof) do not and will not conflict with or result in a breach of any
indenture, trust deed, mortgage or other agreement or instrument to which such
Trust Party is a party or by which it or any of its properties is bound, or
infringe any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental body or court, domestic or foreign,
having jurisdiction over such Trust Party or any of its properties, except for
such conflicts, breaches, defaults or infringements that would not have a
Material Adverse Effect;
(g) there are no pending actions, suits or proceedings
against or affecting such Trust Party or any of its properties and, to the best
of such Trust Party's knowledge, no such suits or proceedings are threatened or
contemplated that individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect on the Issuer's issuance of the Capital
Securities;
(h) no event has occurred since June 14, 2004, which, had the
applicable Capital Securities already been issued, would reasonably be expected
to (whether or not with the giving of notice and/or the passage of time and/or
the fulfillment of any other requirement) constitute an Event of Default;
(i) neither the Issuer nor any affiliate of the Issuer nor any
person acting on behalf thereof has made offers or sales of the Capital
Securities under circumstances that would require the registration of the
Capital Securities under the U.S. Securities Act of 1933, as amended (the
"Securities Act");
(j) there are no contracts, agreements or understandings between
any of the Trust Parties or any affiliate thereof and any person granting such
person the right to require the Issuer to file a registration statement under
the Securities Act, with respect to any Capital Securities owned or to be owned
by such person;
(k) In the case of each offer or sale of Capital Securities, no
form of general solicitation or general advertising was used by the Issuer or
its representatives, including, but not limited to, advertisements, articles,
notices or other communications published in any newspaper, magazine or similar
medium or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
Neither the Issuer nor any person acting on its behalf (other than the Initial
Purchaser) has offered or sold, nor will the Issuer or any person acting on its
behalf (other than the Initial Purchaser) offer or sell directly or indirectly,
any Capital Securities or any other security in any manner that, assuming the
accuracy of the representations and warranties and the performance of the
covenants given by the Initial Purchaser, would render the issuance and sale of
any of the Capital Securities as contemplated hereby a violation of Section 5 of
the Securities Act or the registration or qualification requirements of any
state securities laws, nor has the Issuer authorized, nor will it authorize, any
person to act in such manner;
(l) The audited consolidated financial statements (including
the notes thereto) and schedules of the Sponsor and its consolidated
subsidiaries for the year ended December 31, 2005 (the "Financial Statements")
and the interim unaudited consolidated financial statements of the Sponsor and
its consolidated subsidiaries for the period ended March 31, 2006 (the "Interim
Financial Statements") provided to the Initial Purchaser are the most recent
available audited and unaudited consolidated financial statements of the Sponsor
and its consolidated subsidiaries, respectively, and fairly present in all
material respects, in accordance with generally accepted accounting principles,
the financial position of the Sponsor and its consolidated subsidiaries, and the
results of operations and changes in financial condition as of the dates and for
the periods therein specified, subject, in the case of Interim Financial
Statements, to year-end adjustments. Such consolidated financial statements and
schedules have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise noted therein). The accountants of the Sponsor who certified the
Financial Statements are independent public accountants of the Sponsor and its
Subsidiaries within the meaning of the Securities Act and the rules and
regulations thereunder as in effect on the date of this Agreement;
(m) The Sponsor's report on FR Y-9C and FR Y-9LP dated March 31,
2006, and FR Y-6 dated December 31, 2005 provided to the Initial Purchaser is
the most recent available such report and the information therein fairly
presents in all material respects the financial position of the Sponsor and its
subsidiaries;
(n) Since the respective dates of the Financial Statements, the
Interim Financial Statements and the FR Y-9C, FR Y-9LP and FR Y-6, there has
been no material adverse change or development with respect to the financial
condition or earnings of the Sponsor and its subsidiaries, taken as a whole;
(o) The Sponsor is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "Bank Holding
Company Act"), and the regulations of the Board of Governors of the Federal
Reserve System (the "Federal Reserve"), and the deposit accounts of the
Sponsor'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 proceeding for the termination of such
insurance is pending or, to the knowledge of the Sponsor, threatened;
(p) Neither the Sponsor nor any of its Significant Subsidiaries
is subject to or party to, or has received any notice or advice that any of them
may become subject to any investigation with respect to, any cease-and-desist
order, agreement, consent decree, 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 a recipient of any supervisory letter from, or 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 management or their business (each, a "Regulatory Agreement"),
nor has the Sponsor or any of its subsidiaries been advised by any Regulatory
Agency that it is considering issuing or requesting any such Regulatory
Agreement; and there is no unresolved violation, criticism or exception by any
Regulatory Agency with respect to any report or statement relating to any
examinations of the Sponsor or any of its Significant Subsidiaries which, in the
reasonable judgment of the Sponsor, is expected to result in a Material Adverse
Effect. As used herein, the term "Regulatory Agency" means any federal or state
agency charged with the supervision or regulation of depositary institutions or
holding companies of depository institutions, 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 Sponsor or its
Significant Subsidiaries;
(q) The Sponsor has no present intention to exercise its option
to defer payments of interest on the Debentures as provided in the Indenture.
