INCENTIVE FEE SUBORDINATION AGREEMENT
THIS INCENTIVE FEE SUBORDINATION AGREEMENT (this "Agreement"), dated
July 21, 2005, is entered into by and among the United States Small Business
Administration (the "SBA"), MorAmerica Capital Corporation, an Iowa corporation
("MorAmerica"), and InvestAmerica Investment Advisors, Inc., a Delaware
corporation ("InvestAmerica;" with InvestAmerica and MorAmerica together, the
"Companies").
WHEREAS, the Companies have entered into an Investment Advisory
Agreement dated July 20, 2005 (the "Advisory Agreement");
WHEREAS, under the Advisory Agreement, MorAmerica is obligated to pay
InvestAmerica an incentive fee based upon the disposition of MorAmerica's assets
in certain cases, as more particularly set forth in Section 5.2 of the Advisory
Agreement (the "Fees"), and pursuant to Section 5.2(c)(ii) of the Advisory
Agreement, in the event the payment of the Fees causes MorAmerica's Private
Capital (as defined in the Advisory Agreement) to be 25% or more impaired, the
portion of the Fees causing the impairment must be escrowed until MorAmerica's
Private Capital is no longer impaired (the "Escrowed Fees;" with the Escrowed
Fee and all of the Fees together, the "Incentive Fee");
WHEREAS, any Escrowed Fees are subject to that Escrow Agreement of even
date herewith in the form attached hereto as Exhibit A between the Escrow Agent
(as defined therein) and the Companies (the "Escrow Agreement");
WHEREAS, SBA, MorAmerica and certain other SBA licensees are parties to
that SBA Agreement dated December 23, 2004 (the "SBA Agreement"), pursuant to
which MorAmerica is obligated to reimburse SBA, jointly and severally with such
other SBA licensees, for certain of SBA's Losses (as defined in the SBA
Agreement), up to a maximum amount of $7,500,000 (the "Contingent Liability");
WHEREAS, MorAmerica presently is indebted to the SBA for certain
debentures maturing in years 2007 and 2009-2012 (the "Debentures"), the
principal value of all such debentures being $24,790,000, plus any interest or
fees associated therewith either now or in the future (the "Debenture Debt;"
with the Debenture Debt and the Contingent Liability, as well as any other
amounts which may become due to SBA hereafter, together, the "SBA Obligations");
and
WHEREAS, SBA has required the Companies to enter into this Agreement as
a condition to SBA's approval of the Advisory Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Subordination. The Companies hereby acknowledge and agree that
(i) MorAmerica's payment of the Incentive Fee to
InvestAmerica, whether subject to the Escrow Agreement or not, and
(ii) InvestAmerica's receipt of the Incentive Fee, but not its
right to earn or accrue the right to be paid, whether subject to the
Escrow Agreement or not,
shall, during the term of this Agreement, be subordinate and junior to
MorAmerica's payment of the SBA Obligations. Until this Agreement is terminated
and subject to the terms of this Agreement, the Companies hereby unconditionally
subordinate all payments and receipts, as applicable, whether or not subject to
the Escrow Agreement, of the Incentive Fees to the payment in full of the SBA
Obligations.
2. SBA's Rights in SBA Obligations. At all times, SBA shall retain any
rights it may have respecting the SBA Obligations, and the terms hereof shall
not otherwise affect or modify SBA's rights respecting the SBA Obligations.
3. Escrow Agreement. If pursuant to the Advisory Agreement any
Incentive Fees are required to be escrowed, such funds will be promptly escrowed
pursuant to an escrow agreement substantially in the form of the Escrow
Agreement. SBA may request disbursement of escrowed moneys under the Escrow
Agreement only if MorAmerica fails to pay the Debenture Debt at the time it
becomes due and payable or if MorAmerica fails to fund the escrow as required by
the first sentence of this paragraph 3.
3. Termination. This Agreement shall continue in full force and effect
until the earlier of (a) the SBA Obligations shall have been paid in full and
satisfied by MorAmerica, or (ii) SBA permits the Debentures to be rolled over,
refinanced or replaced, or (iii) SBA permits MorAmerica to apply for, draw or
reserve additional or new leverage. Upon such termination, SBA agrees to
cooperate with the Companies to release to InvestAmerica all funds being held in
escrow under the Escrow Agreement and to provide appropriate notification to the
escrow agent.
