ESCROW AGREEMENT
Exhibit 8.1
This
ESCROW AGREEMENT (this
“Agreement”)
dated as of this 4th day of October,
2019 by and among MANUFACTURED
HOUSING PROPERTIES INC., a Nevada corporation
(the “Company”),
having an address at 000 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000;
DIGITAL OFFERING LLC, having
an address at 0000 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxx, XX 00000 (the
“Underwriter”),
and WILMINGTON TRUST, NATIONAL
ASSOCIATION (the “Escrow Agent”), with its principal
corporate trust office at 000 Xxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, XX
00000. The Company and the Underwriter are collectively referred to
as “Parties” and
individually, a “Party.”
W I T N E S S E T H:
WHEREAS, the Company proposes to sell a
maximum of 1,000,000 shares of its Series B Cumulative Redeemable
Preferred Stock, par value $0.01 per share, at an offering price of
$10 per share (the “Shares”), for an offering amount
of $10,000,000 in a best efforts public offering (the
“Offering”) to
investors (each, an “Investor”); and
WHEREAS, subject to all conditions to
closing being satisfied or waived, the closing(s) of the Offering
shall take place from time to time until the earlier of (a) the
date at which the maximum amount of offered Shares has been sold,
(b) the date which is 180 days after the Offering has been
qualified by the U.S. Securities and Exchange Commission, subject
to an extension of up to an additional 180 days at the discretion
of the Company and the Underwriter, or (b) the date on which the
Offering is earlier terminated by the Company in its sole
discretion (the “Termination
Date”); and
WHEREAS, there is no minimum offering
amount, provided that the minimum initial investment per Investor
is at least $5,000, and all funds shall only be returned to the
potential Investors in the event the Offering is not consummated or
if the Company, in its sole discretion, rejects all or a part of a
particular potential Investor’s subscription;
and
WHEREAS, in connection with the
Offering, the Company entered into an Engagement Agreement with the
Underwriter and will enter into a Subscription Agreement with each
Investor, and certain other agreements, documents, instruments and
certificates necessary to carry out the purposes thereof
(collectively, the “Transaction Documents”);
and
WHEREAS, the Company and the Underwriter
desire to establish an escrow account with the Escrow Agent into
which the Company and the Underwriter shall instruct the Investors
to deposit checks and other instruments for the payment of money
made payable to the order of “WILMINGTON TRUST, N.A. as
Escrow Agent for Manufactured Housing Escrow,” and the Escrow
Agent is willing to accept said checks and other instruments for
the payment of money in accordance with the terms hereinafter set
forth; and
WHEREAS, the Company and the Underwriter
represent and warrant to the Escrow Agent that they have not stated
to any individual or entity that the Escrow Agent’s duties
will include anything other than those duties stated in this
Agreement; and
WHEREAS,
THE COMPANY AND THE UNDERWRITER UNDERSTAND THAT THE ESCROW AGENT,
BY ACCEPTING THE APPOINMTMENT AND DESIGNATION AS ESCROW AGENT
HEREUNDER, IN NO WAY ENDORSES THE MERITS OF THE OFFERING OF THE
SECURITIES. THE COMPANY AND THE UNDERWRITER AGREE TO NOTIFY ANY
PERSON ACTING ON ITS BEHALF THAT THE ESCROW AGENT’S POSITION
AS ESCROW AGENT DOES NOT CONSTITUTE SUCH AN ENDORSEMENT, AND TO
PROHIBIT SAID PERSONS FROM THE USE OF THE ESCROW AGENT’S NAME
AS AN ENDORSER OF THE
OFFERING. The Company and the
Underwriter further agree to include with any sales literature, in
which the Escrow Agent’s name appears and which is used in
connection with the Offering, a statement to the effect that the
Escrow Agent in no way endorses the merits of the Offering;
and
WHEREAS, the Company and the Underwriter
represent and warrant to the Escrow Agent that a copy of each
document that has been delivered to the Investor and third parties
that include Escrow Agent’s name and duties, has been
attached hereto as Schedule I.
