EXHIBIT 1.3
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ESCROW AGREEMENT
Among
WESTERN UNITED HOLDING COMPANY
a Washington corporation
(the "Company")
and
COMPUTERSHARE TRUST COMPANY, INC.
(the "Escrow Agent")
and
METROPOLITAN INVESTMENT SECURITIES, INC.
(the "Managing Dealer")
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RECITALS
THIS ESCROW AGREEMENT (the "Agreement") is made and entered into by and
among the Company, the Escrow Agent and the Managing Dealer as of July 15, 2002.
WHEREAS, the Company proposes to offer and sell through one or more
registered broker-dealers in a public offering (the "Offering") a minimum of Ten
Million Dollars ($10,000,000) and a maximum of Fifty Million Dollars
($50,000,000) in aggregate principal amount of the Company's Variable Rate
Cumulative Preferred Stock, Series A (the "Securities").
WHEREAS, the Managing Dealer intends to sell the Securities as the
Company's agent on a "best efforts-minimum" basis.
WHEREAS, the Securities will be sold for $25.00 per share, as described
in the Company's Registration Statement (as defined below).
WHEREAS, the Company has filed a Registration Statement on Form S-1 and
all amendments thereto (the "Registration Statement") with the Securities and
Exchange Commission (the "SEC") in accordance with the rules and regulations
under the Securities Act of 1933, as amended (the "Act"), covering the Offering.
WHEREAS, the Company and the Managing Dealer propose to establish an
escrow account with the Escrow Agent in compliance with Rule 15c2-4 and Rule
10b-9 of the Rules and Regulations under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), in which funds received from subscribers will be
deposited pending completion of the escrow period.
WHEREAS, the Escrow Agent is a commercial bank as defined in Section
3(a)(6) of the Exchange Act, or under SEC interpretations thereof, and is
willing to establish an escrow account on the terms and subject to the
conditions hereinafter set forth.
WHEREAS, the term "Selected Dealer" as used herein shall include the
Managing Dealer and other selected dealers as part of the selling group. All
Selected Dealers shall be bound by this Agreement. However, for purposes of
communications and directives, the Escrow Agent need only accept instructions
from the Managing Dealer, as the representative of the Selected Dealers.
WHEREAS, the Company has agreed to reimburse the Escrow Agent the full
amount for any items returned unpaid to the Escrow Agent, after all funds held
in escrow have been disbursed.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained and other good and valuable consideration, it is agreed as
follows:
1. RECITALS. All of the above recitals are true and correct.
2. DEFINITIONS. As used herein, the following terms shall have the
following meanings:
"Act" shall mean the Securities Act of 1933, as amended.
"Agreement" shall mean this Escrow Agreement among the Company, the
Escrow Agent and the Managing Dealer.
"Closing Date" shall have the meaning assigned to that term in Section
4.
"Company" shall mean Western United Holding Company.
"Effective Date" shall mean the date on which the Registration
Statement is declared effective by the SEC.
"Escrow Agent" shall mean Computershare Trust Company, Inc.
"Escrow Account" shall mean the interest bearing account established by
the Escrow Agent entitled "Computershare Trust Company, Inc., as Escrow Agent -
Western United Holding Company" with a bank.
"Escrow Period" shall mean the period beginning with the Effective Date
and ending on the Termination Date.
"Indemnities" shall mean the Escrow Agent and its officers, agents,
directors and stockholders.
"Managing Dealer" shall mean Metropolitan Investment Securities, Inc.
"Offering" shall mean the Company's offering to sell the Securities.
"Registration Statement" shall mean the Registration Statement of the
Company on Form S-1, filed with the SEC on June 21, 2002, Registration No.
▇▇▇-▇▇▇▇▇-▇▇, including all amendments thereto.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"Securities" shall mean the Company's Variable Rate Cumulative
Preferred Stock, Series A.
"Selected Dealer" shall mean the Managing Dealer and the other selected
dealers that form a part of the selling group for the Offering.
"Termination Date" shall have the meaning assigned to that term in
Section 4.
3. ESTABLISHMENT OF ESCROW ACCOUNT. Prior to the date on which the
Registration Statement is declared effective by the SEC (the "Effective Date"),
the parties hereto shall establish, and by execution of this Agreement hereby
agree to establish, an interest bearing
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escrow account, which escrow account shall be entitled "Computershare Trust
Company, Inc., as Escrow Agent - Western United Holding Company" (the "Escrow
Account").