4. Scope of the Subordination. The provisions of this Agreement are
intended solely to restrict MorAmerica's payment of any Incentive Fee to
InvestAmerica until such time as the SBA Obligations are paid in full or this
Agreement is terminated. Nothing in this Agreement shall: (i) impair the
Companies' other rights or obligations under the Advisory Agreement or any other
agreement to which any of them may be a party; (ii) obligate InvestAmerica to
pay or otherwise be liable for any debt or liability, including the SBA
Obligations, of MorAmerica; (iii) restrict InvestAmerica's right to earn and
accrue the right to receive and to have paid into escrow all Incentive Fees.
5. Notices. Until changed by written notice from one party hereto to
the others, all communications under this Agreement shall be in writing and
addressed to the parties as follows:
To SBA: Associate Administrator for Investment
UNITED STATES SMALL BUSINESS ADMINISTRATION
000 0xx Xx., XX, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
To MorAmerica:
MorAmerica Capital Corporation
000 Xxxxxx Xxxxxx X.X., Xxxxx 000
Xxxxx Xxxxxx XX 00000
Attention: President
With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
To InvestAmerica:
Invest America Investment Advisors, Inc.
000 Xxxxxx Xxxxxx X.X., Xxxxx 000
Xxxxx Xxxxxx XX 00000
Fax (000) 000-0000
Attention: President
6. Representations. Each party hereto represents and warrants to the
other parties that (a) the execution, delivery and performance of this Agreement
are within its corporate or equivalent powers, have been duly authorized and are
not in convention or law or of the terms of its charter documents or of any law,
order, judgment, decree, contract or undertaking to which its is a party or by
which it or any of its properties is bound or affected; and (b) this Agreement
constitutes the legal, valid and binding obligation of it, enforceable against
it in accordance with its terms.
7. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Iowa, without giving effect to the choice of law
principles of such State.
8. Counterparts. This Agreement may be executed in any number of
counterparts, all of which when taken together shall constitute one in the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
9. Amendments; Successors and Assigns. No provision of this Agreement
may be modified or waived except by an instrument or instruments in writing
signed by the parties hereto. This Agreement shall bind the parties hereto and
their respective successors and assigns, and shall inure to the benefit of all
of their respective successors and assigns.
[Signature page to follow.]
IN WITNESS WHEREOF, the parties have hereunto duly executed this
Agreement as of the year and date first above written.
MORAMERICA CAPITAL CORPORATION INVESTAMERICA INVESTMENT ADVISORS, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------- -----------------------------------
Xxxxxx X. Xxxxx, Executive Vice President Xxxxx X. Xxxxxxxx, President
Consented to and accepted by:
UNITED STATES SMALL BUSINESS ADMINISTRATION
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxx, Chief Area II
EXHIBIT A
FORM OF ESCROW AGREEMENT
ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is made as of this __ of day of
___, ____, by and among U.S. Bank, N.A. ("Escrow Agent"), INVESTAMERICA
INVESTMENT ADVISORS, INC., an Iowa corporation (the "Advisor") and MORAMERICA
CAPITAL CORPORATION, an Iowa corporation (the "Fund"). Terms not otherwise
defined herein shall have the meanings set forth in the "Advisory Agreement" (as
defined below).
RECITALS
WHEREAS, the Fund and the Advisor are parties to that certain
Investment Advisory Agreement (the "Advisory Agreement"), dated as of July 21,
2005, which Agreement provides for the Advisor to render certain advisory
services to the Fund on the terms set forth therein (an executed copy of which
Advisory Agreement is attached hereto as Annex A); and
WHEREAS, Section 5.2 of the Advisory Agreement provides for the payment
to the Advisor by the Fund of incentive fees (the "Fees"); and
WHEREAS, Section 5.2(c)(ii) of the Advisory Agreement provides for a
portion of the Fees to be deposited in escrow under certain circumstances; and
WHEREAS, as a condition to approval by the United States Small Business
Administration (the "SBA") of the Advisory Agreement, the SBA has required that:
(i) the Fund, the Advisor and the SBA enter into an Incentive Fee Subordination
Agreement dated July 21, 2005 (the "Subordination Agreement"), (ii) the Fees are
subordinated to the SBA until the Subordination Agreement is terminated pursuant
to its terms (with such Fees so subordinated, the "Subordinated Fees"), (iii)
the Fund and the Advisor grant the SBA the right to demand hereunder payment of
Subordinated Fees to the SBA from the Escrow Fund (defined below), and (iv)
until the Subordination Agreement is terminated pursuant to its terms, no
payment of the Subordinated Fees be made by the Escrow Agent to the Advisor
until the SBA approves such payment as provided in Section 2.
