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EXHIBIT 10.5
ESCROW AGREEMENT
ESCROW AGREEMENT made as of July , 1997 by and among CORPORATE
PROPERTY ASSOCIATES 14 INCORPORATED, a Maryland corporation (the "Company"),
XXXXX FINANCIAL CORPORATION, a Delaware corporation (the "Sales Agent"), and THE
UNITED STATES TRUST COMPANY OF NEW YORK, a New York corporation (the "Escrow
Agent").
WHEREAS, the Company has filed a Registration Statement on
Form S-11 and amendments thereto (as so amended, the "Registration Statement")
with the Securities and Exchange Commission (the "Commission"), bearing
registration number 33-___________.
WHEREAS, the Company and the Sales Agent will enter into a
Sales Agency Agreement (the "Sales Agency Agreement"), pursuant to which the
Sales Agent and a group of selected dealers (each a "Selected Dealer") will
offer and sell to the public on a best efforts basis a maximum of 30,000,000
shares of common stock of the Company (the "Shares") at $10 per Share.
WHEREAS, the Company has sole discretion in determining
whether to accept or reject any orders for the Shares;
WHEREAS, the Company, in compliance with the terms of the
proposed offering described in the Registration Statement and Rule 15c2-4 under
the Securities Exchange Act of 1934, as amended, proposes to establish an escrow
account with the Escrow Agent for the deposit of payments for the Shares; and
WHEREAS, the foregoing recitals are statements of the Company
and the Sales Agent and not of the Escrow Agent;
NOW, THEREFORE, in consideration of the mutual promises herein
made and for other good and valuable consideration, the parties hereby agree as
follows:
1. Subject to Section 6 hereof, for the period commencing on
the date of the Prospectus and terminating not later than 60 days following (a)
the date two years from the date of the Prospectus or (b) the date on which the
offering of the Shares otherwise terminates, whichever first occurs, but in no
case prior to 60 days after the final disposition of the money and property held
in escrow hereunder, the parties hereby appoint the Escrow Agent in accordance
with the terms and conditions set forth herein, and the Escrow Agent hereby
accepts such appointment and agrees to receive, hold and disburse the proceeds
from the sale of the Shares in accordance herewith. The Company and the Sales
Agent agree to promptly notify the Escrow Agent of the date of the Prospectus
(or if the offering of the Shares is extended, the date
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of termination of such extension) and the date, if any, referred to in clause
(b) above.
2. (a) The Sales Agent shall deliver, and shall cause each
Selected Dealer to directly or indirectly deliver, proceeds (the "Escrow Funds")
received from purchasers of the Shares (each an "Investor") to the Escrow Agent
at The United States Trust Company of New York, 000 X. 00 Xxxxxx, Xxx Xxxx, XX
00000-0000. The Escrow Agent shall have no obligation or responsibility to
determine whether the Sales Agent or any Selected Dealer has delivered to the
Escrow Agent all or any part of the proceeds received from an Investor. All
deliveries of proceeds shall be accompanied by (i) the name and address of, the
social security number or taxpayer identification number of, the brokerage
account number of (if applicable), the number of Shares purchased by and the
total dollar amount of the investment by, each Investor on whose behalf proceeds
are delivered to the Escrow Agent and (ii) a statement advising the Escrow Agent
of the aggregate amount of Escrow Funds delivered attributable to individual
retirement accounts, Xxxxx plans, or any other employee benefit plan subject to
Title I of the Employee Retirement Income Security Act of 1974 (collectively
referred to as "Plan Investors") or from some other type of investor ("Non-Plan
Investors"). Funds delivered to the Escrow Agent may be in the form of checks
payable to "The United States Trust Company of New York, as Escrow Agent" and
drawn on an account of an Investor or Selected Dealer or wire transfer from the
Sales Agent or certain Selected Dealers identified to the Escrow Agent by the
Company or the Sales Agent. The Company shall comply fully with the Interest and
Dividend Tax Compliance Act of 1983 and the Escrow Agent shall have no
responsibility thereunder.
(b) Prior to the delivery of any payments from Investors,
the Company shall deliver to the Escrow Agent a copy of the Prospectus,
certified by the Company to be a true copy, and a copy of the order of the
Commission declaring effective the Registration Statement as soon as practicable
after the Company's receipt thereof. It is understood that the copy of the
Prospectus is being delivered to the Escrow Agent solely for the purpose of
notifying the Escrow Agent of the effective date of the Registration Statement
and that the Escrow Agent is not charged with any duty to review the Prospectus
or to inquire into the effectiveness of the Registration Statement.
