PURCHASE AGREEMENT AMONG GREATER COMMUNITY BANCORP, GCB CAPITAL TRUST III AND TWE, LTD., AS PURCHASER Dated as of July 2, 2007
Exhibit
4.10
AMONG
GCB
CAPITAL TRUST III
AND
TWE,
LTD.,
AS
PURCHASER
________________
Dated
as
of July 2, 2007
________________
($24,000,000
TRUST PREFERRED SECURITIES)
THIS
PURCHASE AGREEMENT, dated as of July 2, 2007, is entered into among, Greater
Community Bancorp, a New Jersey corporation (the “Company”), GCB
Capital Trust III, a Delaware statutory trust (the “Trust,” and,
together with the Company, the “Sellers”), and TWE, Ltd., an exempted
company incorporated under the laws of the Cayman Islands (including any
assignee thereof, the “Purchaser”).
WITNESSETH:
WHEREAS,
the Sellers propose to issue and sell an aggregate of
24,000 Preferred Securities of the Trust, having a stated liquidation
amount of $1,000 per preferred security, bearing a fixed rate of interest equal
to 6.96% per annum through the interest payment date in July 2017 and,
thereafter, a variable rate of interest, per annum, reset quarterly, equal
to
LIBOR (as defined in the Indenture (as defined below)) plus 1.40% (the
“Preferred Securities”), to the Purchaser;
WHEREAS,
the entire proceeds from the sale of the Preferred Securities will be combined
with the entire proceeds from the sale by the Trust to the Company of its common
securities (the “Common Securities”), and will be used by the Trust to
purchase $24,743,000 in principal amount of the unsecured junior subordinated
notes of the Company (the “Junior Subordinated Notes”);
WHEREAS,
the Preferred Securities and the Common Securities of the Trust will be issued
pursuant to the Amended and Restated Trust Agreement (the “Trust
Agreement”), dated as of the Closing Date (as defined below), among the
Company, as depositor, Wilmington Trust Company, as property trustee (in such
capacity, the “Property Trustee”), and as Delaware trustee (in such
capacity, the “Delaware Trustee”), the Administrative Trustees named
therein (in such capacities, the “Administrative Trustees”), and the
holders from time to time of undivided beneficial interests in the assets of
the
Trust;
WHEREAS,
the Preferred Securities will be fully and unconditionally guaranteed on a
subordinated basis by the Company with respect to distributions and amounts
payable upon liquidation, redemption or repayment (the “Guarantee”) pursuant and
subject to the Guarantee Agreement (the “Guarantee Agreement”), to be dated as
of the Closing Date and executed and delivered by the Company and Wilmington
Trust Company, as guarantee trustee (the “Guarantee Trustee”), for the benefit
from time to time of the holders of the Preferred Securities; and
WHEREAS,
the Junior Subordinated Notes will be issued pursuant to a Junior Subordinated
Indenture, dated as of the Closing Date (the “Indenture”), between the
Company, and Wilmington Trust Company, as indenture trustee (in such capacity,
the “Indenture Trustee”).
NOW,
THEREFORE, in consideration of the mutual agreements and subject to the terms
and conditions herein set forth, the parties hereto agree as
follows:
Section
1. Definitions. The Preferred
Securities, the Common Securities and the Junior Subordinated Notes are
collectively referred to herein as the
“Securities.” This
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Purchase
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and
the
Securities are collectively referred to herein as the “Operative
Documents.” All other capitalized terms used but not defined in
this Purchase Agreement shall have the meanings ascribed thereto in the
Indenture.
Section
2. Purchase and Sale of the Preferred
Securities.
The
Sellers agree to sell to the Purchaser, and the Purchaser agrees to purchase
from the Sellers, the Preferred Securities in the amount (the “Purchase
Price”) equal to an aggregate of $24,000,000. In connection with
the purchase of the Preferred Securities, the Company shall pay no fee to its
introducing agent (the “Introducing Agent”). The Purchaser
shall be responsible for the following expenses: (i) any rating
agency costs and expenses, and (ii) any fee payable to the Introducing Agent,
provided that the Introducing Agent has an agreement with the Purchaser (the
“Fee”); but shall not be responsible for any fees and expenses set
forth in Section 7 hereof, unless otherwise provided therein. The
Trust shall use the Purchase Price, together with the proceeds from the sale
of
the Common Securities, to purchase the Junior Subordinated Notes.
Delivery
or transfer of, and payment for, the Preferred Securities shall be made at
11:00
A.M. New York City time, on July 2, 2007, or such later date (not later than
August 2, 2007) as the parties may designate (such date and time of delivery
and
payment for the Preferred Securities being herein called the “Closing
Date”). On the Closing Date, the Preferred Securities shall be
transferred and delivered to the Purchaser, or its designee, against the payment
of the Purchase Price to the Sellers made by wire transfer in immediately
available funds to a U.S. account designated in writing by the
Company.
Delivery
of the Preferred Securities shall be made at such location, and in such names
and denominations, as the Purchaser shall designate in advance of the Closing
Date. The Sellers agree to have the Preferred Securities available
for inspection and checking by the Purchaser in New York City, New York, not
later than 2:00 P.M. New York City time, on the business day prior to the
Closing Date. The closing for the purchase and sale of the Preferred
Securities shall occur at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Two
World Financial Center, New York, New York 10281, or such other place as the
parties hereto shall agree.
The
Preferred Securities shall be sold by the Trust, directly or indirectly, to
the
Purchaser without registration of any of the Preferred Securities or the Junior
Subordinated Notes under the Securities Act of 1933, as amended (the
“Securities Act”), or any other applicable securities laws in reliance
upon exemptions from the registration requirements of the Securities Act and
other applicable securities laws. The Sellers and the Purchaser have
entered into this Agreement to set forth their understanding as to their
relationship and their respective rights, duties and obligations.
Upon
original issuance thereof, the Preferred Securities and Junior Subordinated
Notes certificates shall each contain a legend as required pursuant to any
of
the Operative Documents, including without limitation, a legend stating that
the
offer, sale or transfer of the Preferred Securities or the Junior Subordinated
Notes, as the case may be, will be made only (a) to the issuer thereof, (b)
to a
person that the transferor reasonably believes is a “qualified
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institutional
buyer” (as defined in Rule 144A under the Securities Act) in a transaction
meeting the requirements of Rule 144A, or (c) to an institutional “accredited
investor” within the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule
501 under the Securities Act that is acquiring the Preferred Securities or
the
Junior Subordinated Notes, as the case may be, for its own account, or for
the
account of such an “accredited investor,” for investment purposes and not with a
view to, or for offer or sale in connection with, any distribution thereof
in
violation of the Securities Act, in each case in accordance with any applicable
securities laws of any state of the United States or any other applicable
jurisdiction and, in the case of (c) above, subject to the right of the Trust
and/or the Company, as applicable, to require an opinion of counsel and other
information satisfactory to each of them.