The Sponsor 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; and
(r) All of the issued and outstanding capital stock of the
Sponsor has been duly authorized and validly issued and is fully paid and
nonassessable; all of the issued and outstanding capital stock of each
Significant Subsidiary of the Sponsor has been duly authorized and validly
issued, is fully paid and nonassessable and, except for preferred securities
issued by the trust, is owned by the Sponsor, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right; and none of the issued and outstanding capital stock
of the Sponsor or its Significant Subsidiaries was issued in violation of any
preemptive or similar rights arising by operation of law, under the charter,
by-laws or code of regulations of the Sponsor or any of its Significant
Subsidiaries or under any agreement to which the Sponsor or any of its
Significant Subsidiaries is a party; provided, however, that all issued and
outstanding common stock of The San Francisco Company, a wholly owned subsidiary
of Sponsor, and First Bank, a Wholly owned subsidiary of the San Francisco
Company, has been pledged to ▇▇▇▇▇ Fargo Bank, National Association as the agent
for ratable benefit of certain lenders pursuant to the terms of the Amended and
Restated Secured Credit Agreement, dated as of August 11, 2005, by and among the
Sponsor, the lenders signatory thereto and ▇▇▇▇▇ Fargo Bank, National
Association, as agent.
(s) The Sponsor is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction which
requires such qualification wherein it owns or leases properties or conducts
business, except where the failure to be so qualified would not, singularly or
in the aggregate, have a Material Adverse Effect, and holds all approvals,
authorizations, orders, licenses, certificates and permits from governmental
authorities necessary for the conduct of its business, except where the failure
to hold such approvals, authorizations, orders, licenses, certificates and/or
permits would not, singularly or in the aggregate, have a Material Adverse
Effect. Each of the Significant Subsidiaries is duly qualified to do business as
a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or leases
properties or conducts business, except where the failure to be so qualified
would not, singularly or in the aggregate, have a Material Adverse Effect, and
holds all approvals, authorizations, orders, licenses, certificates and permits
from governmental authorities necessary for the conduct of its business, except
where the failure to hold such approvals, authorizations, orders, licenses,
certificate and/or permits would not, singularly or in the aggregate, have a
Material Adverse Effect.
5. UNDERTAKINGS BY THE ISSUER. The Issuer agrees with the
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Initial Purchaser as follows:
(a) Neither the Issuer, nor any of its affiliates nor any
person authorized to act on its behalf, will engage in any directed selling
efforts with respect to the Capital Securities to any U.S. Person except
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act. Terms used in this paragraph
have the meanings given to them by Regulation S under the Securities Act.
(b) Neither the Issuer, nor any of its affiliates nor any
person authorized to act on its behalf, will make offers or sales of Capital
Securities under circumstances that would require the registration of the
Capital Securities under the Securities Act.
(c) For so long as any of the Capital Securities are outstanding
and are "restricted securities" within the meaning of Rule 144A, the Issuer will
provide or cause to be provided to any holder of Capital Securities and any
prospective purchaser of the Capital Securities designated by such a holder,
upon the request of such holder or prospective purchaser, the information
required to be provided to such holder or prospective purchaser by Rule
144A(d)(4).
(d) During the period from the date of this Agreement to the
Closing Date, the Sponsor and the Issuer shall use their best efforts to cause
their representations and warranties contained in Section 4 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.
(e) The Sponsor and the Issuer will not claim, and will actively
resist any attempts by others to claim, the benefits of any usury laws against
holders of the Capital Securities or the Debentures.