(c) All funds received from Plan Investors shall be
deposited and maintained in a separate account opened by the Escrow Agent ("Plan
Subaccount"). All funds received from Non-Plan Investors shall be deposited and
maintained in a separate account opened by the Escrow Agent ("Non-Plan
Subaccount").
(d) All Escrow Funds shall be invested in the U. S. Trust
Government Money Fund. All investments attributable to Escrow Funds shall be
made by the Escrow Agent in the name of "The United States Trust Company of New
York, as Escrow Agent." The income derived from such investments shall be
distributed to the
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Investors or, in the case of Investors ("AMEX Investors") solicited by American
Express Financial Advisors, Inc. ("AMEX"), to AMEX for the account of such AMEX
Investors, in either case as Escrow Interest in accordance with the provisions
of Section 3(a), (b) or (c) hereof, whichever shall be applicable. The Escrow
Agent shall issue to each Investor (including each AMEX Investor) a Form 1099
for each year in which such Investor had Escrow Funds on deposit with the Escrow
Agent.
3. (a) Upon receipt by the Escrow Agent of (i) an opinion from
counsel to the Company stating that all conditions necessary for the release of
Escrow Funds have been satisfied and that the offering of the Shares has not
been terminated by withdrawal of the Registration Statement and (ii)
instructions signed by the Sales Agent and the Company, the Escrow Agent will
from time to time pay to the Company and/or to any other person designated in
such instructions the Escrow Funds in accordance with such instructions. Such
instructions also shall include the times and places at which such Escrow Funds
are to be paid and the amount and method of payment. The Company shall give the
Escrow Agent three business days advance oral notification of the contents of
such instructions. Within 15 calendar days after the first date on which Escrow
Funds are paid to the Company or other designated person pursuant to the
instructions described above, the Escrow Agent shall remit interest earned on
such Escrow Funds ("Escrow Interest") to Investors on whose behalf such Escrow
Funds were deposited or, in the case of AMEX Investors, to AMEX for the account
of such AMEX Investors, as applicable, as follows:
(A) In the case of an Plan Investor, the interest earned on
all Escrow Funds maintained in the Plan Subaccount opened in
accordance with Section 2(c) hereof based on the length of
time its subscription payment has been held by the Escrow
Agent. Such remission shall be made either directly to, or
pursuant to instruction received from, the Plan Investor or an
investment Adviser acting on behalf of such Investor, or in
the case of AMEX Plan Investors, in a lump sum directly to
AMEX for the account of such AMEX Investors. The payment of
Escrow Interest to AMEX shall be accompanied by a listing, in
a form acceptable to AMEX, of the AMEX Plan Investors to whom
interest should be paid and their respective AMEX account
numbers.
(B) In the case of a Non-Plan Investor, its pro rata share of
interest earned on all Escrow Funds maintained in the Non-Plan
Subaccount opened in accordance with Section 2(c) hereof based
on the length of time its subscription payments have been held
by the Escrow Agent. Such remission shall be made either
directly to, or pursuant to instructions received from, the
Non-Plan Investor or an agent acting on behalf of such
Investor, or, in the case of AMEX Non-Plan Investors, in a
lump sum directly to AMEX for the account of such AMEX
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Investors. The payment of Escrow Interest to AMEX shall be
accompanied by a listing, in a form acceptable to AMEX, of the
AMEX Non-Plan Investors to whom interest should be paid and
their respective AMEX account number.
(b) If, during the period any Escrow Funds are held by
the Escrow Agent, the Company determines that (i) an Investor will not be issued
Shares because the Company determines that such Investor is not acceptable, or
(ii) a portion of an Investor's order is rejected, the Company shall (A) furnish
the Escrow Agent with the name of such Investor and the amount of such
Investor's order which must be returned, and (B) direct the Escrow Agent to, and
the Escrow Agent shall, return to such Investor or, in the case of an AMEX
Investor, to AMEX for the account of such Investor, within eight business days
of the Escrow Agent's receipt of such information, the amount of such Investor's
order (including any Escrow Interest attributable to such amount) which must be
returned.
