COMMUNITY BANCORP. 12,500 Capital Securities Fixed/Floating Rate Capital Securities (Liquidation Amount $1,000.00 per Capital Security) PLACEMENT AGREEMENT
Exhibit
10.2
COMMUNITY
BANCORP.
12,500
Capital Securities
Fixed/Floating
Rate Capital Securities
(Liquidation
Amount $1,000.00 per Capital Security)
____________________
October 30,
2007
FTN
Financial Capital Markets
000
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxx 00000
Xxxxx,
Xxxxxxxx & Xxxxx, Inc.
000
0xx
Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Community
Bancorp., a Vermont corporation (the “Company”), and its financing subsidiary,
CMTV Statutory Trust I, 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.
1.1. Introduction.
The
Offerors propose to issue and sell at the Closing (as defined in
Section 2.3.1 hereof) 12,500 of the Trust’s Fixed/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 this reference.
1.2. Operative
Agreements.
The
Capital Securities shall be fully and unconditionally guaranteed on a
subordinated basis by the Company with respect to distributions and amounts
payable upon liquidation, redemption or repayment (the “Guarantee”) pursuant and
subject to the Guarantee Agreement (the “Guarantee Agreement”), to be dated as
of the Closing Date and executed and delivered by the Company and Wilmington
Trust Company (“WTC”), as trustee (the “Guarantee Trustee”), for the benefit
from time to time of the holders of the Capital Securities. The
entire proceeds from the sale by the Trust to the holders of the Capital
Securities shall be combined with the entire proceeds 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 $12,887,000.00 in principal amount of the
Fixed/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 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 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.
2.1. Exclusive
Rights; Purchase Price.
From
the
date hereof until the Closing Date (which date may be extended by mutual
agreement of the Offerors and the Placement Agents), the Offerors hereby grant
to the Placement Agents the exclusive right to arrange for the sale of the
Capital Securities to the Purchaser at a purchase price of $1,000.00 per Capital
Security.
2.2. Subscription
Agreement.
The
Offerors hereby agree to evidence their acceptance of the subscription by
countersigning a copy of the Subscription Agreement and returning the same
to
the Placement Agents.
2.3. Closing
and Delivery of Payment.
2.3.1. Closing;
Closing Date.
The
sale
and purchase of the Capital Securities by the Offerors to the Purchaser shall
take place at a closing (the “Closing”) at the offices of Xxxxx, Xxxx &
Xxxxxxxx, X.X., at 10:00 a.m. (St. Louis time) on October 31,
2007, or such other business day as may be agreed upon by the Offerors and
the
Placement Agents (the “Closing Date”); provided, however, that in
no event shall the Closing Date occur later than November 7, 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 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 certificate representing 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 or the sale of the Capital Securities is
consummated, the Company hereby covenants and agrees that it shall pay or cause
to be paid (directly or by reimbursement) all reasonable costs and expenses
incident to the performance of the obligations of the Offerors under this
Agreement, including all fees, expenses and disbursements of counsel and
accountants for the Offerors; all reasonable expenses incurred by the Offerors
incident to the preparation, execution and delivery of the Trust Agreement,
the
Indenture, and the Guarantee; and all other reasonable costs and expenses
incident to the performance of the obligations of the Company hereunder and
under the Trust Agreement.
2.5. Failure
to Close.
If
any of
the conditions to the Closing specified in this Agreement shall not have been
fulfilled to the satisfaction of the Placement Agents or if the Closing shall
not have occurred on or before 10:00 a.m. (St. Louis time) on
November 7, 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 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 Placement Agents on the Closing Date shall
be subject to the accuracy, at and as of the Closing Date, of the
representations and warranties of the Offerors contained in this Agreement,
to
the accuracy, at and as of the Closing Date, of the statements of the Offerors
made in any certificates pursuant to this Agreement, to the performance by
the
Offerors of their respective obligations under this Agreement, to compliance,
at
and as of the Closing Date, by the Offerors with their respective agreements
herein contained, and to the following further conditions:
3.1. Opinions
of Counsel.
On
the
Closing Date, the Placement Agents shall have received the following favorable
opinions, each dated as of the Closing Date: (a) from Xxxxxxx
Xxxxx Xxxxxxxxx & Xxxxxxx PC, 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 reference, (b) from Xxxxxxxx, Xxxxxx & 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 incorporated herein by this
reference and (c) from Xxxxx, Xxxx & Xxxxxxxx, X.X., special tax
counsel to the Offerors, and addressed to the Placement Agents and the Offerors,
addressing the items set forth on Exhibit B-3 attached hereto and
incorporated herein by this reference, subject to the receipt by Xxxxx, Rice
& Xxxxxxxx, X.X. of a representation letter from the Company in the form set
forth in Exhibit B-3 completed in a manner reasonably satisfactory
to Xxxxx, Rice & Xxxxxxxx, X.X. (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 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 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
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 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 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 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 Placement Agents an executed copy of
this
Agreement.