WHEREAS, the parties hereto desire to set forth further terms and
conditions, consistent with the Advisory Agreement, relating to the deposit of
any Fees, and operation of the escrow thereafter.
TERMS
NOW, THEREFORE, the parties hereto agree as follows:
1. Escrow Fund. At such times as are required under the Advisory
Agreement, the Fund shall deposit with the Escrow Agent any Fees earned by the
Advisor and required to be deposited into the Escrow Fund under the terms of
Section 5.2(c)(ii) of the Advisory Agreement, such deposit to constitute the
"Escrow Fund" and to be governed by the terms set forth herein. The Escrow Agent
shall hold and disburse the Escrow Fund pursuant to the terms of this
Agreement. The Escrow Agent shall hold and safeguard the Escrow Fund until the
Escrow Fund is disbursed as provided herein and shall treat the Escrow Fund as a
trust fund in accordance with the terms of this Agreement and not as the
property of the Fund and shall hold and dispose of the Escrow Fund only in
accordance with the terms of the Advisory Agreement and the terms hereof.
Notwithstanding Escrow Agent's disbursement to either the SBA or the Advisor of
any Escrow Funds, this Agreement shall remain in effect until either the Escrow
Agent resigns its duties hereunder pursuant to Section 4(h), or the Advisory
Agreement is terminated (with the date of either such events, the "Termination
Date").
2. Claims upon Escrow Fund. Escrow Agent shall only be obligated to
disburse amounts from the Escrow Fund upon receipt of the certificates provided
in this Section 2.
(a) During the term of the Subordination Agreement, the Escrow
Agent shall only be obligated to disburse amounts from the Escrow Fund as
provided in this Section 2(a). Such disbursements shall either be made to the
Advisor or to the SBA.
(i) The Escrow Agent shall disburse amounts from the Escrow
Fund to the Advisor when the Escrow Agent receives from the Advisor a
certificate in the form attached hereto as Annex B (the "Advisor's Release
Certificate") which contains: (y) a signature on behalf of the Fund by
either the President or Chief Financial Officer of the Fund (each an
"Authorized Officer") indicating that under the terms of the Advisory
Agreement, such Escrow Funds may be disbursed to the Advisor because
either: (A) such Escrow Funds are no longer restricted under Section
5.2(c)(ii) of the Advisory Agreement, or (B) the Advisory Agreement has
been terminated, and (z) a signature on behalf of the SBA indicating that
the SBA approves such disbursement of Escrow Funds to the Advisor.
(ii) The Escrow Agent shall disburse amounts from the Escrow
Fund to the SBA when the Escrow Agent receives from the Fund a certificate
in the form attached hereto as Annex C (the "SBA Release Certificate")
which contains: (x) a signature on behalf of the Fund by an Authorized
Officer indicating that under the terms of the Subordination Agreement,
such Escrow Funds may be disbursed to the SBA, (y) a signature on behalf of
the Advisor by either the President or Vice President of the Advisor
indicating the Advisor's acknowledgment the such disbursement is required
by the SBA under the terms of the Subordination Agreement, and (z) a
signature on behalf of the SBA indicating that the SBA has required such
disbursement of Escrow Funds to the SBA pursuant to the Subordination
Agreement.
(b) After the termination of the Subordination Agreement, the
Escrow Agent shall only be obligated to disburse amounts from the Escrow Fund as
provided in this Section 2(b). The Escrow Agent shall disburse amounts from the
Escrow Fund to the Advisor when the Escrow Agent receives from the Advisor a
certificate in the form attached hereto as Annex D (the "Release Certificate")
which contains a signature on behalf of the Fund by an Authorized Officer
indicating that under the terms of the Advisory Agreement, such Escrow Funds may
be disbursed to the Advisor because the Subordination Agreement has been
terminated and either:
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(i) such Escrow Funds are no longer restricted under Section 5.2(c)(ii) of the
Advisory Agreement, or (ii) the Advisory Agreement has been terminated.
