-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, A/RtxqzxyWf/6q8hPLfh310uzFhZUUF6+mDBEgJEl2p7t/2P/u5L41S4r4G+Yxgy vuyTqqoa+G2JFnsSBCj99Q== 0000891836-09-000218.txt : 20091104 0000891836-09-000218.hdr.sgml : 20091104 20091103180406 ACCESSION NUMBER: 0000891836-09-000218 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20091104 DATE AS OF CHANGE: 20091103 GROUP MEMBERS: DAVID F. BOLGER 2008 GRANTOR RETAINED ANNUITY TRUST GROUP MEMBERS: DAVID F. BOLGER 2008 NONGRANTOR CHARITABLE LEAD ANNUITY TRUS GROUP MEMBERS: TWO-FORTY ASSOCIATES FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Bolger David Fabius CENTRAL INDEX KEY: 0001357224 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: L'AMBIANCE II 435 STREET 2: L'AMBIANCE DRIVE UNIT J904 CITY: LONG BOAT KEY STATE: FL ZIP: 34228-3924 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CASCADE BANCORP CENTRAL INDEX KEY: 0000865911 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 931034484 STATE OF INCORPORATION: OR FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-81598 FILM NUMBER: 091155662 BUSINESS ADDRESS: STREET 1: 1100 N W WALL ST STREET 2: P O BOX 369 CITY: BEND STATE: OR ZIP: 97709 BUSINESS PHONE: 5413856205 MAIL ADDRESS: STREET 1: 1100 NW WALL STREET STREET 2: P.O. BOX CITY: BEND STATE: OR ZIP: 97709 SC 13D/A 1 sc0101.htm SCHEDULE 13D, AMENDMENT NO. 5 Amendment No. 5 to Schedule 13D

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 

SCHEDULE 13D

Under the Securities Exchange of 1934
(Amendment No. 5)*

Cascade Bancorp

(Name of Issuer)

Common Stock, no par value

(Title of Class of Securities)

147154108

 

(CUSIP Number)

Mark J. Menting, Esq.
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004

 

(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)

October 29, 2009

 

(Date of Event which Requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13-1(g), check the following box.  [_]

Note:   Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

SCHEDULE 13D

CUSIP No. 147154108

   

1

NAME OF REPORTING PERSONS.
 

David F. Bolger

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)

(a) [_]

(b) [X]

3

SEC USE ONLY

4

SOURCE OF FUNDS (SEE INSTRUCTIONS)
 

OO, BK, WC

5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

[_]

6

CITIZENSHIP OR PLACE OF ORGANIZATION
 

Florida, USA

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY EACH

REPORTING

PERSON WITH

7

SOLE VOTING POWER
 

2,542,664

8

SHARED VOTING POWER
 

920,380

9

SOLE DISPOSITIVE POWER
 

2,542,664

10

SHARED DISPOSITIVE POWER
 

920,380

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 

3,463,044

12

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

[_]

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 

12.3%

14

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 

IN


SCHEDULE 13D

CUSIP No. 147154108

   

1

NAME OF REPORTING PERSONS.
 

Two-Forty Associates, a Pennsylvania Limited Partnership

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)

(a) [_]

(b) [X]

3

SEC USE ONLY

4

SOURCE OF FUNDS (SEE INSTRUCTIONS)
 

OO

5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

[_]

6

CITIZENSHIP OR PLACE OF ORGANIZATION
 

Pennsylvania, USA

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY EACH

REPORTING

PERSON WITH

7

SOLE VOTING POWER
 

0

8

SHARED VOTING POWER
 

192,321

9

SOLE DISPOSITIVE POWER
 

0

10

SHARED DISPOSITIVE POWER
 

192,321

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 

192,321

12

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

[_]

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 

0.7%

14

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 

PN


SCHEDULE 13D

CUSIP No. 147154108

   

1

NAME OF REPORTING PERSONS.
 

The David F. Bolger 2008 Grantor Retained Annuity Trust

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)

(a) [_]

(b) [X]

3

SEC USE ONLY

4

SOURCE OF FUNDS (SEE INSTRUCTIONS)
 

OO

5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

[_]

6

CITIZENSHIP OR PLACE OF ORGANIZATION
 

Florida, USA

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY EACH

REPORTING

PERSON WITH

7

SOLE VOTING POWER
 

0

8

SHARED VOTING POWER
 

728,059

9

SOLE DISPOSITIVE POWER
 

0

10

SHARED DISPOSITIVE POWER
 

728,059

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 

728,059

12

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

[_]

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 

2.6%

14

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 

OO


SCHEDULE 13D

CUSIP No. 147154108

   

1

NAME OF REPORTING PERSONS.
 

The David F. Bolger 2008 Nongrantor Charitable Lead Annuity Trust

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)

(a) [_]

(b) [X]

3

SEC USE ONLY

4

SOURCE OF FUNDS (SEE INSTRUCTIONS)
 

OO

5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

[_]

6

CITIZENSHIP OR PLACE OF ORGANIZATION
 

Florida, USA

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY EACH

REPORTING

PERSON WITH

7

SOLE VOTING POWER
 

0

8

SHARED VOTING POWER
 

2,526,955

9

SOLE DISPOSITIVE POWER
 

0

10

SHARED DISPOSITIVE POWER
 

2,526,955

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 

2,526,955

12

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

[_]

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 

9%

14

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 

OO


 

Item 1.