NOW, THEREFORE, IT IS AGREED as
follows:
ARTICLE
1
ESCROW
DEPOSIT
Section
1.1
Delivery of Escrow
Funds.
(a) The Underwriter and
the Company shall instruct the Investor to deliver to Escrow Agent
checks made payable to the order of “WILMINGTON TRUST, N.A.
as Escrow Agent for Manufactured Housing Escrow”, or wire
transfer to:
Wilmington Trust
Company ABA #: 000000000
A/C #:
137798-000
A/C
Name: Manufactured Housing Escrow Attn: Xxxxx Xxxxxxx
International
Wires:
M&T
Buffalo, New York
ABA: 000000000 SWIFT: XXXXXX00
Beneficiary Bank:
Wilmington Trust Beneficiary ABA: 000000000
A/C #:
137798-000
A/C
Name: Manufactured Housing Escrow
All
such checks and wire transfers remitted to the Escrow Agent shall
be accompanied by information identifying each Investor,
subscription, the Investor’s social security or
taxpayer
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identification
number and address. In the event the Investor’s address
and/or social security number or taxpayer identification number are
not provided to Escrow Agent by the Investor, then the Underwriter
and/or the Company agree to promptly upon request provide the
Escrow Agent with such information in writing. The checks or wire
transfers shall be deposited into a non interest-bearing account at
WILMINGTON TRUST, NATIONAL ASSOCIATION entitled “WILMINGTON
TRUST, N.A. as Escrow Agent for Manufactured Housing Escrow”
(the “Escrow
Account”).
(b) The collected funds
deposited into the Escrow Account are referred to as the
“Escrow
Funds.”
(c) The Escrow Agent
shall have no duty or responsibility to enforce the collection or
demand payment of any funds deposited into the Escrow Account. If,
for any reason, any check deposited into the Escrow Account shall
be returned unpaid to the Escrow Agent, the sole duty of the Escrow
Agent shall be to return the check to the Investor and advise the
Company and the Underwriter promptly thereof.
(d) All funds received
by the Escrow Agent shall be held only in non-interest bearing bank
accounts at WILMINGTON TRUST, NATIONAL ASSOCIATION.
Section 1.2 Release of Escrow
Funds. The Escrow Funds shall be paid by the Escrow Agent in
accordance with the following:
(a) In the event that
the Company advises the Escrow Agent in writing that the Offering
has been terminated (the “Termination Notice”), the Escrow
Agent shall promptly return the funds paid by each Investor to such
Investor without interest or offset.
(b) At each closing of
the Offering, the Company and the Underwriter shall provide the
Escrow Agent with written instructions regarding the disbursement
of the Escrow Funds in accordance with Exhibit
A attached
hereto and made a part hereof and signed by the Company and the
Underwriter (the “Disbursement
Instructions”).
(c) If by 5:00 P.M.
Eastern time on the Termination Date, the Escrow Agent has not
received written Disbursement Instructions from the Company and the
Underwriter regarding the disbursement of the Escrow Funds in the
Escrow Account, if any, then the Escrow Agent shall promptly return
such Escrow Funds, if any, to the Investors without interest or
offset. The Escrow Funds returned to the Investors shall be free
and clear of any and all claims of the Escrow Agent.
(d) The Escrow Agent
shall not be required to pay any uncollected funds or any funds
that are not available for withdrawal.
(e) The Underwriter or
the Company will provide the Escrow Agent with the payment
instructions for each Investor, to whom the funds should be
returned in accordance with this section.
(f) In the event that
the Escrow Agent makes any payment to any other party pursuant to
this Agreement and for any reason such payment (or any portion
thereof) is required
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to be
returned to the Escrow Account or another party or is subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a receiver, trustee or other party
under any bankruptcy or insolvency law, other federal or state law,
common law or equitable doctrine, then the recipient party shall
repay to the Escrow Agent upon written request the amount so paid
to it.
