Escrow Agreement for Public Investments
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This
Escrow Agreement (the
“Agreement”) is entered into on this 3rd Day of
June, 2009, between ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., a California C-Corporation with
Offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and
whose Federal T.I.N. is ▇▇-▇▇▇▇▇▇▇ (hereinafter called “Grantor”) and
Sunwest Trust Company, a New Mexico trust company and escrow agent, with Offices
at ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Recitals
WHEREAS, pursuant to the terms
of Grantor’s Prospectus dated as soon as effective
(the ‘Offering’), the Grantor desires to establish an escrow account (the
“Escrow Account”) for the deposit and disbursement of investment monies received
from investors in the Offering (as defined in Paragraph 3 below);
WHEREAS, the Escrow Agent is
duly licensed in the State of New Mexico to act and is willing to act
as an escrow agent upon the terms and conditions hereinafter set forth;
and
WHEREAS, the parties to this
Agreement covenant and agree with each other as follows:
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1.
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Appointment of Escrow
Agent: The Escrow Agent is hereby appointed depository with respect
to the Offering (as defined in Paragraph 3 below) pursuant to the terms
and conditions of this Agreement.
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2.
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Deposit with Escrow
Agent: The Escrow Agent agrees to accept and hold, from time to
time, funds that shall be delivered to the Escrow Agent. The Escrow Agent
shall place the escrow deposits in a non-interest bearing account
captioned “Sunwest Trust Company Escrow Account” and will hold the funds
for safekeeping. The funds will be held along with other escrow funds and
the Escrow Agent will be responsible for subaccounting each account
balance. The Escrow Agent agrees that it shall only deposit into the
Escrow Accounts checks and wire transfer payments made payable to the
Escrow Agent and will promptly return any check which it receives that is
not made payable to the Escrow Agent to the Grantor. Each escrow deposit
will be accompanied by a list provided by the Grantor which specifies the
name and address of the investor and the date and amount of each
subscription in the Offering, and shall include a copy of the investors
completed subscription agreement and the investor’s completed
Certification of Taxpayer Identification Number on IRS Form W-9 or on a
substitute Form W-9. Funds received from persons purchasing subscriptions
in the Offering shall be recorded on the books and records of Sunwest
Trust Company Escrow Account FBO (name of investor). The Escrow Agent
shall provide statements on a Monthly basis to
Grantor.
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3.
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The Offering: The
Grantor is offering to accredited investors up to 4 Million units, at $5.00 (USD)
per unit (the “Offering”), all as more fully described in the Prospectus.
Subscriptions for a minimum of $1Million (USD) (the
“Minimum Subsciption”), or 200,000.00 units, must be accepted
by the Grantor in order for the Grantor to accept any subscription, and
prior to accepting subscriptions, the Grantor may withdraw the Offering in
its sole discretion for any reason whatsoever. The minimum subscription
amount per investor which will be accepted by Grantor will be $2,500.00 (USD), or 500
units. The Escrow
Agent is not a party to, and is not bound by, or charged with notice of,
any agreement out of which this escrow may
arise.
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4.
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Duration of Escrow Account and
Disbursement of Funds: Escrow Agent shall hold the funds in the
Escrow Account until the occurrence of any one of the following
events, and upon such occurrence, the Escrow Agent shall deliver funds as
follows:
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a.
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In
the event the Minimum Subscription is not met by the Termination Date (as
such term is defined in the Prospectus), the Escrow Agent will refund to
the individual investors on record any amounts on deposit along with
accrued interest thereon.
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b.
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In
the event the Minimum Subscription is successful (as evidenced by a
written certificate
from a duly authorized signatory), all subscription monies in the Escrow
Account plus interest thereon will be immediately released to, and in the
name of, the Grantor. Thereafter, all funds deposited in the Escrow
Account and interest thereon will be released to the Grantor as
Subscription Agreements are accepted by the
Grantor.
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5. Collection
Procedure: The Escrow Agent shall be under no duty or
responsibility to enforce collection of any checks delivered to Escrow Agent.
The Escrow Agent is hereby authorized to forward each check for collection and
upon collection of the proceeds of each check, deposit the collected proceeds in
the Escrow Account. As an alternative, the Escrow Agent may at its discretion
telephone the bank on which the check is drawn to confirm that the check has
been paid. The Escrow Agent will not be accountable for the proceeds of any such
item until the proceeds are received from the Escrow Agent in final collected
funds. Escrow Agent shall promptly return any check or instrument received from
the Grantor or agent of the Grantor upon which payment is refused, together with
the related documents which were delivered to Escrow Agent. In such cases, the
Escrow Agent will promptly notify the Grantor of such return. If the Grantor
rejects any subscription for which the Escrow Agent has already collected funds,
the Escrow Agent shall promptly issue a refund check to the rejected subscriber.
