$5,000,000
Floating Rate% MMCapS/SM/
RESOURCE CAPITAL TRUST II
PLACEMENT AGREEMENT
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New York, New York
November 14, ▇▇▇▇
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ & PARTNERS, L.P.
▇ ▇▇▇▇ ▇▇/▇▇/▇▇▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Resource Capital Trust II (the "Trust"), a statutory business trust
organized under the Delaware Business Trust Act, 12 Del. C. Section 3801 et seq.
-- ---
(the "Delaware Act"), and Resource Bankshares Corporation, a Virginia
corporation (the "Company" and together with the Trust, the "Offerors"), confirm
their agreement (the "Agreement") with Sandler ▇'▇▇▇▇▇ & Partners, L.P., as
agent of the Offerors (the "Placement Agent"), with respect to the issue and
sale by the Trust and the placement by the Placement Agent of $5,000,000
Floating Rate MMCapS/SM/ (liquidation amount of $1,000 per security) of the
Trust bearing a variable distribution rate per annum, reset semi-annually, equal
to LIBOR (as defined in the Indenture (as defined below)) plus 3.75% provided,
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that the applicable interest rate may not exceed 11.0% through the interest
payment date in December, 2006 (the "Capital Securities"). The Capital
Securities will be guaranteed by the Company to the extent provided in the
Guarantee Agreement, to be dated as of the Closing Time (as defined in Section 2
hereof) (the "Guarantee Agreement"), between the Company and Wilmington Trust
Company, as trustee (the "Guarantee Trustee"), with respect to distributions and
payments upon liquidation, redemption and otherwise.
The entire proceeds from the sale of the Capital Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities"), and will be used by the Trust
to purchase $5,155,000 aggregate principal amount of Floating Rate Junior
Subordinated Debt Securities due December 8, 2031 (the "Subordinated Debt
Securities") issued by the Company. The Capital Securities and the Common
Securities will be issued pursuant to the Amended and Restated Declaration of
Trust, to be dated as of the Closing Time (the "Declaration"), among the
Company, as sponsor, the Administrators named therein (the "Administrators"),
Wilmington Trust Company, as institutional trustee (the "Institutional
Trustee"), Wilmington Trust Company, as Delaware trustee (the "Delaware
Trustee"), and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust. The Subordinated Debt Securities will be issued
pursuant to the Indenture, to be dated as of the Closing Time (the "Indenture"),
between the Company and Wilmington Trust Company, as indenture trustee (the
"Indenture Trustee"). The Indenture, the Guarantee Agreement, the Declaration,
this Agreement and the Subscription Agreement (as
defined in Section 2(a) hereof) are hereinafter referred to collectively as the
"Operative Documents."
SECTION 1. Representations and Warranties.
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(a) The Trust and the Company, jointly and severally, represent and
warrant to the Placement Agent and the Purchaser (as defined in Section 2(a)
hereof) of Capital Securities as of the date hereof and as of the Closing Time,
and agree with the Placement Agent and the Purchaser, as follows:
(i) Similar Offerings. The Offerors have not, directly or
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indirectly, solicited any offer to buy or offered to sell, and will not,
directly or indirectly, solicit any offer to buy or offer to sell, in the United
States or to any United States citizen or resident, any security which is or
would be integrated with the sale of the Capital Securities in a manner that
would require the Capital Securities to be registered under the Securities Act
of 1933, as amended (the "Act").
(ii) Incorporated Documents. The documents of the Company filed
----------------------
with the Securities and Exchange Commission (the "Commission") in accordance
with the Securities Exchange Act of 1934, as amended (the "1934 Act"), from and
including the commencement of the fiscal year covered by the Company's most
recent Annual Report on Form 10-K, at the time they were or hereafter are filed
by the Company with the Commission (collectively, the "1934 Act Reports"),
complied and will comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder (the "1934
Act Regulations"), and, at the date of this Agreement and at the Closing Time,
do not and will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and other than such instruments, agreements, contracts and
other documents as are filed as exhibits to the Company's annual report on Form
10-K, quarterly reports on Form 10-Q or current reports on Form 8-K, there are
no instruments, agreements, contracts or documents of a character described in
Item 601 of Regulation S-K promulgated by the Commission to which the Company or
any of its subsidiaries is a party.
(iii) Independent Accountants. The accountants of the Company who
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certified the financial statements included in the 1934 Act Reports are
independent public accountants of the Company and its subsidiaries within the
meaning of the 1933 Act and the rules and regulations of the Commission
thereunder (the "1933 Act Regulations").
(iv) Financial Statements and Information. The consolidated
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historical financial statements of the Company, together with the related
schedules and notes, included in the 1934 Act Reports present fairly, in all
material respects, the respective consolidated financial positions of the
Company and its consolidated subsidiaries at the respective dates indicated, and
the consolidated statements of income, changes in stockholders' equity and cash
flows of the Company and its consolidated subsidiaries for the respective
periods specified; said financial statements have been prepared in conformity
with generally accepted accounting principles in the United States applied on a
consistent basis throughout the periods
2
involved, except as disclosed in the notes to such financial statements; the
supporting schedules, if any, included in the 1934 Act Reports present fairly,
in all material respects, the information required to be stated therein and any
pro forma financial statements and the related notes thereto included in the
1934 Act Reports present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with respect
to pro forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein.
(v) No Material Adverse Change. Since the respective dates as of
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which information is given in the 1934 Act Reports, there has not been (A) any
material adverse change in the condition, financial, regulatory or otherwise, or
in the earnings, business affairs or business prospects of the Trust or of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse Effect") 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.
(vi) Regulatory Enforcement Matters. Neither the Company or any
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of its subsidiaries is subject or is party to, or has received any notice or
advice that any of them may become subject or party to, any investigation with
respect to, any cease-and-desist order, agreement, 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 of, any
Regulatory Agency (as defined below) that 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 Agreement"), nor has the Company or any of its
subsidiaries been advised by any Regulatory Agency that it is considering
issuing or requesting any such Regulatory Agreement; 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 Company or any of its
subsidiaries which, in the reasonable judgment of the Company, is expected to
result in a Material Adverse Effect. 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 Company or any of its subsidiaries.
(vii) No Undisclosed Liabilities. Neither the Company nor any of
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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 giving rise to any such liability), except (i)
for liabilities set forth in the financial statements referred to in section
1(a)(iv) above and (ii) normal fluctuations in the amount of the
3
liabilities referred to in clause (i) above occurring in the ordinary course of
business of the Company and all of its subsidiaries since the date of the most
recent balance sheet included in such financial statements.