(f) Except as may be required by law, the Sponsor shall not
identify the Initial Purchaser in a press release or any other public statement
without the consent of such Initial Purchaser.
6. SELLING RESTRICTIONS. The Initial Purchaser represents and
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warrants to the Issuer that:
(a) It is an Accredited Investor (as defined in Rule 501(a) under
the Securities Act.
(b) It understands that the Capital Securities, the Debentures
or the Guarantee have not been and will not be registered under the Securities
Act and may not be offered or sold within the United States except pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. It has not offered or sold, and will not
offer or sell, the Capital Securities within the United States except to persons
whom it reasonably believes to be Qualified Institutional Buyers (as defined in
Rule 144A under the Securities Act), institutional Accredited Investors (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) or to
certain persons in transactions outside the United States in accordance with
Regulation S under the Securities Act. In connection with any offer or sale in
the United States or to or for the benefit of a U.S. Person, it will take
reasonable steps to ensure that the purchaser of such Capital Securities is
aware that such offer or sale is being made in reliance on Rule 144A or
Regulation D in a manner that would not require registration of the Capital
Securities under the Securities Act or any blue sky law of any State and that
future transfers of the Capital Securities may not be made except in compliance
with applicable securities laws.
(c) Neither it nor any person acting on its behalf has engaged
or will engage in any form of general solicitation or general advertising (as
those terms are used in Rule 502(c) of Regulation D) in connection with any
offer or sale of the Capital Securities in the United States.
(d) It will not offer or sell the Capital Securities outside the
United States, except in accordance with the representations described herein
and the restrictions set forth below:
It has offered and sold the Capital Securities, and will offer and
sell the Capital Securities, during the applicable Distribution
Compliance Period (as defined in Rule 902 of Regulation S), only in
accordance with Rule 903 or 904 of Regulation S under the Securities
Act. Accordingly, it represents and agrees that neither it, nor any of
its affiliates nor any person acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect to
the Capital Securities, and that it and they have complied and will
comply with the offering restriction requirements of Regulation S. It
agrees that, at or prior to the confirmation of sale of Capital
Securities, it shall have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that
purchases the Capital Securities through it during the applicable
Distribution Compliance Period a confirmation or notice of
substantially the following effect:
"The Capital Securities offered hereby have not been
registered under the U.S. Securities Act of 1933 (the
"Securities Act") and may not be offered or sold within the
United States or to, or for the account or benefit of,
U.S. Persons (i) as part of their distribution at any time
or (ii) until forty calendar days after the later of the
commencement of the offering of the Capital Securities or
the Closing Date, to persons other than the Initial
Purchaser or other distributors in reliance on Regulation
S, except in either case in accordance with Regulation S,
Rule 144A, Regulation D or other exemptive provisions under
the Securities Act. Terms used above have the meanings
given to them by Regulation S."
(e) It acknowledges that no action has been or will be taken by
the Issuer or any other person that would permit the offer or sale of the
Capital Securities in any jurisdiction where action to implement such offer or
sale of the Capital Securities is required. The Initial Purchaser shall not
offer or sell any Capital Securities in any jurisdiction except in compliance
with applicable law, and the Initial Purchaser agrees, at its own expense, to
comply with all such laws. The Initial Purchaser shall at its own expense obtain
any consent, approval or authorization required for it to offer or sell the
Capital Securities under the laws or regulations of any jurisdiction where it
proposes to make offers or sales of Capital Securities.
7. CONDITIONS PRECEDENT. The obligations of the Initial
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Purchaser hereunder shall be subject to the accuracy of the representations and
warranties of each Trust Party contained herein as of the date hereof, and, as
of the Closing Date (as if made on the Closing Date), to the accuracy of the
statements of each Trust Party made in any certificates delivered pursuant
hereto on such date, to the performance by each Trust Party of its obligations
hereunder, and to the following additional conditions:
(a) The Issuer shall have obtained all governmental
authorizations required in connection with the issue and sale of the Capital
Securities and the performance of its obligations hereunder and under the
Transaction Documents to which it is a party.
(b) Each Trust Party shall have furnished to the Initial
Purchaser a certificate of such Trust Party signed by, in the case of the
Issuer, an Administrator and, in the case of the Sponsor, the principal
executive, financial or accounting officer, dated the Closing Date, to the
effect that such signatory has examined this Agreement and that the
representations and warranties of such party in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and such party has performed all its
obligations and satisfied all the conditions on its part to be satisfied at or
prior to the Closing Date.
