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PURCHASE AGREEMENT

Note Purchase Agreement

PURCHASE AGREEMENT | Document Parties: 1st United Bancorp, Inc | 1st United Bank | Silverton Bank, NA You are currently viewing:
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1st United Bancorp, Inc | 1st United Bank | Silverton Bank, NA

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Title: PURCHASE AGREEMENT
Governing Law: Georgia     Date: 7/10/2008
Law Firm: Powell Goldstein    

PURCHASE AGREEMENT, Parties: 1st united bancorp  inc , 1st united bank , silverton bank  na
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1st United Bank

$5,000,000 Subordinated Capital Note

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PURCHASE AGREEMENT

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July __, 2008

1st United Bank (the “ Bank ”), a Florida banking corporation and wholly owned subsidiary of 1st United Bancorp, Inc. (the “Corporation”), upon and subject to the terms and conditions stated herein, is offering, issuing and selling (the “ Offering ”) a subordinated capital note in the principal amount of $5,000,000 (the “ Note ”), pursuant to exemptions from registration under Sections 3(a)(2) and 4(2) of the Securities Act of 1933, as amended (the “ Securities Act ”), Securities and Exchange Commission (the “ Commission ”) Rule 506 under the Securities Act (“ Rule 506 ”) and Commission Rule 144A under the Securities Act (“ Rule 144A ”). Capitalized terms used but not defined herein shall have the meanings provided in the certificate representing the Note, and the singular includes the plural.

Silverton Bank, N.A. (the “ Purchaser ”), based upon the summary term sheet (the “ Term Sheet ”), which contained a preliminary indication of the principal terms the Purchaser believed appropriate based upon the Purchaser’s analysis of the Bank’s financial data and which terms are incorporated by reference herein, hereby agrees to purchase the Note. To the extent any terms contained in this Agreement are inconsistent with those contained in the Term Sheet, this Agreement supersedes and replaces those provisions in the Term Sheet.

All references in this Agreement to “ Regulation D ” shall mean Commission Rules 501 through 508 under the Securities Act. For purposes hereof, the singular shall include the plural and vice versa, and the words “include”, “including”, “included”, and derivations thereof shall mean without limitation by reason of enumeration or otherwise.

In consideration of the premises, the mutual agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each party, the parties, intending to be legally bound, agree as follows:

1.                Purchase of Note . Subject to the performance by the Bank of all its obligations hereunder, and in reliance upon the completeness and accuracy of each of the Bank’s representations, warranties and covenants, the Purchaser, upon the terms and conditions of this Agreement, hereby agrees to purchase the Note for the principal amount of $5,000,000. Upon the purchase of the Note, the Bank shall pay Purchaser a “ Loan Fee ” equal to 0.75% of the principal amount of the Note, or $37,500.

 

 

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2.

Closing; Delivery and Payment .

(a)       If the conditions described in Section 5 hereof have been satisfied or waived, the closing of the Offering (the “ Closing ”) will be held at the offices of Powell Goldstein LLP, One Atlantic Center, 1201 W. Peachtree Street, Atlanta, Georgia 30309-3488, or such other place as is agreed upon by the Purchaser and the Bank, as soon as practicable thereafter. The date on which the Closing is held shall be referred to herein as the “ Closing Date .” As part of the Closing, the Bank will deliver to the Purchaser one or more definitive certificates representing the Note purchased hereby and Purchaser shall deliver payment for the Note in an amount equal to the principal amount of the Note less the Loan Fee set forth in Section 1.

3.                Bank Representations, Warranties and Covenants . The Bank represents and warrants to, and agrees with the Purchaser that as of the date hereof and on the Closing Date:

(a)       Neither the Bank nor any of its “ Affiliates ” (as defined in Rule 501 of Regulation D), nor any person acting on its or their behalf has directly or indirectly (i) engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Note, or (ii) made offers or sales of any security, or solicited offers to buy or sell any security, under circumstances that would require the registration of the Note under the Securities Act or the securities or blue sky laws of any applicable jurisdiction.

(b)       Neither the Bank nor any of its Affiliates, nor any person acting on its or their behalf, has engaged or will engage in any directed selling efforts with respect to the Note within the meaning of Regulation S.