(viii) Good Standing of the Company. The Company has been duly
----------------------------
organized and is validly existing as a corporation in good standing under the
laws of the State of Virginia and has full power and authority under such laws
to own, lease and operate its properties and to conduct its business and to
enter into and perform its obligations under each of the Operative Documents to
which it is a party; and the Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended.
(ix) Good Standing of the Subsidiaries. Each "significant
---------------------------------
subsidiary" (as defined in Rule 1-02 of Regulation S-X) of the Company (a
"Significant Subsidiary") has been duly organized and is validly existing as an
entity in good standing under the laws of the jurisdiction in which it is
chartered and has full power and authority under such laws to own, lease and
operate its properties and to conduct its current and contemplated business; and
the deposit accounts of each of the Company's subsidiary banks are insured up to
the applicable limits by the Bank Insurance Fund of the Federal Deposit
Insurance Corporation (the "FDIC") to the fullest extent permitted by law and
the rules and regulations of the FDIC, and no proceeding for the revocation or
termination of such insurance is pending or, to the knowledge of the Company,
threatened.
(x) Foreign Qualifications. The Company and its subsidiaries are
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each duly qualified as a foreign corporation to transact business and are each
in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing, in the
reasonable judgment of the Company, is not expected to result in a Material
Adverse Effect.
(xi) Capital Stock Duly Authorized and Validly Issued. All of the
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issued and outstanding capital stock of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; all of the issued and
outstanding capital stock of each subsidiary of the Company has been duly
authorized and validly issued, is fully paid and nonassessable and is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable right; and
none of the issued and outstanding capital stock of the Company or its
Significant Subsidiaries was issued in violation of any preemptive or similar
rights arising by operation of law, under the charter, by-laws or code of
regulations of the Company or any of its Significant Subsidiaries or under any
agreement to which the Company or any of its Significant Subsidiaries is a
party.
(xii) Good Standing of the Trust. The Trust has been duly created
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and is validly existing in good standing as a business trust under the Delaware
Act with the power and authority to own property and to conduct its business as
provided in the Declaration, to enter into and perform its obligations under the
Operative Documents to which it is a party, as applicable, and to issue the
Capital Securities and the Common Securities; the Trust is not a party to or
otherwise bound by any agreement other than the Operative Documents to
4
which it is a party; and the Trust is, and will be, under current law,
classified for United States federal income tax purposes as a grantor trust and
not as an association taxable as a corporation.
(xiii) Authorization of Common Securities. At the Closing Time,
----------------------------------
the Common Securities will have been duly authorized for issuance by the Trust
pursuant to the Declaration and, when duly issued and executed in accordance
with the Declaration and delivered by the Trust to the Company against payment
therefor in accordance with the subscription agreement therefor, will be validly
issued and fully paid and nonassessable undivided common beneficial ownership
interests in the assets of the Trust; the issuance of the Common Securities is
not subject to preemptive or other similar rights; and at the Closing Time, all
of the issued and outstanding Common Securities of the Trust will be owned
directly by the Company, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equitable right.
(xiv) Authorization of Capital Securities. At the Closing Time,
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the Capital Securities will have been duly authorized for issuance by the Trust
pursuant to the Declaration, and when duly issued, executed and authenticated in
accordance with the Declaration and delivered by the Trust against payment
therefor as provided herein and in the Subscription Agreement, will be validly
issued and fully paid and nonassessable undivided preferred beneficial ownership
interests in the assets of the Trust; the issuance of the Capital Securities
will not be subject to preemptive or other similar rights; and the Capital
Securities will be in the form contemplated by, and entitled to the benefits of,
the Declaration.
(xv) Authorization of Agreement. This Agreement has been duly
--------------------------
authorized, executed and delivered by each of the Offerors.
(xvi) Authorization of Declaration. The Declaration has been duly
----------------------------
authorized by the Company and, at the Closing Time, will have been duly executed
and delivered by the Company and the Administrators, and assuming due
authorization, execution and delivery of the Declaration by the Institutional
Trustee and the Delaware Trustee, the Declaration will be, at the Closing Time,
a valid, legal and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except to the extent that enforceability
may be limited by (a) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws now or hereafter in effect relating
to creditors' rights generally and (b) general principles of equity (regardless
of whether enforceability is considered in a proceeding at law or in equity)
(collectively, the "Enforceability Exceptions").
(xvii) Authorization of Guarantee Agreement. The Guarantee
------------------------------------
Agreement has been duly authorized by the Company; and, at the Closing Time, the
Guarantee Agreement will have been duly executed and delivered by the Company
and will constitute a valid, legal and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforceability may be limited by the Enforceability Exceptions.
(xviii) Authorization of Indenture. The Indenture has been duly
--------------------------
authorized by the Company and, at the Closing Time, will have been duly executed
and delivered by the Company and will constitute a valid, legal and binding
agreement of the
5
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforceability may be limited by the Enforceability Exceptions.
(xix) Authorization of Subordinated Debt Securities. The
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Subordinated Debt Securities have been duly authorized by the Company; at the
Closing Time, the Subordinated Debt Securities will have been duly executed by
the Company and, when authenticated in the manner provided for in the Indenture
and delivered by the Company to the Trust against payment therefor as
contemplated in the subscription agreement therefor, will constitute valid,
legal and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforceability may be
limited by the Enforceability Exceptions; the Subordinated Debt Securities will
be in the form contemplated by, and entitled to the benefits of, the Indenture;
and the Company has no present intention to exercise its option to defer
payments of interest on the Subordinated Debt Securities as provided in the
Indenture.
(xx) Authorization of Administrators. Each of the Administrators
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of the Trust is an officer or employee of the Company and has been duly
authorized by the Company to execute and deliver the Declaration.
