ESCROW DEPOSIT AGREEMENT
EXHIBIT
K(2)
This
Escrow Deposit Agreement (herein “Agreement”) entered into on the ____ day of
_________, 20__, by and between ___________________________________ (the
“Depositor”), and U. S. Bank National Association, a national banking
association (the “Escrow Agent”), all being duly authorized to execute and
deliver this Agreement.
WHEREAS,
the Depositor desires (i) to establish an escrow fund (the “Escrow Fund”) with
the Escrow Agent, and (ii) that the Escrow Agent perform certain services with
respect to such Escrow Fund, in each case, in accordance with the terms and
conditions hereof.
WHEREAS,
[business
reasons for the escrow deposit].
WHEREAS,
the Depositor desires to deposit into the Escrow Fund the sum of $_____________
for the above described purposes.
WHEREAS,
Escrow Agent is willing to perform such services in accordance with the terms
and conditions hereof and has established the Escrow Fund
hereunder,
NOW,
THEREFORE, in consideration of the foregoing and of the agreements hereinafter
set forth and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. APPOINTMENT
OF ESCROW AGENT.
Depositor hereby appoints and designates U.S. Bank National Association as
Escrow Agent for the purposes set forth herein, and Escrow Agent hereby accepts
such appointment.
2. THE
DEPOSIT.
The
Depositor shall cause to be deposited with Escrow Agent $______________ (the
“Deposit”) for deposit into the Escrow Fund. The Depositor may, from time to
time, deposit or cause to be deposited with the Escrow Agent additional amounts,
which additional amounts shall be promptly deposited by the Escrow Agent into
the Escrow Fund. Escrow Agent shall invest the Deposit in accordance with
Exhibit A. The Escrow Agent shall periodically disburse the Escrow Fund in
accordance with the authorization and instructions received from Authorized
Officers of the Depositor as set forth on Exhibit B, by facsimile transmission
or otherwise, in the form of Exhibit D (the “Disbursement Authorization”).
Escrow Agent has no duty to examine the Disbursement Authorization for
authenticity, genuineness or completeness.
3. ESCROW
AGENT.
The
duties and responsibilities of the Escrow Agent shall be limited to those
expressly set forth in the Agreement. No implied duties of the Escrow Agent
shall be read into this Agreement and the Escrow Agent shall not be subject
to,
or obliged to recognize any other agreement between, or direction or instruction
of, Depositor even though reference thereto may be made herein.
In
the
event all or any part of the Escrow Fund shall be attached, garnished or levied
upon pursuant to any court order, or the delivery thereof shall be stayed or
enjoined by a court order, or any other order, judgment or decree shall be
made
or entered by any court affecting the Escrow Fund or any part thereof, Escrow
Agent is hereby expressly authorized to obey and comply with all final writs,
orders, judgments or decrees so entered or issued by any court; and, if Escrow
Agent obeys or complies with such writ, order, judgment or decree, it shall
not
be liable to Depositor or to any other party by reason such
compliance.
Escrow
Agent shall not be liable to anyone for any damages, losses or expenses incurred
as a result of any act or omission of Escrow Agent, unless such damages, losses
or expenses are caused by Escrow Agent’s willful default or gross negligence.
Escrow Agent shall not incur any such liability with respect to (i) any action
taken or omitted in good faith upon the advice of counsel given with respect
to
any question relation to the duties under this Agreement or (ii) any action
take
or omitted in reliance upon any instrument, including any written notice or
instruction provided for herein, not only as to its due execution by an
authorized person and as to the validity and effectiveness of such instrument,
but also as to the truth and accuracy of any information contained therein
that
Escrow Agent shall in good faith believe to be genuine, to have been signed
by a
proper person or persons and to conform to the provisions of this Agreement.
The
Escrow Agent may consult with legal counsel of its own choosing and shall be
fully protected in acting or refraining from acting in good faith and in
accordance with the opinion of such counsel.
The
Escrow Agent shall not be responsible for the sufficiency or accuracy, or the
form, execution, validity or genuineness, of documents or securities now or
hereafter deposited or received hereunder, or of any endorsement thereon, or
for
any lack of endorsement thereon, or for any description therein, nor shall
it be
responsible or liable on account of the identity, authority or rights of any
person executing, depositing or delivering or purporting to execute, deposit
or
deliver any such document, security or endorsement, nor shall the Escrow Agent
be liable for any mistake of fact or of law or any error of judgment, or for
any
act or omission, except as a result of its gross negligence or willful
malfeasance. The Escrow Agent’s liability for any grossly negligent performance
or nonperformance shall not exceed its fees and charges in connection with
the
services provided hereunder. Under no circumstances shall Escrow Agent be liable
for consequential damages or for 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 unavoidable or beyond
its
reasonable control.