4.2. Fulfillment
of Other Obligations.
The
Placement Agents shall have fulfilled all of their other obligations and duties
required to be fulfilled under this Agreement prior to or at the
Closing.
Section
5. Representations
and Warranties of the Offerors.
Except
as
set forth on the Disclosure Schedule (as defined in Section 11.1) attached
hereto, if any, the Offerors jointly and severally represent and warrant to
the
Placement Agents and the Purchaser as of the date hereof and as of the Closing
Date as follows:
5.1. Securities
Law Matters.
(a)
Neither
the Company nor the Trust, nor any of their “Affiliates” (as defined in
Rule 501(b) of Regulation D under the Securities Act
(“Regulation D”)), nor any person acting on any of their behalf has,
directly or indirectly, made offers or sales of any security, or solicited
offers to buy any security, under circumstances that would require the
registration under the Securities Act of any of the Capital Securities, the
Guarantee or the Debentures (collectively, the “Securities”) or any other
securities to be issued, or which may be issued, by 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
Trust
has been duly created and is validly existing in good standing as a statutory
trust under the Delaware Statutory Trust Act (the “Statutory Trust Act”) with
the power and authority to own property and to conduct the business it transacts
and proposes to transact and to enter into and perform its obligations under
the
Operative Documents. The Trust is duly qualified to transact business
as a foreign entity and is in good standing in each jurisdiction in which such
qualification is necessary, except where the failure to so qualify or be in
good
standing would not have a material adverse effect on the Trust. The
Trust is not a party to or otherwise bound by any agreement other than the
Operative Documents. The Trust is and will, under current law, be
classified for federal income tax purposes as a grantor trust and not as an
association taxable as a corporation.
5.3. Trust
Agreement.
The
Trust
Agreement has been duly authorized by the Company and, on the Closing Date,
will
have been duly executed and delivered by the Company and the Administrators
of
the Trust, and, assuming due authorization, execution and delivery by the
Delaware Trustee and the Institutional Trustee, will be a valid and binding
obligation of the Company and such Administrators, enforceable against them
in
accordance with its terms, subject to (a) applicable bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation and other
laws
relating to or affecting creditors’ rights generally, and (b) general
principles of equity (regardless of whether considered and applied in a
proceeding in equity or at law) (“Bankruptcy and Equity”). Each of
the Administrators of the Trust is an employee or a director of the Company
or
of a financial institution subsidiary of the Company and has been duly
authorized by the Company to execute and deliver the Trust
Agreement.
5.4. Guarantee
Agreement and the Indenture.
Each
of
the Guarantee and the Indenture has been duly authorized by the Company and,
on
the Closing Date will have been duly executed and delivered by the Company,
and,
assuming due authorization, execution and delivery by the Guarantee Trustee,
in
the case of the Guarantee, and by the Indenture Trustee, in the case of the
Indenture, will be a valid and binding obligation of the Company enforceable
against it in accordance with its terms, subject to Bankruptcy and
Equity.
5.5. Capital
Securities and Common Securities.
The
Capital Securities and the Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered against payment therefor on
the
Closing Date to the 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 Company and, at the Closing Date,
will have been duly executed and delivered to the Indenture Trustee for
authentication in accordance with the Indenture, and, when authenticated in
the
manner provided for in the Indenture and delivered against payment therefor
by
the Trust, will constitute valid and binding obligations of the Company entitled
to the benefits of the Indenture enforceable against the Company in accordance
with their terms, subject to Bankruptcy and Equity.
5.7. Power
and Authority.
This
Agreement has been duly authorized, executed and delivered by the Company and
the Trust and constitutes the valid and binding obligation of the Company and
the Trust, enforceable against the Company and the Trust in accordance with
its
terms, subject to Bankruptcy and Equity.
5.8. No
Defaults.
The
Trust
is not in violation of the Trust Agreement or, to the knowledge of the
Administrators, any provision of the Statutory Trust Act. The
execution, delivery and performance by the Company or the Trust of this
Agreement or the Operative Documents to which it is a party, and the
consummation of the transactions contemplated herein or therein and the 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
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Vermont, with all requisite corporate power
and
authority to own its properties and conduct the business it transacts and
proposes to transact, and is duly qualified to transact business and is in
good
standing as a foreign corporation in each jurisdiction where the nature of
its
activities requires such qualification, except where the failure of the Company
to be so qualified would not, singly or in the aggregate, have a Material
Adverse Effect.
