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EXHIBIT 10.29
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ESCROW AGREEMENT
Delivered To: Sterling Bank and Trust Company
By: MCA Financial Corp.
MCA Mortgage Corporation
Mortgage Corporation of America
Mortgage Corporation of America, Inc.
Rimco Realty and Mortgage Co.
Complete Financial Corp.
Securities Corporation of America
and
The Board of Trustees of the Policemen and
Firemen Retirement System of the City of Detroit
Date: March ___, 1998
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT (including all amendments, modifications and
extension thereto, and restatements thereof, is hereinafter referred to as
"Agreement") is made this ____ day of March, 1998, by and among MCA Financial
Corp., MCA Mortgage Corporation, Mortgage Corporation of America, Mortgage
Corporation of America, Inc., Rimco Realty and Mortgage Co., Complete Financial
Corp., Securities Corporation of America ("Borrowers") , The Board of Trustees
of the Policemen and Firemen Retirement System of the City of Detroit ("Lender")
and Sterling Bank and Trust, FSB ("Escrow Agent").
RECITALS
A. Borrowers and Lender have entered into that certain Second Loan
and Financing Agreement dated of even date herewith ("Loan Agreement"), whereby
Lender has agreed to loan to Borrowers $30,000,000.00 (the "Loan Amount") for
the purposes set forth in the Loan Agreement. Capitalized terms used in this
Agreement, unless otherwise defined herein, have the meaning ascribed to them in
the Loan Agreement or in the other agreements related to the Loan Agreement.
B. Pursuant to the Loan Agreement, Lender will advance to Escrow Agent
the Loan Amount.
C. Borrowers, Lender and Escrow Agent wish to establish the terms and
conditions under which the Loan Amount will be held and disbursed.
NOW, THEREFORE, in consideration of the performance of the covenants
contained herein, Borrowers, Lender and Escrow Agent hereby agree as follows:
1. DUTIES OF ESCROW AGENT.
(a) Lender herewith deposits with Escrow Agent the Loan Amount, the
receipt of which is hereby acknowledged.
(b) Escrow Agent shall establish an interest bearing Escrow Account
("Escrow Account") into which shall be deposited the Loan Amount, together with
payments received by Escrow Agent from any of the Borrowers, from time to time,
which payments shall be deposited no later than the next Business Day after
receipt thereof, and which Escrow Account shall further contain interest accrued
thereon, from time to time (until disbursed to Borrowers or Lender as herein
required) (collectively the "Escrow Funds"). Escrow Agent shall deliver, no
later than the fifth (5th) Business Day of each month, to Lender's Authorized
Agent and Borrowers, as of the first (lst) Business Day of each month, a monthly
transaction and investment report showing an itemization of receipts and
disbursements of the Escrow Funds, interest earned thereon, the balance of the
Escrow Funds in the Escrow Account as of the date of such report, and such other
information as Lender or Lender's Authorized Agent may reasonably require and
that reasonably
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obtainable by Escrow Agent, provided further that the reasonable costs incurred
by Escrow Agent associated therewith shall be paid by Borrowers.
(c) Escrow Agent shall invest the Escrow Funds in such interest bearing
investments, from time to time, as directed by Borrowers, and approved by
Lender's Authorized Agent, such approval not to be unreasonably withheld.
Neither Lender nor Lender's Authorized Agent shall have any responsibility or
liability for any such investments (including the rate of interest earned
thereon, from time to time). Escrow Agent shall endeavor in good faith to abide
by Borrowers' directions regarding the interest bearing investments, but shall
not be or become liable to Borrowers or any other party unless it is
demonstrated that Escrow Agent willfully acted contrary to Borrowers' directions
or was grossly negligent in carrying out such directions. Escrow Agent shall not
be or become liable to Borrowers or any other party if the interest bearing
investments directed by Borrowers allow for liquidation according to a schedule
inconsistent with any of Borrowers' Requests for Advances.
(d) Escrow Agent shall make each Money Advance in response to a Request
for Advance from Borrowers. Borrowers shall submit Requests for Advances no more
often than once in any trailing Two (2) week period, and no more often than
twice in any calendar month.
(i) To make a Request for Advance, Borrowers shall notify Escrow
Agent of the amount of the Money Advance requested.
