ESCROW AGREEMENT
Exhibit 8.1
THIS ESCROW AGREEMENT (this “Agreement”) is made and entered into as of this 25th day of October, 2016 by and among Xxxxxx Island Investors Group, Inc., a Washington corporation (the “Company”), and UMB Bank, N.A., as escrow agent, a national banking association organized and existing under the laws of the United States of America (the “Escrow Agent”).
RECITALS
WHEREAS, the Company proposes to offer and sell shares of its common stock ( the “Shares”) on a best-efforts basis, for up to $4.2 million of gross offering proceeds, at an initial purchase price of $5,000 per Share (the “Offering”) to investors pursuant to the Company’s Offering Statement on Form 1-A, as amended from time to time (the “Offering Document”).
WHEREAS, the Company has agreed that the subscription price paid for Shares by subscribers in the Offering (the “Subscribers”) will be refunded to such Subscribers if at least $3,700,000 (the “Minimum Subscription Amount”) in gross offering proceeds has not been raised prior to the termination of the Offering.
WHEREAS, the Company desires to establish an escrow account (the “Escrow Account”) as further described herein, in which funds received from Subscribers will be deposited and the Company desires that the Escrow Agent act as escrow agent to the Escrow Account and Escrow Agent is willing to act in such capacity.
WHEREAS, the funds received from Subscribers will remain in the Escrow Account until the conditions of Section 3 have been met.
WHEREAS, the Escrow Agent has engaged DST Systems (the “Processing Agent”), to receive and examine for “good order” subscriptions and to act as record keeper, maintaining on behalf of the Escrow Agent the ownership records for the Escrow Account. In so acting, Processing Agent shall be acting solely in the capacity of agent for the Escrow Agent and not in any capacity on behalf of the Company.
WHEREAS, in order to subscribe for Shares during the Escrow Period (as defined below), Subscribers must deliver the full amount of the purchase price for the Shares: (i) by check made payable to the order of “UMB Bank, N.A., as Escrow Agent for Xxxxxx Island Investors Group, Inc.” in U.S. dollars; or (ii) by draft or wire transfer of immediately available funds in U.S. dollars, made payable as provided in Section 11(b) (collectively, the “Payment Instruments”).
AGREEMENT
NOW, THEREFORE, the Dealer Manager, the Company and Escrow Agent agree to the terms of this Agreement as follows:
1. Establishment of Escrow Account; Escrow Period. On or prior to the commencement of the Offering of Shares pursuant to the Offering Document, the Company shall establish the Escrow Account with the Escrow Agent, which shall be entitled “UMB Bank, N.A., as Escrow Agent for Xxxxxx Island Investors Group, Inc.” This Agreement shall be effective on the date
first written above. The “Escrow Period” shall commence upon the effectiveness of this Agreement and shall continue until the earliest of the following (hereinafter the “Termination Date”): (a) the date upon which the Escrow Agent receives written confirmation from the Company that the Company has raised $4,200,000 in gross proceeds in the Offering, (b) January 31, 2017 or (c) the date upon which the Escrow Agent receives written notice of the termination of the Offering by the Company.