(xxi) Not an Investment Company. Neither the Trust nor the
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Company is, and immediately following consummation of the transactions
contemplated hereby and the application of the net proceeds therefrom neither
the Trust nor the Company will be, an "investment company" required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(xxii) Absence of Defaults and Conflicts. The Trust is not in
---------------------------------
violation of the trust certificate of the Trust filed with the State of Delaware
(the "Trust Certificate") or the Declaration, and neither the Company nor any of
its Significant Subsidiaries is in violation of its charter, by-laws or code of
regulations; none of the Trust, the Company or any subsidiary of the Company is
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or instrument to
which it is a party or by which it or any of them may be bound or to which any
of its properties or assets is subject (collectively, "Agreements and
Instruments"), except for such defaults under Agreements and Instruments that,
in the reasonable judgment of the Company, are not expected to result in a
Material Adverse Effect; and the execution, delivery and performance of the
Operative Documents by the Trust or the Company, as the case may be, the
issuance, sale and delivery of the Capital Securities and the Subordinated Debt
Securities, the consummation of the transactions contemplated by the Operative
Documents, and compliance by the Offerors with the terms of the Operative
Documents to which they are a party have been duly authorized by all necessary
corporate action on the part of the Company and, at the Closing Time, will have
been duly authorized by all necessary action on the part of the Trust, and do
not and will not, whether with or without the giving of notice or passage of
time or both, violate, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any, security interest, mortgage, pledge, lien, charge,
encumbrance, claim or equitable right upon any properties or assets of the
Trust, the Company or any of its Significant Subsidiaries pursuant to any of the
Agreements and Instruments, nor will such action result in
6
any violation of the provisions of the charter, by-laws or code of regulations
of the Company or any of its Significant Subsidiaries or the Declaration or the
Trust Certificate, or violation by the Company or any of its Significant
Subsidiaries of any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government authority, agency or
instrumentality or court, domestic or foreign, having jurisdiction over the
Trust or the Company or any of its Significant Subsidiaries or their respective
properties or assets (collectively, "Governmental Entities"). 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
Significant Subsidiaries prior to its scheduled maturity.
(xxiii) Absence of Labor Dispute. No labor dispute with the
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employees of the Company or any of its subsidiaries exists or, to the knowledge
of the executive officers of the Company, is imminent, which, in the reasonable
judgment of the Company, is expected to result in a Material Adverse Effect.
(xxiv) Absence of Proceedings. There is no action, suit,
----------------------
proceeding, inquiry or investigation before or brought by any Governmental
Entity, now pending, or, to the knowledge of the Trust or the Company,
threatened, against or affecting the Trust or the Company or any of its
subsidiaries, which, in the reasonable judgment of the Trust or the Company, is
expected to result in a Material Adverse Effect or materially and adversely
affect the consummation of the transactions contemplated by the Operative
Documents or the performance by the Trust or the Company of its obligations
hereunder or thereunder; 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 the subject,
including ordinary routine litigation incidental to the business, are not, in
the reasonable judgment of the Company or the Trust, expected to result in a
Material Adverse Effect.
(xxv) Absence of Further Requirements. No filing with, or
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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 obligations under the Operative Documents, as applicable, or
the consummation by the Trust and the Company of the transactions contemplated
by the Operative Documents.
(xxvi) Possession of Licenses and Permits. Each of the Trust, the
----------------------------------
Company and the subsidiaries of the Company possesses such permits, licenses,
approvals, consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate Governmental Entities necessary to conduct
the business now operated by them that is material to the Trust or the Company
and its subsidiaries considered as one enterprise; each of the Trust, the
Company and the subsidiaries of the Company is in compliance with the terms and
conditions of all of its Governmental Licenses, except where the failure so to
comply, in the reasonable judgment of the Company, is not expected to,
singularly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect, in the reasonable judgment of the
Company, is not
7
expected to have a Material Adverse Effect; and none of the Trust, the Company
or any subsidiary of the Company has received any notice of proceedings relating
to the revocation or modification of any such Governmental Licenses which,
singularly or in the aggregate, in the reasonable judgment of the Company or the
Trust, is expected to result in a Material Adverse Effect.
(xxvii) Title to Property. Each of the Trust, the Company and the
-----------------
subsidiaries of the Company has good and marketable title to all of their
respective real and personal properties, in each case free and clear of all
liens, encumbrances and defects, except such as, in the reasonable judgment of
the Trust or the Company, singularly or in the aggregate, are not expected to
result in 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 when the failure of such leases and
subleases to be in full force and effect, in the reasonable judgment of the
Company, singularly or in the aggregate, is not expected to 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 of the leases or subleases under which the Trust, the Company or any
subsidiary of the Company holds properties, 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 when such claim, in the
reasonable judgment of the Company, singularly or in the aggregate, is not
expected to have a Material Adverse Effect.
(xxviii) Stabilization. The Company has not taken and will not
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take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of the
price of the Capital Securities.
(xxix) No General Solicitation. Neither the Trust or the Company
-----------------------
nor any of their Affiliates (as defined in Rule 501(b) under the ▇▇▇▇ ▇▇▇) or
any person acting on its or any of their behalf (other than the Placement Agent,
as to whom the Offerors make no representation) has engaged or will engage, in
connection with the offering of the Capital Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
1933 Act.
(xxx) No Directed Selling Efforts. Neither the Trust or the
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Company nor any of their Affiliates or any person acting on its or any of their
behalf (other than the Placement Agent, as to whom the Offerors make no
representation) has engaged or will engage in any directed selling efforts
within the meaning of Regulation S under the 1933 Act ("Regulation S") with
respect to the offering of the Capital Securities.
(xxxi) No Registration. Subject to compliance by the Placement
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Agent with the relevant provisions of Section 6 hereof, it is not necessary in
connection with the offer, sale and delivery of the Capital Securities by the
Trust in the manner contemplated by this Agreement to register the Capital
Securities, the guarantee as described in the Guarantee Agreement or the
Subordinated Debt Securities under the 1933 Act or to qualify the Declaration,
the Guarantee Agreement or the Indenture under the Trust Indenture Act of 1939,
as amended.
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(xxxii) No Integration. Within the period of the preceding six
--------------
months prior to the date hereof, neither the Company or the Trust nor any other
person acting on behalf of the Company or the Trust has offered or sold to any
person any Capital Securities, or any securities of the same or a similar class
as the Capital Securities, other than the Capital Securities referred to herein.
(b) Any certificate signed by any Trustee of the Trust or any duly
authorized officer of the Company or any of its subsidiaries and delivered to
you or to counsel for the Placement Agent shall be deemed a representation and
warranty by the Trust or the Company, as the case may be, to the Placement Agent
as to the matters covered thereby.
SECTION 2. Sale and Delivery through Placement Agent; Closing.
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(a) The Offerors propose to issue and sell the Capital Securities on
November 28, 2001 (or such other time mutually agreed to by the Offerors and the
Placement Agent) (the "Closing Time") to MM Community Funding II, Ltd, a newly
formed company with limited liability incorporated under the laws of the Cayman
Islands (the "Purchaser"), pursuant to the terms of the Capital Securities
Subscription Agreement, to be entered into on or prior to the Closing Time (the
"Subscription Agreement"), between the Offerors and the Purchaser. The Offerors
agree to execute the Subscription Agreement with the Purchaser and to return the
same to the Placement Agent. In addition, the Offerors agree that the Purchaser
shall be entitled to the benefit of, and to rely on, the provisions of this
Agreement to the extent such provisions address or relate to the Purchaser or
the Capital Securities to be purchased by the Purchaser.