The
Purchaser is purchasing the Preferred Securities in its capacity as a warehouse
entity, and the Purchaser may resell the Preferred Securities to a subsequent
purchaser (any such purchaser of the Purchaser and, if such purchaser is a
warehouse entity, the next subsequent purchaser that is not a warehouse entity,
being referred to hereinafter as a “Subsequent
Purchaser”). Upon transfer of the Preferred Securities to a
Subsequent Purchaser, such Subsequent Purchaser shall be entitled to each of
the
benefits of this Agreement, subject to the limitations, qualifications,
acknowledgments and exceptions contained herein, and shall be entitled to
enforce the obligations of the Sellers under this Agreement, as fully as if
the
Subsequent Purchaser were a party to this Agreement.
Section
3. Closing Conditions. The
obligations of the parties under this Agreement on the Closing Date are subject
to the following conditions:
Accuracy
of Representations and Warranties. The representations and
warranties contained in this Agreement, and the statements of the Sellers made
in any certificates pursuant to this Agreement, shall be accurate as of the
date
of delivery of the Preferred Securities.
Opinions
of Counsel. On the Closing Date, the Purchaser shall have
received the following favorable opinions or certificate, as the case may be,
each dated as of the Closing Date: (a) from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood LLP,
special counsel for the Purchaser and addressed to the Purchaser in
substantially the form set forth on Exhibit A-1 attached hereto and
incorporated herein by this reference, (b) either (i) an opinion from ▇▇▇▇▇▇▇
& ▇▇▇▇▇ LLP, counsel for the Sellers, or (ii) an opinion from the General
Counsel or Chief Legal Officer of the Company, or (iii) if the Company does
not
have a General Counsel or Chief Legal Officer, an Officers’ Certificate from the
Chief Executive Officer, President or Executive Vice President of the Company,
and the Chief Financial Officer, Treasurer or Assistant Treasurer of the
Company, in each case addressed to the Purchaser in substantially the form
set
forth on Exhibit A-2 attached hereto and incorporated herein by this
reference, (c) from ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP , special tax counsel for the
Sellers and addressed to the Purchaser in substantially the form set forth
on
Exhibit A-3 attached hereto and incorporated herein by this reference,
(d) from ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special Delaware counsel to the Trust and addressed
to the Purchaser and the Sellers, in substantially the form set forth on
Exhibit A-4 attached hereto and incorporated herein by this reference,
and (e) from ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Indenture Trustee, the
Property Trustee, the Delaware Trustee and the Guarantee Trustee and addressed
to the Purchaser and the Sellers, in substantially the form set forth on
Exhibit A-5 attached hereto and incorporated herein
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by
this
reference. Each certificate or opinion addressed to the Purchaser
shall state that a Subsequent Purchaser shall be entitled to rely on such
opinion.
Officer’s
Certificate. The Company shall have furnished to the Purchaser a
certificate of the Company, signed by its 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
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:
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
since
the
date of the 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, taken as a whole,
whether or not arising from transactions occurring in the ordinary course of
business.
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
Purchaser’s judgment, so material and adverse as to make it impractical or
inadvisable to proceed with the purchase of the Preferred
Securities.
Purchase
Permitted by Applicable Laws; Legal Investment. The purchase of
and payment for the Preferred Securities as described in this Agreement shall
(a) not be prohibited by any applicable law or governmental regulation, (b)
not
subject the Purchaser to any penalty or, in the reasonable judgment of the
Purchaser, other onerous conditions under or pursuant to any applicable law
or
governmental regulation, and (c) be permitted by the laws and regulations of
the
jurisdictions to which the Purchaser is subject.
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.
Information. Prior
to or on the Closing Date, the Sellers shall have furnished to the Purchaser
and
its counsel such further information, certificates, opinions and documents
as
the Purchaser or its counsel may reasonably request.
Each
certificate signed by any trustee of the Trust or any officer of the Company
and
delivered to
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the
Purchaser or its counsel in connection with the Operative Documents and the
transactions contemplated hereby and thereby shall be deemed to 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
Sellers. The Sellers jointly and severally represent and warrant
to the Purchaser as of the date hereof and as of the Closing Date as
follows:
Securities
Laws Matters:
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 Introducing 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.
Neither
the Company nor the Trust, nor any of their Affiliates, nor any person acting
on
its or their behalf (except for the Introducing 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.
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)”).
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.
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.
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
5
Del.
C.
§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 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 federal income tax purposes
as a
grantor trust and not as an association or publicly traded partnership taxable
as a corporation.
Trust
Agreement. The Trust Agreement has been duly authorized by the
Company and, on the Closing Date specified in Section 2.2, 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 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 one of its subsidiaries and has been duly authorized
by the Company to execute and deliver the Trust Agreement. To the
knowledge of the Company and the Trust, the Trust is not in violation of any
provision of the Statutory Trust Act.
Guarantee
Agreement and the Indenture. The Guarantee Agreement and the
Indenture have 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
and
similar laws affecting creditors’ rights generally and to general principles of
equity.
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, 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
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”).
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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 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 and similar laws affecting creditors’ rights generally
and to general principles of equity.
Purchase
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 and similar laws affecting creditors’ rights generally and to general
principles of equity.
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, to the extent a party thereto, 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 its
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 Entity 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. 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.
7
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 New Jersey, 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.
Subsidiaries
of the Company. The Company has no subsidiaries that are material
to its business, financial condition or earnings other than those subsidiaries
listed in Schedule 4.10 attached hereto (the “Significant
Subsidiaries”). Each Significant Subsidiary has been duly
organized and is validly existing and in good standing under the laws of the
jurisdiction in which it is chartered or organized, with all requisite power
and
authority to own its properties and conduct the business it transacts and
proposes to transact. Each Significant 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 Significant Subsidiary to be so qualified
would not, singly or in the aggregate, have a Material Adverse
Effect.
Government
Licenses; Laws. 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 its 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 its 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.
Stock. All
of the issued and outstanding shares of capital stock of the Company and each
of
its subsidiaries are validly issued, fully paid and nonassessable; all of the
issued and outstanding capital stock of each subsidiary of the Company is owned
by the Company, directly or through subsidiaries, free and clear of any Lien,
claim or equitable right; and none of the issued and outstanding capital stock
of the Company or any subsidiary was issued in violation of any preemptive
or
similar rights arising by operation of law, under the charter or by-laws of
such
entity or under any agreement to which the Company or any of its subsidiaries
is
a party.
Property. Each
of the Trust, the Company and each subsidiary of the Company 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 of
the
Company holds properties are in full force and effect, except
8
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 of the Company 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 of the Company 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.
Conflicts,
Authorizations and Approvals. Neither the Company nor any of its
subsidiaries is (i) in violation of its respective charter, bylaws or similar
organizational 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.
