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EXHIBIT 10.4
FORM OF SUBSCRIPTION ESCROW AGREEMENT
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U.S. AUTOMOBILE ACCEPTANCE SNP-IV, INC.
SUBSCRIPTION ESCROW AGREEMENT
AGREEMENT made effective as of _____________________ between U.S.
Automobile Acceptance SNP-IV, Inc., a Texas corporation (the "Company"), and
BancFirst ("Agent").
WHEREAS, Company is offering for subscription up to $40,000,000
principal amount of its Asset-Backed Promissory Notes (the "Notes") on the terms
and conditions set forth in its prospectus (the "Prospectus"), a copy of which
has been furnished to Agent; and
WHEREAS, Company desires for Agent to perform the services of
depository and escrow agent with respect to subscriptions to the Company made by
prospective purchasers of the Notes (the 'Investors');
NOW, THEREFORE, the parties hereto agree as follows:
1. Agent shall deposit all subscription checks and other payments for
the Notes by Investors which it receives into an escrow account maintained by
Agent (the "Escrow Fund"). Checks shall be made payable to the Agent until the
minimum subscriptions of $100,000 have been received by the Agent.
2. The Company reserves the right to reject any subscription. The
Company shall promptly refund the subscription amount which has been rejected to
the Investor unless the subscription amount is on deposit with Agent, in which
case Agent, upon written direction of the Company, shall make such refund, if
any, as soon as Agent has collected funds on such Investor's check.
3. Prior to the close of business on __________ (the specified "escrow
termination date"), Agent shall verify with Company whether or not the minimum
required subscriptions in Notes have been received.
4. If subscriptions for at least $100,000 in Notes (the "Minimum
Subscription Amount") have been received by Agent prior to the close of business
on the escrow termination date, the Company shall within fifteen (15) business
days advise Agent in writing that the offering was successful. Upon receipt of
such written notification, Agent shall terminate this escrow and release such
subscription proceeds plus any interest earned to the Company or its designee at
such time and in such amount as the Company shall specify. After terminating the
escrow in accordance herewith, Agent shall remit any subscription proceeds
received directly to Company. Anything herein to the contrary notwithstanding,
amounts received by the Agent in the form of checks shall not be deemed to have
been received and shall not be available for distribution until such amounts
have been collected by Agent. Amounts received by Agent in the form of a wire
transfer will be deemed to be collected funds on the day of receipt.
5. If the Minimum Subscription Amount has not been received prior to
the close of business on the escrow termination date, all amounts received by
Agent shall be returned directly by Agent to Investors, as soon thereafter as
such amounts are collected. The Company shall provide Agent with written
directions specifying the name and address of, and the amount to be paid to,
each Investor to whom money is to be returned. Interest earned on the funds
shall be paid to the Company or its designee.
6. Agent shall have no authority or obligation to exercise discretion
as to the investment of the Escrow Fund, but will invest and reinvest the Escrow
Fund as directed by the Company, only in investments permitted by Rule 15c2-4
under the Securities Exchange Act of 1934.
7. Agent shall be under no duty or responsibility to enforce collection
of any checks delivered to Agent hereunder. Agent shall promptly notify and
return to Company any check or instrument received from Company or Investor upon
which payment is refused, together with the related documents which were
delivered to Agent. If any check or instrument delivered to Agent under this
Agreement is uncollectible and if Agent has distributed funds represented by
such item pursuant to the terms hereof or pursuant to the direction of the
Company, Agent shall notify Company and shall deliver the returned check or
instrument to Company and Company shall immediately reimburse Agent for the
amount of funds uncollectible.
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8. Agent shall provide all administrative and reporting services
contemplated by this Agreement to effect the purpose stated herein.
9. Agent is not a party to, nor is it bound by, any agreement out of
which this Agreement may arise including, but not limited to, the Prospectus.
Agent is not charged with notice of the existence of any agreement out of which
this Agreement may arise other than the Prospectus. Agent is not charged with
notice of the terms of the Prospectus (other than those recited herein).