(ii) Simultaneously with notice to Escrow Agent noted in
Subsection 1(d)(i), Borrowers shall convey to Lender's Authorized Agent the
Request for Advance sent to Escrow Agent, together with each of the
following items:
(A) the amount of the Money Advance requested; and
(B) a certification by an Authorized signatory of the amount of
the requested Money Advance which will be allocated to and used for
Qualifying Equity, Qualifying Equipment and Qualifying Working
Capital, together with. all supporting documentation reasonably
required by Lender's Authorized Agent; and
(C) a certification by an Authorized Signatory that no Event of
Default or Matured Event of Default exists, or after giving effect to
such Request for Advance, will be created thereby; and
(D) a certification by an Authorized Signatory (irrespective of
whether a duplication of matters set forth in D (ii) (3)) that after
giving effect to such Request for Advance, there will be no sums
outstanding in excess of the Loan Base; and
(E) a certification by an Authorized Signatory of the amount of
the Senior Debt then outstanding; and
(F) a certification by an Authorized Signatory (irrespective of
whether a duplication of matters set forth in D(ii)(3)) that after
giving effect to the Request for Advance, Borrowers will not be in
violation of the Senior Debt To Net Worth Ratio; and
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(G) a certification by an Authorized Signatory stating the Value
of Qualifying Non-Conforming Loans.
(iii)Upon receipt of the Request for Advance, Escrow Agent shall
notify Lender and Lender's Authorized Agent of the effective date (which
shall be the close of business on the fifth (5th) Business Day following
the receipt date of the Request for Advance ("Effective Date")). If Escrow
Agent has not received written notice (which may be by facsimile) of
Lender's or Lender's Authorized Agent's disapproval of the Request for
Advance prior to the Effective Date, the Request for Advance shall be
honored on the next Business Day following the Effective Date.
(e) Notwithstanding anything herein contained, or the amount of the Escrow
Funds then existing, Borrowers shall make all payments due under the Note to the
Lender. Accrued interest on the investments received by Escrow Agent between
payment due dates as set forth in (or under) the Note shall be held in the
Escrow Account. On each such payment due date, Escrow Agent shall deliver to
Borrowers all interest on the investments received since the next previous
payment due date.
2. AGREEMENT SUPPLEMENTAL.
As between Lender and Borrowers, this Agreement is supplementary to, and
not in lieu of, the provisions of the Loan Agreement, and in the event of any
conflict between the provisions hereof and any provision of the Loan Agreement,
the provisions of the Loan Agreement shall be controlling.
3. AUTHORIZED AGENT.
Lender hereby notifies Borrowers and Escrow Agent that the Lender's
Authorized Agent is Xxxxxx & Xxxxx, L.L.P., who is authorized to act for and on
behalf of Lender in connection with this Agreement. Lender may substitute any
other person or entity, from time to time, upon written notice to Borrowers and
Escrow Agent, who shall then be the Lender's Authorized Agent. Notwithstanding
the Agency designation, the Lender's Authorized Agent is an independent
contractor, and the Lender's Authorized Agent may elect, from time to time, not
to act for the Lender unless the Lender has been specifically consulted.
4. NOTICE.
Except as otherwise provided herein, all notices, demands and requests that
any party is required or elects to give to the other shall be in writing, or by
a telecommunications device capable of creating a written record, and any such
notice shall become effective (other than a Request For Advance which shall be
effective as provided in Section 1(d)(iii)) (a) upon personal delivery thereof,
including, but not limited to, delivery by overnight mail and courier service,
(b) three (3) calendar days after it shall have been mailed by United States
mail, first class, certified or registered, with postage prepaid, or (c) in the
case of notice by such a telecommunications device, when properly transmitted,
in each case addressed to the party to be notified as follows:
If To Lender: Board of Trustees of the Policemen and Firemen
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Retirement System of the City of Detroit
000 Xxxx-Xxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx Xxxxx, Assistant
Administrator Supervisor
Telecopy No.: (000) 000-0000
With A Copy To: Couzens, Lansky, Fealk, Ellis, Xxxxxx & Xxxxx, P.C.
00000 Xxxx 00 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
With A Copy To: Xxxxxx Xxxxx, Esq.
