FORM OF AMENDED AND RESTATED ESCROW AGREEMENT
CNL STRATEGIC CAPITAL, LLC S-1/A
Exhibit 10.3
FORM OF AMENDED AND RESTATED ESCROW AGREEMENT
This AMENDED AND RESTATED ESCROW GREEMENT (this “Agreement”) is dated this ____ day of September, 2024, amends and restates that certain ESCROW AGREEMENT (the “2018 Escrow Agreement”) dated as of February 14, 2018 as amended by the First Amendment to the Escrow Agreement dated as of April 18, 2019 (the “First Amendment”), the Second Amendment to the Escrow Agreement dated as of July 12, 2019 (the “Second Amendment”), the Third Amendment to the Escrow Agreement dated as of January 31, 2021 (the “Third Amendment”), the Escrow Letter Agreement dated October 19, 2021 (the “Letter Agreement”), and the Fourth Amendment to the Escrow Agreement dated August 24, 2022 ( the “Fourth Amendment,” and collectively, the “Original Escrow Agreement”) by and among CNL Strategic Capital, LLC, a Delaware limited liability company (the “Company”), UMB Bank, N.A. as escrow agent (the “Escrow Agent”) and CNL Securities Corp. (the “Managing Dealer”), (collectively, the “Parties”). All capitalized terms not defined herein shall have the meaning given to such term in the Original Escrow Agreement.
WHEREAS, the Company has previously proposed to offer and sell, on a best-efforts basis through the Managing Dealer, in its capacity as the managing dealer, and selected broker-dealers that are registered with the Financial Industry Regulatory Authority or intermediaries that are exempt from such broker-dealer registration (the Managing Dealer and such intermediaries are hereinafter referred to collectively as the “Distribution Intermediaries”), the Company’s shares of Class A, Class T, Class D, and Class I limited liability company interests (the “Original Shares”), on a best-efforts basis, for at least $2,000,000 and up to $1,100,000,000 of gross offering proceeds (including the shares of its Class A, Class T and Class I limited liability interests to be offered and sold pursuant to the Company’s distribution reinvestment plan), at an initial purchase price of up to $27.32 per Class A share, $26.25 per Class T share, $25.00 per Class D and $25.00 per Class I share (the “Original Offering”) pursuant to an offering prospectus as amended from time to time and filed with the Securities and Exchange Commission as part of a registration statement file no. 333-222986, including amended for additional share classes; and
WHEREAS, the Company, pursuant to the First Amendment, proposed to offer and sell, on a best-efforts basis through the Managing Dealer, in its capacity as the placement agent, and through Distribution Participants, the Company’s shares of Class FA limited liability company membership interests (the “April Class FA Shares”), in a private offering exempt from registration, for at least $2,000,000 and up to $50,000,000 of gross offering proceeds (the “April Class FA Private Offering”) pursuant to an offering memorandum, dated April 18, 2019, as amended from time to time (hereinafter the “April Class FA Memorandum”) at a current offering price per April Class FA share; and
WHEREAS, the Company, pursuant to the Second Amendment, proposed to offer and sell, on a best-efforts basis through the Managing Dealer, in its capacity as the placement agent, and through Distribution Participants, the Company’s shares of Class FA limited liability company membership interests (the “July Class FA Shares” and together with the April Class FA Shares the “Class FA Shares”), in a concurrent private offering exempt from registration up to $50,000,000 of gross offering proceeds with no minimum offering amount (the “July Class FA Private Offering”) pursuant to an offering memorandum, dated July 12, 2019, as amended from time to time (hereinafter the “July Class FA Memorandum”) at a current offering price per July Class FA share, plus applicable selling commissions and placement agent fees; and
WHEREAS, the Company, pursuant to the Third Amendment, proposed to offer and sell, on a best-efforts basis through the Managing Dealer, in its capacity as the placement agent, and through Distribution Participants, the Company’s shares of Class S limited liability company membership interests (the “Class S Shares”), in a concurrent private offering exempt from registration up to $50,000,000 of gross offering proceeds with no minimum offering amount (the “Class S Private Offering”) pursuant to an offering memorandum, dated January 21, 2020, as amended from time to time (hereinafter the “Class S Memorandum”) at a current offering price per Class S share, plus applicable selling commissions and placement agent fees; and