4. ESCROW PERIOD. The "Escrow Period" shall begin with the Effective
Date and shall terminate upon the earlier of the following to occur:
(a) 5:00 p.m. (New York city time) on __________ __ 2002, unless
extended from time to time in writing by the Company for an additional
number of days as described in the Registration Statement, but not to
be extended past ________ __, 2002 (as extended, the "Termination
Date"), if gross proceeds representing the sale of at least 400,000
shares of the Securities (the "Minimum Securities") have not been
deposited by the Termination Date;
(b) the date on which gross proceeds representing the sale of the
Minimum Securities have been deposited by the Termination Date; or
(c) 5:00 p.m. (New York city time) on the date on which the Escrow
Agent receives written notice from the Company and the Managing Dealer
of a determination to terminate the Offering, whether or not the
Minimum Securities are sold.
Promptly after the SEC declares the Registration Statement effective,
the Company shall advise the Escrow Agent in writing of the Effective Date. The
Escrow Agent need not accept checks, drafts, money orders or monies from
prospective purchasers prior to the Effective Date.
On the first business day following the Termination Date on which gross
proceeds representing the sale of the Minimum Securities have been deposited in
the Escrow Account (the "Closing Date"), the Company will accept subscriptions
for an amount of Securities equal to at least 400,000 shares. Securities will be
issued to the subscribers whose subscriptions have been accepted by the Company,
and the funds held in the Escrow Account shall be paid to the Company in
accordance with Section 6 hereof. To the extent that on the Closing Date there
are subscriptions that have not been rejected by the Company and payment for the
Securities subscribed for in such subscriptions has been deposited in the Escrow
Account and constitute "collected funds" (meaning funds which have cleared
normal banking channels and are in the form of cash), then such subscriptions
shall be deemed accepted on the Closing Date. Payments for any subscriptions
rejected on the Closing Date shall be handled in accordance with Section 7
hereof.
The Company is aware and understands that during the Escrow Period it
will not be entitled to any funds received into escrow and no amounts deposited
in the Escrow Account shall become the property of the Company or any other
entity, or be subject to the debts of the Company or any other entity, and the
Escrow Agent shall not make any disbursements from the Escrow Account except as
expressly provided herein or pursuant to any lawful order issued to the Escrow
Agent by a tribunal of competent jurisdiction.
5. ESCROW DEPOSITS. The Company and the Managing Dealer have included a
statement in the Prospectus or supporting documents instructing subscribers to
make checks for the purchase of Securities payable to "Computershare Trust
Company, Inc., as Escrow Agent - Western United Holding Company," and all checks
for subscriptions shall be made payable in
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such manner. All check received by Managing Dealer shall be forwarded to Escrow
Agent for deposit no later than noon the next business day after receipt. Any
checks received that are made payable to any party other than the Escrow Agent
not substantially as provided in this Section 5 shall be returned to the
Selected Dealer who submitted or caused to be submitted the check.
The Escrow Agent agrees to deposit into the Escrow Account, upon
receipt thereof, any and all checks, drafts, money orders and other instruments
and monies payable to the Escrow Agent as escrow agent for the purchase of the
Securities.
6. DISBURSEMENTS FROM THE ESCROW ACCOUNT.
(a) If on or before the Termination Date the Escrow Agent has
received in the Escrow Account gross proceeds of at least $10,000,000
in deposited funds representing at least the Minimum Securities, the
Escrow Agent shall notify the Company and the Managing Dealer in
writing of such fact. Except as otherwise provided in this Agreement,
the Escrow Agent shall hold such monies, along with any additional
proceeds deposited in the Escrow Account from sales of Securities after
the proceeds from the Minimum Securities have been deposited in escrow,
until given written instructions by the Company and the Managing Dealer
as to the disbursement of the funds in the Escrow Account; provided
that no funds shall be disbursed to the Company until the Escrow Agent
has received $10,000,000 in the aggregate of "collected funds" (meaning
funds which have cleared normal banking channels and are in the form of
cash). If the Escrow Agent receives gross proceeds of $10,000,000 in
the Escrow Account on or before the Termination Date, any interest
earned on the funds in the Escrow Account shall be paid to the Company.