2. Deposits in the Escrow Account. During the Escrow Period, Subscribers subscribing to purchase Shares will be instructed by the Company, to make Payment Instruments for subscriptions payable to the order of “UMB Bank, N.A., as Escrow Agent for Xxxxxx Island Investors Group, Inc.” Completed subscription agreements and Payment Instruments for the purchase price for the Shares shall be remitted by the broker dealers or registered investment advisors, as applicable, on behalf of persons subscribing to purchase shares directly to the Processing Agent by the end of the next business day following receipt of any such Payment Instruments or, if final internal supervisory review is conducted at a different location, by the end of the next business day following receipt of any such Payment Instruments by the office conducting final internal supervisory review. The Escrow Agent hereby agrees to maintain the funds contributed by Subscribers in a manner in which they may be separately accounted for by the records of the Processing Agent so that the requirements of Section 3 of this Agreement can be met. Deposits shall be held in the Escrow Account until such funds are disbursed in accordance with Sections 3. Prior to disbursement of the funds deposited in the Escrow Account, upon receipt of any Payment Instruments, Escrow Agent shall fax or scan a listing of the subscriber name and purchase price to Processing Agent, together with all other subscription documents sent with the Payment Instruments. Prior to disbursement of the funds deposited in the Escrow Account, such funds shall not be subject to claims by creditors of the Company or any of its affiliates. If any of the Payment Instruments are returned to the Escrow Agent for nonpayment prior to disbursement of the funds deposited in the Escrow Account, the Escrow Agent shall promptly notify the Processing Agent and the Company in writing via mail, email or facsimile of such nonpayment, and the Escrow Agent is authorized to debit the Escrow Account, as applicable in the amount of such returned payment and the Processing Agent shall delete the appropriate account from the records maintained by the Processing Agent. Within 30 days from the date of receipt of each subscription, the Company will determine whether or not the subscription is to be accepted or rejected in whole or in part. Within 10 business days of receipt by the Escrow Agent of written notice from the Company, or as soon thereafter as practicable, that a subscription has been rejected, the Escrow Agent shall transfer by check the funds and all interest, if any, earned thereon, of any Subscriber whose subscription has been rejected since the commencement of the Offering directly to such Subscriber. The Processing Agent will maintain a written account of each sale, which account shall set forth, among other things, the following information: (i) the Subscriber’s name and address; (ii) the Subscriber’s social security number; (iii) the number of Shares purchased by such Subscriber; and (iv) the amount paid by such Subscriber for such Shares. Prior to the Escrow Agent’s receipt of written notice from the Company that it has received the Minimum Subscription Amount, the Company will not be entitled to any principal funds received into the Escrow Account.
3. Distribution of the Funds from Arizona Subscribers.
(a) Notwithstanding anything to the contrary herein, disbursements of funds contributed by Subscribers may only be distributed in compliance with the provisions of this Section 3. The Escrow Agent will place deposits from Subscribers into the Escrow Account until the Terminate Date. At such time as the Company notifies the Escrow Agent in writing that gross offering proceeds raised in the Offering either (i) equal $4,200,000 or (ii) equal or exceed the Minimum Subscription Amount at or prior to the Termination Date of the Offering, the Escrow Agent shall: (i) disburse to the Company, at the Company’s request, the principal amount of the funds from Subscribers received by the Escrow Agent for accepted subscriptions; and (ii) disburse directly to the Company any interest earned on Subscribers’ subscription payments while such payments were held in the Escrow Account. However, the Escrow Agent shall not disburse those funds of a Subscriber, the subscription of which has been rejected or rescinded, if the Escrow Agent has been notified by the Company of such rejection or rescission.
(b) If the Company has not received the Minimum Subscription Amount at or prior to the Termination Date of the Offering, all funds in the Escrow Account that were contributed by Subscribers will be promptly returned in full to such Subscribers, together with their pro rata share of any interest earned thereon pursuant to instructions made by the Company upon which the Escrow Agent may conclusively rely. The subscription payments returned to each Subscriber shall be free and clear of any and all claims of the Company or any of its creditors.
4. Escrowed Funds.
(a) Upon receipt of funds from Subscribers, the Escrow Agent shall hold such funds in escrow pursuant to the terms of this Agreement. All such funds held in the Escrow Account shall be invested and reinvested in UMB Money Market Special, a bank money market account permitted under Rule 15c2-4 of the Securities Exchange Act of 1934, as amended. All funds in the Escrow Account shall at all times be placed in interest-bearing accounts.
(b) The Escrow Agent shall be entitled to sell or redeem any such investment as necessary to make any distributions required under this Agreement and shall not be liable or responsible for any loss resulting from any such sale or redemption.
(c) Income, if any, resulting from the investment of the funds received from Subscribers shall be distributed according to this Agreement.
(d) The Escrow Agent shall provide to the Company monthly statements (or more frequently as reasonably requested by the Company) on the account balance of the Escrow Account and the activity in the account since the last report.