(b) The Offerors hereby grant to the Placement Agent the exclusive
right to arrange the placement of the Capital Securities with the Purchaser on
their behalf. The Placement Agent accepts such right and agrees to use its best
efforts, on and prior to the Closing Time, to effect such placement.
(c) Deliveries of certificates for the Capital Securities shall be
made by the Trust to or on behalf of the Purchaser at the offices of Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in The City of New York, and payment of the purchase
price for the Capital Securities shall be made by the Purchaser to the Trust by
wire transfer of immediately available funds to a bank designated by the Company
contemporaneous with closing at the Closing Time.
Certificates for the Capital Securities in the aggregate liquidation amount
thereof shall be registered in the name of the Purchaser.
(d) As compensation to the Placement Agent for its placement of the
Capital Securities and in view of the fact that the proceeds of the sale of the
Capital Securities will be used to purchase the Subordinated Debt Securities of
the Company, the Company hereby agrees to pay at the Closing Time to the
Placement Agent in immediately available funds a commission of $30.00 per
Capital Security to be delivered by the Trust hereunder at the Closing Time.
(e) In performing its duties under this Agreement, the Placement Agent
shall be entitled to rely upon any notice, signature or writing which the
Placement Agent
9
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 either to it or the Purchaser. In addition, 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 it 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 3. Notice of Material Events. The Offerors covenant with the
-------------------------
Placement Agent and the Purchaser that prior to the completion of the initial
placement of the Capital Securities through the Placement Agent, the Offerors
will immediately notify the Placement Agent, and confirm such notice in writing,
of any event or development that, in the reasonable judgment of the Company, is
expected to result in a Material Adverse Effect.
SECTION 4. Payment of Expenses. Whether or not this Agreement or the
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Subscription Agreement is terminated or the sale of the Capital Securities is
consummated, the Company, as borrower under the Subordinated Debt Securities,
will pay all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, issuance and delivery of the
certificates for the Capital Securities and Subordinated Debt Securities, (ii)
the fees and disbursements of the Company's counsel, accountants and other
advisors, and (iii) the fees and expenses of any trustee appointed under any of
the Operative Documents, including the fees and disbursements of counsel for
such trustees.
SECTION 5. Conditions of Placement Agent's Obligations. The obligations of
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the Placement Agent and the Purchaser at the Closing Time are subject to the
accuracy of the representations and warranties of the Offerors contained in
Section 1 hereof or in certificates of any Administrator of the Trust or any
officer of the Company or any of its subsidiaries delivered pursuant to the
provisions hereof, to the performance by the Offerors of their obligations
hereunder, and to the following further conditions:
(a) Opinion of Counsel for Offerors. At the Closing Time, the
Placement Agent shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, special counsel to the Offerors, in
substantially the form set out in Annex A hereto, in form and substance
reasonably satisfactory to counsel for the Placement Agent. Such counsel may
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of Administrators of the
Trust, officers of the Company or any of its subsidiaries and public officials.
(b) Opinion of Special Delaware Counsel for the Trust. At the Closing
Time, the Placement Agent shall have received the favorable opinion, dated as of
the Closing Time, of Morris, James, Hitchens & ▇▇▇▇▇▇▇▇ LLP, special Delaware
counsel for the Company and the Trust, in substantially the form set out in
Annex B hereto, in form and substance reasonably satisfactory to counsel for the
Placement Agent.
10
(c) Opinion of Special Tax Counsel for the Offerors. At the Closing
Time, the Placement Agent shall have received an opinion, dated as of the
Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood, special tax counsel to the Offerors
that (i) the Trust will be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable as a corporation
and (ii) the Subordinated Debt Securities will constitute indebtedness of the
Company for United States federal income tax purposes, in substantially the form
set out in Annex C hereto. Such opinion may be conditioned on, among other
things, the initial and continuing accuracy of the facts, financial and other
information, covenants and representations set forth in certificates of officers
of the Company and other documents deemed necessary for such opinion.
(d) Opinion of Counsel to the Guarantee Trustee, the Institutional
Trustee, the Delaware Trustee and the Indenture Trustee. At the Closing Time,
the Placement Agent shall have received the favorable opinion, dated as of the
Closing Time, of Morris, James, Hitchens & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Guarantee Trustee, the Institutional Trustee, the Delaware Trustee and the
Indenture Trustee, in substantially the form set out in Annexes D and E hereto,
in form and substance reasonably satisfactory to counsel for the Placement
Agent.
(e) Certificates. At the Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the 1934 Act Reports, any Material Adverse Effect, and the Placement
Agent shall have received a certificate of the Chairman, the Chief Executive
Officer, the President, any Executive Vice President or any Vice President of
the Company and of the Chief Financial Officer or Chief Accounting Officer of
the Company and a certificate of an Administrator of the Trust, dated as of the
Closing Time, to the effect that (i) there has been no such Material Adverse
Effect, (ii) the representations and warranties in Section 1 hereof were true
and correct when made and are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, and (iii) the Offerors have
complied with all agreements and satisfied all conditions on their part to be
performed or satisfied at or prior to the Closing Time.
(f) Maintenance of Ratings. Between the date of this Agreement and the
Closing Time, there shall not have occurred a downgrading in or withdrawal of
the rating assigned to the Company's debt securities or preferred stock by any
nationally recognized statistical rating organization, and no such organization
shall have publicly announced that it has under surveillance or review its
rating of the Company's debt securities or preferred stock.
(g) Sale of Securities. The Purchaser shall have sold securities
issued by it in such an amount that the net proceeds therefrom shall be
available at the Closing Time and shall be sufficient to purchase the Capital
Securities and all other capital securities contemplated in agreements similar
to this Agreement and the Subscription Agreement.
(h) Additional Documents. At the Closing Time, the Placement Agent and
the Purchaser shall have been furnished such documents and opinions as they may
reasonably request in connection with the issue, sale and placement of the
Capital Securities; and all proceedings taken by the Offerors in connection with
the issuance, sale and placement of the Capital Securities shall be satisfactory
in form and substance to the Placement Agent and the Purchaser.
11
(i) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Placement Agent by notice to the Offerors at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 hereof
and except that Sections 7 and 8 hereof shall survive any such termination and
remain in full force and effect.
SECTION 6. Offers and Sales of the Capital Securities.
-------------------------------------------
(a) Offer and Sale Procedures. The Placement Agent and the Offerors
hereby establish and agree to observe the following provisions with respect to
the offer, issue, sale and placement of the Capital Securities:
(i) Offers and Sales only to the Purchaser. Offers and sales of
---------------------------------------
the Capital Securities will be made in the United States or pursuant to
Regulation S outside the United States only to the Purchaser in a transaction
not requiring registration under the 1933 Act.