Holding
Company Registration and Deposit Insurance. The Company is duly
registered as a bank holding company, and has filed an effective election with
the Federal Reserve Bank of New York 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 institution 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 are pending or, to the knowledge of the Company or the Trust after
due
inquiry, threatened.
Financial
Statements.
The
audited consolidated financial statements (including the notes thereto) and
schedules of the Company and its consolidated subsidiaries at and for the three
fiscal years ended December 31, 2006 (the “Financial Statements”) and
the interim unaudited consolidated financial statements of the Company and
its
consolidated subsidiaries at and for the quarter and three months ended March
31, 2007, (the “Interim Financial Statements”) provided to the
Purchaser 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
9
financial
statements and schedules have been prepared in accordance with GAAP consistently
applied throughout the periods involved (except as otherwise noted
therein).
The
Company’s report on FRY-9C, dated March 31, 2007 (the “FRY-9C”), provided to the
Purchaser 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. None of the Company or any of its
subsidiaries has been requested by a Governmental Entity to republish, restate
or refile any regulatory or financial report.
Since
the
respective dates of the Financial Statements and the FRY-9C, there has not
been
(A) any material adverse change or development with respect to the condition
(financial or otherwise), earnings, business, assets or business prospects
of
the Company and its subsidiaries, taken as a whole, whether or not occurring
in
the ordinary course of business or (B) other than the stock dividend described
in Schedule 4.16(c), any dividend or distribution of any kind declared, paid
or
made by the Company on any class of its capital stock other than regular
quarterly dividends on the Company’s common stock.
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 Securities
and Exchange Commission (“SEC”) thereunder.
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, except as
listed on Schedule 4.17, 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. The Company meets the required capital levels for
“well-capitalized” bank holding companies established by the Federal Reserve and
in effect as of the date hereof. Each of the Company’s subsidiaries
that is a depository institution, the accounts of which are insured by the
FDIC
(i) is “well-capitalized” within the meaning of 12 U.S.C. §1831o and applicable
implementing regulations thereunder; and (ii) is not, and has not been notified
by any Regulatory Agency that it is, in “troubled condition” within the meaning
of 12 U.S.C. §1831i and applicable implementing regulations
thereunder. As used herein, the term “Regulatory Agency” means any
federal or
10
state
agency charged with the supervision or regulation of depository institutions
or
holding companies of depository institutions, or engaged in the insurance of
depository institution deposits, or any court, administrative agency or
commission or other governmental agency, authority or instrumentality having
supervisory or regulatory authority with respect to the Trust, the Company
or
any of its subsidiaries.
No
Undisclosed Liabilities. Except as listed on Schedule 4.18, none of
the Trust, the Company nor any of its subsidiaries has any material liability,
whether known or unknown, whether asserted or unasserted, whether absolute
or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due, including any liability for taxes (and there
is no past or present fact, situation, circumstance, condition or other basis
for any present or future action, suit, proceeding, hearing, charge, complaint,
claim or demand against the Company or its subsidiaries 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.
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 after due inquiry, threatened against or affecting
the
Trust or the Company or any of its subsidiaries, except for such
actions, suits or proceedings that, if adversely determined, would not, singly
or in the aggregate, adversely affect the consummation of the transactions
contemplated by the Operative Documents or have a Material Adverse
Effect.
No
Labor Disputes. No labor dispute with the employees of the Trust,
the Company or any of its subsidiaries exists or, to the knowledge of the
executive officers of the Trust or the Company, is imminent, except those which
would not, singly or in the aggregate, have a Material Adverse
Effect.
Filings
with the SEC. The documents of the Company filed with the SEC in
accordance with the Exchange Act, from and including the commencement of the
fiscal year covered by the Company’s most recent Annual Report on Form 10-K, at
the time they were or hereafter are filed by the Company with the SEC
(collectively, the “1934 Act Reports”), complied and will comply in all
material respects with the requirements of the Exchange Act and the rules and
regulations of the SEC thereunder (the “1934 Act Regulations”), and did
not, and, at the date of this Agreement and on the Closing Date, do not and
will
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; and
other than such instruments, agreements, contracts and other documents as are
filed as exhibits to the Company’s Annual Report on Form 10-K, Quarterly Reports
on Form 10-Q or Current Reports on Form 8-K, there are no instruments,
agreements, contracts or documents of a character described in Item 601 of
Regulation S-K promulgated by the SEC to which the Company or any of its
subsidiaries is a party. The Company is in
11
compliance
with all currently applicable requirements of the Exchange Act and the 1934
Act
Regulations that were added by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
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.
Tax
Returns. The Company and each of the Significant Subsidiaries
have timely and duly filed all Tax Returns (defined below) required to be filed
by them, and all such Tax Returns are true, correct and complete in all material
respects. The Company and each of the Significant Subsidiaries have
timely and duly paid in full all material Taxes required to be paid by them
(whether or not such amounts are shown as due on any Tax
Return). There are no federal, state, or other Tax audits or
deficiency assessments proposed or pending with respect to the Company or any
of
the Significant Subsidiaries, and no such audits or assessments are
threatened. As used herein, the terms “Tax” or
“Taxes” mean (i) all federal, state, local, and foreign taxes,
and
other assessments of a similar nature (whether imposed directly or through
withholding), including any interest, additions to tax, or penalties applicable
thereto, imposed by any Governmental Entity, and (ii) all liabilities in respect
of such amounts arising as a result of being a member of any affiliated,
consolidated, combined, unitary or similar group, as a successor to another
person or by contract. As used herein, the term “Tax
Returns” means all federal, state, local, and foreign Tax returns,
declarations, statements, reports, schedules, forms, and information returns
and
any amendments thereto filed or required to be filed with any Governmental
Entity.
Taxes.
The Trust is not subject to United States federal income tax with respect to
income received or accrued on the Junior Subordinated Notes, interest payable
by
the Company on the Junior Subordinated Notes is deductible by the Company,
in
whole or in part, for United States federal income tax purposes, and the Trust
is not, or will not be within ninety (90) days of the date hereof, subject
to
more than a de minimis amount of other taxes, duties or other
governmental charges. There are no rulemaking or similar proceedings
before the United States Internal Revenue Service or comparable federal, state,
local or foreign government bodies which involve or affect the Company or any
subsidiary, which, if the subject of an action unfavorable to the Company or
any
subsidiary, could result in a Material Adverse Effect.
