BNC STATUTORY TRUST III Floating Rate Capital Securities Fully and Unconditionally Guaranteed as to Distributions and Other Payments by BNCCORP, INC. PLACEMENT AGREEMENT
Exhibit
10.5
BNC
STATUTORY TRUST III
$1,000,000
Floating
Rate Capital Securities
Fully
and
Unconditionally Guaranteed as to Distributions
and
Other
Payments by
BNCCORP,
INC.
July
30,
2007
StoneCastle
Securities, LLC
000
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
BNCCORP,
Inc., a bank holding company incorporated in Delaware (the “Company”) and BNC
Statutory Trust III, a Delaware statutory trust (the “Trust” and, collectively
with the Company, the “Offerors”), propose, subject to the terms and conditions
stated herein, to issue and sell 1,000 of Floating Rate Capital Securities
of
the Trust (the “Debt Securities”), having a stated liquidation amount of $1,000
per capital security and bearing a variable distribution rate per annum, reset
quarterly, equal to LIBOR (as defined in the Indenture (as defined below))
plus
1.40% (the “Floating Rate”). StoneCastle Securities, LLC is acting as
the exclusive agent of the Company and the Trust in connection with the offering
of the Debt Securities. The Company also proposes to issue and sell
an additional 14,000 of capital securities pursuant to a purchase agreement
dated as of the date hereof, among the Offerors and the purchaser named
therein.
The
Debt
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 to the Guarantee
Agreement (the “Guarantee Agreement”), to be dated as of the Closing Date
specified in Section 3 hereof, and executed and delivered by the Company and
Wilmington Trust Company, as trustee (the “Guarantee Trustee”), for the benefit
of the holders from time to time of the Debt Securities. The entire
proceeds from the sale of the Debt 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 $15,464,000 in
principal amount of the Floating Rate Junior Subordinated Debt Securities due
2037 of the Company (the “Subordinated Debt Securities”). The Debt
Securities and the Common Securities of the Trust will be issued pursuant to
the
Amended and Restated Declaration of Trust (the “Declaration”), to be dated as of
the Closing Date among the Company, as sponsor, the Administrator(s) named
therein (the “Administrators”), Wilmington Trust Company, as Delaware trustee
(the “Delaware Trustee”), Wilmington Trust Company, as institutional trustee
(the “Institutional Trustee”), and the holders from time to time of undivided
beneficial interests in the assets of the Trust. The Subordinated
Debt Securities will be issued pursuant to an Indenture, to be dated as of
the
Closing Date (the “Indenture”), between the Company and Wilmington Trust
Company, as indenture trustee (the “Indenture Trustee”).
The
Debt
Securities, the Common Securities and the Subordinated Debt Securities are
collectively referred to herein as the “Securities.” This Agreement,
the Indenture, the Declaration, the Guarantee Agreement, the Debenture
Subscription Agreement, the Common Securities Subscription Agreement, the
Capital Securities Subscription Agreement and the Securities are referred to
collectively as the “Operative Documents.” Capitalized terms used
herein without definition have the respective meanings specified in the
Declaration.
The
Securities have not been and will not be registered under the Securities Act
of
1933, as amended (the “Securities Act”).
1. Representations
and Warranties. The Company and the Trust jointly and severally
represent and warrant to, and agree with you and the Purchaser (as defined
in
Section 2 hereof) as set forth below in this Section 1 (provided,
that, none of the following representations or warranties apply or relate to
any
acts or omissions by you).
(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 its or their behalf has, directly or indirectly, made offers
or
sales of any security, or solicited offers to buy any security, under
circumstances that would require the registration of any of the Securities
under
the Securities Act.
(b) Neither
the Company nor the Trust, nor any of their Affiliates, nor any person acting
on
its or their behalf has 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.
(c) The
Securities satisfy the eligibility requirements of Rule 144A(d)(3) under the
Securities Act.
(d) Neither
the Company nor the Trust, nor any of their Affiliates, nor any person acting
on
its or their behalf, has engaged or will engage in any directed selling efforts
with respect to the Securities within the meaning of Regulation S.
(e) Neither
the Company nor the Trust is, nor after giving effect to the offering and sale
of the Securities will be, an “investment company” or an entity “controlled” by
an “investment company,” required to be registered under the Investment Company
Act of 1940, as amended (the “Investment Company Act”).
(f) Neither
the Company nor the Trust has paid or agreed to pay to any person any
compensation for soliciting another to purchase any of the
Securities.
(g) 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 the power and authority to own property and to
conduct the business it transacts and proposes to transact and to enter into
and
perform its obligations under the Operative Documents. The Trust is
duly qualified to transact business as a foreign entity and is in good standing
in each jurisdiction in which such qualification is necessary, except where
the
failure to so qualify or be in good standing would not have a material adverse
effect on such Trust. The Trust is not a party to or otherwise bound
by any agreement other than the Operative Documents. The Trust is and
will, under current law, be classified for federal income tax purposes as a
grantor trust and not as an association taxable as a corporation.