WHEREAS, the Company, pursuant to the Letter Escrow Agreement, previously proposed to offer and sell, on a best-efforts basis through the Managing Dealer, in its capacity as the managing dealer, and Distribution Participants, the Company’s shares of Class A, Class T, Class D, and Class I limited liability company interests on a best efforts basis up to $1,100,000,000 of gross offering proceeds (including the shares of its Class A, Class T, Class D and Class I limited liability company interest to be offered and sold pursuant to the Company’s distribution reinvestment plan) (the “Follow-On Offering”) pursuant to an offering prospectus as amended from time to time and filed with the Securities and Exchange Commission as part of a registration statement file no. 333-253295; and
WHEREAS, pursuant to the Fourth Amendment, the Company amended Section 5(b) of the Original Escrow Agreement to grant certain rights to First Horizon Bank;
WHEREAS, pursuant to the Original Escrow Agreement, the Escrow Agent established an escrow account to receive funds for subscribers to the Original Offering, the April Class FA Private Offering, July Class FA Private Offering, and Class S Private Offering, (collectively the “Prior Offerings”) and to disburse such funds in accordance with the Original Escrow Agreement;
WHEREAS, as of this date of this Agreement, the Prior Offerings have expired and no funds from the Prior Offerings remain on deposit with the Escrow Agent;
WHEREAS, the Company now proposes to offer and sell, on a best-efforts basis through the Distribution Participants, the Company’s shares of Class A, Class T, Class D, and Class I limited liability company interests (the “Shares”) on a best-efforts basis up to $1,100,000,000 of gross offering proceeds (including the shares of its Class A, Class T, Class D and Class I limited liability company interests to be offered and sold pursuant to the Company’s distribution reinvestment plan), at a current offering purchase price per Share (the “Second Follow-On Offering”) pursuant to an offering prospectus as amended from time to time and filed with the Securities and Exchange Commission (the “Prospectus”) as part of a registration statement file no. 333-277103 (the “Registration Statement”).
WHEREAS, the Company desires to deposit funds received from subscribers to the Second Follow-On Offering into the Escrow Account (as defined below) and for the Escrow Agent to continue to act as escrow agent solely upon the terms and conditions herein set forth; and
WHEREAS, the Company directs the Escrow Agent to deposit funds received from subscribers to the Second Follow-On Offering in the Escrow Account and the Escrow Agent is willing to serve as escrow agent for such account upon the terms and conditions herein set forth; and
WHEREAS, the Escrow Agent had engaged DST Systems, Inc. (“DST”) to receive, examine for “good order” and facilitate subscriptions into the Escrow Account as further described herein and to act as record keeper, maintaining on behalf of the Escrow Agent the ownership records for the escrow account (the “Processing Agent”); and
WHEREAS, in so acting, DST shall be acting solely in the capacity as the Processing Agent for the Escrow Agent and not in any capacity on behalf of the Company or the Managing Dealer, nor shall the Company or the Managing Dealer have any interest, other than that provided in this Agreement, in assets in Processing Agent’s possession as the agent of the Escrow Agent; and
WHEREAS, in order to subscribe for Shares, a subscriber must deliver an executed subscription agreement in substantially the form attached as an exhibit to the Registration Statement encompassing the Prospectus, along with the full amount of its subscription, subject to volume discounts or other discounts, as applicable: (i) by check in U.S. dollars or (ii) by wire transfer of immediately available funds in U.S. dollars (collectively, the “Subscription Payment”). The Company or the Managing Dealer shall instruct any Distribution Intermediaries that any such wire transfers shall be in accordance with the instructions provided on Exhibit B hereto.
