EXHIBIT 1
PLACEMENT AGREEMENT
AMONG
CAPITAL CITY BANK GROUP, INC.,
CCBG CAPITAL TRUST I
AND
SUNTRUST CAPITAL MARKETS, INC.
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Dated as of November 1, 2004
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Capital City Bank Group, Inc.
$30,000,000 Preferred Securities
(Liquidation Amount $1,000 per Preferred Security)
PLACEMENT AGREEMENT
November 1, 2004
SunTrust Capital Markets, Inc.
000 Xxxxxxxxx Xxxxxx, X.X.
24th Floor, Mail Code 3950
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Capital City Bank Group, Inc., a Florida corporation (the "Company"), and
its financing subsidiary, CCBG Capital 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 agent (the
"Placement Agent"), 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) THIRTY Million ($30,000,000) Dollars of the
Trust's Preferred Securities, with a liquidation amount of $1,000 per preferred
security, bearing a fixed rate of interest equal to 5.71% per annum through the
interest payment date in December 2009 and, thereafter, a variable rate of
interest, per annum, reset quarterly, equal to LIBOR (as defined in the
Indenture (as defined below)) plus 1.90% (the "Preferred Securities"), to STI
Investment Management, Inc., a Delaware corporation (the "Purchaser"), pursuant
to the terms of the Preferred Securities 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 Preferred 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, as guarantor, and Wilmington Trust Company, as
guarantee trustee (the "Guarantee Trustee"), for the benefit from time to time
of the holders of the Preferred Securities. The entire proceeds from the sale by
the Trust to the holders
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of the Preferred 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 THIRTY MILLION NINE
HUNDRED TWENTY-EIGHT Thousand ($30,928,000) Dollars in principal amount of the
Junior Subordinated Notes (the "Junior Subordinated Notes") of the Company. The
Preferred Securities and the Common Securities of the Trust shall be issued
pursuant to an Amended and Restated Trust Agreement among Wilmington Trust
Company, as property trustee (the "Property Trustee"), Wilmington Trust Company,
as Delaware Trustee, the Administrative Trustees named therein and the Company,
as depositor, to be dated as of the Closing Date and in substantially the form
heretofore delivered to the Placement Agent (the "Trust Agreement"). The Junior
Subordinated Notes shall be issued pursuant to an Indenture (the "Indenture"),
to be dated as of the Closing Date, between the Company and Wilmington Trust
Company, 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." The Preferred Securities, the Common Securities and the
Junior Subordinated Notes are collectively referred to as the "Securities." All
other capitalized terms used but not defined in this Agreement shall have the
meanings ascribed to them in the Indenture.
1.3 Rights of Purchaser. The Preferred Securities shall be offered and
sold by the Trust directly to the Purchaser without registration of any of the
Preferred Securities, the Junior Subordinated Notes or the Guarantee under the
Securities Act of 1933, as amended (the "Securities Act"), Securities and
Exchange Commission (the "SEC") rules or any other applicable securities laws in
reliance upon exemptions from the registration requirements of the Securities
Act set forth under Section 4(2) of the Securities Act and Commission Rule 506
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 Agent 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 Agent 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 Preferred Securities, the Junior Subordinated Notes and the Common
Securities certificates shall each contain a legend as required pursuant to any
of the Operative Documents.
Section 2. Purchase of Preferred 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 Agent), the Offerors hereby grant to the Placement Agent the
exclusive right to arrange for the sale to the Purchaser of the Preferred
Securities at a purchase price equal to $1,000 per Preferred Security. The
aggregate purchase price shall be THIRTY Million ($30,000,000) Dollars (the
"Purchase Price"), which Purchase Price is equal to 100% of the stated
liquidation amount of the Preferred Securities.
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2.2 Subscription. 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 Agent.
2.3 Closing and Delivery of Payment.
2.3.1 Closing; Closing Date. The closing (the "Closing") for the sale and
purchase of the Preferred Securities by the Offerors to the Purchaser shall
occur at the offices of Xxxxxx & Bird LLP, 0000 X. Xxxxxxxxx Xx., Xxxxxxx,
Xxxxxxx 00000 or such other place as the parties hereto shall agree at 11:00
A.M. Eastern Time on November 1, 2004, or such other date or time as the parties
may designate (such date and time of delivery and payment for the Preferred
Securities being herein called the "Closing Date"). The Preferred Securities
shall be transferred and delivered to the Purchaser against the payment of the
Purchase Price (as defined in the Subscription Agreement) to the Offerors in
immediately available funds on the Closing Date to a U.S. account designated in
writing by the Company at least two (2) business days prior to the Closing Date.
2.3.2 Delivery. Delivery of the Preferred Securities shall be made at such
location, and in such names and denominations, as the Purchaser shall designate
at least two (2) business days in advance of the Closing Date. The Company and
the Trust agree to have the Preferred Securities available for inspection and
checking by the Purchaser in Atlanta, Georgia not later than 1:00 P.M., Eastern
Time, on the business day prior to the Closing Date.
2.4 Placement Agent's Fees and Expenses.
2.4.1 Placement Agent's Compensation. The Offerors shall use the proceeds
from the sale of the Preferred Securities, together with the proceeds from the
sale of the Common Securities, to purchase the Junior Subordinated Notes.
Because the proceeds from the sale of the Preferred Securities shall be used to
purchase the Junior Subordinated Notes from the Company, the Company shall pay
an aggregate of $0.00 for each $1,000 of principal amount of Junior Subordinated
Notes (0.00%) sold to the Trust (excluding the Junior Subordinated Notes related
to the Common Securities purchased by the Company) as commission to the
Placement Agent (the "Commission"). Such amount shall be delivered to the
Placement Agent or such other person designated by the Placement Agent on the
Closing Date.
2.4.2 Costs and Expenses. The Company hereby covenants and agrees that it
shall pay or cause to be paid (directly or by reimbursement) (i) all costs and
expenses incident to the authorization, issuance, sale and delivery of the
Preferred Securities and any taxes payable in connection therewith; provided,
however, that the Purchaser shall pay, at Closing (x) a single payment to
Wilmington Trust Company, pursuant to a negotiated fee arrangement, the
administration fees charged by Wilmington Trust Company for the duration of the
Trust, (y) the legal fees and expenses of Richards, Layton, & Finger, P.A.
incurred in its capacity as special Delaware counsel to the Placement Agent and
the Purchaser and as special counsel to the Indenture Trustee, the Property
Trustee and the Guarantee Trustee incurred through the Closing Date, and (z) up
to $10,000 of the legal fees incurred by the Company in connection with the
Offering. The negotiated fixed administrative fee to be paid to Wilmington Trust
Company to be paid by the Purchaser as described in the preceding sentence
covers, in a single payment, the
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standard administrative fees to be charged by Wilmington Trust Company for the
life of the trust so long as there is no event of default or other event in
which the trustee has the right to retain counsel or take other action. In such
a case, Wilmington Trust Company may charge or incur additional fees and
expenses, including counsel fees, which will be billed to and payable by the
Company at the trustee's cost.
2.4.3 Reimbursement of Expenses. If the sale of the Preferred Securities
provided for in this Agreement is not consummated because any condition set
forth in Section 3 to be satisfied by either the Company or the Trust is not
satisfied, because this Agreement is terminated pursuant to Section 10 or
because of any failure, refusal or inability on the part of the Company or the
Trust to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder other than by a reason of a default by this
Agreement, the Company will reimburse the Placement Agent upon demand for all
reasonable out-of-pocket expenses (including the fees and expenses of each of
the Placement Agent's or Purchaser's counsel) that shall have been incurred by
the Placement Agent or Purchaser in connection with the proposed purchase and
sale of the Preferred Securities. The Company shall not in any event be liable
to the Placement Agent or Purchaser for the loss of anticipated profits from the
transactions contemplated by this Agreement.
Section 3. Closing Conditions. The obligations of the parties under this
Agreement on the Closing Date are subject to the following conditions:
3.1 Accuracy of Representations and Warranties. The representations and
warranties contained in this Agreement, and the statements of the Offerors made
in any certificates pursuant to this Agreement, shall be accurate as of the date
of delivery of the Preferred Securities:
3.2 Opinions of Counsel. On the Closing Date, the Placement Agent shall
have received the following favorable opinions, each dated as of the Closing
Date: (a) from Xxxxxx Xxxxxxxxx LLP counsel for the Offerors, addressed to the
Purchaser, the Placement Agent and the Indenture Trustee in substantially the
form set forth on Exhibit B-1 attached hereto and incorporated herein by this
reference, (b) from Xxxxxx & Bird LLP, special tax counsel for the Placement
Agent and Purchaser, addressed to the Placement Agent and Purchaser in
substantially the form set forth on Exhibit B-2 attached hereto and incorporated
herein by this reference, (c) from Xxxxxxxx Xxxxxx & Finger, P.A., special
Delaware counsel to the Placement Agent and addressed to the Purchaser, the
Placement Agent and the Offerors, in substantially the form set forth on Exhibit
B-3 attached hereto and incorporated herein by this reference, and (d) from
Xxxxxxxx Xxxxxx & Finger, P.A., special counsel to the Indenture Trustee, the
Property Trustee and the Guarantee Trustee and addressed to the Purchaser, the
Placement Agent and the Offerors, in substantially the form set forth on Exhibit
B-4 attached hereto and incorporated herein by this reference. Each opinion
addressed to the Purchaser shall state that the first entity, if any, to which
the Purchaser transfers any of the Preferred Securities (each, a "Subsequent
Purchaser") shall be entitled to rely on such opinion.
