Exhibit 4.8
ESCROW AGREEMENT
This Escrow Agreement made and entered into as of the ___ day of
January, 1999, by and among XxXXXXXX & COMPANY, INC., a Virginia corporation
(the "Underwriter"), RESOURCE CAPITAL TRUST I, a statutory business trust
organized under Delaware law (the "Trust") and RESOURCE BANKSHARES CORPORATION,
a Virginia corporation (the "Company" and, together with the Trust, the
"Offerors"), and WILMINGTON TRUST COMPANY, a Delaware banking corporation (the
"Escrow Agent").
R E C I T A L S :
A. The Offerors propose to sell up to $___ million of $_______
Capital Securities, liquidation amount of $25.00 per preferred security (the
"Capital Securities") and $_______ of Common Securities, to the public at a
price of $25.00 per Capital Security (the "Offering").
B. The Offerors have retained the Underwriter, as selling agent for
the Offerors on a best efforts basis, to sell the Capital Securities in the
Offering, and the Underwriter has agreed to sell the Capital Securities as the
Offerors' selling agent on a best efforts basis in the Offering, and the
Underwriter has agreed to serve in this capacity, the terms of which
relationship are set forth in an Underwriting Agreement between the Offerors and
the Underwriter, the form of which is attached hereto as Exhibit A (the
"Underwriting Agreement").
C. The Underwriter will enter into agreements with other
brokers/dealers (the "Selected Dealers" or individually, the "Selected Dealer")
to assist in the sale of the Capital Securities.
D. The Offerors have agreed to pay the Underwriter a commission of
up to $_________.
E. The Escrow Agent is willing to hold the proceeds in escrow
pursuant to this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained in this Agreement, it is hereby agreed as
follows:
1. Establishment of the Escrow Account. On or prior to the
date of commencement of the Offering, the parties shall establish a
non-interest-bearing account with the Escrow Agent, which escrow account shall
be entitled "Resource Capital Trust I, Escrow Account" (the "Escrow Account").
The Underwriter shall make, and shall instruct purchasers and Selected Dealers
to make payment for the Common Securities and Capital Securities by wire
transfer of immediately available funds as follows:
Fed. Funds to be wired to:
Wilmington Trust Company
Wilmington, Delaware
ABA No. 000000000
for credit to the account of Resource Capital Trust I-Escrow
Account No. ______
Attention: Xxxxx Xxxxxx, Corporate Trust Administration
Telephone No. 000-000-0000
Fax No. 000-000-0000
The Offerors will make payment of the Underwriter's commission as
provided above.
2. Deposits into the Escrow Account. Funds received from the
Underwriter, purchasers and Selected Dealers shall be deposited in the Escrow
Account. All monies so deposited in the Escrow Account are hereinafter referred
to as the "Escrow Amount." The Escrow Account shall be a non-interest-bearing
account.
3. Escrow Period. The escrow period (the "Escrow Period")
shall begin on January __, 1999 and shall terminate at 5:00 p.m. on January ___,
1999, or such other time as shall be mutually agreed upon in writing by the
parties. During the Escrow Period, the Offerors acknowledge that they are not
entitled to any funds received into escrow and no amounts deposited by the
Escrow Agent shall become property of the Offerors or any other entity, or be
subject to the debts of the Offerors or any other entity.
4. Delivery of Escrow Account Proceeds. At the Closing as
defined in the Underwriting Agreement, the Underwriter and Offerors shall
provide the Escrow Agent with written directions for the distribution of the
Escrow Account, and the Escrow Agent agrees to distribute the Escrow Account
pursuant to such written directions. If no direction is received on or before
5:00 p.m., January __, 1999 (unless such time shall be extended by written
agreement of the Underwriter, Offerors and the Escrow Agent), the Escrow Agent
shall return the Escrow Amount to the parties that made payments to the Escrow
Account and this Agreement shall be of no further force or effect.
5. Closing Date. The "Closing" and "Closing Time" shall be
that date specified in the Underwriting Agreement.
6. Duties and Rights of the Escrow Agent. The foregoing
agreements and obligations of the Escrow Agent are subject to the following
provisions:
(a) The Escrow Agent's duties hereunder are limited
solely to the safekeeping of the Escrow Account in accordance with the terms of
this Agreement. It is agreed that the Escrow Agent shall have no other duties or
obligations hereunder except as expressly set forth herein, shall be responsible
only for the performance of such duties and obligations, shall not be required
to take any action otherwise than in accordance with the terms hereof, shall not
be required to perform any acts that may violate any applicable laws, and shall
not be liable or responsible in any manner for any loss or damage arising by
reason of any act or omission to act hereunder or in connection with any of the
transactions contemplated hereby, including, but not limited to, any loss or
damage that may occur by reason of forgery, false representation, the exercise
of its discretion in any particular manner or for any other reason, except any
loss or damage arising by reason of its gross negligence or willful misconduct.