Security and Issuer

This Amendment No. 5 to the Statement on Schedule 13D (the “Amendment No. 5”) amends the Statement on Schedule 13D originally filed on April 27, 2006, as amended by Amendment No. 1 to the Statement on Schedule 13D filed on September 8, 2006, Amendment No. 2 to the Statement on Schedule 13D filed on June 3, 2008, Amendment No. 3 to the Statement on Schedule 13D filed on April 3, 2009 and Amendment No. 4  to the Statement on Schedule 13D filed on June 1, 2009 (together with Amendment No. 1, Amendment No. 2, Amendment No. 3 and Amendment No. 4, the “Initial Schedule 13D”), and relates to the common stock, no par value (the “Common Stock”), of Cascade Bancorp, an Oregon corporation (the “Company”). The address of the principal executive offices of the Company is 1100 NW Wall Street, P.O. Box 369, Bend, Oregon 97709.
 
Except as specifically amended by this Amendment No. 5, the Initial Schedule 13D, as amended by this Amendment No. 5, remains in full force and effect. Capitalized terms used but not defined herein have the meaning assigned to them in the Initial Schedule 13D.
 

Item 3.

Source and Amount of Funds or Other Consideration

Item 3 is hereby amended by adding the following after the final paragraph thereof:


On October 16, 2009, TD Bank, N.A. (“TD Bank”) provided Mr. Bolger and The David F. Bolger Revocable Trust with a Commitment Letter (the “Commitment Letter”), pursuant to which TD Bank agreed, subject to certain terms and conditions, to provide funding to Mr. Bolger of up to $20 million in connection with the purchase of Common Stock under the Bolger Purchase Agreement as defined and described in Item 4 below. The remainder of the purchase price under the Bolger Purchase Agreement will be funded by Mr. Bolger’s working capital.

The foregoing description of the Commitment Letter does not purport to be a complete description of all of the terms of such letter. The Commitment Letter is incorporated by reference as Exhibit 16 to this report, is incorporated herein by reference and the foregoing description is qualified in its entirety by reference to the full text of the letter filed as an exhibit hereto.  

Item 4.

Purpose of the Transaction

Item 4 is hereby amended and restated as follows:
 
The Reporting Persons have acquired beneficial ownership of the shares of Common Stock as described in this Schedule 13D for investment purposes.
 
Except as set forth below, as of the date of this Amendment No. 5, none of the Reporting Persons has any present plans or proposals which would result in or relate to any of the actions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.


In accordance with the terms of the governing instrument of the CLAT, the CLAT is obligated to make an annuity payment to the Valley Hospital Foundation in Ridgewood, New Jersey in an amount equal to 21.96% of the initial fair market value of the property transferred to the CLAT in each taxable year of the CLAT. In order to make such a payment, the CLAT will transfer shares of Common Stock to the Valley Hospital Foundation.  Mr. Bolger may purchase the shares of Common Stock transferred to Valley Hospital at a price and on terms to be agreed at the time of any such purchase.

On the date preceding the fifth anniversary of its creation, the CLAT will terminate and it will transfer any remaining assets to The David F. Bolger 2008 Irrevocable Family Trust (the “IFT”). The IFT will, in turn, immediately distribute those assets to separate trusts established for the benefit of each of Mr. Bolger’s three children.
 
In accordance with the terms of the governing instrument of the GRAT, on each anniversary of the creation of the GRAT, it will make an annuity payment to Mr. Bolger of the Common Stock or cash with a value on such annuity date as follows:
 

 

First annual payment: 14.9235000% of the initial fair market value of the GRAT.

 

Second annual payment: 17.9082000% of the initial fair market value of the GRAT.

 

Third annual payment: 21.4898400% of the initial fair market value of the GRAT.

 

Fourth annual payment: 25.7878080% of the initial fair market value of the GRAT.

 

Fifth annual payment: 30.9453696% of the initial fair market value of the GRAT.


The date of each of the above annual payments will be May 29.

Upon its fifth anniversary, the GRAT will terminate and it will transfer any remaining assets to the IFT. The IFT will, in turn, immediately distribute those assets to separate trusts established for the benefit of each of Mr. Bolger’s three children.
 
On October 29, 2009, the Company and Mr. Bolger (and the other Reporting Persons only with respect to certain sections thereof) entered into a Securities Purchase Agreement for the purchase and sale of $25 million of shares of Common Stock (the “Bolger Purchase Agreement”) to Mr. Bolger. The Bolger Purchase Agreement is incorporated by reference as Exhibit 17 to this report and incorporated herein by reference. 

 

In addition, on October 29, 2009, the Company entered into a Securities Purchase Agreement with an affiliate of Lightyear Fund II, L.P. (“Lightyear”), for the purchase and sale of $40 million of shares of Common Stock to Lightyear (the “Lightyear Purchase Agreement”, and together with the Bolger Purchase Agreement, the “Securities Purchase Agreements”). The total gross proceeds from the sales of Common Stock to Mr. Bolger and Lightyear (the “Private Offerings”) is expected to be $65 million. The shares of Common Stock in the Private Offerings are being sold at a per share purchase price equal to the lesser of (A) $0.87 per share, and (B) the net proceeds per share to the Company in connection with the previously announced Public Offering (as defined
below).