(b) In the event that the Escrow Agent does not receive, in
accordance with this Agreement, at least $10,000,000 representing the
proceeds from the sale of the Minimum Securities prior to the
Termination Date, the Escrow Agent shall promptly refund in a timely
manner following the Termination Date to each prospective purchaser the
amount actually received from such purchaser, with interest thereon and
without deduction therefrom, as calculated by and at the direction of
the Company, and the Escrow Agent shall notify the Company and the
Managing Dealer of its distribution of the funds in the Escrow Account.
In such event, any interest earned on the escrowed funds shall be paid
to prospective purchasers as equitably as possible pro rata in
accordance with each prospective purchaser's subscription amount and
the length of time such amount was held in the Escrow Account. The
purchase money returned to such purchasers shall be free and clear of
any and all claims of the Company, the Managing Dealer, the Escrow
Agent or any of their creditors. In the event funds are returned to
prospective purchasers under this subsection (b), then the Company and
the Managing Dealer will provide delivery instructions and related
information to the Escrow Agent upon the Escrow Agent's request.
(c) Upon the disbursement of all or any portion of the escrowed
funds in accordance with either subsection (a) or (b) above, the Escrow
Agent will have no further responsibility with respect to the escrow
assets so disbursed, and upon disbursement from the Escrow Account in
accordance with said subsections, will have no further
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responsibility under this Agreement. In this regard it is expressly
agreed and understood that in no event shall the aggregate amount of
disbursements made by the Escrow Agent exceed the amounts deposited in
the Escrow Account plus any interest earned thereon.
7. COLLECTION PROCEDURE. The Escrow Agent is hereby authorized to
forward each check, draft or other instrument for collection and, upon
collection of the proceeds of each check, draft or other instrument, deposit the
collected proceeds in the Escrow Account. Any check, draft or other instrument
returned unpaid to the Escrow Agent shall be returned to the Selected Dealer
that submitted or caused to be submitted such check. In such cases, the Escrow
Agent will notify the Company and the Managing Dealer of such return. If the
Company rejects any subscription for which the Escrow Agent has already
collected funds, the Escrow Agent shall issue a refund check to the rejected
prospective purchaser. If the Escrow Agent has not yet submitted a rejected
purchaser's check, draft or other instrument for collection, the Escrow Agent
shall remit such purchaser's check, draft or other instrument directly to the
purchaser. It is understood and agreed that should any check, draft or other
instrument be returned unpaid for any reason after the Escrow Period that would
cause the collected aggregate proceeds from the sale of the Securities to be
less than $10,000,000, then no money shall be payable to the Company or the
Managing Dealer from the Escrow Account and the Escrow Agent shall comply with
Section 6(b) hereof.
8. REGISTRATION STATEMENT. The Company shall provide the Escrow Agent
with a copy of those pages of the Registration Statement and supporting
documents which reference the Escrow Agent or this Agreement.
9. RIGHTS, DUTIES AND RESPONSIBILITIES OF ESCROW AGENT. It is
understood and agreed that the duties of the Escrow Agent are purely ministerial
in nature. It is further agreed that:
(a) The Escrow Agent shall not be liable for any action taken or
omitted hereunder except in the case of its bad faith, negligence or
willful misconduct. The Escrow Agent shall be entitled to consult with
counsel of its own choosing and shall not be liable for any action
taken, suffered or omitted by it in reasonable reliance upon the advice
of such counsel. Any reasonable expenses incurred by The Escrow Agent
in connection with such consultation shall be reimbursed by the
Company.
(b) The Escrow Agent shall not be liable or responsible to perform
any act pertaining to the proposed offering of Securities, other than
as set forth in this Agreement, or because of the loss of any monies
arising through insolvency or the act or default or omission of any
person other than the Escrow Agent. The Escrow Agent shall not be
responsible for the application of the proceeds deposited with it and
paid out, withdrawn or transferred in accordance with this Agreement.
(c) The Escrow Agent shall have no responsibility at any time to
ascertain whether or not any security interest exists in the funds in
the Escrow Account or any part thereof or to file any financing
statement under the Uniform Commercial Code with respect to the Escrow
Account or any part thereof.
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(d) The Escrow Agent will not be required to disburse any funds from
the Escrow Account, unless such funds have been on deposit for a
sufficient period that the Escrow Agent, in its sole discretion, deems
them to be collected funds.