(g) The Escrow Agent
shall, in its sole discretion, comply with judgments or orders
issued or process entered by any court with respect to the Escrow
Funds, including without limitation any attachment, levy or
garnishment, without any obligation to determine such court's
jurisdiction in the matter and in accordance with its normal
business practices. If the Escrow Agent complies with any such
judgment, order or process, then it shall not be liable to any of
the Parties or any other person by reason of such compliance,
regardless of the final disposition of any such judgment, order or
process.
(h) Each Party
understands and agrees that the Escrow Agent shall have no
obligation or duty to act upon any Disbursement Instructions
delivered to the Escrow Agent for the disbursement of Escrow Funds
under this Agreement if such Disbursement Instructions are
not:
(i)
in
writing,
(ii) signed
by representatives of both Parties listed in Schedule II to this
Agreement, in each case, each such individual an
“Authorized
Representative” of such Party), and
(iii) delivered
to, and able to be authenticated by, the Escrow Agent in accordance
with Section 3.3 below.
(i) Upon request by any
Party, the Escrow Agent will set up each Party with on-line access
to the account(s) established pursuant to this Agreement, which
each Party can use to view and verify transaction on such
account(s).
(j) A Party may specify
in a written notice for the disbursement of funds whether such
Escrow Funds shall be disbursed by way of wire transfer or check.
If the written notice for the disbursement of funds does not so
specify the disbursement means, Escrow Agent may disburse the
Escrow Funds by wire transfer.
Section
1.3
Disbursement
Instructions and Other Instructions.
(a) With respect to any
Disbursement Instructions or any other notice, direction or other
instruction required to be delivered by a Party to the Escrow Agent
under this Agreement, the Escrow Agent is authorized to follow and
rely upon any and all such instructions given to it from time to
time if the Escrow Agent believes, in good faith, that such
instruction is genuine and to have been signed by an Authorized
Representative of such Party. The Escrow Agent shall have no duty
or obligation to verify that the person who sent such instruction
is, in fact, a person duly authorized to give instructions on
behalf of a Party, other than to verify that the signature of the
Authorized Representative on any such instruction appears to be the
signature of such person. Each Party acknowledges and agrees that
it is fully informed of the protections and risks
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associated with the
various methods of transmitting instructions to the Escrow Agent,
and that there may be more secure methods of transmitting
instructions other than the method selected by such Party. The
Escrow Agent shall have no responsibility or liability for any loss
which may result from (i) any action taken or not taken by the
Escrow Agent in good faith reliance on any such signatures or
instructions, (ii) as a result of a Party’s reliance upon or
use of any particular method of delivering instructions to the
Escrow Agent, including the risk of interception of such
instruction and misuse by third parties, or (iii) any officer or
Authorized Representative of a Party named in Schedule II delivered
hereunder prior to actual receipt by the Escrow Agent of a more
current incumbency certificate or an updated Schedule II and a
reasonable time for the Escrow Agent to act upon such updated or
more current certificate or Schedule.
(b) Each Party may, at
any time, update Schedule II by signing and submitting to the
Escrow Agent an update of such Schedule. Any updated Schedule shall
not be effective unless the Escrow Agent countersigns a copy
thereof. The Escrow Agent shall be entitled to a reasonable time to
act to implement any changes on an updated Schedule
II.
Section
1.4 Delivery and
Authentication of Disbursement Instructions.
(a) Disbursement
Instructions must be delivered to Escrow Agent by one of the
delivery methods set forth in Section 3.3.
(b) Each Party and the
Escrow Agent hereby agree that the following security procedures
will be used to verify the authenticity of Disbursement
Instructions delivered by any Party to the Escrow Agent under this
Agreement.
(i)
The Disbursement
Instructions must include the name and signature of the person
delivering the disbursement request to the Escrow Agent. The Escrow
Agent will check that the name and signature of the person
identified on the Disbursement Instructions appears to be the same
as the name and signature of an Authorized Representative of such
Party.
(ii)
The Escrow Agent
will make a telephone call to an Authorized Representative of the
Party purporting to deliver the Disbursement Instructions (which
Authorized Representative may be the same as the Authorized
Representative who delivered the Disbursement Instructions) at any
telephone number for such Authorized Representative as set forth on
Schedule II to obtain oral confirmation of delivery of the
Disbursement Instructions. The Escrow Agent is hereby authorized to
call only one of the Parties signing the Disbursement Instructions,
at the number listed in Schedule II to this Agreement.