3. Resolution of Conflicts; Arbitration.
(a) In case the Fund or the Advisor shall object in writing to any
claim or claims made by the other party in any Advisor's Release Certificate,
SBA Release Certificate or Release Certificate (collectively, the
"Certificates"), the parties shall attempt in good faith to agree upon the
rights of the respective parties with respect to each of such claims. If the
parties should so agree, a memorandum setting forth such agreement shall be
prepared and signed by both parties and shall be furnished to the Escrow Agent.
The Escrow Agent shall be entitled to rely on any such memorandum and disburse
amounts from the Escrow Fund in accordance with the terms thereof.
(b) If no such agreement can be reached after good faith negotiation,
or in any event, if no such agreement has been reached within thirty (30) days
after the delivery of the Certificate to the Escrow Agent, then either the Fund
or the Advisor may demand binding arbitration of the dispute conducted by a
panel of three (3) arbitrators constituted as follows: (i) an arbitrator
selected by Fund; (ii) an arbitrator selected by the Advisor, and (iii) a third
arbitrator selected by the agreement of the other two arbitrators. The
Arbitration shall be governed by the Commercial Arbitration Rules of the
American Arbitration Association. The award of the arbitrators shall be final.
Judgment upon any award rendered by the arbitrators may be entered in any court
having competent jurisdiction. Any such arbitration shall be held in the county
of Linn, Iowa.
4. Escrow Agent's Duties.
(a) The Escrow Agent shall be obligated only for the performance of
such duties as are specifically set forth herein, and as set forth in any
additional written escrow instructions which the Escrow Agent may receive after
the date of this Agreement which are signed by an Authorized Officer of Fund and
the Advisor and are acceptable to the Escrow Agent, and may rely and shall be
protected in relying or refraining from acting on any instrument reasonably
believed to be genuine and to have been signed or presented by the proper party
or parties. The Escrow Agent shall not be liable for any act done or omitted
hereunder as Escrow Agent while acting in good faith and in the exercise of
reasonable judgment, and any act done or omitted pursuant to the written advice
of counsel reasonably selected by the Escrow Agent shall be conclusive evidence
of such good faith. The Escrow Agent shall not be liable for incidental,
consequential or punitive damages.
(b) The Escrow Agent is hereby expressly authorized to comply with and
obey orders of any court of law or governmental or regulatory authority,
notwithstanding any notices, warnings or other communications from any party or
any other person to the contrary. In case the Escrow Agent obeys or complies
with any such order, the Escrow Agent shall not be liable to any of the parties
hereto or to any other person by reason of such compliance, notwithstanding any
such order being subsequently reversed, modified, annulled, set aside, vacated
or found to have been entered without jurisdiction or proper authority.
-3-
(c) The Escrow Agent shall not be liable in any respect on account of
the identity, authority or rights of the parties executing or delivering or
purporting to execute or deliver this Agreement or any documents or papers
deposited or called for hereunder.
(d) The Escrow Agent shall not be liable for the expiration of any
rights under any statute of limitations with respect to this Agreement or any
documents deposited with the Escrow Agent.
(e) In performing any duties under this Agreement, the Escrow Agent
shall not be liable to any party for damages, losses, or expenses, except for
gross negligence or willful misconduct on the part of the Escrow Agent. The
Escrow Agent shall not incur any such liability for (i) any act or failure to
act made or omitted in good faith, or (ii) any action taken or omitted in
reliance upon any instrument, including any written statement or affidavit
provided for in this Agreement that the Escrow Agent shall in good faith believe
to be genuine, nor will the Escrow Agent be liable or responsible for forgeries,
fraud, impersonations or determining the scope of any representative authority.
In addition, the Escrow Agent may consult with legal counsel in connection with
the Escrow Agent's duties under this Agreement and shall be fully protected in
any act taken, suffered, or permitted by it in good faith in accordance with the
advice of counsel reasonably selected by the Escrow agent. The Escrow Agent is
not responsible for determining and verifying the authority of any person acting
or purporting to act on behalf of any party to this Agreement.