(c)       The Bank is not, and upon the issuance and sale of the Note and the application of the proceeds thereof will not be, an “ investment company ” or an entity “ controlled ” by an “ investment company ,” in each case within the meaning of Section 3(a) of the Investment Company Act of 1940, as amended (the “ Investment Company Act ”) without regard to Section 3(c) of the Investment Company Act.

(d)       Neither the Bank nor any of its “ Subsidiaries ” (as defined in Commission Regulation S-X, Rule 1-02(x)) has any arrangement, understanding or agreement to have any person to solicit offers to purchase, to make any offers to sell, or to sell or purchase the Note.

(e)       The Bank is a Florida commercial banking corporation duly organized, validly existing and in good standing under the laws of its state of organization and has the full corporate power and authority to own, lease and operate its properties, to own its Subsidiaries, and to conduct its business and to enter into and perform its obligations under this Agreement. The Bank has all necessary authorizations, approvals, registrations, orders, licenses, certificates, consents and permits (collectively, “ Approvals ”), and is duly qualified to transact business as a depository institution, except to the extent that the failure to have such Approvals, to so qualify or to be in good standing has not had and is not reasonably likely to have a Material Adverse Effect. A “ Material Adverse Effect ” means any event, action, omission or condition that: (i) has had or is reasonably likely to have a material adverse effect on the condition (financial or

 

 

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otherwise), earnings, cash flows, business or prospects of the Bank and Bank Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (ii) has had or is reasonably likely to have a material adverse effect on the rights of Holder of the Note, or (iii) seeks to restrain, enjoin, limit or prohibit the execution, delivery or performance of this Agreement or the Note. All of the outstanding shares of capital stock of the Bank (“ Bank Shares ”) have been duly authorized and validly issued and are fully paid and non-assessable, and none of the outstanding Bank Shares was issued in violation of any preemptive or similar rights of any shareholder of the Bank.

(f)        Attached as Schedule 1 is a list of all the Bank’s direct and indirect Subsidiaries (“Bank Subsidiaries”). Each Bank Subsidiary has been duly organized and is validly existing under the laws of its jurisdiction of organization; each Bank Subsidiary has all corporate or entity power and authority and Approvals necessary to own, lease and operate its properties and to conduct its business as presently operated, and is duly qualified as a foreign entity to transact business and is in good standing in each jurisdiction where such qualification is required, except where the failure to so qualify or to be in good standing would not have a Material Adverse Effect. All of the issued and outstanding shares of capital stock of each Bank Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable, and are owned by the Bank, directly or indirectly, free and clear of any security interest, mortgage, pledge, lien, hypothecation, negative pledge, charge, encumbrance, adverse claim or equity (each a “ Lien ”). None of the outstanding shares of capital stock of any Bank Subsidiary was issued in violation of any preemptive or similar rights of such Bank Subsidiary arising by operation of law, under their respective charters, articles or certificate of incorporation or organizational documents, by-laws, or other organizational or constituent documents (“ Organizational Documents ”), or under any contract to which the Bank or any Bank Subsidiary is a party. Neither the Bank nor any of its Subsidiaries beneficially owns any shares of stock or any other equity securities of or interest in any entity, except securities or interests held in the ordinary course of business or securities or interests acquired in satisfaction of debts previously contracted in good faith.

(g)       The Bank, the Corporation and the Bank Subsidiaries operate and are in compliance with all applicable laws, ordinances, rules and regulations of, and all commitments to, all judgments, orders, rulings and decrees of and agreements with (collectively, “ Laws ”), all applicable governmental, regulatory and self-regulatory agencies (including any securities exchange or market where any of the Bank’s, the Corporation’s or any Bank Subsidiary’s securities are listed or traded), courts, arbitrators, bodies and authorities (“ Governmental Authorities ”) and all Approvals, except for those violations of which, individually or in the aggregate, would not have a Material Adverse Effect.

(h)       The Bank will include the Note as part of its long-term debt on its financial statements in accordance with GAAP.

(i)        The execution, delivery and performance of this Agreement and the Note have been duly authorized by the Bank, and, when executed and delivered by or on behalf of the Bank, this Agreement and the Note will be valid and binding obligations of the Bank, enforceable against the Bank in accordance with their respective terms, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights, and general

 

 

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principles of equity affecting the availability of specific performance and other equitable remedies. The resolutions authorizing the Note and this Agreement shall be maintained continuously as permanent official records of the Bank.

The Note has been duly authorized by the Bank and, when executed, authenticated, issued and delivered against payment therefor to the Purchaser, will be validly issued, fully paid and nonassessable.