3.3 Officer's Certificate. The Company shall have furnished to the
Placement Agent and the Purchaser a certificate of the Company, signed by the
Chief Executive Officer, President or an Executive Vice President and by the
Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and
the Trust shall have furnished to the Placement Agent and the
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Purchaser a certificate of the Trust, signed by an Administrative Trustee of the
Trust, in each case dated the Closing Date, and, in the case of the Company, as
to 3.3.1 and 3.3.2 below and, in the case of the Trust, as to 3.3.1 below:
3.3.1 the representations and warranties in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing Date, and the Company and the Trust have complied with all the
agreements and satisfied all the conditions on either of their part to be
performed or satisfied at or prior to the Closing Date; and
3.3.2 since the date of the Interim Financial Statements (as defined
below), there has been no material adverse change in the condition (financial or
other), earnings, business, prospects or assets of the Company and its
subsidiaries, whether or not arising from transactions occurring in the ordinary
course of business.
3.4 No Subsequent Change. Subsequent to the execution of this Agreement,
there shall not have been any change, or any development involving a prospective
change, in or affecting the condition (financial or other), earnings, business,
prospects or assets of the Company and its subsidiaries, whether or not
occurring in the ordinary course of business, the effect of which is, in the
Placement Agent's or Purchaser's judgment, so material and adverse as to make it
impractical or inadvisable to proceed with the purchase of the Preferred
Securities.
3.5 Delivery of Operative Documents. Each of the Operative Documents
shall have been duly authorized, executed and delivered by each party thereto,
and copies thereof shall have been delivered to the Company, the Trust, the
Purchaser and the Placement Agent.
3.6 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.
3.7 Information. Prior to or on the Closing Date, the Offerors shall
have furnished to the Placement Agent, the Purchaser and their respective
counsel such further information, certificates, opinions and documents as the
Placement Agent, Purchaser or their respective counsel may reasonably request.
If any of the conditions specified in this Section 3 shall not have been
fulfilled when and as required in this Agreement, or if any of the opinions,
certificates and documents mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the Placement Agent, the
Purchaser or their respective counsel, this Agreement and all the Placement
Agent's obligations hereunder may be canceled at, or any time prior to, the
Closing Date by the Placement Agent. Notice of such cancellation shall be given
to the Offerors in writing or by telephone or facsimile confirmed in writing.
Each certificate signed by any trustee of the Trust or any officer of the
Company and delivered to the Placement Agent, Purchaser or their respective
counsel in connection with the Operative Documents and the transactions
contemplated hereby and thereby shall be deemed to
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be a representation and warranty of the Trust and/or the Company, as the case
may be, and not by such trustee or officer in any individual capacity.
Section 4. Representations and Warranties of the Offerors. The Offerors jointly
and severally represent and warrant to the Placement Agent and the Purchaser as
of the date hereof and as of the Closing Date as follows:
4.1 Representations and Warranties of the Company and the Trust.
(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 (except for the
Placement Agent, as to which neither the Company nor the Trust make any
representation) 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
Securities.
(b) Neither the Company nor the Trust, nor any of their
Affiliates, nor any person acting on its or their behalf (except for the
Placement Agent, as to which neither the Company nor the Trust make any
representation) has (i) offered for sale or solicited offers to purchase the
Securities, (ii) engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with any offer or
sale of any of the Securities, or (iii) engaged in any "directed selling
efforts" within the meaning of Regulation S under the Securities Act
("Regulation S") with respect to the Securities.
(c) The Securities (i) are not and have not been listed on a
national securities exchange registered under section 6 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or quoted on a U.S.
automated interdealer quotation system and (ii) are not of an open-end
investment company, unit investment trust or face-amount certificate company
that are, or are required to be, registered under section 8 of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the
Securities otherwise satisfy the eligibility requirements of Rule 144A(d)(3)
promulgated pursuant to the Securities Act ("Rule 144A(d)(3)").
(d) Neither the Company nor the Trust is, and, immediately
following consummation of the transactions contemplated hereby and the
application of the net proceeds therefrom, neither the Company nor the Trust
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.
(e) Neither the Company nor the Trust has paid or agreed to
pay to any person or entity, directly or indirectly, any fees or other
compensation for soliciting another to purchase any of the Securities, except
for the Commission.
4.2 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, 12 Del. C. Section 3801, et seq. (the "Statutory
Trust Act") with all requisite 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 to which it is a party.
The Trust is duly
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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 condition (financial or otherwise), earnings, business, prospects
or assets of the Trust, whether or not occurring in the ordinary course of
business. The Trust is not a party to, or otherwise bound by, any agreement
other than the Operative Documents. The Trust is, and under current law will
continue to be, classified for United States federal income tax purposes as a
grantor trust and not as an association or publicly traded partnership taxable
as a corporation.
4.3 Trust Agreement. The Trust Agreement has been duly authorized by the
Company and, on the Closing Date specified in Section 2.3.1, will have been duly
executed and delivered by the Company and the Administrative Trustees of the
Trust, and, assuming due authorization, execution and delivery by the Property
Trustee and the Delaware Trustee, will be a legal, valid and binding obligation
of the Company and the Administrative Trustees, enforceable against them in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights
generally and to general principles of equity. Each of the Administrative
Trustees of the Trust is an employee of the Company or its subsidiary bank and
has been duly authorized by the Company to execute and deliver the Trust
Agreement. To the knowledge of the Administrative Trustees, the Trust is not in
violation of any provision of the Statutory Trust Act.
4.4 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 legal, valid and binding obligation of the Company enforceable against it
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights
generally and to general principles of equity.
4.5 Preferred Securities and Common Securities. The Preferred Securities
and the Common Securities have been duly authorized by the Trust and, when
issued and delivered against payment therefor on the Closing Date to the
Purchaser in accordance with this Agreement and the Subscription Agreement, in
the case of the Preferred Securities, and to the Company in accordance with the
Common Securities Subscription Agreement between the Company and the Trust,
dated as of the Closing Date, in the case of the Common Securities, will be
validly issued, fully paid and nonassessable and will represent undivided
beneficial interests in the assets of the Trust entitled to the benefits of the
Trust Agreement, enforceable against the Trust in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights generally and to general principles of
equity. The issuance of the Securities is not 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 (each, a "Lien").
4.6 Junior Subordinated Notes. The Junior Subordinated Notes have been
duly authorized by the Company and, on the Closing Date, will have been duly
executed and
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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 to the Trust against payment therefor in accordance with the
Junior Subordinated Note Subscription Agreement between the Company and the
Trust, dated as of the Closing Date, will constitute legal, 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 applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors' rights generally and to general principles of equity.
4.7 Placement Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and the Trust and constitutes the legal,
valid and binding obligation of the Company and the Trust, enforceable against
the Company and the Trust in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors' rights generally and to general principles of equity.
4.8 Defaults. Neither the issue and sale of the Common Securities, the
Preferred Securities or the Junior Subordinated Notes, nor the purchase of the
Junior Subordinated Notes by the Trust, the execution and delivery of and
compliance with the Operative Documents by the Company or the Trust, the
consummation of the transactions contemplated herein or therein, or the use of
the proceeds therefrom, (i) will conflict with or constitute a breach of, or a
default under, the Trust Agreement or the charter or bylaws of the Company or
any subsidiary of the Company or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, governmental authority,
agency or instrumentality or court, domestic or foreign, having jurisdiction
over the Trust, or the Company or any of its subsidiaries, or their respective
properties or assets (collectively, "Governmental Entities"), (ii) will conflict
with or constitute a violation or breach of, or a default or Repayment Event (as
defined below) under, or result in the creation or imposition of any Lien upon
any property or assets of the Trust, the Company or any of the Company's
subsidiaries pursuant to any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which (A) the Trust, the Company
or any of its subsidiaries is a party or by which it or any of them may be
bound, or (B) any of the property or assets of any of them is subject, or any
judgment, order or decree of any court, governmental authority or arbitrator,
except, in the case of this clause (ii), for such conflicts, breaches,
violations, defaults, Repayment Events (as defined below) or Liens which (X)
would not, singly or in the aggregate, adversely affect the consummation of the
transactions contemplated by the Operative Documents and (Y) would not, singly
or in the aggregate, have a material adverse effect on the condition (financial
or otherwise), earnings, business, liabilities, prospects and assets (taken as a
whole) or business prospects of the Company and its subsidiaries taken as a
whole, whether or not occurring in the ordinary course of business (a "Material
Adverse Effect") or (iii) require the consent, approval, authorization or order
of any court or Governmental Entity, other than such as have been previously
obtained. As used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Trust or
the Company or any of its subsidiaries prior to its scheduled maturity.
