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EXHIBIT 10.6
XXXXX CAPITAL TRUST I
$11,000,000
FLOATING RATE CAPITAL SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED AS TO DISTRIBUTIONS
AND OTHER PAYMENTS BY
XXXXX BANCORP, INC.
PURCHASE AGREEMENT
New York, New York
October 1, 2004
NBC Capital Markets Group, Inc.
000 Xxxxx Xxxx Xxxx.
Suite 400
Memphis, TN 38120
Ladies and Gentlemen:
Xxxxx Bancorp, Inc., a bank holding company incorporated in
New York (the "Company") and Xxxxx Capital Trust I, a Delaware statutory trust
(the "Trust"), propose, subject to the terms and conditions stated herein, to
issue and sell to NBC Capital Markets Group, Inc., a broker-dealer member of The
National Association of Securities Dealers, Inc. ("NASD") and a corporation
organized and existing under the laws of the State of Tennessee ("NBCCMG"),
11,000 of Floating Rate Capital Securities of the Trust (the "Capital
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 2.65% (such variable
per annum rate not to exceed 12.0% per annum for any Distribution Period ending
on or prior to the Distribution Payment Date in November 2009) (the "Floating
Rate").
The Capital 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 Capital Securities. The
entire proceeds from the sale of the Capital 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
$11,341,000 in principal amount of the Floating Rate Junior Subordinated Debt
Securities due 2034 of the Company (the "Subordinated Debt Securities"). The
Capital 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 Capital 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 Common Securities Subscription Agreement and the Securities are
referred to collectively as the
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"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 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
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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 Capital 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 Capital
Securities, and to the Company, in the case of the Common Securities, each in
accordance with this Agreement, the Declaration 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
Capital 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 New York, 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 significant 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,
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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, 2003 (the "Financial Statements")
and the interim unaudited consolidated financial statements of the Company and
its consolidated subsidiaries for the three months ended June 30, 2004 (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 form FR Y-9C dated June 30, 2004
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.
(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.
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2. Sale of the Capital 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 agree to sell to you as
purchaser (the "Purchaser"), and the Purchaser agrees to purchase from the
Company and the Trust, the Capital Securities with an aggregate stated
liquidation amount of $11,000,000 at a purchase price equal to 100% of the
stated liquidation amount thereof.
Any payment pursuant to this Section 2 shall be made by wire
transfer in immediately available funds to the U.S. account designated in
writing by the party entitled to receive such payment.
The distribution rate of the Capital Securities, as of the
date hereof, is the Floating Rate. Under certain circumstances, the distribution
rate of the Capital Securities may be reduced pursuant to a written agreement
among you and the Company made prior to the Closing Date.
3. Delivery and Payment. Delivery of and payment for the
Capital Securities shall be made at 10:00 a.m. New York City time, on October 1,
2004, or such later date as you shall designate in writing, 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
Capital Securities being herein called the "Closing Date"); provided, that the
Closing Date may be no later than 60 days from the date hereof.
Delivery of the Capital 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 Capital 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 Capital Securities
shall occur at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 0000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000, or such other place as the parties hereto shall
agree.
4. Representations. The Purchaser represents to the Company
and the Trust that:
(a) It is aware that the 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 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 Securities.
5. Agreements. The Company and the Trust agree with the
Purchaser that:
(a) Neither the Company nor the Trust will, nor will either of
them permit any of its Affiliates to, resell any Capital 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 Purchaser.
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(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 Purchaser.
(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 Purchaser.
(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 Capital 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) Except as set forth in the Fee Agreement dated as of the
date hereof between the Purchaser and Wilmington Trust Company, the Company
agrees to pay (i) the costs incident to the authorization, issuance, sale and
delivery of the Capital 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.
6. Conditions to the Obligations of the Purchaser. 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 the opinion of
Xxxxxx Beach 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 the opinion of
Xxxxxx Beach 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 shall have received the opinion of Xxxxxx, Xxxxx,
Xxxxxxxx & Xxxxxxxx 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.
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(d) You shall have received the opinion of Xxxxxx, Xxxxx,
Xxxxxxxx & Xxxxxxxx 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, 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 Purchaser, 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 judgment, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Capital
Securities.
