ESCROW AGREEMENT
This
Escrow Agreement (this “Agreement”)
is
made and entered into as of June 15, 2007, by and among the undersigned West
Coast Opportunity Fund, LLC, a Delaware limited liability company (the
“Purchaser”),
Atlas
Technology Group (US), Inc., a Delaware corporation (the “Maker”),
and
Xxxxx Fargo Bank, National Association (the “Escrow
Agent”).
WHEREAS,
pursuant to that certain Securities Purchase Agreement, dated as of the date
hereof, by and between the Maker and Purchaser (the “Securities
Purchase Agreement”),
Purchaser will purchase from the Maker and the Maker will issue and sell to
the
Purchaser a promissory note in the amount of $2,500,000 on the date set forth
above (the “Initial
Note”);
WHEREAS,
pursuant to the Securities Purchase Agreement, Purchaser will purchase from
the
Maker and the Maker will issue and sell to the Purchaser a promissory note
in
the amount of $2,500,000 on July 10, 2007 (the “Secondary
Note”
and
collectively with the Initial Note, the “Notes”);
WHEREAS,
the Maker and Purchaser have decided to hold the purchase price for the Notes
paid by Purchaser in escrow, to be released in accordance with the provisions
set forth in Section
4
below;
WHEREAS,
the Escrow Agent is willing to hold and administer the Escrowed Funds (as
defined below) in escrow in accordance with the terms of this Escrow Agreement
and the Notes; and
WHEREAS,
the Securities Purchase Agreement requires each of the Maker and Purchaser
to
enter into this Agreement with the Escrow Agent.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, the parties hereto, intending to be legally bound,
hereby covenant and agree as follows:
1. Deposits
and Appointment of Escrow Agent.
(a) Upon
execution of the Securities Purchase Agreement, the Initial Promissory Note,
the
Warrant, and this Agreement, Purchaser shall deposit cash funds with Escrow
Agent in the amount of $1,500,000 as partial payment for the securities
purchased in the Securities Purchase Agreement in accordance with the following
wire transfer instructions (the aggregate amount of such deposit being the
“First
Deposit”):
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Bank
Name:
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Xxxxx
Fargo Bank, N.A.
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ABA
Routing No.:
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000000000
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Beneficiary
Account No.:
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_______________
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Beneficiary
Account Name:
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Corporate
Trust Wire Clearing
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For
further credit to:
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22362000,
West Coast Opportunity Fund / Atlas Technology Group (US), Inc.
Escrow
Account
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(b) On
July
10, 2007, upon execution of the Second Note, subject to the satisfaction of
the
Conditions set forth in Sections 6 and 7 of the Securities Purchase Agreement,
as applicable, Purchaser shall deposit additional cash funds with Escrow Agent
in the amount of $2,500,000 in accordance with its obligations under the
Securities Purchase Agreement in accordance with the above wiring instructions
(the aggregate amount of such deposit being the “Second
Deposit,”
and
collectively, with the First Deposit, the “Deposits”).
The
Deposits shall be held in escrow under the terms hereof. The Deposits, together
with any interest that may accrue thereto, are hereinafter referred to as the
“Escrowed
Funds”.
Escrow
Agent is hereby appointed by each of the Maker and Purchaser to act as the
escrow agent pursuant to the terms of this Agreement.)
2. Investment
of the Escrowed Funds.
(a) The
Escrowed Funds shall be invested by Escrow Agent in such investments as the
Maker and Purchaser shall jointly direct in writing in the form of Exhibit
A to
this Agreement. The Escrow Agent shall invest the Escrowed Funds in alternative
investments in accordance with the joint written instructions of the Maker
and
Purchaser as may from time to time be provided to the Escrow Agent. In the
absence of such joint written direction, the Escrow Agent is hereby directed
to
invest the Escrowed Funds in the Xxxxx Fargo Advantage Funds, 100% Treasury
Money Market Fund, Service Class Shares. Any investment earnings and income
on
the Escrowed Funds shall become part of the Escrowed Funds, and shall be
disbursed in accordance with Section 3 of this Agreement.
