Exhibit 10(ix)(a)
PURCHASE AGREEMENT
AMONG
BNC BANCORP,
BNC CAPITAL TRUST IV
AND
TWE, LTD.,
Dated as of September 27,
2006
PURCHASE AGREEMENT
($7,000,000 TRUST PREFERRED
SECURITIES)
THIS PURCHASE AGREEMENT, dated as of
September 27, 2006, is entered into among, BNC Bancorp, a
North Carolina corporation (the “ Company ”),
BNC Capital Trust IV, 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 7,000 Floating Rate Preferred Securities of the
Trust, having a stated liquidation amount of $1,000 per preferred
security, bearing a variable rate of interest per annum, reset
quarterly, equal to LIBOR (as defined in the Indenture (as defined
below)) plus 1.70% (the “ Preferred Securities
”);
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 $7,217,000 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 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.
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Section 2. Purchase and Sale
of the Preferred Securities .
2.1 The Sellers agree to sell to the
Purchaser, and the Purchaser agrees to purchase from the Sellers,
the Preferred Securities for an aggregate amount (the “
Purchase Price ”) equal to $7,000,000. In connection
with the purchase of the Preferred Securities, the Company shall
pay no fee to its introducing agent (the “ Introducing
Agent ”) for services rendered (the “ Fee
”). The Purchaser shall be responsible for the following
expenses: (i) any rating agency costs and expenses, and
(ii) the Fee payable to the Introducing Agent; provided that
the Introducing Agent has an agreement with the Purchaser; 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.
2.2 Delivery or transfer of, and
payment for, the Preferred Securities shall be made at 11:00 A.M.
New York City time, on September 27, 2006, or such later date
(not later than October 27, 2006) 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.
2.3 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 Company and the Trust agree to have the Preferred
Securities available for inspection and checking by the Purchaser
in New York, New York, not later than 2:00 P.M. New York 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 Thacher Proffitt & Wood LLP , Two
World Financial Center, New York, New York 10281, or such other
place as the parties hereto shall agree.
2.4 The Preferred Securities shall
be sold by the Trust, directly or indirectly, to the Purchaser
without registration of any of the Preferred Securities, 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.
2.5 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 believe is a “qualified 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
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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.
Section 3. Closing
Conditions . The obligations of the parties under this
Agreement on the Closing Date are subject to the following
conditions:
3.1 Accuracy of Representations
and Warranties . The representations and warranties contained
in this Agreement, and the statements of the Sellers made in any
certificates pursuant to this Agreement, shall be accurate as of
the date of delivery of the Preferred Securities.
3.2 Opinions of Counsel . On
the Closing Date, the Purchaser shall have received the following
favorable opinions or certificate, as the case may be, each dated
as of the Closing Date: (a) from Thacher Proffitt &
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 Brooks Pierce
McLendon Humphrey & Leonard, 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 Thacher Proffitt &
Wood LLP , special tax counsel for the Purchaser 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 Morris, James, Hitchens &
Williams 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 Morris, James,
Hitchens & Williams 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 by this reference. Each certificate
or opinion addressed to the Purchaser shall state that the first
entity, if any, to which the Purchaser transfers any of the
Preferred Securities, and, if such transferee is a warehouse
entity, the next subsequent transferee that is not a warehouse
entity (each, a “ Subsequent Purchaser ”) shall
be entitled to rely on such opinion.
3.3 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:
3.3.1 the representations and
warranties in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date,
and the Company and the Trust have complied with all the agreements
and satisfied all the conditions on either of their part to be
performed or satisfied at or prior to the Closing Date;
and
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3.3.2 since the date of the Interim
Financial Statements (as defined below), there has been no material
adverse change in the condition (financial or other), earnings,
business, prospects or assets of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions
occurring in the ordinary course of business.
3.4 No Subsequent Change .
Subsequent to the execution of this Agreement, there shall not have
been any change, or any development involving a prospective change,
in or affecting the condition (financial or other), earnings,
business, prospects or assets of the Company and its subsidiaries,
whether or not occurring in the ordinary course of business, the
effect of which is, in the Purchaser’s judgment, so material
and adverse as to make it impractical or inadvisable to proceed
with the purchase of the Preferred Securities.
3.5 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.
3.6 Consents and Permits .
The Company and the Trust shall have received all consents, permits
and other authorizations, and made all such filings and
declarations, as may be required from any person or entity pursuant
to any law, statute, regulation or rule (federal, state, local and
foreign), or pursuant to any agreement, order or decree to which
the Company or the Trust is a party or to which either is subject,
in connection with the transactions contemplated by this
Agreement.
3.7 Information . Prior to or
on the Closing Date, the 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
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.
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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:
4.1 Securities Laws Matters
:
(a) Neither the Company nor the
Trust, nor any of their “Affiliates” (as defined in
Rule 501(b) of Regulation D under the Securities Act (“
Regulation D ”)), nor any person acting on any of
their behalf (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.
(b) 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.
(c) The Securities (i) are not
and have not been listed on a national securities exchange
registered under Section 6 of the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”), or
quoted on a U.S. automated interdealer quotation system and
(ii) are not of an open-end investment company, unit
investment trust or face-amount certificate company that are, or
are required to be, registered under Section 8 of the
Investment Company Act of 1940, as amended (the “
Investment Company Act ”), and the Securities
otherwise satisfy the eligibility requirements of Rule 144A(d)(3)
promulgated pursuant to the Securities Act (“ Rule
144A(d)(3) ”).
(d) Neither the Company nor the
Trust is, and, immediately following consummation of the
transactions contemplated hereby and the application of the net
proceeds therefrom, neither the Company nor the Trust will be, an
“investment company” or an entity
“controlled” by an “investment company,” in
each case within the meaning of Section 3(a) of the Investment
Company Act.
