Exhibit 10.4
PLACEMENT AGREEMENT
AMONG
BLUE RIVER BANCSHARES, INC.,
BLUE RIVER BANCSHARES TRUST I
AND
X.X. XXXXXX SECURITIES INC.
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Dated as of April 20, 2006
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Blue River Bancshares, Inc.
$7,000,000 Preferred Securities
Floating Rate Preferred Securities
(Liquidation Amount $1,000 per Preferred Security)
PLACEMENT AGREEMENT
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April 20, 2006
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Blue River Bancshares, Inc., an Indiana corporation (the "Company"), and
its financing subsidiary, Blue River Bancshares Trust I, a Delaware statutory
trust (the "Trust," and hereinafter together with the Company, the "Offerors"),
hereby confirm their agreement (this "Agreement") with you as placement agent
(the "Placement Agent"), as follows:
Section 1. Issuance and Sale of Securities.
1.1 Introduction. The Offerors propose to issue and sell at the Closing (as
defined in Section 2.3.1 hereof) SEVEN MILLION AND 00/100 ($7,000,000) DOLLARS
of the Trust's Floating Rate Preferred Securities, with a liquidation amount of
$1,000 per preferred security, bearing a variable rate of interest per annum,
reset quarterly, equal to LIBOR (as defined in the Indenture (as defined below))
plus 1.55% (the "Preferred Securities"), directly or indirectly, to TWE, Ltd.,
an exempted company incorporated under the laws of the Cayman Islands (the
"Purchaser"), pursuant to the terms of the Preferred Securities Subscription
Agreement entered into, or to be entered into on or prior to the Closing Date
(as defined in Section 2.3.1 hereof), between the Offerors and the Purchaser
(the "Subscription Agreement"), the form of which is attached hereto as Exhibit
A and incorporated herein by this reference.
1.2 Operative Agreements. The Preferred Securities shall be fully and
unconditionally guaranteed on a subordinated basis by the Company with respect
to distributions and amounts payable upon liquidation, redemption or repayment
(the "Guarantee") pursuant and subject to the Guarantee Agreement (the
"Guarantee Agreement"), to be dated as of the Closing Date and executed and
delivered by the Company and Wilmington Trust Company, as guarantee trustee (the
"Guarantee Trustee"), for the benefit from time to time of the holders of the
Preferred Securities. The entire proceeds from the sale by the Trust to the
holders of the Preferred Securities shall be combined with the entire proceeds
from the sale by the Trust to the Company of its common securities (the "Common
Securities"), and shall be used by the Trust to
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purchase SEVEN MILLION TWO HUNDRED SEVENTEEN THOUSAND AND 00/100 ($7,217,000)
DOLLARS in principal amount of the Floating Rate Junior Subordinated Notes (the
"Junior Subordinated Notes") of the Company. The Preferred Securities and the
Common Securities of the Trust shall be issued pursuant to an Amended and
Restated Trust Agreement among Wilmington Trust Company, as property trustee
(the "Property Trustee"), and as Delaware trustee (the "Delaware Trustee") the
Administrative Trustees named therein and the Company, to be dated as of the
Closing Date and in substantially the form heretofore delivered to the Placement
Agent (the "Trust Agreement"). The Junior Subordinated Notes shall be issued
pursuant to an Indenture (the "Indenture"), to be dated as of the Closing Date,
between the Company and Wilmington Trust Company, as indenture trustee (the
"Indenture Trustee"). The documents identified in this Section 1.2 and in
Section 1.1 are referred to herein as the "Operative Documents." The Preferred
Securities, the Common Securities and the Junior Subordinated Notes are
collectively referred to as the "Securities." All other capitalized terms used
but not defined in this Agreement shall have the meanings ascribed to them in
the Indenture.
1.3 Rights of Purchaser. The Preferred Securities shall be offered and sold
by the Trust, directly or indirectly, to the Purchaser without registration of
any of the Preferred Securities, the Junior Subordinated Notes or the Guarantee
under the Securities Act of 1933, as amended (the "Securities Act"), or any
other applicable securities laws in reliance upon exemptions from the
registration requirements of the Securities Act and other applicable securities
laws. The Offerors agree that this Agreement shall be incorporated by reference
into the Subscription Agreement and the Purchaser shall be entitled to each of
the benefits of the Placement Agent and the Purchaser under this Agreement
(except for the rights of the Placement Agent under Sections 2.1 and 2.4.1 of
this Agreement) and shall be entitled to enforce obligations of the Offerors
under this Agreement as fully as if the Purchaser were a party to this
Agreement. The Offerors and the Placement Agent have entered into this Agreement
to set forth their understanding as to their relationship and their respective
rights, duties and obligations.
1.4 Legends. Upon original issuance thereof, and until such time as the
same is no longer required under the applicable requirements of the Securities
Act, the Preferred Securities and Junior Subordinated Notes certificates shall
each contain a legend as required pursuant to any of the Operative Documents.
Section 2. Purchase of Preferred Securities.
2.1 Exclusive Rights; Purchase Price. From the date hereof until the
Closing Date (which date may be extended by mutual agreement of the Offerors and
the Placement Agent), the Offerors hereby grant to the Placement Agent the
exclusive right to arrange for the sale to the Purchaser of the Preferred
Securities at a purchase price equal to $1,000 per Preferred Security. The
aggregate purchase price shall be SEVEN MILLION AND 00/100 ($7,000,000) DOLLARS
(the "Purchase Price"), which Purchase Price is equal to 100% of the stated
liquidation amount of the Preferred Securities.
2.2 Subscription. The Offerors hereby agree to evidence their acceptance of
the subscription by countersigning a copy of the Subscription Agreement and
returning the same to the Placement Agent.
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2.3 Closing and Delivery of Payment.
2.3.1 Closing; Closing Date. The closing (the "Closing") for the sale and
purchase of the Preferred Securities by the Offerors to the Purchaser shall
occur at the offices of Xxxxxxx Xxxxxxxx & Xxxx LLP, Two World Financial Center,
New York, New York 10281, or such other place as the parties hereto shall agree
at 11:00 a.m. (New York time) on April 20, 2006, or such other later date (not
later than May 19, 2006) as the parties may designate (such date and time of
delivery and payment for the Preferred Securities being herein called the
"Closing Date"). The Preferred Securities shall be transferred and delivered to
the Purchaser or its designee against the payment of the Purchase Price to the
Offerors in immediately available funds on the Closing Date to a U.S. account
designated in writing by the Company at least two (2) business days prior to the
Closing Date.
2.3.2 Delivery. Delivery of the Preferred Securities shall be made at such
location, and in such names and denominations, as the Purchaser shall designate
at least two (2) business days in advance of the Closing Date. The Company and
the Trust agree to have the Preferred Securities available for inspection and
checking by the Purchaser in New York, New York not later than 1:00 P.M., New
York time, on the business day prior to the Closing Date.
2.4 Placement Agents' Fees and Expenses.
2.4.1 Placement Agents' Compensation. The Trust shall use the proceeds from
the sale of the Preferred Securities, together with the proceeds from the sale
of the Common Securities, to purchase the Junior Subordinated Notes. The Company
shall pay no fees or commissions (the "Commission") to the Placement Agent. The
Placement Agent shall be responsible for the following expenses: (i) rating
agency costs and expenses and (ii) any fee payable to the Company's introducing
agent; provided, that such introducing agent has an agreement with the Placement
Agent, but excluding the fees and expenses set forth in Section 2.4.2 hereof.
2.4.2 Costs and Expenses. The Company hereby covenants and agrees that it
shall pay or cause to be paid (directly or by reimbursement) all costs and
expenses incident to the performance of the obligations of the Offerors under
this Agreement, whether or not the transactions contemplated herein are
consummated or this Agreement is terminated, including (i) all costs and
expenses incident to the authorization, issuance, sale and delivery of the
Preferred Securities and any taxes payable in connection therewith; (ii) the
fees and expenses of qualifying the Preferred Securities under the securities
laws of the several jurisdictions as provided in Section 6.4; (iii) the fees and
expenses of the counsel, the accountants and any other experts or advisors
retained by the Company or the Trust, which counsel fees and expenses incurred
in connection with the closing of the transactions contemplated hereby, in an
amount up to $10,000, shall be reimbursed by the Purchaser on the Closing Date;
and (iv) the fees and all reasonable expenses of the Guarantee Trustee, the
Property Trustee, the Delaware Trustee, the Indenture Trustee and any other
trustee or paying agent appointed under the Operative Documents, except for any
acceptance fee and annual administrative fees of any such trustee and the fees
and disbursements of counsel to such trustees incurred in connection with the
closing of the transactions contemplated hereby, which shall be paid by the
Purchaser.
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2.4.3 Reimbursement of Expenses. If the sale of the Preferred Securities
provided for in this Agreement is not consummated because any condition set
forth in Section 3 to be satisfied by either the Company or the Trust is not
satisfied, because this Agreement is terminated pursuant to Section 10 or
because of any failure, refusal or inability on the part of the Company or the
Trust to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder other than by a reason of a default by the
Placement Agent, the Company will reimburse the Placement Agent upon demand for
all reasonable out-of-pocket expenses (including the fees and expenses of each
of the Placement Agent's or Purchaser's counsel) that shall have been incurred
by the Placement Agent or Purchaser in connection with the proposed purchase and
sale of the Preferred Securities. The Company shall not in any event be liable
to the Placement Agent or Purchaser for the loss of anticipated profits from the
transactions contemplated by this Agreement.
2.5 Failure to Close. If any of the conditions to the Closing specified in
this Agreement shall not have been fulfilled to the reasonable satisfaction of
the Placement Agent or if the Closing shall not have occurred on or before 11:00
a.m. (New York time) on May 19, 2006, then each party hereto, notwithstanding
anything to the contrary in this Agreement, shall be relieved of all further
obligations under this Agreement without thereby waiving any rights it may have
by reason of such nonfulfillment or failure; provided, however, that the
obligations of the parties under Sections 2.4 and 8 shall not be so relieved and
shall continue in full force and effect.
Section 3. Closing Conditions. The obligations of the parties under this
Agreement on the Closing Date are subject to the following conditions:
3.1 Accuracy of Representations and Warranties. The representations and
warranties contained in this Agreement, and the statements of the Offerors made
in any certificates pursuant to this Agreement, shall be accurate as of the date
of delivery of the Preferred Securities.