(c) The Trust Parties shall have furnished to the Initial
Purchaser the opinions of counsel for the Trust Parties, dated the Closing Date,
in substantially the form set out in Annex A and Annex B hereto, in a form
reasonably acceptable to the Initial Purchaser.
(d) The conditions precedent to the performance by the Issuer of
its obligations under the Trust Agreement shall have been satisfied or waived.
(e) Prior to the Closing Date, the Issuer shall furnish to the
Initial Purchaser such further information, certificates and documents as the
Initial Purchaser may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates referred to in or contemplated by this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Initial Purchaser and its counsel, this Agreement and all
obligations of the Initial Purchaser hereunder may be canceled by the Initial
Purchaser at, or at any time prior to, the Closing Date. Notice of such
cancellation shall be given to the Issuer in writing or by telephone or
facsimile confirmed in writing.
8. INDEMNIFICATION.
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(a) Each Trust Party agrees, jointly and severally, to indemnify
and hold harmless the Initial Purchaser and each person, if any, who controls
the Initial Purchaser within the meaning of the Securities Act, or the U.S.
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
respective affiliates, officers, directors and employees of the Initial
Purchaser and each such person (and each and all referred to in Section 8(b) as
an "indemnified party"), against any losses, claims, damages or liabilities,
joint or several, to which the Initial Purchaser or such controlling person and
the respective affiliates, officers, directors and employees of the Initial
Purchaser and each such person may become subject, under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are connected with
the execution and delivery by such Trust Party, and the consummation by such
Trust Party of the transactions contemplated by, this Agreement or any other
Transaction Document. Each Trust Party agrees, jointly and severally, to
reimburse the Initial Purchaser and each such affiliate, officer, director,
employee or controlling person for any legal or other expenses reasonably
incurred by the Initial Purchaser and each such affiliate, officer, director,
employee or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action arising out of or being connected
with the execution and delivery by such Trust Party, and the consummation by
such Trust Party of the transactions contemplated by, this Agreement or the
other Transaction Documents. This indemnity agreement will be in addition to any
liability that any of the Trust Parties may otherwise have.
(b) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof;
but the omission and/or delay to so notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party unless
such omission and/or delay caused actual prejudice to the indemnifying party; in
case any such action is brought against any indemnified party, and it notified
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may elect by
written notice, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. Counsel provided by the indemnifying party may represent
the indemnifying party as well as all indemnified parties hereunder subject to
the following provisions. Notwithstanding anything to the contrary contained
herein, such indemnified party may continue any such action on its own at its
own expense. If the defendants in any action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties that are different from or additional to or in conflict with
those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. The reasonable fees and expenses of such separate
counsel for the indemnified party shall be paid by the indemnifying party. The
indemnifying party may avoid its duty to indemnify under this Section 8 if the
indemnified party, without the prior written consent of the indemnifying party
(which consent shall not be unreasonably withheld), effects any settlement or
compromise of, or consents to the entry of any judgment in, any pending or
threatened action in respect of which any indemnifying party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnifying party from all liability on any claims that are the subject matter
of such action. The indemnifying party shall not be liable for any settlement of
any claim effected without its consent.
9. CONTRIBUTION.
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(a) In order to provide for just and equitable contribution
in circumstances under which the indemnification provided for in Section 8
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hereof is for any reason held to be unenforceable for the benefit of an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Sponsor and the
Issuer, on the one hand, and the Initial Purchaser, on the other hand, from the
offering of the Capital Securities or (ii) if the allocation provided by clause
(i) 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 Sponsor and the Issuer, on the one hand, and the
Initial Purchaser, on the other hand, in connection with the statements,
omissions or breaches, which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
(b) The relative benefits received by the Sponsor and the Issuer,
on the one hand, and the Initial Purchaser, on the other hand, in connection
with the offering of the Capital Securities shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Capital Securities (before deducting expenses) received by the Sponsor and the
Issuer and the Discount received by the Initial Purchaser bear to the aggregate
of such net proceeds and commissions.