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(b) The Escrow Agent may rely upon, and shall be
protected in acting or refraining from acting upon, any written instructions
furnished to it hereunder and in good faith believed by it to be genuine or
presented by the proper party or parties, and the Escrow Agent may assume that
any person or entity purporting to give instructions in connection with
provisions hereof has been duly authorized to do so. The Escrow Agent may at any
time request written instructions from the Underwriter and the Offerors with
respect to the interpretation of this Agreement or of any action to be taken or
suffered or not taken hereunder.
(c) In the event that the Escrow Agent shall be
uncertain about the interpretation of this Escrow Agreement or about its rights
or obligations hereunder or the propriety of any action contemplated hereunder,
or if the Escrow Agent shall receive instructions with respect to the Escrow
Account that are in its opinion in conflict with any other instructions with
respect to the Escrow Account that it has received or in conflict with any
provision of this Agreement, (i) the Escrow Agent promptly shall notify the
Underwriter and the Offerors (and any other involved parties, if necessary) of
such uncertainty or inconsistent instructions, (ii) the Escrow Agent shall be
entitled to refrain from taking any action other than to keep safely the Escrow
Account until it shall be directed otherwise in writing signed by the
Underwriter and the Offerors (any other involved parties, if necessary) or by a
final order or judgment of a court of competent jurisdiction, and (iii) if the
Escrow Agent does not receive a notice signed by the Underwriter and the
Offerors (and any other involved parties, if necessary) resolving such
uncertainty or inconsistent instructions within a reasonable time, the Escrow
Agent shall have the right (but not the obligation) to file suit in interpleader
and obtain an order or judgment from a court of competent jurisdiction requiring
all persons involved to interplead and litigate in such court their several
claims and rights among themselves and, upon the conclusion thereof, to act in
accordance with the resolution of such litigation.
7. Indemnification and Fees of the Escrow Agent. The
Underwriter and the Offerors hereby jointly and severally agree to indemnify,
defend and save harmless the Escrow Agent from and against any and all losses,
expenses (including without limitation, reasonable fees, disbursements and other
expenses of counsel), assessments, liabilities, claims, damages, actions, suits
or other charges incurred by or assessed against the Escrow Agent for anything
done or omitted by it in the performance of its duties hereunder other than as a
result of its gross negligence or willful misconduct. In addition to the
foregoing, the Underwriter and the Offerors hereby agree that the Escrow Agent
shall deduct from the Escrow Account prior to distributing or delivering the
Escrow Account in accordance with Section 8 hereof reasonable compensation for
the services rendered by the Escrow Agent hereunder.
8. Resignation and Replacement of the Escrow Agent.
(a) The Escrow Agent may resign at any time and
thereupon be discharged of its duties and obligations as escrow agent hereunder
by giving five (5) days' prior written notice thereof to the Underwriter and
Offerors. Upon expiration of such five day period, the Escrow Agent shall take
no further action until the Underwriter and the Offerors have jointly appointed
a successor escrow agent. Upon receipt of written instructions signed by the
Underwriter and the Offerors, the Escrow Agent shall promptly turn over the
Escrow Account to the successor escrow agent. The Escrow Agent shall thereafter
have no further duties or obligations hereunder.
(b) The Escrow Agent may be removed and discharged from
its duties and obligations as escrow agent hereunder upon the mutual agreement
of the Underwriter and the Offerors by delivering a written notice executed by
the Underwriter and the Offerors of such removal to the Escrow Agent specifying
the date when such removal shall be effective (but such a removal shall in no
event be effective prior to the appointment of a successor escrow agent). In the
event of such removal, the Underwriter and the Offerors shall, within thirty
(30) days after such notice, jointly appoint a
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successor escrow agent and, upon receipt of written instructions signed by the
Underwriter and the Offerors, the Escrow Agent shall promptly turn over the
Escrow Account to such successor escrow agent. The Escrow Agent shall thereafter
have no further duties or obligations hereunder.
9. Notices. It is further agreed as follows:
(a) All notices given hereunder will be in writing,
served by registered or certified mail, return receipt requested, postage
prepaid, or by hand-delivery, to the parties at the following addresses:
To the Offerors:
Resource Capital Trust I
Resource Bankshares Corporation
0000 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention:_______________
To the Underwriter:
XxXxxxxx & Company, Inc.
1609 First Virginia Tower
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. XxXxxxxx, Xx.
To the Escrow Agent:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
10. Miscellaneous.
(a) This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parries hereto and their respective
successors and assigns.
(b) If any provision of this Agreement shall be held
invalid by any court of competent jurisdiction, such holding shall not
invalidate any other provision hereof.
(c) This Agreement shall be governed by the applicable
laws of the State of Delaware.
(d) This Agreement may not be modified except in writing
signed by the parties hereto.
(e) All demands, notices, approvals, consents, requests
and other communications hereunder shall be given in the manner provided in this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their respective names, all as of the date first above written.
XxXXXXXX & COMPANY, INC.
By:
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Xxxxxxx X. XxXxxxxx, Xx.
President
RESOURCE CAPITAL TRUST I
By:
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Trustee
RESOURCE BANKSHARES CORPORATION
By:
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Title:
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WILMINGTON TRUST COMPANY
By:
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Title:
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