4.9 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
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the State of Florida, with all requisite corporate power and authority to own,
lease and operate 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.
4.10 Subsidiaries of the Company. Each of the Company's significant
subsidiaries listed in Schedule 1 (as defined in Section 1-02 of Regulation S-X
under the Securities Act) (the "Subsidiaries") 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. Each Subsidiary 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
Subsidiary to be so qualified would not, singly or in the aggregate, have a
Material Adverse Effect.
4.11 Government Licenses and Regulatory Compliance. Each of the Trust,
the Company and each of its Subsidiaries hold all necessary approvals,
authorizations, orders, licenses, certificates and permits (collectively,
"Government Licenses") of and from Governmental Entities necessary to conduct
its respective business as now being conducted, and neither the Trust, the
Company nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Government License,
except where the failure to be so licensed or approved or the receipt of an
unfavorable decision, ruling or finding, would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Government Licenses are valid and in
full force and effect, except where the invalidity or the failure of such
Government Licenses to be in full force and effect, would not, singly or in the
aggregate, have a Material Adverse Effect; and the Company and the Subsidiaries
are in compliance with all applicable laws, rules, regulations, judgments,
orders, decrees and consents, except where the failure to be in compliance would
not, singly or in the aggregate, have a Material Adverse Effect.
4.12 Property. Each of the Company and its Subsidiaries owns or leases
all such properties as are necessary to the conduct of its operations as
presently conducted and has good and marketable title to all of its respective
real and personal properties, in each case free and clear of all Liens and
defects, except for those that would not, singly or in the aggregate, have a
Material Adverse Effect; and all of the leases and subleases under which the
Trust, the Company or any Subsidiary holds properties are in full force and
effect, except where the failure of such leases and subleases to be in full
force and effect would not, singly or in the aggregate, have a Material Adverse
Effect and none of the Trust, the Company or any Subsidiary has any notice of
any claim of any sort that has been asserted by anyone adverse to the rights of
the Trust, the Company or any Subsidiary under any such leases or subleases, or
affecting or questioning the rights of such entity to the continued possession
of the leased or subleased premises under any such lease or sublease, except for
such claims that would not, singly or in the aggregate, have a Material Adverse
Effect.
4.13 Conflicts, Authorizations and Approvals. Neither the Company nor any
of its Subsidiaries is (i) in violation of its respective charter, bylaws or
similar organizational
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documents or (ii) 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 such Subsidiary 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, in the case of clause (ii), where such default would not, singly or in
the aggregate, have a Material Adverse Effect. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any
Governmental Entity, other than those that have been made or obtained, is
necessary or required for the performance by the Trust or the Company of their
respective obligations under the Operative Documents, as applicable, or the
consummation by the Trust and the Company of the transactions contemplated by
the Operative Documents.
4.14 Holding Company Registration and Deposit Insurance. The Company is
duly registered (i) as a bank holding company, and has filed an effective
election with the Federal Reserve Bank of Atlanta to be a financial holding
company, under the Bank Holding Company Act of 1956, as amended (the "Bank
Holding Company Act"), and the regulations of the Board of Governors of the
Federal Reserve System (the "Federal Reserve"), and the deposit accounts of the
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 proceeding for the termination of such
insurance is pending or, to the knowledge of the Company, threatened.
4.15 Financial Statements.
(a) The audited consolidated financial statements (including the
notes thereto) and schedules of the Company and its consolidated subsidiaries at
and for the fiscal year ended December 31, 2003 (the "Financial Statements") and
the interim unaudited consolidated financial statements of the Company and its
consolidated subsidiaries at and for the quarter ended September 30, 2004 (the
"Interim Financial Statements") provided to the Placement Agent are the most
recently available audited and unaudited consolidated financial statements of
the Company and its consolidated subsidiaries, respectively, and fairly present
in all material respects, in accordance with U.S. generally accepted accounting
principles ("GAAP"), the financial position of the Company and its consolidated
subsidiaries, and the results of operations and changes in financial condition
as of the dates and for the periods therein specified, subject, in the case of
Interim Financial Statements, to year-end adjustments (which are expected to
consist solely of normal recurring adjustments). Such consolidated financial
statements and schedules have been prepared in accordance with GAAP consistently
applied throughout the periods involved (except as otherwise noted therein).
(b) The Company's report on FRY-9C, dated June 30, 20004 (the
"FRY-9C"), provided to the Placement Agent is the most recently available such
report, and the information therein fairly presents in all material respects the
financial position of the Company and its subsidiaries.
(c) Since the respective dates of the Financial Statements,
Interim Financial Statements and the FRY-9C, there has not been any material
adverse change or material development with respect to the condition (financial
or otherwise), earnings, business, assets or
11
business prospects of the Company and its subsidiaries, taken as a whole, other
than as previously disclosed to the Placement Agent in writing.
(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 of the SEC thereunder.
4.16 Regulatory Enforcement Matters. None of the Trust, the Company nor
any of its Subsidiaries, nor any of their respective officers, directors,
employees or representatives, is subject or is party to, or has received any
notice from any Regulatory Agency (as defined below) that any of them will
become subject or party to any investigation with respect to, any
cease-and-desist order, agreement, civil monetary penalty, 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 a recipient of
any supervisory letter from, or has adopted any board resolutions at the request
or suggestion of, any Regulatory Agency that, in any such case, currently
restricts in any material respect the conduct of their business or that in any
material manner relates to their capital adequacy, their credit policies, their
management or their business (each, a "Regulatory Action"), nor has the Trust,
the Company or any of its Subsidiaries been advised by any Regulatory Agency
that it is considering issuing or requesting any such Regulatory Action; and
there is no unresolved violation, criticism or exception by any Regulatory
Agency with respect to any report or statement relating to any examinations of
the Trust, the Company or any of its Subsidiaries, except where such unresolved
violation, criticism or exception would not, singly or in the aggregate, have a
Material Adverse Effect. As used herein, the term "Regulatory Agency" means any
federal or state agency charged with the supervision or regulation of depositary
institutions or holding companies of depositary institutions, or engaged in the
insurance of depositary 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 Trust, the
Company or any of its Subsidiaries.
4.17 No Undisclosed Liabilities. None of the Trust, the Company nor any
of its Subsidiaries has any material liability, 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 that
could give rise to any such liability), except for (i) liabilities set forth in
the Financial Statements or the Interim Financial Statements and (ii) normal
fluctuations in the amount of the liabilities referred to in clause (i) above
occurring in the ordinary course of business of the Trust, the Company and all
of its Subsidiaries since the date of the most recent balance sheet included in
such Financial Statements.
4.18 Litigation. There is no action, suit or proceeding before or by any
Governmental Entity, arbitrator or court, domestic or foreign, now pending or,
to the knowledge of the Company or the Trust, threatened against or affecting
the Trust or the Company or any of the Subsidiaries, except for such actions,
suits or proceedings that, if adversely determined, could not, singly or in the
aggregate, reasonably be expected to materially adversely affect the
12
consummation of the transactions contemplated by the Operative Documents or to
have a Material Adverse Effect.
4.19 Deferral of Interest Payments on Junior Subordinated Notes. The
Company has no present intention to exercise its option to defer payments of
interest on the Junior Subordinated Notes as provided in the Indenture. The
Company believes that the likelihood that it would exercise its rights to defer
payments of interest on the Junior Subordinated Notes as provided in the
Indenture at any time during which the Junior Subordinated Notes 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 Junior Subordinated Notes.
Section 5. Representations and Warranties of the Placement Agent. The Placement
Agent represents and warrants to, and agrees with, the Company and the Trust as
follows:
5.1 Organization, Standing and Qualification. The Placement Agent is a
corporation, validly existing and in good standing under the laws of the state
of Tennessee, with full power and authority to own, lease and operate its
properties and conduct its business as currently being conducted. The Placement
Agent is duly qualified to transact business as a foreign corporation and is in
good standing in each 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 the Placement Agent.