(b) The
Escrow Agent is hereby authorized and directed to sell or redeem any such
investments as it deems necessary to make any payments or distributions required
under this Agreement. Escrow Agent shall have no responsibility or liability
for
any loss which may result from any investment or sale of investment made
pursuant to this Agreement. The Escrow Agent is hereby authorized, in making
or
disposing of any investment permitted by this Agreement, to deal with itself
(in
its individual capacity) or with any one or more of its affiliates, whether
it
or any such affiliate is acting as agent of the Escrow Agent or for any third
person or dealing as principal for its own account. The Maker and Purchaser
acknowledge that the Escrow Agent is not providing investment supervision,
recommendations, or advice.
3. Escrow
Agent’s Duties.
Escrow
Agent shall have no implied duties under this Agreement, but only the express
duties set forth herein which shall be deemed purely ministerial in nature.
The
Escrow Agent may perform any and all of its duties through its agents,
representatives, attorneys, custodians, and/or nominees.
4. Disbursement
of Escrowed Funds.
Each of
the Maker and Purchaser hereby unequivocally and irrevocably authorizes,
directs, and empowers Escrow Agent to hold the Deposits, or such amount of
the
Deposits remaining in escrow hereunder from time to time after giving effect
to
one or more disbursements authorized hereby in escrow and to disburse the Escrow
Funds in the following manner:
(a) After
entering into contracts for its products with one of the entities set forth
on
Schedule
1
(the
“Entities”)
totaling $1,000,000 in annual, non-contingent future revenues to the Maker,
(i) the Maker shall send written notice of such to the Escrow Agent and
(ii) the Purchaser and shall deliver written instructions to the Escrow
Agent directing the Escrow Agent to disburse $1,500,000 of the Escrowed Funds
(the “Initial
Payment”).
Upon
receipt by Escrow Agent of such written instructions from the Maker
and
the
Purchaser, the Escrow Agent shall disburse the Initial Payment according to
such
instructions.
2
(b) After
entering into contracts for its products with one or more of the Entities,
totaling at least $5,000,000 in non-contingent future revenues to the Maker
during the term(s) of such contract(s), (i) the Maker shall send written
notice of such to the Escrow Agent and (ii) the Purchaser shall deliver
written instructions to the Escrow Agent directing the Escrow Agent to disburse
the remaining Escrowed Funds (the “Final
Payment”).
Upon
receipt by Escrow Agent of such written instructions from the Maker and the
Purchaser, the Escrow Agent shall disburse the Final Payment according to such
instructions.
(c) If,
as of
5:00 p.m. on December 31, 2007 Pacific Standard Time (“PST”), the Escrow Agent
has not received (i) notice from the Maker that the Maker has entered into
contracts with one of the Entities totaling at least $1,000,000 in annual,
non-contingent future revenue and (ii) written instructions from the Purchaser
directing the Escrow Agent to disburse the Initial Payment, then the Escrow
Agent shall disburse from the Escrowed Funds an amount equal to the First
Deposit to the Purchaser in accordance with written instructions from the
Purchaser (the “First
Return”).
(d) If,
as of
5:00 p.m. on December 31, 2007, PST the Escrow Agent has not received (i) notice
from the Maker that the Maker has entered into contracts with one or more of
the
Entities totaling at least $5,000,000 in non-contingent future revenues to
the
Maker during the term(s) of such contract(s) and (ii) written instructions
from
the Purchaser directing the Escrow Agent to disburse the Final Payment, then
the
Escrow Agent shall disburse from the Escrowed Funds an amount equal to the
Second Deposit to the Purchaser in accordance with written instructions from
the
Purchaser (the “Second
Return”).
(e) The
Escrow Agent shall disburse any Escrowed Funds remaining following the First
Return and the Second Return to the Maker in accordance with written
instructions from the Maker.
5. Right
Not Duty Undertaken.
The
permissive right of the Escrow Agent to do things enumerated in this Agreement
shall not be construed as duties.
6. Termination
of Escrow Agent’s Duties.
Upon
disbursement of the full amount of the Escrowed Funds (including any accrued
interest thereon under Section
4
hereof),
all of Escrow Agent’s duties in connection with this Agreement shall immediately
terminate.
7. Escrow
Agent’s Standard of Care.