5.10. Subsidiaries
of the Company.
Each
of
the Company’s significant subsidiaries (as defined in Section 1-02(w) of
Regulation S-X to the Securities Act (the “Significant Subsidiaries”)) is listed
in Exhibit C attached hereto and incorporated herein by this
reference. Each Significant Subsidiary has been duly organized and is
validly existing and in good standing under the laws of the jurisdiction in
which it is chartered or organized, with all requisite power and authority
to
own its properties and conduct the business it transacts and proposes to
transact, and is duly qualified to transact business and is in good standing
as
a foreign entity in each jurisdiction where the nature of its activities
requires such qualification, except where the failure of any such Significant
Subsidiary to be so qualified would not, singly or in the aggregate, have a
Material Adverse Effect. All of the issued and outstanding shares of
capital stock of the Significant Subsidiaries (a) have been duly authorized
and are validly issued, (b) are fully paid and nonassessable, and
(c) are wholly owned, directly or indirectly, by the Company free and clear
of any security interest, mortgage, pledge, lien, encumbrance, restriction
upon
voting or transfer, preemptive rights, claim, equity or other
defect.
5.11. Permits.
The
Company and each of its subsidiaries (as defined in 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 nor any of its Subsidiaries is in violation of its respective
articles or certificate of incorporation, charter or by-laws or similar
organizational documents or in default in the performance or observance of
any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which either the Company or any of its Subsidiaries is a party,
or
by which it or any of them may be bound or to which any of the property or
assets of the Company or any of its Subsidiaries is subject, the effect of
which
violation or default in performance or observance would have, singly or in
the
aggregate, a Material Adverse Effect.
5.13. Holding
Company Registration and Deposit
Insurance.
The
Company is duly registered (i) as a bank holding company or financial
holding company under the Bank Holding Company Act of 1956, as amended, and
the
regulations of the Board of Governors of the Federal Reserve System (the
“Federal Reserve”) or (ii) as a savings and loan holding company under the
Home Owners’ Loan Act of 1933, as amended, and the regulations of the Office of
Thrift Supervision (the “OTS”), and the deposit accounts of the Company’s
Subsidiary depository institutions are insured by the Federal Deposit Insurance
Corporation (“FDIC”) to the fullest extent permitted by law and the rules and
regulations of the FDIC, and no proceedings for the termination of such
insurance are pending or threatened.
5.14. Financial
Statements.
(a)
The
consolidated balance sheets of the Company and all of its Subsidiaries as of
December 31, 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 Financial Statements are
independent public accountants of the Company and its Subsidiaries within the
meaning of the Securities Act and the rules and regulations
thereunder.
5.15. Exchange
Act Reporting.
The
reports filed with the Securities and Exchange Commission (the “Commission”) by
the Company under the Securities Exchange Act of 1934, as amended (the “1934
Act”) and the regulations thereunder at the time they were filed with the
Commission complied as to form in all material respects with the requirements
of
the 1934 Act and such reports did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in which they
were
made, not misleading.
5.16. Regulatory
Enforcement Matters.
Neither
the Company nor any of its Subsidiaries is subject or is party to, or has
received any notice or advice that any of them may become subject or party
to,
any investigation with respect to, any cease-and-desist order, agreement,
consent agreement, memorandum of understanding or other regulatory enforcement
action, proceeding or order with or by, or is a party to any commitment letter
or similar undertaking to, or is subject to any directive by, or has been since
January 1, 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)
Xxxxx,
Xxxxxxxx & Xxxxx, 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. Xxxxx, Xxxxxxxx & Xxxxx, 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 Xxxxx, Xxxxxxxx & Xxxxx,
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.
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, or the terms and conditions of this Agreement or the
Operative Documents. 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 § 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
000
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxx 00000
Telecopier: 000-000-0000
Telephone: 000-000-0000
Attention: Xxxxx
X. Xxxxxxx
and
Xxxxx,
Xxxxxxxx & Xxxxx, Inc.
000
0xx
Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telecopier: 000-000-0000
Telephone: 000-000-0000
Attention: Xxxxxxxx
Xxxxxxxx, General Counsel
with
a
copy to:
Xxxxx,
Xxxx & Xxxxxxxx, X.X.
