SECOND AMENDED AND RESTATED
ESCROW AGREEMENT
This Second Amended and Restated Escrow Agreement (the
"Agreement") is entered into by and among Harrisonville Heights,
L.P., a Missouri limited partnership (the "Partnership"); Fairway
Management, Inc., a Missouri corporation ("the "Management
Agent"); Boston Capital Corporate Tax Credit Fund V, A Limited
Partnership, a Massachusetts limited partnership (the "Class A
Limited Partner"); and Xxxxx County National Bank, a Missouri
banking corporation (the "Escrow Agent"). Capitalized terms used
herein and not otherwise defined shall have the meanings set
forth in the Second Amended and Restated Agreement of Limited
Partnership of the Partnership dated effective as of
January 1, 1998 (the "Partnership Agreement"). This Agreement
amends and restates in its entirety the Amended and Restated
Escrow Agreement dated effective as of October 1, 1996 previously
entered into by and among the Partnership, the Class A Limited
Partner and the Escrow Agent.
WHEREAS, subject to the terms and conditions of the
Partnership Agreement, the Class A Limited Partner has agreed to
make a Basic Capital Contribution of $1,257,866 in consideration
of its admission to the Partnership as a limited partner thereof;
WHEREAS, pursuant to the terms of the Second Amended and
Restated Management Incentive Agreement dated effective as of
January 1, 1998 (the "Management Incentive Agreement"), the
Management Agent has the right to earn a Management Incentive Fee
during each of the Measurement Years (as defined in the
Management Incentive Agreement);
WHEREAS, the Class A Limited Partner has an obligation under
Section 6.12(e) of the Partnership Agreement to make a
Conditional Capital Contribution to the Partnership in the amount
necessary to permit the Partnership to fund the Escrow Account
pursuant to the terms and conditions of the Management Incentive
Agreement;
WHEREAS, the amount of Conditional Capital Contribution
which is required to be made to the Partnership by the Class A
Limited Partner is $118,465 and said amount (hereinafter referred
to as the "Escrowed Funds") will be held by the Escrow Agent
pursuant to the terms of this Escrow Agreement in order to
provide the funds necessary to pay the Management Incentive Fee
as it is earned by the Management Agent;
WHEREAS, the Class A Limited Partner has agreed to provide
the Escrowed Funds in order to secure its obligation to fund the
Conditional Capital Contribution;
WHEREAS, the Class A Limited Partner, the Management Agent
and the Partnership agree that the Escrow Agent shall act as the
depository for the receipt, safe-keeping and disbursement of the
Escrowed Funds; and
WHEREAS, the Escrow Agent hereby agrees to act as the
depository for the receipt, safe-keeping and disbursement of the
Escrowed Funds pursuant to the terms and provisions of this
Escrow Agreement.
NOW, THEREFORE for good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, it is
hereby agreed as follows:
(i) The Class A Limited Partner hereby agrees to wire the
Escrowed Funds to the Escrow Agent within three (3)
business days of the Partnership's meeting the payment
obligations for the Second Installment as set forth in
Article V of the Partnership Agreement. The Escrowed
Funds will be wired pursuant to the following
instructions:
Wire to: Xxxxx County National Bank
8th and Broadway
X.X. Xxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx, Vice President
ABA No.: 000000000
For Deposit to:
Account Name: Boston Capital Corporate Tax Credit
Fund V, A Limited Partnership/Harrisonville
Heights, L.P.
Account No.: 0000000
(ii) The Escrow Agent hereby agrees to carry out the
provisions of this Agreement pursuant to the terms set
forth herein. Furthermore, the Escrow Agent hereby
agrees to deposit the Escrowed Funds in an interest
bearing money-market account, said interest to be
payable to the Management Agent during each of the
years of the Non-Accrual Period (as defined in the
Management Incentive Agreement) and to the recipient of
the Escrowed Funds during each Measurement Year (as
defined in the Management Incentive Agreement) at the
times and as more fully specified in the Management
Incentive Agreement. The Partnership hereby agrees to
pay any fees which may be charged by the Escrow Agent
in consideration of the services provided by the Escrow
Agent hereunder. The federal taxpayer identification
number of the Management Agent (#00-0000000) shall be
used to report any interest income payable with respect
to the Escrowed Funds during the term of this
Agreement, all as specified in the Management Incentive
Agreement; provided, however, in the event that in any
year accrued interest is actually paid to the Class A
Limited Partner, then the Escrow Agent shall report
such interest to the Internal Revenue Service as
interest income payable to the Class A Limited Partner
and not the Management Agent.