(c) The Sponsor and the Issuer and the Initial Purchaser agree
that it would not be just and equitable if contribution pursuant to this Section
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9 were determined by pro rata allocation or by any other method of allocation
-
which does not take account of the equitable considerations referred to above in
this Section 9. The aggregate amount of losses, liabilities, claims, damages and
---------
expenses incurred by an indemnified party and referred to above in this Section
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9 shall be deemed to include any legal or other expenses reasonably incurred by
-
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement, omission or alleged omission or breach or
alleged breach.
(d) Notwithstanding any provision of this Section 9 to the
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contrary, the Initial Purchaser shall not be required to contribute any amount
in excess of the Discount.
(e) No person 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 guilty of such fraudulent
misrepresentation.
(f) For purposes of this Section 9, the Initial Purchaser, each
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person, if any, who controls the Initial Purchaser within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act and the respective
partners, directors, officers, employees and agents of the Initial Purchaser or
any such controlling person shall have the same rights to contribution as the
Initial Purchaser, while each officer and director of the Sponsor, each trustee
of the Issuer and each person, if any, who controls the Sponsor within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Sponsor and the Issuer.
10. TERMINATION. This Agreement shall be subject to termination
-----------
in the absolute discretion of the Initial Purchaser, by notice given to the
Sponsor and the Issuer prior to delivery of and payment for the Capital
Securities, if prior to such time (i) a downgrading shall have occurred in the
rating accorded the Sponsor's debt securities or preferred stock by any
"nationally recognized statistical rating organization," as that term is used by
the Commission in Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, or such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Sponsor's debt
securities or preferred stock, (ii) the Issuer shall be unable to sell and
deliver to the Initial Purchaser at least $25,000,000 stated liquidation value
of Capital Securities, (iii) the Sponsor or any of its subsidiaries that is an
insured depository institution shall cease to be "adequately-capitalized" within
the meaning of 12 U.S.C. ss.1831 and applicable regulations adopted thereunder,
or any formal administrative or judicial action is taken by any appropriate
regulatory agency against the Sponsor or any such insured subsidiary for unsafe
and unsound practices or violations of law, (iv) a suspension or material
limitation in trading in securities generally shall have occurred on the New
York Stock Exchange, (v) a suspension or material limitation in trading in any
of the Sponsor's securities shall have occurred on the exchange or quotation
system upon which the Sponsor's securities are traded, if any, (vi) a general
moratorium on commercial banking activities shall have been declared either by
federal or Delaware authorities or (vii) there shall have occurred any outbreak
or escalation of hostilities, or declaration by the United States of a national
emergency or war or other calamity or crisis, including acts of terrorism, the
effect of which on financial markets is such as to make it, in the Initial
Purchaser's judgment, impracticable or inadvisable to proceed with the offering
or delivery of the Capital Securities.
11. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. The
-----------------------------------------------------
representations, warranties, agreements and undertakings in this Agreement shall
continue in full force and effect despite completion of the arrangements for the
purchase and issue of the Capital Securities or any investigation made by or on
behalf of the Initial Purchaser.
12. NOTICES.
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(a) Any communication shall be given by letter or facsimile, in
the case of notices to the Issuer, to it at:
First Bank Statutory Trust VI
c/o First Banks, Inc.
▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
in the case of notices to the Sponsor, to it at:
First Banks, Inc.
▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and in the case of notices to the Initial Purchaser, to it at:
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Asset Backed Securities
(b) Any such communication shall take effect, in the case of a
letter, at the time of delivery and in the case of telex, at the time of
dispatch.
(c) Any communication not by telex shall be confirmed by
letter but failure to send or receive the letter of confirmation shall not
invalidate the original communication.
13. GOVERNING LAW. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York without reference
to its conflict of laws provisions.
14. JURISDICTION. Each of the parties hereto hereby irrevocably
------------
submits to the non-exclusive jurisdiction of any New York State or United States
federal court sitting in The City and County of New York over any suit, action
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby which is brought by the Initial Purchaser, the Issuer or the
Sponsor and irrevocably waives, to the fullest extent it may effectively do so,
any objection which it may now or hereafter have to the laying of venue of any
such proceeding.
15. NO BANKRUPTCY PETITION. The Initial Purchaser covenants and
----------------------
agrees that, prior to the date which is one year and one day after the payment
in full of all Capital Securities issued by the Issuer, it will not institute
against, or join any other Person in instituting against, the Issuer any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any Federal or state bankruptcy or similar law. The
provisions of this Section shall survive termination of this Agreement for any
reason whatsoever.