(e) The Escrow Agent shall have no responsibility with respect to
the use or application of any funds or other property paid or delivered
by the Escrow Agent pursuant to the provisions hereof.
(f) The Escrow Agent shall under no circumstances be required to
furnish a formal accounting for the proceeds in the Escrow Account
other than to notify the Company as to each payment or disbursement
made to or from the Escrow Account and except as otherwise specified in
this Agreement.
(g) This Agreement sets forth exclusively the duties of the Escrow
Agent with respect to any and all matters pertinent hereto and no
implied duties or obligation shall be read into this Agreement against
the Escrow Agent.
10. NO INTERESTS CREATED IN FUND. The Escrow Agent shall not issue any
certificate of deposit, stock certificates or any other instrument or document
representing any interest in the Escrow Account, except that it may send a
written notice to the Company and/or the Managing Dealer acknowledging receipt
or disbursement of the deposited funds.
11. AMENDMENT; RESIGNATION. This Agreement may be altered or amended
only with the written consent of the Company, the Managing Dealer and the Escrow
Agent. The Escrow Agent may resign as the Escrow Agent at any time upon 10 days'
prior written notice to the Company and the Managing Dealer. In the case of the
Escrow Agent's resignation, its only duty shall be to hold and dispose of the
funds in the Escrow Account in accordance with the original provisions of this
Agreement until a successor Escrow Agent shall be appointed and written notice
of the name and address of such successor Escrow Agent shall be given to the
Escrow Agent by the Company and the Managing Dealer, whereupon the Escrow
Agent's only duty shall be to pay over to the successor Escrow Agent the funds
in the Escrow Account, less any portion thereof previously paid out in
accordance with this Agreement. In the event the Escrow Agent is not notified
within 15 days of the appointment of a successor Escrow Agent, the Escrow Agent
shall be entitled to transfer all funds and assets to a court of competent
jurisdiction with a request to have a successor appointed. Upon filing such
action and delivering such assets, the Escrow Agent's obligations and
responsibilities shall cease. Similarly, the Company and the Managing Dealer, by
mutual consent, may also jointly terminate the Escrow Agent and appoint a
successor Escrow Agent by providing 15 days' written notice to the Escrow Agent.
This Agreement may be terminated at any time by a written document signed by all
parties to this Agreement.
12. WARRANTIES. The Company warrants to the Escrow Agent that, unless
otherwise expressly set forth in this Agreement, at the time of this Agreement
and upon disbursement of the funds in the Escrow Account in accordance with this
Agreement:
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(a) no party other than the parties hereto and the prospective
purchasers have, or shall have, any lien, claim or security interest in
the Escrow Account or any part thereof;
(b) no financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest in or describing
(whether specially or generally) the Escrow Account or any part
thereof; and
(c) the Offering has been and/or will be made in compliance with
applicable federal and state securities laws.
13. FEES AND EXPENSES. In addition to the compensation provided for
herein and the indemnification provided for in Section 14 below, without regard
to the amount deposited in the Escrow Account pursuant to this Agreement, the
Escrow Agent shall be entitled to: (a) a fee determined in accordance with, and
payable by the Company as specified in, the Schedule of Fees for Escrow
Services, which is attached hereto as Schedule I and incorporated herein by
reference, which fee shall be paid by the Company to the Escrow Agent at the
time of execution of this Agreement; and (b) be reimbursed by the Company for
any reasonable expenses for performing its obligations in connection with this
Agreement, including, but not limited to, costs, expenses and legal fees
incurred by the Escrow Agent relating to the review of documents pertaining to
this Agreement. If, before the Termination Date, the collected funds in the
Escrow Account equal or exceed $10,000,000 the Escrow Agent may deduct from the
funds in the Escrow Account all amounts owed to it pursuant to this Agreement,
whether or not prior to or after any distribution from the Escrow Account. If
such balance in the Escrow Account does not reach $10,000,000, no amounts owing
to the Escrow Agent pursuant to this Agreement shall be paid out of or be
chargeable to the funds on deposit in the Escrow Account. However, this shall
not relieve the Company or the Managing Dealer, as the case may be, of any of
their obligations to the Escrow Agent under this Agreement. In the event that
the Escrow Agent is made a party to litigation with respect to the property held
hereunder, or brings an action in interpleader or in the event that the
conditions of this escrow are not promptly fulfilled, or the Escrow Agent is
required to render any service not provided for in this Agreement and the fee
schedule, or there is any assignment of the interest of this escrow or any
modification hereof, the Escrow Agent shall be entitled to reasonable
compensation for such extraordinary services and reimbursement for all fees,
costs, liability and expenses, including attorney fees.