(h) The
Declaration has been duly authorized by the Company and, on the Closing Date,
will have been duly executed and delivered by the Company and the Administrators
of the Trust, and, assuming due authorization, execution and delivery by the
Delaware Trustee and the Institutional Trustee, be a valid and binding
obligation of the Company and such Administrators, 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 (“Bankruptcy and Equity”). Each of the Administrators of the
Trust is an employee or a director of the Company and has been duly authorized
by the Company to execute and deliver the Declaration.
(i) Each
of the Guarantee Agreement and the Indenture has been duly authorized by the
Company and, on the Closing Date will have been duly executed and delivered
by
the Company, and, assuming due authorization, execution and delivery by the
Guarantee Trustee, in the case of the Guarantee, and by the Indenture Trustee,
in the case of the Indenture, be a valid and binding obligation of
the Company enforceable against it in accordance with its terms, subject to
Bankruptcy and Equity.
(j) The
Debt Securities and the Common Securities have been duly authorized by the
Declaration and, when issued and delivered against payment therefor on the
Closing Date to you, in the case of the Debt Securities, and to the Company,
in
the case of the Common Securities, each in accordance with this Agreement,
the
Declaration, the Capital Securities Subscription Agreement and the Common
Securities Subscription Agreement, respectively, will be validly issued and
represent undivided beneficial interests in the assets of the
Trust. The issuance of the Debt Securities or the Common Securities
is not subject to any 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.
(k) The
Subordinated Debt Securities have been duly authorized by the Company and,
at
the Closing Date, will have been duly executed and delivered to the Indenture
Trustee for authentication in accordance with the Indenture and the debenture
subscription agreement, and, when authenticated in the manner provided for
in
the Indenture and delivered against payment therefor by the Trust, will
constitute valid and binding obligations of the Company entitled to the benefits
of the Indenture enforceable against the Company in accordance with their terms,
subject to Bankruptcy and Equity.
(l) This
Agreement has been duly authorized, executed and delivered by the Company and
the Trust.
(m) The
Trust is not in violation of any provision of the Statutory Trust Act and when
the Declaration is executed and delivered will not be in violation of the
Declaration. The execution, delivery and performance of the Operative
Documents to which it is a party by the Company or the Trust, and the
consummation of the transactions contemplated herein or therein, will not
conflict with or constitute a breach of, or a default under, or result in the
creation or imposition of any lien, charge or other encumbrance upon any
property or assets of the Trust, the Company or any of the Company’s
subsidiaries pursuant to any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Trust, the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of any of them is subject, except for a conflict,
breach, default, lien, charge or encumbrance which could not reasonably be
expected to have an adverse effect on the consummation of the transactions
contemplated herein or therein, nor will such action result in any violation
of
the Declaration or the Statutory Trust Act or require the consent, approval,
authorization or order of any court or governmental agency or body.
(n) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with all requisite corporate power
and
authority to own its properties and conduct the business it transacts and
proposes to transact, and is duly qualified to transact business and is in
good
standing as a foreign corporation in each jurisdiction where the nature of
its
activities requires such qualification except where the failure of the Company
to be so qualified would not, singly or in the aggregate, have a materially
adverse effect on the condition (financial or otherwise), earnings or business
of the Company and its subsidiaries taken as a whole, whether or not occurring
in the ordinary course of business (a “Material Adverse Effect”).
(o) Each
of the Company’s subsidiaries is listed in Schedule 1 (the “Subsidiaries”) and
has been duly incorporated and is validly existing as an entity in good standing
under the laws of the jurisdiction in which it is chartered or organized, with
all requisite corporate power and authority to own its properties and conduct
the business it transacts and proposes to transact, and is duly qualified to
transact business and is in good standing as a foreign corporation in each
jurisdiction where the nature of its activities requires such qualification
except where the failure of such Subsidiary to be so qualified would not, singly
or in the aggregate, have a Material Adverse Effect.
(p) The
Company and each of its Subsidiaries have all requisite power and authority,
and
all necessary authorizations, approvals, orders, licenses, certificates and
permits of and from regulatory or governmental officials, bodies and tribunals,
to own or lease their respective properties and to conduct their respective
businesses as now being conducted, and neither the Company nor any of the
Subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such authorizations, approvals, orders, licenses,
certificates or permits which, singly or in the aggregate, if the failure to
be
so licensed or approved or if the subject of an unfavorable decision, ruling
or
finding, would have a Material Adverse Effect; and the Company and its
Subsidiaries are in compliance with all applicable laws, rules, regulations
and
orders and consents, the violation of which would have a Material Adverse
Effect.
(q) The
audited consolidated financial statements (including the notes thereto) and
schedules of the Company and its consolidated subsidiaries for the year ended
December 31, 2006 (the “Financial Statements”) and the interim unaudited
consolidated financial statements of the Company and its consolidated
subsidiaries for the three months ended March 31. 2007 (the “Interim Financial
Statements”) provided to you are the most recent 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 generally accepted accounting principles, 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. Such consolidated financial statements and schedules
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise noted
therein).