3.2 Opinions of Counsel. On the Closing Date, the Placement Agent shall
have received the following favorable opinions or certificate, as the case may
be, each dated as of the Closing Date: (a) from Xxxxxxx Xxxxxxxx & Wood LLP,
special counsel for the Placement Agent and Purchaser and addressed to the
Placement Agent and Purchaser in substantially the form set forth on Exhibit B-1
attached hereto and incorporated herein by this reference, (b) either (i) an
opinion from Xxxxx XxXxxxx LLP, counsel for the Offerors, or (ii) an opinion
from the General Counsel or Chief Legal Officer of the Company, or (iii) if the
Company does not have a General Counsel or Chief Legal Officer, an Officers'
Certificate from the Chief Executive Officer, President or Executive Vice
President of the Company, and the Chief Financial Officer, Treasurer or
Assistant Treasurer of the Company, in each case addressed to the Purchaser and
the Placement Agent in substantially the form set forth on Exhibit B-2 attached
hereto and incorporated herein by this reference, (c) from Xxxxxxx Xxxxxxxx &
Wood LLP, special tax counsel for the Placement Agent and Purchaser and
addressed to the Placement Agent and Purchaser in substantially the form set
forth on Exhibit B-3 attached hereto and incorporated herein by this reference,
(d) from Morris, James, Hitchens & Xxxxxxxx LLP, special Delaware counsel to the
Trust and addressed to the Purchaser, the Placement Agent and the Offerors, in
substantially the form set forth on Exhibit B-4 attached hereto and incorporated
herein by this reference, and (e) from Morris, James, Hitchens & Xxxxxxxx LLP,
special counsel to the Indenture Trustee, the
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Property Trustee, the Delaware Trustee and the Guarantee Trustee and addressed
to the Purchaser, the Placement Agent and the Offerors, in substantially the
form set forth on Exhibit B-5 attached hereto and incorporated herein by this
reference. Each certificate or opinion addressed to the Purchaser shall state
that the first entity, if any, to which the Purchaser transfers any of the
Preferred Securities and, if such transferee is a warehouse lender, the next
subsequent transferee that is not a warehouse lender (each, a "Subsequent
Purchaser"), shall be entitled to rely on such opinion.
3.3 Officer's Certificate. The Company shall have furnished to the
Placement Agent and the Purchaser a certificate of the Company, signed by the
Chief Executive Officer, President or an Executive Vice President and by the
Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and
the Trust shall have furnished to the Placement Agent and the Purchaser a
certificate of the Trust, signed by an Administrative Trustee of the Trust, in
each case dated the Closing Date, and, in the case of the Company, as to 3.3.1
and 3.3.2 below and, in the case of the Trust, as to 3.3.1 below:
3.3.1 the representations and warranties in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing Date, and the Company and the Trust have complied with all the
agreements and satisfied all the conditions on either of their part to be
performed or satisfied at or prior to the Closing Date; and
3.3.2 since the date of the Interim Financial Statements (as defined
below), there has been no material adverse change in the condition (financial or
other), earnings, business, prospects or assets of the Company and its
subsidiaries, whether or not arising from transactions occurring in the ordinary
course of business.
3.4 No Subsequent Change. Subsequent to the execution of this Agreement,
there shall not have been any change, or any development involving a prospective
change, in or affecting the condition (financial or other), earnings, business,
prospects or assets of the Company and its subsidiaries, whether or not
occurring in the ordinary course of business, the effect of which is, in the
Placement Agent's or Purchaser's judgment, so material and adverse as to make it
impractical or inadvisable to proceed with the purchase of the Preferred
Securities.
3.5 Purchase Permitted by Applicable Laws; Legal Investment. The purchase
of and payment for the Preferred Securities as described in this Agreement and
pursuant to the Subscription Agreement shall (a) not be prohibited by any
applicable law or governmental regulation, (b) not subject the Purchaser or the
Placement Agent to any penalty or, in the reasonable judgment of the Purchaser
and the Placement Agent, other onerous conditions under or pursuant to any
applicable law or governmental regulation, and (c) be permitted by the laws and
regulations of the jurisdictions to which the Purchaser and the Placement Agent
are subject.
3.6 Consents and Permits. The Company and the Trust shall have received all
consents, permits and other authorizations, and made all such filings and
declarations, as may be required from any person or entity pursuant to any law,
statute, regulation or rule (federal, state, local and foreign), or pursuant to
any agreement, order or decree to which the Company or the Trust is a party or
to which either is subject, in connection with the transactions contemplated by
this Agreement.
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3.7 Information. Prior to or on the Closing Date, the Offerors shall have
furnished to the Placement Agent, the Purchaser and their respective counsel
such further information, certificates, opinions and documents as the Placement
Agent, Purchaser or their respective counsel may reasonably request.
If any of the conditions specified in this Section 3 shall not have been
fulfilled when and as required in this Agreement, or if any of the opinions,
certificates and documents mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the Placement Agent, the
Purchaser or their respective counsel, this Agreement and all the Placement
Agent's obligations hereunder may be canceled at, or any time prior to, the
Closing Date by the Placement Agent. Notice of such cancellation shall be given
to the Offerors in writing or by telephone or facsimile confirmed in writing.
Each certificate signed by any trustee of the Trust or any officer of the
Company and delivered to the Placement Agent, Purchaser or their respective
counsel in connection with the Operative Documents and the transactions
contemplated hereby and thereby shall be deemed to be a representation and
warranty of the Trust and/or the Company, as the case may be, and not by such
trustee or officer in any individual capacity.
Section 4. Representations and Warranties of the Offerors. The Offerors jointly
and severally represent and warrant to the Placement Agent and the Purchaser as
of the date hereof and as of the Closing Date as follows:
4.1 Securities Laws Matters:
(i) Neither the Company nor the Trust, nor any of their
"Affiliates" (as defined in Rule 501 (b) of Regulation D under the Securities
Act ("Regulation D")), nor any person acting on any of their behalf (except for
the Placement Agent, as to which neither the Company nor the Trust make any
representation) has, directly or indirectly, made offers or sales of any
security, or solicited offers to buy any security, under circumstances that
would require the registration under the Securities Act of any of the
Securities.
(ii) Neither the Company nor the Trust, nor any of their
Affiliates, nor any person acting on its or their behalf (except for the
Placement Agent, as to which neither the Company nor the Trust make any
representation) has (i) offered for sale or solicited offers to purchase the
Securities, (ii) engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with any offer or
sale of any of the Securities, or (iii) engaged in any "directed selling
efforts" within the meaning of Regulation S under the Securities Act
("Regulation S") with respect to the Securities.
(iii) The Securities (i) are not and have not been listed on a
national securities exchange registered under Section 6 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or quoted on a U.S.
automated interdealer quotation system and (ii) are not of an open-end
investment company, unit investment trust or face-amount certificate company
that are, or are required to be, registered under Section 8 of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the
Securities
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otherwise satisfy the eligibility requirements of Rule 144A(d)(3) promulgated
pursuant to the Securities Act ("Rule 144A(d)(3)").
(iv) Neither the Company nor the Trust is, and, immediately
following consummation of the transactions contemplated hereby and the
application of the net proceeds therefrom, neither the Company nor the Trust
will be, an "investment company" or an entity "controlled" by an "investment
company," in each case within the meaning of Section 3 (a) of the Investment
Company Act.
(v) Neither the Company nor the Trust has paid or agreed to pay
to any person or entity, directly or indirectly, any fees or other compensation
for soliciting another to purchase any of the Securities, except for the
Commission and/or any fee payable to the Company's introducing agent; provided,
that such introducing agent has an agreement with the Placement Agent.
4.2 Standing and Qualification of the Trust. The Trust has been duly
created and is validly existing in good standing as a statutory trust under the
Delaware Statutory Trust Act, 12 Del. C. Section 3801, et seq. (the "Statutory
Trust Act") with all requisite power and authority to own property and to
conduct the business it transacts and proposes to transact and to enter into and
perform its obligations under the Operative Documents to which it is a party.
The Trust is duly qualified to transact business as a foreign entity and is in
good standing in each jurisdiction in which such qualification is necessary,
except where the failure to so qualify or be in good standing would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business, prospects or assets of the Trust, whether or not occurring in the
ordinary course of business. The Trust is not a party to, or otherwise bound by,
any agreement other than the Operative Documents. The Trust is, and under
current law will continue to be, classified for federal income tax purposes as a
grantor trust and not as an association or publicly traded partnership taxable
as a corporation.
4.3 Trust Agreement. The Trust Agreement has been duly authorized by the
Company and, on the Closing Date specified in Section 2.3.1, will have been duly
executed and delivered by the Company and the Administrative Trustees of the
Trust, and, assuming due authorization, execution and delivery by the Property
Trustee and the Delaware Trustee, will be a legal, valid and binding obligation
of the Company and the Administrative Trustees, enforceable against them in
accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general principles of
equity. Each of the Administrative Trustees of the Trust is an employee of the
Company or one of its subsidiary banks and has been duly authorized by the
Company to execute and deliver the Trust Agreement. To the knowledge of the
Administrative Trustees, the Trust is not in violation of any provision of the
Statutory Trust Act.
4.4 Guarantee Agreement and the Indenture. Each of the Guarantee 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, will
be a legal, valid and binding obligation of the Company enforceable against it
in accordance with its terms, subject to applicable bankruptcy, insolvency
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and similar laws affecting creditors' rights generally and to general principles
of equity.
4.5 Preferred Securities and Common Securities. The Preferred Securities
and the Common Securities have been duly authorized by the Trust and, when
issued and delivered against payment therefor on the Closing Date to the
Purchaser in accordance with this Agreement and the Subscription Agreement, in
the case of the Preferred Securities, and to the Company in accordance with the
Common Securities Subscription Agreement between the Company and the Trust,
dated as of the Closing Date, in the case of the Common Securities, will be
validly issued, fully paid and nonassessable and will represent undivided
beneficial interests in the assets of the Trust entitled to the benefits of the
Trust Agreement, enforceable against the Trust in accordance with their terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity. The issuance of
the Securities is not subject to preemptive or other similar rights. On the
Closing Date, all of the issued and outstanding Common Securities will be
directly owned by the Company free and clear of any pledge, security interest,
claim, lien or other encumbrance (each, a "Lien").
4.6 Junior Subordinated Notes. The Junior Subordinated Notes have been duly
authorized by the Company and, on the Closing Date, will have been duly executed
and delivered to the Indenture Trustee for authentication in accordance with the
Indenture and, when authenticated in the manner provided for in the Indenture
and delivered to the Trust against payment therefor in accordance with the
Junior Subordinated Note Subscription Agreement between the Company and the
Trust, dated as of the Closing Date, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture enforceable
against the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and to general principles of equity.
4.7 Placement Agreement. This Agreement has been duly authorized, executed
and delivered by the Company and the Trust and constitutes the legal, valid and
binding obligation of the Company and the Trust, enforceable against the Company
and the Trust in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity.