(f) If any controversy arises between the parties to this Agreement,
or with any other party, concerning the subject matter of this Agreement, its
terms or conditions, the Escrow Agent will not be required to determine the
controversy or to take any action regarding it, except to comply with any
arbitration decision, order or award as provided herein. The Escrow Agent may
hold all documents and the Escrow Fund and may wait for settlement of any such
controversy by final appropriate legal proceedings or other means as, in the
Escrow Agent's discretion, the Escrow Agent may be required to wait for, despite
what may be set forth elsewhere in this Agreement. In such event, the Escrow
Agent will not be liable for any damages. Furthermore, the Escrow Agent may at
its option, file an action of interpleader requiring the parties to answer and
litigate any claims and rights among themselves. The Escrow Agent is authorized
to deposit with the clerk of the court all documents and funds held in escrow,
except all costs, expenses, charges and reasonable attorney fees incurred by the
Escrow Agent due to the interpleader action shall be paid by the Fund. Upon
initiating such action and depositing with the court all funds and documents,
the Escrow Agent shall be fully released and discharged of and from all
obligations and liability imposed by the terms of this Agreement, except for
failure of the Escrow Agent to perform in accordance with this Agreement prior
to such initiation.
(g) The Fund and its successors and assigns agree that they shall pay
the entire cost to indemnify and hold the Escrow Agent harmless against any and
all losses incurred by the Escrow Agent in connection with the good faith
performance by the Escrow Agent of the Escrow Agent's duties under this
Agreement, including any litigation arising from this Agreement or involving its
subject matter.
-4-
(h) The Escrow Agent may resign at any time upon giving at least
thirty (30) days' written notice to the parties; provided, however, that no such
resignation shall become effective until the appointment of a successor Escrow
Agent which shall be accomplished as follows: the Fund and the Advisor shall use
their commercially reasonable efforts to mutually agree on a successor Escrow
Agent within thirty (30) days after receiving such notice. If the parties fail
to agree upon a successor Escrow Agent within such time, the Escrow Agent shall
have the right to apply to a court of competent jurisdiction to appoint a
successor Escrow Agent. The successor escrow agent shall be a bank with combined
capital and surplus of not less than $100,000,000. The successor Escrow Agent
shall execute and deliver an instrument accepting such appointment and it shall,
without further acts, be vested with all the estates, properties, rights,
powers, and duties of the predecessor Escrow Agent as if originally named as
escrow agent. The Escrow Agent shall then be discharged from any further duties
under this Agreement.
(i) All fees of the Escrow Agent for performance of its duties
hereunder shall be paid and expenses reimbursed by the Fund. In the event that
the conditions of this Agreement are not promptly fulfilled, or if the Escrow
Agent renders any service not provided for in this Agreement, or if the parties
request a substantial modification of its terms, or if any controversy arises,
or if the Escrow Agent is made a party to, or intervenes in, any action or
proceeding pertaining to this escrow or its subject matter, the Escrow Agent
shall be reasonably compensated for such extraordinary services and reimbursed
for all costs, attorney's fees, and expenses occasioned by such default, delay,
controversy, action or proceeding. The Fund agrees to pay these sums upon
demand.
(j) As compensation for its services hereunder, Escrow Agent shall be
paid in accordance with the fee schedule set forth as Exhibit A. Such amounts
shall be paid by the Fund.
5. Non-Waiver. The Advisor does not, by agreeing herein that any Fee may
be deposited into the Escrow Fund, concede that such deposit was required by the
terms of the Advisory Agreement. The Advisor reserves the right to maintain, in
any later action or proceeding concerning the Escrow Fund, that the Advisor was
entitled to receive payment of such Fee directly, without deposit of any Fee
into the Escrow Fund.
6. Tax Reporting Matters. The Fund agrees to use diligent efforts to
provide the Escrow Agent with tax identification numbers and other forms and
documents that the Escrow Agent may reasonably request ("Tax Reporting
Documentation") within thirty (30) days after the date hereof. The parties
hereto understand that, if such Tax Reporting Documentation is not so certified
to the Escrow Agent, the Escrow Agent may be required by the Internal Revenue
Code, as it may be amended from time to time, to withhold a portion of the
Escrow Fund or any interest or other income earned on the investment of monies
or other property held by the Escrow Agent pursuant to this Agreement.