(r) The
Company’s report on FR Y-9C dated March 31, 2007 provided to you is the most
recent available such report and the information therein fairly presents in
all
material respects the financial position of the Company and its subsidiaries
as
of the date thereof.
(s) Since
the respective dates of the Financial Statements, the Interim Financial
Statements and the FR Y-9C, there has been no material adverse change or
development with respect to the financial condition or earnings of the Company
and its subsidiaries, taken as a whole.
(t) Neither
the Company nor any of the Subsidiaries is in violation of its respective
charter or by-laws or similar organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or
other agreement or instrument to which the Company or any of the Subsidiaries
is
a party or by which it or any of them may be bound or to which any of the
property or assets of the Company or any of the Subsidiaries is subject, the
effect of which violation or default in performance or observance would have
a
Material Adverse Effect.
(u) 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 banks
are insured by the Federal Deposit Insurance Corporation (“FDIC”) to the fullest
extent permitted by law and the rules and regulations of the FDIC, and no
proceeding for the termination of such insurance is pending or to the best
of
our knowledge threatened.
(v) No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
Subsidiaries or its or their property is pending or, to the best knowledge
of
the Company, threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement, the Indenture, the
Declaration and the Guarantee, or the consummation of any of the transactions
contemplated hereby or thereby; or (ii) could reasonably be expected to have
a
Material Adverse Effect.
(w) Neither
the Company nor any of its Subsidiaries is party to or otherwise the subject
of
any consent decree, memorandum of understanding, written commitment or other
written supervisory agreement or enforcement action with the FDIC or any other
Federal or state authority or agency charged with the supervision or insurance
of the Company and its subsidiaries.
(x) Each
of the Company and its Subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted.
2. Sale
of the Debt Securities. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties herein
set forth, the Company and the Trust jointly and severally hereby appoint you
as
placement agent (the “Placement Agent”), and you hereby accept such appointment,
to act as the agent of the Company and the Trust, in connection with the
offering of the Debt Securities contemplated hereby, for the purpose of
soliciting offers and sales of the Debt Securities from the Purchaser (as
defined below). You agree to use your best efforts, subject to the
terms and conditions of this Agreement, on or prior to the Closing Date, to
effect such placement of the Debt Securities with an aggregate stated
liquidation amount of $1,000,000 at a purchase price equal to 100% of the stated
liquidation amount thereof.
The
Company and the Trust propose to issue and sell the Debt Securities on the
Closing Date to U.S. Capital Funding VI, Ltd., a newly formed company with
limited liability established under the laws of the Cayman Islands (the
“Purchaser”), pursuant to the terms of the Capital Securities Subscription
Agreement, to be entered into on the Closing Date (the “Capital Securities
Subscription Agreement”), between the Company, the Trust and the
Purchaser. The Company and the Trust agree to execute the Capital
Securities Subscription Agreement with the Purchaser and to return the same
to
you. In addition, the Company and the Trust agree that the Purchaser
(and any subsequent transferee that is an entity that holds a pool of trust
preferred securities, debt securities and/or similar securities or a trustee
thereof (a “Subsequent Pooled Trust Vehicle”)) shall be entitled to the benefit
of, and to rely on, the provisions of this Agreement to the extent such
provisions address or relate to the Purchaser or the Debt
Securities. No Placement Agent shall, in fulfilling its obligations
hereunder, act as an underwriter for the Debt Securities.
The
distribution rate of the Debt Securities, as of the date hereof, is the
Fixed/Floating Rate. Under certain circumstances, the distribution
rate of the Debt Securities may be reduced pursuant to a written agreement
among
you, the Purchaser and the Company made prior to the Closing Date.
3. Delivery
and Payment. Delivery of and payment for the Debt Securities
shall be made at 10:00 a.m. New York City time, on July 30, 2007, which date
and
time may be postponed by agreement between you, on the one hand, and the Company
and the Trust, on the other hand (such date and time of delivery and payment
for
the Debt Securities being herein called the “Closing Date”); provided,
that the Closing Date may be no later than 30 days from the date
hereof.
Delivery
of the Debt Securities shall be made at such location, and in such names and
denominations, as you shall designate at least one business day in advance
of
the Closing Date. The Company and the Trust agree to have the Debt
Securities available for inspection and checking by you in Washington, D.C.,
not
later than 1:00 p.m. on the business day prior to the Closing
Date. The closing for the purchase and sale of the Debt Securities
shall occur at the offices of XxXxx Xxxxxx LLP, 0000 X Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000, or such other place as the parties hereto shall agree.
4. Representations. The
Placement Agent represents to the Company and the Trust that:
(a) It
is aware that the Debt Securities have not been and will not be registered
under
the Securities Act and may not be offered or sold within the United States
or to
U.S. persons except in accordance with Rule 903 of Regulation S under the
Securities Act or pursuant to another exemption from the registration
requirements of the Securities Act. It will not offer, sell or
arrange for the offer or sale of any Securities to purchasers except in
privately negotiated transactions that will not require registration of the
Securities under the Securities Act. Terms used in the first sentence
of this Section 4 have the meanings given to them by Regulation S under the
Securities Act.