4.8 Defaults. Neither the issue and sale of the Common Securities, the
Preferred Securities or the Junior Subordinated Notes, nor the purchase of the
Junior Subordinated Notes by the Trust, the execution and delivery of and
compliance with the Operative Documents by the Company or the Trust, the
consummation of the transactions contemplated herein or therein, or the use of
the proceeds therefrom, (i) will conflict with or constitute a breach of, or a
default under, the Trust Agreement or the charter or bylaws of the Company or
any subsidiary of the Company or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, governmental authority,
agency or instrumentality or court, domestic or foreign, having jurisdiction
over the Trust, or the Company or any of its subsidiaries, or their respective
properties or assets (collectively, "Governmental Entities"), (ii) will conflict
with or constitute a violation or breach of, or a default or Repayment Event (as
defined below) under, or result in the creation or imposition of any Lien upon
any property or assets of the Trust, the Company or any of the Company's
subsidiaries pursuant to any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which (A) the Trust, the Company
or any of its subsidiaries is a party or by which it or any of them may be
bound, or (B) any of the property or
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assets of any of them is subject, or any judgment, order or decree of any court,
Governmental Entity or arbitrator, except, in the case of this clause (ii), for
such conflicts, breaches, violations, defaults, Repayment Events (as defined
below) or Liens which (X) would not, singly or in the aggregate, adversely
affect the consummation of the transactions contemplated by the Operative
Documents and (Y) would not, singly or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings, business,
liabilities, prospects and assets (taken as a whole) or business prospects of
the Company and its subsidiaries taken as a whole, whether or not occurring in
the ordinary course of business (a "Material Adverse Effect") or (iii) require
the consent, approval, authorization or order of any court or Governmental
Entity. As used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Trust or
the Company or any of its subsidiaries prior to its scheduled maturity.
4.9 Organization, Standing and Qualification of the Company. The Company
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of Indiana, with all requisite corporate power and
authority to own, lease and operate its properties and conduct the business it
transacts and proposes to transact, and is duly qualified to transact business
and is in good standing as a foreign corporation in each jurisdiction where the
nature of its activities requires such qualification, except where the failure
of the Company to be so qualified would not, singly or in the aggregate, have a
Material Adverse Effect.
4.10 Subsidiaries of the Company. The Company has no subsidiaries that are
material to its business, financial condition or earnings other than those
subsidiaries listed in Schedule 1 attached hereto (the "Significant
Subsidiaries"). Each Significant Subsidiary has been duly organized and is
validly existing and in good standing under the laws of the jurisdiction in
which it is chartered or organized, with all requisite power and authority to
own its properties and conduct the business it transacts and proposes to
transact. Each Significant Subsidiary is duly qualified to transact business and
is in good standing as a foreign entity in each jurisdiction where the nature of
its activities requires such qualification, except where the failure of any such
Significant Subsidiary to be so qualified would not, singly or in the aggregate,
have a Material Adverse Effect.
4.11 Government Licenses; Laws. Each of the Trust, the Company and each of
its subsidiaries hold all necessary approvals, authorizations, orders, licenses,
certificates and permits (collectively, "Government Licenses") of and from
Governmental Entities necessary to conduct its respective business as now being
conducted, and neither the Trust, the Company nor any of the Company's
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such Government License, except where the failure to be
so licensed or approved or the receipt of an unfavorable decision, ruling or
finding, would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Government Licenses are valid and in full force and effect, except
where the invalidity or the failure of such Government Licenses to be in full
force and effect, would not, singly or in the aggregate, have a Material Adverse
Effect; and the Company and its subsidiaries are in compliance with all
applicable laws, rules, regulations, judgments, orders, decrees and consents,
except where the failure to be in compliance would not, singly or in the
aggregate, have a Material Adverse Effect.
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4.12 Stock. All of the issued and outstanding shares of capital stock of
the Company and each of its subsidiaries are validly issued, fully paid and
nonassessable; except as set forth on Schedule 4.12, all of the issued and
outstanding capital stock of each subsidiary of the Company is owned by the
Company, directly or through subsidiaries, free and clear of any Lien, claim or
equitable right; and none of the issued and outstanding capital stock of the
Company or any subsidiary was issued in violation of any preemptive or similar
rights arising by operation of law, under the charter or by-laws of such entity
or under any agreement to which the Company or any of its subsidiaries is a
party.
4.13 Property. Each of the Trust, the Company and each subsidiary of the
Company has good and marketable title to all of its respective real and personal
properties, in each case free and clear of all Liens and defects, except for
those that would not, singly or in the aggregate, have a Material Adverse
Effect; and all of the leases and subleases under which the Trust, the Company
or any subsidiary of the Company holds properties are in full force and effect,
except where the failure of such leases and subleases to be in full force and
effect would not, singly or in the aggregate, have a Material Adverse Effect and
none of the Trust, the Company or any subsidiary of the Company has any notice
of any claim of any sort that has been asserted by anyone adverse to the rights
of the Trust, the Company or any subsidiary of the Company under any such leases
or subleases, or affecting or questioning the rights of such entity to the
continued possession of the leased or subleased premises under any such lease or
sublease, except for such claims that would not, singly or in the aggregate,
have a Material Adverse Effect.
4.14 Conflicts, Authorizations and Approvals. Neither the Company nor any
of its subsidiaries is (i) in violation of its respective charter, bylaws or
similar organizational documents or (ii) in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which either the Company or any such subsidiary is a party or by
which it or any of them may be bound or to which any of the property or assets
of any of them is subject, except, in the case of clause (ii), where such
default would not, singly or in the aggregate, have a Material Adverse Effect.
No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Governmental Entity, other than
those that have been made or obtained, is necessary or required for the
performance by the Trust or the Company of their respective obligations under
the Operative Documents, as applicable, or the consummation by the Trust and the
Company of the transactions contemplated by the Operative Documents.
4.15 Holding Company Registration and Deposit Insurance. The Company is
duly registered as a savings and loan holding company under the Home Owners'
Loan Act of 1933, as amended (the "HOLA"), and the regulations of the Office of
Thrift Supervision (the "OTS"), and the deposit accounts of the Company's
subsidiary depository institutions are insured by the Federal Deposit Insurance
Corporation ("FDIC") to the fullest extent permitted by law and the rules and
regulations of the FDIC, and no proceeding for the termination of such insurance
are pending or, to the knowledge of the Company or the Trust after due inquiry,
threatened.
4.16 Financial Statements.
11
(a) The audited consolidated financial statements (including the notes
thereto) and schedules of the Company and its consolidated subsidiaries at and
for the three fiscal years ended December 31, 2005 (the "Financial Statements")
and the interim unaudited consolidated financial statements of the Company and
its consolidated subsidiaries at and for the quarter ended March 31, 2006 (the
"Interim Financial Statements") provided to the Placement Agent are the most
recently available audited and unaudited consolidated financial statements of
the Company and its consolidated subsidiaries, respectively, and fairly present
in all material respects, in accordance with U.S. generally accepted accounting
principles ("GAAP"), the financial position of the Company and its consolidated
subsidiaries, and the results of operations and changes in financial condition
as of the dates and for the periods therein specified, subject, in the case of
Interim Financial Statements, to year-end adjustments (which are expected to
consist solely of normal recurring adjustments). Such consolidated financial
statements and schedules have been prepared in accordance with GAAP consistently
applied throughout the periods involved (except as otherwise noted therein).
(b) The Company's report on Form H-(b)11, dated December 31, 2005 (the
"Form H-(b)11"), provided to the Placement Agent is the most recently available
such report, and the information therein fairly presents in all material
respects the financial position of the Company and its subsidiaries. None of the
Company or any of its subsidiaries has been requested by a Governmental Entity
to republish, restate or refile any regulatory or financial report.
(c) Since the respective dates of the Financial Statements, Interim
Financial Statements and the Form H-(b)11, there has not been (A) any material
adverse change or development with respect to the condition (financial or
otherwise), earnings, business, assets or business prospects of the Company and
its subsidiaries, taken as a whole, whether or not occurring in the ordinary
course of business or (B) any dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock other than regular
quarterly dividends on the Company's common stock.
(d) The accountants of the Company who certified the Financial
Statements are independent public accountants of the Company and its
subsidiaries within the meaning of the Securities Act and the rules and
regulations of the Securities and Exchange Commission ("SEC") thereunder.
4.17 Regulatory Enforcement Matters. None of the Trust, the Company nor any
of its subsidiaries, nor any of their respective officers, directors, employees
or representatives, is subject or is party to, or has received any notice from
any Regulatory Agency (as defined below) that any of them will become subject or
party to any investigation with respect to, any cease-and-desist order,
agreement, civil monetary penalty, consent agreement, memorandum of
understanding or other regulatory enforcement action, proceeding or order with
or by, or is a party to any commitment letter or similar undertaking to, or is
subject to any directive by, or has been a recipient of any supervisory letter
from, or has adopted any board resolutions at the request or suggestion of, any
Regulatory Agency that, in any such case, currently restricts in any material
respect the conduct of their business or that in any material manner relates to
their capital adequacy, their credit policies, their management or their
business (each, a "Regulatory Action"), nor has the Trust, the Company or any of
its subsidiaries been advised by any
12
Regulatory Agency that it is considering issuing or requesting any such
Regulatory Action; and, there is no unresolved violation, criticism or exception
by any Regulatory Agency with respect to any report or statement relating to any
examinations of the Trust, the Company or any of its subsidiaries, except where
such unresolved violation, criticism or exception would not, singly or in the
aggregate, have a Material Adverse Effect. If the Company is a bank holding
company that is subject to the Bank Holding Company Act, it is a "well-run" bank
holding company that satisfies the criteria of the Federal Reserve's regulations
at 12 C.F.R. Section 225.14(c). Each of the Company's subsidiaries that is a
depository institution, the accounts of which are insured by the FDIC (i) is
"well-capitalized" within the meaning of 12 U.S.C. Section 1831o and applicable
implementing regulations thereunder; and (ii) is not, and has not been notified
by any Regulatory Agency that it is, in "troubled condition" within the meaning
of 12 U.S.C. Section 1831i and applicable implementing regulations thereunder.
As used herein, the term "Regulatory Agency" means any federal or state agency
charged with the supervision or regulation of depositary institutions or holding
companies of depositary institutions, or engaged in the insurance of depositary
institution deposits, or any court, administrative agency or commission or other
governmental agency, authority or instrumentality having supervisory or
regulatory authority with respect to the Trust, the Company or any of its
subsidiaries.
4.18 No Undisclosed Liabilities. None of the Trust, the Company nor any of
its subsidiaries has any material liability, whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become due,
including any liability for taxes (and there is no past or present fact,
situation, circumstance, condition or other basis for any present or future
action, suit, proceeding, hearing, charge, complaint, claim or demand against
the Company or its subsidiaries that could give rise to any such liability),
except for (i) liabilities set forth in the Financial Statements or the Interim
Financial Statements and (ii) normal fluctuations in the amount of the
liabilities referred to in clause (i) above occurring in the ordinary course of
business of the Trust, the Company and all of its subsidiaries since the date of
the most recent balance sheet included in such Financial Statements.