5.2 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
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights generally and to general principles of equity and
except as any indemnification or contribution provisions thereof may be limited
under applicable securities laws.
5.3 General Solicitation. Neither the Placement Agent, nor any
representative of the Placement Agent has engaged, or will engage, in any form
of "general solicitation or general advertising" (within the meaning of
Regulation D under the Securities Act) or in any "directed selling efforts"
(within the meaning of Regulation S under the Securities Act) in connection with
any offer or sale of the Preferred Securities.
5.4 Purchaser. The Placement Agent has made such reasonable inquiry as
is necessary to determine that the Purchaser is acquiring the Preferred
Securities for its own account, the Purchaser does not intend to distribute the
Preferred Securities in contravention of the Securities Act or any other
applicable securities laws.
13
5.5 Qualified Purchasers. The Placement Agent has not offered or sold,
and will not arrange for the offer or sale of, the Preferred Securities except
(i) to those the Placement Agent reasonably believes are "accredited investors"
(within the meaning of Rule 501 of Regulation D), (ii) in an offshore
transaction complying with Rule 903 of Regulation S or (iii) in any other manner
that does not require registration of the Preferred 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 Preferred Securities will not be made except in
compliance with applicable securities laws.
5.6 Offering Circulars. Neither the Placement Agent nor its
representatives will include any nonpublic 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 Preferred Securities without the prior written consent of the
Company or the Trust, as applicable.
Section 6. Covenants of the Offerors. The Offerors covenant and agree with the
Placement Agent and the Purchaser as follows:
6.1 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 to cause their representations and warranties contained in
Section 4 hereof to be true as of the Closing Date, after giving effect to the
transactions contemplated by this Agreement, as if made on and as of the Closing
Date.
6.2 Sale and Registration of Securities. Neither the Company nor the
Trust will, nor will either of them permit any of its Affiliates to, nor will
either of them permit any person acting on its or their behalf (other than the
Placement Agent and the Purchaser) 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 Preferred Securities in any manner that would require the
registration of the Securities under the Securities Act or (ii) make offers or
sales of any such Security, or solicit offers to buy any such Security, under
any circumstances that would require the registration of any of such Securities
under the Securities Act.
6.3 Use of Proceeds. The Trust shall use the proceeds from the sale of
the Preferred Securities and the Common Securities solely to purchase the Junior
Subordinated Notes from the Company.
6.4 Investment Company. So long as any of the Securities are
outstanding, (i) the Securities shall not be listed on a national securities
exchange registered under section 6 of the Exchange Act or quoted in a U.S.
automated interdealer quotation system, (ii) neither the Company nor the Trust
shall be an open-end investment company, unit investment trust or face-amount
certificate company that is, or is required to be, registered under section 8 of
the Investment Company Act, and, the Securities shall otherwise satisfy the
eligibility requirements of Rule 144A(d)(3) and (iii) neither of the Offerors
shall engage, or permit any subsidiary to
14
engage, in any activity which would cause it or any subsidiary to be an
"investment company" under the provisions of the Investment Company Act.
6.5 Solicitation and Advertising. Neither the Company nor the Trust
will, nor will either of them permit any of their Affiliates or any person
acting on their behalf to (other than the Placement Agent), (i) engage in any
"directed selling efforts" within the meaning of Regulation S under the
Securities Act or (ii) engage in any form of "general solicitation or general
advertising" (within the meaning of Regulation D) in connection with any offer
or sale of any of the Securities.
6.6 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 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. The information
provided by the Offerors pursuant to this Section 6.6 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. If the Company and the
Trust are required to register under the Exchange Act, such reports filed in
compliance with Rule 12g3-2(b) shall be sufficient information as required
above. This covenant is intended to be for the benefit of the Purchaser, the
holders of the Securities, and the prospective purchasers designated by such
holders, from time to time, of the Securities.
6.7 Reports. Each of the Company and the Trust shall furnish to (i) the
Placement Agent, (ii) the Purchaser and any subsequent holder of the Securities,
and (iii) any beneficial owner of the Securities reasonably identified to the
Company and the Trust (which identification may be made by either such
beneficial owner or by the Purchaser), a duly completed and executed certificate
in the form attached hereto as Exhibit C, including the financial statements
referenced in such Exhibit, which certificate and financial statements shall be
so furnished by the Company and the Trust not later than fifty (50) days after
the end of each of the first three fiscal quarters of each fiscal year of the
Company and not later than one hundred (100) days after the end of each fiscal
year of the Company during which the Junior Subordinated Notes are outstanding.
Section 7. Indemnification & Contribution.
7.1 Indemnification.
7.1.1 The Company and the Trust agree jointly and severally to indemnify
and hold harmless the Placement Agent, the Purchaser, the Placement Agent's
affiliates (collectively, the "Indemnified Parties") and the Indemnified
Parties' respective directors, officers, employees and agents and each person
who "controls" the Indemnified Parties within the meaning of Section 15
15
of the Securities Act or Section 20 of the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, actions or proceedings
(each a "Claim") to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in any information (whether oral or written) or documents furnished or
made available to the Purchaser or the Placement Agent by or on behalf of the
Company, the Trust, or their respective representatives pursuant to the due
diligence request form provided by the Placement Agent in connection with the
transactions contemplated by the Operative Documents, or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made, and agrees to reimburse each such
Indemnified Party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in addition
to any liability which the Company or the Trust may otherwise have.
7.1.2 The Company agrees to indemnify and hold harmless the Trust against
all loss, liability, claim, damage and expense whatsoever, as due from the Trust
under Section 7.1.1 above.
7.1.3 Promptly after receipt by an Indemnified Party under this Section 7
of notice of the commencement of any Claim, such Indemnified Party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, promptly notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve the indemnifying party from liability under Section 7.1.1 above, except
and to the extent that such failure results in the forfeiture by the
indemnifying party of material rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any Indemnified
Party other than the indemnification obligation provided in Section 7.1.1 above.
The indemnifying party shall be entitled to appoint counsel at the indemnifying
party's expense to represent the Indemnified Party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the Indemnified Party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the Indemnified
Party (and which may be counsel to the indemnifying party). Notwithstanding the
indemnifying party's election to appoint counsel to represent the Indemnified
Party in an action, the Indemnified Party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the Indemnified
Party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
Indemnified Party and the indemnifying party and the Indemnified Party shall
have reasonably concluded that there may be legal defenses available to it
and/or other Indemnified Parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the Indemnified Party to represent the
Indemnified Party within a reasonable time after notice of the institution of
such action, or (iv) the indemnifying party shall authorize the Indemnified
Party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will
16
not, without the prior written consent of the Indemnified Parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnified Parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each Indemnified Party from all liability arising out of such claim, action,
suit or proceeding. An Indemnified Party will not, without the prior written
consent of the indemnifying parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the Indemnified Parties are actual or potential
parties to such claim or action).
7.1.4 In the event that the indemnity provided in Sections 7.1.1, 7.1.2 or
7.1.3 is unavailable to or insufficient to hold harmless an Indemnified Party
for any reason, then each indemnifying party agrees to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the indemnifying party may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Trust on the one hand and by the Placement Agent on the other
hand from the offering of the Securities; provided, however, that in no case
shall the Placement Agent be responsible for any amount in excess of the
purchase discount or commission applicable to the Preferred Securities purchased
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, then each indemnifying party shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and the Trust on the one hand and of the
Placement Agent on the other hand in connection with the statements or omissions
which resulted in such Losses, as well as any other relevant equitable
considerations. Benefits received by the Company and the Trust shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Placement Agent shall be
deemed to be equal to the total Commission specified in Section 2.4.1. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company and the Trust on the one hand or the Placement Agent on the other hand,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company, the Trust and the Placement Agent agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 7.1.4, no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, the Purchaser, each person who controls the Placement Agent or the
Purchaser within the meaning of either the Securities Act or the Exchange Act
and each director, officer, employee and agent of the Placement Agent or the
Purchaser shall have the same rights to contribution as the Placement Agent, and
each person who controls the Company within the meaning of either the Securities
Act or the Exchange Act, each officer and director of the Company and each
Administrator of the Trust shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
Section 7.1.4.
17
Section 8. Rights and Responsibilities of Placement Agent.
8.1 Reliance. In performing its duties under this Agreement, the
Placement Agent shall be entitled to rely upon any notice, signature or writing
which it shall in good faith believe to be genuine and to be signed or presented
by a proper party or parties. The Placement Agent may rely upon any opinions or
certificates or other documents delivered by the Offerors or their counsel or
designees to either the Placement Agent or the Purchaser.