(b) Neither
it, nor any of its Affiliates, nor any person acting on its or their behalf
has
engaged, or will engage, in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with any offer
or
sale of the Debt Securities.
(c) Neither
it, nor any of its Affiliates, nor any person acting on its or their behalf
has
engaged or will engage in any directed selling efforts within the meaning of
Regulation S under the Securities Act with respect to the Debt
Securities.
5. Agreements. The
Company and the Trust agree with the Placement Agent and the Purchaser
that:
(a) Neither
the Company nor the Trust will, nor will either of them permit any of its
Affiliates to, resell any Debt Securities that have been acquired by any of
them.
(b) Neither
the Company nor the Trust will, nor will either of them permit any of its
Affiliates, nor any person acting on its or their behalf, to, directly or
indirectly, make offers or sales of any security, or solicit offers to buy
any
security, under circumstances that would require the registration of any of
the
Securities under the Securities Act, provided,however, this
obligation does not apply to acts or omissions of the Placement
Agent.
(c) Neither
the Company nor the Trust will, nor will either of them permit any of its
Affiliates, nor any person acting on its or their behalf, to, 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,
provided,however, this obligation does not apply to acts or
omissions of the Placement Agent.
(d) Neither
the Company nor the Trust will, nor will either of them permit any of its
Affiliates, nor any person acting on its or their behalf, to, engage in any
directed selling efforts within the meaning of Regulation S under the Securities
Act with respect to the Securities, provided,however, this
obligation does not apply to acts or omissions of the Placement
Agent.
(e) 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, each of the
Company and the Trust will, during any period in which it is not subject to
and
in compliance with Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) or it is 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, any
information required to be provided by Rule 144A(d)(4) under the Securities
Act. This covenant is intended to be for the benefit of the holders,
and the prospective purchasers designated by such holders, from time to time
of
such restricted securities. The information provided by the Company
and the Trust pursuant to this Section 5(e) 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 the light of the circumstances
under which they were made, not misleading.
(f) Neither
the Company nor the Trust will, until 180 days following the Closing Date,
without your prior written consent, offer, sell, contract to sell, grant any
option to purchase or otherwise dispose of, directly or indirectly, (i) any
Debt
Securities or other securities of the Trust other than as contemplated by this
Agreement, (ii) any securities that are substantially similar to the Securities
or (iii) any other securities convertible into, or exercisable or exchangeable
for, any of (i) or (ii), or enter into an agreement, or announce an intention,
to do any of the foregoing.
(g) The
Company agrees to pay (i) the costs incident to the authorization, issuance,
sale and delivery of the Debt Securities and any taxes payable in that
connection and (ii) the fees and expenses of the Institutional Trustee,
the Guarantee Trustee and the Indenture Trustee.
(h) Neither
you, nor any of your Affiliates, will include any information about the Company
or any of its Affiliates (other than information related to this offering)
in
any registration statement, prospectus, offering circular, private placement
memorandum or other similar document used in connection with any purchase of,
or
solicitation to purchase, the Debt Securities without the prior written consent
of the Company.
6. Conditions
to the Obligations of the Placement Agent. The Placement Agent’s
obligations to use its best efforts to procure subscription and payment for
the
Debt Securities and the Purchaser’s obligations on the Closing Date shall be
subject to the accuracy of the representations and warranties on the part of
the
Company and the Trust contained herein as of the date and time that this
Agreement is executed (the “Execution Time”) and the Closing Date, to the
accuracy of the statements of the Company and the Trust made in any certificates
pursuant to the provisions hereof, to the performance by the Company and the
Trust of their obligations hereunder and to the following additional
conditions:
(a) The
Company shall have furnished to you and the Purchaser the opinion of Jones,
Walker, Waechter, Poitevent, Carrère & Xxxxxxx LLP, special counsel for the
Company, dated the Closing Date, addressed to you, in substantially the form
set
out in Annex A hereto.
(b) The
Company shall have furnished to you and the Purchaser the opinion of Jones,
Walker, Waechter, Poitevent, Carrère & Xxxxxxx LLP, special tax counsel for
the Company, dated the Closing Date, containing such assumptions, qualifications
and limitations as shall be reasonably acceptable to you and your counsel to
the
effect that for U.S. federal income tax purposes, the Subordinated Debt
Securities will constitute indebtedness of the Company, in substantially the
form set out in Annex B hereto.
(c) You
and the Purchaser shall have received the opinion of Xxxxxx Xxxxx LLP, special
Delaware counsel for the Company and the Trust, dated the Closing Date,
addressed to you, in substantially the form set out in Annex C
hereto.
(d) You
and the Purchaser shall have received the opinion of Xxxxxx Xxxxx LLP, counsel
for the Guarantee Trustee, the Institutional Trustee, the Delaware Trustee
and
the Indenture Trustee, dated the Closing Date addressed to you, in substantially
the form set out in Annex D hereto.
