ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is entered into by and between
WNC HOUSING TAX CREDIT FUND VI, L.P., SERIES 13 and WNC HOUSING TAX CREDIT FUND
VI, L.P., SERIES 14 (individually, a "Series," and collectively, the
"Registrants") and U.S. Bank, National Association (the "Escrow Agent"), as of
this ____ day of _________, 2005. All capitalized terms used but not defined in
this Escrow Agreement shall have the respective meanings given them in the
Agreement of Limited Partnership of the Registrants dated as of February 7,
2005, as it may be further amended (the "Partnership Agreement").
RECITALS
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 Nos. 333-________, and 333-________ (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 Dealer Manager 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
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
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Soliciting Dealers. As used herein, the term "promptly" shall have the
meaning set forth in Rule 15C2-4 under the Securities Exchange Act of
1934, as interpreted in NASD Notice to Members 84-64.
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 General Partner, in bank accounts,
including savings accounts and bank money market accounts. The funds
must be held in a bank account that enables the Escrow Agent to
promplty transmit or return such funds to the person entitled thereto
when the appropriate event or contingency has occurred or has failed to
occur. 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 General Partner 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
General Partner 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
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 General Partner 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, as soon as possible, 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,
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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:
c/o Xxxxxx X. Xxxx
00000 Xxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
(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.
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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 13 AND SERIES 14
By: WNC National Partners, LLC,
General Partner
By: WNC & Associates, Inc.,
Managing Member
By: __________________________
Xxxxxx X. Xxxx,
Senior Vice President - Chief Financial Officer
U.S. Bank, National Association
By: ___________________________
Its: ___________________________
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