4.19 Litigation. There is no action, suit or proceeding before or by any
Governmental Entity, arbitrator or court, domestic or foreign, now pending or,
to the knowledge of the Company or the Trust after due inquiry, threatened
against or affecting the Trust or the Company or any of the Company's
subsidiaries, except for such actions, suits or proceedings that, if adversely
determined, would not, singly or in the aggregate, adversely affect the
consummation of the transactions contemplated by the Operative Documents or have
a Material Adverse Effect; and the aggregate of all pending legal or
governmental proceedings to which the Trust or the Company or any of its
subsidiaries is a party or of which any of their respective properties or assets
is subject, including ordinary routine litigation incidental to the business,
are not expected to result in a Material Adverse Effect.
4.20 No Labor Disputes. No labor dispute with the employees of the Trust,
the Company or any of its subsidiaries exists or, to the knowledge of the
executive officers of the Trust or the Company, is imminent, except those which
would not, singly or in the aggregate, have a Material Adverse Effect.
4.21 Filings with the SEC. The documents of the Company filed with the SEC
in
13
accordance with the Exchange Act, from and including the commencement of the
fiscal year covered by the Company's most recent Annual Report on Form 10-K or
Form 10-KSB, as applicable, at the time they were or hereafter are filed by the
Company with the SEC (collectively, the "1934 Act Reports"), complied and will
comply in all material respects with the requirements of the Exchange Act and
the rules and regulations of the SEC thereunder (the "1934 Act Regulations"),
and did not, and, at the date of this Agreement and on the Closing Date, do not
and will not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and other than such instruments, agreements, contracts and other
documents as are filed as exhibits to the Company's Annual Report on Form 10-K
or Form 10-KSB, as applicable, Quarterly Reports on Form 10-Q or Form 10-QSB, as
applicable, or Current Reports on Form 8-K, there are no instruments,
agreements, contracts or documents of a character described in Item 601 of
Regulation S-K promulgated by the SEC to which the Company or any of its
subsidiaries is a party. The Company is in compliance with all currently
applicable requirements of the Exchange Act and the 1934 Act Regulations that
were added by the Xxxxxxxx-Xxxxx Act of 2002.
4.22 Deferral of Interest Payments on Junior Subordinated Notes. The
Company has no present intention to exercise its option to defer payments of
interest on the Junior Subordinated Notes as provided in the Indenture. The
Company believes that the likelihood that it would exercise its rights to defer
payments of interest on the Junior Subordinated Notes as provided in the
Indenture at any time during which the Junior Subordinated Notes are outstanding
is remote because of the restrictions that would be imposed on the Company's
ability to declare or pay dividends or distributions on, or to redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company's
capital stock and on the Company's ability to make any payments of principal,
interest or premium on, or repay, repurchase or redeem, any of its debt
securities that rank pari passu in all respects with or junior in interest to
the Junior Subordinated Notes.
4.23 Tax Returns. The Company and each of the Significant Subsidiaries have
timely and duly filed all Tax Returns (defined below) required to be filed by
them, and all such Tax Returns are true, correct and complete in all material
respects. The Company and each of the Significant Subsidiaries have timely and
duly paid in full all material Taxes required to be paid by them (whether or not
such amounts are shown as due on any Tax Return). There are no federal, state,
or other Tax audits or deficiency assessments proposed or pending with respect
to the Company or any of the Significant Subsidiaries, and no such audits or
assessments are threatened. As used herein, the terms "Tax" or "Taxes" mean (i)
all federal, state, local, and foreign taxes, and other assessments of a similar
nature (whether imposed directly or through withholding), including any
interest, additions to tax, or penalties applicable thereto, imposed by any
Governmental Entity, and (ii) all liabilities in respect of such amounts arising
as a result of being a member of any affiliated, consolidated, combined, unitary
or similar group, as a successor to another person or by contract. As used
herein, the term "Tax Returns" means all federal, state, local, and foreign Tax
returns, declarations, statements, reports, schedules, forms, and information
returns and any amendments thereto filed or required to be filed with any
Governmental Entity.
4.24 Taxes. The Trust is not subject to United States federal income tax
with respect to
14
income received or accrued on the Junior Subordinated Notes, interest payable by
the Company on the Junior Subordinated Notes is deductible by the Company, in
whole or in part, for United States federal income tax purposes, and the Trust
is not, or will not be within ninety (90) days of the date hereof, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges. There are no rulemaking or similar proceedings before the United States
Internal Revenue Service or comparable federal, state, local or foreign
government bodies which involve or affect the Company or any subsidiary, which,
if the subject of an action unfavorable to the Company or any subsidiary, could
result in a Material Adverse Effect.
4.25 Books and Records. The books, records and accounts of the Company and
its subsidiaries accurately and fairly reflect, in reasonable detail, the
transactions in, and dispositions of, the assets of, and the results of
operations of, the Company and its subsidiaries. The Company and each of its
subsidiaries maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
accordance with GAAP and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences
4.26 Insurance. The Company and the Significant Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts in all material respects as are customary in the businesses
in which they are engaged or propose to engage after giving effect to the
transactions contemplated hereby, including, but not limited to, real or
personal property owned or leased against theft, damage, destruction, act of
vandalism and all other risks customarily insured against. All policies of
insurance and fidelity or surety bonds insuring the Company or any of the
Significant Subsidiaries or the Company's or Significant Subsidiaries'
respective businesses, assets, employees, officers and directors are in full
force and effect. The Company and each of the Significant Subsidiaries are in
compliance with the terms of such policies and instruments in all material
respects. Neither the Company nor any Significant Subsidiary has reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have a
Material Adverse Effect. Within the past twelve months, neither the Company nor
any Significant Subsidiary has been denied any insurance coverage which it has
sought or for which it has applied.
4.27 Corporate Funds. The Company and its subsidiaries or any person acting
on behalf of the Company and its subsidiaries including, without limitation, any
director, officer, agent or employee of the Company or its subsidiaries has not,
directly or indirectly, while acting on behalf of the Company and its
subsidiaries (i) used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity; (ii)
made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from
corporate funds; (iii) violated any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any other unlawful payment.
15
4.28 OSHA Compliance. Neither the Company nor any of its subsidiaries is in
violation of any federal or state law or regulation relating to occupational
safety and health and the Company and its subsidiaries have received all
permits, licenses or other approvals required of them under applicable federal
and state occupational safety and health and environmental laws and regulations
to conduct their respective businesses, and the Company and each of its
subsidiaries is in compliance with all terms and conditions of any such permit,
license or approval, except any such violation of law or regulation, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals which would not,
singly or in the aggregate result in a Material Adverse Effect.
4.29 Information. The information provided by the Company and the Trust
pursuant to this Agreement does not, as of the date hereof, and will not, as of
the Closing Date, contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
Section 5. Representations and Warranties of the Placement Agent. The Placement
Agent represents and warrants to, and agrees with, the Company and the Trust as
follows:
5.1 General Solicitation. Neither the Placement Agent, nor any of the
Placement Agent's affiliates, nor any person acting on the Placement Agent's or
the Placement Agent's Affiliate's behalf has engaged, or will engage, in any
form of "general solicitation or general advertising" (within the meaning of
Regulation D under the Securities Act) in connection with any offer or sale of
the Preferred Securities.
5.2 Purchaser. The Placement Agent has made such reasonable inquiry as is
necessary to determine that the Purchaser is acquiring the Preferred Securities
for its own account, the Purchaser does not intend to distribute the Preferred
Securities in contravention of the Securities Act or any other applicable
securities laws.
5.3 Qualified Purchasers. The Placement Agent has not offered or sold, and
will not arrange for the offer or sale of, the Preferred Securities except (i)
to those the Placement Agent reasonably believes are institutional "accredited
investors" (within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 of Regulation D), (ii) in an offshore transaction complying with Rule 903 of
Regulation S or (iii) in any other manner that does not require registration of
the Preferred Securities under the Securities Act. In connection with each such
sale, the Placement Agent has taken or will take reasonable steps to ensure that
the Purchaser is aware that (a) such sale is being made in reliance on an
exemption under the Securities Act and (b) future transfers of the Preferred
Securities may not be made except in compliance with applicable securities laws.
5.4 Offering Circulars. Neither the Placement Agent nor its representatives
will include any nonpublic information about the Company, the Trust or any of
their affiliates in any registration statement, prospectus, offering circular or
private placement memorandum used in connection with any purchase of Preferred
Securities without the prior written consent of the Trust and the Company.
16
Section 6. Covenants of the Offerors. The Offerors covenant and agree with the
Placement Agent and the Purchaser as follows:
6.1 Compliance with Representations and Warranties. During the period from
the date of this Agreement to the Closing Date, the Offerors shall use their
best efforts and take all action necessary or appropriate to cause their
representations and warranties contained in Section 4 hereof to be true as of
the Closing Date, after giving effect to the transactions contemplated by this
Agreement, as if made on and as of the Closing Date.
6.2 Sale and Registration of Securities. Neither the Company nor the Trust
will, nor will either of them permit any of its Affiliates to, nor will either
of them permit any person acting on its or their behalf (other than the
Placement Agent and the Purchaser and their respective affiliates) to, directly
or indirectly, (i) resell any Preferred Securities that have been acquired by
any of them, (ii) sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities Act) that
would or could be integrated with the sale of the Preferred Securities in any
manner that would require the registration of the Securities under the
Securities Act or (iii) make offers or sales of any such Security, or solicit
offers to buy any such Security, under any circumstances that would require the
registration of any of such Securities under the Securities Act.
6.3 Integration. Neither the Company nor the Trust will, until one hundred
eighty (180) days following the Closing Date, without the Purchaser's prior
written consent, offer, sell, contract to sell, grant any option to purchase or
otherwise dispose of, directly or indirectly, (i) any Preferred Securities or
other securities of the Trust other than as contemplated by this Agreement or
(ii) any other securities convertible into, or exercisable or exchangeable for,
any Preferred Securities or other securities of the Trust.
6.4 Qualification of Securities. The Company and the Trust will arrange for
the qualification of the Preferred Securities for sale under the laws of such
jurisdictions as the Placement Agent may designate and will maintain such
qualifications in effect so long as required for the sale of the Preferred
Securities. The Company or the Trust, as the case may be, will promptly advise
the Placement Agent of the receipt by the Company or the Trust, as the case may
be, of any notification with respect to the suspension of the qualification of
the Preferred Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
6.5 Use of Proceeds. The Trust shall use the proceeds from the sale of the
Preferred Securities and the Common Securities to purchase the Junior
Subordinated Notes from the Company.
6.6 Investment Company. So long as any of the Securities are outstanding,
(i) the Securities shall not be listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S. automated
interdealer quotation system, (ii) neither the Company nor the Trust shall be an
open-end investment company, unit investment trust or face- amount certificate
company that is, or is required to be, registered under Section 8 of the
Investment Company Act, and, the Securities shall otherwise satisfy the
eligibility requirements of Rule 144A(d)(3) and (iii) neither of the Offerors
shall engage, or permit any subsidiary to
17
engage, in any activity which would cause it or any subsidiary to be an
"investment company" under the provisions of the Investment Company Act.