16. SUCCESSORS. This Agreement will inure to the benefit of and
----------
be binding upon the parties hereto and their respective successors and assigns,
and no other person will have any right or obligations hereunder.
17. COUNTERPARTS. This Agreement may be executed in any number
------------
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
hereinabove set forth.
FIRST BANKS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Title: President & Chief Executive Officer
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FIRST BANK STATUTORY TRUST VI
By: FIRST BANKS, INC., as Sponsor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Title: President & Chief Executive Officer
------------------------------------------
BEAR, ▇▇▇▇▇▇▇ & CO. INC., as Initial Purchaser
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Title: Senior Managing Director
------------------------------------------
ANNEX A
Pursuant to Section 7(c) of the Purchase Agreement, special counsel for
the Offerors shall deliver an opinion in substantially the following form:
1. The Company has been duly incorporated and 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, and the regulations thereunder of the Federal Reserve, and the
deposit accounts of the Company's Significant Subsidiaries are insured by the
FDIC to the fullest extent permitted by law and the rules and regulations of the
FDIC, and, to the best of our knowledge no proceeding for the termination of
such insurance is pending or threatened. Each of the Significant Subsidiaries
has been duly incorporated as a bank or other corporation and is validly
existing and in good standing under the laws of its jurisdiction of
incorporation. Each of the Company and the Significant Subsidiaries has full
corporate power and authority (i) to own or lease its properties which are
material to its business as such business is currently conducted and (ii) to
conduct its business as such business is currently conducted in all material
respects.
2. The issuance, sale and delivery of the Debt Securities and the
Capital Securities in accordance with the terms and conditions of the Purchase
Agreement, the Debenture Subscription Agreement, and the other Transaction
Documents have been duly authorized by all necessary actions of the Company's
Board of Directors (the "Board"). The Debt Securities and the ----- Capital
Securities, when all consideration for the issuance and sale of the Debt
Securities and Capital Securities has been received by the Company and the Trust
as contemplated by the Indenture and the Purchase Agreement and when delivered
in accordance with the Transaction Documents, will be duly and validly issued,
fully paid and nonassessable.
3. Neither the issue and sale of the Capital Securities or the Debt
Securities, the execution, delivery and performance of the Transaction Documents
by the Company or the Trust and the consummation of any other of the
transactions of the Company or the Trust contemplated in any Transaction
Document nor the fulfillment of the terms thereof will (i) conflict with, result
in a breach or violation of, or constitute a default under, any rule or
regulation of the United States or the State of Missouri applicable to the
Company or the Trust, or (ii) conflict with, constitute a breach or violation
of, or constitute a default under, with or without notice or lapse of time or
both, any of the terms, provisions or conditions of (A) the Articles of
Incorporation, Certificate of Incorporation or corporate charter, Bylaws or
similar governing documents of the Company or any of the Significant
Subsidiaries, (B) to 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 any of the Significant
Subsidiaries is a party or otherwise bound or (C) to our knowledge, any order,
decree, judgment, franchise, license, permit, rule or regulation of any court,
arbitrator, government, or governmental agency or instrumentality, domestic or
foreign, having jurisdiction over the Company or any of the Significant
Subsidiaries which, in the case of any of (i) or (ii) above, would have a
material adverse effect upon the consummation of the transactions of the Company
or the Trust contemplated in the Purchase Agreement and the other Transaction
Documents or the financial condition or earnings of the Company, the Trust and
the Significant Subsidiaries on a consolidated basis.
4. The Company has all requisite corporate power to enter into and
perform its obligations under the Purchase Agreement, which has been duly and
validly authorized, executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms.
5. Each of the Indenture and the Guarantee Agreement has been duly
authorized, executed and delivered by the Company, and (assuming each such
document is duly authorized, executed and delivered by the respective trustees)
is a valid and legally binding obligation of the Company enforceable against the
Company in accordance with its terms.
6. The Declaration has been duly authorized, executed and delivered
by the Company and the Administrators.
7. The Debt Securities have been duly authorized, executed and
delivered by the Company, are entitled to the benefits of the Indenture and when
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Trust, will constitute legal, valid and binding
obligations of the Company enforceable against the Company in accordance with
their terms.
