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December __, 1996
Xx. Xxxxxxx X. Xxxx
Xxxxxxxxx Bank & Trust
0000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
RE: Escrow Agreement for Enterbank Holdings, Inc.
Dear Xx. Xxxx:
The undersigned is the authorized representative of Enterbank
Holdings, Inc., a Delaware corporation (the "Corporation"). Common
stock is being offered to certain prospective investors (the "Investors")
pursuant to a Prospectus dated ------, 1996 (the "Prospectus"),
a copy of which has been furnished to Jefferson Bank ("Jefferson").
Pursuant to the Prospectus, the Corporation is offering for sale a
minimum of $3,000,000.00 and a maximum of $7,000,000.00 of its common
stock. We have asked Jefferson to serve as Escrow Agent with respect to
the funds contributed (the "Subscription Amount") by an investor whose
subscription for common stock has been accepted (an "Investor").
Jefferson has agreed to serve as such Escrow Agent on the following
terms:
1. The common stock is being offered by the Corporation.
Upon receipt of an Investor's Subscription Amount and related
subscription documents in form satisfactory to the Corporation, the
Corporation will promptly deliver the Subscription Amount and the
name and address of the Investor to Jefferson, such Subscription
Amount to be in the form of a check payable to "Jefferson Bank &
Trust, as Escrow Agent for Enterbank Holdings, Inc." Upon receipt
of such check, Jefferson shall enter it for collection, and hold the
proceeds in escrow subject to the provisions of this Agreement.
2. Jefferson shall invest the Subscription Amounts in such
United States government securities, money market investments
and/or certificates of deposit as the Corporation may direct in
writing to Jefferson. Absent such direction, Jefferson Shall
invest the Subscription Amounts in a commercial money market
account at Jefferson.
3. If, by February 14, 1997 (Minimum Offering Expiration
Date), unless extended in writing by the Corporation, the Corporation
has received, pursuant to the Offering, acceptable subscriptions for a
minimum of $3,000,000.00, then the Corporation will deliver to Jefferson
a certificate to this effect in the form of Exhibit A hereto. Upon
---------
receipt of such certificate, Jefferson will release from escrow and
deliver to the Corporation all Subscription Amounts held by
Jefferson as escrow agent, together with any income earned thereon,
in the form of a check payable to the order of the Corporation or
by other transfer to or for the account of the Corporation, as the
Corporation may specify. In the
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event Jefferson has not received the certificate set forth in Exhibit
A hereto by 5:00 p.m. on the Minimum Offering Expiration Date,
Subscription Amounts then held in escrow hereunder will be disbursed
by Jefferson to each investor in the form of a check for his
Subscription Amount, plus his pro rata share of any income earned on
the total Subscription Amount, after deducting from any such income
expenses incurred in connection with the Offering. Amounts so
disbursed by Jefferson to each Investor hereunder shall not be less
than the Subscription Amount. Any expenses which exceed the income
earned on the Subscription Amounts shall be paid by the Corporation.
4. To induce Jefferson to act as Escrow Agent hereunder, it
is agreed by the Corporation and on behalf of each of the
Investors, that:
(a) Jefferson shall not be under any duty to give the
property held in escrow hereunder any greater degree of care
than Jefferson gives its own similar property.
(b) Jefferson may act in reliance upon any instrument or
signature believed by it to be genuine and it may assume that
any person giving any writing, notice, advice or instruction
in connection with the provisions hereof has been duly
authorized to do so.
(c) Jefferson may act relative hereto upon advise of
counsel with respect to any matter connected herewith and it
shall not be liable for any mistake of fact or error in
judgement or for any acts or omissions of any kind unless
caused by its willful misconduct or gross negligence.
(d) Jefferson's duties with respect to any and all
matters relating to this Agreement shall be only as set forth
herein, and there shall be no other implied duties or
obligations on its part.
(e) Jefferson makes no representation as to the
validity, value, genuineness or collectible of any document or
instrument held by or delivered to it.
