EXHIBIT 4a
OFFERING ESCROW AGREEMENT
Agreement made and entered by and between BRIGHTON STATE BANK of 000
Xxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx, 00000 (hereinafter the "Bank"); MORTGAGE
PROFESSIONALS LEAD SOURCE, INC. (hereinafter "Mortgage" or "Issuer") in Salt
Lake City, State of Utah.
NAME OF UNDERWRITER: NONE
NAME OF ISSUER: MORTGAGE PROFESSIONALS LEAD SOURCE, INC.
ESCROW NUMBER:
DATE FILED:
TERMS: SEE BELOW
1.0 CONSIDERATION. This Escrow Fund Agreement is supported by
the consideration of escrowed funds to be deposited with the Bank, the
initial fee of Seven Hundred FiftyDollars ($750.00) by Issuer paid to Bank
for the services to be rendered herein; and, independently by the mutual
covenants and promises contained herein.
2.0 PURPOSE OF ESCROW. It is understood by each of the parties
to this Agreement that Mortgage intends to engage in a public sale and self
underwriting of its common stock pursuant to an Initial Public Offering
("IPO"). No assurance can be given that any or all of the Offering will be
sold or closed in accordance with the terms of the Registration. The
Registration does, however, provide for an escrow of Offering proceeds of
the first $100,000 before Offering proceeds may be released to Mortgage.
The purpose of this Fund Impound is to insure an independent third party
escrow (the Bank) receives and holds the Offering proceeds in a segregated
account until and unless such minimum proceeds shall be received within the
Offering Termination Date. In the event that the $100,000 is not fully
paid, deposited and collected by the Offering Termination Date, as defined
herein, then the Bank shall remit to the subscribers in the Offering,
strictly in accordance with the addresses and information supplied by the
Issuer, the full amount of their subscription and the escrow will be closed
and the Bank discharged from any further duties or responsibilities upon the
mailing of such subscription refunds. The Bank further agrees that promptly
upon the collection within the Offering term of the total sum of $100,000,
it will remit, by certified funds, the proceeds from the Offering Impound
Fund directly to Mortgage.
3.0 ESCROW TERM. It is understood and agreed between all parties
of this Agreement that the term in which funds must be remitted to Mortgage
or returned to subscribers, shall close on the one hundred twenty day
(120/day) anniversary date from the Effective Date of the Registration
Statement. It is anticipated, though not warranted, that the Registration
will become effective in July or August 2001. It shall be the
responsibility of the Issuer to deliver in writing to the Bank the formal
Notice of Effective Date of Registration, as received from the Securities
and Exchange Commission ("SEC"), a copy of which Notice shall be attached to
this Agreement and constitute the basis for measuring the Offering
Termination Date. In all events, this Agreement shall terminate and all
funds escrowed shall be returned not later than six months from the date of
this Agreement, if Mortgage does not provide an earlier termination date as
outlined above.
4.0 DESCRIPTION OF BANK'S FUNCTIONS AS ESCROW AND INDEMNITY.
It is understood and agreed between each party to this Agreement that the
Bank is acting solely as a depository for intended subscription funds. The
sole duties and responsibilities of the Bank are as outlined by this
Agreement to receive and deposit such funds into a segregated FDIC insured
escrow account and to maintain a file of the subscribers and the amounts of
the subscription in the form as delivered by the Issuer. Specifically, and
not in limitation of, the foregoing limited statement of duties:
4.1 The Bank shall not, or ever, be required to perform any due
diligence as to the merits, terms, or any other matters related to the IPO
and securities Registration of the Issuer, nor to pass upon the validity of
the Registration, or good standing of the Issuer, or any other related terms
or conditions of the Offering in any manner or to make any representation as
to such matters.
4.2 The Bank shall not be required to take or be bound by notice
of any default by any person, or to take any action with respect to such
default involving any expense or liability, unless notice in writing is
given to the principal officer of the Bank of such default by the Issuer or
any subscriber, and then, only unless the Bank and its employees and
officers are fully indemnified in a manner satisfactory to it against any
such expense or liability.
4.3 The Bank shall be protected in acting upon any notice,
requests, waiver, consent, receipt or other paper document believed by the
Bank to be genuine and to be signed by the proper party or parties.
4.4 The Bank shall not be liable for the default or misconduct of
any agent, attorney or employee acting on behalf of the Issuer.
4.5 In the event of any disagreement between the undersigned or
either of them, and/or any third party subscriber or other person asserting
claims or interest resulting in adverse claims being made in connection with
or for any papers, money or property involved in this Agreement, the Bank
shall be entitled, at its option, to refuse to comply with any competing
demands so long as such disagreements shall continue; and in so refusing,
the Bank may make delivery or other disposition of any money, paper or
property involved in such dispute or effected thereby and may deposit any
such disputed money, paper or property into a Court of competent
jurisdiction in Salt Lake County, State of Utah interpleading the claimants
at the expense of such claimants, and thereafter be fully discharged and
released from any and all responsibility or liability for such competing
claims, except for its right and agreement of all parties hereto to
reimburse the Bank fully for any costs or expenses incurred by it in such
interpleader action, including all reasonable attorney fees.