In
the
event of a dispute between the parties hereto sufficient in the discretion
of
Escrow Agent to justify its doing so, Escrow Agent shall be entitled at the
expense of the Escrow Fund to tender the Escrow Fund into the registry or
custody of any court of competent jurisdiction, to initiate such legal
proceedings at the expense of the Escrow Fund as it deems appropriate, and
thereupon to be discharged from all further duties and liabilities under this
Agreement. Any such legal action may be brought in any such court as Escrow
Agent shall determine to have jurisdiction over the Escrow Fund. The filing
of
any such legal proceedings shall not deprive Escrow Agent of its compensation
hereunder earned prior to such filing. Escrow Agent shall be under no duty
to
take any legal action in connection with this Agreement or towards it
enforcement, or to appear in, prosecute or defend any action or legal proceeding
that would result in or might it to incur any costs, expenses, losses or
liability, unless and until it shall be indemnified with respect thereto in
accordance with this Agreement.
The
Escrow Agent shall have no responsibility for the preparation and/or filing
of
any tax or information return with respect to any transaction, whether or not
to
the Agreement.
4. ESCROW
AGENT’S FEES AND EXPENSES.
All
fees and expenses of Escrow Agent shall be as set forth on Exhibit C attached
hereto and incorporated herein and shall be paid by Depositor.
5. TERMINATION.
This
Agreement shall terminate upon the distribution of all of the Escrow Fund
pursuant to the provisions of this Agreement, provided that any termination
shall not affect Depositor’s obligations arising prior to such termination,
including the obligation to pay Escrow Agent’s fees.
6. INDEMNIFICATION
OF ESCROW AGENT.
Depositor hereby agrees to protect, defend, indemnify and hold harmless the
Escrow Agent against any and all costs, losses, claims, damages, disbursement,
liabilities and expenses, including reasonable costs of investigation, court
costs and attorney’s fees, which may imposed upon or incurred by Escrow Agent in
connection with the performance of its duties hereunder, including any
litigation arising out of this Agreement or involving the subject matter hereof;
provided, however, that said indemnity shall not cover costs, losses, claims,
damages, disbursements, liabilities and expenses arising out of Escrow Agent’s
willful misfeasance or gross negligence. The indemnification shall survive
the
termination of this Agreement or the resignation or removal of the Escrow
Agent.
7. RESIGNATION
OF ESCROW AGENT.
It is
understood that the Escrow Agent reserves the right to resign as Escrow Agent
at
any time by giving written notice of its resignation, specifying the effective
date thereof, to each other party hereto. Within thirty (30) days after
receiving the aforesaid notice, the Depositor shall appoint a successor escrow
agent to whom the Escrow Agent may distribute the property then held hereunder,
less its fees, costs and expenses, including counsel fees and expenses which
may
remain unpaid at that time. If a successor escrow agent has not been appointed
and has not accepted such appointment by the end of such thirty (30) day period,
the Escrow Agent may apply to a court of competent jurisdiction for the
appointment of a successor escrow agent and the fees, costs and expenses
(including reasonably counsel fees and expenses) shall be paid by Depositor.
8. NOTICES.
All
notices provided for here under shall be in writing and shall be deemed to
be
given: (a) when delivered to the individual, or to an officer of the company,
to
which the notice is directed; or (b) three days after the same has been
deposited in the United States mail sent Certified or Registered mail with
Return Receipt Requested, postage prepaid, and addressed as provided in this
Section; (c) when delivered by an overnight delivery service (including Federal
Express or United States Express Mail) with receipt acknowledged and with all
charges prepaid by the sender addressed as provided in this Section. Notice
shall be directed as follows:
(i)
If to
Depositor:
(ii)
If
to Escrow Agent:
U.
S.
Bank National Association
or
such
other place or places or to such person or persons as shall be designated by
written notice to the other party hereto.
9. ENTIRE
AGREEMENT; BINDING EFFECT; MODIFICATION AND ASSIGNMENT.
This
Agreement and matters and agreements referred to herein contain the entire
understanding by and among the parties hereto and shall be binding upon and
shall inure to the benefit of the parties hereto, and their respective
successors and assigns. None of the terms or conditions of this Agreement may
be
changed, waived, modified or varied in any manner whatsoever unless in writing
duly signed by Depositor and Escrow Agent. This Agreement may not be assigned
by
either party except with the prior written consent of the other party. However,
any successor to the business of U. S. Bank National Association, whether by
reorganization or otherwise, will act with like effect as though originally
named.