(ii) No General Solicitation. No general solicitation or general
------------------------
advertising (within the meaning of Rule 502(c) under the ▇▇▇▇ ▇▇▇) will be used
in connection with the offering of the Capital Securities.
(iii) No Directed Selling Efforts. No directed selling efforts
----------------------------
(within the meaning of Regulation S) will be used with respect to the offering
of the Capital Securities.
(iv) Purchaser Notification. Prior to or contemporaneously with
-----------------------
the purchase of the Capital Securities by the Purchaser, the Placement Agent
will take reasonable steps to inform the Purchaser that the Capital Securities
(A) have not been and will not be registered under the 1933 Act, (B) are being
sold to them without registration under the 1933 Act in accordance with an
exemption from registration under the 1933 Act and (C) may not be offered, sold
or otherwise transferred except (1) to the Company or (2) in accordance with (x)
Rule 144A to a person whom the seller reasonably believes is a Qualified
Institutional Buyer (as defined in Rule 144A under the Securities Act ("Rule
144A")) that is purchasing such Securities for its own account or for the
account of a Qualified Institutional Buyer to whom notice is given that the
offer, sale or transfer is being made in reliance on Rule 144A, (y) Regulation S
to a non-U.S. person in an offshore transaction or (z) any other available
exemption from registration under the 1933 Act (including the exemption provided
by Rule 144).
(b) Covenants of the Offerors. Each of the Offerors, jointly and
severally, covenant with the Placement Agent and the Purchaser as follows:
(i) Due Diligence. In connection with the initial placement of
-------------
the Capital Securities, the Offerors agree that, prior to any offer or sale of
the Capital Securities through the Placement Agent, the Placement Agent and the
Purchaser shall have the right to make reasonable inquiries into the business of
the Trust, the Company and the subsidiaries of the Company. The Offerors also
agree to provide answers to the Placement Agent and the Purchaser, if requested,
concerning the Trust, the Company and the subsidiaries of the Company
12
(to the extent that such information is available or can be acquired and made
available without unreasonable effort or expense and to the extent the provision
thereof is not prohibited by applicable law) and the terms and conditions of the
offering of the Capital Securities and the Subordinated Debt Securities.
(ii) Integration. The Offerors agree that they will not, and will
-----------
cause their Affiliates not to, make any offer or sale of securities of the
Offerors of any class if, as a result of the doctrine of "integration" referred
to in Rule 502 under the 1933 Act, such offer or sale would render invalid the
exemption from the registration requirements of the 1933 Act provided by Section
4(2) thereof or by Rule 144A or otherwise.
(iii) Restriction on Repurchases. Until the expiration of two (2)
--------------------------
years (or such shorter period as may hereafter be referred to in Rule 144(k) (or
similar successor rule)) after the original issuance of the Capital Securities,
the Offerors will not, and will cause their Affiliates not to, purchase or agree
to purchase or otherwise acquire any Capital Securities which are "restricted
securities" (as such term is defined under Rule 144(a)(3) under the 1933 Act),
whether as beneficial owner or otherwise unless, immediately upon any such
purchase, the Offerors or any Affiliate shall submit such Capital Securities to
the Institutional Trustee for cancellation.
SECTION 7. Indemnification.
(a) Indemnification of the Placement Agent and the Purchaser. The
Offerors agree, jointly and severally, to indemnify and hold harmless: (x) the
Placement Agent and the Purchaser, (y) each person, if any, who controls (within
the meaning of Section 15 of the 1933 Act or ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇) the
Placement Agent or the Purchaser (each such person, a "controlling person") and
(z) the respective partners, directors, officers, employees and agents of the
Placement Agent and the Purchaser or any such controlling person, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, relating to or arising out of, or based upon,
in whole or in part, (A) any untrue statement or alleged untrue statement of a
material fact included in the 1934 Act Reports, or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; (B) any untrue statement or alleged untrue statement of material
fact contained in any information (whether written or oral) or documents
executed in favor of or furnished or made available to the Placement Agent or
the Purchaser by the Offerors; (C) any omission or alleged omission to state in
any information (whether written or oral) or documents executed in favor of or
furnished or made available to the Placement Agent or the Purchaser by the
Offerors a material fact necessary to make the statements therein not
misleading; or (D) the breach or alleged breach of any representation, warranty
and agreement of any Offeror contained herein or in the Subscription Agreement;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or
13
any such alleged untrue statement or omission or breach or alleged breach of any
such representation, warranty or agreement; provided that (subject to Section
7(c) hereof) any such settlement is effected with the written consent of the
Offerors; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Placement Agent),
reasonably incurred 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 statement or omission, or any such alleged untrue statement or omission,
or breach or alleged breach of any such representation, warranty or agreement,
to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that the Company shall indemnify and hold harmless the
Trust against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, which is due from the Trust pursuant to the foregoing.
(b) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof, and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. Counsel to the indemnified parties shall be selected
by the Placement Agent. 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. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 7 or Section 8 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(c) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have validly requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into
14
and (iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement,
provided, however, that an indemnifying party shall not be liable for any such
settlement effected without its consent if such indemnifying party (1)
reimburses such indemnified party with respect to those fees and expenses of
counsel that it determines in good faith are reasonable and (2) provides written
notice within ten (10) days after receipt of the request for reimbursement to
the indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
SECTION 8. Contribution. In order to provide for just and equitable
------------
contribution in circumstances under which the indemnification provided for in
Section 7 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
Capital Securities pursuant to this Agreement 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.
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
Capital Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Capital Securities pursuant to this Agreement (before deducting expenses)
received by the Offerors and the total commission received by the Placement
Agent bear to the aggregate of such net proceeds and commissions.
The Offerors and the Placement Agent agree that it would not be just and
equitable if contribution pursuant to this Section 8 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. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 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.
Notwithstanding the provisions of this Section 8, the Placement Agent shall
not be required to contribute any amount in excess of the total commissions
received by it.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
15
For purposes of this Section 8, the Purchaser, each person, if any, who
controls the Placement Agent or the Purchaser within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act and the respective partners,
directors, officers, employees and agents of the Placement Agent, the Purchaser
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 Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Offerors.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or Trustees of the Trust submitted
pursuant hereto shall remain operative and in full force and effect, and shall
survive delivery of the Capital Securities by the Trust.
SECTION 10. Termination of Agreement.