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NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties covenant and agree as follows:
| 1. | Effective Date. This Agreement shall be effective upon the effective date of the Registration Statement (the “Effective Date”). |
| 2. | Certificate of Company regarding Fourth Amendment. In accordance with the terms of the Fourth Amendment, the Company hereby certifies that all payment obligations owed to First Horizon Bank have been paid in full. |
| 3. | Authorization to Amend and Restate. The Company represents and warrants that it is responsible for the accuracy of the recitals herein but only with respect to any of the Company’s offerings. The Company and Managing Dealer agree that the Escrow Agent makes no representation with respect to any of the Company’s Offerings. The Company certifies that the amendment and restatement of the Original Escrow Agreement as set forth herein is authorized and permitted. |
| 4. | Establishment of Escrow Account. The Company has established a deposit account with the Escrow Agent (the “Escrow Account”). All monies deposited in the Escrow Account, together with any interest earned thereon, are hereinafter referred to as the “Escrowed Funds.” The Escrow Account shall be a non-interest-bearing account and all amounts deposited into the Escrow Account shall be held un-invested. |
| 5. | Deposits into the Escrow Account and Transmission of Subscription Documents. |
| (a) | Deposits in Escrow Account. During the Escrow Period, persons subscribing to purchase Shares will be instructed by the Company and the Distribution Intermediaries to make checks for subscriptions payable to the order of “UMB Bank, N.A., as EA for CNL Strategic Capital, LLC” or any variation thereof permitting a deposit in the Escrow Account if accompanied by a corresponding subscription agreement. Completed subscription agreements and checks in payment for the purchase price shall be remitted to the Processing Agent at the address designated for the receipt of such agreements and funds; and, drafts or wires shall be transmitted directly to the Escrow Account. The Processing Agent will promptly deliver all monies received in good order from subscribers (or from the Managing Dealer or other Distribution Intermediaries transmitting monies and subscriptions from subscribers) for the payment of Shares to the Escrow Agent for deposit in the Escrow Account no later than the end of the business day on which such monies are received by the Processing Agent. Any Subscription Payments received prior to the time, if any, that the Escrowed Funds are deliverable to the Company, and that are made payable to a party other than the Escrow Agent shall be promptly returned to the Participating Broker-Dealer who submitted the Subscription Payment. Completed subscription agreements and checks shall be delivered by the Participating Broker-Dealer to the Processing Agent no later than the close of business on the first business day following their receipt by the Distribution Intermediaries; provided, however, if the Distribution Intermediaries receives subscription agreements and checks at a branch office and final supervisory review is conducted at a different location (the “Final Review Office”), then the branch office shall transmit the subscription agreements and checks to the Final Review Office by the close of business on the first business day following their receipt by the branch office and the Final Review Office shall review the subscription agreements and check to ensure their proper execution and form and, if they are acceptable, deliver the subscription agreements and the funds to the Processing Agent by the close of business on the first business day after their receipt by the Final Review Office. All Escrowed Funds shall be held in the Escrow Account until such funds are disbursed in accordance with Section 7 of this Agreement. Prior to the disbursement of Escrowed Funds, none of the Escrow Agent, the Processing Agent or the Company is entitled to any funds received into the Escrow Account, and no amounts deposited in the Escrow Account shall become the property of the Company, its affiliates, the Escrow Agent or the Processing Agent, nor be subject to the debts or offsets of the Company, its affiliates, the Escrow Agent, the Processing Agent or Distribution Intermediaries. |
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| (b) | Subscription Agreements. The Escrow Agent agrees to cause the Processing Agent to maintain a written account of each subscription, which account shall set forth, among other things, the following information: (i) the subscriber’s name and address, (ii) the number of Shares purchased by such subscriber, and (iii) the subscription amount paid by such subscriber for such Shares. |
| 6. | Collection Procedure for Subscription Payments. |
| (a) | The Escrow Agent is hereby instructed by the Company to forward each Subscription Payment for Federal Reserve Bank clearing and upon collection of the proceeds of each Subscription Payment, to deposit the collected proceeds into the Escrow Account. |