10.
ENFORCEABILITY
AND GOVERNING LAW.
Whenever possible, each provision of this Agreement shall be interpreted in
such
manner as to be effective and valid under ______________ law, but if any
provision shall prohibited by or be invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this
Agreement. This Agreement shall be construed, enforces and administered in
accordance with the laws of the State of _______________.
11.
HEADINGS
DESCRIPTIVE.
The
headings of the several sections of the Agreements are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this agreement.
12.
BUSINESS
DAY.
Business day shall mean a day on which commercial banks in ________________
are
open for the general transaction of business. If any action or time for
performance pursuant to this Agreement is to occur on any Saturday, Sunday
or
holiday, such time for action or performance shall be extended to the next
Business Day.
13.
PATRIOT
ACT.
To help
the government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify and record
information that identifies each person who opens an account. For a
non-individual person such as a business entity, a charity, a Trust or other
legal entity Agent will ask for documentation to verify its formation and
existence as a legal entity. Agent may also ask to see financial statements,
licenses, identification and authorization documents from individuals claiming
authority to represent the entity or other relevant documentation.
14.
SECURITY
ADVICE WAIVER.
The
Depositor acknowledges that regulations of the Comptroller of the Currency grant
it the right to receive brokerage confirmations of security transactions as
they
occur. The Depositor specifically waives such notification to the extent
permitted by law and acknowledges that it will receive periodic cash transaction
statements, which will detail all investments transactions.
15.
EXECUTION
IN COUNTERPARTS.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed an original, but all of which shall together constitute
one and the same instrument.
IN
WITNESS WHEREOF, Depositor and Escrow Agent have caused this agreement to be
executed by their authorized representatives as of the date first above
written.
(“Depositor”)
By:
_____________________________________________
Its:
_____________________________________________
U.
S.
Bank National Association (“Escrow
Agent”)
By:
______________________________________________
Its:
______________________________________________
EXHIBIT
A
In
the
absence of specific written direction to the contrary, U.S. Bank National
Association is hereby directed to invest and reinvest proceeds and other
available moneys in the following fund as permitted by the operative
documents.
U.
S. Bank National Association
Money
Market Accounts
Account
and Description Terms
The
U.S.
Bank Money Market account is a U.S. Bank National Association (“U.S. Bank”)
interest-bearing money market deposit account designed to meet the needs of
U.S.
Bank’s Corporate Trust Services Escrow Group and other Corporate Trust customers
of U.S. Bank. Selection of this investment includes authorization to place
funds
on deposit with U.S. Bank.
U.S.
Bank
uses the daily balance method to calculate interest on this account (actual/365
or 366). This method applies a daily periodic rate to the principal balance
in
the account each day. Interest is accrued daily and credited monthly to the
account. Interest rates are determined at U.S. Bank’s discretion, and may be
tiered by customer deposit amount.
The
owner
of the account is U.S. Bank as Agent for its trust customers. U.S. Bank’s trust
department performs all account deposits and withdrawals. The deposit account
is
insured by the Federal Deposit Insurance Corporation up to
$100,000.
EXHIBIT
B
Authorized
Officers of the Depositor and Specimen Signatures
Name
(Printed) Title Signature
Name
(Printed) Title Signature
Name
(Printed) Title Signature
EXHIBIT
C
ESCROW
AGENT FEES AND EXPENSES
$500.00
Acceptance Fee (One-time payment, at closing)
$0.00
Escrow Agent Fee (Payable annually, in advance)
PLUS
Reimbursable
expenses including, but not limited to, the following (billed at cost
incurred):
| · |
Wire
Transfers
|
| · |
Travel
|
| · |
Publication
Expenses
|
| · |
Postage
|
| · |
Insurance
|
| · |
Legal
Expenses
|
EXHIBIT
D
AUTHORIZATION
TO DISBURSE
Attention:
U.
S.
Bank National Association
Attn:
Corporate Trust Account Administration
Ref:
_________________________
Mailcode
EP-MN-WS3C
00
Xxxxxxxxxx Xxxxxx
Xx.
Xxxx,
XX 00000-0000
RE:
Disbursement
Order No. _______
Escrow
Deposit Agreement entered into on the ____ day of ___________,
20__,
by
and
between ______________________ (the “Depositor”), and U. S. Bank
National
Association, a national banking association (the “Escrow Agent”).
Escrow
Agent is hereby authorized, ordered and directed to disburse to
____________________________
the sum of $_______________from the Escrow Fund
provided
under the Agency Agreement utilizing the following payment
instructions:
By:
________________________________
Authorized
Signature