5. Duties of the Escrow Agent. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth in this Agreement, and no implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent is not a party to, or bound by, any other agreement among the other parties hereto, and the Escrow Agent’s duties shall be determined solely by reference to this Agreement. The Escrow Agent shall have no duty to enforce any obligation of any person, other than as provided herein. The Escrow Agent shall be under no liability to anyone by reason of any failure on the part of any party hereto or any maker, endorser or other signatory of any document or any other person to perform such person’s obligations under any such document.
6. Liability of the Escrow Agent and the Processing Agent; Indemnification.
(a) The Escrow Agent acts hereunder as a depository only. The Escrow Agent is not responsible or liable in any manner for the sufficiency, correctness, genuineness or validity of this Escrow Agreement or with respect to the form of execution of the same. Each of the Escrow Agent and the Processing Agent shall not be liable for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith, and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent or the Processing Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent or the Processing Agent to be genuine and to be signed or presented by the proper person(s). Each of the Escrow Agent and the Processing Agent shall not be held liable for any error in judgment made in good faith by an officer or employee of either unless it shall be proved that the Escrow Agent or the Processing Agent, as appropriate, was grossly negligent or reckless in ascertaining the pertinent facts or acted intentionally in bad faith. The Escrow Agent shall not be bound by any notice of demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall give its prior written consent thereto.
(b) Either of the Escrow Agent and the Processing Agent may consult legal counsel and shall exercise reasonable care in the selection of such counsel, in the event of any dispute or question as to the construction of any provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in accordance with the reasonable opinion or instructions of such counsel.
(c) Each of the Escrow Agent and the Processing Agent shall not be responsible, may conclusively rely upon and shall be protected, indemnified and held harmless by the Company, for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of any document or property received, held or delivered by it hereunder, or of the signature or endorsement thereon, or for any description therein; nor shall the Escrow Agent or the Processing Agent be responsible or liable in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document, property or this Agreement.
(d) In the event that either the Escrow Agent or the Processing Agent shall become involved in any arbitration or litigation relating to the funds received from Subscribers, each is authorized to comply with any decision reached through such arbitration or litigation.
(e) The Company hereby agrees to indemnify both the Escrow Agent and the Processing Agent for, and to hold it harmless against, any loss, liability or expense incurred in connection herewith without gross negligence, recklessness or willful misconduct on the part of either of the Escrow Agent or the Processing Agent, including without limitation legal or other fees arising out of or in connection with its entering into this Agreement and carrying out its duties hereunder, including without limitation the costs and expenses of defending itself against any claim of liability in the premises or any action for interpleader. Neither the Escrow Agent, nor the Processing Agent, shall be
under any obligation to institute or defend any action, suit, or legal proceeding in connection herewith, unless first indemnified and held harmless to its satisfaction in accordance with the foregoing, except that neither shall be indemnified against any loss, liability or expense arising out of its own gross negligence, recklessness or willful misconduct. Such indemnity shall survive the termination or discharge of this Agreement or resignation of the Escrow Agent.
7. The Escrow Agent’s Fee. Escrow Agent shall be entitled to fees and expenses for its regular services as Escrow Agent as set forth in Exhibit A. Additionally, Escrow Agent is entitled to reasonable fees for extraordinary services and reimbursement of any reasonable out of pocket and extraordinary costs and expenses related to its obligations as Escrow Agent under this Agreement, including, but not limited to, reasonable attorneys’ fees. All of the Escrow Agent’s compensation, costs and expenses shall be paid by the Company.
8. Security Interests. No party to this Escrow Agreement shall grant a security interest in any monies or other property deposited with the Escrow Agent under this Escrow Agreement, or otherwise create a lien, encumbrance or other claim against such monies or borrow against the same.
9. Dispute. In the event of any disagreement between the undersigned or the person or persons named in instructions given pursuant to this Agreement, or any other person, resulting in adverse claims and demands being made in connection with or for any papers, money or property involved herein, or affected hereby, the Escrow Agent shall be entitled to refuse to comply with any demand or claim, as long as such disagreement shall continue, and in so refusing to make any delivery or other disposition of any money, papers or property involved or affected hereby, the Escrow Agent shall not be or become liable to the undersigned or to any person named in such instructions for its refusal to comply with such conflicting or adverse demands, and the Escrow Agent shall be entitled to refuse and refrain to act until: (a) the rights of the adverse claimants shall have been fully and finally adjudicated in a court of competent jurisdiction over the parties and money, papers and property involved herein or affected hereby; or (b) all differences shall have been adjusted by agreement and the Escrow Agent shall have been notified thereof in writing, signed by all the interested parties.