8.2 Rights of Placement Agent. In connection with the performance of its
duties under this Agreement, the Placement Agent shall not be liable for any
error of judgment or any action taken or omitted to be taken unless the
Placement Agent was grossly negligent or engaged in willful misconduct in
connection with such performance or non-performance. No provision of this
Agreement shall require the Placement Agent to expend or risk its own funds or
otherwise incur any financial liability on behalf of the Purchaser in connection
with the performance of any of its duties hereunder. The Placement Agent shall
be under no obligation to exercise any of the rights or powers vested in it by
this Agreement.
Section 9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Placement Agent, by notice given to the Company and
the Trust prior to delivery of and payment for the Preferred Securities, if
prior to such time (i) there has occurred any Material Adverse Effect, or (ii)
trading in any of the Company's securities shall have been suspended by the SEC
or the exchange upon which the Company's securities are traded, if any, or
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
exchange, (ii) a banking moratorium shall have been declared either by federal
or Florida authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the Placement Agent's judgment, impracticable
or inadvisable to proceed with the offering or delivery of the Preferred
Securities.
Section 10. Miscellaneous.
10.1 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 4 hereof. The Disclosure
Schedule shall be arranged in paragraphs corresponding to the section numbers
contained in Section 4. 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 4 hereof unless
18
such information is specifically included on the Disclosure Schedule in
accordance with the provisions of this Section 10.1.
10.2 Notices. All communications hereunder will be in writing and
effective only on receipt, and will be mailed, delivered by hand or courier or
sent by facsimile and confirmed:
If to the Placement Agent, to:
SunTrust Capital Markets, Inc.
000 Xxxxxxxxx Xxxxxx, N.E., 24th Floor
Mail Code 3950
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Trust Preferred
with a copy to:
Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. XxxXxxxxx III
if to the Offerors, to:
Capital City Bank Group, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Facsimile: ( 000 ) 000-0000
Telephone: (000) 000-0000
Attention: X. Xxxxxxxxx Xxxxx
The Placement Agent, the Company, and their respective counsel, may change
their respective notice addresses, from time to time, by written notice to all
of the foregoing persons.
10.3 Parties in Interest, Successors and Assigns. This Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person other than
the parties hereto and the affiliates, directors, officers, employees, agents
and controlling persons referred to in Section 7 hereof and their successors,
assigns, heirs and legal representatives, any right or obligation hereunder.
None of the rights or obligations of the Company or the Trust under this
Agreement may be assigned, whether by operation of law or otherwise, without the
Placement Agent's prior written consent. The rights and obligations of the
Placement Agent and Purchaser under this Agreement may be assigned by each party
without the Company's or the Trust's consent; provided that the assignee assumes
the obligations of such party under this Agreement.
19
10.4 Amendments. This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement by
each of the parties hereto.
10.5 Counterparts and Facsimile. This Agreement may be executed by any
one or more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument. This Agreement may be executed by any
one or more of the parties hereto by facsimile.
10.6 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
10.7 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAW OF THE STATE OF GEORGIA WITHOUT REFERENCE TO
PRINCIPLES OF CONFLICTS OF LAW.
10.8 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.
10.9 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 Agent's and the Purchaser's rights and
privileges shall be enforceable to the fullest extent permitted by law.
10.10 Survival. The respective agreements, representations, warranties,
indemnities and other statements of the Company and the Trust and their
respective officers or trustees and of the Placement Agent set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Placement Agent, the Purchaser,
the Company or the Trust or any of their respective officers, directors,
trustees or controlling persons, and will survive delivery of and payment for
the Preferred Securities. The provisions of Sections 2.4 and 7 shall survive the
termination or cancellation of this Agreement.
Signatures appear on the following page
20
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,
CAPITAL CITY BANK GROUP, INC.
By: ___________________________________
Name: X. Xxxxxxxxx Xxxxx
Title: Executive Vice President and
Chief Financial Officer
CCBG CAPITAL TRUST I
By: Capital City Bank Group, Inc. as
Depositor
By: _______________________________
Name: X. Xxxxxxxxx Xxxxx
Title: Executive Vice President
and Chief Financial Officer
CONFIRMED AND ACCEPTED
as of the date first set forth above
SUNTRUST CAPITAL MARKETS, INC.,
as Placement Agent
By: ______________________________________
Name:
Title:
21
Schedule 1
List of Significant Subsidiaries
Capital City Bank
22
EXHIBIT A
FORM OF SUBSCRIPTION AGREEMENT
PREFERRED SECURITIES SUBSCRIPTION AGREEMENT
November 1, 2004
THIS PREFERRED SECURITIES SUBSCRIPTION AGREEMENT (this "Agreement") made
among CCBG Capital Trust I (the "Trust"), a statutory trust created under the
Delaware Statutory Trust Act (12 Del. C. Section3801, et seq.), Capital City
Bank Group, Inc., a Florida corporation, with its principal offices located at
000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxx 00000 (the "Company" and, together
with the Trust, the "Offerors"), STI Investment Management, Inc. (the
"Purchaser"), and SunTrust Capital Markets, Inc. (as to Sections 1.2, 1.3 and
Article III).
RECITALS:
A. The Trust desires to issue THIRTY Million ($30,000,000) DOLLARS of its
Preferred Securities (the "Preferred Securities"), liquidation amount $1,000 per
Preferred Security, representing an undivided beneficial interest in the assets
of the Trust (the "Offering"), to be issued pursuant to an Amended and Restated
Trust Agreement (the "Trust Agreement") by and among the Company, Wilmington
Trust Company, as Property Trustee (the "Property Trustee"), Wilmington Trust
Company, as Delaware Trustee (the "Delaware Trustee"), the Administrative
Trustees named therein and the Holders (as defined therein), which Preferred
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 Wilmington Trust Company, as
Guarantee Trustee (the "Guarantee"); and
B. The proceeds from the sale of the Preferred 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
Junior Subordinated Notes of the Company (the "Notes") to be issued by the
Company pursuant to an indenture (the "Indenture") between the Company and
Wilmington Trust Company, as Indenture Trustee; and
C. In consideration of the premises and the mutual representations and
covenants hereinafter set forth, the parties hereto agree as follows:
Article I
PURCHASE AND SALE OF PREFERRED SECURITIES
1.1 Upon the execution of this Agreement, the Purchaser hereby agrees to
purchase Preferred Securities from the Trust at a price equal to $1,000 per
Preferred Security (the "Purchase Price"), which Purchase Price is equal to
THIRTY Million ($30,000,000) Dollars, and the Trust agrees to sell such
Preferred Securities to the Purchaser for said Purchase Price. The rights and
preferences of the Preferred Securities are set forth in the Trust Agreement.
The closing of the sale and purchase of the Preferred Securities by the Offerors
to the Purchaser shall occur on November 1, 2004, or such other later date as
the parties may designate (the "Closing Date") The Purchase Price is payable in
immediately available funds on
A-1
the Closing Date. The Offerors shall provide the Purchaser payment instructions
no later than two (2) days prior to the Closing Date.
1.2 The Placement Agreement, dated as of November 1, 2004 (the
"Placement Agreement"), among the Offerors and the Placement Agent identified
therein (the "Placement Agent") 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 Agent 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.
1.3 Subject to the provisions of Section 2 hereof, the Purchaser may
resell the Preferred Securities to a subsequent purchaser (any such purchaser
from the Purchaser being referred to hereinafter as a "Subsequent Purchaser").
Upon transfer of the Preferred Securities to a Subsequent Purchaser, the
Subsequent Purchaser shall be entitled to each of the benefits of the Placement
Agent and the Purchaser under the Placement Agreement and this Agreement, and
shall be entitled to enforce the obligations of the Offerors under the Placement
Agreement and this Agreement, as fully as if the Subsequent Purchaser were a
party to the Placement Agreement and this Agreement.
Article II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1 The Purchaser understands and acknowledges that the Preferred
Securities, the Notes and the Guarantee (i) have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any other
applicable securities law, (ii) are being offered for sale by the Trust in
transactions not requiring registration under the Securities Act and (iii) 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 it is purchasing the
Preferred Securities for its own account 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 Preferred 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. The Purchaser understands that no public market
exists for any of the Preferred Securities, and that it is unlikely that a
public market will ever exist for the Preferred Securities.
2.3 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
A-2
financial condition and results of operations and the purchase of the Preferred
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 Agent.
2.4 The Purchaser represents and warrants that it is an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7)
of Rule 501 of Regulation D under the Securities Act.
2.5 [Reserved].
2.6 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
hereby, and it has full right and power to subscribe for Preferred Securities
and perform its obligations pursuant to this Agreement.
2.7 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.
2.8 The Purchaser represents and warrants that this Agreement has been
duly authorized, executed and delivered by the Purchaser.