Escrow
Agent shall not be liable for anything that it may do or refrain from doing
in
connection with this Agreement, except for its own gross negligence or willful
misconduct. Under no circumstances will the Escrow Agent be deemed to be a
fiduciary to Purchaser, Maker or any other person under this Agreement. Escrow
Agent shall not incur any liability or be responsible for the consequences
of
any breach on the part of either the Maker or the Purchaser of any of the
covenants herein contained or of any acts of agents, attorneys-in-fact, or
employees of either the Maker or the Purchaser. The Escrow Agent shall neither
be responsible for, nor chargeable with, knowledge of the terms and conditions
of any other agreement, instrument, or document other than this Agreement,
whether or not an original or a copy of such agreement has been provided to
the
Escrow Agent; and the Escrow Agent shall have no duty to know or inquire as
to
the performance or nonperformance of any provision of any such agreement,
instrument, or document.
3
8. Indemnification
of Escrow Agent.
Each of
the Maker and the Purchaser hereby irrevocably agrees, jointly and severally,
to
indemnify and hold Escrow Agent harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, and disbursements of every kind whatsoever, including
reasonable attorneys’ fees in defending against any of the foregoing, incurred
by or asserted against it relating to or arising out of this Agreement or any
action taken or omitted by it under this Agreement, save only those resulting
from Escrow Agent’s own gross negligence or willful misconduct.
9. Limitation
of Liability.
THE
ESCROW AGENT SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES,
LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN
DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY
RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II)
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER
(INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE
FORM
OF ACTION.
10. Escrow
Agent’s Acts; No Responsibility and No Implied Knowledge.
Escrow
Agent shall be protected in acting upon any written notice, request, waiver,
consent, certificate, receipt, authorization, or other paper or document which
Escrow Agent believes to be genuine and what it purports to be. Concurrent
with
the execution of this Agreement, the Maker and Purchaser shall deliver to the
Escrow Agent authorized signers’ forms in the form of Exhibit B-1 and Exhibit
B-2 to this Agreement. Escrow Agent is not responsible or liable in any manner
whatsoever for the sufficiency, correctness, genuineness, or validity of the
subject matter of this Agreement or any instructions or directions delivered
pursuant hereto. Escrow Agent shall be obligated only for the performance of
such duties as are specifically set forth in this Agreement. Escrow Agent shall
not be liable for any action taken or omitted by it in good faith and believed
by it to be authorized hereby, except to the extent such action taken or omitted
constitutes gross negligence or willful misconduct on the part of Escrow Agent.
The Escrow Agent shall be entitled to rely on and shall not be liable for any
action taken or omitted to be taken by the Escrow Agent in accordance with
the
advice of counsel or other professionals retained or consulted by the Escrow
Agent. No provision of this Agreement shall require the Escrow Agent to risk
or
advance its own funds or otherwise incur any financial liability or potential
financial liability in the performance of its duties or the exercise of its
rights under this Agreement.
11. Submission
of Disputes to Court.
In the
event that Escrow Agent is in doubt as to what action is to be taken hereunder,
Escrow Agent may, at its option, refuse to comply with any claims or demands
on
it or refuse to take any other action hereunder so long as such doubt exists.
In
any such event Escrow Agent shall not be or become liable in any way or to
any
person for its failure or refusal to act, and Escrow Agent shall be entitled
to
continue to so refrain from acting until (i) the rights of all parties have
been
fully and finally adjudicated by a court of competent jurisdiction, or (ii)
all
differences shall have been adjudged and all doubt resolved by agreement among
all of the interested persons, and Escrow Agent shall have been notified thereof
in a writing signed by all such persons, or (iii) files an interpleader action
in any court of competent jurisdiction, and upon the filing thereof, the Escrow
Agent shall be relieved of all liability as to the Escrowed Funds and shall
be
entitled to recover attorneys’ fees, expenses and other costs incurred in
commencing and maintaining any such interpleader action. In addition to the
foregoing remedies, Escrow Agent is hereby authorized in the event of any doubt
as to the course of action it should take under this Agreement, to petition
a
State District Court of King County, Washington or a United States Federal
District Court in the Western District of Washington, for instructions. The
parties agree to the jurisdiction of any of said courts over their persons
as
well as all or any portion of the Escrowed Funds. Each of the Maker and
Purchaser waive personal service of process, and agree that service of process
by certified or registered mail, return receipt requested, to the address set
forth beside such party’s signature to this Agreement shall constitute adequate
service. The Maker and Purchaser hereby agree to indemnify and hold Escrow
Agent
harmless from any liability or losses occasioned thereby and to pay any and
all
of Escrow Agent’s costs, expenses, and attorneys’ fees incurred in any such
action and agree that upon the filing of such petition and deposit of the
Escrowed Funds into the registry of the court in which such petition or
interpleader action is filed that Escrow Agent will be relieved of any further
liability hereunder. In case the Escrowed Funds held by Escrow Agent hereunder
shall be the subject of any order of any court or the delivery thereof shall
be
stayed or enjoined by any judgment or order of any court affecting the Deposits,
Escrow Agent hereby is expressly authorized in its sole discretion to obey
and
comply with all judgments and orders so entered or issued and in case Escrow
Agent obeys and complies with any such judgment or order, Escrow Agent shall
give written notice of such compliance to each of the Maker and Purchaser,
and
Escrow Agent shall not be liable to any of the other parties hereto, their
successors or assigns or to any other person, firm, or corporation by reason
of
such compliance.