Books
and Records. The books, records and accounts of the Company and
its subsidiaries accurately and fairly reflect, in reasonable detail, the
transactions in, and dispositions of, the assets of, and the results of
operations of, the Company and its subsidiaries. The Company and each of its
subsidiaries maintains a system of internal accounting controls
12
sufficient
to provide reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in accordance with GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management’s general or
specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
Insurance. The
Company and the Significant Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts
in
all material respects as are customary in the businesses in which they are
engaged or propose to engage after giving effect to the transactions
contemplated hereby, including, but not limited to, real or personal property
owned or leased against theft, damage, destruction, act of vandalism and all
other risks customarily insured against. All policies of insurance and fidelity
or surety bonds insuring the Company or any of the Significant Subsidiaries,
or
insuring the Company’s or Significant Subsidiaries’ respective businesses,
assets, employees, officers and directors, are in full force and effect. The
Company and each of the Significant Subsidiaries are in compliance with the
terms of such policies and instruments in all material respects. Neither the
Company nor any Significant Subsidiary has reason to believe that it will not
be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse Effect.
Within the past twelve months, neither the Company nor any Significant
Subsidiary has been denied any insurance coverage which it has sought or for
which it has applied.
Corporate
Funds. The Company and its subsidiaries or any person acting on
behalf of the Company and its subsidiaries including, without limitation, any
director, officer, agent or employee of, the Company or its subsidiaries has
not, directly or indirectly, while acting on behalf of the Company and its
subsidiaries (i) used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity; (ii)
made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from
corporate funds; (iii) violated any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any other unlawful payment.
OSHA
Compliance. Neither the Company nor any of its subsidiaries is in
violation of any federal or state law or regulation relating to occupational
safety and health and the Company and its subsidiaries have received all
permits, licenses or other approvals required of them under applicable federal
and state occupational safety and health and environmental laws and regulations
to conduct their respective businesses, and the Company and each of its
subsidiaries is in compliance with all terms and conditions of any such permit,
license or approval, except any such violation of law or regulation, failure
to
receive required permits, licenses or other approvals or failure to comply
with
the terms and conditions of such permits,
13
licenses
or approvals which would not, singly or in the aggregate result in a Material
Adverse Effect.
Information. The
information provided by the Company and the Trust pursuant to this Agreement
does not, as of the date hereof, and will not, as of the Closing Date, 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.
Section
5. Representations and Warranties of the
Purchaser. The Purchaser represents and warrants to, and agrees
with, the Company and the Trust as follows:
The
Purchaser understands and acknowledges that the Preferred Securities, the Junior
Subordinated Notes and the Guarantee (i) have not been registered under the
Securities Act, or any other applicable securities law, (ii) are being offered
for sale by the Trust or the Company, as the case may be, 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.
The
Purchaser 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.
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 Sellers concerning their respective 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
Sellers 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
Sellers.
The
Purchaser is (i) 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, and (ii) a “qualified institutional buyer” within the meaning of
Rule 144A under the Securities Act.
Section
6. Covenants of the Sellers. The
Sellers covenant and agree with the Purchaser as follows:
14
Compliance
with Representations and Warranties. During
the period from the date of this Agreement to the Closing Date, the Sellers
shall use their best efforts and take all action necessary or appropriate 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.
Sale
and Registration of Securities. Neither the Company nor the Trust
will, nor will either of them permit any of their Affiliates to, nor will any
of
them permit any person acting on its or their behalf (other than the Introducing
Agent and its affiliates) to, directly or indirectly, (i) resell any Preferred
Securities that have been acquired by any of them, (ii) 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 (iii) 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.
Clearing
and Settlement. The Company and the Trust will cooperate with the Purchaser
(or any holder of the Preferred Securities) and use all commercially reasonable
efforts to make the Preferred Securities eligible for clearance and settlement
as book-entry securities through the facilities of the Depository Trust Company
(“DTC”) and listed for trading through the PORTAL Market
(“PORTAL”), and will execute, deliver and comply with all
representations made to, and agreements with, DTC and PORTAL. This Section
6.3
will survive delivery of and payment for the Preferred Securities.
Integration. Neither
the Company nor the Trust will, until one hundred eighty (180) days following
the Closing Date, without the Purchaser’s prior written consent, offer, sell,
contract to sell, grant any option to purchase or otherwise dispose of, directly
or indirectly, (i) any Preferred Securities or other securities of the Trust
other than as contemplated by this Agreement or (ii) any other securities
convertible into, or exercisable or exchangeable for, any Preferred Securities
or other securities of the Trust.
Qualification
of Securities. The Company and the Trust will arrange for the
qualification of the Preferred Securities for sale under the laws of such
jurisdictions as the Purchaser may designate and will maintain such
qualifications in effect so long as required for the sale of the Preferred
Securities. The Company or the Trust, as the case may be, will
promptly advise the Purchaser of the receipt by the Company or the Trust, as
the
case may be, of any notification with respect to the suspension of the
qualification of the Preferred Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
Use
of
Proceeds. The Trust shall use the proceeds from the sale of the
Preferred Securities and the Common Securities to purchase the Junior
Subordinated Notes from the Company.
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
15
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 the Company nor the Trust shall engage, or permit any subsidiary
to engage, in any activity which would cause it or any subsidiary to be an
“investment company” under the provisions of the Investment Company
Act.
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 (other than the Introducing Agent and its affiliates), to (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.
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 Sellers 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 Sellers 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 Sellers pursuant to this Section 6.9 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.
Reports. The
Company shall furnish to (i) the Purchaser and any subsequent holder of the
Securities, and (ii) any beneficial owner of the Securities reasonably
identified to the Company (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 B, including the financial statements
referenced in such Exhibit, which certificate and financial statements shall
be
so furnished by the Company not later than forty-five (45) days after the end
of
each of the first three fiscal quarters of each fiscal year of the Company
and
not later than ninety (90) days after the end of each fiscal year of the
Company.
Section
7. Payment of Expenses.
The
Company hereby covenants and agrees that it shall pay or cause to be paid
(directly or by reimbursement) all costs and expenses incident to the
performance of the obligations of the Sellers under this Agreement, whether
or
not the transactions contemplated
16
herein
are consummated or this Agreement is terminated, including (i) all costs and
expenses incident to the authorization, issuance, sale and delivery of the
Preferred Securities and any taxes payable in connection therewith; (ii) the
fees and expenses of qualifying the Preferred Securities under the securities
laws of the several jurisdictions as provided in Section 6.5; (iii) the
fees and expenses of the counsel, the accountants and any other experts or
advisors retained by the Company or the Trust, which counsel fees and expenses
incurred in connection with the closing of the transactions contemplated hereby,
in an amount up to $10,000, shall be reimbursed by the Purchaser on the Closing
Date; (iv) the fees and all reasonable expenses of the Guarantee Trustee, the
Property Trustee, the Delaware Trustee, the Indenture Trustee and any other
trustee or paying agent appointed under the Operative Documents except for
any
acceptance fee and annual administrative fees of any such trustee and the fees
and disbursements of counsel to such trustees incurred in connection with the
closing of the transactions contemplated hereby, which shall be paid by the
Purchaser.
