BOSTON CAPITAL TAX CREDIT FUND IV L.P.
SERIES 37 and 38
CAPITAL CONTRIBUTIONS ESCROW AGREEMENT
This Agreement made as of the ____ day of September 1999, by and
between Boston Capital Tax Credit Fund IV L.P., a Delaware limited partnership
(the "Fund"), Boston Capital Associates IV L.P., a Delaware limited partnership
(the "General Partner"), and Xxxxxxxxxx Bank & Trust Company, Boston,
Massachusetts (the "Escrow Agent").
1. The Offering. The Fund intends to offer for subscription in two
series; namely Series 37 and Series 38, 8,000,000 beneficial assignee
certificates ("BACs") at a price of $10.00 per BAC, representing assignments of
units of the beneficial interest of the Limited Partnership Interest in the Fund
issued to the Assignor Limited Partner. The initial minimum purchase by each
potential investor completing an Investor Information Form (a "Subscriber") is
five hundred BACs ($5,000), except for employees of the General Partner and/or
its Affiliates for whom the initial minimum investment is one hundred BACs
($1,000); additional purchases by a Subscriber must be made in multiples of 100
BACs ($1,000). The offering will be made through a group of soliciting dealers
(the "Soliciting Dealers"), organized by and including Boston Capital Services,
Inc. as dealer-manager (the "Dealer-Manager"), which are members of the National
Association of Securities Dealers, Inc. The Fund hereby appoints Xxxxxxxxxx Bank
& Trust Company, Boston, Massachusetts as its Escrow Agent to receive from the
Soliciting Dealers and Dealer-Manager (i) the monies paid by the subscribers for
the BACs to which they have each subscribed (the "Subscription Payments"), (ii)
to hold and invest such Subscription Payments.
The Fund intends to offer and sell and to issue BACs in two series;
namely, Series 37 and Series 38. Each series will consist of up to 4,000,000
BACs subject to expansion. The offering of each series will not exceed twelve
months, or such lesser period as may be determined by the General Partner, in
its sole discretion (a "Series Offering Period").
The offering by the Fund will terminate twelve months from the
effective date of the Fund's Registration Statement, unless terminated earlier
or extended by the General Partner, and is subject to the condition that
subscriptions for at least 250,000 BACs be accepted by the General Partner by
the last day of the applicable Series Offering Period (the "Termination Date").
The General Partner will notify the Escrow Agent in writing received by the
Escrow Agent no later than 5:00 p.m. on the second business day next preceding
the date the General Partner determines as the Termination Date for each Series
Offering Period.
2. Establishment of the Escrow. The Escrow Agent will establish
segregated escrow accounts for each series in the offering (the "Series Escrow
Accounts") into which all Subscription Payments shall be deposited. Each Series
Escrow Account will be identified in a manner clearly indicating the series in
the offering to which the Series Escrow Account relates. Records with respect to
each Series Escrow Account will be
maintained separately by the Escrow Agent. Credit on the books of the Escrow
Agent will be given as of the date of deposit of each check. Interest on each
deposited check will begin to accrue one (1) business day after each such date
of deposit. If the Escrow Agent receives notice that a check for a Subscription
Payment has been dishonored, it shall give immediate oral notice (to be
confirmed in writing promptly thereafter) to the General Partner; and, unless
otherwise instructed at that time by the General Partner, shall undertake
routine steps to collect such check through the Escrow Agent's customary
collections channels. In the event that collections from the Subscribers in the
form of checks or other demand remittances are credited by the Escrow Agent to
the Series Escrow Account and the items giving rise to such credits are
subsequently dishonored, the Escrow Agent may, in its discretion, charge to the
Series Escrow Account the amount of any item so dishonored. Upon final payment
of any such item, the Escrow Agent shall credit to the Series Escrow Account the
amount thereof with appropriate advice to the Fund. Subscription proceeds
deposited may not be withdrawn by Subscribers.
The General Partner agrees to inform the Escrow Agent when offers and
sales in each series have begun and terminated. Subscription Payments forwarded
for deposit to the Fund's Series Escrow Accounts will clearly indicate the
series in which the Subscriber is investing.
3. Closing and Disbursement of Funds. The Fund intends to make the
offering on the condition that a minimum of 250,000 BACs ($2,500,000) shall have
been accepted by the General Partner by the applicable Termination Date. Until
subscriptions for at least 250,000 BACs in any series are received, no
Subscriber will be recognized as a BAC Holder and subscriptions will be
deposited with the Escrow Agent. If $2,500,000 (250,000 BACs) of Subscription
Payments have not been collected and are not then held in cleared funds in the
possession of the Escrow Agent on the applicable Termination Date, and upon
written notice from, and instructions by, the General Partner, the Escrow Agent
shall return to the Subscribers the Subscription Payments with interest on the
fifth business day after the later of the applicable Termination Date or receipt
of the instructions from the General Partner. If at least $2,500,000 of
Subscription Payments have been collected and are then held in cleared funds in
the possession of the Escrow Agent by the applicable Termination Date, then upon
written notice from, and instruction by, the General Partner, the Escrow Agent
shall pay to the Fund all funds then held in the Series Escrow Account including
interest earned thereon prior to the Termination Date, and less reimbursement to
the Escrow Agent for fees and expenses payable hereunder, if any. The Fund shall
determine the amount of interest due to each Subscriber and within 75 days after
the end of the fiscal quarter following a Closing Date shall itself pay such
interest to Subscribers. Subsequent to but not including such Termination Date,
any interest earned will be paid to the Fund. A subscriber will be entitled to
the amount of interest earned on his subscription proceeds starting from the day
after such proceeds were deposited in the Series Escrow Account until but not
including the Closing Date.