4
12. Resignation
of Escrow Agent.
Escrow
Agent may resign and be discharged from all further duties and liabilities
hereunder by giving to each of the Maker and Purchaser at least ten (10) days
prior notice in writing and stating in such notice the effective date of the
resignation. If Escrow Agent resigns as aforesaid, a new escrow agent shall,
prior to the effective date of such resignation, be appointed by the Maker
and
Purchaser. If no such person shall have been designated by the effective date
of
such resignation, all obligations of Escrow Agent, except as provided in the
immediately following sentence, shall nevertheless cease and terminate. Escrow
Agent’s sole responsibility thereafter shall be to keep, in accordance with the
standard of care set forth in Section
4
hereof,
the Escrowed Funds held by it and to deliver the same to a person designated
by
all other parties executing this Agreement or in accordance with the final
order
or judgment of a court of competent jurisdiction. On any new appointment, the
new Escrow Agent shall be vested with the same powers, rights, duties, and
responsibilities as if it had been originally named herein as escrow agent
without any further assurance, conveyance, act, or deed. If the Maker and
Purchaser have failed to appoint a successor escrow agent prior to the effective
date of such resignation, the Escrow Agent may petition any court of competent
jurisdiction for the appointment of a successor escrow agent or for other
appropriate relief, and any such resulting appointment shall be binding upon
the
Maker and Purchaser.
13. Fees
and Expenses of Escrow Agent.
The
Maker hereby agrees to pay the Escrow Agent compensation for its services as
stated in the fee schedule attached hereto as Exhibit C. The Maker further
agrees that the Escrow Agent shall be reimbursed upon request for expenses,
disbursements and advances, including reasonable attorney’s fees, incurred or
made by Escrow Agent in connection with carrying out its duties hereunder;
provided,
however,
that
between the Maker and Purchaser, any expenses, disbursements, and fees of Escrow
Agent that shall be incurred by Escrow Agent as the result of any claim,
dispute, or any other controversy arising hereunder shall be the obligation
of
the party responsible for such expense, disbursement or fee. The fee agreed
upon
for the services rendered hereunder is intended as full compensation for the
Escrow Agent's services as contemplated by this Agreement; provided, however,
that in the event that the conditions for the disbursement of funds under this
Agreement are not fulfilled, or the Escrow Agent renders any service not
contemplated in this Agreement, or there is any assignment of interest in the
subject matter of this Agreement, or any material modification hereof, or if
any
material controversy arises hereunder, or the Escrow Agent is made a party
to
any litigation pertaining to this Agreement or the subject matter hereof, then
the Escrow Agent shall be compensated for such extraordinary services and
reimbursed for all costs and expenses, including reasonable attorneys’ fees and
expenses, occasioned by any such delay, controversy, litigation or event. If
any
amount due to the Escrow Agent hereunder is not paid within thirty (30) days
of
the date due, the Escrow Agent in its sole discretion may charge interest on
such amount up to the highest rate permitted by applicable law. The Escrow
Agent
shall have, and is hereby granted, a prior lien upon the Escrowed Funds with
respect to its unpaid fees, non-reimbursed expenses and unsatisfied
indemnification rights, superior to the interests of any other persons or
entities and is hereby granted the right to set off and deduct any unpaid fees,
non-reimbursed expenses and unsatisfied indemnification rights from the Escrowed
Funds.
5
14. Income
Tax Allocation and Reporting.
(a) The
Maker
and Purchaser agree that, for tax reporting purposes, all interest and other
income from investment of the Escrow Property shall, as of the end of each
calendar year and to the extent required by the Internal Revenue Service, be
reported as having been earned by the Maker, whether or not such income was
disbursed during such calendar year.