Article III
MISCELLANEOUS
3.1 Any notice or other communication given hereunder shall be deemed
sufficient if in writing and sent by registered or certified mail, return
receipt requested, international courier or delivered by hand against written
receipt therefor, or by facsimile transmission and confirmed by telephone, to
the following addresses, or such other address as may be furnished to the other
parties as herein provided:
To the Offerors: Capital City Bank Group, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Attention: X. Xxxxxxxxx Xxxxx
Fax: (000) 000-0000
To the Purchaser: STI Investment Management, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
A-3
Fax: (000) 000-0000
Attention: Treasurer
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, 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 Preferred 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 TERMS AND
PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF DELAWARE, 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
A-4
IN WITNESS WHEREOF, this Agreement is agreed to and accepted as of
the day and year first written above.
STI INVESTMENT MANAGEMENT, INC.
By: __________________________________
Name:
Title:
CAPITAL CITY BANK GROUP, INC.
By: _________________________________
Name:
Title:
CCBG CAPITAL TRUST I
By: Capital City Bank Group, Inc., as
Depositor
By: _________________________________
Name:
Title:
SUNTRUST CAPITAL MARKETS, INC.
(for purposes of the rights and
obligations in Sections 1.2, 1.3 and
Article III only)
By: _________________________________
Name:
Title:
X-0
XXXXXXX X-0
FORM OF COMPANY COUNSEL OPINION
November 1, 2004
SunTrust Capital Markets, Inc.
000 Xxxxxxxxx Xxxxxx, XX
24th Floor, Mail Code 3947
Xxxxxxx, Xxxxxxx 00000
STI Investment Management, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
We have acted as counsel to Capital City Bank Group, Inc. (the "Company"),
a Florida corporation in connection with a certain Placement Agreement, dated
November 1, 2004, (the "Placement Agreement"), between the Company and CCBG
Capital Trust I (the "Trust"), on one hand, and SunTrust Capital Markets, Inc.
(the "Placement Agent"), 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 STI Investment Management, Inc. (the "Purchaser"), $30,000,000 aggregate
principal amount of Preferred Securities (liquidation amount $1,000.00 per
preferred security) (the "Preferred Securities"), which Preferred Securities are
guaranteed on a subordinated basis by the Company to the extent set forth in the
Guarantee Agreement dated November 1, 2004, between the Company and the
Guarantee Trustee named therein (the "Guarantee Agreement"). The Trust is
purchasing, with the proceeds from the sale of the Preferred Securities and the
sale to the Company of 928 Common Securities, liquidation amount of $1,000 per
common security (the "Common Securities"), $30,928,000 aggregate principal
amount of Junior Subordinated Notes due December 31, 2034 (the "Junior
Subordinated Notes") of the Company issued pursuant to an Indenture dated as of
November 1, 2004 (the "Indenture"), between the Company and Wilmington Trust
Company, as indenture trustee (the "Indenture Trustee").
Capitalized terms used herein and not otherwise defined shall have the
same meaning 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 Georgia.
B-1-1
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 Bylaws, as amended; and
(b) such corporate documents, records, information and certificates of the
Company and its 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 its subsidiaries and the Trust after discussing the contents
thereof with such officers. We have not made any independent investigation as to
the existence of actions, suits, investigations or proceedings, if any, pending
or threatened against the Company or any of its subsidiaries, and we have not
conducted any independent search of any public records in connection with our
rendering our opinions set forth herein.
In rendering the opinions expressed below, we have assumed, without
verification (i) the genuineness of the signatures on all documents that we have
examined, (ii) the authenticity of all documents submitted to us as originals,
(iii)the conformity with authentic original documents of all documents submitted
to us as copies, and (iv) the legal capacity of all natural persons. We have
assumed (except to the extent set forth in our opinions below as to the Company)
(a) that all parties to, or that have otherwise executed, the Operative
Documents have been duly organized or formed, as the case may be, and are in
good standing under the laws of their respective jurisdictions of organization
or formation, as the case may be, and have full power, corporate or other, to
enter into and perform all obligations thereunder and (b) the due authorization
by all requisite action, corporate or otherwise, and execution delivery by such
persons of such documents.
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 Florida and is duly registered as a financial holding company
under the Bank Holding Company Act of 1956, as amended. Each of the Subsidiaries
is validly existing and in good standing under the laws of its jurisdiction of
organization. Each of the Company and the Subsidiaries has full corporate power
and authority to own or lease its properties and to conduct its business as such
business is currently conducted in all material respects.
2. The issuance, sale and delivery of the Preferred Securities and the
Junior Subordinated Notes in accordance with the terms and conditions of the
Placement Agreement and the other Operative Documents have been duly authorized
by all necessary actions of the Company. The issuance, sale and delivery of the
Junior Subordinated Notes by the Company and the issuance, sale and delivery of
the Preferred Securities and Common Securities by the Trust do not give rise to
any preemptive rights to subscribe for or to purchase any shares of capital
stock or equity securities of the Company under the Articles of Incorporation or
Bylaws of the Company or, to our knowledge, under any agreement or other
instrument to which the Company is a party or by which the Company may be bound.
B-1-2
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
against the Company in accordance with their terms.
4. Each of the Transaction Documents has been duly authorized, executed
and delivered by the Company. Each of the Indenture and the Guarantee Agreement
constitutes a valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms.
5. The Junior Subordinated Notes have been duly authorized for issuance
by the Company, and the Junior Subordinated Note issued and delivered by the
Company to the Trust on this date has been duly executed and delivered by the
Company and, assuming due authentication by the Indenture Trustee under the
Indenture, is entitled to the benefits of the Indenture and constitutes the
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms.
6. The execution, delivery and performance of the Placement Agreement
and the other Operative Documents and the consummation of the transactions
contemplated by the Placement Agreement and the other Operative Documents do not
and will not conflict with, result in the creation or imposition of any material
lien, claim, charge, encumbrance or restriction upon any property or assets of
the Company or the Subsidiaries pursuant to, or constitute a material breach or
violation of, or constitute a material default under, with or without notice or
lapse of time or both, any of the terms, provisions or conditions of (i) the
articles of incorporation or charter, bylaws or other governing documents of the
Company or the Subsidiaries, or (ii) to our knowledge, any material contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license or any other agreement or instrument known to us to which the
Company or any of the Subsidiaries is a party or by which any of them or any of
their respective properties may be bound or (iii) 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 each case or in the aggregate, 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 Florida in connection with the offer and sale of the
Preferred Securities as contemplated by the Placement Agreement and the other
Operative Documents.
8. To our knowledge, (i) neither the Company 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
B-1-3
Articles of Incorporation or Charter, Bylaws or other governing documents, and
(ii) no action, suit or proceeding is pending or threatened against the Company
or any of the Subsidiaries, 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 other Operative
Documents or the issuance and sale of the Preferred Securities as contemplated
therein or the condition (financial or otherwise), earnings, affairs, business,
or results of operations of the Company and its subsidiaries on a consolidated
basis.
9. Assuming the accuracy of the representations and warranties of the
Company, the Placement Agent and the Purchaser in the respective Operative
Documents, it is not necessary in connection with the offering, sale and
delivery of the Preferred Securities, the Junior Subordinated Notes 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 Preferred 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.
Our opinions set forth herein are limited by the following exceptions and
qualifications:
(A) The opinions expressed in the first two sentences of numbered
paragraph 1 of this Opinion Letter are based solely upon certain certificates
and confirmations issued by the applicable governmental officer or authority
with respect to each of the Company and the Subsidiaries.
(B) As used in paragraph 1 of this Opinion Letter, the term "in good
standing" shall mean (i) when used in connection with a corporation, that all
filings and registrations required to have been made by such corporation under
the Florida Business Corporation Act have been made and that all filing fees
that are due and payable in connection therewith have been paid, and (ii) when
used in connection with a bank, that all filings and registrations required to
have been made by such bank under the Florida Banking Code have been made and
that all filing fees that are due and payable in connection therewith have been
paid.
(C) We have assumed for purposes of this Opinion Letter that all the
documents as to which we have opined with respect to enforceability constitute
the legal, valid and binding obligations of the parties thereto other than the
Company.
(D) Our opinions regarding the legality, validity, binding effect or
enforceability of each of the Placement Agreement and Subscription Agreement are
subject to and limited by: (i) bankruptcy, insolvency, moratorium,
reorganization or other laws affecting the rights of
B-1-4
creditors, generally; (ii) the effect of general principles of equity, whether
applied by a court of law or equity, including the discretionary nature of
equitable remedies; (iii) the possible unenforceability, as contrary to public
policy, of provisions regarding indemnities for violations of securities laws;
and (iv) the possible unavailability of certain remedies in the case of a
non-material breach.