10. Resignation of Escrow Agent. Escrow Agent may resign or be removed, at any time, for any reason, by written notice of its resignation or removal to the proper parties at their respective addresses as set forth herein, at least 60 days before the date specified for such resignation or removal to take effect; upon the effective date of such resignation or removal:
(a) all cash and other payments and all other property then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent as may be designated in writing by the Company, whereupon the Escrow Agent’s obligations hereunder shall cease and terminate; or
(b) if no such successor escrow agent has been designated by such date, all obligations of the Escrow Agent hereunder shall, nevertheless, cease and terminate, and the Escrow Agent’s sole responsibility thereafter shall be to keep all property then held by it and to deliver the same to a person designated in writing by the Company or in accordance with the directions of a final order or judgment of a court of competent jurisdiction; and
(c) further, if no such successor escrow agent has been designated by such date, the Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor agent; further the Escrow Agent may pay into such court all monies and property deposited with Escrow Agent under this Agreement.
11. Notices. All notices, demands and requests required or permitted to be given under the provisions hereof must be in writing and shall be deemed to have been sufficiently given, upon receipt, if (i) personally delivered, (ii) sent by telecopy and confirmed by phone or (iii) mailed by registered or certified mail, with return receipt requested, delivered to the addresses set forth below, or to such other address as a party shall have designated by notice in writing to the other parties in the manner provided by this paragraph:
| (a) If to Company: | Xxxxxx Island Investors Group, Inc. 0000 XX 00xx Xx. Xxxxxx Xxxxxx, Xxxxxxxxxx 00000 | |||
| Company Wire Instructions: | ||||
| To be provided by the Company | ||||
| (b) If to the Escrow Agent: | UMB Bank, N.A. | |||
| 0000 Xxxxx Xxxx., 0xx Xxxxx | ||||
| Mail Stop: 1020409 | ||||
| Xxxxxx Xxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxx Xxxxxxx | ||||
| Corporate Trust & Escrow Services | ||||
| Telephone: (000) 000-0000 | ||||
| Facsimile: (000) 000-0000 | ||||
| Escrow Agent Wiring Instructions: | ||||
| UMB Bank, N.A. | ||||
| ABA Routing Number: 000000000 | ||||
| Account Number: 9872191145 | ||||
| Account Name: UMB Bank, N.A., as Escrow Agent for Xxxxxx Island Investors Group, Inc. | ||||
| Checks Payable Information: | ||||
| UMB Bank, N.A., as Escrow Agent for Xxxxxx Island Investors Group, Inc. | ||||
| Attention: Xxxx Xxxxxxx, Corporate Trust & Escrow Services 0000 Xxxxx Xxxxxxxxx, 0xx Xxxxx M/S 1020409 Xxxxxx Xxxx, Xxxxxxxx 00000 | ||||
12. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Washington without regard to the principles of conflicts of law.
13. Binding Effect; Benefit. This Agreement shall be binding upon and inure to the benefit of the permitted successors and assigns of the parties hereto.
14. Modification. This Agreement may be amended, modified or terminated at any time by a writing executed by the Company and the Escrow Agent.
15. Assignability. This Agreement shall not be assigned by the Escrow Agent without the Company’s prior written consent.
16. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be authentic and valid counterparts of such original documents for all purposes, including the filing of any claim, action or suit in the appropriate court of law. The parties hereto agree the transactions described herein may be conducted and related documents may be sent and stored by electronic means.
17. Headings. The section headings contained in this Agreement are inserted for convenience only, and shall not affect in any way, the meaning or interpretation of this Agreement.
18. Severability. This Agreement constitutes the entire agreement among the parties and supersedes all prior and contemporaneous agreements and undertakings of the parties in connection herewith. No failure or delay of any party to this Agreement in exercising any right, power or remedy may be, or may be deemed to be, a waiver thereof; nor may any single or partial exercise of any right, power or remedy preclude any other or further exercise of any right, power or remedy. In the event that any one or more of the provisions contained in this Agreement, shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement.
