AGENCY AGREEMENT
Exhibit 10.8
THIS AGENCY AGREEMENT (this “Agreement”) is dated as of , 2006, and is by and
between Xxxxxxx Bank, as Trustee (the “Trustee”), , a corporation,
as agent (the “Agent”) and Performance Home Buyers, LLC, an Ohio limited liability company (“PHB”).
WHEREAS, Trustee has been appointed as trustee of up to $25,000,000 Senior Secured Notes
(“Notes”) to be issued by PHB;
WHEREAS, proceeds from the sale of the Notes will be deposited into an escrow account
established with (name of Bank) (“Bank”) and disbursed as provided therein;
WHEREAS, Trustee desires to appoint Agent, a national title company, as its agent with respect
to the disbursement of funds from the escrow account once Agent has determined or provided for,
among other things, a first mortgage lien on PHB-owned real estate securing the funds in accordance
with Section 4.8 of the Indenture relating to the Notes dated , 2006 (the “Note
Indenture”); and
WHEREAS, the parties hereto also desire to provide a process for the delivery of mortgage or
deed of trust releases or satisfactions upon the payment in full of prior Trustee mortgages or
deeds of trust.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Appointment of Agent. Trustee hereby appoints Agent to be its agent with respect
to: (i) the disbursement of funds from the escrow account established with Bank, and, (ii) the
execution and delivery of releases or satisfactions of previous mortgages or deeds of trust on
PHB-owned land upon payment in full of the underlying obligation. Agent hereby accepts such
appointment and agrees to fulfill its obligations and duties as Agent in accordance with the terms
of this Agreement.
2. Representations and Warranties of the Parties. Each party to this Agreement
warrants and represents to the other party to this Agreement that:
(a) such party is duly organized, validly existing and in good standing under the laws
of the jurisdiction under which it is organized;
(b) the execution, delivery and performance of this Agreement, and the execution and
delivery of all other documents in connection with this Agreement, constitute the legal,
valid and binding obligations of such party and are enforceable against such party
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in accordance with their terms (subject, as to enforceability, to limitations resulting
from bankruptcy, insolvency and other similar laws affecting creditors’ rights generally);
and
(c) that such party, and each individual executing this Agreement on behalf of such
party, is duly authorized, and has all power and authority necessary to make such execution,
delivery and performance of this Agreement and of all other documents in connection
herewith, without the consent or approval of any other person or regulatory authority or
governmental body, and such execution, delivery and performance does not conflict with,
result in a violation of, or constitute a default under any provision of any articles of
incorporation, certificate of formation, limited liability company agreement or
organization, or bylaws, or any agreement or other instrument binding on such party, or any
law, governmental regulation, court decree or order applicable to such party.
3. Agent’s Duties – Disbursement of Escrowed Funds.
Within twenty-four (24) hours of a request from PHB, Agent shall issue written authorization
to Bank for immediate release of escrowed funds for the purposes identified by PHB provided
that the terms of Section 4.8 of the Indenture have been complied with. In addition, as a
condition precedent to issuance of such written authorization by Agent to Bank, Agent shall
have received the following:
(a) the following documents from PHB, duly executed and delivered by the parties
thereto and if necessary in proper recordable form:
(i) PHB’s Mortgage or Deed of Trust: the mortgage or deed of trust
(and any related security agreement and/or financing statement) executed by PHB, as
Grantor, in favor of Trustee for the benefit of the holders of the Notes, pursuant
to which PHB has granted to Trustee a lien and security interest in and to the PHB
Land to secure, among other things, payment of all the principal amount of the Notes
payable by PHB (each, “Mortgage or Deed of Trust”);
(ii) Subordination Agreement: any subordination agreement, pursuant to
which other indebtedness of PHB or any other subordinated lien on such PHB Land is
subordinated to the indebtedness of PHB under the Notes;
(iii) Additional Documents/Contract Assignment: any and all other
documents and instruments executed by the PHB, including any conditional assignment
of any land contract or lease existing on the PHB Land and delivered to Trustee in
connection with the refinancing transaction contemplated by such Mortgage or Deed of
Trust; and
(iv) UCC Financing Statements: any UCC-1 Financing Statements in
recordable form, serving to perfect a valid lien on the personal property, if any,
granted under such Mortgage or Deed of Trust;
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(b) the following other documents:
(i) a mortgagee’s title insurance policy issued by Agent or other acceptable
title insurance company in an amount equal to the face amount of such Mortgage or
Deed of Trust, insuring such Mortgage or Deed of Trust as a first and primary lien
on a good and marketable fee simple title to the PHB Land, subject only to
“Permitted Encumbrances” (as that term is defined in such Mortgage or Deed of Trust)
and, without limiting the generality of the foregoing, insuring such Mortgage or
Deed of Trust against claims for mechanics’ liens, rights of parties in possession
and matters which would be disclosed by a comprehensive survey and including special
assessment searches, judgment searches and all other customary searches, and a
zoning endorsement;
(ii) written evidence of payment of: (i) all real estate taxes relating to the
PHB Land presently due and payable, and (ii) all levied and pending assessments
relating to PHB Land (or, in lieu thereof, payment in escrow of an amount determined
by the Trustee or Agent); and
(iii) if required by Agent, a preliminary perimeter land survey of the PHB
Land, prepared at PHB’s expense, certified to Trustee and PHB by a licensed,
registered surveyor acceptable to Agent, and a copy of any plat for PHB Land. The
parties hereto acknowledge and agree that such documents should only be required in
the unusual situation where boundary problems exist with respect to PHB Land at the
time of the contemplated refinancing transaction;
(c) evidence of payment of all expenses incurred in connection with the refinancing
transaction contemplated by such Mortgage or Deed of Trust and evidence that the ratio of
the value of the PHB Land to the principal amount of such Mortgage or Deed of Trust (the
“Ratio”) shall not be less than 1 to 1; and
(d) such other documents and instruments as Trustee or Agent may reasonably request.