 

The Company previously filed a registration statement on Form S-1 for the proposed registered public offering of shares of Common Stock (the “Public Offering”).

 

The Private Offerings are subject to certain closing conditions, including, among others, (i) the completion of the Public Offering and the receipt of aggregate proceeds for the Private Offerings and Public Offering of at least $150 million (net of underwriting commissions and discounts); (ii) receipt of the necessary regulatory approvals by the Company and Lightyear, which will include approval under the Change in Bank Control Act of 1978, as amended, with respect to Lightyear; (iii) receipt of all necessary approvals under the Company’s charter and applicable law (as described below); and (iv) no material amendment or termination of the binding Letter Agreement, dated as of October 26, 2009, entered into by the Company and Cohen & Company Financial
Management, LLC, providing for the repurchase of the Company’s outstanding trust preferred securities.

 

Subject to certain conditions under the Securities Purchase Agreements, the Company has granted each of Mr. Bolger and Lightyear preemptive rights on any subsequent offering of the Company’s securities at a purchase price of less than 95% of the market price of the Common Stock on the last trading day preceding the date of the Securities Purchase Agreements with respect to such issuance of securities. Mr. Bolger and Lightyear will each have such rights until such time as Mr. Bolger or Lightyear, as applicable, or their respective affiliates, cease to own 5% or more of all outstanding Common Stock.

 

Under the Securities Purchase Agreements, the Company has granted registration rights to each of Mr. Bolger and Lightyear. Within thirty days of the closing date of the Private Offerings, the Company must file a shelf registration statement covering the registrable securities held by Mr. Bolger and Lightyear, including all securities purchased by each of Mr. Bolger and Lightyear pursuant to the Securities Purchase Agreements. In addition, each of Mr. Bolger and Lightyear have piggy-back registration rights, pursuant to which they may
include registrable securities held by them in any subsequent registration of securities by the Company, subject to certain conditions.

 

The Company has also agreed to take all necessary action to eliminate or minimize the effect of any anti-takeover laws, including anti-takeover provisions of the Company’s Articles of Incorporation, on the Private
Offerings. In addition, so long as either Mr. Bolger or Lightyear owns at least 5% of the outstanding Common Stock of the Company, the Company has agreed not to enter into any poison pill agreement, stockholders’ rights plan or similar agreement, unless such agreement contains an exemption for each of Mr. Bolger, Lightyear and their affiliates.

 

A special meeting of the Company’s shareholders will be held to approve the issuance of $65 million in Common Stock pursuant to the Private Offerings and to approve an amendment to the Company’s Articles of Incorporation to increase the number of authorized shares of Common Stock from 45,000,000 to 300,000,000.


According to the preliminary Proxy Statement filed on Schedule 14A by the Company on October 29, 2009, the Board of Directors of the Company has unanimously approved each of the Private Offerings and the amendment to the Articles of Incorporation.

 

Each of Mr. Bolger and Lightyear have agreed with the Company and Keefe, Bruyette & Woods, Inc., the managing underwriter for the Public Offering, subject to certain exceptions, not to dispose of their Common Stock or securities convertible into or exchangeable for shares of Common Stock until the
90th day after the closing of the purchase of Common Stock and the Public Offering as contemplated in the Securities Purchase Agreements, except with the prior written consent of the Company and Keefe, Bruyette & Woods, Inc.

 

For so long as Mr. Bolger, together with his affiliates, owns at least 10% or more of all of the outstanding shares of Common Stock, Mr. Bolger will have the right to nominate two candidates for election to each of the board of directors of the Company and the board of directors of Bank of the Cascades, as candidates recommended by the board of directors of the Company, unless both of Mr. Bolger’s nominees are still serving as directors on each board and will continue to serve after the relevant election. For as long as Mr. Bolger, together with his affiliates, owns at least 5% but less than 10% of all of the outstanding shares of Common Stock, Mr. Bolger will have the right to nominate one candidate for election to each of the board of directors of the Company and
the board of directors of Bank of the Cascades, as a candidate recommended by the board of directors of the Company, unless Mr. Bolger’s nominee is still serving as a director on each board and will continue to serve after the relevant election.

 

The foregoing description of the Securities Purchase Agreements is a summary of certain material terms of such agreements and does not purport to be a complete description of all of the terms of such agreements. The Bolger Purchase Agreement is incorporated by reference as Exhibit 17 to this report, is incorporated herein by reference and the foregoing description is qualified in its entirety by reference to the full text of the agreement filed as an exhibit hereto.

 

There can be no assurances that the conditions to closing in the Bolger Purchase Agreement will be satisfied and that the purchase of Common Stock as contemplated in the Bolger Purchase Agreement will be consummated.

