ESCROW AGREEMENT
This Escrow Agreement (the "Agreement") dated as of August 21, 2007 is by and between, Cienega Creek Holdings, Inc (the “Company”) and U.S. Bank National Association (the "Escrow Agent"). The “Escrow Agent” and the “Company” may also be hereinafter referred to as the “Parties.”
RECITALS
The Company desires to establish an escrow account with the Escrow Agent into which certain monies and documents will be deposited and held in escrow until a minimum of $100,000 has been raised in connection with that certain Public Offering registered on form SB-2 with the U.S. Securities and Exchange Commission and dated July 12, 2007 and those certain Subscription Agreement and Instructions in connection with the Public Offering (collectively, the “Offering Documents”) by individuals or entities desiring to purchase interests in the Company (“Subscribers”); and
U.S. Bank National Association has agreed to act as Escrow Agent on behalf of the Company on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises the Parties agree as follows:
1. ESCROW FEES: The Company hereby agrees to pay the Escrow Agent an advance payment for ordinary services rendered hereunder (the "Escrow Fee") which shall be calculated in accordance with the Escrow Agent's fee schedule attached as Exhibit A. The Company further agrees to pay the Escrow Agent reasonable fees, which shall be agreed upon between the Parties, for any services in addition to those provided for herein to the extent that the Company has expressly requested such extraordinary services and has been made aware of their cost in advance of their performance.
2. DEPOSITS: The Company shall deliver to the Escrow Agent all checks, drafts and money orders ("Subscription Payments") and all Subscription Agreement and Instructions and other related documents ("Subscription Documents") received by the Company from the Subscribers in connection with the Offering. All Subscription Payments shall be made payable to U.S. Bank National Association Escrow for Cienega Creek Holdings Inc. Account.
3. INVESTMENT OF FUNDS: All Subscription Payments shall be cleared and held in a U.S. Bank Money Market Account, which is FDIC insured.
4. TERMINATION DATE: For the purpose of this Agreement, the "Termination Date" shall be at the close of business on August 28, 2008, unless terminated earlier by the Company in writing.
5. DISBURSEMENT OF FUNDS:
(a) TERMINATION OF THE OFFERING: If the Escrow Agent has not received on or before the Termination Date, Subscription Payments in aggregate amount of at least $100,000 then the Escrow Agent shall proceed as directed by the Company. The Escrow Agent, if so directed, shall release all Subscription Payments on such funds and the corresponding Subscription Documents to each Subscriber, respectively, at the address given by such Subscriber in the Subscription Agreement. All disbursements by the Escrow Agent pursuant to this section shall be made by the Escrow Agent's usual escrow checks and shall be mailed by first class United States Postal Services mail, postage pre-paid, as soon as practicable but not later than the third business day after the Termination Date.
(b) INITIAL CLOSING OF OFFERING: If the Escrow Agent has received on or before the Termination Date, Subscription Payments in an aggregate amount of not less than $100,000 and written acceptance of each Subscriber by the Company then the Escrow Agent shall disburse all Subscription Documents and Subscription Payments to the Company in immediately available funds in accordance with the Company’s instructions.
(c) SUBSEQUENT CLOSINGS: After an initial closing of the offering, from time to time upon receipt by the Escrow Agent of additional Subscription Payments and written acceptance of each Subscriber by the Company the Escrow Agent shall disburse all then held Subscription Documents and Subscription Payments to the Company in immediately available funds in accordance with the Company’s instructions.
6. COLLECTED FUNDS: No Subscription Payment shall be disbursed pursuant to Section 5 until such Subscription Payment has been received by the Escrow Agent in immediately available funds.
7. LIABILITY OF ESCROW AGENT: In performing any duties under this Agreement, the Escrow Agent shall not be liable to the Company or any Subscriber 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 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’s 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 action taken, suffered, or permitted by it in good faith in accordance with the reasonable advice of counsel. 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.
8. FEES AND EXPENSES: It is understood that the fees and usual charges agreed upon for services of the Escrow Agent shall be considered compensation for ordinary services as contemplated by this Agreement. 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 after approval by the Company, or if the Company requests 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 litigation pertaining to this escrow or its subject matter, the Escrow Agent shall be reasonably compensated for such extraordinary services and reimbursed for all reasonable costs, attorney's fees, including allocated costs of in-house counsel, and reasonable expenses occasioned by such default, delay, controversy or litigation. The Company promises to pay these sums promptly after demand.