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 the Purchaser, the Company will reimburse
the
Purchaser upon demand for all reasonable out-of-pocket expenses that shall
have
been incurred by the Purchaser in connection with the proposed purchase and
sale
of the Preferred Securities, including the fees and expenses of counsel for
the
Purchaser and any hedge breakage costs and expenses. The Company
shall not in any event be liable to the Purchaser for the loss of anticipated
profits from the transactions contemplated by this Agreement.
Section
8. Indemnification &
Contribution.
Indemnification.
The
Company and the Trust agree jointly and severally to indemnify and hold harmless
the Purchaser, a Subsequent Purchaser and their respective 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 either the Securities
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, 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 or documents furnished or made available to the
Purchaser by or on behalf of the Company, (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, or (iii) the breach or alleged
breach of any representation, warranty or agreement of either Seller contained
herein, 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,
17
damage,
liability or action. This indemnity agreement will be in addition to
any liability which the Company or the Trust may otherwise have. Promptly after
receipt by an Indemnified Party under this Section 8 of notice of the
commencement of any action, such Indemnified Party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
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 8.1.1 above unless 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 8.1.1 above. The
Purchaser shall be entitled to appoint counsel to represent the Indemnified
Party in any action for which indemnification is sought. An
indemnifying party may participate at its own expense in the defense of any
such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the Indemnified Party) also be counsel to the
Indemnified Party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all Indemnified Parties in
connection with any one action or separate but similar or related actions in
the
same jurisdiction arising out of the same general allegations or
circumstances. An indemnifying party will 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 may be sought
hereunder (whether or not the Indemnified Parties are actual or potential
parties to such claim, action, suit or proceeding) 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.
Contribution.
In
order
to provide for just and equitable contribution in circumstances under which
the
indemnification provided for in Section 8.1 hereof is for any reason held to
be
unenforceable for the benefit of an Indemnified Party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such Indemnified Party,
as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Sellers, on the one hand, and the Purchaser, on the
other hand, from the offering of the Securities or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion
as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above, but also the relative fault of the Sellers, on the one hand, and
the
Purchaser, on the other hand, in connection with the statements, omissions
or
breaches, which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The
relative benefits received by the Sellers, on the one hand, and the Purchaser,
on the other hand, in connection with the offering of the Securities shall
be
deemed to be in the same respective proportions as the total net proceeds from
the offering of the Securities (before deducting expenses) received by the
Sellers and the Fee paid by the Purchaser bear to the aggregate of such net
proceeds and the Fee.
18
The
Sellers and the Purchaser agree that it would not be just and equitable if
contribution pursuant to this Section 8.2 were determined by pro rata
allocation or by any other method of allocation which does not take account
of
the equitable considerations referred to above in this
Section 8.2. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an Indemnified Party and referred
to
above in this Section 8.2 shall be deemed to include any legal or other
expenses reasonably incurred by such Indemnified Party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any
claim whatsoever based upon any such untrue or alleged untrue statement,
omission or alleged omission or breach or alleged breach.
Notwithstanding
any provision of this Section 8 to the contrary, the Purchaser shall
not be required to contribute any amount in excess of the amount of the
Fee.
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 8.2, each person, if any, who controls the
Purchaser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act and the respective partners, directors,
officers, employees and agents of the Purchaser or any such controlling person
shall have the same rights to contribution as the Purchaser, while each officer
and director of the Company, each trustee of the Trust and each person, if
any,
who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Sellers.
Additional
Remedies. The indemnity and contribution agreements contained in
this Section 8 are in addition to any liability that the Sellers may
otherwise have to any Indemnified Party.
Additional
Indemnification. The Company shall indemnify and hold harmless
the Trust against all loss, liability, claim, damage and expense whatsoever,
as
due from the Trust under Sections 8.1 through 8.3
hereof.
Section
9. Rights and Responsibilities of
Purchaser.
[Reserved].
Section
10. Termination. This Agreement
shall be subject to termination in the absolute discretion of the Purchaser,
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) the Trust shall be unable
to
sell and deliver to the Purchaser at least $24,000,000 stated aggregate
liquidation value of Preferred Securities, (ii) the Company or any of its
subsidiaries that is an insured depository institution shall cease to be
“adequately-capitalized” within the meaning of 12 U.S.C. Section 1831 and
applicable regulations adopted thereunder, or any formal administrative or
judicial
19
action
is
taken by any appropriate federal banking agency against the Company or any
such
insured subsidiary for unsafe and unsound banking practices, or violations
of
law, (iii) a suspension or material limitation in trading in securities
generally shall have occurred on the New York Stock Exchange, (iv) a suspension
or material limitation in trading in any of the Company’s securities shall have
occurred on the exchange or quotation system upon which the Company’s securities
are traded, if any, (v) a general moratorium on commercial banking
activities shall have been declared either by federal or New Jersey authorities
or (vi) there shall have occurred any outbreak or escalation of
hostilities, or declaration by the United States of a national emergency or
war
or other calamity or crisis the effect of which on financial markets is such
as
to make it, in the Purchaser’s judgment, impracticable or inadvisable to proceed
with the offering or delivery of the Preferred Securities.
Section
11. Miscellaneous.
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 such
information is specifically included on the Disclosure Schedule in accordance
with the provisions of this Section 11.1.
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
Purchaser, to:
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TWE,
Ltd.
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c/o
Maples Finance Limited
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P.O.
Box 1093 GT, Queensgate House, South Church
Street
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▇▇▇▇▇▇
Town, Grand Cayman, Cayman Islands
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(▇▇▇)
▇▇▇-▇▇▇▇
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Attention:
The Directors
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20
with
a
copy to:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Two
World
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
if
to the
Sellers, to:
GCB
Capital Trust III
▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: Chief
Financial Officer
with
a
copy to:
▇▇▇▇▇▇▇
& ▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
All
such
notices and communications shall be deemed to have been duly given (i) at the
time delivered by hand, if personally delivered, (ii) five business days after
being deposited in the mail, postage prepaid, if mailed, (iii) when answered
back, if telexed, (iv) the next business day after being telecopied, or (v)
the
next business day after timely delivery to a courier, if sent by overnight
air
courier guaranteeing next-day delivery. From and after the Closing, the
foregoing notice provisions shall be superseded by any notice provisions of
the
Operative Documents under which notice is given. The Purchaser, the Sellers,
and
their respective counsel, may change their respective notice addresses, from
time to time, by written notice to all of the foregoing persons.
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 8 hereof, their successors,
assigns, heirs and legal representatives, and any Subsequent Purchaser, 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 Purchaser’s prior written
consent. The rights and obligations of the Purchaser under this
Agreement may be assigned without the Company’s or the Trust’s consent; provided
that the assignee assumes the obligations of the Purchaser under this
Agreement.