(e) The
Company shall have furnished to you a certificate of the Company, signed by
the
President or a Vice President and by a Treasurer or Chief Financial Officer
of
the Company, dated the Closing Date, to the effect that:
(i) the
representations and warranties of the Company and the Trust in this Agreement
are true and correct in all material respects 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
(ii) since
the date of the most recent financial statements provided to the Placement
Agent, there has been no material adverse change in the condition (financial
or
other), earnings, business or properties of the Company and its subsidiaries,
whether or not arising from transactions in the ordinary course of
business.
(f) Subsequent
to the Execution Time there shall not have been any change, or any development
involving a prospective change, in or affecting the business or properties
of
the Company and its subsidiaries the effect of which, is, in your reasonable
judgment, so material and adverse as to make it impractical or inadvisable
to
proceed with the offering or delivery of the Debt Securities.
(g) Prior
to the Closing Date, the Company and the Trust shall have furnished to you
and
the Purchaser such further information, certificates and documents as you may
reasonably request.
(h) At
the Closing Date, each of the Operative Documents shall have been duly
authorized, executed and delivered by each party thereto, and copies thereof
shall have been delivered to you.
If
any of
the conditions specified in this Section 6 shall not have been fulfilled in
all material respects when and as provided in this Agreement, or if any of
the
opinions, certificates and documents mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in
form
and substance to you, this Agreement and all the Placement Agent’s obligations
hereunder may be canceled at, or at any time prior to, the Closing Date by
you. Notice of such cancellation shall be given to the Company and
the Trust in writing or by telephone or telegraph confirmed in
writing.
7. Reimbursement
of Expenses of the Placement Agent. If the sale of the Debt
Securities provided for herein is not consummated because any condition set
forth in Section 6 hereof is not satisfied, because of any termination
pursuant to Section 9 hereof or because of any refusal, inability or
failure on the part of the Company or the Trust to perform in all material
respects any agreement herein or comply with any provision hereof other than
by
reason of a default by you, the Company will reimburse the Placement Agent
upon
demand for all documented out-of-pocket expenses (including reasonable fees
and
disbursements of counsel) that shall have been incurred by the Placement Agent
in connection with the proposed offering and sale of the Debt
Securities.
8. Indemnification
and Contribution. (a) The Company and the Trust agree
jointly and severally to indemnify and hold harmless the Placement Agent and
the
Purchaser and their respective directors, officers, employees and agents and
each person who controls the Placement Agent or Purchaser 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 any untrue statement or alleged untrue statement
of a material fact contained in any written information or documents furnished
or made available to the Placement Agent or the Purchaser by the Company or
the
Trust, or their representatives in connection with the transactions contemplated
herein, or arise out of or are based upon 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, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which the Company or the Trust may otherwise
have.
(b) The
Company agrees to indemnify the Trust against all loss, liability, claim, damage
and expense whatsoever, as due from the Trust under Section 8(a)
hereunder.
(c) 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 paragraph (a) above, unless and
to
the extent that the indemnifying party did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial 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 paragraph (a) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party’s choice at the indemnifying party’s expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except
as
set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. An indemnified party will not, without the prior
written consent of the indemnifying parties, settle or compromise or consent
to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual
or
potential parties to such claim or action).
(d) In
the event that the indemnity provided in paragraph (a), (b) or (c) of this
Section 8 is unavailable or insufficient to hold harmless an indemnified party
for any reason, the Company, the Trust and you agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same)
(collectively “Losses”) to which the Company, the Trust and you may be subject
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Trust on the one hand and by you on the other from the
offering of the Securities; provided, however, that in no case
shall you be responsible for any amount in excess of the purchase discount
or
commission applicable to the Securities placed hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for
any
reason, the Company, the Trust and you shall contribute in such proportion
as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Trust on the one hand and of you on the other
in
connection with the statements or omissions which resulted in such Losses,
as
well as any other relevant equitable considerations. Benefits
received by the Company and the Trust shall be deemed to be equal to the total
net proceeds from the offering (before deducting expenses) received by it,
and
benefits received by you shall be deemed to be equal to the total purchase
discounts or commissions applicable to the Securities placed
hereunder. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information provided by the Company and the Trust on the one hand or you on
the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company, the Trust and you agree that it would not be
just and equitable if contribution were determined by pro rata allocation or
any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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, each person who
controls the Placement Agent or Purchaser within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and
agent of the Purchaser or the Placement Agent shall have the same rights to
contribution as you, and each person who controls the Company within the meaning
of either the Securities Act or the Exchange Act, each officer and director
of
the Company and each Administrator of the Trust shall have the same rights
to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Termination. This
Agreement shall be subject to termination in the absolute discretion of you,
by
notice given to the Company and the Trust prior to delivery of and payment
for
the Debt Securities, if prior to such time (i) there has occurred any Material
Adverse Effect, (ii) trading in any of the Company’s securities shall have
been suspended by the Commission or the exchange upon which the Company’s
securities are traded, if any, or trading in securities generally on the New
York Stock Exchange shall have been suspended or limited or minimum prices
shall
have been established on such Exchange, (iii) a banking moratorium shall
have been declared either by Federal or Delaware authorities, or (iv) there
shall have occurred any outbreak or escalation of hostilities, declaration
by
the United States of a national emergency or war or other calamity or crisis
the
effect of which on financial markets is such as to make it, in your judgment,
impracticable or inadvisable to proceed with the offering or delivery of the
Debt Securities.