 

The Reporting Persons will from time to time evaluate their investment in the securities of the Company and may in the future seek to acquire additional securities or dispose of all or a portion of the securities beneficially owned by them or engage in derivative transactions (which may be physically or cash settled) relating to securities of the Company. Any such acquisition or disposition may be effected through privately negotiated transactions, in the open market, in block transactions or otherwise. Derivative transactions may involve the purchase or writing of exchange traded options or entering into over-the-counter derivative transactions; the derivative transactions may increase or decrease the Reporting Persons’ economic exposure to the Company. Any determination to acquire or dispose of securities of the Company or engage in derivative transactions will depend on a number of factors, including the Company’s business and financial position and prospects, other
developments concerning the Company, the price levels at which shares of Common Stock of the Company are traded, general market and economic conditions and the availability of financing and other opportunities available to the Reporting Persons. There can be no assurance that any such acquisition or disposition of securities of the Company or derivative transactions will occur or as to the timing or method of any such acquisition, disposition or transaction.

 

Item 5.

Interest in Securities of the Issuer

The first paragraph of Section (a) of Item 5 is hereby amended and restated as follows:
 
(a) See items 11 and 13 of the cover pages to this Amendment No. 5 for the aggregate number and percentage of shares of Common Stock beneficially owned by each of the Reporting Persons. Based on information provided in the Company’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2009, as of October 26, 2009 there were 28,159,483 shares of Common Stock outstanding.
 


 

Item 6.

Contracts, Arrangements, Understanding or Relationships with Respect to Securities of the Issuer.

 

Item 6 is hereby amended by adding the following at the end of the final paragraph thereof:

 

Pursuant to the terms and conditions of the Bolger Purchase Agreement, upon the closing of the purchase and sale of the Common Stock described therein, Section 2, Section 3, Section 4 and Section 5 of the Shareholders Agreement shall be terminated as of such closing. Mr. Bolger’s right to nominate two directors to the Company’s Board of Directors and related rights under the Shareholders Agreement will continue under the Bolger Purchase Agreement as described under Item 4 above.

 

See also Item 3 above for a description of the Commitment Letter and Item 4 above for a description of the Bolger Purchase Agreement. The documents, filings and exhibits are expressly incorporated herein by reference and the descriptions herein are qualified thereby.


Item 7.

Material to be Filed as Exhibits

 

Item 7 is hereby amended by adding the following exhibits:

 

Exhibit No.

Description

 

 

16.

Commitment Letter, dated as of October 16, 2009, among TD Bank, N.A., David F. Bolger and The David F. Bolger Revocable Trust.

 

 

17.

Securities Purchase Agreement, dated as of October 29, 2009, between the Company and David F. Bolger (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on October 30, 2009).


SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date:  November 3, 2009

 

DAVID F. BOLGER

 
       
       
 

/s/ David F. Bolger

 
 

David F. Bolger

 
       
       
 

TWO-FORTY ASSOCIATES, a Pennsylvania Limited Partnership

 
       
 

By:

The David F. Bolger Revocable Trust, its General Partner

 
       
       
 

By:

/s/ David F. Bolger

 
   

David F. Bolger, its Trustee

 
       
       
 

THE DAVID F. BOLGER 2008 GRANTOR RETAINED ANNUITY TRUST, an Irrevocable Trust

 
       
       
 

By:

/s/ David F. Bolger  
   

David F. Bolger, its Trustee

 
       
       
 

THE DAVID F. BOLGER 2008 NONGRANTOR CHARITABLE LEAD ANNUITY TRUST, a Charitable Annuity Trust

 
       
       
 

By:

/s/ Thomas M. Wells

 
   

Thomas M. Wells, its Trustee

 


INDEX OF EXHIBITS

 

Exhibit No.

Description

 

 

16.

Commitment Letter, dated as of October 16, 2009, among TD Bank, N.A., David F. Bolger and The David F. Bolger Revocable Trust.

 

 

17.

Securities Purchase Agreement, dated as of October 29, 2009, between the Company and David F. Bolger (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on October 30, 2009).

 

 

EX-99.1 2 ex-16.htm EXHIBIT 16--LOAN AGREEMENT

TD Bank, N.A.
1100 Lake Street
Ramsey, NJ 07446

October 16, 2009

David F. Bolger
and The David F. Bolger Revocable Trust
79 Chestnut Street
Ridgewood, New Jersey 07430

RE: A Commercial Mortgage of up to $20,000,000

Dear David:

On behalf of TD Bank, N.A. (the “Bank”), I am pleased to provide you with a commitment for the credit accommodations (the “Credit Accommodations”) that are described on the attached Terms and Conditions of Commitment dated October 16, 2009. The Real Estate Rider and the Commitment Letter Rider dated of even date herewith are attached and are made part of this Commitment Letter with the same force and effect as if they were set forth herein.

If the terms and conditions set forth herein are acceptable to you, please acknowledge below and return a signed counterpart to this letter on or before the close of business on October 5, 2009 together with all applicable fees. This commitment letter must be accepted and returned to the Bank no later than the close of business on October 30, 2009, and the closing of the Credit Accommodations must occur by December 31, 2009.