9. CONTROVERSIES: If any controversy arises between the Parties to this Agreement 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. The Escrow Agent may hold all documents and funds 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 require, despite what may be set forth elsewhere in this Agreement. In such event, the Escrow Agent will not be liable for interest or damage. 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. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all obligations and liability imposed by the terms of this Agreement.
10. INDEMNIFICATION OF ESCROW AGENT: The Company and its successors and assigns agree jointly and severally to indemnify and hold the Escrow Agent harmless against any and all losses, claims, damages, liabilities, and expenses, including reasonable costs of investigation, counsel fees, including allocated costs of in-house counsel and disbursements that may be imposed on the Escrow Agent or incurred by the Escrow Agent in connection with the performance of its duties under this Agreement, including but not limited to any litigation arising from this Agreement or involving its subject matter (“Losses”); provided, however, no such duty to indemnity or hold harmless shall apply to the extent such Losses are caused by the gross negligence or willful misconduct on the part of the Escrow Agent.
11. RESIGNATION OF ESCROW AGENT: The Escrow Agent may resign at any time upon giving at least (30) days written notice to the Company provided, however, that no such resignation shall become effective until the appointment of a successor escrow agent which shall be accomplished as follows: The Company shall use its best efforts to obtain a successor escrow agent within thirty (30) days after receiving such notice. If the Company fails to agree upon a successor escrow agent within such time, the Escrow Agent shall have the right to appoint a successor escrow agent authorized to do business in the state of Arizona. 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 thereupon be discharged from any further duties and liability under this Agreement.
12. AUTOMATIC SUCCESSION: Any company into which the Escrow Agent may be merged or with which it may be consolidated, or any company to whom the Escrow Agent may transfer a substantial amount of its global escrow business, shall be the Successor to the Agent without the execution or filing of any paper or any further act on the part of any of the Parties, anything herein to the contrary notwithstanding.
13. TERMINATION: This Agreement shall terminate upon the completion of the conditions of Sections 5(a) or 5(b) hereof, without any notices to any person, unless earlier terminated pursuant to the terms hereof.
14. MISCELLANEOUS:
(a) GOVERNING LAWS: This Agreement is to be construed and interpreted according to Arizona law without regard to the conflict of laws principles thereof.
(b) COUNTERPARTS: This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(c) NOTICES: All instructions, notices and demands herein provided for shall be in writing and shall be mailed postage prepaid, first class mail, delivered by courier, or telecopies as follows:
(Above intentionally left blank)
If to the Company: If to the Escrow Agent:
Cienega Creek Holdings, Inc. U.S. Bank National Association
0000 X Xxxxxx Xxxxx Xx. 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx Attn: Xxxx Xxxxxx-Xxxxx
Telephone No: (000) 000-0000 Telephone No: (000) 000-0000
Telecopier No: (000) 000-0000 Telecopier No: (000) 000-0000
(d) AMENDMENTS: This Agreement may be amended by written notice signed by the Company, except that Section 7 through Section 13 may be amended only with the consent of the Escrow Agent.
The Company represents and agrees that it has not made nor will it in the future make any representation that states or implies that the Escrow Agent has endorsed, recommended or guaranteed the purchase, value, or repayment of the Interests offered for sale by the Company. The Company further agrees that it will insert in the Subscription Agreement and Instructions made available to prospective purchasers of the Interests the statement in bold and italics below and will furnish to the Escrow Agent a copy of each such prospectus, offering circular, advertisement, subscription agreement or other document at least 5 business days prior to its distribution to prospective Subscribers.
“The undersigned acknowledges that U.S. Bank National Association is acting only as an escrow agent in connection with the offering of the Interests described herein, and has not endorsed, recommended or guaranteed the purchase, value or repayment of such Interests.”
The Parties hereto have executed this Agreement by their duly authorized representatives as of the date set forth above.
Cienega Creek Holdings, Inc. U.S. Bank National Association, as
Company Escrow Agent
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxx-Xxxxx
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxx Xxxxxx-Xxxxx
Title: President Title: Assistant Vice President
Date: August 23, 2007 Date: August 24, 2007
