ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is entered into by and between
WNC HOUSING TAX CREDIT FUND VI, L.P., SERIES 7 and WNC HOUSING TAX CREDIT FUND
VI, L.P., SERIES 8 (individually, a "Series," and collectively, the
"Registrants") and SOUTHERN CALIFORNIA BANK, a California banking corporation
(the "Escrow Agent"), as of this ____ day of August, 1999. All capitalized terms
used but not defined in this Escrow Agreement shall have the respective meanings
given them in the First Amended and Restated Agreement of Limited Partnership of
the Registrants dated as of April 1, 1999, as it may be further amended (the
"Partnership Agreement").
R E C I T A L S
WHEREAS, the Registrants have filed a registration statement on Form
S-11 under the Securities Act of 1933 with the Securities and Exchange
Commission, File No. 333-76435 (the "Registration Statement"), relating to the
issuance and sale of a maximum of 50,000 units ("Units") of limited partnership
interest in an offering(s) ("Offering") to be conducted by one or more of the
Series, with a minimum subscription of five Units required for each subscriber
to one or more Series (two Units under certain circumstances set forth in the
Prospectus, as hereinafter defined), all Units to be sold at a price of $1,000
per Unit except as otherwise set forth in the prospectus included in the
Registration Statement, as amended or supplemented (such prospectus as amended
by any supplement thereto included in an amendment to the Registration Statement
which is declared effective, or any supplement filed with the Securities and
Exchange Commission pursuant to Rule 424 under the Securities Act of 1933, as
amended, are hereinafter collectively called the "Prospectus"), payable in cash
or cash and Promissory Notes upon subscription, all as more fully set forth in
the Prospectus; and
WHEREAS, in compliance with the Selling Agreement between the
Registrants and WNC Capital Corporation (the "Dealer-Manager") and the
Soliciting Dealer Agreement between the Dealer-Manager and those members (the
"Soliciting Dealers") of the National Association of Securities Dealers, Inc.
who have agreed therein to offer and sell the Units for the Registrants on a
"best efforts" basis, and Rule 15c2-4 under the Securities Exchange Act of 1934,
the Registrants propose to establish an escrow fund with the Escrow Agent;
WHEREAS, the Offering of Units in any one Series will terminate on the
earlier of (1) one year from the commencement date of such Series Offering,
unless extended as provided in the Prospectus to a date not later than two years
from the commencement date of such Series Offering, or (2) the sale of all of
the Units (the "Offering Termination Date"); and unless gross cash offering
proceeds of at least $1,400,000 (the "Minimum Offering Amount") for a Series
have been received within one year from the commencement date of such Series
Offering (the "Escrow Termination Date"), no Units will be sold in such Series;
and
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WHEREAS, each person subscribing to Units will do so by executing such
person's "Investor Form," a form of which is included as Exhibit C to the
Prospectus.
NOW, THEREFORE, the parties hereto agree as follows:
1. For a period commencing on the effective date of the Registration
Statement and terminating at the later of the Offering Termination Date for the
last Series to be offered or the last date upon which subscribers for Units are
admitted to one of the Registrants as Limited Partners thereof, the Escrow Agent
shall act as escrow agent in connection with the sale of Units and shall receive
and disburse the proceeds from the sale of Units in accordance herewith.
2. All Investor Forms and funds received by the Soliciting Dealers in
connection with the sale of Units (including the Promissory Notes, if
applicable) shall be promptly transmitted to the Escrow Agent by the Soliciting
Dealers.
3. Deposits in the form of checks which fail to clear the bank upon
which they are drawn shall be returned by the Escrow Agent to the subscriber,
together with the related Investor Form and any Promissory Note. The Escrow
Agent shall concurrently furnish to the Dealer-Manager a copy of any such
materials so returned. The Escrow Agent shall have no further liability
therefor.
If a Series rejects any subscription for which the Escrow Agent has
already collected funds, the Escrow Agent shall promptly issue and remit a
refund check to the rejected subscriber. If a Series rejects any subscription
for which the Escrow Agent has not yet collected funds but has submitted the
subscriber's check for collection, the Escrow Agent shall promptly issue and
remit a refund check to the rejected subscriber after the Escrow Agent has
cleared such funds. If a Series rejects any subscription for which the Escrow
Agent has not yet submitted the subscriber's check for collection, the Escrow
Agent shall promptly remit the subscriber's check directly to the subscriber.
All checks shall be accompanied by any related Investor Forms and Promissory
Notes.
4. The Escrow Agent shall invest all funds of a Series deposited with
it pursuant to Section 2 hereof, in accordance with written instructions from
time to time received from the Fund Manager, in United States Government
securities, securities issued or guaranteed by United States Government agencies
and certificates of deposit or time or demand deposits in commercial banks.