The Bank may terminate this commitment letter, and will have no obligation to extend the Credit Accommodations, upon the happening of any of the following events: (a) the Bank does not receive the accepted copy of this commitment (along with any fees due with the acceptance of this letter) by October 30, 2009; (b) the Credit Accommodations do not for any reason close by December 31, 2009 (“Expiration of the Commitment Letter”); (c) the Co-Borrower’s failure to comply with any term or condition set forth herein or in the attached Terms and Conditions or the Real Estate Rider or the Commitment Letter Rider; (d) any material adverse change occurs with respect to the economic value, business assets, liabilities, results of operations or condition (financial or otherwise) of the Co-Borrowers or the value of the collateral; (e) any report or statement made to the Bank by the Co-Borrowers or any guarantor in connection herewith is or proves to be false or misleading in any material respect as of the date made or furnished; or (f) any collateral securing the Credit Accommodations shall be materially damaged by fire or other casualty.


 

If you have any questions or comments on the terms of this letter, please do not hesitate to call me.

 

Very truly yours,

   
 

TD Bank, N.A.

   
   
 

By:/s/ Dennis J. McSherry                              

 

     Dennis J. McSherry

 

     Regional Vice President

   
   

The above commitment is hereby accepted:

   
 

Borrowers:

   
 

David F. Bolger Revocable Trust

   
   
 

By:/s/ David F. Bolger                              

 

     David F. Bolger

   
 

By:/s/ David F. Bolger                              

 

     David F. Bolger, Individually

   

This letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement.

2


TD BANK, N.A.
TERMS AND CONDITIONS OF COMMITMENT DATED OCTOBER 16, 2009

1.     Loan

a)     Co-Borrowers:

David F. Bolger and The David F. Bolger Revocable Trust

b)     Credit Amount:

The Lesser of $20,000,000 or 65% of the “as is” appraised value of the subject Commercial Properties and also subject to any further restrictions imposed by Regulation U.

c)     Type of Credit:

Commercial Mortgage Loan

d)     Term:

240 Months (20 Years)

e)     Call Option:

Upon notice to the Co-Borrowers, the Bank may call  the loan on the third (3rd) anniversary date of the closing of the loan.

f)     Purpose of Loan:

The loan proceeds are to be utilized for the purchase of securities in Cascade Bancorp, Inc., a publicly traded Bank Holding Company (the “Securities”)

g)     Interest Rate:  Variable Rate

The loan shall bear interest at one of the following two (2) indexes. The rate option to be selected by the Co-Borrowers’ no less than five (5) days before closing of the Loan.

 

(i) At a per annum rate equal to the Wall Street Journal Prime Rate plus 1/2%, with a floor at 4.50%. Wall Street Journal Prime Rate means the highest rate published from time to time by the Wall Street Journal as the Prime Rate, or, in the event the Wall Street Journal ceases publication of the Prime Rate, the base, reference or other rate then designated by the Bank, in its sole discretion, for general commercial loan reference purposes, it being understood that such rate is a reference rate, not necessarily the lowest, established from time to time, which serves as the basis upon which effective interest rates are calculated for loans making reference thereto. The effective interest rate applicable to the loan shall change on the date of each change in the Wall Street Journal Prime Rate.

3
 


 

or

 

(ii) At a per annum rate equal to Three Percent (3.00%) above the three month London Interbank Offered Rate (“LIBOR”), with a floor at 4.50%. LIBOR means the rate of interest (rounded upwards if necessary to the next 100th of one percent) equal to the British Bankers Association LIBOR (“BBA LIBOR”) as published by Bloomberg (or such other commercially available source providing quotations of BBA LIBOR as designated by the Bank from time to time) at approximately 11:00 A.M. (London time) 2 Banking Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period; provided however, if more than one BBA LIBOR is specified, the applicable rate shall be the arithmetic mean of all such rates. If, for any reason, such rate is not available, the term LIBOR shall mean, with respect to any LIBOR Loan for the LIBOR Interest Period applicable thereto, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the Bank to be the average rates per annum at which deposits in dollars are offered for such LIBOR Interest Period to major banks in the London Interbank market in London, England at approximately 11:00 A.M. (London time) 2 Banking Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period. The effective interest rate applicable to the loan shall change at the end of each Interest Period. Interest Period means initially, a period of three months; provided however, (i) if any LIBOR Interest Period would end on a day which is not a Banking Day, such LIBOR Interest Period shall be extended to the next succeeding Banking Day (except that where the next succeeding Banking Day falls in the next succeeding calendar month, then on the next preceding Banking Day), (ii) no LIBOR Interest Period shall extend beyond the Maturity Date of the Loan, and (iii) any LIBOR Interest Period with respect to a LIBOR Loan that begins on the last Banking Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such LIBOR Interest Period) shall end on the last Banking Day of the relevant calendar month at the end of such LIBOR Interest Period.

h)     Default Rate of Interest:

The “default rate of interest” shall be three (3) percentage points in excess of the rate of interest charged prior to the occurrence of the event of default.

4


i)     Late Charges:

If any payment due the Bank is more than fifteen (15) days overdue, a late charge of five percent (5%) of the overdue payment shall be assessed.

j)     Payments:

Consecutive monthly installments comprised of fixed principal plus interest (on the basis of actual number of days elapsed and a 360-day year) calculated by the Bank in the Bank’s sole discretion at the time of closing based upon the interest rate and a 240 month amortization period of principal.

k)     Prepayment Privilege:

(1) The loan may be prepaid without a penalty if based on Wall Street Journal Prime.