| (b) | The Escrow Agent will timely notify the Company and the Processing Agent in writing via mail, email or facsimile of any Subscription Payment returned to the subscriber, and the Escrow Agent is authorized to debit the Escrow Account in the amount of such returned Subscription Payment and direct the Processing Agent to delete the appropriate account from the records maintained by the Processing Agent. |
| (c) | In the event that the Company or any agent acting on behalf of the Company rejects any subscription for Shares and the funds for such subscription have already been collected by the Escrow Agent, the Escrow Agent shall, upon receipt from the Company or the Processing Agent of written notice of such rejection, promptly cause the issuance of a refund payment by bank check to the rejected or withdrawing subscriber, with interest or income thereon, if applicable. If the Escrow Agent has not yet collected funds for such subscription but has submitted such subscription for clearing, the Escrow Agent shall promptly cause the issuance of a payment by bank check in the amount of such Subscription Payment to the rejected or withdrawing subscriber only after the Escrow Agent has cleared such funds. If the Escrow Agent has not yet submitted the Subscription Payment relating to the subscription of the rejected or withdrawing subscriber, the Escrow Agent shall promptly cause such Subscription Payment to be remitted to the drawer of the Subscription Payment submitted by or on behalf of the subscriber. |
| (d) | In the event that money is deposited into the Escrow Account in error, the Escrow Agent shall notify the Company and the Processing Agent in writing via mail, email or facsimile of any such error and promptly cause the issuance of a refund payment by bank check to the appropriate party only after the Subscription Payment has cleared. |
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| 7. | Distribution of Escrowed Funds. |
| (a) | Upon receipt by the Escrow Agent of a letter signed by the Company in the form of Exhibit C, the Escrow Agent shall thereafter periodically transfer to the Company’s designated account, the Escrowed Funds pursuant to written instructions (which may be standing instructions) from the Company delivered by the Company to the Escrow Agent and the Processing Agent from time to time. |
| (b) | The Company hereby directs the Escrow Agent to provide, and agrees to provide the Processing Agent with all electronic files and information needed by the Processing Agent to maintain ownership records for the Company’s limited liability company interests. |
| 8. | Liability of Escrow Agent and Processing Agent. |
| (a) | In performing any of their respective duties under this Agreement, or upon the claimed failure to perform their respective duties hereunder, the Escrow Agent and the Processing Agent shall not be liable to anyone for any damages, losses, or expenses that either may incur as a result of either so acting, or failing to act; provided, however, the Escrow Agent shall be liable for damages, losses, and expenses, including, without limitation, reasonable costs of investigation and counsel fees and disbursements that may be incurred by the Company arising out of its or the Processing Agent’s negligence or willful misconduct under this Agreement. The Escrow Agent may consult with counsel in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, provided the Escrow Agent has, to the extent permitted by law, given advanced written notice to the Company. Accordingly, neither the Processing Agent nor the Escrow Agent shall incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of its counsel that is given with respect to any questions relating to their duties and responsibilities hereunder, or (ii) any action taken or omitted to be taken in reliance upon any document, including any written notice or instructions provided for in this Agreement, not only as to its due execution and to the validity and effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, if the Processing Agent and/or the Escrow Agent shall believe such document to be genuine. In no event shall the Escrow Agent be liable for incidental, indirect, special, consequential or punitive damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. |
| (b) | The Company hereby agrees to indemnify and hold harmless the Escrow Agent and the Processing Agent (each, an “Indemnitee”) from and against any and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of investigation and counsel fees and disbursements, that may be incurred by either of them resulting from any act or omission of the Company or arising from the Escrow Agent’s performance of its obligations under this Agreement; provided, however, that the Company shall not indemnify either Indemnitee for any such losses, claims, damages, or expenses arising out of such Indemnitee’s negligence or willful misconduct. |
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| (c) | If any dispute ensues between or among the parties hereto that, in the opinion of the Escrow Agent, is sufficient to justify its doing so, the Escrow Agent shall be entitled to tender into the registry or custody of any court of competent jurisdiction, all money or property in its hands under the terms of this Agreement, and to file such legal proceedings as it deems appropriate, and shall thereupon be discharged from all further duties under this Agreement. Any such legal proceedings may be brought in any such court as the Escrow Agent shall determine has jurisdiction. The Company shall indemnify the Escrow Agent or Processing Agent against their reasonable court costs and attorneys’ fees incurred in filing such legal proceedings. |
