CAPITAL SECURITIES SUBSCRIPTION AGREEMENT
November 14, 2001
THIS CAPITAL SECURITIES SUBSCRIPTION AGREEMENT (this "Subscription
Agreement") is made among Resource Capital Trust II (the "Trust"), Resource
Bankshares Corporation (the "Company" and, collectively with the Trust, the
"Offerors"), and MM Community Funding II, Ltd (the "Purchaser").
RECITALS:
A. The Trust desires to issue 5,000 of its Floating Rate MMCapSSM (the
"Capital Securities"), with a liquidation amount of $1,000 per Capital Security,
representing an undivided beneficial interest in the assets of the Trust (the
"Offering"), to be issued pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), by the Company, Wilmington Trust Company, as
Institutional and Delaware Trustee, the Administrator(s) named therein, and the
holders, from time to time, of the Capital Securities, which Capital Securities
are to be guaranteed by the Company with respect to distributions and payments
upon liquidation, redemption and otherwise to the extent provided in and
pursuant to the terms of a Guarantee Agreement between the Company and
Wilmington Trust Company as guarantee trustee (the "Guarantee"); and
B. The proceeds from the sale of the Capital Securities will be combined
with the proceeds from the sale of the common securities by the Trust to the
Company and will be used by the Trust to purchase an equivalent aggregate
principal amount of Floating Rate Junior Subordinated Debentures due December 8,
2031 of the Company (the "Debentures"), to be issued by the Company pursuant to
an Indenture to be executed by the Company and Wilmington Trust Company as
debenture trustee (the "Indenture"); and
C. The Purchaser intends to complete an offering of its Notes (the "CBO
Offering") on or about November 28, 2001 or such other business day as may be
agreed upon (the "Closing Date") by the Offerors and the placement agent
("Placement Agent") identified in the Placement Agreement and to use the
proceeds of the CBO Offering to, among other things, acquire the Capital
Securities from the Trust and comparable capital securities from other trusts in
a quantity and with other particular characteristics, in the aggregate,
sufficient to permit the successful completion of the CBO Offering; and
D. In consideration of the premises and the mutual representations and
covenants hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF CAPITAL SECURITIES
1.1. Upon the execution of this Subscription Agreement, subject to the
conditions precedent set forth in Section 1.5, the Purchaser hereby agrees to
purchase from the Trust 5,000 Capital Securities at a price equal to $1,000 per
Capital Security (the "Purchase Price") and the Trust agrees to sell Capital
Securities with a liquidation amount of $1,000 per Capital Security to the
Purchaser for the Purchase Price. The rights and preferences of the Capital
Securities will be set forth in the Declaration in form and substance reasonably
acceptable to the Purchaser. The Purchase Price is payable by the Purchaser in
immediately available funds to the Trust's Account No. 56514-0 at Wilmington
Trust Company on the Closing Date.
1.2. The certificate for the Capital Securities shall be delivered in
definitive form by the Trust on the Closing Date to the Purchaser or its
designee, and shall be registered in the name of the Purchaser and shall
represent the aggregate liquidation amount of the Capital Securities being
purchased by the Purchaser.
1.2.1 The Purchaser acknowledges and the Offerors agree that they will
not register any transfer of the Capital Securities not made in accordance with
Regulation S, pursuant to registration under the Securities Act of 1933, as
amended (the "Securities Act") or pursuant to an available exemption from
registration.
1.3. The Placement Agreement, dated November 14, 2001 (the "Placement
Agreement"), among the Offerors and the Placement Agent identified therein
includes certain representations and warranties, covenants and conditions to
closing and certain other matters governing the issuance and sale of the Capital
Securities by the Trust to the Purchaser. Each of the provisions of the
Placement Agreement, including the definitions therein, are hereby incorporated
by reference into this Subscription Agreement. In addition, to the extent
provided for in the Placement Agreement, the Purchaser shall be entitled to the
benefits of the Placement Agreement and shall be entitled to enforce such
obligations of the Offerors under the Placement Agreement as fully as if the
Purchaser were a party to such Placement Agreement, it being agreed between the
parties that any and all representations made by the Offerors to the Placement
Agent in the Placement Agreement shall be deemed to have also been made to the
Purchaser.