(iii)
If the Disbursement
Instructions are sent by email to the Escrow Agent, the Escrow
Agent also shall review such email address to verify that it
appears to have been sent from an email address for an Authorized
Representative of one of the Parties as set forth on Schedule II,
as applicable, or from an email address for a person authorized
under Schedule II to email Disbursement Instructions to the Escrow
Agent on behalf of the Authorized Representative).
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(c) Each Party
acknowledges and agrees that given its particular circumstances,
including the nature of its business, the size, type and frequency
of its instructions, transactions and files, internal procedures
and systems, the alternative security procedures offered by the
Escrow Agent and the security procedures in general use by other
customers and banks similarly situated, the security procedures set
forth in this Section 1.4 are a commercially reasonable method of
verifying the authenticity of a payment order in any Disbursement
Instructions.
(d) The Escrow Agent is
authorized to execute, and each Party expressly agrees to be bound
by any payment order in any Disbursement Instructions issued in its
name (and associated funds transfer) (i) that is accepted by the
Escrow Agent in accordance with the security procedures set forth
in this Section 1.4, whether or not authorized by such Party and/or
(ii) that is authorized by or on behalf of such Party or for which
such Party is otherwise bound under the law of agency, whether or
not the security procedures set forth in this Section 1.4 were
followed, and to debit the Escrow Account for the amount of the
payment order. Notwithstanding anything else, the Escrow Agent
shall be deemed to have acted in good faith and without negligence,
gross negligence or misconduct if the Escrow Agent is authorized to
execute the payment order under this Section 1.4. Any action taken
by the Escrow Agent pursuant to this paragraph prior to the Escrow
Agent’s actual receipt and acknowledgement of a notice of
revocation, cancellation or amendment of any Disbursement
Instructions shall not be affected by such notice.
(e) The security
procedures set forth in this Section 1.4 are intended to verify the
authenticity of payment orders provided to the Escrow Agent and are
not designed to, and do not, detect errors in the transmission or
content of any payment order. The Escrow Agent is not responsible
for detecting an error in the payment order, regardless of whether
any of the Parties believes the error was apparent, and the Escrow
Agent is not liable for any damages arising from any failure to
detect an error.
(f) When instructed to
credit or pay a party by both name and a unique numeric or
alpha-numeric identifier (e.g. ABA number or account number), the
Escrow Agent, and any other banks participating in the funds
transfer, may rely solely on the unique identifier, even if it
identifies a party different than the party named. Each Party
agrees to be bound by the rules of any funds transfer network used
in connection with any payment order accepted by the Escrow Agent
hereunder.
(g) The Escrow Agent
shall not be obliged to make any payment requested under this
Agreement if it is unable to validate the authenticity of the
request by the security procedures set forth in this Section 1.4.
The Escrow Agent’s inability to confirm a payment order may
result in a delay or failure to act on that payment order.
Notwithstanding anything else in this Agreement, the Escrow Agent
shall not be required to treat a payment order as having been
received until the Escrow Agent has authenticated it pursuant to
the security procedures in this Section 1.4 and shall not be liable
or responsible for any losses arising in relation to such delay or
failure to act.
ARTICLE
2
PROVISIONS
CONCERNING THE ESCROW AGENT
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Section
2.1
Acceptance by
Escrow Agent. The Escrow Agent hereby accepts and agrees to
perform its obligations hereunder, provided that:
(a) The Escrow Agent
may act in reliance upon any signature reasonably believed by it to
be genuine, and may assume that any person who has been designated
by the Underwriter or the Company to give any written instructions,
notice or receipt, or make any statements in connection with the
provisions hereof has been duly authorized to do so. The Escrow
Agent shall have no duty to make inquiry as to the genuineness,
accuracy or validity of any statements or instructions or any
signatures on statements or instructions. The names and true
signatures of each individual authorized to act singly on behalf of
the Company and The Underwriter are stated in Schedule II, which is
attached hereto and made a part hereof. The Company and the
Underwriter may each remove or add one or more of its authorized
signers stated on Schedule II by notifying the Escrow Agent in
writing of such change in accordance with this Agreement, which
notice shall include the true signature for any new authorized
signatories. The Escrow Agent shall be entitled to rely upon any
order, judgment, opinion, or other writing delivered to it in
compliance with the provisions of this Agreement without being
required to determine the authenticity or the correctness of any
fact stated therein or the propriety or validity of service
thereof.