| 9. | Inability to Deliver. In the event that any Subscription Payments for subscriptions are not cleared through normal banking channels according to the regular Federal Reserve Bank clearing schedule, the Escrow Agent will cause the Processing Agent promptly to notify the Company of such event. |
| 10. | Notice. All notices, requests, demands and other communications or deliveries required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, given by facsimile confirmed by telephone call or deposited for mailing, first class, postage prepaid, registered or certified mail, as follows: |
| If to the subscribers for Shares: | To their respective addresses as specified in their subscription agreements. |
| If to the Company: | CNL Strategic Capital, LLC | |
| CNL Center at City Commons | ||
| 000 Xxxxx Xxxxxx Xxxxxx | ||
| Suite 1400 | ||
| Orlando, Florida 32801 | ||
| Attention: CEO | ||
| Copy to: General Counsel | ||
| If to the Escrow Agent: | UMB Bank, N.A. | |
| Corporate Trust & Escrow Services | ||
| 0000 Xxxxx Xxxx., 0xx Xxxxx | ||
| Mail Stop: 1020409 | ||
| Kansas City, Missouri 64106 | ||
| Attention: Xxxx X. Xxxxxxx | ||
| Facsimile: (000) 000-0000 | ||
| If to the Processing Agent: | SS&C Technologies, Inc. | |
| 000 X. 00xx Xxxxxx | ||
| Kansas City, MO 64105 | ||
| Attention: CNL Strategic Capital, LLC | ||
| Facsimile: 000-000-0000 |
| If to the Managing Dealer: | CNL Securities Corp. | |
| CNL Center at City Commons | ||
| 000 Xxxxx Xxxxxx Xxxxxx | ||
| Suite 1300 | ||
| Orlando, Florida 32801 | ||
| Attention: General Counsel |
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| 11. | Fees to Escrow Agent. In consideration of the services to be provided by the Escrow Agent hereunder, the Company agrees to pay the fees and expenses to the Escrow Agent as outlined in Schedule I hereto which Schedule I permits reasonable fees for the performance of extraordinary services and reimbursement for reasonable extraordinary costs in the event that it should become necessary for the Escrow Agent to perform extraordinary services not contemplated by this Agreement and the Escrow Agent shall, to the extent permitted by law make its best efforts to provide prior written notice before the incurrence of any such expenses. |
| 12. | 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. |
| 13. | Termination of the Escrow Agreement. This Agreement, except for Sections 8, 16 and this Section 13, 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. |
| 14. | Patriot Act Compliance; OFAC Search Duties. The Company shall provide to Escrow Agent upon the execution of this Agreement Forms W-9 and any other 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, and the Managing Dealer shall provide, at the request of the Escrow Agent any documentation reasonably requested 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 subscription check and shall inform the Company if a subscription check fails the OFAC search. |
| 15. | Confidentiality. |
| (a) | The Company, the Managing Dealer each agree to have in place and adhere to a commercially reasonable program of customer privacy in compliance with applicable laws and industry best practices designed to assure the confidentiality and security of confidential investor information, as required by Regulation S-P and other applicable laws. The Escrow Agent agrees it has and shall maintain a commercially reasonable program of customer privacy. The Escrow Agent agrees to treat investor information as confidential and will promptly notify the Company of any breaches of security or loss of confidential customer information in respect of investors in the Company. |
| (b) | The Escrow Agent and Processing Agent shall keep strictly confidential all investor information sent to it unless such material is required to be disclosed pursuant to any applicable law, regulation, judicial or administrative order, decree or subpoena, or request by a regulatory organization having authority pursuant to the law. If the Escrow Agent is compelled—in the absence of a protective order or other remedy—to disclose the investor information, the Escrow Agent may without liability disclose the investor information that is required but must provide notice to the Company and exercise commercially reasonable efforts (at the sole expense of the Company) to preserve the confidential treatment of the investor information. Despite the foregoing, however, nothing in this Agreement prohibits, prevents, or limits the Escrow Agent from disclosing any subscriber information, without notice to or consent of the Company, if the disclosure is made to a supervisory or governmental authority or a self-regulatory organization in the course of any examination, inquiry, or audit of the Company or an investor or any of the Company’s or investor’s representatives or businesses, provided that, to the extent permitted by law, the Escrow Agent has given notice to the Company of such requirements. |