 

(2) The loan may be prepaid in whole or in part at each LIBOR rate reset date. In the event of any prepayment of the loan, whether by voluntary prepayment, acceleration or otherwise prior to an interest rate reset, the Borrower shall pay a “fixed rate prepayment charge” equal to the excess, if any, of (i) the amount of interest which would have accrued on the amount so prepaid for the period from the date of such prepayment at the applicable rate of interest for provided for herein over (ii) the amount of interest (as reasonably determined by the Bank) which would have accrued to the Bank on such amount by placing such amount on deposit for a comparable period with leading banks in the London Interbank Eurodollar market.

2.        Fees. 1% Loan Fee of the Credit Amount by the Co-Borrowers to the Bank. $75,000.00 of the fee shall be due upon execution of this letter which shall be non-refundable regardless of whether the transactions contemplated by this letter are actually consummated, with the balance payable at the time of closing. In addition, if the Financing does close, the Co-Borrowers will be responsible for all other fees and expenses incurred, including, appraisals, titles, environmental and legal fees and out-of- pocket fees associated with the due diligence and the closing of this transaction. If the Financing does not close, expenses up to $40,000 already incurred will be credited to the $75,000 fee due hereunder at the execution of this letter and all expenses above this $40,000 amount will be owed by the Co-Borrowers at the Expiration of the Commitment Letter.

3.        Collateral. The following shall be given as collateral to secure the performance and payment of all obligations respecting the Credit Accommodations:

     Commercial Real Estate (“the Commercial Properties”)
 

·     

A first priority Deed(s) of Trust on real properties owned by David F. Bolger or The DFB Revocable Trust together with an absolute assignment to the Bank of all rights in and to all present and future rents and leases affecting the Commercial Properties located at:


(1)     8939 Etiwanda Ave, Rancho Cucamonga, Riverside County, California, 91739.

5


(2)     13232 North Valley Blvd. Fontana, San Bernardino County, California, 92335.

(3)     2851 East Las Hermanas, Rancho Dominguez, Los Angeles County, California, 90221.

The Co-Borrowers shall not permit the outstanding principal balance of the Credit Accommodations to exceed 65% of the fair market value (as determined by the Bank) of all real properties securing the Credit Accommodations at any time. If such deficiency is deemed by the Bank, in its sole discretion, to exist, the Co-Borrowers will be required, immediately after being requested by the Bank, to reduce the outstanding Credit Amount to conform to this requirement.

4.     Insurance.
 

Receipt by the Bank of a prepaid fire and extended coverage insurance policy insuring the buildings, improvements, furnishings, fixtures, inventory, machinery and equipment constituting the Commercial Properties in an amount satisfactory to Bank naming the Bank as First Mortgagee/Lender Loss Payee requiring a 30 day notice to Bank of cancellation or amendment. Receipt by the Bank of certificates of insurance in favor of Bank evidencing that comprehensive general public liability insurance protecting the Co-Borrowers are in full force and effect. All insurance shall be satisfactory to Bank as to amount, form, issuer and notice. Bank shall have the right to require additional types and amounts of coverage, including without limitation flood insurance if it is determined that the Commercial Properties are in a special flood hazard area as defined by the Federal Emergency Management Agency.

All policies should list the Mortgagee, Lender Loss Payee, or Additional Insured, as applicable, as: TD Bank, N.A., and/or its successors and assigns, as their interests may appear, 2059 Springdale Road, Cherry Hill, NJ 08003, Attn: Collateral Department, Insurance Section AIM #02-259-01-58 and should reference the subject loan number.

5.     Legal Opinions.
 

Prior to closing, there shall be delivered to the Bank an opinion of Co-Borrowers’ counsel acceptable to the Bank covering matters customary for a transaction of this type and nature and which shall, without limitation, opine that: (1) all loan documents have been validly authorized and executed by and on behalf of the Co-Borrowers; (2) all loan documents are enforceable in accordance with their terms and do not violate any legal requirements; (3) the loan documents create perfected liens and security interests in the real or personal property collateral; (4) all required consents and approvals have been obtained from regulatory authorities; and (5) the transactions contemplated hereby are in compliance with Regulations U and Y and the Regulation U-1 form has been completed and provided to the Bank.

6


6.     Financial Reporting.
 
     a)     David F. Bolger shall furnish the following financial reports:

 

Type of Report(s)

Frequency

Due Date

     

Personal Financial Statements including detailed balance sheet, income statement, contingent liability statement and detailed property report with cash flow schedule

Semi-Annually

120 days after end of each mid and full calendar year.

Federal Tax Return

Annually

Within 15 days of filing but no later than October 31 of each year or such other date approved by the Bank.

     

b)       In addition, Co-Borrowers shall furnish to the Bank such other reports as shall be required in the loan documents.

7.     Fnancial Covenants.
 

·     

David F. Bolger to maintain, at all times, minimum liquidity (Cash + Marketable Securities, excluding the market value of CACB) of $7.5MM.