If the Grantor rejects any subscription for which the Escrow Agent has not yet
collected fund but ha submitted the subscriber’s check for collection, the
Escrow Agent shall promptly issue a check in the amount of the subscriber’s
check to the rejected subscriber after the Escrow Agent has cleared such funds.
If the Escrow Agent has not yet submitted a rejected subscriber’s check for
collection, the Escrow Agent shall promptly remit the subscriber’s check
directly to the subscriber. If Escrow Agent has disbursed funds to Grantor and
subsequently subscriber’s check is returned for any reason, the Grantor shall
become responsible for reimbursing the Escrow Agent. Upon receipt of
reimbursement funds, /escrow Agent will return subscriber’s check to
Grantor.
6. Investment of Escrow Amount:
The Escrow Agent shall invest the Escrow Amount only in such accounts or
investments as detailed in this Paragraph 6. The Escrow Agent shall invest in
money market instruments of the Escrow Agent, or any of its affiliates,
provided, however, that if the investment’s maturity date extends beyond the
anticipated offering date, the investment can readily be disposed of for cash by
the time the contingency occurs without any dissipation of the Offering proceeds
invested.
7. Liability of Escrow Agent: The
duties and obligations of the Escrow Agent pursuant to this Agreement will be
determined solely by the express provisions of this Agreement and the laws of
the State of New Mexico. The Escrow Agent acts hereunder as a depository only,
and is not responsible or liable in any manner whatever for the sufficiency,
correctness, genuineness or validity of the subject matter of the escrow, or any
part thereof, or for the form or execution thereof, or for the identity or
authority of any person executing or depositing it. The Escrow Agent shall have
no implied duties or obligations to determine or inquire into the happening or
occurrence of any event or contingency, or the performance or failure of
performance of any of the parties to this Agreement. The Escrow Agent’s sole
duty pursuant to this Agreement shall be to safeguard the deposited funds in the
Escrow Account and to dispose and deliver the same in accordance with the
instruction given to the Escrow Agent in accordance with Paragraph 4 of this
Agreement. In the event that the Escrow Agent is called upon by the
terms of this Agreement to determine the occurrence of any event or contingency,
the Escrow Agent shall be obligated in making such determination, only to
exercise reasonable care and diligence. The Escrow Agent shall be liable for
anything which it may do or refrain from doing only if its conduct represents
willful misconduct or gross negligence in light of all of the circumstances
surrounding such actions taking into consideration the time and facilities
available to the Escrow Agent in the ordinary conduct of its business. In
determining the occurrence of any such event or contingency the Escrow Agent may
request from any of the parties hereto, or any other person, such reasonable
additional evidence as the Escrow Agent in its sole discretion may deem
necessary to determine any fact relating to the occurrence of such event or
contingency, and in this connection, may inquire and consult with any of the
parties to this Agreement. The Escrow Agent shall not be liable for any damages
resulting from its delay in acting hereunder pending its examination of the
additional evidence that has been requested by the Escrow Agent. In the event
that the Escrow Agent is required to take certain action upon the occurrence of
any event or contingency, the time prescribed for action by the Escrow Agent
shall, in all cases, be reasonable time after written notice to the Escrow Agent
of the occurrence of such event or contingency. In the event the Escrow Agent
becomes involved in litigation in connection with this escrow, or in the event
the Escrow Agent, files its own interpleader in any court of competent
jurisdiction to determine the rights of the parties hereto, the Grantor agrees
to indemnify and save the Escrow Agent harmless from all loss, costs, damages,
expenses, and reasonable attorneys fees suffered or incurred by the Escrow Agent
as a result thereof. The obligations of the Grantor under this Paragraph shall
be performable at the office of the Escrow Agent in Albuquerque, New
Mexico.