7. Investment of Escrow Fund; Tax Reporting and Payment of Income. Cash
received and required to be held by the Escrow Agent, if any, shall be invested
by the Escrow Agent in a U.S. Treasury money market fund or account and income
earned thereon shall be allocated for tax reporting and withholding purposes to
the Advisor, and any income earned thereon shall be
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paid to the Advisor on January 2 of each year and on the Termination Date.
8. Payment by the Fund to the Advisor. Any deposit by the Fund with the
Escrow Agent into the Escrow Fund pursuant to Section 1 of this Agreement will
not relieve the Fund of its obligations to pay the Advisor pursuant to Section
5.2(c)(ii) of the Advisory Agreement. Those payment obligations of the Fund will
only be fulfilled when and to the extent that the Advisor receives disbursements
either from the Escrow Fund pursuant to Section 2 of this Agreement or from the
Fund directly pursuant to Section 5.2(c)(ii) of the Advisory Agreement.
9. Miscellaneous.
(a) All notices and other communications hereunder shall be in writing
and shall be deemed given to a party (i) one business day after delivery, if
delivered personally or by commercial delivery service to such party, or (ii)
after three business days from the date mailed by registered or certified mail
(return receipt requested) or (iii) one business day after dispatch via
facsimile (with confirmation of receipt) to such party at the following address
(or at such other address for a party as shall be specified by like notice):
To the Fund:
MorAmerica Capital Corporation
c/o: Xxxxx X. Xxxxxxxx
Xxxxx 000
000 Xxxxxx Xxxxxx X.X.
Xxxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxx
Chairman of the Audit Committee of the Fund
c/o F&M Bank
0000 Xxxxx Xxxxxx XX
Xxxxx Xxxxxx, XX 00000
Facsimile: 000-000-0000
To the Advisor:
InvestAmerica Investment Advisors, Inc.
Attn: Xxxxxx X. Xxxxx
Xxxxx 000
000 Xxxxxx Xxxxxx X.X.
Xxxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
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To the Escrow Agent:
U.S. Bank, N.A.
000 0xx Xxxxxx XX
Xxxxx Xxxxxx, XX 00000
or to such other address as any party may have furnished in writing to the other
parties in the manner provided above. Any notice addressed to the Escrow Agent
shall be effective only upon receipt. If any Certificate, objection thereto or
other notice or document of any kind is required to be delivered to the Escrow
Agent and any other person, the Escrow Agent may assume without inquiry that
such Certificate or other document was received by such other person on the day
on which it was received by the Escrow Agent.
(b) The captions in this Agreement are for convenience only and shall
not be considered a part of or affect the construction or interpretation of any
provision of this Agreement.
(c) This Agreement may be executed in any number of counterparts, each
of which when so executed shall constitute an original copy hereof, but all of
which together shall constitute one agreement.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the state of Iowa as applied to contracts made and to be
performed entirely within the state of Iowa, without regard for choice of law or
conflicts of laws principles. The parties to this Agreement hereby agree to
submit to personal jurisdiction in the State of Iowa for the purposes of
disputes arising hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURE PAGE FOR ESCROW AGREEMENT
IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first above written.
ESCROW AGENT: THE FUND:
U.S. Bank, N.A. MORAMERICA CAPITAL CORPORATION
By: By:
-------------------------------- --------------------------------
Name: Name: Xxxxx X. Xxxxxxxx
--------------------------- Title: President
Title:
--------------------------
THE ADVISOR:
INVESTAMERICA INVESTMENT ADVISORS, INC.
By:
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
-8-
ANNEX A
Advisory Agreement
ANNEX B
Form of Advisor's Release Certificate
[Date]
[Escrow Agent]
[Escrow Agent address]
Ladies and Gentlemen:
On behalf of InvestAmerica Investment Advisors, Inc. (the "Advisor")
and pursuant to Section 2(a) of the Escrow Agreement dated ____, 2005 between
[Escrow Agent], MorAmerica Capital Corporation (the "Fund") and the Advisor (the
"Escrow Agreement"), we request that you disburse to the Advisor $______ from
the Escrow Fund (as defined in the Escrow Agreement) (the "Funds"). As required
by the Escrow Agreement, please see below the signature of the Authorized
Officer of the Fund, which signature certifies to Escrow Agent that the Funds
may be disbursed to the Advisor because either: (i) the Funds are no longer
restricted under Section 5.2(c)(ii) of the Investment Advisory Agreement dated
July 21, 2005 between the Advisor and the Fund (the "Advisory Agreement"), or
(ii) the Advisory Agreement has been terminated. Further as required by the
Escrow Agreement, please see below the signature of an authorized representative
of the United States Small Business Administration (the "SBA"), which signature
certifies to Escrow Agent that the SBA approves of disbursement of the Funds to
the Advisor.
