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EXHIBIT 10.4
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 Callable 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
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If to Company:
U.S. Automobile Acceptance SNP-IV, Inc.
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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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