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8. Reliance of Escrow Agent: The
Escrow Agent will be entitled to rely upon and will be protected in acting in
reliance upon any instructions, directions or information furnished to it in
writing by any agent of the Grantor pursuant to the provisions of this Agreement
or upon any written notice, request, waiver, consent, certificate, receipt,
authorization, power of attorney or other paper or document which the Escrow
Agent in good faith believes to be genuine and what it purports to be. The
Escrow Agent is hereby authorized to rely upon the representations of the
Grantor as to its authority to execute and deliver this Agreement,
notifications, receipts or instructions hereunder and as to relationships among
persons, including persons authorized to receive delivery hereunder. Written
notice of any succession or assignment of any interest of any party specified
herein shall be given to the Escrow Agent, and shall not be effective until
received by the Escrow Agent. The Escrow Agent may consult with legal counsel
(payable only out of escrowed funds which the Grantor has become entitled to
receive) in the event of any dispute or question as to the construction of any
of the provisions hereof or its duties hereunder, and it shall incur no
liability and shall be full protected in acting accordance with the opinion and
instructions of such counsel.
Under no
circumstances shall Escrow Agent be liable for any general or consequential
damages or damages caused, in whole or in part, by the action or inaction of the
Grantor or any of its agents or employees. Escrow Agent shall not be liable for
any damage, loss, liability or delay caused by accidents, strikes, fire, flood,
war, riot, equipment breakdown, electrical or mechanical failure, acts of God or
any cause which is reasonably unavailable or beyond its reasonable
control.
9. Funds Dedicated: The funds
deposited into the Escrow Account shall be held in escrow until such time as the
funds are disbursed in accordance with Paragraph 4 of the Agreement. The Grantor
is aware and understands that it is not entitled to funds received into escrow
and no amounts deposited in the Escrow Account shall become the property; of the
grantor or any other entity, or be subject to the debts of
the Grantor or any other entity until disbursed in accordance with
Paragraph 4. The Escrow Agent is aware and understands that no amounts deposited
into the Escrow Account, other than as herein provided, shall become the
property of the Escrow Agent, or any other entity, or be subject to the debts of
the Escrow Agent or any other entity.
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10. Interpleader: In the event of
any disagreement between any of the parties to this agreement, or between them
or either or any of them and any other person, resulting in adverse claims or
demands being made in connection with the subject matter of the escrow, or in
the event that the Escrow Agent may, at its option, refuse to comply with any
claims or demands on it, or refuse to take any other action hereunder, so long
as such disagreement continues or such doubt exists, and in any such event, the
Escrow Agent shall be entitled to continue so to refrain from acting until (i)
the rights of all parties shall have been fully and finally adjudicated by a
court of competent jurisdiction, or (ii) all differences shall have been
adjusted and all doubt resolved by agreement among all interested persons, and
the Escrow Agent shall have been notified thereof in writing signed by all such
persons, and the Escrow Agent shall have been notified thereof in writing signed
by all such persons. The rights of the Escrow Agent under this paragraph are
cumulative of all other rights which it may have by law or
otherwise.
11. Indemnification: The Escrow
Agent, it affiliates, and each of its officers, directors, employees, agents and
attorneys (collectively, the “Indemnified Parties”) shall be indemnified against
and be held harmless by the Grantor from any losses, costs, damages, expenses,
claims and attorney’s fees suffered or incurred by the Indemnified Parties as a
result of, in connection with or arising from, or our of, but not limited to,
the acts or omissions of any Indemnified Party in performance of or pursuant to
this Agreement, except such acts or omissions as may result from such
Indemnified Party’s willful misconduct, gross negligence, or fraud.
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12.
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Notices: All notices,
requests, demands or other communications with deliveries required or
permitted to be given pursuant to this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally, given by
prepaid telegram, or deposited for mail by first class mail, postage
prepaid, sent either registered or certified mail as
follows:
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(a)
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If
to the investors in the Offering, to the address of each respective
investor specified in the list of investors delivered to the Escrow Agent
by the Grantor.
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(b)
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If
to Grantor:
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▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇, Chairman & CEO
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Office:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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(c)
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If
to the Escrow Agent:
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Sunwest
Trust, Inc.
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, President
▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇.,
▇▇ ▇▇▇▇▇
Office:
505-237-2225 ext. 3808
Fax:
▇▇▇-▇▇▇-▇▇▇▇
Email:
▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
In the
event the Escrow Agent is authorized or directed under the terms hereof to
deliver the subject matter of the escrow, or any part thereof, to any of the
undersigned, such delivery may be made by depositing the same in the United
States mail in an envelop addressed to the person to whom such delivery is to be
made at his address as shown in this Paragraph 12 of this
Agreement.
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13.
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Holidays: Whenever under
the terms of this Agreement, the performance date of any provision hereof
shall fall on a holiday of the Escrow Agent, the performance thereof on
the next successive business day of the Escrow Agent shall be deemed to be
in full compliance with this
Agreement.
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14.