14. INDEMNIFICATION. The Company agrees to indemnify the Escrow Agent
and its officers, agents, directors and stockholders (herein, the "Indemnities")
against, and hold them harmless of and from, any and all loss, liability, cost,
damage and expense, including without limitation, reasonable attorneys' fees,
which the Indemnities may suffer or incur by reason of any action, claim or
proceeding brought by any third party against the Indemnities, arising out of or
relating in any way to this Agreement or any transaction contemplated by this
Agreement, or in the performance of its duties hereunder including, but not
limited to any interpleader action, unless such claim arises from the
Indemnities' own negligence or willful misconduct. This indemnity shall survive
the termination of this Agreement for any reason, or the resignation or removal
of the Escrow Agent.
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15. GOVERNING LAW, JURISDICTION AND VENUE. This Agreement shall be
governed by and construed in accordance with the laws of the State of Washington
and the proper venue and jurisdiction for any action or claim with respect to
this Agreement or any document delivered pursuant hereto shall be in the Circuit
Court in Spokane County, Washington. The parties agree that service of process
in any such action or claim shall be deemed valid if made by registered mail,
return receipt requested, sent to the addresses set forth in Section 17 hereof.
Nothing in this Agreement is intended to or shall confer upon anyone other than
the parties hereto any legal or equitable right, remedy or claim.
16. ASSIGNABILITY. This Agreement shall not be assignable without the
written consent of all of the parties hereto. All of the terms and provisions of
this Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the successors and permitted assigns of the parties.
17. NOTICES. All notices and other communications given in connection
with this Agreement shall be in writing and shall be deemed to have been duly
given if (a) delivered by hand, (b) mailed by registered or certified mail,
return receipt required, or (c) transmitted by any standard form of
telecommunications and confirmed. All notices and communications shall be
addressed as follows:
If to the Company: Western United Holding Company
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
with a copy to: ▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to the Managing Dealer: Metropolitan Investment Securities, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
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If to the Escrow Agent: Computershare Trust Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Corporate Trust Services
18. SEVERABILITY. If any provision of this Agreement or the application
thereof to any person or circumstances shall be determined to be invalid or
unenforceable, the remaining provisions of this Agreement or the application of
such provision to persons or circumstances other than those to which it is held
invalid or unenforceable shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law.
19. EXECUTION IN SEVERAL COUNTERPARTS. This Agreement may be executed
in several counterparts or by separate instruments, and all of such counterparts
and instruments shall constitute one agreement, binding on all of the parties
hereto.
20. PRONOUNS. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine, neuter, singular or plural as the context
may require.
21. CAPTIONS. All captions are for convenience only and shall not limit
or define the text hereof.
22. DUTIES OF ESCROW AGENT. This Agreement states the entire agreement
between the parties hereto and merges all prior negotiations, agreements and
understandings, if any, and states in full the representations and warranties
which have induced the Agreement, there being no representations or warranties,
other than those herein stated, with respect to the escrow property. The Escrow
Agent's rights, duties and obligations are strictly limited to those expressly
set forth in the Escrow Agreement and the Escrow Agent shall be under no implied
obligation or subject to any implied liability hereunder. The Escrow Agent shall
not be required to take notice of any default or any other matter, nor be bound
nor required to give notice or demand, nor required to take any action whatever
except as herein expressly provided. The Escrow Agent shall not be liable for
any loss or damage unless caused by its own negligence or willful misconduct.
The duties and liabilities of the Escrow Agent shall be determined solely by
this Agreement and not by reference to any other agreement among the parties.
23. AUTHORIZATION TO OPEN THE ACCOUNT. This Agreement is to be executed
by the parties hereto in sufficient numbers so that an Agreement bearing each
party's original signature can be held by the Escrow Agent. The parties hereto
hereby authorize the Escrow Agent to establish and administer the account upon
receipt of a fully executed facsimile, telex or telecopy of the Agreement.