10. Representations
and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company
and
the Trust or their respective officers or trustees and of the Placement Agent
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Placement
Agent, the Company or the Trust or any of the officers, directors or trustees,
administrators, controlling persons, and will survive delivery of and payment
for the Debt Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
11. Notices. All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Placement Agent, will be mailed, delivered or telecopied and
confirmed to at StoneCastle Securities, LLC, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxx; if sent to the Company or the
Trust, will be mailed, delivered or telecopied and confirmed to it at 000 Xxxx
Xxxx, Xxxxxxxx, Xxxxx Xxxxxx 00000.
12. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers and directors and controlling
persons, and, except as set forth below, no other person will have any right
or
obligation hereunder.
The
parties hereto agree that each transferee of the Debt Securities is an express
and intended third-party beneficiary of this Agreement and shall be entitled
to
the benefit of, and to rely on, the provisions of this Agreement to the extent
such provisions address or relate to the Debt Securities.
13. Applicable
Law. THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
14. Counterparts. This
Agreement may contain more than one counterpart of the signature page and this
Agreement may be executed by the affixing of the signature of each of the
Company, the Trust and you to any of such counterpart signature
pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of
the
signers had signed a signature page.
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company, the Trust
and
you.
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Very
truly yours,
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BNCCORP,
INC.
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By:
/s/ Xxxxxxx X.
Xxxxxxxxx
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Name: Xxxxxxx
X. Xxxxxxxxx
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Title: President
and Chief Executive Officer
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BNC
STATUTORY TRUST III
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By:
/s/ Xxxxxxx X.
Xxxxx
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Name:
Xxxxxxx X. Xxxxx
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Title: Administrator
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The
foregoing Agreement is hereby
confirmed
and accepted as of the
date
first above written.
STONECASTLE
SECURITIES, LLC
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By:
/s/ Xxxxxxx
Xxxxxx
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Name:
Xxxxxxx Xxxxxx
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Title:
Secretary
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SCHEDULE
1
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List
of Subsidiaries
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BNC
National Bank
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BNC
Asset Management, Inc. (a subsidiary of BNC National
Bank)
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BNC
Capital Trust I
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BNC
Statutory Trust II
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Bismarck
Properties, Inc.
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ANNEX
A
Pursuant
to Section 6(a) of the Placement Agreement, special counsel for the Company
shall deliver an opinion in substantially the following form:
(i) each
of the Company and the Subsidiaries (A) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full corporate power
and authority to own its properties and conduct the business it currently
transacts, (B) is duly qualified to do business as a foreign corporation and
is
in good standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases properties or conducts business, except
where the failure to be so qualified would not, singularly or in the aggregate,
have a Material Adverse Effect, and (C) holds all material approvals,
authorizations, orders, licenses, certificates and permits from governmental
authorities necessary for the conduct of its business as now being conducted,
except where the failure to hold such approvals, authorizations, orders,
licenses, certificates and/or permits would not, singularly or in the aggregate,
have a Material Adverse Effect;
(ii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the consummation of the transactions contemplated herein
or
in the Operative Documents, in connection with the solicitation of the purchase
and sale of the Debt Securities by you or the purchase of the Subordinated
Debt
Securities by the Trust except such approvals (specified in such opinion) as
have been obtained;
(iii) neither
the issue and sale of the Debt Securities or the Subordinated Debt Securities,
the execution and delivery of the Operative Documents by the Company or the
Trust and the consummation of any other of the transactions therein contemplated
in any Operative Document nor the fulfillment of the terms thereof will conflict
with, result in a breach or violation of, or constitute a default under any
law
or the charter or by-laws of the Company or any of its Subsidiaries, the terms
of any indenture or other agreement or instrument known to such counsel after
due inquiry and to which the Company or any of its Subsidiaries is a party
or
bound or any judgment, order, decree, of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over
the Company or any of its Subsidiaries, or any provision of applicable law,
known to such counsel to be applicable to the Company or any of its
Subsidiaries, except for such conflicts, breaches, violations or defaults which
are not, in the aggregate, material to the Company and its subsidiaries taken
as
a whole and which do not adversely affect the consummation of the transactions
contemplated in this Agreement and the Operative Documents;
(iv) the
Company is duly registered as a bank holding company under the Bank Holding
Company Act and the regulations thereunder of the Federal Reserve, and the
deposit accounts of the Company’s banking subsidiaries are insured by the FDIC