000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
With A Copy To: Xxxxxx & Xxxxx, L.L.P.
00000 Xxxxxxxxxxxx Xxxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxx Xxxxx
Telecopy No.: (000) 000-0000
If To Borrowers: c/o MCA Financial Corp.
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxx X. Xxxxx, President
Telecopy No.: (000) 000-0000
With A Copy To: Butzel Long
000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
If To Escrow Agent: Sterling Bank and Trust, FSB
Xxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxx
Telecopy No.: (000) 000-0000
or to such other address as each party may designate for itself by like
notice.
5. DUTIES, DISPUTES, AND RESIGNATIONS.
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(a) Escrow Agent shall have no duties or responsibilities other than those
expressly set forth in this Agreement. Escrow Agent shall have no duty to
enforce any obligation of any person (other than Escrow Agent) to make any
payment or delivery or to direct or enforce any obligation of any person to
perform any other act. Escrow Agent will have no liability to anyone by reason
of any failure on the part of any party (other than Escrow Agent) to perform
such party's obligations under any agreement, instrument, or document pertaining
to (or contemplated in) the Loan Agreement or the Note. Except for this
Agreement and the instructions to Escrow Agent as provided in this Agreement,
Escrow Agent will not be obligated to recognize any agreement between any or all
of the parties, notwithstanding that it may have knowledge thereof.
(b) Escrow Agent may rely upon any written notice, request, waiver,
consent, certificate, receipt, authorization, power of attorney, or other
instrument or document which Escrow Agent in good faith believes to be genuine
and to be what it purports to be.
(c) In the event of any disagreement between the parties hereto resulting
in conflicting instructions to, or adverse claims or demands upon, Escrow Agent
with respect to the matters herein set forth, the Escrow Agent may refuse to
comply with any such instruction, claim or demand so long as such disagreement
shall continue, and in so refusing Escrow Agent shall not release the Escrow
Funds. Escrow Agent shall not be or become liable in any way for its failure or
refusal to comply with any such conflicting instructions or adverse claims or
demands, and it shall be entitled to continue to refrain from acting until such
conflicting instructions or adverse claims or demands (i) shall have been
resolved by agreement among Lender and Borrowers and Escrow Agent shall have
been notified in writing thereof by the Lender and Borrowers, or (ii) shall have
finally been determined in a court of competent jurisdiction.
(d) Escrow Agent may, in its sole discretion, resign by giving Thirty (30)
days written notice thereof to the parties hereto, and Lender or Lender's
Authorized Agent may, by giving thirty (30) days written notice, replace Escrow
Agent. In either of such event, Lender or Lender's Authorized Agent shall
furnish to Escrow Agent written instructions for disposition of the Escrow
Funds. If Escrow Agent shall not have received such written instructions within
the thirty (30) day period, Escrow Agent may petition any court of competent
jurisdiction for the appointment of a successor Escrow Agent and, upon such
appointment, Escrow Agent shall deliver the Escrow Funds to such successor.
6. INDEMNIFICATION, REIMBURSEMENT.
(a) Borrowers, jointly and severally, shall indemnify and hold harmless
Escrow Agent from and against any fees, costs, expenses, claims, damages or
losses (including reasonable counsel and/or attorney fees and disbursements)
suffered by Escrow Agent in connection with any claim or demand which in any
way, directly or indirectly, arises out of or relates to this Agreement, the
services of Escrow Agent hereunder, or the filing by Escrow Agent of any action
related to this Agreement, other than as a result of Escrow Agent's negligence
or willful misconduct.
(b) Escrow Agent shall be entitled to reimbursement from Borrowers for
out-of-pocket expenses paid or incurred by it in the administration of its
duties hereunder, including, but
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not limited to, all reasonable counsel, attorney, advisor, and agent fees and
disbursements and all taxes or other governmental charges. If Escrow Agent
incurs any costs, losses, liabilities, damages or expenses (including reasonable
counsel/attorney fees) in connection with its activity as Escrow Agent, its
holding of the Escrow Funds, or its filing of any interpleader or other action,
the same shall be paid by Borrowers, except to the extent that same result from
Escrow Agent's negligence or willful misconduct.