(iii) The following annual payment conditions (the "Annual
Payment Conditions") have been established by the
Partnership for the release to the Management Agent of
the portion of the Management Incentive Fee due in each
Measurement Year:
(a) The Partnership must have paid during such
Measurement Year the guaranteed portion of the
"Asset Management Fee" (as such term is defined in
the Partnership Agreement) for each Fiscal Year
(as defined in the Management Incentive Agreement)
all or part of which is included in such
Measurement Year, and such fee shall have been
paid for each Fiscal Year all or part of which is
included in such Measurement Year.
(b) Operating revenues of the Partnership for such
Measurement Year shall have been applied to fund
any required annual payments to reserve accounts
specified under the Management Agreement, the
Partnership Agreement or any other "Project
Document" (as such term is defined in the
Partnership Agreement).
(c) There shall have been: (i) successful completion
of all Apartment Complex maintenance inspections
required by any Lender or government agency; and
(ii) completion of all required Apartment Complex
maintenance.
(d) There must be timely filing of all compliance
reports required by any state or federal
government agencies having jurisdiction over the
Apartment Complex; provided, however, that in the
event that any such report is not timely filed as
a result of the failure of such agency to
effectively provide notice of the nature, form,
content or timing of a required report, the
Management Agent shall have a reasonable time
following any notice to the Partnership by such
agency to cure such failure, provided that such a
cure is permitted by such agency without penalty
upon the Apartment Complex or the Partnership.
(e) The average Occupancy Ratio (as defined in the
Management Incentive Agreement) for the Apartment
Complex during the Measurement Year must equal or
exceed 85%, or if such occupancy is less than 85%,
then the average Occupancy Ratio must equal or
exceed the average Occupancy Ratio for similar
apartment developments in the same geographical
area as the Apartment Complex during said
Measurement Year.
For purposes of this paragraph (iii), operating
revenues shall be deemed to include rents,
interest and other amounts actually received by
the Partnership in the ordinary course of
business, and insurance, casualty or other
payments actually received by the Partnership as a
result of casualty, natural disaster, condemnation
or other business interruption. Also, for
purposes of this paragraph (iii), subordinated
loans may be applied to fund items otherwise
required to be funded by operating revenues
pursuant to paragraph (a) through (c) above.
If in any of the Measurement Years the Annual
Payment Conditions for release to the Management
Agent of the portion of the Management Incentive
Fee attributable to such Measurement Year are not
met, then the Escrow Agent shall promptly return
such portion of the Escrowed Funds (plus accrued
interest thereon) to the Class A Limited Partner.
(iv) The Management Agent will provide each of the Class A
Limited Partner, the Partnership and the Escrow Agent
with an annual payment certification during each of the
Measurement Years (the "Annual Payment Certification")
which indicates whether or not all of the Annual
Payment Conditions have been met for the Measurement
Year at issue. The Management Agent agrees that it
will forward each Annual Payment Certification to the
Class A Limited Partner by both United States mail and
by facsimile transmission on the date of issuance of
each Annual Payment Certification. The Partnership,
the Management Agent and the Escrow Agent also agree
that the Class A Limited Partner and the Partnership
shall have ten (10) business days from their receipt of
any Annual Payment Certification to notify the Escrow
Agent in writing (facsimile transmission being
acceptable for this purpose) of any objections they may
have to the release of any portion of the Escrowed
Funds pursuant to the Annual Payment Certification.
(v) Assuming that no written objection to any release has
been delivered to the Escrow Agent by the Class A
Limited Partner and/or the Partnership within ten (10)
business days of their receipt of any Annual Payment
Certification, the Escrow Agent hereby agrees to
promptly disburse Escrowed Funds in an amount equal to
$11,846.50 plus the accrued interest on funds held in
the Escrow Account as of the last day in each
Measurement Year (after such ten (10) business day
waiting period) to either the Management Agent or the
Class A Limited Partner, as indicated in the Annual
Payment Certification, pursuant to instructions to be
provided by the Management Agent in the Annual Payment
Certification during each of the Measurement Years. If
the Escrow Agent receives written objection from the
Class A Limited Partner and/or the Partnership with
respect to any release of Escrowed Funds, then the
Escrow Agent shall continue to hold such Escrowed Funds
in escrow until such time as it receives written
authorization from the Partnership and the Class A
Limited Partner as to the release of such Escrowed
Funds. Any dispute between the Partnership, the
Management Agent and the Class A Limited Partner with
respect to the release of Escrowed Funds which cannot
be resolved by such parties shall be settled by
arbitration in accordance with the arbitration rules of
the American Arbitration Association. The expenses of
arbitration shall be born equally by the Partnership,
the Management Agent and the Class A Limited Partner
and the decision of the arbitrator shall be final and
binding. Any and all Escrowed Funds disbursed to the
Management Agent pursuant to this Agreement shall be
deemed to have been contributed as Conditional Capital
Contribution made by the Class A Limited Partner to the
Partnership, the proceeds of which then being deemed as
applied by the Partnership to fund the Management
Incentive Fee, all pursuant to the Management Incentive
Agreement and Section 6.12(e) of the Partnership
Agreement.