6.7 Solicitation and Advertising. Neither the Company nor the Trust will,
nor will either of them permit any of their Affiliates or any person acting on
their behalf to (other than the Placement Agent, the Purchaser or their
respective affiliates), (i) engage in any "directed selling efforts" within the
meaning of Regulation S under the Securities Act or (ii) engage in any form of
"general solicitation or general advertising" (within the meaning of Regulation
D) in connection with any offer or sale of any of the Securities.
6.8 Compliance with Rule 144A(d)(4) under the Securities Act. So long as
any of the Securities are outstanding and are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, the Offerors will, during
any period in which they are not subject to and in compliance with Section 13 or
15(d) of the Exchange Act, or the Offerors are not exempt from such reporting
requirements pursuant to and in compliance with Rule 12g3-2(b) under the
Exchange Act, provide to each holder of such restricted securities and to each
prospective purchaser (as designated by such holder) of such restricted
securities, upon the request of such holder or prospective purchaser in
connection with any proposed transfer, any information required to be provided
by Rule 144A(d)(4) under the Securities Act, if applicable. The information
provided by the Offerors pursuant to this Section 6.8 will not, at the date
thereof, contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the Company and the
Trust are required to register under the Exchange Act, such reports filed in
compliance with Rule 12g3-2(b) shall be sufficient information as required
above. This covenant is intended to be for the benefit of the Purchaser, the
holders of the Securities, and the prospective purchasers designated by such
holders, from time to time, of the Securities.
6.9 Reports. Each of the Company and the Trust shall furnish to (i) the
Placement Agent, (ii) the Purchaser and any subsequent holder of the Securities,
and (iii) any beneficial owner of the Securities reasonably identified to the
Company and the Trust (which identification may be made by either such
beneficial owner or by the Purchaser), a duly completed and executed certificate
in the form attached hereto as Annex F, including the financial statements
referenced in such Annex, which certificate and financial statements shall be so
furnished by the Company and the Trust not later than forty-five (45) days after
the end of each of the first three fiscal quarters of each fiscal year of the
Company and not later than ninety (90) days after the end of each fiscal year of
the Company.
Section 7. Covenants of the Placement Agent. The Placement Agent covenants and
agrees with the Offerors that, during the period from the date of this Agreement
to the Closing Date, the Placement Agent shall use its best efforts and take all
action necessary or appropriate to cause its representations and warranties
contained in Section 5 to be true as of the Closing Date, after giving effect to
the transactions contemplated by this Agreement, as if made on and as of the
Closing Date. The Placement Agent further covenants and agrees not to engage in
hedging transactions with respect to the Preferred Securities unless such
transactions are conducted in compliance with the Securities Act.
18
Section 8. Indemnification & Contribution.
8.1 Indemnification.
8.1.1 The Company and the Trust agree jointly and severally to indemnify
and hold harmless the Placement Agent, the Purchaser, the Placement Agent's
affiliates, a Subsequent Purchaser (collectively, the "Indemnified Parties") and
the Indemnified Parties' respective directors, officers, employees and agents
and each person who "controls" the Indemnified Parties within the meaning of
either the Securities Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any information or documents furnished
or made available to the Purchaser or the Placement Agent by or on behalf of the
Company, (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or (iii) the breach or alleged breach of any representation, warranty
or agreement of either Offeror contained herein, and agrees to reimburse each
such Indemnified Party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in addition
to any liability which the Company or the Trust may otherwise have.
8.1.2 Promptly after receipt by an Indemnified Party under this Section 8
of notice of the commencement of any action, such Indemnified Party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, promptly notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve the indemnifying party from liability under Section 8.1.1 above unless
and to the extent that such failure results in the forfeiture by the
indemnifying party of material rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any Indemnified
Party other than the indemnification obligation provided in Section 8.1.1 above.
The Placement Agent shall be entitled to appoint counsel to represent the
Indemnified Party in any action for which indemnification is sought. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the Indemnified Party) also be counsel to the
Indemnified Party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all Indemnified Parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. An
indemnifying party will not, without the prior written consent of the
Indemnified Parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not the Indemnified Parties are actual or potential parties to such claim,
action, suit or proceeding) unless such settlement, compromise or consent
includes an unconditional release of each Indemnified Party from all liability
arising out of such claim, action, suit or proceeding.
19
8.2 Contribution.
8.2.1 In order to provide for just and equitable contribution in
circumstances under which the indemnification provided for in Section 8.1 hereof
is for any reason held to be unenforceable for the benefit of an Indemnified
Party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such Indemnified Party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors, on the
one hand, and the Placement Agent, on the other hand, from the offering of the
Securities or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above, but also the relative fault
of the Offerors, on the one hand, and the Placement Agent, on the other hand, in
connection with the statements, omissions or breaches, which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
8.2.2 The relative benefits received by the Offerors, on the one hand, and
the Placement Agent, on the other hand, in connection with the offering of the
Securities shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Securities (before deducting expenses)
received by the Offerors and the Commission received by the Placement Agent bear
to the aggregate of such net proceeds and Commission.
8.2.3 The Offerors and the Placement Agent agree that it would not be just
and equitable if contribution pursuant to this Section 8.2 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 8.2.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an Indemnified Party and referred to above in this Section 8.2 shall
be deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement, omission or alleged omission or breach or
alleged breach.
8.2.4 Notwithstanding any provision of this Section 8 to the contrary, the
Placement Agent shall not be required to contribute any amount in excess of the
amount of the Commission.
8.2.5 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.
8.2.6 For purposes of this Section 8.2, the Placement Agent, each person,
if any, who controls the Placement Agent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and the respective partners,
directors, officers, employees and agents of the Placement Agent or any such
controlling person shall have the same rights to contribution as the Placement
Agent, while each officer and director of the Company, each trustee of the Trust
and each person, if any, who controls the Company within the meaning of
20
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Offerors.
8.3 Additional Remedies. The indemnity and contribution agreements
contained in this Section 8 are in addition to any liability that the Offerors
may otherwise have to any Indemnified Party.
8.4 Additional Indemnification. The Company shall indemnify and hold
harmless the Trust against all loss, liability, claim, damage and expense
whatsoever, as due from the Trust under Sections 8.1 through 8.3 hereof.
Section 9. Rights and Responsibilities of Placement Agent.
9.1 Reliance. In performing its duties under this Agreement, the Placement
Agent shall be entitled to rely upon any notice, signature or writing which it
shall in good faith believe to be genuine and to be signed or presented by a
proper party or parties. The Placement Agent may rely upon any opinions or
certificates or other documents delivered by the Offerors or their counsel or
designees to either the Placement Agent or the Purchaser.
9.2 Rights of Placement Agent. In connection with the performance of its
duties under this Agreement, the Placement Agent shall not be liable for any
error of judgment or any action taken or omitted to be taken unless the
Placement Agent was grossly negligent or engaged in willful misconduct in
connection with such performance or non-performance. No provision of this
Agreement shall require the Placement Agent to expend or risk its own funds or
otherwise incur any financial liability on behalf of the Purchaser in connection
with the performance of any of its duties hereunder. The Placement Agent shall
be under no obligation to exercise any of the rights or powers vested in it by
this Agreement.
Section 10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Placement Agent, by notice given to the Company and
the Trust prior to delivery of and payment for the Preferred Securities, if
prior to such time (i) a downgrading shall have occurred in the rating accorded
the Company's debt securities or preferred stock by any "nationally recognized
statistical rating organization," as that term is used by the SEC in Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act, or such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Company's debt securities or preferred
stock, (ii) the Trust shall be unable to sell and deliver to the Purchaser at
least $7,000,000 stated liquidation value of Preferred Securities, (iii) the
Company or any of its subsidiaries that is an insured depository institution
shall cease to be "adequately-capitalized" within the meaning of 12 U.S.C.
Section 1831 and applicable regulations adopted thereunder, or any formal
administrative or judicial action is taken by any appropriate federal banking
agency against the Company or any such insured subsidiary for unsafe and unsound
banking practices, or violations of law, (iv) a suspension or material
limitation in trading in securities generally shall have occurred on the New
York Stock Exchange, (v) a suspension or material limitation in trading in any
of the Company's securities shall have occurred on the exchange or quotation
system upon which the Company's securities are traded, if any, (vi) a general
moratorium on commercial banking activities shall have been declared either by
federal or Indiana authorities or (vii) there shall have occurred any outbreak
or
21
escalation of hostilities, or declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the Placement Agent's or Purchaser's judgment,
impracticable or inadvisable to proceed with the offering or delivery of the
Preferred Securities.
Section 11. Miscellaneous.
11.1 Disclosure Schedule. The term "Disclosure Schedule," as used herein,
means the schedule, if any, attached to this Agreement that sets forth items the
disclosure of which is necessary or appropriate as an exception to one or more
representations or warranties contained in Section 4 hereof. The Disclosure
Schedule shall be arranged in paragraphs corresponding to the section numbers
contained in Section 4. Nothing in the Disclosure Schedule shall be deemed
adequate to disclose an exception to a representation or warranty made herein
unless the Disclosure Schedule identifies the exception with reasonable
particularity and describes the relevant facts in reasonable detail. Without
limiting the generality of the immediately preceding sentence, the mere listing
(or inclusion of a copy) of a document or other item in the Disclosure Schedule
shall not be deemed adequate to disclose an exception to a representation or
warranty made herein unless the representation or warranty has to do with the
existence of the document or other item itself. Information provided by the
Company in response to any due diligence questionnaire shall not be deemed part
of the Disclosure Schedule and shall not be deemed to be an exception to one or
more representations or warranties contained in Section 4 hereof unless such
information is specifically included on the Disclosure Schedule in accordance
with the provisions of this Section 11.1.
11.2 Notices. All communications hereunder will be in writing and effective
only on receipt, and will be mailed, delivered by hand or courier or sent by
facsimile and confirmed:
If to the Placement Agent, to:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: The CDO Group
with a copy to:
Xxxxxxx Xxxxxxxx & Wood LLP
Two World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000)000-0000
Telephone: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
if to the Offerors, to:
22
Blue River Bancshares, Inc.
00 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000)000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxx De Vault LLP
Xxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000)000-0000
Telephone: (000)000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly given
(i) at the time delivered by hand, if personally delivered, (ii) five business
days after being deposited in the mail, postage prepaid, if mailed, (iii) when
answered back, if telexed, (iv) the next business day after being telecopied, or
(v) the next business day after timely delivery to a courier, if sent by
overnight air courier guaranteeing next-day delivery. From and after the
Closing, the foregoing notice provisions shall be superseded by any notice
provisions of the Operative Documents under which notice is given. The Placement
Agent, the Company, and their respective counsel, may change their respective
notice addresses, from time to time, by written notice to all of the foregoing
persons.