(b) Prior
to
closing, the Maker and Purchaser shall provide the Escrow Agent with certified
tax identification numbers by furnishing appropriate forms W-9 or W-8 and such
other forms and documents that the Escrow Agent may request. The Maker and
Purchaser understand that if such tax reporting documentation is not provided
and certified to the Escrow Agent, the Escrow Agent may be required by the
Internal Revenue Code of 1986, as amended, and the Regulations promulgated
thereunder, to withhold a portion of any interest or other income earned on
the
investment of the Escrowed Funds.
(c) To
the
extent that the Escrow Agent becomes liable for the payment of any taxes in
respect of income derived from the investment of the Escrowed Funds, the Escrow
Agent shall satisfy such liability to the extent possible from the Escrowed
Funds. The Maker and Purchaser shall indemnify, defend and hold the Escrow
Agent
harmless from and against any tax, late payment, interest, penalty or other
cost
or expense that may be assessed against the Escrow Agent on or with respect
to
the Escrowed Funds and the investment thereof unless such tax, late payment,
interest, penalty or other expense was directly caused by the gross negligence
or willful misconduct of the Escrow Agent. The indemnification provided by
this
Section 14(c) is in addition to the indemnification provided in Section 8 and
shall survive the resignation or removal of the Escrow Agent and the termination
of this Agreement.
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15. Miscellaneous
Provisions.
(a) Failure
by any party to insist upon or enforce any of its rights under this Agreement
shall not constitute a waiver thereof by such party or a waiver of any
subsequent breach of the same or a different provision hereof.
(b) Neither
this Agreement nor any right created hereby shall be assignable by any of the
parties hereto without the written consent of the other of such parties
hereto.
(c) Subject
to the provisions of Section
15(b),
this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
(d) This
Agreement may not be amended or changed in any respect except by a written
instrument signed by all parties hereto. Escrow Agent shall not be bound by
any
modification, amendment, termination, cancellation, rescission, or supersession
of this Agreement unless the same shall be in writing and signed by all of
the
other parties hereto and, if its duties as Escrow Agent hereunder are affected
thereby, unless it shall have given prior written consent thereto.
(e) All
certifications, notices, requests, demands, and other communications hereunder
shall be in writing and shall be deemed duly given if delivered personally,
if
sent by delivery service, if given by facsimile or other similar form of
communication (with receipt confirmed) or if given by depositing the same in
the
United States mail first class, postage prepaid, certified or registered. The
same shall be deemed to have been duly given when received by the person to
whom
the notice was directed; provided,
however,
that
notice to each of the Maker or Purchaser, but not Escrow Agent, shall be
conclusively deemed given at 10:00 a.m. PST on the third business day after
the
date of deposit in the United States mail when sent by certified or registered
mail, postage prepaid, return receipt requested. Notice shall be given to the
parties at the addresses set forth on the signature pages hereto (or at such
other address as shall be given in writing by any party to the other parties).
Notices to Escrow Agent will be effective only upon actual receipt
thereof.
(f) This
Agreement and the terms and provisions hereof shall be construed and enforced
in
accordance with the laws of the State of Delaware without regard to the
conflicts of laws provisions thereof. This Agreement is performable in King
County, Washington, and venue in any litigation pursuant hereto shall be in
King
County, Washington.
(g) Each
of
the parties hereto acknowledges and agrees that the remedy at law in the event
of a breach of any provision of this Agreement by each such party would be
inadequate, and each party hereto agrees that the other, non-breaching party,
in
addition to all other remedies such other party may have, shall have the right
to injunctive relief.
(h) This
Agreement supersedes any and all other agreements, either oral or written,
between the parties hereto with respect to the subject matter hereof and
contains all of the covenants and agreements between the parties with respect
thereto.
(i) If
any
party hereto is required to institute legal proceedings in order to enforce
its
rights hereunder, then the party prevailing in any such legal proceedings
shall
be reimbursed by the non-prevailing party for its legal fees and court costs
in
connection therewith.
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(j) This
Agreement may be executed in multiple counterparts, each of which will be deemed
an original, but all of which together shall constitute one and the same
agreement. Facsimile transmission of any signed original document and/or
retransmission of any signed facsimile transmission will be deemed the same
as
delivery of an original. At the request of any party, the parties will confirm
facsimile transmission by signing a duplicate original document
16. Merger
or Consolidation.
