EXHIBIT 10.1
PROCEEDS ESCROW AGREEMENT
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THIS AGREEMENT made and entered into as of the 1st day of September,
1996, by and among FOUNDATION CAPITAL RESOURCES, INC., a corporation duly
organized and existing under the laws of the State of Georgia (hereinafter
referred to as "Issuer"), RELIANCE TRUST COMPANY, a Georgia bank and trust
company (hereinafter referred to as "Escrow Agent"), and XXXXX XXXXXXX & CO.,
INC. (hereinafter referred to as "Broker").
W I T N E S S E T H:
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WHEREAS, Issuer desires to issue its 2002 Series A Certificates of
Participation ("Certificates") pursuant to a Trust Indenture between Issuer and
Reliance Trust Company, as Trustee, dated as of January 1, 2002 (hereinafter
referred to as the "Trust Indenture"); and
WHEREAS, the Issuer and the Broker, as Issuer's agent, intend to sell
the Certificates on a best-efforts basis; and
WHEREAS, the terms of the aforesaid offering require that the proceeds
to the Issuer from the sale of the Certificates ("Proceeds") be held in escrow
with the Escrow Agent;
NOW, THEREFORE, it is hereby agreed by and among the parties as
follows:
1. CERTIFICATE FINANCING.
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This Agreement is being executed as part of a financing arrangement
involving the issuance of the Certificates, the execution of the Trust
Indenture, Prospectus, and other related documents, all of which are
incorporated herein by this reference. All defined terms not otherwise defined
herein shall have the meaning ascribed to them in the Trust Indenture.
2. FUNDS TO BE PLACED IN ESCROW.
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All Proceeds from all sales of the Certificates shall be paid to the
Escrow Agent to be held in a fund known as the "Foundation Capital Resources,
Inc. 2002 Series A Escrow Account" (the "Escrow Account"). The Issuer and Broker
shall cause any checks received by them in payment for the Certificates to be
payable to the Escrow Agent. Notwithstanding the foregoing proceeds from the
sale of Certificates under Issuer's Interest Reinvestment Plan shall not be
escrowed with Escrow Agent.
3. DUTY OF THE ESCROW AGENT.
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The sole duty of the Escrow Agent shall be to receive the Proceeds and
hold them and disburse them in accordance with the terms hereof. The Escrow
Agent shall be under no duty to make certain that the Issuer and Broker are
complying with the requirements of this Agreement.
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4. DISBURSEMENT.
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The Escrow Account shall be disbursed by the Escrow Agent to or for
the benefit of the Issuer as provided herein. Prior to any disbursement, Escrow
Agent shall have reserved:
(a) a written request from the Issuer;
(b) a Grant and Delivery of Pledged Assets together with the Required
Documentation equal to the Basic Maintenance Amount; and
(c) a Certificate of Available Eligible Collateral.
Notwithstanding the foregoing, no draw request shall be required for payment of
fees and expenses of Trustee or Broker.
5. USE OF PROCEEDS.
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The Proceeds from the offering will be used in the following order of
priority: to (i) pay the expenses incurred by the Issuer in connection with the
offering, including broker fees and sales commissions, legal and accounting fees
and expenses, title fees, trustee fees, printing expenses and miscellaneous
expenses and contingencies; and (ii) to fund the acquisition or making of
mortgage loans, to purchase mortgage loans, to repay any borrowings incurred to
acquire mortgagee loans and for general working capital and other purposes. Any
Proceeds in excess of the amount required to pay the expenses of the offering
will be released by Escrow Agent to Issuer the subject to the collateral
assignment and pledge of Eligible Collateral in the Basic Maintenance Amount as
such terms are defined in the Trust Indenture.
6. TERMINATION.
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(A) This Agreement shall terminate when the Certificates have been
sold or all unsold Certificates cancelled and the Escrow Account has been fully
disbursed.
(B) Upon any termination of this Agreement after all obligations to
the Certificate holders, Broker, and Escrow Agent have been met, any balance in
the Escrow Account shall be disbursed to the Issuer.
7. MAINTENANCE OF FUND.
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Escrow Agent shall hold the escrow funds in trust, commingled with
similar funds of other issuers, but shall maintain detailed records to reflect
the share thereof attributable to each issuer. Escrow Agent may invest such
funds in any form of account or deposit insured by federal depositor insurance
or in interest-bearing obligations issued by the United States Government or any
political subdivision thereof or mutual funds investing therein. Escrow Agent
shall furnish periodic statements to Issuer reflecting all receipts and
disbursements from the Escrow Account.
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8. INTEREST.
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Escrow Agent shall pay to the Issuer all interest earned on the
escrowed funds in the Escrow Account less a management fee as set forth in the
separate fee agreement made a part hereof by reference. Escrow Agent shall
credit interest earned to the Escrow Account monthly.
9. CONTROVERSY.
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If any controversy arises between the parties hereto or with any third
person, the Escrow Agent shall not be required to determine the same or to take
any action but may await the settlement of any such controversy by final
appropriate legal proceeding, or otherwise as the Escrow Agent may require, or
the Escrow Agent may, in its discretion, institute such appropriate interpleader
or other proceedings in connection therewith as it may deem proper,
notwithstanding anything in this Agreement to the contrary. In any such event,
the Escrow Agent shall not be liable for interest or damages to the Issuer or
the Certificate holders.
10. ESCROW AGENT'S AND BROKER'S LIABILITY.
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The Escrow Agent's and Broker's obligations and duties in connection
herewith are confined to those specifically enumerated in this Agreement. The
Escrow Agent and Broker shall not be in any manner liable or responsible for the
sufficiency, correctness, genuiness or validity of any instruments received by
or deposited with them or with reference to the form of execution thereof, or
the identity, authority or rights of any person executing, delivering, or
depositing same, and neither the Escrow Agent nor the Broker shall be liable for
any loss that may occur by reason of forgery, false representation or the
exercise of their discretion in any particular manner or for any other reason,
except for their own negligence or willful misconduct. In addition to the
foregoing, Escrow Agent shall be entitled to all the privileges, rights,
benefits, and immunities provided to the Trustee in the Trust Indenture.
11. ESCROW AGENT'S COMPENSATION.
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Escrow Agent shall receive compensation for its services as set forth
in a separate agreement between the Issuer and the Escrow Agent.
12. BINDING AGREEMENT AND SUBSTITUTION OF ESCROW.
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The terms and conditions of this Agreement shall be binding on the
heirs, executors and assigns, creditors or transferees, or successors in
interest, whether by operation of law or otherwise, of the parties hereto. If,
for any reason, the Escrow Agent named herein should be unable or unwilling to
continue as such Escrow Agent, then the other parties to this Agreement may
substitute a bank or trust company to serve as Escrow Agent. Any apportionment
of the fees will be subject to agreement of the parties.
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13. MODIFICATION.
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This Agreement shall not be modified in any respect without prior
written approval of the Escrow Agent and the Issuer.
14. CHOICE OF LAW.
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This Agreement shall be subject in all respects to the laws of the
State of Georgia.
15. ATTORNEYS' FEES.
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In the event that this Agreement results in litigation between the
parties hereto, the prevailing party as determined by the court shall be
entitled to be paid a reasonable amount for attorneys' fees incurred in
connection with enforcing its rights pursuant to the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be executed as of the day and year first above written.
ISSUER:
FOUNDATION CAPITAL RESOURCES, INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
ESCROW AGENT:
RELIANCE TRUST COMPANY
By:____________________________________
Name:__________________________________
Title:_________________________________
BROKER:
XXXXX XXXXXXX & COMPANY, INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
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