4.6 In addition to the foregoing waivers and releases, each of
the parties hereto agree to fully indemnify, including reasonable costs of
defense, any and all claims which may be asserted against the Bank, not
arising out of its own negligent or willful acts or misfeasance, which it
may incur in discharging its duties under this Escrow Agreement.
5.0 FEES. The Bank charges a flat fee of Seven Hundred Fifty
Dollars ($750.00) for the establishment of the Escrow and as consideration
for this Agreement. The Bank agrees that it will charge no further or
additional fees for its basic services as described by this Agreement,
except for any "per check" charges defined below in the event the escrow is
not satisfied and that funds are to be returned to subscribers. The Bank
acknowledged receipt and sufficiency of such $750.00 fee from Mortgage,
subject only to collection. It is further understood and agreed between
Bank and Mortgage that no interest will accrue or be earned on escrowed funds.
6.0 PAYMENT IN THE EVENT OF TERMINATION OF ESCROW. In the event
that the escrow amount ($100,000) is not fully received by the Bank by the
escrow Termination Date, as defined under paragraph 3.0 of this Agreement,
then the Bank is directed and obligated to mail a return check to each
subscriber at the address indicated in the subscription list supplied by the
Issuer at the time of deposit. The Bank will determine and charge a Five
Dollars ($5.00) fee for EACH ADDRESSEE for return subscription checks.
Prior to mailing any return subscription checks, in the event of the
termination of the escrow, the Bank will xxxx and receive from the Issuer,
the amount of the estimated return check fees for all subscribers. In the
event that the Issuer does not tender the required estimated return check
fees within fifteen (15) days of notice and invoicing of such estimated
charges by the Bank, the Bank is authorized to deduct the amount of such
processing fee ($5.00 per check) from the escrowed funds and to pro rate the
total of such fees on a per capita basis as to each addressee entitled to a
refund check. The Bank would then promptly refund the net checks, after the
deduction of the processing and mailing fee of $5.00 per addressee. The
Bank may further, at its election, include the following notice, or
substantially similar notice, in such event with the return check:
"NOTWITHSTANDING ANY TERM OR PROVISION OF THE SUBSCRIPTION
TERMS BY WHICH YOU INVESTED IN THE MORTGAGE OFFERING
INDICATING THAT NO DEDUCTION WOULD OCCUR IN THE EVENT THAT
THE SUBSCRIPTION TERMS WERE NOT FULLY SATISFIED WITHIN THE
SPECIFIED SUBSCRIPTION TERMS, THE BANK, ACTING AS ESCROW, HAS
DEBITED FROM THE AMOUNT OF YOUR SUBSCRIPTION A $5.00 PER
ADDRESSEE MAILING AND PROCESSING CHARGE AS AGREED BY THE
ISSUER DUE TO THE FAILURE OF THE ISSUER TO COVER SUCH MAILING
AND PROCESSING COSTS. SHOULD YOU HAVE ANY QUESTIONS OR
PROBLEM CONCERNING THIS DEDUCTION, THE BANK, AS THE ESCROW
AGENT, WOULD ASK YOU DIRECT SUCH QUESTIONS TO THE ISSUER
(MORTGAGE)."
The Bank will have no responsibility to return funds that have not
yet cleared.
7.0 TENDER AT CLOSING. If $100,000 in cleared funds is deposited
with the Bank before the Offering Termination Date, as described above, then
the Bank, as the escrow agent, shall upon request of the Issuer, tender all
documents and funds to Mortgage, by check made payable to Mortgage and close
the escrow. After the close of escrow the duties, responsibilities and
liability of every kind and character under this Escrow Agreement shall
cease and terminate.
8.0 MISCELLANEOUS.
8.1 This agreement shall be applied and construed in accordance
with Utah law.
8.2 Should any dispute or conflict arise under this Agreement,
all parties agree that jurisdiction shall be proper in the Third District
Court in and for Salt Lake County, State of Utah. In the event of any such
action, the prevailing party shall be entitled to recovery of costs of Court
and reasonable attorney fees.
8.3 Should any term or provision of this Escrow Agreement be
found void or voidable the parties would request that the balance be given
reasonable construction and applied so far as possible.
8.4 Should any notice be required or allowed to be served upon
any party of this Agreement, such party may be served or given notice at the
address first above indicated, unless a new or substitute address has been
served upon the other parties of this Agreement and a Certificate of such
service of change of address attached to this Agreement.
8.5 This Agreement shall be binding upon or inure to the benefit
of the heirs, assigns, successors or beneficiaries in interest of any party
hereto.
8.6 Time is of the essence of this Agreement.
8.7 This Agreement constitutes the entire Agreement between the
parties and shall not be amended or modified by parole evidence, but may be
amended in a writing executed by all parties hereto.
DATED this 28th day of June, 2001.
BRIGHTON BANK
/s/ Xxxxxx Xxxx
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By: Xxxxxx Xxxx
Its: President
MORTGAGE PROFESSIONALS LEAD SOURCE, INC.
/s/ Xxxxxxx Xxxxxxx
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By: Xxxxxxx Xxxxxxx
Its: President