1.4. If any condition specified herein or in the Placement Agreement shall
not have been fulfilled when and as required to be fulfilled by, on behalf of or
in respect of the Offerors or the Capital Securities, this Subscription
Agreement may be terminated by the Purchaser by notice to the Offerors at any
time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 7 of the
Placement Agreement and except that Sections 1 and 8 of the Placement Agreement
shall survive any such termination and remain in full force and effect.
1.5. If the CBO Offering is not successfully completed for any reason,
including, without limitation, as a result of the inability of the Purchaser to
acquire sufficient capital
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securities from the Trust and other trusts in a quantity and with other
particular characteristics, in the aggregate, sufficient to satisfy rating
agency criteria with respect to expected ratings on the Notes to be issued by
the Purchaser and other criteria deemed necessary or advisable by the Purchaser,
all obligations of the Purchaser hereunder shall terminate and be extinguished.
1.6. Notwithstanding any other provision of this Subscription Agreement,
the obligations of the Purchaser hereunder are limited recourse obligations of
the Purchaser, payable solely from the proceeds of the CBO Offering, and if the
CBO Offering is not completed or the proceeds of the CBO Offering are
insufficient to satisfy the obligations of the Purchaser, any claims hereunder
shall be extinguished. The Trust, Wilmington Trust Company (on behalf of the
Trust), and the Company further agree (i) not to take any action in respect of
any claims hereunder against any subscriber, officer, director, employee or
administrator of the Purchaser and (ii) not to institute against the Purchaser
any insolvency, bankruptcy, reorganization, liquidation or similar proceedings
in any jurisdiction until one year and one day or, if longer, the applicable
preference period then in effect, shall have elapsed since the final payments to
the holders of the Notes issued by the Purchaser in connection with the CBO
Offering.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1. The Purchaser understands and acknowledges that none of the Capital
Securities, the Debentures or the Guarantee have been registered under the
Securities Act, or any other applicable securities laws, and are being offered
for sale by the Offerors in a transaction not requiring registration under the
Securities Act, and the Capital Securities may not be offered, sold, pledged or
otherwise transferred by the Purchaser except in compliance with the
registration requirements of the Securities Act, or any other applicable
securities laws, pursuant to an exemption therefrom or in a transaction not
subject thereto.
2.1.1 The Purchaser represents and warrants and certifies that it is
not a "U.S. person" (as such term is defined in Rule 902 under the Securities
Act), that it is not acquiring the securities for the account or benefit of any
U.S. person, and that the offer and sale of Capital Securities to the Purchaser
constitutes an "offshore transaction" under Regulation S under the Securities
Act.
2.2. The Purchaser represents and warrants that it is purchasing the
Capital Securities for its own account, for investment and not with a view to,
or for offer or sale in connection with, any distribution thereof in violation
of the Securities Act or other applicable securities laws, subject to any
requirement of law that the disposition of its property be at all times within
its control and subject to its ability to resell such Capital Securities
pursuant to an effective registration statement under the Securities Act or
under Rule 144A under the Securities Act or any other exemption from
registration available under the Securities Act, and the Purchaser agrees to the
legends and transfer restrictions applicable to the Capital Securities contained
in the Declaration.
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2.2.1 The Purchaser represents and warrants that until one year after
the Closing Date, it will not offer, sell, pledge or otherwise transfer the
Capital Securities within the United States or to, or for the account or benefit
of, any U.S. Person (as defined in Regulation S under the Securities Act).
2.2.2 The Purchaser represents and warrants that it will not engage in
hedging transactions with regard to the Securities unless in compliance with the
Securities Act.
2.3. The Purchaser has full power and authority to execute and deliver this
Subscription Agreement, to make the representations and warranties specified
herein, and to consummate the transactions contemplated herein and it has full
right and power to subscribe for the Capital Securities and perform its
obligations pursuant to this Subscription Agreement.
2.4. The Purchaser, a Cayman Islands company whose business includes the
issuance of certain notes and acquiring the Capital Securities and other similar
securities, has had the opportunity to ask questions of, and receive answers and
request additional information from, the Offerors and is aware that it may be
required to bear the economic risk of an investment in the Capital Securities.