8. Assuming the truth and accuracy of the representations and
warranties and compliance with the agreements of the Purchaser contained in the
Purchase Agreement, and assuming that the Capital Securities and the Debt
Securities are issued and sold in the manner contemplated by, and in accordance
with, the Purchase Agreement and the other Transaction Documents, no
authorization, approval, consent or order of any court or governmental agency or
body, or any other regulatory agency with jurisdiction over the Company or the
Trust is required under the laws of the State of Missouri for the consummation
of the transactions of the Company or the Trust contemplated in the Transaction
Documents, including the purchase and sale of the Capital Securities by the
Purchaser and the purchase of the Debt Securities by the Trust except (i) such
authorizations, approvals, consents or orders as have been obtained, and (ii)
the filing of a Form D with the Securities and Exchange Commission and with the
Securities Division of the Missouri Secretary of State (as to which we express
no opinion).
9. Assuming the truth and accuracy of the representations and
warranties and compliance with the agreements of the Purchaser contained in the
Purchase Agreement, and assuming that the Capital Securities, the Debt
Securities and the Common Securities are issued and sold in the manner
contemplated by, and in accordance with, the Purchase Agreement and the other
Transaction Documents, (i) it is not necessary in connection with the offering,
sale and delivery of the Capital Securities, the Debt Securities and the Common
Securities to register the same under the Securities Act of 1933, as amended,
under the circumstances contemplated in the Purchase Agreement and the other
Transaction Documents and (ii) the Indenture, Declaration and Guarantee
Agreement are not required to be qualified under the Trust Indenture Act of
1939.
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 of the Company and the Trust described in the Purchase Agreement
and the other Transaction Documents, 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.
The opinions expressed above are subject to the following additional
qualifications:
A. Each of our opinions regarding the enforceability of the Purchase
Agreement and the other Transaction Documents may be limited by (1)
bankruptcy, insolvency, reorganization, receivership, avoidance
statutes, fraudulent conveyance and transfer acts, voidable preference
statutes, moratorium or other laws now or hereafter in effect
affecting creditors' rights (including, but not limited to, the
fraudulent conveyance laws of the State of Missouri and the United
States ("Federal") Bankruptcy Code), (2) general equitable principles
-------
(regardless of whether enforcement is sought in equity or at law),
limitations on the availability of equitable remedies (such as
specific performance), and similar principles governing
enforceability, such as but not necessarily limited to standards of
commercial reasonableness, and (3) applicable procedural requirements
of applicable state or Federal law. In addition, provisions for
indemnification, contribution or exculpation of parties may be
unenforceable or limited to the extent that they (i) violate public
policy considerations, (ii) provide for indemnification or
contribution in favor of, or exculpation of, parties for violation of
securities law or (iii) provide for indemnification or contribution in
favor of, or exculpation of, parties with respect to such parties'
willful misconduct or gross negligence.
B. The enforceability of the Purchase Agreement and the other Transaction
Documents is subject to (1) the effect of generally applicable rules
or law that limit or deny the enforceability of provisions (i)
purporting to waive defenses or rights or the obligations of good
faith, fair dealing, diligence and reasonableness; or (ii) purporting
to authorize a party to take discretionary independent actions for the
account of, or as agent or attorney-in-fact for, the Company under the
Purchase Agreement or any of the other Transaction Documents; and (2)
the effect of generally applicable rules of law that may, where a
portion of the contract may be unenforceable, limit the enforceability
of the balance of the contract to circumstances in which the
unenforceable portion is not an essential part of the transaction or
contract.
C. We express no opinion as to the enforceability of (i) any contractual
provision which either directly or indirectly limits or tends to limit
the time in which any suit or action may be instituted by a party;
(ii) any contractual provision which requires a party to execute and
deliver additional agreements or instruments other than agreements or
instruments which are limited in effect to effectuating the express
terms of the Purchase Agreement or another Transaction Document and do
not expand or modify such terms; (iii) any contractual provision
whereby a party or parties submit to the jurisdiction of a particular
court or forum for the adjudication of disputes or waive any claim,
defense or right of appeal based upon any lack of jurisdiction,
inconvenient forum, venue or the like; (iv) any consent of a party to
service of process upon it in a manner that does not satisfy the
requirements of applicable law; (v) any waiver of a party of its right
to a jury trial; and (vi) any contractual provision stating that the
Purchase Agreement or any of the other Transaction Documents or the
obligations, rights or remedies of the parties thereunder shall be
governed by or construed or determined in accordance with the laws of
the State of New York.