(g) Prior to the Closing Date, the Company and the Trust shall
have furnished to you 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
Purchaser'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 Purchaser. If the sale of
the Capital 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 any agreement herein
or comply with any provision hereof, the Company will reimburse the Purchaser
upon demand for all documented out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by the Purchaser in
connection with the proposed offering and sale of the Capital Securities.
8. Indemnification and Contribution. (a) The Company and the
Trust agree jointly and severally to indemnify and hold harmless the Purchaser
and its directors, officers, employees and agents and each person who controls
the 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
information (whether oral or written) or documents furnished or made available
to the Purchaser by the Company or the Trust, or its 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
198
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, 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 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 purchased 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 purchased 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
199
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
Purchaser within the meaning of either the Securities Act or the Exchange Act
and each director, officer, employee and agent of the Purchaser 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 Capital 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 New York
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 Capital 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
Purchaser set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of the
Purchaser, the Company or the Trust or any of the officers, directors or
trustees, administrators, controlling persons, and will survive delivery of and
payment for the Capital 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 Purchaser, will be mailed,
delivered or telecopied and confirmed to at 000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxx XxXxxxxxx; if sent to the Company or
the Trust, will be mailed, delivered or telecopied and confirmed to it at 00-00
X. Xxxx Xxxxxx, X.X. Box 191, Angola, New York 14006-0191.
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 Capital
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 Capital
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.
200
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.
Very truly yours,
XXXXX BANCORP, INC.
By: /s/Xxxxx Xxxxxx
---------------
Name: Xxxxx Xxxxxx
Title: President and Chief Executive Officer
XXXXX CAPITAL TRUST I
By: /s/Xxxxx Xxxxxx
---------------
Name: Xxxxx Xxxxxx
Title: Administrator
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
NBC CAPITAL MARKETS GROUP, INC.
By: /s/Xxxxxx Xxxxx XxXxxxxxx
-------------------------
Name: Xxxxxx Xxxxx XxXxxxxxx
Title: Executive Vice President
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SCHEDULE 1
LIST OF SIGNIFICANT SUBSIDIARIES
Xxxxx National Bank
202
ANNEX A
Pursuant to Section 6(a) of the Purchase 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 transacts and proposes to
transact, (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 approvals, authorizations, orders, licenses,
certificates and permits from governmental authorities necessary for
the conduct of its business, 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 Capital 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 Capital
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 after due inquiry 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) the Purchase Agreement has been duly authorized,
executed and delivered by
203
the Company and constitutes a valid and binding instrument of the
Company, enforceable against the Company in accordance with its terms;
(vii) the Declaration has been duly authorized,
executed and delivered by the Company and the Administrators;
(viii) the Purchase 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;
(ix) neither the Company nor the Trust is, and,
following the issuance of the Capital 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 Capital 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.
204
ANNEX B
Pursuant to Section 6(b) of the Purchase Agreement, special tax counsel for the
Company shall deliver an opinion in substantially the following form:
We have acted as special tax counsel to Xxxxx Bancorp, Inc., a
New York corporation (the "Company"), in connection with the offering by Xxxxx
Capital Trust I (the "Trust") of 11,000 Floating Rate Capital Securities
(liquidation amount $1,000 per capital security) (the "Capital Securities"). The
Capital Securities represent undivided beneficial ownership interests in
$11,341,000 in aggregate principal amount of Floating Rate Junior Subordinated
Debt Securities due 2034 of the Company (the "Subordinated Debt Securities").
This opinion letter is furnished pursuant to Section 6(b) of the Purchase
Agreement dated October 1, 2004, between the Company, the Trust and you.
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.
205
ANNEX C
Pursuant to Section 6(c) of the Purchase 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 Capital 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 Purchase 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 Capital Security Holders will be entitled to the benefits
provided by the Declaration.
5. Each Capital 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 Capital 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 Capital Security Holders (other than those Capital
Security Holders who reside or are domiciled in the State of Delaware) will have
no liability for income taxes imposed by the State of Delaware solely as a
result of their participation in the Trust, and the Trust will not be liable for
any income tax imposed by the State of Delaware.
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ANNEX D
Pursuant to Section 6(d) of the Purchase 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 Capital 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. Section 3801, et seq. (which filing has
been duly made).