2.5. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any governmental body, agency or court
having jurisdiction over the Purchaser, other than those that have been made or
obtained, is necessary or required for the performance by the Purchaser of its
obligations under this Subscription Agreement or to consummate the transactions
contemplated herein.
2.6. This Subscription Agreement has been duly authorized, executed and
delivered by the Purchaser.
2.7. The Purchaser is not in violation or default of any term of its
Amended and Restated Memorandum of Association or Articles of Association, of
any provision of any mortgage, indenture, contract, agreement, instrument or
contract to which it is a party or by which it is bound or of any judgment,
decree, order, writ or, to its knowledge, any statute, rule or regulation
applicable to the Purchaser which would prevent the Purchaser from performing
any material obligation set forth in this Subscription Agreement. The execution,
delivery and performance of and compliance with this Subscription Agreement, and
the consummation of the transactions contemplated herein, will not, with or
without the passage of time or giving of notice, result in any such material
violation, or be in conflict with or constitute a default under any such term,
or the suspension, revocation, impairment, forfeiture or non-renewal of any
permit, license, authorization or approval applicable to the Purchaser, its
business or operations or any of its assets or properties which would prevent
the Purchaser from performing any material obligations set forth in this
Subscription Agreement.
2.8. The Purchaser is an exempted company with limited liability duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction where it is organized, with full power and authority to perform its
obligations under this Subscription Agreement.
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2.9. The Purchaser understands and acknowledges that the Company will rely
upon the truth and accuracy of the foregoing acknowledgments, representations,
warranties and agreements and agrees that, if any of the acknowledgments,
representations, warranties or agreements deemed to have been made by it by its
purchase of the Capital Securities are no longer accurate, it shall promptly
notify the Company.
2.10. The Purchaser understands that no public market exists for any of the
Capital Securities, and that it is unlikely that a public market will ever exist
for the Capital Securities.
ARTICLE III
MISCELLANEOUS
3.1. Any notice or other communication given hereunder shall be deemed
sufficient if in writing and sent by registered or certified mail, return
receipt requested, international courier, or delivered by hand against written
receipt therefor, or by facsimile transmission and confirmed by telephone, to
the following addresses, or such other address as may be furnished to the other
parties as herein provided:
To the Offerors: Resource Bankshares Corporation
0000 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
To the Purchaser: MM Community Funding II, Ltd
P.O. Box 1093 GT
Queensgate House
113 South Church Street
Xxxxxx Town, Grand Cayman
Cayman Islands
British West Indies
Attention: Directors
Telephone: 000-000-0000
Fax: 000-000-0000
Unless otherwise expressly provided herein, notices shall be deemed to have
been given when received.
3.2. This Subscription Agreement shall not be changed, modified or amended
except by a writing signed by the parties to be charged.
3.3. Upon the execution and delivery of this Subscription Agreement by the
parties hereto, this Subscription Agreement shall become a binding obligation of
each such party with
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respect to the matters covered herein, including those incorporated by reference
from the Placement Agreement.
3.4. NOTWITHSTANDING THE PLACE WHERE THIS SUBSCRIPTION AGREEMENT MAY BE
EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL THE
TERMS AND PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK. EACH OF THE TRUST, PURCHASER 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 SUBSCRIPTION
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, PURCHASER 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.
3.5. The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this
Subscription Agreement.
3.6. This Subscription Agreement may be executed in one or more
counterparts each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
Signatures appear on the following page
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IN WITNESS WHEREOF, I have set my hand the day and year first written
above.
MM COMMUNITY FUNDING II, LTD
By:
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Print Name:
-----------------------------
Title: Director
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IN WITNESS WHEREOF, this Subscription Agreement is agreed to and accepted
as of the day and year first written above.
RESOURCE BANKSHARES CORPORATION
By:
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Xxxxxxxx X. Xxxxx
President and Chief Executive Officer
RESOURCE CAPITAL TRUST II
By:
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X.X. Xxxxx, Xx.
Administrator