D. The enforceability of any provision of the Purchase Agreement or any
of the other Transaction Documents which purports to be a guarantee of
the payment or performance of the obligations of another person
("guaranteed obligations"), including, without limitation, the
applicable provisions of the Guarantee Agreement, is subject to the
effect of generally applicable rules of law that may discharge the
guarantor to the extent that (i) action or inaction by a beneficiary
of the guaranteed obligations impairs the value of collateral securing
guaranteed obligations, if any, to the detriment of such guarantor or
(ii) the guaranteed obligations are materially modified without the
consent of the guarantor.
E. With respect to the enforceability of the Transaction Documents by
▇▇▇▇▇ Fargo Delaware Trust Company and ▇▇▇▇▇ Fargo Bank, National
Association (collectively, "▇▇▇▇▇ Fargo") against the Company, in the
-----------
event that the actions of ▇▇▇▇▇ Fargo pursuant to the Transaction
Documents or any related document or instrument constitute acting as a
trustee, executor, administrator, guardian or in any other like
fiduciary capacity, the provisions of Mo. Rev. Stat. ss. 362.600 could
prohibit ▇▇▇▇▇ Fargo from so acting in the State of Missouri, in which
event the persons or entities on whose behalf ▇▇▇▇▇ Fargo acts in such
capacity would be required to appoint or seek court appointment of a
successor to ▇▇▇▇▇ Fargo who is authorized to act in such capacity
under ss. 362.600.
F. With respect to the recovery of attorneys' fees under the Transaction
Documents, the provisions of Mo. Rev. Stat. ss. 408.092 apply to the
right to recover attorneys' fees in connection with a "credit
agreement" (as defined in Mo. Rev. Stat. ss. 432.045.1) and reads in
pertinent part as follows:
Notwithstanding any other provision of law to the
contrary, attorneys' fees are permitted to enforce a
credit agreement provided the enforcing attorney is
a licensed member of the Missouri Bar or is authorized
to practice law in Missouri, and such fees meet one of
the following requirements:
(1) Such fees are included in a written credit agreement,
and are not otherwise prohibited by law; or
(2) Such fees do not exceed fifteen percent of the
outstanding credit balance in default, provided such credit was
extended by a for-profit business or credit union.
At the court's discretion, additional fees may be
awarded to the attorney for the prevailing party.
A "credit agreement" is defined in Mo. Rev. Stat. ss.
432.045.1 as "an agreement to lend or forebear
repayment of money, to otherwise extend credit, or to
make other financial accommodation."
G. Our opinions are given as of the date hereof, and we assume no
obligation to update or supplement our opinions in response to
subsequent changes in the law (including those that have retroactive
effect) or future events or circumstances affecting the transactions
contemplated under the Purchase Agreement.
H. The opinions expressed in the first two sentences of opinion paragraph
1 of this opinion letter are 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 letter(s) of Potter ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP with respect to matters of Delaware law addressed therein, (ii)
assumed, with your approval and without rendering any opinion to such effect,
that to the extent applicable and material to the opinions expressed in this
opinion letter, the laws of the State of New York are substantively identical to
the laws of the State of Missouri, without regard to conflict of law provisions
and (iii) assumed, with your approval and without rendering any opinion to such
effect, that the Trust was duly created and is validly existing in good standing
as a statutory trust under the Delaware Statutory Trust Act.
The opinions expressed herein are rendered to you solely pursuant
to Section 7(c) of the Purchase Agreement and have been provided at the
Company's request. As such, they may be relied upon by you only and may not be
used or relied upon by you for any other purpose or by any other person for any
purpose whatsoever without our prior written consent. We do, however, consent to
DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP relying upon this opinion to the extent
necessary for it to deliver an opinion as to the enforceability of the
Transaction Documents under New York law.
The Opinion is to be governed by New York law.
ANNEX B
Pursuant to Section 7(c) of the Purchase Agreement, tax counsel for
the Offerors shall deliver an opinion in substantially the following form:
It is our opinion that, under current law and assuming the performance
of the Transaction Documents in accordance with the terms described therein, the
Subordinated Debt Securities will be treated for United States federal income
tax purposes as indebtedness of the Company.
It is our opinion that the Trust will be classified for United States
federal income tax purposes as a grantor trust and not as an association taxable
as a corporation.