Agent will record all transactions, receipts and disbursements and furnish a statement of
transactions and a cumulative accounting of the Ratio as of the date of applicable
refinancing transactions on at least a monthly basis and at other times requested by the
Trustee.
For purposes hereof, the term “PHB Land” shall mean the real property owned by PHB which is
legally described on Exhibit A to each Mortgage or Deed of Trust.
4. Agent’s Duties – Release or Satisfaction of Prior Mortgages or Deeds of Trust.
Upon request of PHB accompanied by evidence of payment of full of the underlying obligations,
Agent shall deliver or provide for recording a release or satisfaction of any prior Trustee
mortgage or deed of trust with respect to PHB Land. If requested by PHB, such release
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or satisfaction shall be provided simultaneous with payment of the underlying obligation in
accordance with Agent’s practices and procedures.
5. Notices. Any notice to be given or other document to be delivered by and party to
the others hereunder, may be delivered in person, or to an officer of any party, or may be
deposited in the United States mail, duly certified or registered, return receipt requested, with
postage prepaid, or by Federal Express or a similar overnight delivery service, or by facsimile
machine if concurrently delivered by another permissible method set forth in this Section, and
addressed to the party for whom intended, to the address set forth below its signature below. Any
party hereto may from time to time, by written notice to the others, designate a different address
which shall be substituted for the one specified herein. Unless otherwise specifically provided
for herein, all notices, payments, demands or other communications given hereunder shall be in
writing and shall be deemed to have been duly given and received (i) upon personal delivery, or
(ii) as of the third business day after mailing by United States registered or certified mail,
return receipt requested, postage prepaid, addressed as set forth above, (iii) the immediately
succeeding business day after deposit with Federal Express or a similar overnight delivery system,
or (iv) upon confirmation of receipt if delivered by facsimile machine.
6. Agent’s Fees and Expenses. Agent will not be paid a fee for its services under
this Agreement. Agent will be reimbursed by PHB for its reasonable out-of-pocket expenses for
performing this Agreement; provided however, that said amount shall not exceed $ per month.
Title services performed by Agent in connection with the refinancing transactions contemplated
herein or otherwise shall be the subject of a separate agreement and nothing herein shall be
construed to affect the terms and conditions of such agreements, including Agent’s right to receive
fees for such services or reimbursement of costs as provided therein.
7. Termination of Agreement. This Agreement shall terminate as follows:
(a) Any party may terminate this Agreement upon at least 10 days’ prior written notice
to each other party.
(b) This Agreement shall terminate automatically in the event of the bankruptcy of any
party, or any party becoming the subject of an involuntary petition for relief under the
United States Bankruptcy Code or any other similar federal or state law, and shall be
applicable to any and all distributions made by any receiver, debtor-in-possession or other
person acting under the authority of any court.
(c) This Agreement shall terminate automatically on the first (1st) business
day after redemption or payment in full of all the Notes.
8. Amendment. This Agreement may not be amended or modified except by a written
agreement signed by the parties in interest at the time of such modification.
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9. Miscellaneous.
(a) In case any provision is or obligation under this Agreement shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
(b) This Agreement shall be binding upon the parties hereto and their successors and
assigns for the uses and purposes above set forth and referred to effective immediately upon
execution by the parties hereto.
(c) This Agreement may be executed in counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall constitute
but one and the same document.
(d) This Agreement shall be governed by and construed in accordance with the laws of
the State of Ohio, without regard to conflicts of law principles.
(The remainder of this page is intentionally left blank.)
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(Signature Page to Agency Agreement by and between Trustee, Agent and PHB dated ,
2006)
2006)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the first above written.
| AGENT: | TRUSTEE: | |||||||||
| XXXXXXX BANK | ||||||||||
By:
|
By: | |||||||||
| Its: | Its: | |||||||||
| Address: | Address: | |||||||||
| Attention: | Attention: | |||||||||
| PERFORMANCE HOME BUYERS, LLC | ||||||||||
By: |
||||||||||
| Its: | ||||||||||
Address:
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
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