21
Recourse
Limited. No recourse shall be had to any subscriber, officer,
director, employee, trustee, equity holder, certificate holder, incorporator
or
agent of the Purchaser or its successors or assigns for any obligations
hereunder. The Sellers, severally and jointly, further agree (i) not
to take any action in respect of any claims hereunder against any subscriber,
officer, director, employee, trustee, equity holder, certificate holder,
incorporator or agent of the Purchaser or any of its successors or assigns
that
is an investment vehicle issuing collateralized debt obligations and (ii) not
to
institute against any successor or assign of the Purchaser that is an investment
vehicle issuing collateralized debt obligations any insolvency, bankruptcy,
reorganization, liquidation or similar proceedings in any jurisdiction until
one
year and one day or, if longer, the applicable preference period then in effect,
as the case may be, shall have elapsed since the final payments to the holders
of the securities issued by such investment vehicle.
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.
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 which shall be effective as
delivery of a manually executed counterpart hereof.
Headings. The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
Governing
Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW).
Submission
to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY
PARTY HERETO OR WITH RESPECT TO OR ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT
IN OR REMOVED TO THE COURTS OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY
OF
NEW YORK, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK (IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF
ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS (AND COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT
OF OR
IN CONNECTION WITH THIS AGREEMENT.
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
22
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.
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 Purchaser’s rights and privileges shall be enforceable
to the fullest extent permitted by law.
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 Purchaser 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 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 2.1, 7 and 8 shall survive the termination or cancellation of this
Agreement.
Signatures
appear on the following page
23
IN
WITNESS WHEREOF, this Purchase Agreement has been entered into as of the date
first written above.
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Title:
President and
Chief
Executive Officer
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GCB
CAPITAL TRUST III
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By:
Greater Community Bancorp, as Depositor
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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||
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Title:
Sr. Vice President, Treasurer and
Chief
Financial Officer
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TWE,
LTD., as Purchaser,
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By:
Trapeza Capital Management, LLC, as Portfolio Manager
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Managing
Director
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S-1
EXHIBIT
A-1
FORM
OF
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP OPINION
Pursuant
to Section 3.2(a) of the Purchase Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood LLP, special counsel for
the
Purchaser, shall deliver an opinion to the effect that:
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(i)
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the
Company and each Significant Subsidiary is validly existing as a
corporation in good standing under the laws of the jurisdiction in
which
it is chartered or organized;
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(ii)
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the
Company has corporate power and authority to (a) execute and deliver,
and
to perform its obligations under, the Operative Documents to which
it is a
party and (b) issue and perform its obligations under the
Notes;
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(iii)
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neither
the issue and sale of the Common Securities, the Preferred Securities
or
the Junior Subordinated Notes, nor the purchase by the Trust of the
Junior
Subordinated Notes, nor the execution and delivery of, and compliance
with, the Operative Documents to which each is a party by, the Company
or
the Trust, nor the consummation of the transactions contemplated
thereby
will constitute a breach or violation of the Trust Agreement or the
charter or by-laws of the Company;
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(iv)
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the
Amended and Restated Trust Agreement has been duly authorized, executed
and delivered by the Company and duly executed and delivered by the
Administrative Trustees;
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(v)
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each
of the Guarantee and the Indenture has been duly authorized, executed
and
delivered by the Company and, assuming it has been duly authorized,
executed and delivered by the Guarantee Trustee and the Indenture
Trustee,
respectively, constitutes a legal, valid and binding obligation of
the
Company, enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and to general principles of
equity;
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(vi)
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the
Junior Subordinated Notes have been duly authorized and executed
by the
Company and delivered to the Indenture Trustee for authentication
in
accordance with the Indenture and, when authenticated in accordance
with
the provisions of the Indenture and delivered to the Trust against
payment
therefor, will constitute legal, valid and binding obligations of
the
Company entitled to the benefits of the Indenture and enforceable
against
the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights
generally and to general principles of
equity;
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(vii)
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the
Trust is not, and, following the issuance of the Preferred Securities
and
the consummation of the transactions contemplated by the Operative
Documents and the application of the proceeds therefrom, the Trust
will
not be, an “investment company” or an entity “controlled” by an
“investment company,” in each case within the meaning of the Investment
Company Act;
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(viii)
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assuming
(a) the accuracy of the representations and warranties, and compliance
with the agreements contained in the Purchase Agreement and (b) that
the
Preferred Securities are sold in a manner contemplated by, and in
accordance with the Purchase Agreement and the Amended and Restated
Trust
Agreement, it is not necessary in connection with
the
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A-1-1
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offer,
sale and delivery of the Preferred Securities by the Trust to the
Purchaser, to register any of the Securities under the Securities
Act or
to require qualification of the Indenture under the Trust Indenture
Act of
1939, as amended;
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(ix)
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the
Purchase Agreement has been duly authorized, executed and delivered
by the
Company and the Trust; and,
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(x)
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the Indenture
constitutes a valid and binding instrument of the Indenture Trustee,
enforceable against the Indenture Trustee in accordance with its
terms, except as rights to indemnity and contribution thereunder
may be
limited under applicable law or public policy, and subject to the
qualifications that (i) enforcement thereof may be limited by bankruptcy,
insolvency, receivership, reorganization, liquidation, voidable
preference, moratorium or other laws (including the laws of fraudulent
conveyance and transfer) or judicial decisions affecting the enforcement
of creditors’ rights generally or the reorganization of financial
institutions and (ii) the enforceability of the Indenture Trustee’s
obligations thereunder is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law) and to the effect of certain laws and judicial
decisions upon the availability and enforceability of certain remedies,
including the remedies of specific performance and
self-help.