10. Agent may resign by giving ten (10) days prior written notice to
Company hereto by registered or certified mail at the address hereinbelow set
forth, and until a successor Agent is named and accepts its appointment, Agent
shall have no duty save to hold funds uninvested held pursuant hereto.
11. It is understood and agreed further, that Agent shall:
(a) Be protected in acting upon any notice, request, certificate,
approval, consent or other paper believed by it to be genuine and to be signed
by the proper party or parties;
(b) Be authorized to disregard in the sole discretion of Agent any
and all notices and warnings that may be given to it by Company hereto or by any
other person, firm, association, or corporation. Agent may, with prior notice to
Company, affording Company an opportunity to respond, however, in its discretion
obey the order, judgment, decree or levy of any court, whether with competent
jurisdiction or of any agency of the United States or any political subdivision
thereof, or of any agency of the State of Texas or of any political subdivision
thereof, and Agent is hereby authorized, in its sole discretion, to comply with
and obey any such orders, judgments, decrees or levies. If, however, Agent, in
its sole discretion and upon consultation with counsel, concludes in good faith
that it need not comply with or obey any such orders, judgments, decrees or
levies, Agent need not do so. In any event, Agent shall not be liable by reason
of such action or omission to act to the Company or to any other person, firm,
association or corporation, even if thereafter any such order, decree, judgment
or levy be reversed, modified, annulled, set aside or vacated;
(c) Be entitled to consult with Agent's counsel and, except for
gross negligence or willful misconduct, shall not be liable for any action taken
or omitted by Agent in accordance with the opinion and advice of such counsel
whether such counsel be a member of Agent's house counsel staff or independent
counsel;
(d) Be indemnified by Company against any claim or charge made
against Agent by reason of its acting or failure to act in connection with any
of the transactions contemplated hereby, and against any loss Agent may sustain
in carrying out the terms of this Agreement, except as a result of Agent's gross
negligence or willful misconduct; and
(e) Be entitled to compensation from Company for acting hereunder
in accordance with the fee schedule attached hereto.
12. Each party to this Agreement shall be deemed conclusively to have
given and delivered any notice required to be given or delivered hereunder if
the same is in writing, signed by such party and mailed by registered and
certified mail, postage prepaid, addressed to the other party hereto, at the
address set forth below; provided, however, that the verification required of
Agent by Paragraph 3 above, shall be given orally (by telephone or in person) by
contacting or at or respectively, and then confirmed in writing if Company so
requests. Any written notices required by this Agreement shall be addressed as
follows:
If to Agent:
BancFirst
000 Xxxxx Xxxxxxxx
X.X. Xxx 00000
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000
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If to Company:
U.S. Automobile Acceptance SNP-IV, Inc.
0000 X.X. 00xx, Xxxxx X-000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
13. This Agreement expressly and exclusively sets forth the duties of
Agent with respect to any and all matters pertinent hereto and no implied duties
or obligations shall be read into this Agreement against Agent.
14. Unless and until the Escrow is delivered to Company, it is
specifically recognized and agreed that Company shall not have any right, title
or interest in such funds; it being the intention of the parties hereto that the
Escrow Fund shall not be subject to claims against Company or any of its
affiliates unless and until the minimum subscription amount is achieved and
delivery of the funds thereof is made, as aforesaid, and the escrow account
hereunder is ended.
15. This Agreement is being made in and is intended to be constructed
according to the laws of the State of Texas. It shall inure to and be binding
upon the parties hereto, their successors and assigns the terms of this
Agreement shall commence with the date hereof and shall continue until the
offering of the minimum subscription amount is achieved or fails to be achieved
by escrow termination date, and the Escrow Fund is disposed under the provision
of this Agreement.
16. Agent shall deposit all funds received in insured accounts such
that each Investor which deposits funds in insured to the maximum amount allowed
under FDIC regulations, irrespective of the aggregate amount of funds received
from all Investors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by duly authorized representatives as of the date
first above written.
COMPANY:
U.S. Automobile Acceptance SNP-IV, Inc.
By:
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Its:
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AGENT:
BancFirst
By:
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Its:
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