11.3 Parties in Interest, Successors and Assigns. This Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
parties hereto and the affiliates, directors, officers, employees, agents and
controlling persons referred to in Section 8 hereof, their successors, assigns,
heirs and legal representatives, and any Subsequent Purchaser, any right or
obligation hereunder. None of the rights or obligations of the Company or the
Trust under this Agreement may be assigned, whether by operation of law or
otherwise, without the Placement Agent's prior written consent. The rights and
obligations of the Placement Agent and Purchaser under this Agreement may be
assigned by such party without the Company's or the Trust's consent; provided
that the assignee assumes the obligations of such party under this Agreement.
11.4 Amendments. This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement by
each of the parties hereto.
11.5 Counterparts and Facsimile. This Agreement may be executed by any one
or more of the parties hereto in any number of counterparts, each of which shall
be deemed to be an original, but all such counterparts shall together constitute
one and the same instrument. This Agreement may be executed by any one or more
of the parties hereto by facsimile which shall be
23
effective as delivery of a manually executed counterpart hereof.
11.6 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
11.7 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW).
11.8 Submission to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING BY OR
AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR ARISING OUT OF THIS AGREEMENT MAY
BE BROUGHT IN OR REMOVED TO THE COURTS OF THE STATE OF NEW YORK, IN AND FOR THE
COUNTY OF NEW YORK, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF NEW YORK (IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS (AND COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT.
11.9 Entire Agreement. This Agreement, together with the Operative
Documents and the other documents delivered in connection with the transactions
contemplated by this Agreement, is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement, together with the Operative Documents and the other
documents delivered in connection with the transaction contemplated by this
Agreement, supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
11.10 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected, it
being intended that all of the Placement Agent's and the Purchaser's rights and
privileges shall be enforceable to the fullest extent permitted by law.
11.11 Survival. The respective agreements, representations, warranties,
indemnities and other statements of the Company and the Trust and their
respective officers or trustees and of the 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 Purchaser,
the Company or the Trust or any of their respective officers, directors,
trustees or controlling persons, and will survive delivery of and payment for
the Preferred Securities. The provisions of Sections 2.4 and 8 shall survive the
termination or cancellation of this Agreement.
24
Signatures appear on the following page
25
If this Agreement is satisfactory to you, please so indicate by signing the
acceptance of this Agreement and deliver such counterpart to the Offerors
whereupon this Agreement will become binding between us in accordance with its
terms.
Very truly yours,
BLUE RIVER BANCSHARES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BLUE RIVER BANCSHARES TRUST I
By: Blue River Bancshares, Inc.,
as Depositor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CONFIRMED AND ACCEPTED
as of the date first set forth above
X.X. XXXXXX SECURITIES INC.,
as Placement Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
26
Schedule 1
List of Significant Subsidiaries
Shelby County Bank
Paramount Bank
27
Schedule 4.12
The Company has a loan in the amount of $6,000,000 from Union Federal Bank
of Indianapolis ("Union Federal") pursuant to a Credit Agreement, dated November
19, 2003, as amended, between the Company and Union Federal. The loan is secured
by 100% of the current and future shares of stock of Shelby County Bank and
Paramount Bank, wholly owned subsidiaries of the Company.
28
EXHIBIT A
FORM OF SUBSCRIPTION AGREEMENT
PREFERRED SECURITIES SUBSCRIPTION AGREEMENT
April 20, 2006
THIS PREFERRED SECURITIES SUBSCRIPTION AGREEMENT (this "Agreement") made
among Blue River Bancshares Trust I (the "Trust"), a statutory trust created
under the Delaware Statutory Trust Act (12 Del. C. Section 3801, et seq.), Blue
River Bancshares, Inc., an Indiana corporation, with its principal offices
located at 00 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx 00000 (the "Company"
and, together with the Trust, the "Offerors"), TWE, Ltd., an exempted company
incorporated under the laws of the Cayman Islands (the "Purchaser"), and X.X.
Xxxxxx Securities Inc. (as to Sections 1.2, 1.3 and Article III).
RECITALS:
A. The Trust desires to issue SEVEN MILLION AND 00/100 ($7,000,000) DOLLARS
of its Floating Rate Preferred Securities (the "Preferred Securities"),
liquidation amount $1,000 per Preferred Security, representing an undivided
beneficial interest in the assets of the Trust (the "Offering"), to be issued
pursuant to an Amended and Restated Trust Agreement (the "Trust Agreement") by
and among the Company, Wilmington Trust Company, as Property Trustee (the
"Property Trustee"), Wilmington Trust Company, as Delaware Trustee, the
administrative trustees named therein and the Holders (as defined therein),
which Preferred Securities are to be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption and otherwise pursuant
to the terms of a Guarantee Agreement between the Company and Wilmington Trust
Company, as Guarantee Trustee (the "Guarantee"); and
B. The proceeds from the sale of the Preferred Securities will be combined
with the proceeds from the sale by the Trust to the Company of its Common
Securities, and will be used by the Trust to purchase an equivalent amount of
Floating Rate Junior Subordinated Notes of the Company (the "Notes") to be
issued by the Company pursuant to an indenture (the "Indenture") to be executed
by the Company and Wilmington Trust Company, as Indenture Trustee; and
C. In consideration of the premises and the mutual representations and
covenants hereinafter set forth, the parties hereto agree as follows:
Article I
PURCHASE AND SALE OF PREFERRED SECURITIES
1.1 Upon the execution of this Agreement, the Purchaser hereby agrees to
purchase, directly or indirectly, from the Trust, Preferred Securities at a
price equal to $1,000 per Preferred Security for an aggregate purchase price
equal to SEVEN MILLION AND 00/100 ($7,000,000) DOLLARS (the "Purchase Price"),
and the Trust agrees to sell such Preferred Securities to the Purchaser for said
Purchase Price. The rights and preferences of the Preferred Securities are set
forth in the Trust Agreement. The closing of the sale and purchase of the
Preferred Securities by
A-1
the Offerors to the Purchaser shall occur on April 20, 2006, or such other later
date (not later than May 19, 2006) as the parties may designate (the "Closing
Date"). The Purchase Price is payable in immediately available funds on the
Closing Date. The Offerors shall provide the Purchaser payment instructions no
later than two (2) days prior to the Closing Date.
1.2 The Placement Agreement, dated as of April 20, 2006 (the "Placement
Agreement"), among the Offerors and the Placement Agent identified therein (the
"Placement Agent") includes certain representations and warranties, covenants
and conditions to closing and certain other matters governing the Offering. The
Placement Agreement is hereby incorporated by reference into this Agreement, and
the Purchaser shall be entitled to each of the benefits of the Placement Agent
and the Purchaser under the Placement Agreement, subject to the limitations,
qualifications, acknowledgements and exceptions contained therein (except for
the rights of the Placement Agent under Sections 2.1 and 2.4 of the Placement
Agreement) and shall be entitled to enforce the obligations of the Offerors
under such Placement Agreement as fully as if the Purchaser were a party to such
Placement Agreement.
1.3 The Purchaser is purchasing the Preferred Securities in its capacity as
a warehouse lender, and Purchaser may resell the Preferred Securities to a
subsequent purchaser (any such purchaser from the Purchaser and, if such
purchaser is a warehouse lender, the next subsequent purchaser that is not a
warehouse lender, being referred to hereinafter as a "Subsequent Purchaser").
Upon transfer of the Preferred Securities to a Subsequent Purchaser, the
Subsequent Purchaser shall be entitled to each of the benefits of the Placement
Agent and the Purchaser under the Placement Agreement, subject to the
limitations, qualifications, acknowledgments and exceptions contained therein
and herein (except for the rights of the Placement Agent under Sections 2.1 and
2.4 of the Placement Agreement) and this Agreement, and shall be entitled to
enforce the obligations of the Offerors under the Placement Agreement and this
Agreement, as fully as if the Subsequent Purchaser were a party to the Placement
Agreement and this Agreement.
Article II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1 The Purchaser understands and acknowledges that the Preferred
Securities, the Notes and the Guarantee (i) have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any other
applicable securities law, (ii) are being offered for sale by the Trust in
transactions not requiring registration under the Securities Act and (iii) may
not be offered, sold, pledged or otherwise transferred by the Purchaser except
in compliance with the registration requirements of the Securities Act or any
other applicable securities laws, pursuant to an exemption therefrom or in a
transaction not subject thereto.
2.2 The Purchaser represents and warrants that it is purchasing the
Preferred Securities for its own account and not with a view to, or for offer or
sale in connection with, any distribution thereof in violation of the Securities
Act or other applicable securities laws, subject to any requirement of law that
the disposition of its property be at all times within its control and
A-2
subject to its ability to resell such Preferred Securities pursuant to an
effective registration statement under the Securities Act or under Rule 144A or
any other exemption from registration available under the Securities Act or any
other applicable securities law. The Purchaser understands that no public market
exists for any of the Preferred Securities, and that it is unlikely that a
public market will ever exist for the Preferred Securities.
2.3 The Purchaser represents and warrants that (a) it has consulted with
its own legal, regulatory, tax, business, investment, financial and accounting
advisers in connection herewith to the extent it has deemed necessary; (b) it
has had a reasonable opportunity to ask questions of and receive answers from
officers and representatives of the Offerors concerning their respective
financial condition and results of operations and the purchase of the Preferred
Securities and any such questions have been answered to its satisfaction; (c) it
has had the opportunity to review all publicly available records and filings
concerning the Offerors and it has carefully reviewed such records and filings
that it considers relevant to making an investment decision; and (d) it has made
its own investment decisions based upon its own judgment, due diligence and
advice from such advisers as it has deemed necessary and not upon any view
expressed by the Offerors or the Placement Agent.
2.4 The Purchaser represents and warrants that it is an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7)
of Rule 501 of Regulation D under the Securities Act.
Article III
MISCELLANEOUS
3.1 Any notice or other communication given hereunder shall be deemed
sufficient if in writing and sent by registered or certified mail, return
receipt requested, international courier or delivered by hand against written
receipt therefor, or by facsimile transmission and confirmed by telephone, to
the following addresses, or such other address as may be furnished to the other
parties as herein provided:
To the Offerors: Blue River Bancshares, Inc.
00 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Fax: (000)000-0000
Attention: Chief Financial Officer
To the Purchaser: TWE, Ltd.
x/x Xxxxxx Xxxxxxx Xxxxxxx
X.X. Xxx 0000 XX
Xxxxxxxxxx House
South Church Street
Xxxxxx Town
Grand Cayman, Cayman Islands
Fax: (000) 000-0000
A-3
Attention: The Directors
Unless otherwise expressly provided herein, notices shall be deemed to have
been given on the date of mailing, except notice of change of address, which
shall be deemed to have been given when received.
3.2 This Agreement shall not be changed, modified or amended except by a
writing signed by the parties to be charged, and this Agreement may not be
discharged except by performance in accordance with its terms or by a writing
signed by the party to be charged.
3.3 Upon the execution and delivery of this Agreement by the Purchaser,
this Agreement shall become a binding obligation of the Purchaser with respect
to the purchase of Preferred Securities as herein provided.