------------------------
(a) Termination; General. The Placement Agent may terminate this
Agreement, by notice to the Offerors, at any time at or prior to the Closing
Time if, since the time of execution of this Agreement or, in the case of (i),
since the respective dates as of which information is given in the 1934 Act
Reports, (i) there has occurred any Material Adverse Effect, or (ii) there has
occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or any other calamity
or crisis, or any change or development involving political, financial or
economic conditions, in each case the effect of which is such as to make it, in
the judgment of the Placement Agent, impracticable to market the Capital
Securities or to enforce contracts for the sale of the Capital Securities, or
(iii) trading in any securities of the Company has been suspended or limited by
the Commission or any national stock exchange or market on or in which such
securities are traded or quoted, or if trading generally on the American Stock
Exchange, the New York Stock Exchange or the Nasdaq National Market has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers or any other governmental authority, or (iv) a banking
moratorium has been declared by United States federal, Delaware or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 7 and 8 hereof shall survive such termination and remain in full force and
effect.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Placement
Agent shall be directed to Sandler ▇'▇▇▇▇▇ & Partners, L.P., as follows: to date
until March 1, 2002, 9 West ▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Principal, and on and after March 1, 2002,
▇▇▇ ▇/▇▇/ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Principal, in each case with a copy to Cleary, Gottlieb, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.; and
notices to the Offerors shall be directed to Resource Bankshares Corporation,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood, ▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon each of the Placement Agent and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Placement Agent, the Purchaser and the Offerors, and their respective successors
and the controlling persons and other persons referred to in Sections 1, 7 and 8
hereof and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Placement Agent, the Purchaser
and the Offerors and their respective successors, and said controlling persons
and other persons and their heirs and legal representatives, and for the benefit
of no other person, firm or corporation.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAW PRINCIPLES.
EACH OF THE TRUST AND THE COMPANY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES
(INCLUDING, WITHOUT LIMITATION, THE TRUST), HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE
CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO
THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY
DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH COURT. EACH OF THE TRUST AND THE COMPANY, ON BEHALF OF ITSELF AND ITS
SUBSIDIARIES (INCLUDING, WITHOUT LIMITATION, THE TRUST), IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
SECTION 14. Effect of Headings. The Article and Section headings herein are
------------------
for convenience only and shall not affect the construction hereof.
17
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Placement Agent and the Offerors in accordance with its terms.
Very truly yours,
RESOURCE BANKSHARES CORPORATION
By:
-------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
RESOURCE CAPITAL TRUST II
By:
-------------------------------------
▇.▇. ▇▇▇▇▇, ▇▇.
Administrator
CONFIRMED AND ACCEPTED,
as of the date first above written:
SANDLER ▇'▇▇▇▇▇ & PARTNERS, L.P.
By: Sandler ▇'▇▇▇▇▇ & Partners Corp.,
the sole general partner
By:
---------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
ANNEX A
Pursuant to Section 5(a) of the Placement Agreement, counsel to the Company
shall deliver an opinion in substantially the following form:
1. The Company is incorporated and is validly existing as a corporation in
good standing under the laws of the State of [JURISDICTION OF INCORPORATION].
2. The Company has corporate power and authority to (i) execute and
deliver, and to perform its obligations under, the Operative Documents to which
it is a party and (ii) issue and perform its obligations under the Subordinated
Debt Securities.
3. The Company is registered as [a bank holding company under the Bank
Holding Company Act of 1956, as amended][a financial holding company under the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act][as a savings and loan holding company under the Home
Owners' Loan Act of 1933, as amended].
4. (i) [The][Each] Bank is validly existing and in good standing under the
laws of the jurisdiction of its organization, and (ii) to the best of our
knowledge, all of the issued and outstanding shares of capital stock of the Bank
are owned of record by the Company, directly or through subsidiaries.
5. The deposit accounts of [the] [each] Bank are insured by the Federal
Deposit Insurance Company up to the maximum amount allowable under applicable
law.
6. No consent, approval, authorization or order of or filing, registration
or qualification with any Governmental Entity is required in connection with the
execution and delivery by the Company of the Operative Documents and the
consummation of the transactions contemplated thereby except as have already
been obtained or made.
7. The Trust has been created and is validly existing and in good standing
as a business trust under the Delaware Business Trust Act.
8. Under the Delaware Business Trust Act and the Amended Declaration, the
Trust has the requisite power and authority to (i) own its current properties
and conduct its current business (all as described in the Amended Declaration),
(ii) execute and deliver, and to perform its obligations under, the Operative
Documents to which it is a party, (iii) issue and perform its obligations under
the Capital Securities and the Common Securities and (iv) purchase and hold the
Subordinated Debt Securities.
9. Under the Delaware Business Trust Act and the Amended Declaration, the
execution and delivery by the Trust of the Operative Documents to which it is a
party, and the performance by the Trust of its obligations thereunder, have been
duly authorized by the requisite trust action on the part of the Trust.
10. The issuance and sale by the Trust of the Capital Securities and Common
Securities, the execution, delivery and performance by the Trust of the
Operative Documents to which it is a party, the consummation by the Trust of the
transactions contemplated thereby and
1
compliance by the Trust with its obligations thereunder are not prohibited by
(i) the Amended Declaration or (ii) any applicable statute, governmental rule or
regulation of the State of Delaware.
11. No authorization, approval, consent or order of any Delaware court or
Delaware governmental authority or Delaware agency is required to be obtained by
the Trust solely as a result of the issuance and sale of the Capital Securities
and the Common Securities or the performance by the Trust of its obligations
under the Operative Documents to which it is a party.
12. Assuming that the Trust derives no income from or in connection with
sources within the State of Delaware and has no assets, activities (other than
maintaining the Delaware Trustee and the filing of documents with the Secretary
of State of the State of Delaware) or employees in the State of Delaware, the
holders of the Capital Securities (other than those holders of Capital
Securities 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.
13. Each of the Placement Agreement and the Capital Securities Subscription
Agreement has been duly authorized, executed and delivered by each of the
Company and the Trust.
14. The Amended Declaration has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company and the Administrative Trustees, enforceable against each such party in
accordance with its terms.
15. The Capital Securities and the Common Securities have been duly
authorized for issuance by the Amended Declaration; and the Capital Securities,
when duly issued, executed and authenticated in the manner provided for in the
Amended Declaration and delivered against payment therefor in accordance with
the Capital Securities Subscription Agreement and the Amended Declaration, will
be validly issued and, subject to the qualifications set forth in paragraph 16
below, fully paid and nonassessable undivided beneficial interests in the assets
of the Trust and will entitle the holders thereof to the benefits of the Amended
Declaration.
16. The holders of the Capital Securities, 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; it being understood, however, that the
holders of the Capital Securities may be obligated, pursuant to the Amended
Declaration, to provide (i) indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers or exchanges of
certificates evidencing such capital securities ("Capital Security
Certificates") and the issuance of replacement Capital Security Certificates,
and (ii) security or indemnity in connection with requests of or directions to
the Institutional Trustee to exercise its rights and powers under the Amended
Declaration.