to the fullest extent permitted by law and the rules and regulations of the
FDIC, and, to the best of our knowledge no proceeding for the termination of
such insurance is pending or threatened;
(v) each
of the Indenture and the Guarantee Agreement has been duly authorized, executed
and delivered by the Company, and (in the case of the Indenture and the
Guarantee, respectively, assuming it is duly authorized, executed and delivered
by the Indenture Trustee and the Guarantee Trustee, respectively) constitutes
a
legal, valid and binding instrument of the Company enforceable against the
Company in accordance with its terms, subject to Bankruptcy and Equity; the
Subordinated Debt Securities have been duly and validly authorized 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 and paid for by the Trust, 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 its terms, subject to
Bankruptcy and Equity;
(vi) each
of the Purchase Agreement, the Placement Agreement and the Capital Securities
Subscription Agreement has been duly authorized, executed and delivered by
the
Company and constitutes a valid and binding instrument of the Company,
enforceable against the Company in accordance with its terms, subject to
Bankruptcy and Equity;
(vii) the
Declaration has been duly authorized, executed and delivered by the Company
and
the Administrators;
(viii) each
of the Purchase Agreement, the Placement Agreement and the Capital Securities
Subscription Agreement has been duly executed and delivered by the Trust and
constitutes a valid and binding instrument of the Trust, enforceable against
the
Trust in accordance with its terms, subject to Bankruptcy and
Equity;
(ix) neither
the Company nor the Trust is, and, following the issuance of the Debt Securities
and the consummation of the transactions contemplated by the Operative Documents
and the application of the proceeds therefrom, neither the Company nor the
Trust
will be an “investment company” or an entity “controlled” by an “investment
company,” required to be registered under the Investment Company Act;
and
(x) assuming
the accuracy of the representations and warranties and compliance with the
agreements contained herein, no registration of any of the Securities under
the
Securities Act is required for the offer, and sale and delivery by the Trust
to
the Purchaser of the Debt Securities in the manner contemplated by this
Agreement, and the Indenture, the Declaration and the Guarantee are not required
to be qualified under the Trust Indenture Act of 1939.
In
rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of New York, the corporate laws of the State of
Delaware and the Federal laws of the United States and (B) rely as to
matters involving the application of laws of any jurisdiction other than
New York and Delaware or the United States, 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 you and as to
matters of fact, and to the extent deemed proper, upon certificates of
responsible officers of the Company and public officials and (C) in rendering
such opinions, such counsel may (A) state that its opinion is limited to the
laws of the States of Louisiana and New York, the corporate laws of the State
of
Delaware and the federal laws of the United States, (B) rely as to matters
involving the application of laws of any jurisdiction other than the States
of
Louisiana, New York and Delaware or the United States, 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 you and as to
matters of fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials and (C) if such counsel is not
admitted to the Bar of the State of New York and is not relying on other counsel
for New York as to matters involving the application of the laws of the State
of
New York, as to such matters assume that the jurisdiction in which such counsel
is admitted to practice law governs and provide an enforceability opinion under
the laws of the jurisdiction in which such counsel is admitted. Such
opinion shall provide that any Subsequent Pooled Trust Vehicle may rely on
such
opinion as if it was an addressee thereof.
ANNEX
B
Pursuant
to Section 6(b) of the Placement Agreement, special tax counsel for the Company
shall deliver an opinion in substantially the following form:
We
have
acted as special tax counsel to BNCCORP, Inc., a Delaware corporation (the
“Company”), in connection with the offering by BNC Statutory Trust III (the
“Trust”) of 15,000 Floating Rate Capital Securities (liquidation amount $1,000
per capital security) (the “Debt Securities”). The Debt Securities
represent undivided beneficial ownership interests in $15,464,000 in aggregate
principal amount of Floating Rate Junior Subordinated Debt Securities due 2037
of the Company (the “Subordinated Debt Securities”). This opinion
letter is furnished pursuant to Section 6(b) of each of the Purchase Agreement
dated July 30, 2007, among the Company, the Trust and the purchaser named
therein and the Placement Agreement dated July 30, 2007, among the Company,
the
Trust and the placement agent named therein.
In
arriving at the opinions expressed below we have examined executed copies of
(i)
the Amended and Restated Declaration of Trust of the Trust dated the date hereof
(the “Declaration”), and (ii) the Indenture relating to the issuance of the
Subordinated Debt Securities dated the date hereof (the “Indenture”) (together,
the “Operative Documents”). In addition, we have made such
investigations of law and fact as we have deemed appropriate as a basis for
the
opinion expressed below.
It
is our
opinion that, under current law and assuming the performance of the Operative
Documents in accordance with the terms described therein, the Subordinated
Debt
Securities will be treated for United States federal income tax purposes as
indebtedness of the Company.
Our
opinion is based on the U.S. Internal Revenue Code of 1986, as amended, Treasury
regulations promulgated thereunder, and administrative and judicial
interpretations thereof, all as of the date hereof and all of which are subject
to change, possibly on a retroactive basis. In rendering this
opinion, we are expressing our views only as to the federal income tax laws
of
the United States of America.
Such
opinion shall provide that any
Subsequent Pooled Trust Vehicle may rely on such opinion as if it was an
addressee thereof.