Any
corporation or association into which the Escrow Agent may be converted or
merged, or with which it may be consolidated, or to which it may sell or
transfer all or substantially all of its corporate trust business and assets
as
a whole or substantially as a whole, or any corporation or association resulting
from any such conversion, sale, merger, consolidation or transfer to which
the
Escrow Agent is a party, shall be and become the successor escrow agent under
this Agreement and shall have and succeed to the rights, powers, duties,
immunities and privileges as its predecessor, without the execution or filing
of
any instrument or paper or the performance of any further act.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first written above.
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MAKER:
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ATLAS
TECHNOLOGY GROUP (US), INC.
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| a Delaware corporation | ||
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| By: | ||
| Name: |
Xxxxx X. Xxxxxxxx |
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| Title: |
President
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Address
for Notice:
Atlas
Technology Group (US), Inc.
0000
000xx Xxxxxx XX
Xxxxxxx,
Xxxxxxxxxx 00000
Attn:
Xxxxx X. Xxxxxxxx
Facsimile:
(000) 000-0000
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With
a Copy (which shall not constitute notice) sent to:
Xxxxxx
& Xxxx LLP
0000
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attn:
I. Xxxxx Xxxxxxxx, Esq.
Facsimile:
(000) 000-0000
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ESCROW
AGENT:
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XXXXX
FARGO BANK, NATIONAL ASSOCIATION
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| By: | ||
| Name: |
Xxxxx Xxxxxxxx |
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| Title: |
Vice
President
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|
|
Address
for Notice:
Xxxxx
Fargo Bank, N.A.
Corporate
Trust Services
0000
XX Xxxxx Xxxxxx, 00xx
Floor
MAC
P6101-114
Xxxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxxxxx
Facsimile:
(000) 000-0000
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[Signature
Page to Escrow Agreement]
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PURCHASER:
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WEST
COAST OPPORTUNITY FUND, LLC
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| a Delaware limited liability company | ||
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| By: | ||
| Name: |
|
|
| Title: |
|
|
|
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|
Address
for Notice:
0000
Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attn:
Atticus Xxxx, CFA
Facsimile:
(000) 000-0000
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||
|
With
a Copy (which shall not constitute notice) sent to:
XxXxxxxxx
Will & Xxxxx LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxxx X. Older, Esq.
Xxxx
X. Xxxxxxxx, Esq.
Facsimile:
(000)
000-0000
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[Signature
Page to Escrow Agreement]
EXHIBIT
A
Agency
and Custody Account Direction
For
Cash Balances
Direction
to use Xxxxx Fargo Advantage Funds for Cash Balances for the escrow account
or
accounts (the “Account”) established under the Escrow Agreement to which this
Exhibit A is attached.
You
are
hereby directed to invest, as indicated below or as I shall direct further
from
time to time, all cash in the Account in the following money market portfolio
of
Xxxxx Fargo Advantage Funds (the “Fund”) or another permitted investment of my
choice (Check
One):
___
Xxxxx
Fargo Advantage Funds, 100% Treasury Money Market Fund
___
Xxxxx
Fargo Advantage Funds, Government Money Market Fund
___
Xxxxx
Fargo Advantage Funds, Cash Investment Money Market Fund
___
Xxxxx
Fargo Advantage Funds, Prime Investment Money Market Fund
___
Xxxxx
Fargo Advantage Funds, Treasury Plus Money Market Fund
I
acknowledge that I have received, at my request, and reviewed the Fund’s
prospectus and have determined that the Fund is an appropriate investment for
the Account. Each Fund’s prospectus can be downloaded from the Xxxxx Fargo
website at
xxxx://xxx.xxxxxxxxxxxxxxxxxxxxxxxx.xxx/xxxx/xxxxxxx/xxxx_xxxx/xxxxxxx.xxx
I
understand from reading the Fund's prospectus that Xxxxx Fargo Funds Management,
LLC ("Xxxxx Fargo Funds Management"), a wholly-owned subsidiary of Xxxxx Fargo
& Company, provides investment advisory and other administrative services
for the Xxxxx
Fargo Advantage Funds.