(j)        The execution, delivery and performance of this Agreement and the Note (i) have been duly authorized by the Bank, (ii) do not require any consent or Approval under, do not and will not conflict with, constitute a breach of, or a default or an event, which with notice, lapse of time or both would be a default under, an event or condition that gives any person the right to require the repurchase, redemption or repayment of all or a portion of any note, debenture or other indebtedness of the Bank or any Bank Subsidiary (each a “ Repayment Event ”), (iii) will not result in the creation or imposition of any Lien upon any property or assets of the Bank or any of its Subsidiaries, under any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument (“ Contract ”) to which the Bank or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of any of them is subject, except for a conflict, breach, default or Lien which does not have and is not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, nor will any such action result in any violation of this Agreement.

(k)       (i) Each of the audited consolidated financial statements, including the notes and schedules thereto, of the Corporation and its consolidated subsidiaries (and where the Corporation has been formed within the last five years, of its predecessors and their respective consolidated Subsidiaries) as of and for the last full five years (the “ Annual Financial Statements ”) and the interim unaudited consolidated financial statements of the Corporation and its consolidated subsidiaries as of and for the latest interim periods and the corresponding interim periods of the immediately preceding year (the “ Interim Financial Statements ,” and collectively with the Annual Financial Statements, (the “ Financial Statements ”) provided to the Purchaser has been prepared in accordance with GAAP, Section 36 of the FDIA, and applicable regulations thereunder, and to the extent the Corporation files reports under Sections 13 or 15(d) of the 1934 Act, to the 1934 Act and the Commission’s rules and regulations thereunder, including Regulation S-X. Such Financial Statements, in all cases, fairly present in all material respects the consolidated and parent-only financial condition, earnings, cash flows and changes in shareholders’ equity as of the dates and for the periods therein specified, subject, in the case of Interim Financial Statements, only to normal recurring year-end audit adjustments that are not material, and each has been certified as required by applicable Law. The Corporation and the Bank have a duly constituted audit committee of its Board of Directors (the “ Audit Committee ”), composed entirely of members who are “independent” in accordance with applicable Law, including FDIA Section 36, and applicable regulations thereunder. Such Audit Committee has operated consistent in all material respects with any applicable state and federal banking and other Laws, and, to the extent that the Corporation files reports under the 1934 Act or has a class of securities listed or traded on any securities exchange or Nasdaq market, the 1934 Act, the Commission’s rules and regulations, and the applicable rules of such exchange or Nasdaq.

 

 

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(ii) All the Bank’s call reports (“ Call Reports ”) submitted to its primary federal and state regulators conform in all material respects to the Federal Financial Institutions Examination Council’s (“ FFIEC ”) requirements for Call Reports, and all such Call Reports conform to the requirements of Section 37 of the FDIA and applicable regulations thereunder, and are accurate and complete in all material respects and fairly present in all material respects the reporting entity’s financial condition, earnings, cash flows (to the extent a statement of cash flows is included pursuant to the requirements of such forms) and changes in shareholders’ equity as of the dates and for the periods shown consistent with the Financial Statements as of and for the corresponding dates and periods.

(l)        If required by applicable state and federal banking, securities and other Laws, each of the accountants who certified or reviewed the Financial Statements are “independent public accountants.”

(m)      There are no investigations, actions or proceedings by or before any Governmental Authority pending, or, to the best knowledge of the Bank, threatened against or affecting the Bank or any of its Subsidiaries, that have had or are reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

(n)       Since the respective dates of the Financial Statements and Interim Financial Statements provided to the Purchaser, there has not been (i) any event, action, omission or condition that has had a Material Adverse Effect, (ii) any transactions entered into by the Bank or any Bank Subsidiary, other than in the ordinary course of business, that are material to the Bank and its Subsidiaries considered as one enterprise, (iii) except for any regular cash dividends on the Bank’s common stock in the ordinary course of business consistent with past practice, any dividend or distribution of any kind declared, paid or made by the Bank on its capital stock or other securities, nor (iv) any other event, action, omission or condition that is reasonably likely to have a Material Adverse Effect.

(o)       The Bank, the Corporation and the Bank Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general and specific authorizations; (ii) transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorizations; (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, and (v) otherwise complies in all material respects with all applicable federal and state banking, securities and other applicable Laws, including th


 
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