(e) Neither the Company nor the
Trust has paid or agreed to pay to any person or entity, directly
or indirectly, any fees or other compensation for soliciting
another to purchase any of the Securities.
4.2 Standing and Qualification of
the Trust . The Trust has been duly created and is validly
existing in good standing as a statutory trust under the Delaware
Statutory Trust Act, 12 Del. C. §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.
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4.3 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.
4.4 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.
4.5 Preferred Securities and
Common Securities . The Preferred Securities and the Common
Securities have been duly authorized by the Trust and, when issued
and delivered against payment therefor on the Closing Date to the
Purchaser in accordance with this Agreement, 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
”).
4.6 Junior Subordinated Notes
. The Junior Subordinated Notes have been duly authorized by the
Company and, on the Closing Date, will have been duly executed and
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.
4.7 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.
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4.8 Defaults . Neither the
issue and sale of the Common Securities, the Preferred Securities
or the Junior Subordinated Notes, nor the purchase of the Junior
Subordinated Notes by the Trust, the execution and delivery of and
compliance with the Operative Documents by the Company or the
Trust, 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.
4.9 Organization, Standing and
Qualification of the Company . The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of North Carolina, with all requisite
corporate power and authority to own, lease and operate its
properties and conduct the business it transacts and proposes to
transact, and is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction where the
nature of its activities requires such qualification, except where
the failure of the Company to be so qualified would not, singly or
in the aggregate, have a Material Adverse Effect.
4.10 Subsidiaries of the
Company . The Company has no subsidiaries that are material to
its business, financial condition or earnings other than those
subsidiaries listed in Schedule I 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
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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.
4.11 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.
4.12 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.
4.13 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 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.
4.14 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
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or by which it or any of them may be bound or to
which any of the property or assets of any of them is subject,
except, in the case of clause (ii), where such default would not,
singly or in the aggregate, have a Material Adverse Effect. No
filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Governmental Entity,
other than those that have been made or obtained, is necessary or
required for the performance by the Trust or the Company of their
respective obligations under the Operative Documents, as
applicable, or the consummation by the Trust and the Company of the
transactions contemplated by the Operative Documents.
4.15 Holding Company Registration
and Deposit Insurance . The Company is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as
amended (the “ Bank Holding Company Act ”), and
the regulations of the Board of Governors of the Federal Reserve
System (the “ Federal Reserve ”), and the
deposit accounts of the Company’s subsidiary depository
institutions are insured by the Federal Deposit Insurance
Corporation (“ FDIC ”) to the fullest extent
permitted by law and the rules and regulations of the FDIC, and no
proceeding for the termination of such insurance are pending or, to
the knowledge of the Company or the Trust after due inquiry,
threatened.
4.16 Financial Statements
.
(a) The audited consolidated
financial statements (including the notes thereto) and schedules of
the Company and its consolidated subsidiaries at and for the three
fiscal years ended December 31, 2005 (the “ Financial
Statements ”) and the interim unaudited consolidated
financial statements of the Company and its consolidated
subsidiaries at and for the quarter and six months ended
June 30, 2006, (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 financial statements and schedules have been prepared
in accordance with GAAP consistently applied throughout the periods
involved (except as otherwise noted therein).
(b) The Company’s report on
FRY-9C, dated June 30, 2006 (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.
(c) Since the respective dates of
the Financial Statements and Interim 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) 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.
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(d) The accountants of the Company
who certified the Financial Statements are independent public
accountants of the Company and its subsidiaries within the meaning
of the Securities Act and the rules and regulations of the
Securities and Exchange Commission (“ SEC ”)
thereunder.
4.17 Regulatory Enforcement
Matters . None of the Trust, the Company nor any of its
subsidiaries, nor any of their respective officers, directors,
employees or representatives, is subject or is party to, or has
received any notice from any Regulatory Agency (as defined below)
that any of them will become subject or party to any investigation
with respect to, any cease-and-desist order, agreement, civil
monetary penalty, consent agreement, memorandum of understanding or
other regulatory enforcement action, proceeding or order with or
by, or is a party to any commitment letter or similar undertaking
to, or is subject to any directive by, or has been a recipient of
any supervisory letter from, or has adopted any board resolutions
at the request or suggestion of, any Regulatory Agency that, in any
such case, currently restricts in any material respect the conduct
of their business or that in any material manner relates to their
capital adequacy, their credit policies, their management or their
business (each, a “ Regulatory Action ”), nor
has the Trust, the Company or any of its subsidiaries been advised
by any Regulatory Agency that it is considering issuing or
requesting any such Regulatory Action; and there is no unresolved
violation, criticism or exception by any Regulatory Agency with
respect to any report or statement relating to any examinations of
the Trust, the Company or any of its subsidiaries, except where
such unresolved violation, criticism or exception would not, singly
or in the aggregate, have a Material Adverse Effect. If the Company
is a bank holding company that is subject to the Bank Holding
Company Act, it is a “well-run” bank holding company
that satisfies the criteria of the Federal Reserve’s
regulations at 12 C.F.R. §225.14(c). 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 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.
4.18 No Undisclosed
Liabilities . 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.
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4.19 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; and
the aggregate of all pending legal or governmental proceedings to
which the Trust or the Company or any of its subsidiaries is a
party or of which any of their respective properties or assets is
subject, including ordinary routine litigation incidental to the
business, are not expected to result in a Material Adverse
Effect.
4.20 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.
4.21 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 the 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 compliance with all currently applicable
requirements of the Exchange Act and the 1934 Act Regulations that
were added by the Sarbanes-Oxley Act of 2002.
4.22 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.
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4.23 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 affil