ANNEX
C
Pursuant
to Section 6(c) of the Placement Agreement, special Delaware counsel for the
Company and the Trust shall deliver an opinion in substantially the following
form:
1. The
Trust has been duly formed and is validly existing in good standing as a
statutory trust under the Act.
2. The
Declaration constitutes a valid and binding obligation of the Sponsor and
Trustees party thereto, enforceable against such Sponsor and Trustees in
accordance with its terms.
3. Under
the Act and the Declaration, the Trust has the requisite trust power and
authority (i) to own its properties and conduct its business, all as described
in the Declaration, (ii) to execute and deliver, and perform its obligations
under, the Trust Documents, (iii) to authorize, issue, sell and perform its
obligations under its Trust Securities, and (iv) to purchase and hold the
Debentures.
4. The
Debt Securities of the Trust have been duly authorized for issuance by the
Trust
and, when issued, executed and authenticated in accordance with the Declaration
and delivered against payment therefor in accordance with the Declaration and
the Capital Securities Subscription Agreement, will be validly issued and,
subject to the qualifications set forth in paragraph 5 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust and
the
Debt Security Holders will be entitled to the benefits provided by the
Declaration.
5. Each
Debt Security Holder, in such capacity, will be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware. We note, however, that the Debt Security Holders may be
required to make payment or provide indemnity or security as set forth in the
Declaration.
6. Under
the Declaration and the Act, the issuance of the Trust Securities of the Trust
is not subject to preemptive rights.
7. The
Common Securities of the Trust have been duly authorized for issuance by the
Trust and, when issued and executed in accordance with the Declaration and
delivered against payment therefor in accordance with the Declaration and the
Common Securities Subscription Agreement, will be validly issued undivided
beneficial interests in the assets of the Trust and the Common Security Holders
will be entitled to the benefits provided by the Declaration.
8. Under
the Declaration and the Act, the execution and delivery by the Trust of the
Trust Documents, and the performance by the Trust of its obligations thereunder,
have been duly authorized by the requisite trust action on the part of such
Trust.
9. The
issuance and sale by the Trust of its Trust Securities, the execution, delivery
and performance by the Trust of the Trust Documents, the consummation by the
Trust of the transactions contemplated by the Trust Documents, and the
compliance by the Trust with its obligations thereunder are not prohibited
by
(i) the Declaration or the Certificate, or (ii) any law or administrative
regulation of the State of Delaware applicable to such Trust.
10. No
authorization, approval, consent or order of any Delaware court or Delaware
governmental authority or Delaware agency is required to be obtained by the
Trust solely in connection with the issuance and sale by the Trust of its Trust
Securities, the due authorization, execution and delivery by the Trust of the
Trust Documents or the performance by the Trust of its obligations under the
Trust Documents.
11. The
Debt Security Holders (other than those Debt 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.
Such
opinion shall provide that any
Subsequent Pooled Trust Vehicle may rely on such opinion as if it was an
addressee thereof.
ANNEX
D
Pursuant
to Section 6(d) of the Placement Agreement, counsel for the Guarantee Trustee,
the Institutional Trustee, the Delaware Trustee and the Indenture Trustee shall
deliver an opinion in substantially the following form:
1. Wilmington
Trust Company (“WTC”) is a Delaware banking corporation with trust powers, duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, with requisite corporate power and authority to execute and
deliver, and to perform its obligations under, the Transaction
Documents.
2. The
execution, delivery, and performance by WTC of the Transaction Documents have
been duly authorized by all necessary corporate action on the part of WTC,
and
the Transaction Documents have been duly executed and delivered by
WTC.
3. The
execution, delivery and performance of the Transaction Documents by WTC and
the
consummation of any of the transactions by WTC contemplated thereby are not
prohibited by (i) the Charter or Bylaws of WTC, (ii) any law or administrative
regulation of the State of Delaware or the United States of America governing
the banking and trust powers of WTC, or (iii) to our knowledge (based and
relying solely on the Officer Certificates), any agreements or instruments
to
which WTC is a party or by which WTC is bound or any judgments or order
applicable to WTC.
4. The
Debentures delivered on the date hereof have been authenticated by due execution
thereof and delivered by WTC, as Debenture Trustee, in accordance with the
Corporation Order. The Debt Securities delivered on the date hereof
have been authenticated by due execution thereof and delivered by WTC, as
Institutional Trustee, in accordance with the related Trust Order.
5. None
of the execution, delivery and performance by WTC of the Transaction Documents
and the consummation of any of the transactions by WTC contemplated thereby
requires the consent, authorization, order or approval of, the withholding
of
objection on the part of, the giving of notice to, the registration with or
the
taking of any other action in respect of, any governmental authority or agency,
under any law or administrative regulation of the State of Delaware or the
United States of America governing the banking and trust powers of WTC, except
for the filing of the Certificate for the Trust with the Office of the Secretary
of State of the State of Delaware pursuant to the Delaware Statutory Trust
Act
12 Del.C. §3801, etseq. (which filing has been duly
made).
Such
opinion shall provide that any
Subsequent Pooled Trust Vehicle may rely on such opinion as if it was an
addressee thereof.