3.4 NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY
OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL THE TERMS AND
PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
3.5 The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this Agreement.
3.6 This Agreement may be executed in one or more counterparts each of
which shall be deemed an original, but all of which shall together constitute
one and the same instrument. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
3.7 In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected, it being
intended that all of the Offerors' and the Purchaser's rights and privileges
shall be enforceable to the fullest extent permitted by law.
3.8 No recourse shall be had to any subscriber, officer, director,
employee, trustee, equity holder, certificate holder, incorporator or agent of
the Purchaser or their respective successors or assigns for any obligations
hereunder. The Offerors, severally and jointly, further agree (i) not to take
any action in respect of any claims hereunder against any subscriber, officer,
director, employee, trustee, equity holder, certificate holder, incorporator or
agent of the Purchaser or any of their successors or assigns that is an
investment vehicle issuing collateralized debt obligations and (ii) not to
institute against any successor or assign of the Purchaser that is an investment
vehicle issuing collateralized debt obligations any insolvency, bankruptcy,
A-4
reorganization, liquidation or similar proceedings in any jurisdiction until one
year and one day or, if longer, the applicable preference period then in effect,
as the case may be, shall have elapsed since the final payments to the holders
of the securities issued by such investment vehicle.
Signatures appear on the following page
A-5
IN WITNESS WHEREOF, this Agreement is agreed to and accepted as of the
day and year first written above.
TWE, LTD., as Purchaser,
By: Trapeza Capital Management, LLC,
as Portfolio Manager
By:
---------------------------------
Name:
-------------------------------
Title: Managing Director
BLUE RIVER BANCSHARES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BLUE RIVER BANCSHARES TRUST I
By: Blue River Bancshares, Inc.,
as Depositor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
X.X. XXXXXX SECURITIES INC.
(for purposes of the rights and
obligations in Sections 1.2, 1.3 and
Article III only)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
X-0
XXXXXXX X-0
FORM OF XXXXXXX XXXXXXXX & WOOD LLP OPINION
Pursuant to Section 3.2(a) of the Placement Agreement, Xxxxxxx Xxxxxxxx &
Xxxx LLP, special counsel for the Placement Agent and Purchaser, shall deliver
an opinion to the effect that:
(i) the Company and each Significant Subsidiary is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it
is chartered or organized;
(ii) the Company has corporate power and authority to (a) execute and deliver,
and to perform its obligations under, the Operative Documents to which it
is a party and (b) issue and perform its obligations under the Notes;
(iii) neither the issue and sale of the Common Securities, the Preferred
Securities or the Junior Subordinated Notes, nor the purchase by the Trust
of the Junior Subordinated Notes, nor the execution and delivery of and
compliance with the Operative Documents by the Company or the Trust nor the
consummation of the transactions contemplated thereby will constitute a
breach or violation of the Trust Agreement or the charter or by-laws of the
Company;
(iv) the Amended and Restated Trust Agreement has been duly authorized, executed
and delivered by the Company and duly executed and delivered by the
Administrative Trustees;
(v) each of the Guarantee and the Indenture has been duly authorized, executed
and delivered by the Company and, assuming it has been duly authorized,
executed and delivered by the Guarantee Trustee and the Indenture Trustee,
respectively, constitutes a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity;
(vi) the Junior Subordinated Notes have been duly authorized and executed by the
Company and delivered to the Indenture Trustee for authentication in
accordance with the Indenture and, when authenticated in accordance with
the provisions of the Indenture and delivered to the Trust against payment
therefor, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and to general principles of equity;
(vii) the Trust is not, and, following the issuance of the Preferred Securities
and the consummation of the transactions contemplated by the Operative
Documents and the application of the proceeds therefrom, the Trust will not
be, an "investment company" or an entity "controlled" by an "investment
company," in each case within the meaning of Section 3 (a) of the
Investment Company Act;
(viii) assuming (a) the accuracy of the representations and warranties, and
compliance with the agreements contained in the Placement Agreement and (b)
that the Preferred Securities are sold in a manner contemplated by, and in
accordance with the Placement Agreement,
B-1-1
Subscription Agreement and the Amended and Restated Trust Agreement, it is
not necessary in connection with the offer, sale and delivery of the
Preferred Securities by the Trust to the Purchaser, to register any of the
Securities under the Securities Act or to require qualification of the
Indenture under the Trust Indenture Act of 1939, as amended;
(ix) the Placement Agreement and Subscription Agreement have been duly
authorized, executed and delivered by the Company and the Trust; and,
(x) the Indenture constitutes a valid and binding instrument of the Indenture
Trustee, enforceable against the Indenture Trustee in accordance with its
terms, except as rights to indemnity and contribution thereunder may be
limited under applicable law or public policy, and subject to the
qualifications that (i) enforcement thereof may be limited by bankruptcy,
insolvency, receivership, reorganization, liquidation, voidable preference,
moratorium or other laws (including the laws of fraudulent conveyance and
transfer) or judicial decisions affecting the enforcement of creditors'
rights generally or the reorganization of financial institutions and (ii)
the enforceability of the Indenture Trustee's obligations thereunder is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and to
the effect of certain laws and judicial decisions upon the availability and
enforceability of certain remedies, including the remedies of specific
performance and self-help.
In rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of the State of New York, the Delaware General Corporation
Law and the federal laws of the United States; (B) as to matters involving the
application of laws of any jurisdiction other than the State of New York and the
Delaware General Corporation Law or the federal laws of the United States, (i)
rely, to the extent deemed proper and specified in such opinion, upon the
opinion of other counsel of good standing believed to be reliable and who are
satisfactory to the Purchaser or (ii) assume such law is substantially similar
to the law of the State of New York and, (C) as to matters of fact, rely to the
extent deemed proper, on certificates of responsible officers of the Company and
public officials.
X-0-0
XXXXXXX X-0
FORM OF COMPANY COUNSEL OPINION
OR OFFICERS' CERTIFICATE
Pursuant to Section 3.2(b) of the Placement Agreement, either (i) counsel
for the Company shall deliver an opinion, or (ii) the [General Counsel/Chief
Legal Officer] of the Company shall deliver an opinion, or, (iii) if the Company
does not have a General Counsel or Chief Legal Officer, the [Chief Executive
Officer/President/Executive Vice President] and [Chief Financial
Officer/Treasurer/Assistant Treasurer] of the Company shall provide an Officers'
Certificate, to the effect that:
(i) all of the issued and outstanding shares of capital stock of each
Significant Subsidiary are owned of record by the Company, and the issuance
of the Preferred Securities and the Common Securities is not subject to any
contractual preemptive rights known to such [counsel/officer];
(ii) no consent, approval, authorization or order of any court or governmental
authority is required for the issue and sale of the Common Securities, the
Preferred Securities or the Junior Subordinated Notes, the purchase by the
Trust of the Junior Subordinated Notes, the execution and delivery of and
compliance with the Operative Documents by the Company or the Trust or the
consummation of the transactions contemplated in the Operative Documents,
except such approvals (specified in such [opinion/certificate]) as have
been obtained;
(iii) to the knowledge of such [counsel/officer], there is no action, suit or
proceeding before or by any government, governmental instrumentality,
arbitrator or court, domestic or foreign, now pending or threatened against
or affecting the Trust or the Company or any Significant Subsidiary that
could adversely affect the consummation of the transactions contemplated by
the Operative Documents or could have a Material Adverse Effect;
(iv) the Company is duly registered as a savings and loan holding company under
the HOLA and the regulations thereunder of the Office of Thrift
Supervision, and the deposit accounts of the Company's banking subsidiary
are insured by the FDIC to the fullest extent permitted by law and the
rules and regulations of the FDIC, and no proceeding for the termination of
such insurance are pending or, to such person's knowledge, threatened;
(v) The execution, delivery and performance of the Operative Documents, as
applicable, by the Company and the Trust and the consummation by the
Company and the Trust of the transactions contemplated by the Operative
Documents, as applicable, (a) will not result in any violation of the
charter or bylaws of the Company, the charter or bylaws of any Significant
Subsidiary, the Amended and Restated Trust Agreement or the Certificate of
Trust, and (b) will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or
result in the creation or imposition of any lien, charge and encumbrance
upon any assets or properties of the Company or any Significant Subsidiary
under, (A) any agreement, indenture, mortgage or instrument that the
Company or any
B-2-1
Significant Subsidiary of the Company is a party to or by which it may be
bound or to which any of its assets or properties may be subject, or (B)
any existing applicable law, rule or administrative regulation [for General
Counsel only: except that I express no opinion with respect to the
securities laws of the State of Delaware] of any court or governmental
agency or authority having jurisdiction over the Company or any Significant
Subsidiary of the Company or any of their respective assets or properties,
except in case of (b), where any such violation, conflict, breach, default,
lien, charge or encumbrance, would not have a material adverse effect on
the assets, properties, business, results of operations or financial
condition of the Company and its subsidiaries, taken as whole.
All terms used but not defined herein shall have the meanings assigned to
them in the Placement Agreement. A Subsequent Purchaser shall be entitled to
rely on this [opinion/certificate].
[Applies only to in-house counsel opinion] [In rendering such opinions,
such counsel may (A) state that the above is limited to the laws of the States
of [Jurisdiction of bar admission], (B) rely as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the Company and
public officials.]
X-0-0
XXXXXXX X-0
FORM OF TAX COUNSEL OPINION
Pursuant to Section 3.2(c) of the Placement Agreement, Xxxxxxx Xxxxxxxx &
Wood LLP, special tax counsel for the Placement Agent and Purchaser, shall
deliver an opinion to the effect that:
(i) the Trust will be classified for United States federal income tax purposes
as a grantor trust and not as an association or a publicly traded
partnership taxable as a corporation; and
(ii) for United States federal income tax purposes, the Junior Subordinated
Notes will constitute indebtedness of the Company.
In rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of the State of New York and the federal laws of the United
States and (B) rely as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and public officials.
X-0-0
XXXXXXX X-0
FORM OF DELAWARE COUNSEL TRUST OPINION
Pursuant to Section 3.2(d) of the Placement Agreement, Morris, James,
Hitchens & Xxxxxxxx LLP, special Delaware counsel for the Trust, shall deliver
an opinion to the effect that:
(i) The Trust has been duly created and is validly existing in good standing as
a statutory trust under the Delaware Statutory Trust Act, and all filings
required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a statutory trust have been
made.
(ii) Under the Delaware Statutory Trust Act and the Amended and Restated Trust
Agreement, the Trust has the trust power and authority (i) to own property
and conduct its business, all as described in the Amended and Restated
Trust Agreement, (ii) to execute and deliver, and to perform its
obligations under, each of the Placement Agreement, the Subscription
Agreement, the Common Securities Subscription Agreement, the Junior
Subordinated Note Subscription Agreement and the Preferred Securities and
the Common Securities and (iii) to purchase and hold the Junior
Subordinated Notes.