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In
rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of the State of New York, the Delaware General
Corporation Law and the federal laws of the United States; (B) as to
matters involving the application of laws of any jurisdiction other than the
State of New York and the Delaware General Corporation Law or the federal
laws of the United States, (i) rely, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to the Purchaser or (ii) assume
such law is substantially similar to the law of the State of New York and,
(C)
as to matters of fact, rely to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
COMPANY COUNSEL OPINION
OR
OFFICERS’ CERTIFICATE
Pursuant
to Section 3.2(b) of the Purchase Agreement, either (i) counsel for the Company
shall deliver an opinion, or (ii) the [General Counsel/Chief Legal Officer]
of
the Company shall deliver an opinion, or, (iii) if the Company does not have
a
General Counsel or Chief Legal Officer, the [Chief Executive
Officer/President/Executive Vice President] and [Chief Financial
Officer/Treasurer/Assistant Treasurer] of the Company shall provide an Officers’
Certificate, to the effect that:
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(i)
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all
of the issued and outstanding shares of capital stock of each Significant
Subsidiary are owned of record by the Company, and the issuance of
the
Preferred Securities and the Common Securities is not subject to
any
contractual preemptive rights known to such
[counsel/officer];
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(ii)
|
no
consent, approval, authorization or order of any court or governmental
authority is required for the issue and sale of the Common Securities,
the
Preferred Securities or the Junior Subordinated Notes, the purchase
by the
Trust of the Junior Subordinated Notes, the execution and delivery
of and
compliance with the Operative Documents by the Company or the Trust
or the
consummation of the transactions contemplated in the Operative Documents,
except such approvals (specified in such [opinion/certificate]) as
have
been obtained;
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(iii)
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to
the knowledge of such [counsel/officer], there is no action, suit
or
proceeding before or by any government, governmental instrumentality,
arbitrator or court, domestic or foreign, now pending or threatened
against or affecting the Trust or the Company or any Significant
Subsidiary that could adversely affect the consummation of the
transactions contemplated by the Operative Documents or could have
a
Material Adverse Effect;
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(iv)
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the
Company is duly registered as a bank holding company
under the Bank Holding Company Act and the
regulations thereunder of the Federal Reserve Board, and the deposit
accounts of the Company’s banking subsidiary are insured by the 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 are
pending
or, to such person’s knowledge,
threatened;
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(v)
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The
execution, delivery and performance of the Operative Documents, as
applicable, by the Company and the Trust and the consummation by
the
Company and the Trust of the transactions contemplated by the Operative
Documents, as applicable, (a) will not result in any violation of
the
charter or bylaws of the Company, the charter or bylaws of any Significant
Subsidiary, the Amended and Restated Trust Agreement or the Certificate
of
Trust, and (b) will not conflict with, or result in a breach of any
of the
terms or provisions of, or constitute a default (or an event which,
with
notice or lapse of time or both, would constitute a default) under,
or
result in the creation or imposition of any lien, charge and encumbrance
upon any assets or properties of the Company or any Significant Subsidiary
under, (A) any agreement, indenture, mortgage or instrument that
the
Company or any Significant Subsidiary is a party to or by which it
may be
bound or to which any of its
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A-2-1
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assets
or properties may be subject, or (B) any existing applicable law,
rule or
administrative regulation [for General Counsel only: except
that I express no opinion with respect to the securities laws of
the State
of Delaware] of any court or governmental agency or authority having
jurisdiction over the Company or any Significant Subsidiary or any
of
their respective assets or properties, except in case of (b), where
any
such violation, conflict, breach, default, lien, charge or encumbrance,
would not have a material adverse effect on the assets, properties,
business, results of operations or financial condition of the Company
and
its subsidiaries, taken as whole.
|
All
terms
used but not defined herein shall have the meanings assigned to them in the
Purchase Agreement. A Subsequent Purchaser shall be entitled to rely
on this [opinion/certificate].
[Applies
only to in-house counsel opinion] [In rendering such opinions, such
counsel may (A) state that the above is limited to the laws of the States
of [Jurisdiction of bar admission], (B) rely as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the Company
and
public officials.]
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
TAX COUNSEL OPINION
Pursuant
to Section 3.2(c) of the Purchase Agreement, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special
tax counsel for the Sellers, shall deliver an opinion to the effect
that:
(vi) the
Trust will be classified for United States federal income tax purposes as a
grantor trust and not as an association or a publicly traded partnership taxable
as a corporation; and
(vii) for
United States federal income tax purposes, the Junior Subordinated Notes will
constitute indebtedness of the Company.
A
Subsequent Purchaser shall be entitled to rely on this opinion
letter.
In
rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of the State of [Jurisdiction of bar admission] and the
federal laws of the United States and (B) rely as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Company and public officials.
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
DELAWARE COUNSEL TRUST OPINION
Pursuant
to Section 3.2(d) of the Purchase Agreement, ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special Delaware
counsel for the Trust, shall deliver an opinion to the effect that:
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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.
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Under
the Delaware Statutory Trust Act and the Amended and Restated Trust
Agreement, the Trust has the trust power and authority (i) to own
property
and conduct its business, all as described in the Amended and Restated
Trust Agreement, (ii) to execute and deliver, and to perform its
obligations under, each of the Purchase Agreement, the Common Securities
Subscription Agreement, the Junior Subordinated Note Subscription
Agreement, the Preferred Securities and the Common Securities, and
(iii)
to purchase and hold the Junior Subordinated
Notes.
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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 Amended and
Restated
Trust Agreement and, when issued in accordance with the Amended and
Restated Trust Agreement and delivered against payment therefor in
accordance with the Amended and Restated Trust Agreement and the
Purchase
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, and the Preferred Security Holders will be entitled
to the benefits of the Amended and Restated Trust Agreement. The
Preferred
Security Holders 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. The Preferred Security Holders may
be
obligated to make payments or provide indemnity or security as set
forth
in the Amended and Restated Trust
Agreement.
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The
Common Securities have been duly authorized by the Amended and Restated
Trust Agreement and, when issued in accordance with the Amended and
Restated Trust Agreement and delivered against payment therefor in
accordance with the Amended and Restated Trust Agreement and the
Common
Securities Subscription Agreement, will be validly issued and will
represent undivided beneficial interests in the assets of the Trust,
and
the Common Security Holder will be entitled to the benefits of the
Amended
and Restated Trust Agreement.
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Under
the Delaware Statutory Trust Act and the Amended and Restated Trust
Agreement, the issuance of the Preferred and the Common Securities
is not
subject to preemptive or other similar
rights.
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A-4-1
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Under
the Delaware Statutory Trust Act and the Amended and Restated Trust
Agreement, the execution and delivery by the Trust of
the Purchase 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.
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The
Amended and Restated Trust Agreement constitutes a legal, valid and
binding obligation of the Company and the Trustees, enforceable against
the Company and the Trustees in accordance with its
terms.
|
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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 Purchase
Agreement, the Common Securities Subscription Agreement and the Junior
Subordinated Note Subscription Agreement, the consummation by the
Trust of
the transactions contemplated by the Purchase Agreement, the Common
Securities Subscription Agreement and the Junior Subordinated Note
Subscription Agreement, and compliance by the Trust with its obligations
thereunder are not prohibited by (i) the Certificate of Trust or
the
Amended and Restated Trust Agreement, or (ii) any law or regulation
of the
State of Delaware applicable to the
Trust.
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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 required solely in connection
with the issuance and sale by the Trust of the Trust Securities,
the
purchase by the Trust of the Junior Subordinated Notes, the execution,
delivery and performance by the Trust of the Purchase Agreement,
the
Common Securities Subscription Agreement and the Junior Subordinated
Note
Subscription Agreement, the consummation by the Trust of the transactions
contemplated by the Purchase Agreement, and compliance by the Trust
with
its obligations thereunder.
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|
(x)
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The
Preferred Security Holders (other than those Preferred Security Holders
who reside or are domiciled in the State of Delaware) will have no
liability for income taxes imposed by 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.
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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.