19. Earnings Allocation; Tax Matters; Patriot Act Compliance; OFAC Search Duties. The Company or its agent shall be responsible for all tax reporting under this Escrow Agreement. The Company shall provide to Escrow Agent upon the execution of this Agreement a Form W-9 and any documentation requested and any information reasonably requested by the Escrow Agent to comply with the USA Patriot Act of 2001, as amended from time to time. The Escrow Agent, or its agent, shall complete an OFAC search, in compliance with its policy and procedures, of each Payment Instrument and shall inform the Company if a Payment Instrument fails the OFAC search.
20. Miscellaneous. This Agreement shall not be construed against the party preparing it, and shall be construed without regard to the identity of the person who drafted it or the party who caused it to be drafted and shall be construed as if all parties had jointly prepared this Agreement and it shall be deemed their joint work product, and each and every provision of this Agreement shall be construed as though all of the parties hereto participated equally in the drafting hereof; and any uncertainty or ambiguity shall not be interpreted against any one party. As a result of the foregoing, any rule of construction that a document is to be construed against the drafting party shall not be applicable.
21. Third Party Beneficiaries. The Processing Agent shall be a third party beneficiary under this Agreement, entitled to enforce any rights, duties or obligations owed to it under this Agreement notwithstanding the terms of any other agreements between the Processing Agent and any Party hereto.
22. Termination of the Escrow Agreement. This Agreement, except for Sections 6 and 10 hereof, which shall continue in effect, shall terminate upon written notice from the Company to the Escrow Agent. Unless otherwise provided, final termination of this Agreement shall occur on the date that all funds held in the Escrow Account are distributed either: (a) to the Company or to Subscribers and the Company has informed the Escrow Agent in writing to close the Escrow Account; or (b) to a successor escrow agent upon written instructions from the Company.
23. Relationship of Parties. The Company is unaffiliated with the Escrow Agent, and this Agreement does not create any partnership or joint venture among the Company and the Escrow Agent.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed by their duly authorized representatives as of the date first written hereinabove.
| COMPANY:
Xxxxxx Island Investors Group, Inc. | ||
| By: | /s/ Xxxxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxxxx Xxxxxxxx | |
| Title: | Chairman and CFO | |
|
ESCROW AGENT:
UMB BANK, N.A. | ||
| By: | /s/ Xxxx X. Xxxxxxx | |
| Name: | Xxxx X. Xxxxxxx | |
| Title: | Vice President | |
EXHIBIT A
ESCROW FEES AND EXPENSES
| Acceptance Fee |
||||
| Review agreements; establish accounts |
$3,500/one-time | |||
| DST Agency Engagement |
$250/one-time | |||
| Annual Escrow Agent Fee |
$3,500/per year | |||
| Transaction Fees |
||||
| Daily BAI File Transmission to DST |
$2.50 per Bus Day | |||
| Wire Ripping Transmission to DST |
$10 per Bus Day | |||
| Outgoing Wire Transfers |
$35 each | |||
| Subscription Processing |
$25 each | |||
| Overnight Delivery/Mailings |
$16.50 each | |||
| Online Account Access (UMB Direct) |
$60 per Month | |||
| IRS Tax Reporting |
$50 per 1099 | |||
Fees specified are for the regular, routine services contemplated by the Escrow Agreement, and any additional or extraordinary services, including, but not limited to disbursements involving a dispute or arbitration, or administration while a dispute, controversy or adverse claim is in existence, will be charged based upon time required at the then standard hourly rate. In addition to the specified fees, all expenses related to the administration of the Escrow Agreement (other than normal overhead expenses of the regular staff) such as, but not limited to, travel, postage, shipping, courier, telephone, facsimile, supplies, legal fees, accounting fees, etc., will be reimbursable.
Acceptance fee and first year Annual Escrow Agent fee will be payable at the initiation of the escrow. Thereafter, the Annual Escrow Agent fee will be billed in advance and transaction fees will be billed in arrears. Other fees and expenses will be billed as incurred.
