ESCROW AGREEMENT
THIS Escrow Agreement (the "Agreement") is made and entered into as of this
11th day of January, 2000, by and between Bond Purchase, L.L.C., a Missouri
limited liability company ("Bond Purchase") and Assured Quality Title Company, a
Missouri corporation located at 0000 Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000
("Assured").
WHEREAS, Bond Purchase is contemporaneously making a tender offer (the
"Tender Offer") to purchase limited partnership units ("Units") of XxXxxx Real
Estate Fund XX, L.P., a California limited partnership ("XxXxxx XX"), pursuant
to certain terms and conditions more specifically described in that certain
Offer to Purchase dated January 13, 2000 (the "Offer to Purchase"); and
WHEREAS, pursuant to the terms of the Offer to Purchase, Bond Purchase
intends to utilize its own working capital (the "Bond Purchase Capital") to fund
the purchase of Units; and
WHEREAS, to provide adequate assurances to the limited partners of XxXxxx
XX that Bond Purchase has sufficient funds available to consummate the Tender
Offer, Assured has agreed to act as escrow agent and escrow the Bond Purchase
Capital for payment of the purchase of Units pursuant to the Tender Offer; and
WHEREAS, Bond Purchase desires to appoint Assured as escrow agent ("Escrow
Agent") and make arrangements for the delivery and possession of the Escrow Fund
(as defined below); and
WHEREAS, Assured is willing to act as such Escrow Agent for purposes of
receiving, holding and distributing the Escrow Fund in accordance with the
provisions of this Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, the parties agree as follows:
1. ESTABLISHMENT OF ESCROW FUND. Bond Purchase hereby agrees to deposit
Four Million Seven Hundred Fifty-One Thousand Dollars ($4,751,000) (the "Escrow
Fund") with the Escrow Agent, which hereby acknowledges receipt thereof as the
Escrow Fund.
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2. APPOINTMENT OF ESCROW AGENT.
(a) Bond Purchase hereby appoints Assured as Escrow Agent under this
Agreement, and Assured accepts such appointment, for the purpose of receiving,
holding, investing and distributing the Escrow Fund in the manner hereinafter
described for the benefit of Bond Purchase.
(b) Escrow Agent shall be entitled to a reasonable administration fee (the
"Administration Fee") and reimbursement for reasonable out-of-pocket expenses
incurred in connection with the performance of its duties under this Agreement.
Responsibility for such Administration Fee and expenses shall be borne by Bond
Purchase, and such Administration Fee and expenses may be paid directly from
proceeds of the Escrow Fund.
(c) Escrow Agent may conclusively rely and shall be protected in acting or
refraining from acting upon any document, instrument, certificate, instruction
or signature believed by it to be genuine and may assume and shall be protected
in assuming that any person purporting to give any notice or instructions in
accordance with this Agreement or in connection with any transaction to which
this Agreement relates has been duly authorized to do so. Escrow Agent shall not
be obligated to make any inquiry as to the authority, capacity, existence or
identity of any person purporting to have executed any such document or
instrument or have made any such signature or purporting to give any such notice
or instructions.
(d) In the event that Escrow Agent shall be uncertain as to its duties or
rights hereunder or shall receive instructions with respect to the Escrow Fund
which, in its sole opinion, are in conflict with either other instructions
received by it or any provision of this Agreement, it shall, without liability
of any kind, be entitled to hold the Escrow Fund, pending the resolution of such
uncertainty to Escrow Agent's sole satisfaction, by final judgment of a court or
courts of competent jurisdiction or otherwise, or Escrow Agent, at its option,
may, in final satisfaction of its duties hereunder, deposit the Escrow Fund with
the clerk of any other court of competent jurisdiction.
(e) Escrow Agent undertakes to perform only such duties as are expressly
set forth herein and shall not be bound in any way by any agreement between Bond
Purchase and any third party (whether or not Escrow Agent has knowledge
thereof).
(f) Escrow Agent shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the rights or powers
conferred upon it by this Agreement (provided that Escrow Agent shall be liable
for its gross negligence or willful misconduct), and may consult with counsel of
its own choice and shall have full and
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complete authorization and protection for any action taken or suffered by it
hereunder in good faith and in accordance with the opinion of such counsel.
3. INDEMNIFICATION. Bond Purchase agrees to indemnify Escrow Agent, its
directors, officers, agents and employees and any person who "controls" the
Escrow Agent within the meaning of Section 15 of the Securities Act of 1933, as
amended (collectively, the "Indemnified Parties") against, and hold them
harmless from, any and all loss, liability, cost, damage and expense, including,
without limitation, costs of investigation and reasonable counsel fees and
expenses, which any of the Indemnified Parties may suffer or incur by reason of
any action, claim or proceeding brought against any of the Indemnified Parties,
arising out of or relating in any way to this Agreement, other than any action,
claim or proceeding to the extent resulting from the gross negligence or willful
misconduct of such Indemnified Party. The provisions of this Section 3 shall
survive the termination of this Agreement.
4. INVESTMENT OF ESCROW FUND. Escrow Agent shall invest the Escrow Fund in
an interest bearing account designated in writing by Bond Purchase.
5. DISTRIBUTION OF ESCROW FUND. The Escrow Agent shall distribute the
Escrow Fund as follows:
(a) In the event that Bond Purchase desires or is obligated to consummate
the Tender Offer, Bond Purchase shall execute, and deliver to Escrow Agent, (i)
a certificate stating that Bond Purchase is consummating the Tender Offer and
needs to draw on the Escrow Fund to fund payment to the tendering limited
partners of XxXxxx XX (the "Consummation Certificate").