(vi) The Partnership, the Management Agent and the Class A
Limited Partner hereby agree that the Escrow Agent has
no duty to determine any controversy which may arise
between the Partnership, the Management Agent and/or
the Class A Limited Partner. With respect to any
release of Escrowed Funds hereunder, the Escrow Agent
is to rely solely and exclusively without any further
investigation on the written instructions provided to
the Escrow Agent by the Management Agent in the Annual
Payment Certification, except as provided in the second
sentence of paragraph (v) above. The Partnership, the
Management Agent and the Class A Limited Partner agree
that the Escrow Agent will not be held liable for
following any written instructions provided by the
Management Agent in the Annual Payment Certification
(except as provided in the second sentence of paragraph
(v) above) with respect to the release of the Escrowed
Funds which are not objected to in a timely manner by
the Class A Limited Partner or the Partnership.
The Partnership, the Management Agent and the Class A
Limited Partner also hereby agree that the Escrow Agent
is not a party to or bound by any provision of the
Partnership Agreement or any other agreement which may
have formed the basis for this Escrow Agreement or any
other agreement between the Partnership, the Management
Agent and the Class A Limited Partner or any third
party, and the Escrow Agent's duties are limited to the
duties as Escrow Agent hereby expressly undertaken.
(vii) Notwithstanding any other provision of this Agreement
to the contrary, if the Escrow Agent has been notified
in writing by the Class A Limited Partner that a
repurchase event has taken place under the Partnership
Agreement, then the Escrow Agent shall promptly return
the Escrowed Funds (plus all accrued interest thereon)
to the Class A Limited Partner pursuant to instructions
to be provided to the Escrow Agent by the Class A
Limited Partner.
(viii) The parties hereto agree that this Agreement shall
terminate on March 31, 2011. If any portion of the
Escrowed Funds (plus accrued interest thereon) shall
not have been released to the Management Agent or the
Class A Limited Partner by March 31, 2011, then the
Escrow Agent shall promptly return any such Escrowed
Funds (plus accrued interest thereon) to the Class A
Limited Partner.
(ix) Notwithstanding the foregoing provisions of this Escrow
Agreement, the Partnership, the Management Agent and
the Class A Limited Partner shall have the right from
time to time and at any time to remove the Escrow Agent
as the "Escrow Agent" pursuant to this Agreement and to
appoint another Escrow Agent which is mutually
acceptable to the Partnership, the Management Agent and
the Class A Limited Partner. Furthermore, the
Partnership, the Management Agent and the Class A
Limited Partner may from time to time amend the terms
of this Escrow Agreement without the consent of the
Escrow Agent. However, if the Escrow Agent does not
consent to the terms and conditions of such amendment,
then the Escrow Agent may promptly resign and deliver
the Escrowed Funds to the Class A Limited Partner or to
such other successor Escrow Agent as shall have been
appointed by the Partnership, the Management Agent and
the Class A Limited Partner at such time or times.
(x) It is hereby agreed that this Agreement may be executed
in several counterparts, all of which shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement effective as of the 1st day of January, 1998.
PARTNERSHIP: CLASS A LIMITED PARTNER:
HARRISONVILLE HEIGHTS, L.P. BOSTON CAPITAL CORPORATE TAX
CREDIT FUND V, A LIMITED
By: Xxxxxxx X. Xxxxx Partnerships, PARTNERSHIP
L.C., its General Partner
By:/s/Xxxx Xxxx By: BCCTC Associates V Limited
Xxx Xxxx, Vice President Partnership, its general partner
ESCROW AGENT: By: BCCTC Associates V, LLC, its
general partner
XXXXX COUNTY NATIONAL BANK
By: BCCTC Associates V, Inc.
By:/s/Xxxxx X. Xxxxxxxxxx its manager
Xxxxx X. Xxxxxxxxxx, Vice
President
By: /s/Xxxxxx Xxxx Xxx
Attorney-In-Fact for
Xxxx X. Xxxxxxx,
President
MANAGEMENT AGENT:
FAIRWAY MANAGEMENT, INC.
By: /s/Xxxx Xxxx
Xxx Xxxx, Vice President