Interest accrued on subscription funds of a Series held in the escrow account
shall not be an asset of the Series but shall be paid to the subscribers as set
forth herein.
5. The Fund Manager will notify the Escrow Agent of the commencement
date of each Series Offering, and the termination date of each Series Offering.
6. Upon receipt by the Escrow Agent of appropriate instructions from
the Fund Manager on or after the date as of which the Minimum Offering Amount
for a Series has been deposited with the Escrow Agent (the "Minimum Offering
Closing Date") and on each subsequent date on which subscribers to such Series
are admitted as limited partners to the Series (an "Admission Date"), as the
case may be, which instructions may be conveyed by telephonic or telegraphic
means (provided, however, that the same shall be confirmed in writing within
three days), the Escrow Agent shall deliver to the Series such portion of the
deposited funds attributable to such Series then held in escrow as are specified
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in such instructions, together with any related Investor Forms and Promissory
Notes; provided that in no event shall the Escrow Agent release any of the
escrowed funds until it has confirmed that the payments for the Minimum Offering
Amount for such Series are represented by cleared funds. Promptly after release
of a subscriber's escrowed funds in accordance with this paragraph, the Escrow
Agent shall release to such subscriber all interest earned on such escrowed
funds.
7. If at least the Minimum Offering Amount for a Series has not been
deposited with the Escrow Agent by the Escrow Termination Date for such Series,
or if the Fund Manager notifies the Escrow Agent that it has elected to
terminate the Offering of a Series at an earlier date prior to the deposit into
escrow of the Minimum Offering Amount for such Series, the Escrow Agent shall
promptly, and in any event within 30 days, return all subscription funds
attributable to such Series, together with all interest on the funds, and any
related Investor Forms and Promissory Notes, to the respective subscribers.
8. In the event of either (a) the occurrence of the final Admission
Date in connection with the sale of the Units and the final disbursement by the
Escrow Agent pursuant to Section 6 hereof, or (b) at least the Minimum Offering
Amount for the last Series to be conducted not having been deposited with the
Escrow Agent by the Escrow Termination Date for such Series and compliance by
the Escrow Agent with Section 7 above, the Escrow Agent thereafter shall be
relieved of all liabilities in connection with the escrow deposits provided for
herein.
9. It is understood and agreed that the Escrow Agent shall:
(A) be under no duty to enforce payment of any subscription or
Promissory Note which is to be delivered to and held by it hereunder;
(B) make no distribution of funds except according to Sections
3, 6 and 7 hereof, and (i) may act upon any instructions or advice believed by
it to be genuine and may assume that any person purporting to give advice or
instruction hereunder, believed by it to be duly authorized, has been authorized
to do so, (ii) shall not be liable for any action taken or omitted upon the
advice of counsel or upon a reasonable interpretation of any advice,
instructions or document furnished it, and (iii) may decline to act and shall
not be liable for failure to act if in doubt as to its duties hereunder;
(C) be deemed conclusively to have given and delivered any
notice required to be given or delivered hereunder if the same is in writing,
signed by any one of its authorized officers and mailed, by registered or
certified mail, or delivered by hand, in a sealed postpaid wrapper, addressed to
the Registrants at the following address:
x/x Xxxxx X. Xxxxxx, Xxx.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
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(D) be indemnified by the Registrants against any claim made
against it by reason of its acting or failing to act in connection with any of
the transactions contemplated hereby (including reasonable fees and
disbursements of its counsel) and against any loss it may sustain in carrying
out the terms of this Agreement, except such claims which are occasioned by its
bad faith, gross negligence or willful misconduct.
10. The Escrow Agent, for services rendered under this Agreement, shall
receive from the Registrants an aggregate fee in the amount of $3,000.
11. Nothing in this Agreement is intended to or shall confer upon any
other than the parties hereto any legal or equitable right, remedy or claim.
This Agreement shall be construed in accordance with the laws of the State of
California and may be modified only in writing.
12. For purposes of this Agreement, the term "collected funds" shall
mean all funds received by the Escrow Agent which have cleared normal banking
channels and are in the form of cash.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WNC HOUSING TAX CREDIT FUND VI, L.P.,
SERIES 7 AND SERIES 8
By: WNC & Associates, Inc.,
General Partner
By: _________________________
Xxxx X. Xxxxxx, Xx.,
President
SOUTHERN CALIFORNIA BANK
(the "Escrow Agent")
By: ___________________________________
A Duly Authorized Officer
By: ___________________________________
A Duly Authorized Officer
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