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17. Under the Delaware Business Trust Act and the Amended Declaration, the
issuance of the Capital Securities and the Common Securities by the Trust will
not be subject to preemptive rights.
18. The Common Securities, when duly issued and executed in accordance with
the Amended Declaration and delivered against payment therefor in accordance
with the Amended Declaration and the Common Securities Subscription Agreement,
will be validly issued undivided beneficial interests in the assets of the
Trust.
19. Each of the Operative Documents to which the Trust is a party (other
than the Placement Agreement and the Capital Securities Subscription Agreement,
as to which we have opined in paragraph 13 above) has been duly authorized,
executed and delivered by the Trust and constitutes a valid and binding
agreement of the Trust, enforceable against the Trust in accordance with its
terms.
20. The Guarantee Agreement has been duly authorized, executed, and
delivered by the Company and, assuming the due authorization, execution and
delivery by the Trustee, constitutes a valid and binding instrument of the
Company, enforceable against the Company in accordance with its terms.
21. Each of the Operative Documents to which the Company is a party (other
than the Placement Agreement and the Capital Securities Subscription Agreement,
the Amended Declaration and the Guarantee Agreement, as to which we have opined
in paragraphs 13, 14 and 20 above) has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms.
22. The Subordinated Debt Securities have been duly authorized for issuance
by the Company pursuant to the Indenture and, when executed, authenticated and
delivered in the manner provided for in the Indenture and paid for in accordance
with the Debenture Subscription Agreement, will constitute valid and binding
obligations of the Company and will entitle the holders thereof to the benefits
of the Indenture, enforceable against the Company in accordance with their
terms.
23. 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, will not result in any violation of the charter or bylaws of the
Company or the Bank[s] or the Amended Declaration or the Certificate of Trust.
24. Assuming (i) the accuracy of the representations and warranties, and
compliance with the agreements, contained in the Placement Agreement and the
Capital Securities Subscription Agreement and (ii) that the Capital Securities
are sold in the manner contemplated by, and in accordance with, the Placement
Agreement, the Capital Securities Subscription Agreement and the Amended
Declaration, it is not necessary in connection with the offer, sale and delivery
of the Capital Securities by the Trust to the Purchaser to register the
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Capital Securities, the Guarantee Agreement or the Subordinated Debt Securities
under the 1933 Act or to qualify an indenture under the Trust Indenture Act of
1939, as amended.
25. Neither the Company nor the Trust is, and, following the issuance of
the Capital Securities and the consummation of the transactions contemplated by
the Operative Documents and the application of the proceeds therefrom, neither
the Company nor the Trust will be, an "investment company" required to be
registered under the Investment Company Act of 1940, as amended.
In rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of New York, the corporate laws of the State of Delaware and
the Federal laws of the United States and (B) rely as to matters involving the
application of laws of any jurisdiction other than New York and Delaware or the
United States, to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing believed to be reliable and who
are satisfactory to you and as to matters of fact, to the extent deemed proper,
on certificates of responsible officers of the Company and public officials.
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ANNEX B
Pursuant to Section 5(b) of the Placement Agreement, Morris, James,
Hitchens & ▇▇▇▇▇▇▇▇ LLP shall deliver an opinion in the following form.
(i) The Trust has been duly created and is validly existing as a business
trust in good standing under the Business Trust Act. Under the Business Trust
Act and the Declaration of Trust, the Trust has all requisite trust power and
authority (i) to execute and deliver, and to perform its obligations under, the
Common Securities Subscription Agreement, the Capital Securities Subscription
Agreement, the Debenture Subscription Agreement and the Placement Agreement
(together, the "Trust Documents") to which it is a party, (ii) to authorize,
issue, sell and perform its obligations under its Common Securities and Capital
Securities (together, the "Trust Securities"), (iii) to purchase and hold the
Subordinated Debt Securities and (iv) to own its property and conduct its
business as described in the Declaration of Trust.
(ii) Under the Delaware Business Trust Act and the Declaration of Trust,
the execution and delivery by the Trust of the Trust Documents to which it is a
party, and the performance by the Trust of its obligations hereunder, have been
duly authorized by all necessary business trust action on the part of the Trust.
(iii) The Declaration of Trust constitutes a valid and binding obligation
of the Company and the Trustees, enforceable against the Company and the
Trustees, in accordance with its terms, subject, as to enforcement, to the
effect upon the Declaration of (a) bankruptcy, insolvency, moratorium,
receivership, liquidation, fraudulent conveyance and transfer, reorganization
and other similar laws relating to or affecting the remedies and rights of
creditors, (b) general principles of equity (regardless of whether considered or
applied in a proceeding in equity or at law), (c) considerations of public
policy or the effect of applicable law relating to fiduciary duties, and (d)
principles of course of dealing or course of performance and standards of good
faith, fair dealing, materiality or reasonableness that may be applied by a
court to the exercise of rights or remedies.
(iv) The Common Securities of the Trust have been duly authorized for
issuance by the Trust and when issued and delivered by the Trust to the Company
against payment therefor as described in the Declaration of Trust and the terms
of the Common Securities Subscription Agreement, will be validly issued
undivided beneficial interests in the assets of the Trust. Under the Declaration
of Trust and the Business Trust Act, the issuance of the Common Securities is
not subject to preemptive or other similar rights; provided, that such counsel
--------
may note that the holders of Common Securities may be required to make payment
or provide indemnity or security as set forth in the Declaration.
(v) The Capital Securities of the Trust have been duly authorized for
issuance by the Trust, and, when issued, executed, authenticated and delivered
and when paid for in accordance with the terms of the Declaration of Trust and
the terms of the Capital Securities Subscription Agreement, will be fully paid
and validly issued and, subject to the limitations set forth in this paragraph
(v) below, non-assessable undivided beneficial interests in the assets of the
Trust and will entitle the holders thereof to the benefits of the Declaration of
Trust. Under the Declaration of Trust and the Business Trust Act, the issuance
of the Capital Securities of the
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Trust is not subject to preemptive or other similar rights. The holders of the
Capital Securities 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; provided that such counsel
--------
need express no opinion as to any holder of a Capital Security that is, was or
becomes a named Trustee of the Trust. Such counsel may note that the holders of
the Capital Securities may be required to make payment or provide indemnity or
security as set forth in the Declaration.
(vi) The issuance and sale by the Trust of its Trust Securities, the
execution, delivery and performance by the Trust of the Trust Documents to which
it is a party, the consummation by the Trust of the transactions contemplated by
the Trust Documents to which it is a party and the compliance by the Trust with
its obligations under the Trust Documents to which it is a party do not violate
(a) any of the provisions of the Certificate of Trust of the Trust or the
Declaration of Trust or (b) any Delaware law or Delaware administrative
regulation applicable to the Trust.