(iii) Under the Delaware Statutory Trust Act, the certificate attached to the
Amended and Restated Trust Agreement as Exhibit C is an appropriate form of
certificate to evidence ownership of the Preferred Securities. The
Preferred Securities have been duly authorized by the Amended and Restated
Trust Agreement and, when issued in accordance with the Amended and
Restated Trust Agreement and delivered against payment therefor in
accordance with the Amended and Restated Trust Agreement and the
Subscription Agreement, the Preferred Securities will be validly issued and
(subject to the qualifications set forth in this paragraph) fully paid and
nonassessable and will represent undivided beneficial interests in the
assets of the Trust, and the Preferred Security Holders will be entitled to
the benefits of the Amended and Restated Trust Agreement. The Preferred
Security Holders as beneficial owners of the Trust, will be entitled to the
same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware. The Preferred Security Holders may be obligated to make
payments or provide indemnity or security as set forth in the Amended and
Restated Trust Agreement.
(iv) The Common Securities have been duly authorized by the Amended and Restated
Trust Agreement and, when issued in accordance with the Amended and
Restated Trust Agreement and delivered against payment therefor in
accordance with the Amended and Restated Trust Agreement and the Common
Securities Subscription Agreement, will be validly issued and will
represent undivided beneficial interests in the assets of the Trust, and
the Common Security Holder will be entitled to the benefits of the Amended
and Restated Trust Agreement.
B-4-1
(v) Under the Delaware Statutory Trust Act and the Amended and Restated Trust
Agreement, the issuance of the Preferred Securities and the Common
Securities is not subject to preemptive or other similar rights.
(vi) Under the Delaware Statutory Trust Act and the Amended and Restated Trust
Agreement, the execution and delivery by the Trust of the Placement
Agreement, the Subscription Agreement, the Common Securities Subscription
Agreement and the Junior Subordinated Note Subscription Agreement, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary trust action on the part of the Trust.
(vii) The Amended and Restated Trust Agreement constitutes a legal, valid and
binding obligation of the Company and the Trustees, enforceable against the
Company and the Trustees, in accordance with its terms.
(viii) The issuance and sale by the Trust of the Preferred Securities and the
Common Securities, the purchase by the Trust of the Junior Subordinated
Notes, the execution, delivery and performance by the Trust of the
Placement Agreement, the Subscription Agreement, the Common Securities
Subscription Agreement and the Junior Subordinated Note Subscription
Agreement, the consummation by the Trust of the transactions contemplated
by the Placement Agreement, the Subscription Agreement, the Common
Securities Subscription Agreement and the Junior Subordinated Note
Subscription Agreement and compliance by the Trust with its obligations
thereunder are not prohibited by (i) the Certificate of Trust or the
Amended and Restated Trust Agreement or (ii) any law or regulation of the
State of Delaware applicable to the Trust.
(ix) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Delaware court or Delaware
governmental authority or Delaware agency is required solely in connection
with the issuance and sale by the Trust of the Trust Securities, the
purchase by the Trust of the Junior Subordinated Notes, the execution,
delivery and performance by the Trust of the Placement Agreement, the
Subscription Agreement, the Common Securities Subscription Agreement and
the Junior Subordinated Note Subscription Agreement, the consummation by
the Trust of the transactions contemplated by the Placement Agreement and
the Subscription Agreement and compliance by the Trust with its obligations
thereunder.
(x) The Preferred Security Holders (other than those Preferred Security Holders
who reside or are domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of Delaware solely as a
result of their participation in the Trust and the Trust will not be liable
for any income tax imposed by the State of Delaware.
In rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of the State of Delaware and (B) rely as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Company and the Trust and public officials.
X-0-0
XXXXXXX X-0
FORM OF TRUSTEE COUNSEL OPINION
Pursuant to Section 3.2(e) of the Placement Agreement, Morris, James,
Hitchens & Xxxxxxxx LLP, special counsel for the Property Trustee, the Guarantee
Trustee, the Delaware Trustee and the Indenture Trustee, shall deliver an
opinion to the effect that:
(i) Wilmington Trust Company is duly incorporated and validly existing as a
Delaware banking corporation in good standing under the laws of the State
of Delaware with trust powers and its principal place of business in the
State of Delaware.
(ii) Wilmington Trust Company has requisite corporate power and authority to
execute and deliver, and to perform its obligations under, the Amended and
Restated Trust Agreement, the Guarantee Agreement and the Indenture.
(iii) The execution, delivery, and performance by Wilmington Trust Company of
the Amended and Restated Trust Agreement, the Guarantee Agreement and the
Indenture have been duly authorized by all necessary corporate action on
the part of Wilmington Trust Company, and the Amended and Restated Trust
Agreement, the Guarantee Agreement and the Indenture have been duly
executed and delivered by Wilmington Trust Company.
(iv) The Amended and Restated Trust Agreement is a legal, valid and binding
obligation of Wilmington Trust Company, enforceable against Wilmington
Trust Company, in accordance with its terms.
(v) No approval, authorization or other action by, or filing with, any
governmental authority or agency under any law or regulation of the State
of Delaware or the United States of America governing the trust powers of
Wilmington Trust Company is required solely in connection with the
execution, delivery and performance by Wilmington Trust Company of the
Amended and Restated Trust Agreement, the Guarantee Agreement and the
Indenture, except for the filing of the Certificate of Trust with the
Secretary of State, which Certificate of Trust has been duly filed with the
Secretary of State.
(vi) The execution, delivery and performance of the Amended and Restated Trust
Agreement, the Guarantee Agreement and the Indenture by Wilmington Trust
Company are not prohibited by (i) the Charter or Bylaws of Wilmington Trust
Company, (ii) any law or regulation of the State of Delaware or the United
States of America governing the trust powers of Wilmington Trust Company,
or (iii) to our knowledge (based and relying solely on the Officer
Certificates), any agreements or instruments to which Wilmington Trust
Company is a party or by which Wilmington Trust Company is bound or any
judgment or order applicable to Wilmington Trust Company.
B-5-1
(vii) The Junior Subordinated Notes delivered on the date hereof have been
authenticated by due execution thereof and delivered by Wilmington Trust
Company, as Indenture Trustee, in accordance with the Company Order. The
Preferred Securities delivered on the date hereof have been authenticated
by due execution thereof and delivered by Wilmington Trust Company, as
Property Trustee, in accordance with the Trust Order.
In rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of the State of Delaware and the federal laws of the United
States governing the trust powers of Wilmington Trust Company and (B) rely as to
matters of fact, to the extent deemed proper, on certificates of responsible
officers of Wilmington Trust Company and public officials.
B-6-2
Annex F
OFFICER'S CERTIFICATE
The undersigned, the [Chief Financial Officer] [Treasurer] [Executive Vice
President] hereby certifies, pursuant to Section 6.9 of the Placement Agreement,
dated as of April 20, 2006 among Blue River Bancshares, Inc. (the "Company"),
Blue River Bancshares Trust I (the "Trust") and X.X. Xxxxxx Securities Inc.
that, as of_______, 20_____________________, the Company had the following
ratios and balances:
THRIFT HOLDING COMPANY
As of [Quarterly Financial Dates]
Tier 1 Risk Weighted Assets __________%
Ratio of Double Leverage __________%
Non-Performing Assets to Loans and OREO __________%
Tangible Common Equity as a Percentage of Tangible Assets __________%
Ratio of Reserves to Non-Performing Loans __________%
Ratio of Net Charge-Offs to Loans __________%
Return on Average Assets (annualized) __________%
Net Interest Margin (annualized) __________%
Efficiency Ratio __________%
Ratio of Loans to Assets __________%
Ratio of Loans to Deposits __________%
Double Leverage (exclude trust preferred as equity) __________%
Total Assets $__________
Year to Date Income $__________
* A table describing the quarterly report calculation procedures is attached.
[FOR FISCAL YEAR END: Attached hereto are the audited consolidated financial
statements (including the balance sheet, income statement and statement of cash
flows, and notes thereto, together with the report of the independent
accountants thereon) of the Company and its consolidated subsidiaries for the
three years ended_______, 20_______________.]
[FOR FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Company and its consolidated subsidiaries for the fiscal
quarter and [six/nine] month period ended_______, 20__.]
F-1
Annex F
The financial statements fairly present in all material respects, in accordance
with U.S. generally accepted accounting principles ("GAAP"), the financial
position of the Company and its consolidated subsidiaries, and the results of
operations and changes in financial condition as of the date, and for the
[________ quarter interim] [annual] period ended __________, 20__, and such
financial statements have been prepared in accordance with GAAP consistently
applied throughout the period involved (expect as otherwise noted therein).
IN WITNESS WHEREOF, the undersigned has executed this Officer's Certificate
as of this _____ day of _____________, 20__
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Blue River Bancshares, Inc.
00 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
(000)000-0000
F-2
FINANCIAL DEFINITIONS
THRIFT HOLDING COMPANY
Report Item Corresponding TFR Description of Calculation
------------------------ -------------------------------------------------- ---------------------------
Tier I Risk Weighted Schedule CCR - Consolidated Capital Requirement Tier 1 Risk Ratio:
Assets - CCR 830 Core Capital (Tier 1)/
Risk-adjusted assets
Ratio of Double Leverage Not applicable Not applicable
Non-performing assets to Schedule PD - Consolidated Past Due and Nonaccrual Total Non-performing assets
loans and OREO Schedule SC - Consolidated Statement of Condition (NPLs + Foreclosed Real
PD30/(SC26+SC31+SC35+SC40) Estate + Other Non-accrual
& Repossessed assets)/
(Total Loans + Foreclosed
Real Estate)
Tangible Common Equity Schedule CCR (Equity Capital - Goodwill)
as a Percentage of CCR 840 /( Total assets - Goodwill)
Total Assets
Ratio of Reserves to SC283/PD30 Total loan loss reserves /
Non-performing loans Total Non-performing loans
Ratio of Net Schedule VA - Consolidated Valuation Allowances Net charge offs for the
Charge-offs to Loans and Related Data period as a percentage
(VA155-VA135)/(SC26+SC31+SC35) of average loans
Return on Assets Schedule SO - Consolidated Statements of Net income as a percentage
(annualized) Operations SO91/SC60 of assets
Net interest margin SO312/((SC11-SC1 10)+SC22+SC26+SC31+SC35) Net interest income /
(annualized) Average earning assets
Efficiency Ratio (SO51/(SO311+SO40)) (Non-interest expense)
/ (Net interest income
+ Non-interest income)
Ratio of Loans to (SC26+SC3 1+SC35)/(SC60) Total Loan & Leases
Assets / Total assets
Ratio of Loans to (SC26+SC3 1+SC35)/(SC710) Total Loans & Leases
Deposits / Total Deposits
Total Assets Schedule SC The sum of total assets.
SC60
Net Income Schedule SO The sum of income (loss).
SO91
1