(b) The Escrow Agent
may act relative hereto in reliance upon advice of counsel in
reference to any matter connected herewith. The Escrow Agent shall
not be liable for any mistake of fact or error of judgment or law,
or for any acts or omissions of any kind, unless caused by its
willful misconduct or gross negligence.
(c) In the event that
the Escrow Agent shall be uncertain as to its duties or rights
hereunder, the Escrow Agent shall be entitled to (i) refrain from
taking any action other than to keep safely the Escrow Funds until
it shall be directed otherwise by a court of competent
jurisdiction, or (ii) deliver the Escrow Funds to a court of
competent jurisdiction.
(d) The Escrow Agent
shall have no duty, responsibility or obligation to interpret or
enforce the terms of any agreement other than the Escrow
Agent’s obligations hereunder, and the Escrow Agent shall not
be required to make a request that any monies be delivered to the
Escrow Account, it being agreed that the sole duties and
responsibilities of the Escrow Agent shall be to the extent not
prohibited by applicable law (i) to accept checks or other
instruments for the payment of money and wire transfers delivered
to the Escrow Agent for the Escrow Account and deposit said checks
and wire transfers into the non-interest bearing Escrow Account,
and (ii) to disburse or refrain from disbursing the Escrow Funds as
stated above, provided that the checks received by the Escrow Agent
have been collected and are available for withdrawal. The Escrow
Agent makes no representation as to the validity, value,
genuineness or collectability of any security or other document or
instrument held by or delivered to it.
(e) The Escrow Agent
shall be obligated to perform only such duties as are expressly set
forth in this Agreement. No implied covenants or obligations shall
be inferred from this Agreement against the Escrow Agent, nor shall
the Escrow Agent be bound by the provisions of any agreement by the
Company beyond the specific terms hereof. Without limiting the
foregoing, the Escrow Agent shall dispose of the Escrow Funds in
accordance with the express provisions of this Agreement, and has
not reviewed and shall not make, be required to make or be liable
in any
7
manner
for its failure to make, any determination under the Transaction
Documents, or any other agreement, including, without limitation,
any determination of whether (i) the Company has complied with the
terms of the Transaction Documents, (ii) an investment in the
Shares is suitable for the proposed Investors, or (iii) the
Transaction Documents comply with applicable securities
laws.
(f) No provision of
this Agreement shall require the Escrow Agent to expend or risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. The Escrow Agent is
acting under this Agreement as a stakeholder only and shall be
considered an independent contractor with respect to each Party. No
term or provision of this Agreement is intended to create, nor
shall any such term or provision be deemed to have created, any
trust, joint venture, partnership, or debtor/creditor relationship
between or among the Escrow Agent and any of the
Parties.
(g) In no event shall
the Escrow Agent be liable for any lost profits, lost savings or
other special, exemplary, consequential or incidental damages even
if the Escrow Agent has been advised of the likelihood of such loss
or damage.
Section 2.2. Indemnification.