(b) Upon receipt of the Certificate by Escrow Agent, Escrow Agent shall, as
soon as is reasonably practical, distribute that portion of the Escrow Fund to
Bond Purchase that is equal to the amount required by Bond Purchase to
consummate the Tender Offer (the "Payment Amount").
(c) After distribution of the Payment Amount, any and all amounts remaining
in the Escrow Fund shall be distributed to Bond Purchase by Escrow Agent as soon
as is reasonably practicable.
(d) In the event the Tender Offer is terminated on or after the expiration
date of the Tender Offer as a result of any or all of the conditions of the
Offer not having been satisfied or waived, Bond Purchase shall execute and
deliver to Escrow Agent a certificate stating that Bond Purchase has terminated
the Tender Offer as a result of any or all of the
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conditions of the Offer not being satisfied or waived (the "Termination
Certificate"). Upon receipt of the Termination Certificate, Escrow Agent shall,
as soon as is reasonably practicable, distribute the Escrow Fund to Bond
Purchase, less any reasonable out-of-pocket expenses previously incurred by
Escrow Agent in connection with fulfilling its obligations under this Agreement.
(e) All interest earned with respect to the Escrow Fund ("Earnings") shall
be added to the Escrow Fund and held, invested and distributed as provided
herein. The Earnings shall constitute taxable income of Bond Purchase when
received or earned by the Escrow Fund. Escrow Agent shall prepare and timely
file appropriate information returns and statements as required by law reporting
the Earnings as taxable income to Bond Purchase.
6. NOTICES. All notices and other communications hereunder shall be given
to Bond Purchase at 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000
and to Escrow Agent at 0000 Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000.
7. CONFIDENTIALITY. Until such time as Bond Purchase's Schedule 14d-1 in
connection with the Tender Offer is filed with the Securities and Exchange
Commission:
(a) Any confidential or proprietary matters or information (including any
information concerning the Tender Offer) obtained by any party to this Agreement
respecting another party to this Agreement, or any of such party's affiliates,
during the course of preparing, documenting or administering the escrow
contemplated hereby; the existence of this Agreement and the Tender Offer; and
the terms of this Agreement and the Tender Offer (except for information that is
generally available to the public other than as a result of a disclosure by the
recipient or his or its representatives or otherwise available to the recipient
on a non-confidential basis), will be kept in strict confidence by the recipient
and will not be disclosed by the recipient to any third party without the prior
written consent of the other parties to this Agreement; provided, however, that
all or any portion of such information may be disclosed by the recipient (i) to
the extent required by applicable law or (ii) to any third party professional
adviser, attorney, accountant or lender associated with the recipient who needs
to know such confidential information to assist the recipient in connection with
the escrow; the recipient shall inform such third parties of the confidential
nature of such information and direct such third parties to treat such
information in a manner consistent with this Section 7(a); and
(b). Escrow Agent shall not issue any public announcement concerning the
escrow or the Tender Offer without the prior written approval of Bond Purchase,
unless in the opinion of any of the parties' legal counsel an announcement is
required to be made to
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comply with the requirements of applicable law or regulation, in which event a
facsimile transmission of the text of any such arrangement will be sent to the
other parties as soon as possible before or, only if necessary, after making
such announcement.
8. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Missouri, without giving effect to its
conflicts of law provisions.
(b) The headings contained herein are for reference purposes only and shall
not in any way affect the meaning or interpretation of this Agreement.
(c) This Agreement and the respective rights and obligations of the parties
hereunder shall not be assignable by any party hereto without the prior written
consent of the other parties.
(d) This Agreement represents the entire understanding and agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior negotiations and understandings relating to the subject
matter hereof.
(e) The failure of any party at any time or from time to time to require
performance of the terms of this Agreement, shall in no manner affect the right
to enforce the same, and a waiver by any party of any breach of any provision of
this Agreement shall not be construed to be a waiver by such party of any breach
of any other provision, or of a later breach of this Agreement.
(f) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same instrument.
(g) This Agreement shall inure to the benefit of and be binding upon, Bond
Purchase and Escrow Agent, and their respective personal representatives,
agents, heirs, successors and assigns.
(h) Nothing in this Agreement, expressed or implied, is intended to confer
upon any party, other than the parties hereto, and their respective heirs,
personal representatives, successor and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided herein.
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(i) No change, modification or termination of any of the terms, provisions
or conditions of this Agreement shall be effective unless made in writing and
signed by Bond Purchase, Tramor and Escrow Agent, whereupon such change,
modification or termination shall be binding upon all parties to this Agreement.
(j) This Agreement and the obligations of the Escrow Agent hereunder shall
terminate when the Escrow Funds and all Earnings thereon have been distributed
as provided herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective
as of the day and year first above written.
BOND PURCHASE, L.L.C.
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Member
ASSURED QUALITY TITLE COMPANY
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: President
RECEIPT
The Escrow Agent hereby acknowledges receipt of the Escrow Fund in the
amount of Four Million Seven Hundred Fifty-One Thousand Dollars ($4,751,000) and
agrees to serve as Escrow Agent under this Agreement.
January 12, 2000 ASSURED QUALITY TITLE COMPANY
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: President
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