000
Xxxxx
Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx,
Xxxxxxxx 00000
Telecopier: 000-000-0000
Telephone: 000-000-0000
Attention: Xxxxxx
X. Xxx, Esq.
and
Sidley
Austin LLP
000
0xx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telecopier: 000-000-0000
Telephone: 000-000-0000
Attention: Xxxxxxx
Xxxxxx, Esq.
if
to the
Offerors, to:
Community
Bancorp.
0000
X.X.
Xxxxx #0
Xxxxx,
Xxxxxxx 00000
Telecopier: 000-000-0000
Telephone: 000-000-0000
Attention: Xxxxxxx X.
Xxxxx
with
a
copy to:
Xxxxxxx
Xxxxx Xxxxxxxxx & Xxxxxxx PC
000
Xxxxxx Xxxxxx
Xx.
Xxxxxxxxx, Xxxxxxx 00000
Telecopier: 000-000-0000
Telephone: 000-000-0000
Attention: Xxxxxx
Xxxxxxxxx, 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,
COMMUNITY
BANCORP.
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By:
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/s/ Xxxxxxx X. Xxxxx |
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Name:
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Xxxxxxx X. Xxxxx |
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Title:
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Chairman & CEO |
CMTV
STATUTORY TRUST I
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By:
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/s/ Xxxxxxx X. Xxxxx |
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Name:
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Xxxxxxx X. Xxxxx |
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Title:
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Administrator
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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
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By:
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/s/ Xxxxx X. Xxxxxxx |
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Name:
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Xxxxx X. Xxxxxxx |
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Title:
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Senior Vice President |
XXXXX,
XXXXXXXX & XXXXX, INC.,
a
New York corporation, as a Placement Agent
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By:
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/s/ Xxxxx X. Xxxxx |
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Name:
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Xxxxx X. Xxxxx |
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Title:
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Managing Director |
EXHIBIT
A
FORM
OF SUBSCRIPTION AGREEMENT
CMTV
STATUTORY TRUST I
COMMUNITY
BANCORP.
SUBSCRIPTION
AGREEMENT
October 31,
2007
THIS
SUBSCRIPTIONAGREEMENT (this “Agreement”) made among
CMTV Statutory Trust I (the “Trust”), a statutory trust created under the
Delaware Statutory Trust Act (Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. §§ 3801, et seq.), Community Bancorp., a Vermont
corporation, with its principal offices located at 0000 X.X. Xxxxx #0, Xxxxx,
Xxxxxxx 00000 (the “Company” and, collectively with the Trust, the
“Offerors”), and First Tennessee Bank National Association (the
“Purchaser”).
RECITALS:
A. The
Trust
desires to issue 12,500 of its Fixed/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 Fixed/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:
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ARTICLE
I
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PURCHASE
AND SALE OF CAPITAL SECURITIES
1.1. Upon
the
execution of this Agreement, the Purchaser hereby agrees to purchase from the
Trust 12,500 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 October 31, 2007, or such other business day as may be designated
by the Purchaser, but in no event later than November 7, 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 October 30, 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.
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ARTICLE
II
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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”)) 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”) 00-00, XXXX 00-0, XXXX
91-38, XXXX 00-00, XXXX 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 that 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.
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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:
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To
the Offerors:
|
Community
Bancorp.
|
|
0000
X.X. Xxxxx #0
|
|
|
Xxxxx,
Xxxxxxx 00000
|
|
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Attention: Xxxxxxx X.
Xxxxx
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Fax: 000-000-0000
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|
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To
the Purchaser:
|
First
Tennessee Bank National Association
|
|
000
Xxxxxxxxx Xxxx, Xxxxx 000
|
|
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Xxxxxxx,
Xxxxxxxxx 00000
|
|
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Attention: Xxxxx
Xxxx
|
|
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Fax: 000-000-0000
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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
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By:
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|
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Name:
|
|
|
Title:
|
COMMUNITY
BANCORP.
|
By:
|
|
|
Name:
|
|
|
Title:
|
CMTV
STATUTORY
TRUST I
|
By:
|
|
|
Name:
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|
|
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 the 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.
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The
initial term of this Agreement shall be one year (the “Initial
Term”). Unless FTN Financial Capital Markets or Xxxxx, Xxxxxxxx
& Xxxxx, 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.
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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.
(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 observe 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.