The Underwriter and the Company agree, jointly and severally, to
indemnify and hold the Escrow Agent and its employees, officers,
directors and agents harmless from and against any and all claims,
losses, costs, liabilities, damages, suits, demands, judgments or
expenses (including but not limited to reasonable attorney’s
fees) claimed against or incurred by the Escrow Agent arising out
of or related, directly or indirectly, to this Agreement unless
caused by the Escrow Agent’s gross negligence or willful
misconduct. The Underwriter and the Company agree, jointly and
severally, to pay or reimburse the Escrow Agent upon request for
any transfer taxes or other taxes relating to the Escrow Funds
incurred in connection herewith and shall indemnify and hold
harmless the Escrow Agent with respect to any amounts that it is
obligated to pay in the way of such taxes. The Escrow Agent shall
not incur any liability for performing or not performing any act or
fulfilling any duty, obligation or responsibility hereunder by
reason of any occurrence beyond the control of the Escrow Agent,
including, without limitation, war (whether declared or existing),
revolution, insurrection, riot, civil commotion, accident, fire,
explosion, stoppage of labor, strikes and other differences with
employees; the act, failure or neglect of the parties hereto (other
than the Escrow Agent) or any of their agents; any delay, error,
omission or default of any mail, courier, facsimile or wireless
agency or operator; or the acts or edicts of any government or
governmental agency or other group or entity exercising
governmental powers. The terms of this paragraph shall survive
termination of this Agreement.
Section 2.3. 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
8
OF THE
POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF
ACTION.
Section 2.4. Resignation and
Termination of the Escrow Agent. The Escrow Agent may resign
at any time by giving 30 days’ prior written notice of such
resignation to the Underwriter and the Company. Upon providing such
notice, the Escrow Agent shall have no further obligation hereunder
except to hold as depositary the Escrow Funds that it receives
until the end of such 30-day period. In such event, the Escrow
Agent shall not take any action, other than receiving and
depositing the Investor’s checks and wire transfers in
accordance with this Agreement, until the Company has designated a
banking corporation, trust company, attorney or other person as
successor. Upon receipt of such written designation signed by the
Underwriter and the Company, the Escrow Agent shall promptly
deliver the Escrow Funds to such successor and shall thereafter
have no further obligations hereunder. If such instructions are not
received within 30 days following the effective date of such
resignation, then the Escrow Agent may deposit the Escrow Funds
held by it pursuant to this Agreement with a clerk of a court of
competent jurisdiction pending the appointment of a successor. In
either case provided for in this paragraph, the Escrow Agent shall
be relieved of all further obligations and released from all
liability thereafter arising with respect to the Escrow
Funds.
Section 2.5 Termination.
The Company and the Underwriter may terminate the appointment of
the Escrow Agent hereunder upon written notice specifying the date
upon which such termination shall take effect, which date shall be
at least 30 days from the date of such notice. In the event of such
termination, the Company and the Underwriter shall, within 30 days
of such notice, appoint a successor escrow agent and the Escrow
Agent shall, upon receipt of written instructions signed by the
Company and the Underwriter, turn over to such successor escrow
agent all of the Escrow Funds; provided, however, that if the Company and the
Underwriter fail to appoint a successor escrow agent within such
30-day period, such termination notice shall be null and void and
the Escrow Agent shall continue to be bound by all of the
provisions hereof. Upon receipt of the Escrow Funds, the successor
escrow agent shall become the escrow agent hereunder and shall be
bound by all of the provisions hereof and the Escrow Agent shall be
relieved of all further obligations and released from all liability
thereafter arising with respect to the Escrow Funds and under this
Agreement.
Section 2.6 Compensation.
The Escrow Agent shall be entitled, for the duties to be performed
by it hereunder, to compensation as stated in the schedule attached
hereto as Schedule III, which fee shall be paid by the Company upon
the signing of this Agreement. In addition, the Company shall be
obligated to reimburse the Escrow Agent for all fees, costs and
expenses incurred or that become due in connection with this
Agreement or the Escrow Account, including reasonable
attorney’s fees. Neither the modification, cancellation,
termination or rescission of this Agreement nor the resignation or
termination of the Escrow Agent shall affect the right of the
Escrow Agent to retain the amount of any fee which has been paid,
or to be reimbursed or paid any amount which has been incurred or
becomes due, prior to the effective date of any such modification,
cancellation, termination, resignation or rescission. To the extent
the Escrow Agent has incurred any such expenses, or any such fee
becomes due, prior to any closing, the Escrow Agent shall advise
the Company and the Company shall direct all such amounts to be
paid directly at any such closing. The terms of this paragraph
shall survive termination of this Agreement.
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Section 2.7. 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.