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Fees: The Escrow Agent
shall receive fees in accordance with the attached schedule for the
administration of the Escrow Account. These fees shall be paid by the
Grantor. Fees not paid by the due date on the invoice will be deducted
from the account on that date. The Escrow Agent shall also be entitled to
reimbursement of any out-of-pocket expenses incurred in connection with
the performance of its services as Escrow Agent, including reasonable fees
and disbursements of legal counsel.
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15.
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New Mexico Law Apply:
This Agreement shall be construed in accordance with the Laws of the State
of New Mexico, and all obligations of the parties hereunder are
performable in Albuquerque, New
Mexico.
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16.
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Parties Bound: This
Agreement shall be binding upon and inure to the benefit of the parties
hereto, and their respective heirs, executors, administrations, legal
representatives, successors and
assigns.
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17.
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Legal Construction: In
case any one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal, or unenforceable, the
remaining provisions shall not be affected thereby, and this Agreement
shall be construed as if such invalid, illegal, or unenforceable provision
had never been contained herein.
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18.
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Prior Agreements
Suspended: This Agreement constitutes the sole and only agreement
of the parties hereto and supersedes any prior understandings or written
or oral agreements between the parties respecting the within subject
matter, save and except those agreements entered into contemporaneously
herein and as are referred to
herein.
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19.
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Headings: The headings
used in this Agreement have been included only in order to make it easier
to locate the subject covered by each provision and are not used in
construing this Agreement.
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20.
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Counterparts: This
Agreement may be executed in any number of counterparts, and each such
counterparts shall for all purposes be deemed an
original.
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21.
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Modifications: This
Agreement may not be modified or amended except by a written instrument
signed by the parties hereto and referring specifically to this
Agreement.
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22.
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Other Instruments: Each
party shall, upon the request of the other party, execute, acknowledge,
and deliver any and all instruments reasonably necessary or appropriate to
carry into effect the intention of the parties as expressed in this
Agreement.
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23.
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Appointment of Successor
Substitute Escrow Agent: Escrow Agent may resign by giving thirty
(30) days written notice to the Grantor. Grantor may within its sole
discretion terminate the appointment of Escrow Agent and appoint a
successor escrow agent (“Sucessor Escrow Agent”) in accordance with the
terms of Paragraph 21. In order to appoint a successor Escrow Agent,
Grantor shall obtain the written agreement of a Successor Escrow Agent
(which shall be a corporation qualified to act as an escrow agent) to
assume the obligations of Escrow Agent under the Agreement. Upon receipt
of notice from the Successor Escrow Agent of its acceptance of the
appointment by Grantor as Successor Escrow Agent, Escrow Agent shall
deliver to the Successor Escrow Agent all funds held in the Escrow Account
to be administered by Successor Escrow Agent in accordance with its
written agreement with the Grantor. Upon such delivery, Escrow Agent shall
be released from any and all liability under this
Agreement.
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24.
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USA Patriot Act Compliance:
Grantor agrees to provide any necessary documentation for Grantor,
Grantor’s investment offerings, and grantor’s investors as required for
Escrow Agent to comply with verification procedures specified in the USA
Patriot Act. Documents include, but are not limited to: 1) certified
articles of incorporation, 2) a corporate resolution with the signature of
the person signing this Agreement, and 3) a completed IRS Form W-9, and 4)
a government-issued photo I.D. In addition, Grantor will have its
investors provide identifying documentation as required for Escrow Agent
to comply with verification procedures specified in the USA Patriot Act.
Documents include, but are not limited to, the items described in attached
listings.
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25.
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Arbitration Agreement:
THE PARTIES AGREE THAT ALL CLAIMS AND DISPUTES OF EVERY TYPE AND
MATTER WHICH MAY ARISE BETWEEN THE GRANTOR AND ESCROW AGENT, INCLUDEING
ANY DISPUTES REGARING THIS SCOPE OF THIS ARBITRATION AGREEMENT, SHALL BE
RESOLVED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION
ASSOCIATION. ANY AWARD OF THE ARBITRATOR MAY BE ENTERED AS A JUDGEMENT IN
ANY COURT HAVING JURISDICTION. INFORMATION MAY BE OBTAINED AND CLAIMS MAY
BE FILED AT ANY OFFICE OF THE AMERICAN ARBITRATION ASSOCIATION. THIS
AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED UNDER THE FEDERAL
ARBITRATION ACT, 9 U.S.C. SECTIONS
1-16.
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IN
WITNESS WHEREOF, the parties have caused this AGREEMENT to be executed the day
and year first above written.
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