(f) The Corporation shall indemnify Jefferson and hold
it harmless from and against any loss, liability, cost of
expense (including costs of suit and reasonable attorneys'
fees) of any kind which Jefferson may incur in connection with
its services hereunder, except for such as may result from its
gross negligence or willful misconduct. This indemnity
agreement shall survive the termination of this Agreement.
(g) In the event of a dispute, Jefferson may interplead
any property held in escrow hereunder in any court of
competent jurisdiction.
(h) Jefferson shall not be obligated to risk its own
funds in the administration of the
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account and shall have a lien against any funds, securities, or
other property in its possession or control for its fees,
expenses, and advancements. Jefferson need not take any action
under this Agreement which may involve it in any expense or
liability until indemnified to its satisfaction for any expense
or liability it reasonably believes it may incur.
(i) Jefferson may execute any of the duties under this
Agreement by or through agents or receivers.
(j) Jefferson shall not be required to take notice or be
deemed to have notice of any default or other fact or event
under this Agreement unless Jefferson shall be specifically
notified in writing of the default, fact or event.
(k) Jefferson may at any time resign from the position
created in this Agreement by giving 30 days written notice by
registered or certified mail to the Corporation and the
resignation shall take effect at the end of 30 days or upon
the earlier appointment of a successor.
(l) Unless specifically required by the terms of this
Agreement, Jefferson need not take notice of or enforce any
other document or relationship, including without limiting the
generality of the foregoing, any contract, settlement,
arrangement, plan, assignment, pledge, release, decree, or the
like, but its duties shall be solely as set out in this
Agreement.
5. Jefferson's duties and obligations hereunder may not be
modified or increased without its consent. This Agreement may not
be modified or amended as to the Subscription Amount paid by any
Investor unless, as to such Amount, such amendment or modification
has been agreed to by the Corporation, Jefferson and such Investor.
This Agreement may be modified or amended in other respects with
the consent of the Corporation and Jefferson, provided such
modification or amendment is not in conflict with the terms of the
Prospectus.
6. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri.
7. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective heirs,
successors and assigns.
8. This Agreement is, in part, entered into for the benefit
of the Investors, and it is expressly acknowledged that each
Investor may enforce any rights expressly granted to such Investor
hereunder.
9. Any notice to any party hereto, or to any Investor, shall
be in writing and shall be
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delivered or sent by first class mail, with adequate postage prepaid,
to Jefferson at the address indicated on the first page hereof or, in
the case of the Corporation, at 000 Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx
00000, or in the case of any Investor, at the address indicated in
writing by notice as aforesaid. Such notice shall be deemed to have
been duly made upon receipt of the notice by the addressee.
If Jefferson is in agreement with the foregoing, please so
indicate by signing the enclosed copy of this letter where
indicated, whereupon this will be our valid and binding agreement
in accordance with its terms.
Very truly yours,
Enterbank Holdings, Inc.,
By: ----------------------------------
Xxxxx X. Xxxxxx
Vice President
Enterbank Holdings, Inc.
Accepted and agreed to this ___ day of December, 1996
Jefferson Bank & Trust
By: ----------------------------------
Xxxxxxx X. Xxxx
President
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EXHIBIT A
---------
Jefferson Bank
0000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attn: ----------
RE: Enterbank Holdings, Inc.
Dear ----------:
Please refer to the escrow letter agreement between the
undersigned Corporation and Jefferson Bank ("Jefferson") dated
---------- (the "Escrow Agreement").
In accordance with Section 3 of the Escrow Agreement, we
hereby certify to Jefferson that the Corporation has received
acceptable subscriptions for $3,000,000.00 of Common Stock, the
minimum amount of Common Stock offered. Accordingly, Jefferson
is instructed to deliver the entire amount held by it under the
Escrow Agreement, together with any income earned therein, to the
Corporation at 000 Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000.
Very truly yours,
Enterbank Holdings, Inc.
a Missouri corporation
By: ----------------------------------
Xxxxx X. Xxxxxx
Vice President