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| 16. | General. |
| (a) | This Agreement shall be interpreted, construed and enforced in all respects in accordance with the internal laws of the State of Delaware applicable to contracts to be made and performed entirely in said state. |
| (b) | The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. |
| (c) | This Agreement sets forth the entire agreement and understanding of the parties with regard to this escrow transaction and supersedes all prior agreements, arrangements and understandings relating to the subject matter hereof. |
| (d) | This Agreement may be amended, modified, superseded or cancelled, and any of the terms or conditions hereof may be waived, only by a written instrument executed by each party hereto or, in the case of a waiver, by the party waiving compliance. Notwithstanding the foregoing, Exhibit B and Exhibit C, which is incorporated in and attached hereto, may be modified without such written instrument. Rather, Exhibit B and Exhibit C may be amended through the mutual agreement of all parties hereto as expressed via written fax or email. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver in any one or more instances by any party of any condition, or of the breach of any term contained in this Agreement, whether by conduct or otherwise, shall be deemed to be, or construed as, a further or continuing waiver of any such condition or breach, or a waiver of any other condition or of the breach of any other terms of this Agreement. |
| (e) | This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall 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. In addition, the transaction described herein may be conducted and related documents may be stored by electronic means where acceptable under applicable law. |
| (f) | The Escrow Agent may rely conclusively on and shall not be required to make any independent inspection or investigation in connection therewith any electronic communication, resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, affidavit, letter, telegram or paper or other document received by it, provided for under this Agreement. |
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| (g) | The Escrow Agent shall not assign (voluntarily, by operation of law or otherwise) this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other parties hereto. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns. |
| (h) | If 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 by a court of competent jurisdiction, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement. |
| (i) | This Agreement shall not be construed against the party preparing it and shall be construed as if all parties had jointly prepared this Agreement and it shall be deemed their joint work product. As a result, any rule of construction that a document is to be construed against the drafting party shall not be applicable. |
| 17. | Representation of the Company. The Company hereby acknowledges that the status of the Processing Agent and the Escrow Agent with respect to the offering of the Shares is that of agent solely of the Company only for the limited purposes herein set forth, and hereby agrees it will not represent or imply that the Escrow Agent or Processing Agent, by serving as the Escrow Agent or Processing Agent hereunder or otherwise, has investigated the desirability or advisability of an investment in the Shares, or has approved, endorsed or passed upon the merits of the Shares, nor shall the Company use the name of the Escrow Agent or Processing Agent in any manner whatsoever in connection with the offer or sale of the Shares, other than by acknowledgement that it has agreed to serve as Escrow Agent or Processing Agent for the limited purposes herein set forth. |
| 18. | Resignation of Escrow Agent or Processing Agent. At any time, the Escrow Agent may resign by notifying the Company. Such resignation shall become effective on the earlier to occur of (i) the acceptance by a successor Escrow Agent or (ii) sixty (60) days following the date upon which notice was mailed. Upon the effective date of such resignation all amounts then held by the Escrow Agent hereunder shall be delivered by it to such successor Escrow Agent as has been designated in writing by the Company. To the extent no successor has been appointed, the Escrow Agent shall be entitled to return such funds to the Company. Until such time as the Escrow Agent has resigned in accordance herewith, the Escrow Agent shall perform its duties hereunder in accordance with the terms of this Agreement. |
| 19. | Force Majeure. No party hereto shall be responsible for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond such party’s reasonable control, including without limitation, acts of God, earthquakes, fires, floods, wars, civil or military disturbances, sabotage, epidemics, riots, interruptions, loss or malfunctions of utilities, communication service, accidents, labor disputes, acts of civil or military authority, or governmental actions. |
(Signature Page follows)
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above written.