Subscriptions for BACs will be accepted or rejected by the General
Partner within 30 days of receipt, but the issuance of BACs to a Subscriber
shall be subject to acceptance of subscriptions for a number of BACs sufficient
to effectuate a closing. If the Subscription Payments allocated to such rejected
or cancelled subscription ("Rejected Funds") have been delivered to Escrow
Agent, the General Partner will inform Escrow Agent of the rejection
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or cancellation, and Escrow Agent, upon receiving such notice, will refund to
the Subscriber the Rejected Funds within 10 days of such notice, without
interest.
4. Investment of Funds. The Fund hereby directs the Escrow Agent to
invest (in the name of the Escrow Agent or the name of its nominee or nominees)
funds in the Series Escrow Account for the benefit of the Subscribers in any one
or a combination of the following: bank time deposits; short-term securities
issued or guaranteed by the United States Government; bank money market
accounts; and short-term certificates of deposit issued by a bank. Investments
for periods of five days or less shall not be required.
5. Compensation. The Fund agrees to pay to the Escrow Agent
compensation of $1.00 per Subscriber whose funds are received by the Escrow
Agent for all services rendered by the Escrow Agent under this Agreement and, in
addition, the reasonable compensation of its counsel and all other reasonable
expenses incurred by the Escrow Agent hereunder.
6. Exculpation. The General Partner agrees to indemnify the Escrow
Agent for, and to hold it harmless against, any loss, liability, or expense
incurred without gross negligence or willful misconduct on the part of the
Escrow Agent, arising out of this Escrow Agreement, as well as the costs and
expenses of defending any claim or liability or of prosecuting any action in the
premises. The Escrow Agent shall not be obligated to take any action hereunder
which might in its reasonable judgment subject it to any expense or liability
unless it shall have been furnished with indemnity acceptable to it. Prior to
the Termination Date, Subscription Payments held by the Escrow Agent shall
remain the property of the Subscribers making such Payments and shall not be
subject to a lien of the Escrow Agent or any other creditors of the Fund or the
General Partner.
The Escrow Agent shall not be obligated to take any action which it is
not expressly directed to take in this Agreement unless and until it shall have
received written instruction from the Fund. The Escrow Agent shall be liable
only for its own gross negligence or willful misconduct and shall incur no
liability for action in accordance with the terms of this Escrow Agreement or
with the terms of any instructions received by it from the General Partner,
whether or not contrary to the provisions of this Agreement or to the agreements
between the Fund and the Subscribers. The Escrow Agent may rely upon, and shall
be protected in acting upon, any resolution, certificate, opinion, notice,
request, consent, or other paper or document believed by it to be genuine and to
have been signed by the proper person or persons. Any notice or instruction from
the Fund shall be sufficient if it bears or purports to bear the signature of
any one of the following: Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, and Xxxxxxx X.
Xxxxxx, whose signatures appear hereon, with or without designation of principal
or of representative capacity. The Escrow Agent may consult with counsel, and
the opinion of such counsel shall be full and complete protection in respect to
any action taken or suffered by it hereunder in accordance with such opinion.
The Escrow Agent may petition any court of competent jurisdiction to resolve any
disagreement relating hereto and may refuse to act until such court has ordered
it to act. Such rights and remedies shall be alternative and any action taken or
not taken in conformance with an opinion of counsel or court order shall not
constitute negligence or misconduct and shall be complete and final acquittance
and discharge of the Escrow Agent's responsibilities with respect thereto.
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Notwithstanding the foregoing, it is understood and agreed by the
parties that no partner of the General Partner acting in its capacity as such
shall have any personal liability under this agreement and that any person
asserting a claim against the General Partner hereunder shall look solely to the
assets of such General Partner (specifically excluding the personal assets of
the partners thereof).
7. Notices. All notices and other communications hereunder shall be in
writing, or if given by telephone, telegraph or telex shall be confirmed in
writing. No notice shall be given until given in writing and shall be sent,
Postage prepaid, addressed as follows:
(a) If to the Fund or the General Partner, notice is deemed given when
received by Xxxxxxx X. Xxxxxx, c/o Boston Capital Partners, Inc.,
Xxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxxxxx.
(b) If to the Escrow Agent, notice is deemed given when received by
Xxxxx Bolbashian, Assistant Vice President, Xxxxxxxxxx Bank & Trust
Company, 00 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or to
such other address as the Escrow Agent shall subsequently designate
in writing to the General Partner.
8. Miscellaneous.
(c) This Agreement shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto.
(d) This Agreement shall be governed and construed in accordance with
the laws of the Commonwealth of Massachusetts and shall not be
amended except by written instrument executed by the parties
hereto.
(e) This Agreement may be executed in one or more counterparts, each of
which shall constitute the original, and all of which collectively
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal on the day and year first above written.
BOSTON CAPITAL ASSOCIATES IV X.X. XXXXXXXXXX BANK & TRUST
COMPANY
By: Boston Capital Associates, By: __________________________
Its General Partner
Its:______________________
By: ___________________________
Xxxx X. Xxxxxxx, Partner
By: ___________________________
Xxxxxxx X. Xxxxxxx, Partner
Signatories:
By: ___________________________
Xxxxxxx X. Xxxxxx
BOSTON CAPITAL TAX CREDIT FUND IV L.P.
By: Boston Capital Associates IV L.P.,
as General Partner
By: Boston Capital Associates, as General Partner
By: ___________________________
Xxxx X. Xxxxxxx, Partner
AGREED TO AND ACCEPTED BY:
BOSTON CAPITAL SERVICES, INC.
By: _________________________
Xxxxxxx X. XxXxxxxx
President
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