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
TRUSTEE COUNSEL OPINION
Pursuant
to Section 3.2(e) of the Purchase Agreement, ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel
for the Property Trustee, the Guarantee Trustee, the Delaware Trustee and the
Indenture Trustee, shall deliver an opinion to the effect that:
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(i)
|
Wilmington
Trust Company is duly incorporated and validly existing as a Delaware
banking corporation in good standing under the laws of the State
of
Delaware with trust powers and its principal place of business in
the
State of Delaware.
|
|
(ii)
|
Wilmington
Trust Company has requisite corporate power and authority to execute
and
deliver, and to perform its obligations under, the Amended and Restated
Trust Agreement, the Guarantee Agreement and the
Indenture.
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(iii)
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The
execution, delivery, and performance by Wilmington Trust Company
of the
Amended and Restated Trust Agreement, the Guarantee Agreement and
the
Indenture have been duly authorized by all necessary corporate action
on
the part of Wilmington Trust Company, and the Amended and Restated
Trust
Agreement, the Guarantee Agreement and the Indenture have been duly
executed and delivered by Wilmington Trust
Company.
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(iv)
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The
Amended and Restated Trust Agreement is a legal, valid and binding
obligation of Wilmington Trust Company, enforceable against Wilmington
Trust Company, in accordance with its
terms.
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(v)
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No
approval, authorization or other action by, or filing with, any
governmental authority or agency under any law or regulation of the
State
of Delaware or the United States of America governing the trust powers
of
Wilmington Trust Company is required solely in connection with the
execution, delivery and performance by Wilmington Trust Company of
the
Amended and Restated Trust Agreement, the Guarantee Agreement and
the
Indenture, except for the filing of the Certificate of Trust with
the
Secretary of State, which Certificate of Trust has been duly filed
with
the Secretary of State.
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(vi)
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The
execution, delivery and performance of the Amended and Restated Trust
Agreement, the Guarantee Agreement and the Indenture by Wilmington
Trust
Company are not prohibited by (i) the Charter or Bylaws of Wilmington
Trust Company, (ii) any law or regulation of the State of Delaware
or the
United States of America governing the trust powers of Wilmington
Trust
Company, or (iii) to our knowledge (based and relying solely on the
Officer Certificates), any agreements or instruments to which Wilmington
Trust Company is a party or by which Wilmington Trust Company is
bound or
any judgment or order applicable to Wilmington Trust
Company.
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(vii)
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The
Junior Subordinated Notes delivered on the date hereof have been
authenticated by due execution thereof and delivered by Wilmington
Trust
Company, as Indenture Trustee, in accordance with the Company
Order. The Preferred Securities delivered
on
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A-5-1
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the
date hereof have been authenticated by due execution thereof and
delivered
by Wilmington Trust Company, as Property Trustee, in accordance with
the
Trust Order.
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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 trust powers of Wilmington Trust Company and
(B) rely as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of Wilmington Trust Company and public
officials.
A-5-2
Exhibit
B
FORM
OF
OFFICER’S CERTIFICATE
The
undersigned, the [Chief Financial Officer] [Treasurer] [Executive Vice
President] hereby certifies, pursuant to Section 6.10 of the Purchase Agreement,
dated as of July 2, 2007, that as of _________, 20___ the Company had the
following ratios and balances:
BANK
HOLDING COMPANY
As
of
[Quarterly Financial Dates]
|
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
|
%
|
||
|
Double
Leverage (exclude trust preferred as equity)
|
%
|
||
|
Total
Assets
|
|
$
|
|
|
Year
to Date Income
|
|
$
|
*
A table
describing the quarterly report calculation procedures is attached.
[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 _______, 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 and [six/nine] month period ended _______,
20___.]
B-1
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 _______, 20__, and such financial statements
have
been prepared in accordance with GAAP consistently applied throughout the period
involved (expect as otherwise noted therein).
IN
WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate as of
this _____ day of _____________, 20__
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Name:
|
||
|
Title:
|
||
|
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
||
|
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
||
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
B-2
Exhibit
B
FINANCIAL
DEFINITIONS
BANK
HOLDING COMPANY
|
Report
Item
|
Corresponding
FRY-9C or LP Line Items with Line
Item corresponding Schedules |
Description
of Calculation
|
|
Tier
1 Risk
Weighted Assets |
BHCK7206
Schedule
HC-R
|
Tier
1 Risk Ratio: Core Capital (Tier 1)/ Risk-Adjusted
Assets
|
|
Ratio
of Double
Leverage |
(BHCP0365)/(BCHCP3210)
Schedule
PC in the LP
|
Total
equity investments in subsidiaries 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 Loans and OREO |
(BHCK5525-BHCK3506+BHCK5526-BHCK3507+BHCK2744/(BHCK2122+BHCK2744)
Schedules HC-C, HC-M & HC-N
|
Total
Nonperforming Assets (NPLs+Foreclosed Real Estate+Other Nonaccrual
&
Repossessed Assets)/Total Loans+Foreclosed Real Estate
|
|
Tangible
Common
Equity as a Percentage of Tangible Assets |
(BHDM3210-BHCK3163)/(BHCK2170-BHCK3163)
Schedule
HC
|
(Equity
Capital – Goodwill)/(Total Assets – Goodwill)
|
|
Ratio
of Reserves
to Non-Performing Loans |
(BHCK3123+BHCK3128)/(BHCK5525-BHCK3506+BHCK5526-BHCK3507)
Schedules
HC & HC-N & HC-R
|
Total
Loan Loss and Allocated Transfer Risk Reserves/ Total Nonperforming
Loans
(Nonaccrual + Restructured)
|
|
Ratio
of Net
Charge-Offs to Loans |
(BHCK4635-BHCK4605)/(BHCK3516)
Schedules
HI-B & HC-K
|
Net
charge offs for the period as a percentage of average
loans.
|
|
Return
on Average
Assets (annualized) |
(BHCK4340/BHCK3368)
Schedules
HI & HC-K
|
Net
Income as a percentage of Assets.
|
|
Net
Interest
Margin (annualized) |
(BHCK4519/(BHCK3515+BHCK3365+BHCK3516+BHCK3401+BHCKB985)
Schedules
HI Memorandum and HC-K
|
(Net
Interest Income Fully Taxable Equivalent, if available/Average Earning
Assets)
|
|
Efficiency
Ratio
|
(BHCK4093)/(BHCK4519+BHCK4079)
Schedule
HI
|
(Non-interest
Expense)/(Net Interest Income Fully Taxable Equivalent, if available,
plus
Non-interest Income)
|
|
Ratio
of Loans to
Assets |
(BHCKB528+BHCK5369)/(BHCK2170)
Schedule
HC
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/Total
Assets
|
|
Ratio
of Loans to
Deposits |
(BHCKB528+BHCK5369)/(BHDM6631+BHDM6636+BHFN6631+BHFN6636)
Schedule
HC
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/Total
Deposits (Includes Domestic and Foreign Deposits)
|
|
Total
Assets
|
(BHCK2170)
Schedule
HC
|
The
sum of total assets. Includes cash 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.
|
B-3