·     

David F. Bolger to maintain, at all times, a minimum net worth, exclusive of interests in CACB, of $75MM.


8.     Other Conditions:
 

·     

The conditions set forth on the real estate rider attached hereto and incorporated herein by reference.


·     

A copy of the Trustee’s Certificate of DFB Revocable Trust Agreement signed by the Trustee affirmed by witness.


·     

The loan proceeds are to be utilized for the purchase of equity securities in Cascade Bancorp, Inc., a publicly traded bank holding company (the “Securities”). The Securities are to be maintained in a custody account at Morgan Stanley, or another custodian acceptable to the Bank. The Bank is to receive notice by the custodian or Co-Borrowers of the release of the Securities for sale, collateral or lien. It is mutually understood, and Co-Borrowers must represent, that proceeds of the sale of any and all Securities must be used to repay in part or in whole the outstanding Credit Amount.


·     

As a condition to final purchase of the Securities, the Bank will require for its review, (a) the final term sheet related to the intended private placement of up to $100 million being considered as an investment in Cascade Bancorp, Inc. (b) a copy of the underlying Stock Purchase Agreement and (c) copies of all commitments of other parties participating in the $100 million private placement. If any of the above information is not available from public sources, the Bank will be bound by the confidentiality of all such information provided by the Co-Borrowers.


7


REAL ESTATE RIDER

1.     Appraisal. Prior to the closing, the Bank shall have received satisfactory written appraisals of each of the Commercial Properties, as such term is defined in the Terms and Conditions of Loan, which appraisal shall be paid for by Borrower and addressed to the Bank. Such appraisal shall be acceptable to the Bank and confirm that the loan amount does not exceed 65% of the fair value of the Commercial Property, i.e. the fair value appraisal of the Commercial Property must be at least $ 30,769,250 “as is” in order to support a $20,000,000 loan amount. The loan documents shall also provide that the Bank shall have the right to require updated appraisals of each or all of the properties at Co-Borrowers’ expense in conformity with the Bank’s then prevailing policies.

2.     
Survey and Engineer’s Report. Prior to closing, upon the Bank’s request, the Bank, at the Co-Borrowers’ expense, will be furnished with a satisfactory survey of each of the Commercial Properties in the standard ALTA form, certified to the Bank and to the title company by a licensed professional engineer or surveyor acceptable to the Bank, certifying, among other things: (i) there are no encroachments upon the Commercial Property, and the existence and location of all easements, improvements, and rights of way that benefit or burden the premises; (ii) the availability of utilities services, storm drainage, and sewage facilities sufficient to service the Commercial Property adequately; (iii) the Commercial Property and the uses thereof comply with all applicable zoning, building, health, fire, and safety codes, bylaws, and regulations; and (iv) the Commercial Property is not located in a flood hazard area.

3.     
Hazardous Waste Existence. The Bank will require satisfactory evidence, which may include reports from an environmental engineering firm, satisfactory to Bank in the form of a site assessment for each of the Commercial Properties (the cost of which is to be borne by Co-Borrower), confirming that the property to be mortgaged will, at the time of settlement of the loan contemplated herein, be in material compliance with all applicable state and Federal Environmental laws, including all rules and regulations of the State of New York and all divisions thereof. Borrower shall be responsible for all expenses incurred in satisfying the requirements outlined hereinabove, regardless of whether the loan is closed.

4.     
Title Insurance. The Co-Borrower shall obtain title insurance and Bank required endorsements from a title insurer acceptable to the Bank for each of the Commercial Properties. The title insurance policy shall (i) be in the ALTA form or other form approved by the Bank with such endorsements as the Bank may require; (ii) contain no exceptions for survey, easements and other use restrictions not shown on the survey; (iii) contain no inspection exceptions except in respect to improvements thereafter added; (iv) contain no exception taken for parties in possession, unless permitted by the Bank, or for mechanics liens; and (v) contain no other exceptions which in the opinion of counsel to the Bank may have an adverse effect upon the use of all or any portion of the Commercial Properties as contemplated.

8


TD BANK, N.A.
COMMITMENT LETTER RIDER DATED OCTOBER 16, 2009

1.     Representations. All representations made by the Co-Borrowers to the Bank in connection with the Credit Accommodations shall be deemed to be material and relied upon by the Bank in issuing this commitment letter.

2.     Future Advances and Obligations Secured. Any mortgage, deed of trust, security interest, pledge or other instrument of security given to secure the Co-Borrowers’ obligations under the Credit Accommodations shall also secure any extensions, renewals or modifications of the Credit Accommodations and any other obligations or liabilities of the Co-Borrowers to the Bank, whether arising prior to or subsequent to the closing of the Credit Accommodations.

3.     Deposit Account. The Co-Borrowers volunteered and have agreed to maintain an account with the Bank.

4.     Limitation of Liability. None of the Bank’s depositors, incorporators, trustees or directors, nor any of its officers, employees, counsel or agents shall be liable personally hereunder for any action taken with respect to the Borrower’s application, this commitment letter or the Credit Accommodations. In the event of a dispute with respect to this commitment letter or the Credit Accommodations, the C-Borrowers will look solely to the Bank for any performance of any obligations or for any other claim. It is further agreed that only the Co-Borrowers, and no shareholder, partner, member; affiliate, officer, director or employee of Co-Borrowers, nor any guarantor of the Credit Accommodations, may assert any such claim against the Bank.