7. ESCROW AGENT SOLELY FOR BENEFIT OF LENDER.
The Borrowers and Escrow Agent acknowledge and agree that (a) this Escrow
Agreement is solely for the benefit of Lender in disbursing and collecting
funds, and (b) the Escrow Agent is solely the agent of Lender, and (c) all
Escrow Funds are the sole and exclusive property of Lender, and neither the
Borrowers nor any other person or entity shall have any right, title or interest
in any of the Escrow Funds, or any claim for any of the foregoing with respect
to the Escrow Funds, except as provided in Section 1(e) with respect to earnings
on the Escrow Funds, and (d) interest under the Note shall in all events accrue
as of the date hereof, and be due and payable, together with principal payments
as required under the Note, notwithstanding the other provision of this
Agreement and in particular, Section 7, and notwithstanding the rate of interest
on the investments (which may be less than the interest due under the Note),
which rate of interest is at the sole risk of the Borrowers.
8. ESCROW AGENT'S FEES.
The fees payable to the Escrow Agent for its performance of services under
this Agreement are set forth in Exhibit "A" which is attached to this Agreement
and made a part hereof. Notwithstanding that this Agreement is solely for the
benefit of the Lender, all fees due Escrow Agent shall be paid by Borrowers.
9. CHANGES.
Any changes in the terms or conditions hereof may be made only in writing
signed by all parties or their duly authorized representatives.
10. BINDING EFFECT.
This Agreement shall inure to the benefit of, and be binding, on the
parties hereto and their respective successors and assigns.
11. TERMINATION.
On the Amortization Commencement Date, or as soon thereafter as is
practicable, Borrowers and Lenders shall deliver to Escrow Agent a joint written
instruction (which may be executed on behalf of Lender by Lender's Authorized
Agent) certifying that the Amortization Commencement Date has occurred and
authorizing and directing Escrow Agent to deliver to the Lender all Escrow Funds
remaining in the Escrow Account (and funds in any investments made pursuant to
Section 1(c) of this Agreement). As soon as practical following receipt thereof,
Escrow Agent shall deliver such funds to Lender together with a final monthly
transaction and
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investment report. This Agreement shall terminate upon delivery to Lender of
such funds and report.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed on their behalf by their duly authorized officers or representatives,
on the day and year first above written.
MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION,
A MICHIGAN CORPORATION A MICHIGAN CORPORATION
By: __________________________________ By: ____________________________
Its:__________________________________ Its: ____________________________
MORTGAGE CORPORATION OF AMERICA, MORTGAGE CORPORATION OF AMERICA, INC.
A MICHIGAN CORPORATION AN OHIO CORPORATION
By: __________________________________ By: ____________________________
Its:__________________________________ Its: ____________________________
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RIMCO REALTY AND MORTGAGE CO., COMPLETE FINANCIAL CORP.,
A MICHIGAN CORPORATION A MICHIGAN CORPORATION
By: __________________________________ By: ____________________________
Its:__________________________________ Its: ____________________________
STERLING BANK AND TRUST COMPANY, FSB
SECURITIES CORPORATION OF AMERICA,
A MICHIGAN CORPORATION
By: __________________________________ By: ____________________________
Its:__________________________________ Its: ____________________________
THE BOARD OF TRUSTEES OF THE
POLICEMEN AND FIREMEN RETIREMENT
SYSTEM OF THE CITY OF DETROIT
By: ________________________________
Its: ________________________________
By: ________________________________
Its: ________________________________
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EXHIBIT A
ESCROW AGENT'S FEES
This Exhibit is delivered pursuant to Section 8 of the Escrow Agreement .
Escrow fees payable to Sterling Bank, FSB shall be as follows:
1. $9,300 annually, payable on the date of the Escrow Agreement with
respect to the initial year of the escrow and upon each anniversary of the date
of this Escrow Agreement during the term hereof; and
2. An Account Maintenance Fee of $500 annually per account, payable on the
date of the Escrow Agreement with respect to the initial year of the escrow and
upon each anniversary of the date of this Escrow Agreement during the term
hereof; and
3. If Escrow Agent invests the Escrow Fund in investments other than a
Sterling Bank, FSB demand deposit account or money market account, 25 basis
points per year, charged monthly (based on the average amount invested).
4. Fees for unanticipated services, which will be quoted as needed.
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