| CNL STRATEGIC CAPITAL, LLC | |||
| By: | |||
| Name: | |||
| Title: Authorized Signatory | |||
| UMB BANK, N.A. | |||
| By: | |||
| Name: Xxxx X. Xxxxxxx | |||
| Title: Vice President | |||
| CNL SECURITIES CORP | |||
| By: | |||
| Name: | |||
| Title: Authorized Signatory | |||
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SCHEDULE I
Escrow Agent Fee Schedule
| Acceptance Fee | |||||
| Review escrow agreement, establish account | $1,000 | ||||
| DST Agency Engagement | $250 | ||||
| Annual Fee | |||||
| Annual Escrow Agent | $2,000 | ||||
| Quarterly Fees | |||||
| Outgoing Wire Transfer | $15 each | ||||
| Daily BAI Recon File to DST | $3.75 per Bus Day | ||||
| Daily Wire Ripping to DST | $10 per Bus Day | ||||
| Web Exchange Access | $15 per month | ||||
| Overnight Delivery/Mailings | $16.50 each | ||||
Acceptance fee and first year Annual fee will be payable at the initiation of the escrow. Thereafter, the Quarterly Fees will be billed quarterly in arrears and the Annual fee will be billed annually in advance. Other fees and expenses will be billed as incurred.
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.
*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.
EXHIBIT A
Prospectus dated [__________]
EXHIBIT B
Wiring Instructions
UMB Bank, N.A.
ABA No:
Acct No:
Acct Name: UMB Bank, N.A., as EA for CNL Strategic Capital, LLC
EXHIBIT C
_______________, 202_
| UMB Bank, N.A. | |||
| 0000 Xxxxx Xxxx., 0xx Xxxxx | |||
| Mail Stop: 1020409 | |||
| Kansas City, Missouri 64106 | |||
| Attention: [__________] |
Re: CNL Strategic Capital, LLC (the “Company”)
Dear Ladies and Gentlemen:
The undersigned signatory hereby certifies to you the following, pursuant to Section 7(a) of the Amended and Restated Escrow Agreement among the Company and therein defined Escrow Agent and Managing Dealer dated as of [___________], 2024 (the “Escrow Agreement”):
1. He is the Chief Financial Officer of the Company;
2. Subscribers should be admitted as shareholders at such time as their funds are released from the Escrow Account upon written authorization received by the Escrow Agent from the Company. The Company hereby confirms that all conditions precedent to the release of the Escrowed Funds have been met.
3. The Escrow Agent is hereafter directed to disburse all Escrowed Funds to the Company in accordance with Section 7 of the Escrow Agreement.
Please contact the undersigned should you have any questions at (407) _____________.
Very truly yours,
By:
Chief Financial Officer