Section 2.8. Attachment of
Escrow Funds; Compliance with Legal Orders. In the event
that any Escrow Funds shall be attached, garnished or levied upon
by any court order, or the delivery thereof shall be stayed or
enjoined by an order of a court, or any order, judgment or decree
shall be made or entered by any court order affecting the Escrow
Funds, the Escrow Agent is hereby expressly authorized, in its sole
discretion, to respond as it deems appropriate or to comply with
all writs, orders or decrees so entered or issued, or which it is
advised by legal counsel of its own choosing is binding upon it,
whether with or without jurisdiction. In the event that the Escrow
Agent obeys or complies with any such writ, order or decree it
shall not be liable to any Party or to any other person, firm or
corporation, should, by reason of such compliance notwithstanding,
such writ, order or decree be subsequently reversed, modified,
annulled, set aside or vacated.
Section 2.9 Force
Majeure. The Escrow Agent shall not be responsible or liable
for any failure or delay in the performance of its obligation under
this Agreement arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without
limitation, acts of God; earthquakes; fire; flood; wars; acts of
terrorism; civil or military disturbances; sabotage; epidemic;
riots; interruptions, loss or malfunctions of utilities, computer
(hardware or software) or communications services; accidents; labor
disputes; acts of civil or military authority or governmental
action; it being understood that the Escrow Agent shall use
commercially reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as
reasonably practicable under the circumstances.
Section 2.10 Compliance with
Legal Orders. The Escrow Agent shall be entitled to consult
with legal counsel in the event that a question or dispute arises
with regard to the construction of any of the provisions hereof,
and shall incur no liability and shall be fully protected in acting
in accordance with the advice or opinion of such
counsel.
Section 2.11 No Financial
Obligation. The Escrow Agent shall not be required to use
its own funds in the performance of any of its obligations or
duties or the exercise of any of its rights or powers, and shall
not be required to take any action which, in the Escrow Agent's
sole and absolute judgment, could involve it in expense or
liability unless furnished with security and indemnity which it
deems, in its sole and absolute discretion, to be
satisfactory.
ARTICLE
3
MISCELLANEOUS
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Section 3.1. Successors and
Assigns. This Agreement shall be binding on and inure to the
benefit of each Party and the Escrow Agent and their respective
successors and permitted assigns. No other persons shall have any
rights under this Agreement. No assignment of the interest of any
of the Parties shall be binding unless and until written notice of
such assignment shall be delivered to the other Parties and the
Escrow Agent and shall require the prior written consent of the
other Parties and the Escrow Agent (such consent not to be
unreasonably withheld).
Section 3.2. Escheat.
Each Party is aware that under applicable state law, property which
is presumed abandoned may under certain circumstances escheat to
the applicable state. The Escrow Agent shall have no liability to
any of the Parties, their respective heirs, legal representatives,
successors and assigns, or any other party, should any or all of
the Escrow Funds escheat by operation of law.
Section 3.3. Notices. All
notices, requests, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given if sent by hand-delivery, by
facsimile (followed by first-class mail), by nationally recognized
overnight courier service or by prepaid registered or certified
mail, return receipt requested, to the addresses set forth
below:
If to
The Underwriter:
Digital
Offering LLC
0000
Xxxxxxxxx Xx., Xxxxx X Xxxxxx Xxxxx, XX 00000 Attention: Xxxxxx
XxXxxx Phone: 000-000-0000
Email:
xxxxxxx@xxxxxxxxxxxxxxx.xxx If to the Company:
Manufactured
Housing Properties Inc. 000 Xxxx
Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Anise Phone: 000-000-0000
Email:
xxxxxxx@xxxxxxxxxxxx.xxx Copy:
Xxxxxxxxxx
PLLC
0000
Xxxxxxxxxxx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX
00000 Attention: Xxxxx X. Xxxxxxxxxx Phone:
000-000-0000
Email:
xxx@xxxxxxxxxxxxxx.xxx
11
If to
Escrow Agent:
WILMINGTON TRUST,
NATIONAL ASSOCIATION
000
Xxxxxx Xxxxxx, Xxxxx 0X Xxx Xxxx, Xxx Xxxx Attention: Xxxxx Xxxxxxx
Phone: (000) 000-0000
Fax:
(000) 000-0000
Section 3.4. Governing Law and
Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
Each Party and Escrow Agent hereby consents to the exclusive
personal jurisdiction of the courts located in the State of
Delaware in the event of a dispute arising out of or under this
Agreement. Each Party and Escrow Agent hereby irrevocably waives
any objection to the laying of the venue of any suit, action or
proceeding and irrevocably submits to the exclusive jurisdiction of
such court in such suit, action or proceeding.