(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
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Attention: Xxxxx
Xxxxxxxxx -
Corporate Trust Administration
Fax: 000-000-0000
12. Miscellaneous.
(a) Binding
Effect. This Agreement shall be binding upon the 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:
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/s/
Xxxxxxxxxxx X. Xxxxxxxxx
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Print
Name:
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Xxxxxxxxxxx
X. Xxxxxxxxx
|
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Title:
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Financial
Services Officer
|
EXHIBIT
A TO MASTER CUSTODIAN AGREEMENT
FORM
OF JOINDER AGREEMENT
October 31,
2007
This
Joinder Agreement (this “Agreement”) is entered into as of October 31, 2007
by First Tennessee Bank National Association (the “Purchaser”) and CMTV
Statutory Trust I (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:
CMTV
Statutory Trust I
c/o
Community Bancorp.
0000
X.X.
Xxxxx #0
Xxxxx,
Xxxxxxx 00000
Attention: Xxxxxxx X.
Xxxxx
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
000
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxx 00000
Attention: Xxxxx
Xxxx
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.
CMTV
STATUTORY
TRUST I
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By:
|
|
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Name:
|
|
|
Title:
|
Administrator
|
FIRST
TENNESSEE BANK
NATIONAL ASSOCIATION
|
By:
|
|
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Name:
|
|
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Title:
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EXHIBIT B
TO MASTER CUSTODIAN AGREEMENT
FORM
OF TRANSFER NOTICE
[DATE]
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Attention: Corporate
Trust Administration
Dear
Sir
or Madam:
The
undersigned hereby notifies you of the transfer of [________] of the Capital
Securities of CMTV Statutory Trust I, 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 October 30, 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 October 31,
2007 among the Trustee, Community Bancorp. 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 [_____________].
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FIRST
TENNESSEE BANK NATIONAL
ASSOCIATION
|
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By:
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Name:
|
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Title:
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cc: Community
Bancorp.
Wilmington
Trust Company, as
Trustee
EXHIBIT
B-1
FORM
OF COMPANY COUNSEL OPINION
October 31,
2007
|
First
Tennessee Bank National Association
000
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxx 00000
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
|
FTN
Financial Capital Markets
000
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxx 00000
Xxxxx,
Xxxxxxxx & Xxxxx, Inc.
000
0xx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Ladies
and Gentlemen:
We
have
acted as counsel to Community Bancorp. (the “Company”), a Vermont corporation in
connection with a certain Placement Agreement, dated October 30, 2007, (the
“Placement Agreement”), between the Company and CMTV Statutory Trust I (the
“Trust”), on one hand, and FTN Financial Capital Markets and Xxxxx, Xxxxxxxx
& Xxxxx, 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”), $12,500,000.00 aggregate principal
amount of Fixed/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 Vermont.
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
Vermont 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 Vermont 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 Xxxxxxxx, Xxxxxx & 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 Vermont, 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: CMTV
Statutory Trust I
Ladies
and Gentlemen:
We
have acted as special Delaware
counsel for CMTV Statutory Trust I, 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 October 25, 2007;
(b) The
Declaration of Trust, dated as of October 25, 2007, among Community Bancorp.,
a
Vermont 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
October 31, 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 October 30, 2007 (the “Placement Agreement”),
among the Company, the Trust, and FTN Financial Capital Markets and Xxxxx,
Xxxxxxxx & Xxxxx, Inc., as placement agents;
(e) The
Subscription Agreement, dated October 31, 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 October 30, 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.§ 3801,
etseq.) (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 and delivery by the Trust of the 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 Xxxxxxxx, Xxxxxx & 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 Xxxxx, Rice & Xxxxxxxx, X.X.’s and
Xxxxxxx Xxxxx Xxxxxxxxx & Xxxxxxx PC’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
Wilmington
Trust Company
FTN
Financial Capital Markets
Xxxxx,
Xxxxxxxx & Xxxxx, Inc.
First
Tennessee Bank National Association
Community
Bancorp.
EXHIBIT
B-3
TAX
COUNSEL OPINION ITEMS
|
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.
|
Xxxxx,
Rice & Xxxxxxxx, X.X.
000
X.
Xxxxxxxx, Xxxxx 0000
Xx.
Xxxxx, Xxxxxxxx 00000
|
|
Re:
|
Representations
Concerning the Issuance of Junior Subordinated Deferrable Interest
Debentures (the “Debentures”) to CMTV Statutory Trust I (the “Trust”)
and Sale of Trust Securities (the “Trust Securities”) of the
Trust
|
Ladies
and Gentlemen:
In
accordance with your request,
Community Bancorp. (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.
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. § 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
best 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,
COMMUNITY
BANCORP.
|
Date:
October 30, 2007
|
By:
|
___________________________________
|
|
Title:
|
___________________________________
|
EXHIBIT
C
SIGNIFICANT
SUBSIDIARIES
Community
National Bank