24. METHODS OF COMMUNICATION. The Escrow Agent may act in reasonable
reliance upon any instrument or signature believed to be genuine and may
reasonably assume that any person purporting to give any notice or make any
statement in connection with the provisions hereof has been duly authorized to
do so. The Escrow Agent is requested and authorized, but not obligated, to rely
upon and act in accordance with any communication which may be given by
telephone, facsimile, telex or other electronic transmission. The Escrow Agent
shall be entitled,
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but not bound, to treat such communication as fully authorized by and binding,
and shall be entitled to take such steps in connection with or in reliance on
such communication.
25. INVESTMENT INSTRUCTIONS. The Escrow Agent shall invest funds that
are held in the escrow account for a period exceeding 24 hours only in such
accounts or investments as the Company may specify by written notice. The
Company may only specify investment in: (1) bank accounts, (2) bank money-market
accounts, (3) short-term certificates of deposit issued by a bank, or (4)
short-term securities issued or guaranteed by the U.S. Government. All accrued
interest on investments shall become part of the Escrow Fund. All entities
entitled to receive interest from the escrow account will provide the Escrow
Agent with a W-9 or W-8 IRS tax form prior to the disbursement of interest. W-9
or W-8 IRS tax forms from subscribers shall be provided to Escrow Agent at the
time of the subscriber's deposit of funds in the escrow account. A statement of
citizenship will be provided if requested by the Escrow Agent. The Escrow Agent
shall not be liable for losses, penalties or charges incurred upon any sale or
purchase of any such investment.
26. DISBURSEMENT BY WIRE TRANSFER. Parties hereto may elect to request
transfer of funds by Fedwire from time to time, subject to the conditions stated
herein. Parties hereto agree that the wire transfer instructions identified on
the attached Schedule II to this Agreement are commercially reasonable. Parties
hereto further agree to use such wire transfer instructions when sending funds.
Parties hereto agree that the Parties have the right to change the wire transfer
instructions from time to time upon written notice to the Parties and that use
of any changed procedures evidences the acceptance of the commercial
reasonability of such change by the parties hereto.
27. RIGHT TO INTERPLEAD. If any controversy arises between the parties
hereto or with any third person, the Escrow Agent shall not be required to
resolve the same or to take any action to do so but may, at its discretion,
institute such interpleader or other proceedings as it deems proper. Escrow
agent may rely on any joint written instructions as to the disposition of funds,
assets, documents, or other items held in escrow.
28. DISCLOSURE. The parties hereto hereby agree not to use the name of
Computershare Trust Company, Inc. to imply an association with the transaction
other than that of a legal escrow agent.
29. BROKERAGE CONFIRMATIONS. The parties acknowledge that to the extent
regulations of the Comptroller of Currency or other applicable regulatory entity
grant a right to receive brokerage confirmations of security transactions of the
escrow, the parties waive receipt of such confirmations, to the extent permitted
by law. The Escrow Agent shall furnish a statement of security transactions on
its regular monthly reports.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
WESTERN UNITED HOLDING COMPANY
By
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C. ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.,
President
METROPOLITAN INVESTMENT SECURITIES, INC.
By
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▇▇▇▇▇ ▇▇▇▇▇▇▇,
Secretary
COMPUTERSHARE TRUST COMPANY, INC.
By
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Name:
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Title:
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By
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Name:
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Title:
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SCHEDULE I
SCHEDULE OF FEES
FOR ESCROW SERVICES
Account Acceptance and Annual Administrative Fee $2,500
The above fee includes the following services:
- Processing the Subscription Funds
- Verification of the Collection of Subscription Funds
Deposit for Return of Funds to Subscribers $5,000
Return of Funds to Subscribers $20 each
The above fee is required in the event the following services are
required:
- Check issuance to Subscribers
- Calculation of Interest earned and paid to Subscribers
- 1099's issued to Subscribers
- Bank Reconciliation
- Stationary and Supply Expense
- Out-of-Pocket Expense
Out-of-Pocket Expenses At cost
- Included but not limited to: attorney fees, printing, stationery, express mail
charges, wire transfer fees and postage.
Minimum Total Fee for Escrow Agent Services $5,000
The acceptance, annual and deposit fees are payable at the closing of
the escrow. Special or extraordinary events, such as amendments to the documents
or disputes are not included in the above fees, and we reserve the right to
charge an additional amount based on the time incurred in handling such events
should they occur. Late charges are 1 1/2% per month on outstanding balances
owing 45 days from date of invoice.
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SCHEDULE II
WIRING INSTRUCTIONS
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