Section 3.5. Entire
Agreement. This Agreement and the Schedules and Exhibits
attached hereto (as updated from time to time in accordance
herewith) set forth the entire agreement and understanding of the
parties related to the Escrow Account.
Section 3.6. Amendment.
This Agreement may be amended, modified, superseded, rescinded, or
canceled only by a written instrument executed by each of the
Parties and the Escrow Agent.
Section 3.7. Waivers. The
failure of any party to this Agreement at any time or times to
require performance of any provision under this Agreement shall in
no manner affect the right at a later time to enforce the same
performance. A waiver by any party to this Agreement of any such
condition or breach of any term, covenant, representation, or
warranty contained in this Agreement, in any one or more instances,
shall neither be construed as a further or continuing waiver of any
such condition or breach nor a waiver of any other condition or
breach of any other term, covenant, representation, or warranty
contained in this Agreement.
Section 3.8. Headings.
Section headings of this Agreement have been inserted for
convenience of reference only and shall in no way restrict or
otherwise modify any of the terms or provisions of this
Agreement.
Section 3.9. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which when executed shall be deemed to be an original, and such
counterparts shall together constitute one and the same
instrument.
Section
3.10. Waiver of Jury
Trial. EACH OF THE PARTIES HERETO AND THE ESCROW AGENT
EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN RESOLVING ANY CLAIM
OR COUNTERCLAIM RELATING TO OR ARISING OUT OF THIS
AGREEMENT.
Section 3.11 Form of
Signature.
The Parties and the Escrow Agent agree to accept a
facsimile
12
or
email PDF transmission copy of their respective actual signatures
as evidence of their actual signatures to this Agreement and any
modification or amendment of this Agreement; provided, however, that each party who produces a
facsimile or email PDF signature agrees, by the express terms
hereof, if requested by another party hereto, to place, promptly
after transmission of his or her signature by fax, a true and
correct original copy of his or her signature in overnight mail to
the address of the other party.
Section 3.12 Termination.
This Agreement will terminate upon the Termination
Date.
Section
3.13
Anti-Terrorism/Anti-Money
Laundering Laws.
IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT - To help
the United States government fight the funding of terrorism or
money laundering activities, Federal law requires all financial
institutions to obtain, verify, and record information that
identifies each person who opens a new account. What this means for
the parties to this Agreement: the Escrow Agent will ask for your
name, address, date of birth, and other information that will allow
the Escrow Agent to identify you (e.g., your social security number or tax
identification number.) The Escrow Agent may also ask to see your
driver’s license or other identifying documents (e.g., passport, evidence of formation
of corporation, limited liability company, limited partnership,
etc., certificate of good standing.)
Each
Party to this Agreement hereby agrees to provide the Escrow Agent,
prior to the establishment of the Escrow Account, with the
information identified above pertaining to it by completing the
form attached as Exhibit B and returning it to the Escrow Agent.
Exhibit B includes one form for individuals and another form for
entities.
[The
balance of this page intentionally left blank – signature
page follows]
13
IN WITNESS WHEREOF,
the parties have duly executed this
Agreement as of the date first set forth above.
|
By: /s/ Xxxxxxx X.
Anise
Name:
Xxxxxxx X. Anise
Title:
President
|
DIGITAL
OFFERING LLC
By: /s/ Xxxxxx
XxXxxx
Name:
Xxxxxx XxXxxx
Title:
CEO
|
WILMINGTON
TRUST, NATIONAL ASSOCIATION
By:/s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Vice President