5.     Indemnification. The Co-Borrowers agree to indemnify the Bank and hold it harmless from and against all costs, expenses (including fees and expenses of counsel) and liabilities arising out of or relating to any litigation or other proceeding (regardless of whether the Bank is a party thereto) which relate to the proposed transactions, including the financing contemplated hereby or any transactions connected therewith, provided that the Bank will not be indemnified for its gross negligence or willful misconduct. The Co-Borrowers’ obligations under this paragraph shall survive any termination of the Bank’s proposal hereunder and shall be effective regardless of whether definitive loan and collateral documentation is executed or any loans are made respecting the Credit Accommodations.

6.     Bank’s Counsel. Counsel will be engaged to represent the Bank in connection with the Credit Accommodations. The responsibility of the Bank’s attorney(s) is limited to representing the interest of the Bank, notwithstanding the fact that the Borrower shall be obligated to pay the Bank’s legal fees. Further, the Bank assumes no responsibility to the Co-Borrowers for the acts or omissions of its attorney. The Co-Borrowers may elect to engage their own attorney.

PLEASE BE ADVISED THAT THE INTERESTS OF THE CO-BORROWERS, THE GUARANTORS (IF ANY) AND THE BANK ARE OR MAY BE DIFFERENT AND MAY CONFLICT AND THAT BANK’S COUNSEL REPRESENTS THE BANK ONLY AND NOT THE CO-BORROWERS OR ANY GUARANTORS. THE CO-BORROWERS AND ANY GUARANTORS ARE ADVISED TO EMPLOY AN ATTORNEY OF THEIR CHOICE LICENSED TO PRACTICE LAW IN THE STATE OF NEW JERSEY TO REPRESENT THEIR INTERESTS.

9


THE CO-BORROWERS AND THE BANK AGREE THAT THE CO-BORROWERS WILL REIMBURSE THE BANK FOR ALL FEES AND EXPENSES OF BANK’S COUNSEL INCURRED IN REPRESENTING THE BANK IN THE SUBJECT TRANSACTIONS, INCLUDING, BUT NOT LIMITED TO, PREPARATION OF LOAN DOCUMENTATION, NEGOTIATION OF ALL LOAN DOCUMENTATION, PREPARATION AND REVIEW OF PRE-CLOSING DOCUMENTS AND MATERIALS REQUIRED BY THE BANK AND PERFORMANCE OF CUSTOMARY CLOSING AND POST-CLOSING TASKS. THE BANK’S COUNSEL’S FEE WILL BE BASED UPON THE ACTUAL AMOUNT OF TIME EXPENDED IN SUCH REPRESENTATION OF THE BANK, MULTIPLIED BY THE APPLICABLE HOURLY RATES OF THE ATTORNEYS INVOLVED IN SUCH TASKS. THE EXPENSES OF THE BANK’S COUNSEL WILL INCLUDE OUT-OF-POCKET COSTS AND DISBURSEMENTS INCURRED BY SUCH COUNSEL INCLUDING, BUT NOT LIMITED TO, POSTAGE, CARRIER SERVICES, PHOTOCOPYING CHARGES, TELEPHONE AND FAX CHARGES, CHARGES FOR LEGAL SEARCHES, RECORDING AND FILING FEES AND OTHER CUSTOMARY DISBURSEMENTS RELATED TO THE CLOSING OF SUCH LOANS.

7.     Limitations on Transfer. This commitment letter and the Credit Accommodations and any collateral for the Credit Accommodations shall not be assigned or transferred by the Co-Borrowers, nor there any sale or transfer of ownership of any interest in the Co-Borrowers without the Bank’s prior written consent. No junior mortgage, deed of trust or other encumbrance on the collateral securing the Credit Accommodations or any other assets of Co-Borrowers shall be permitted without the Bank’s prior written consent.

8.     Additional Terms. This commitment letter does not include all the terms and conditions that will be covered in the Bank’s legal documentation for the Credit Accommodations, but it does state the essential business terms of the Bank’s proposal. These terms have been approved in reliance on the financial statements, projections, and other information provided by the Co-Borrowers to the Bank, and is therefore conditional upon there being no material adverse change in the Co-Borrower’s (or any guarantor’s) financial condition or any adverse change, governmental or judicial action concerning the Co-Borrower’s business or assets. In addition, the extension of any financial accommodation by the Bank is subject to the execution of, and compliance with, documentation that is satisfactory to the Bank and its counsel, which shall include additional terms and conditions, including without limitation additional reports, as well as the filing by Bank, in its discretion, of initial financing statements. When definitive documentation in respect of the Credit Accommodations has been executed and the initial borrowing thereunder has been incurred, the terms and conditions of this letter shall be superseded and replaced by such definitive loan documentation.

9.     Supersedes Prior Dealings. This commitment letter supersedes Co-Borrowers’ application for the Credit Accommodations and any other prior dealings between the Co-Borrowers and its agents and the Bank in connection with the Credit Accommodations.

10

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