(E) Our opinions regarding the legality, validity, binding effect or
enforceability of each of the Indenture, the Trust Agreement, the Guarantee
Agreement and the Junior Subordinated Notes are subject to and limited by: (i)
bankruptcy, insolvency, moratorium, reorganization or other laws affecting the
rights of creditors, generally; and (ii) the effect of general principles of
equity, whether applied by a court of law or equity, including the discretionary
nature of equitable remedies.
With respect to any matters indicated herein to be limited to our
knowledge (or words to like effect), the opinions set forth herein with respect
to such matters are specifically limited to the actual knowledge of the
attorneys who are members of or are employed by this firm who have obtained such
knowledge solely in connection with the representation of the Company with
respect to the offering of the Preferred Securities and the other transactions
contemplated by the Placement Agreement.
With respect to the foregoing opinions, we do not express any opinions as
to the laws of the state of New York and have assumed, with your approval and
without rendering any opinion to such effect, that to the extent applicable, the
laws of the State of New York are substantively identical to the laws of the
State of Georgia which would apply, without regard to conflict of law
provisions, were the matter in question governed by the laws of Georgia. We
express no opinion as to matters of choice of law (including the enforceability
of any choice of law provisions in any agreement).
This opinion is rendered to you solely pursuant to Section 3.2(a) of the
Placement Agreement. As such, it may be relied upon by you or by a Subsequent
Purchaser as defined in Section 3.2 of the Placement Agreement 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,
XXXXXX XXXXXXXXX LLP
B-1-5
EXHIBIT B-2
FORM OF TAX COUNSEL OPINION
Pursuant to Section 3.2(c) of the Placement Agreement, Xxxxxx & Bird LLP,
counsel for the Placement Agent and Purchaser, shall deliver an opinion to the
following effect:
Capital City Bank Group, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
SunTrust Capital Markets, Inc.
000 Xxxxxxxxx Xxxxxx, XX
24th Floor, Mail Code 3950
Xxxxxxx, Xxxxxxx 00000
STI Investment Management, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We have acted as counsel to SunTrust Capital Markets, Inc. (the "Placement
Agent"), a Tennessee corporation, and STI Investment Management, Inc. (the
"Purchaser"), a Delaware corporation, in connection with the Purchaser's
purchase of $30,000,000 Preferred Securities (liquidation amount $1,000 per
preferred security) (the "Preferred Securities") to be issued by CCBG Capital
Trust I (the "Trust"). The Preferred Securities represent undivided beneficial
ownership interests in $30,928,000 in aggregate principal amount of Junior
Subordinated Notes due 2034 (the "Junior Subordinated Notes") of Capital City
Bank Group, Inc.(the "Company"). This opinion letter is furnished pursuant to
Section 3.2(b) of the Placement Agreement dated November 1, 2004, between the
Company, the Trust and the Placement Agent.
In arriving at the opinions expressed below we have examined executed
copies of (i) the Amended and Restated Trust Agreement of the Trust dated the
date hereof (the "Trust Agreement") and (ii) the Junior Subordinated Indenture
relating to the issuance of the Junior Subordinated Notes dated the date hereof
(the "Indenture") (together, the "Operative Documents"). In addition, we have
relied on the representations of the Company contained in its letter dated as of
the date hereof and delivered to us in connection with the issuance of our
opinions expressed below. We have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
and records submitted to us as originals, the conformity to original documents
and records of all documents and records submitted to us as copies, and the
truthfulness of all statements of facts contained therein. We have also made
such investigations of law and fact as we have deemed appropriate as a basis for
the opinion expressed below.
B-2-1
Based upon and subject to the foregoing and such further qualifications as
set forth below, it is our opinion that, under current law and assuming the
performance of the Operative Documents in accordance with the terms described
therein:
1. the Trust will be classified for United States federal income tax
purposes as a grantor trust and not as an association that is
taxable as a corporation, and
2. the Junior Subordinated Notes will be treated for United States
federal income tax purposes as indebtedness of the Company.
Our opinion is based on the U.S. Internal Revenue Code of 1986, as
amended, Treasury regulations promulgated thereunder, and administrative and
judicial interpretations thereof, all as of the date hereof and all of which are
subject to change, possibly on a retroactive basis. In rendering this opinion,
we are expressing our views only as to the federal income tax laws of the United
States of America. In rendering this opinion, we make no undertaking to advise
you of the effect of changes in matters of law or fact occurring subsequent to
the date hereof.
This opinion is rendered to you solely pursuant to Section 3.2(b) of the
Placement Agreement. As such, it may be relied upon by you and by any Subsequent
Purchaser as defined in Section 3.2 of the Placement Agreement 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,
Xxxxxx & Bird LLP
B-1-2
EXHIBIT B-3
FORM OF DELAWARE COUNSEL TRUST OPINION
Pursuant to Section 3.2(c) of the Placement Agreement, Xxxxxxxx, Xxxxxx
& Finger, P.A., special Delaware counsel for the Placement Agent, shall deliver
an opinion to the effect that:
(i) the Trust has been duly created and is validly existing in good standing
as a statutory trust under the Delaware Statutory Trust Act, and 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;
(ii) under the Delaware Statutory Trust Act and the Amended and Restated Trust
Agreement, the Trust has the trust power and authority (A) to own property
and conduct its business, all as described in the Amended and Restated
Trust Agreement, (B) to execute and deliver, and to perform its
obligations under, each of the Placement Agreement, the Subscription
Agreement, the Common Securities Subscription Agreement, the Junior
Subordinated Note Subscription Agreement and the Preferred Securities and
the Common Securities and (C) to purchase and hold the Junior Subordinated
Notes;
(iii) under the Delaware Statutory Trust Act, the certificate attached to the
Amended and Restated Trust Agreement as Exhibit C is an appropriate form
of certificate to evidence ownership of the Preferred Securities; the
Preferred Securities have been duly authorized by the Trust Agreement and,
when issued and delivered against payment of the consideration as set
forth in the Subscription Agreement, the Preferred Securities will be
validly issued and (subject to the qualifications set forth in this
paragraph) fully paid and nonassessable and will represent undivided
beneficial interests in the assets of the Trust; the holders of the
Preferred Securities will be entitled to the benefits of the Amended and
Restated Trust Agreement and, 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; and such counsel may
note that the holders of the Preferred Securities may be obligated,
pursuant to the Amended and Restated Trust Agreement, to (A) provide
indemnity and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of Preferred Securities
certificates and the issuance of replacement Preferred Securities
certificates and (B) provide security or indemnity in connection with
requests of or directions to the Property Trustee to exercise its rights
and remedies under the Amended and Restated Trust Agreement;
(iv) the Common Securities have been duly authorized by the Trust Agreement
and, when issued and delivered by the Trust to the Company against payment
therefor as described in the related Amended and Restated Trust Agreement
and the related Common Securities Subscription Agreement, will be validly
issued and fully paid and will represent undivided beneficial interests in
the assets of the Trust entitled to the benefits of the Trust Agreement;
B-3-1
EXHIBIT B-3
(v) under the Delaware Statutory Trust Act and the Amended and Restated Trust
Agreement, the issuance of the Preferred Securities and the Common
Securities is not subject to preemptive or other similar rights;
(vi) under the Delaware Statutory Trust Act and the Amended and Restated Trust
Agreement, the execution and delivery by the Trust of the Placement
Agreement, the Subscription Agreement, the Common Securities Subscription
Agreement and the Junior Subordinated Note Subscription Agreement, 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;
(vii) the Amended and Restated Trust Agreement constitutes a legal, valid and
binding obligation of the Company and the Trustees, and is enforceable
against the Company and the Trustees, in accordance with its terms
subject, as to enforcement, to the effect upon the Amended and Restated
Trust Agreement of (a) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or transfer and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (b) 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 (c) the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution;
(viii) the issuance and sale by the Trust of the Preferred Securities and the
Common Securities, the purchase by the Trust of the Junior Subordinated
Notes, the execution, delivery and performance by the Trust of the
Placement Agreement, the Subscription Agreement, the Common Securities
Subscription Agreement and the Junior Subordinated Note Subscription
Agreement, the consummation by the Trust of the transactions contemplated
by the Placement Agreement and Subscription Agreement and compliance by
the Trust with its obligations thereunder do not violate (a) any of the
provisions of the Certificate of Trust or the Amended and Restated Trust
Agreement or (b) any applicable Delaware law, rule or regulation;
(ix) no filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Delaware court or Delaware
governmental authority or Delaware agency is necessary or required solely
in connection with the issuance and sale by the Trust of the Common
Securities or the Preferred Securities, the purchase by the Trust of the
Junior Subordinated Notes, the execution, delivery and performance by the
Trust of the Placement Agreement, the Subscription Agreement, the Common
Securities Subscription Agreement and the Junior Subordinated Note
Subscription Agreement, the consummation by the Trust of the transactions
contemplated by the Placement Agreement and the Subscription Agreement and
compliance by the Trust with its obligations thereunder; and
(x) the holders of the Preferred Securities (other than those holders who
reside or are domiciled in the State of Delaware) will have no liability
for income taxes imposed by
X-0-0
XXXXXXX X-0
the State of Delaware solely as a result of their participation in the
Trust and the Trust will not be liable for any income tax imposed by the
State of Delaware.
In rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of the State of Delaware and (B) rely as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Company and public officials.
X-0-0
XXXXXXX X-0
FORM OF TRUSTEE COUNSEL OPINION
Pursuant to Section 3.2(d) of the Placement Agreement, Xxxxxxxx, Xxxxxx &
Finger, P.A., special counsel for the Guarantee Trustee, the Property Trustee
and the Indenture Trustee, shall deliver an opinion to the effect that:
(1) Wilmington Trust Company (the "Bank") has been duly incorporated and
is validly existing in good standing as a Delaware banking corporation under the
laws of the State of Delaware and has the power and authority to enter into, and
to take all action required of it under, the Transaction Documents.
(2) The Transaction Documents have been duly authorized, executed and
delivered by the Indenture Trustee, the Property Trustee and the Guarantee
Trustee and each constitutes a legal, valid and binding obligation of the
Indenture Trustee, the Property Trustee and the Guarantee Trustee enforceable
against them in accordance with their respective terms, except as the
enforceability thereof may be limited by (i) bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of creditors'
rights generally, as such laws would apply in the event of a bankruptcy,
insolvency or reorganization or similar occurrence affecting the Indenture
Trustee, the Property Trustee and the Guarantee Trustee; (ii) general principles
of equity (regardless of whether such enforceability is considered 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.
(3) The Junior Subordinated Notes have been duly authenticated and
delivered by the Indenture Trustee.
(4) The Preferred Securities have been duly authenticated and delivered
by the Property Trustee.
(5) The execution and delivery of each of the Transaction Documents by
the Indenture Trustee, the Property Trustee and the Guarantee and the
performance by them of their respective terms do not conflict with or result in
a violation of (A) any law or regulation of the United States of America or the
State of Delaware governing the banking or trust powers of the Bank, or (B) the
charter or By-laws of the Bank.
(6) No approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of Delaware
having jurisdiction over the banking or trust powers of the Bank is required in
connection with the execution and delivery by the Indenture Trustee, the
Property Trustee and the Guarantee Trustee of the Transaction Documents or the
performance by the Indenture Trustee, the Property Trustee and the Guarantee
Trustee of the terms of the Transaction Documents, other than the filing of the
Certificate of Trust.
In rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of the State of Delaware and the federal laws of the United
States governing the banking
B-4-1
EXHIBIT B-4
and trust powers of the Bank and (B) rely as to
matters of fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials.
B-4-2
EXHIBIT C
EXHIBIT C
OFFICER'S CERTIFICATE
The undersigned, the [Chief Financial Officer] [Treasurer] [Executive Vice
President] hereby certifies, pursuant to Section 6.7 of the Placement Agreement,
dated as of November 1, 2004, among Capital City Bank Group, Inc. (the
"Company"), CCBG Capital Trust I (the "Trust") and SunTrust Capital Markets,
Inc. that, as of [date], [20__], the Company had the following ratios and
balances:
BANK HOLDING COMPANY
As of [Quarterly Financial Dates], 200_
Tier 1 Risk Weighted Assets _________ %
Ratio of Double Leverage _________ %
Non-Performing Assets to Loans and OREO _________ %
Tangible Common Equity as a Percentage of Tangible Assets _________ %
Ratio of Reserves to Non-Performing Loans _________ %
Ratio of Net Charge-Offs to Loans _________ %
Return on Average Assets (annualized) _________ %
Net Interest Margin (annualized) _________ %
Efficiency Ratio _________ %
Ratio of Loans to Assets _________ %
Ratio of Loans to Deposits _________ %
Total Assets $ _________
Year to Date Income $ _________
* A table describing the quarterly report calculation procedures is provided on
page __
[FOR FISCAL YEAR END: Attached hereto are the audited consolidated financial
statements (including the balance sheet, income statement and statement of cash
flows, and notes thereto, together with the report of the independent
accountants thereon) of the Company and its consolidated subsidiaries for the
three years ended [date], 20__.]
[FOR FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Company and its consolidated subsidiaries for the fiscal
quarter ended [date], 20__.]
C-1
EXHIBIT C
The financial statements fairly present in all material respects, in accordance
with U.S. generally accepted accounting principles ("GAAP"), the financial
position of the Company and its consolidated subsidiaries, and the results of
operations and changes in financial condition as of the date, and for the [___
quarter interim] [annual] period ended [date], 20__, and such financial
statements have been prepared in accordance with GAAP consistently applied
throughout the period involved (except as otherwise noted therein).
IN WITNESS WHEREOF, the undersigned has executed this Officer's
Certificate as of this _____ day of _____________, 20__
___________________________________
Name:
Title:
Capital City Bank Group, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
(000) 000-0000
C-2
FINANCIAL DEFINITIONS
BANK HOLDING COMPANY
CORRESPONDING FRY-9C OR LP LINE ITEMS WITH LINE ITEM
REPORT ITEM CORRESPONDING SCHEDULES DESCRIPTION OF CALCULATION
------------------------- ---------------------------------------------------- ----------------------------------------
Tier 1 Risk Weighted BHCK7206 Tier 1 Risk Ratio: Core Capital (Tier
Assets Schedule HC-R 1)/ Risk-Adjusted Assets
Ratio of Double (BHCP0365)/(BCHCP3210) Total equity investments in subsidiaries
Leverage Schedule PC in the LP divided by the total equity capital.
This field is calculated at the parent
company level. "Subsidiaries" include
bank, bank holding company, and non-bank
subsidiaries.
Non-Performing Assets to (BHCK5525-BHCK3506+BHCK5526-
Loans and OREO BHCK3507+BHCK2744)/(BHCK2122+BHCK2744) Total Nonperforming Assets
Schedules HC-C, HC-M & HC-N (NPLs+Foreclosed Real Estate+Other
Nonaccrual & Repossessed Assets)/Total
Loans+Foreclosed Real Estate
Tangible Common Equity as (BHDM3210-BHCK3163)/(BHCK2170-BHCK3163) (Equity Capital - Goodwill)/(Total
a Percentage of Tangible Schedule HC Assets - Goodwill)
Assets
Ratio of Reserves to (BHCK3123+BHCK3128)/(BHCK5525- Total Loan Loss and Allocated Transfer
Non-Performing Loans BHCK3506+BHCK5526-BHCK3507) Risk Reserves/ Total Nonperforming Loans
Schedules HC & HC-N & HC-R (Nonaccrual + Restructured)
Ratio of Net Charge-Offs (BHCK4635-BHCK4605)/(BHCK3516) Net charge offs for the period as a
to Loans Schedules HC-B & HC-K percentage of average loans.
Return on Average Assets (BHCK4340/BHCK3368) Net Income as a percentage of Assets.
(annualized) Schedules HI & HC-K
Net Interest (BHCK4519)/(BHCK3515+BHCK3365+BHCK3516+ (Net Interest Income Fully Taxable
Margin BHCK3401+BHCKB985) Equivalent, if available/Average Earning
(annualized) Schedules HI Memorandum and HC-K Assets)
Efficiency Ratio (BHCK4093)/(BHCK4519+BHCK4079) (Non-interest Expense)/(Net Interest
Schedule HI Income Fully Taxable Equivalent, if
available, plus Non-interest Income)
Ratio of Loans to (BHCKB528+BHCK5369)/(BHCK2170) Total Loans & Leases (Net of Unearned
Assets Schedule HC Income & Gross of Reserve)/Total Assets
Ratio of Loans to (BHCKB528+BHCK5369)/(BHDM6631+BHDM6636+ Total Loans & Leases (Net of Unearned
Deposits BHFN6631+BHFN6636) Income & Gross of Reserve)/Total
Schedule HC Deposits (Includes Domestic and Foreign
Deposits)
1
Total Assets (BHCK2170) The sum of total assets. Includes cash
Schedule HC and balances due from depository
institutions; securities; federal funds
sold and securities purchased under
agreements to resell; loans and lease
financing receivables; trading assets;
premises and fixed assets; other real
estate owned; investments in
unconsolidated subsidiaries and
associated companies; customer's
liability on acceptances outstanding;
intangible assets; and other assets.
2