Sincerely,
INVESTAMERICA INVESTMENT
ADVISORS, INC.
By: __________________________
Name: ____________________
Title: _____________________
Date: _____________________
ACKNOWLEDGED: ACKNOWLEDGED:
MORAMERICA CAPITAL CORPORATION UNITED STATES SMALL BUSINESS ADMINISTRATION
By: ________________________ By: _________________________
Name: Xxxxx X. Xxxxxxxx Name: ___________________
Title: President Title: ____________________
Date: __________________ Date: ____________________
ANNEX C
Form of SBA Release Certificate
[Date]
[Escrow Agent]
[Escrow Agent address]
Ladies and Gentlemen:
On behalf of MorAmerica Capital Corporation (the "Fund") and pursuant
to Section 2(a) of the Escrow Agreement dated ____, 2005 between [Escrow Agent],
InvestAmerica Investment Advisors, Inc. (the "Advisor") and the Fund (the
"Escrow Agreement"), we request that you disburse to the United States Small
Business Administration (the "SBA") $______ from the Escrow Fund (as defined in
the Escrow Agreement) (the "Funds"). As required by the Escrow Agreement, my
signature below on behalf of the Fund indicates that under the terms of the
Incentive Fee Subordination Agreement between the Fund and the Advisor (the
"Subordination Agreement"), the Funds may be disbursed to the SBA. Also as
required by the Escrow Agreement, the signature below of the Advisor indicates
the Advisor's acknowledgment that the SBA has required disbursement of the Fund
to the SBA under the terms of the Subordination Agreement. Finally, the
signature below on behalf of the SBA, as required by the Escrow Agreement,
confirms the SBA's requirement that the Funds be disbursed to the SBA under the
terms of the Subordination Agreement.
Sincerely,
MORAMERICA CAPITAL
CORPORATION
By: ________________________
Name: _______________
Title: _______________
Date: ________________
ACKNOWLEDGED: ACKNOWLEDGED:
INVESTAMERICA INVESTMENT ADVISORS, INC. UNITED STATES SMALL BUSINESS
ADMINISTRATION
By: ________________________ By: ________________________
Name: Xxxxxx X. Xxxxx Name: ________________
Title: Executive Vice President Title: _______________
Date: __________________ Date: ________________
ANNEX D
Form of Release Certificate
[Date]
[Escrow Agent]
[Escrow Agent address]
Ladies and Gentlemen:
On behalf of InvestAmerica Investment Advisors, Inc. (the "Advisor")
and pursuant to Section 2(b) of the Escrow Agreement dated ____, 2005 between
[Escrow Agent], MorAmerica Capital Corporation (the "Fund") and the Advisor (the
"Escrow Agreement"), we request that you disburse to the Advisor $______ from
the Escrow Fund (as defined in the Escrow Agreement) (the "Funds"). As required
by the Escrow Agreement, please see below the signature of the Authorized
Officer of the Fund, which signature certifies to Escrow Agent that the Funds
may be disbursed to the Advisor because either: (i) the Funds are no longer
restricted under Section 5.2(c)(ii) of the Investment Advisory Agreement dated
July 21, 2005 between the Advisor and the Fund (the "Advisory Agreement"), or
(ii) the Advisory Agreement has been terminated. Additionally, the execution of
this Certificate by the Advisor confirms that the Incentive Fee Subordination
Agreement between the Fund and the Advisor has been terminated.
Sincerely,
INVESTAMERICA INVESTMENT
ADVISORS, INC.
By: _____________________________
Name: ____________________
Title:____________________
Date: ____________________
ACKNOWLEDGED:
MORAMERICA CAPITAL CORPORATION
By: ________________________
Name: Xxxxx X. Xxxxxxxx
Title: President
Date: __________________
EXHIBIT A
Schedule of Escrow Agent Fees