(vii) Assuming that the Trust derives no income from or connected with
sources within the State of Delaware and has no assets, activities (other than
having a Delaware trustee as required by the Delaware Business Trust Act and the
filing of documents with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, no authorization, approval, consent or order
of any Delaware court or Delaware governmental authority or Delaware agency is
required to be obtained by the Trust solely in connection with the issuance and
sale by the Trust of its Trust Securities, the due authorization, execution and
delivery of the Trust Documents to which it is a party or the performance by the
Trust of its obligations under the Trust Documents to which it is a party.
(viii) Assuming that the Trust derives no income from or connected with
sources within the State of Delaware and has no assets, activities (other than
having a Delaware trustee as required by the Delaware Business Trust Act and the
filing of documents with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, and assuming that the Trust is treated as a
grantor trust for federal income tax purposes and that the holders of the
Capital Securities are viewed for federal income tax purposes as owners of
either all of, or their liquidation and accrued but unpaid share of, the
Subordinated Debt Securities held by the Trust, the holders of Capital
Securities (other than those holders of Capital Securities 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 the opinion expressed in this paragraph (viii),
such counsel need express no opinion concerning the securities laws of the State
of Delaware).
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ANNEX C
Pursuant to Section 5(c) of the Placement Agreement, counsel to the Company
shall deliver an opinion in substantially the following form:
Sandler ▇'▇▇▇▇▇ & Partners, L.P.
▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special tax counsel to [NAME OF CORPORATION], a
[JURISDICTION OF INCORPORATION] corporation (the "Company"), in connection with
the offering by [NAME OF TRUST] (the "Trust") of $[AMOUNT OF CAPITAL SECURITIES]
[[FIXED RATE]% Fixed Rate][Floating Rate] MMCapS/SM/(liquidation amount $1,000
per capital security) (the "Capital Securities"). The Capital Securities
represent undivided beneficial ownership interests in $[AMOUNT OF DEBT
SECURITIES] in aggregate principal amount of [[FIXED RATE]% Fixed Rate][Floating
Rate] Junior Subordinated Debt Securities due 2031 of the Company (the
"Subordinated Debt Securities"). This opinion letter is furnished pursuant to
Section 5(c) of the Placement Agreement dated [PRICING DATE], between the
Company, the Trust and you.
In arriving at the opinions expressed below we have examined executed
copies of (i) the Amended and Restated Trust Agreement of the Trust dated the
date hereof (the "Declaration") and (ii) the Indenture relating to the issuance
of the Subordinated Debt Securities dated the date hereof (the "Indenture")
(together, the "Operative Documents"). In addition, we have made such
investigations of law and fact as we have deemed appropriate as a basis for the
opinion expressed below.
It is our opinion that, under current law and assuming the performance of
the Operative Documents in accordance with the terms described therein, the
Subordinated Debt Securities will be treated for United States federal income
tax purposes as indebtedness of the Company.
It is our opinion that the Trust will be classified for United States
federal income tax purposes as a grantor trust and not as an association taxable
as a corporation.
Our opinion is based on the U.S. Internal Revenue Code of 1986, as amended,
Treasury regulations promulgated thereunder, and administrative and judicial
interpretations thereof, all as of the date hereof and all of which are subject
to change, possibly on a retroactive basis. In rendering this opinion, we are
expressing our views only as to the federal income tax laws of the United States
of America.
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ANNEX D
Pursuant to Section 5(d) of the Placement Agreement, counsel to Wilmington
Trust Company (the "Trustee") shall deliver an opinion to the effect that:
(i) The Trustee is a Delaware banking corporation with trust powers duly
organized and validly existing in good standing under the laws of the State of
Delaware with all necessary corporate power and authority to execute, deliver
and carry out and perform its obligations under the terms of the Guarantee
Agreement, the Declaration and the Indenture;
(ii) the execution, delivery and performance by the Trustee of the
Guarantee Agreement, the Declaration and the Indenture have been duly authorized
by all necessary corporate action on the part of the Trustee and each of the
Guarantee Agreement, the Declaration and the Indenture has been duly executed
and delivered by the Trustee, and constitutes the legal, valid and binding
obligation of the Trustee, enforceable against it in accordance with its terms
(subject to Bankruptcy and Equity);
(iii) the execution, delivery and performance of the Guarantee Agreement,
the Declaration and the Indenture by the Trustee do not conflict with or
constitute a breach of the charter or by-laws of the Trustee; and
(iv) no consent, approval or authorization of, or registration with or
notice to, any governmental authority or agency of the United States of America
governing the banking or trust powers of the Trustee is required for the
execution, delivery or performance by it of the Guarantee Agreement, the
Declaration and the Indenture.
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ANNEX E
Pursuant to Section 5(e) of the Placement Agreement, Morris, James,
Hitchens & ▇▇▇▇▇▇▇▇ LLP shall deliver an opinion to the following form.
1. The Delaware Trustee has been duly incorporated and is validly existing
in good standing as a banking corporation under the laws of the State of
Delaware.
2. The Delaware Trustee has the requisite corporate power and authority to
execute and deliver each Declaration of Trust, and has taken all necessary
corporate action to authorize the execution and delivery of each Declaration of
Trust.
3. The Delaware Trustee has duly executed and delivered each Declaration of
Trust.
4. Neither the execution, delivery and performance by the Delaware Trustee
of each Declaration of Trust, nor the consummation of any of the transactions by
the Delaware Trustee contemplated thereby, are in violation of the charter or
by-laws of the Delaware Trustee or of any law, governmental rule or regulation
of the State of Delaware or the United States governing the banking or trust
powers of the Delaware Trustee or, to our knowledge, without independent
investigation, of any indenture, mortgage, bank credit agreement, note or bond
purchase agreement, long-term lease, license or other agreement or instrument to
which the Delaware Trustee is a party or by which it is bound or, to our
knowledge, without independent investigation, of any judgment or order
applicable to the Delaware Trustee.
5. Neither the execution, delivery and performance by the Delaware Trustee
of each Declaration of Trust, nor the consummation of any of the transactions by
the Delaware Trustee contemplated thereby, requires the consent or approval of,
the withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any other action in
respect of, any governmental authority or agency of the State of Delaware or the
United States of America governing the banking or trust powers of the Delaware
Trustee, except for the filing of the certificate of trust for each Trust with
the Office of the Secretary of State of the State of Delaware pursuant to the
Delaware Business Trust Act, 12 Del C. Section 3801, et seq., which filings have
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been duly made.
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