Other affiliates of Xxxxx Fargo & Company provide sub-advisory and other
services for the Funds. Boston Financial Data Services serves as transfer
agent for the Funds. The Funds are distributed by Xxxxx Fargo Funds
Distributor, LLC, Member NASD/SIPC, an affiliate of Xxxxx Fargo &
Company. I also understand that Xxxxx Fargo & Company will be paid,
and its bank affiliates may be paid, fees for services to the Funds and that
those fees may include Processing Organization fees as described in the Fund's
prospectus.
I
understand that you will not exclude amounts invested in the Fund from Account
assets subject to fees under the Account agreement between us.
I
understand that investments in the Fund are not obligations of, or endorsed
or
guaranteed by, Xxxxx Fargo Bank or its affiliates and are not insured by the
Federal Deposit Insurance Corporation.
I
acknowledge that I have full power to direct investments of the Account.
I
understand that I may change this direction at any time and that it shall
continue in effect until revoked or modified by me by written notice to you.
I
understand that if I choose to communicate this investment direction solely
via
facsimile, then the investment direction will be understood to be enforceable
and binding.
|
Authorized Representative
West Coast Opportunity Fund, LLC
|
Authorized Representative
Atlas
Technology Group (US), Inc.
|
||
|
Date |
Date |
EXHIBIT
B-1
CERTIFICATE
AS TO AUTHORIZED SIGNATURES
The
specimen signatures shown below are the specimen signatures of the individuals
who have been designated as authorized representatives of West
Coast Opportunity Fund, LLC
and are
authorized to initiate and approve transactions of all types for the escrow
account or accounts established under the Escrow Agreement to which this Exhibit
B-1 is attached, on behalf of West
Coast Opportunity Fund, LLC.
|
Name
/ Title
|
Specimen
Signature
|
|
|
Name
|
Signature
|
|
|
Title
|
||
|
Name
|
Signature
|
|
|
Title
|
||
|
Name
|
Signature
|
|
|
Title
|
||
|
Name
|
Signature
|
|
|
Title
|
EXHIBIT
B-2
CERTIFICATE
AS TO AUTHORIZED SIGNATURES
The
specimen signatures shown below are the specimen signatures of the individuals
who have been designated as authorized representatives of Atlas
Technology Group (US),
Inc.
and are
authorized to initiate and approve transactions of all types for the escrow
account or accounts established under the Escrow Agreement to which this Exhibit
B-2 is attached, on behalf of Atlas
Technology Group (US), Inc.
|
Name
/ Title
|
Specimen
Signature
|
|
|
Name
|
Signature
|
|
|
Title
|
||
|
Name
|
Signature
|
|
|
Title
|
||
|
Name
|
Signature
|
|
|
Title
|
||
|
Name
|
Signature
|
|
|
Title
|
EXHIBIT
C
FEES
OF
ESCROW AGENT
|
ADMINISTRATION
FEE:
|
$1,500.00
|
Administration
Fee compensates Xxxxx Fargo for normal administrative duties including routine
account management, investment transactions, cash transaction processing
(including wires and check processing), disbursement of the funds in accordance
with the agreement, and mailing of account statements to all applicable parties.
The
Administration Fee is payable in advance at the time of Escrow Agreement
execution. The Administration Fee will not be prorated in case of early
termination.
|
OUT-OF-POCKET
EXPENSES:
|
AT
COST
|
Xxxxx
Fargo reserves the right to xxxx at cost for out-of-pocket expenses such as,
but
not limited to, express mail, wire charges and travel expenses, if required,
incurred in connection with a closing.
ASSUMPTIONS:
| · |
Number
of funds/accounts: One (1)
|
| · |
Number
of Deposits: Two (2)
|
| · |
Number
of Withdrawals: Two (2 )
|
| · |
Term
of the Escrow Account: Less than One
Year
|
|
NOTE:
|
The
transaction underlying this proposal, and all related legal documentation,
is subject to review and acceptance by Xxxxx Fargo Bank in accordance
with
industry standards. Should the actual transaction materially differ
from
the assumptions used herein, Xxxxx Fargo Bank reserves the right
to
affirm, modify or rescind this proposal. Acceptance of the appointment
as
Escrow Agent is subject to the receipt of requested Due Diligence
information on each of the signing parties to the agreement as required
by
the USA Patriot Act. All funds will be received from or distributed
to a
domestic or an approved foreign entity. Fees are subject to periodic
review and adjustment
|