(c) In the event that, prior to the date, one year from
the date of the Prospectus (the "Anniversary Date"), the Registration Statement
is withdrawn from registration with the Commission or, if not so withdrawn, the
Escrow Agent has not received the opinion of counsel and instructions described
in Section 3(a) hereof, the Escrow Agent shall, within 10 business days
following the Anniversary Date, or after receipt of written notice from the
Company and the Sales Agent that the Registration Statement has been withdrawn,
as the case may be, remit to or for the account of each Investor its respective
share of the Escrow Funds then held by the Escrow Agent on behalf of such
Investor, together with such Investor's respective share of Escrow Interest,
based on the length of time such Investor's payments have been held by the
Escrow Agent and determined in accordance with Section 3(a) hereof. Such
remission shall be made either directly to, or pursuant to instructions received
from, the Investor or an agent acting on behalf of such Investor or, in the case
of AMEX Investors, in a lump sum to AMEX for the account of such AMEX Investors.
Notwithstanding the foregoing, the Escrow Agent shall use its best efforts to
remit such Escrow Funds and Escrow Interest to or for the account of each
Investor within five business days following the earlier of the dates specified
above.
4. (a) The Escrow Agent shall perform the following
functions with respect to funds it receives from the Sales Agent or Selected
Dealers by check drawn on an Investor's account or wire transfers on behalf of
Investors:
(i) Collect the mail received at the address referred to Section
2(a) hereof prior to 12:00 noon on each business day;
(ii) Stamp each such check with a date and a sequential accession
number;
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(iii) Before the close of business on the business day on which
funds are received from Non-Plan Investors, deposit checks or
wire transfers attributable to such Non-Plan Investors into
the Non-Plan Subaccount established pursuant to Section 2(c)
hereof;
(iv) Before the close of business on the business day on which
funds are received from an Plan Investor, deposit such funds
into the Plan Subaccount established pursuant to Section 2(c)
hereof;
(v) Verify that, for each Investor whose name was submitted to the
Escrow Agent by the Sales Agent or any Selected Dealer in
connection with the delivery of funds to the Escrow Agent,
payment for the Shares subscribed for by such Investor has
been made either by check or by wire transfer as described in
Section 2(a) hereof and notify the Company in writing as soon
as practicable if any such payment is not received or if
payment on any check is refused by the bank or financial
institution on which such check is drawn.
(vi) Within 48 hours of the close of business on the business day
on which funds are received, send to the Company and to the
Company's transfer agent by Express Mail or other next day
delivery service, the aggregate face amount of all checks and
the amount of wire transfers received.
(b) On each business day during the period any Escrow Funds are
held by the Escrow Agent, the Escrow Agent shall notify the Company by telephone
of the then current per annum rate at which interest is accruing on the Escrow
Funds, both with respect to Plan Investors and Non-Plan Investors. Such
notification shall be confirmed in writing in the form of a weekly report which
shall be sent to the Company by hand delivery or by first class U.S. mail.
5. (a) Notwithstanding anything to the contrary contained in this
Escrow Agreement, the Escrow Agent shall in no case or event be liable for the
failure of any of the conditions of this Escrow Agreement or damage caused by
the exercise of its duties, if acting in good faith, in any particular manner,
or for any reason (including, without limitation, the liquidation of investments
of the Escrow Funds), for any mistake of fact or law, for any error of judgment,
or for any action taken or omitted by it, or any action suffered by it to be
taken or omitted, except gross negligence or willful misconduct with reference
to the Escrow Funds or Escrow Interest, and the Escrow Agent, if acting in good
faith, shall not be liable or responsible for its failure to ascertain the terms
or conditions, or to comply with any of the
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provisions, of any agreement, contract or other document delivered to it or
referred to herein, nor shall the Escrow Agent, if acting in good faith, be
liable or responsible for forgeries or false personation or for its good faith
determination of the authority of any person executing this Escrow Agreement or
for the value or validity or genuineness or collection of any check from an
Investor delivered to the Escrow Agent hereunder. The Escrow Agent shall have no
responsibility with respect to the use or application of any funds or other
property paid or delivered by the Escrow Agent to the Company pursuant to the
provisions hereof. The Escrow Agent shall not be liable to the other parties
hereto or to anyone else for any loss which may be incurred by reason of any
investment of any monies it holds hereunder in its capacity as Escrow Agent.
(b) In the absence of gross negligence or willful misconduct on
the part of the Escrow Agent, the Escrow Agent may rely conclusively upon and
shall not be liable for, and shall be indemnified and held harmless for, acting
upon any order, notice, demand, certificate, opinion or advice of counsel
(including counsel chosen by the Escrow Agent), statement, instrument, report or
other paper or document (not only as to its due execution and the validity and
effectiveness of its provisions, but also as to the truth, completeness and
acceptability of any information therein contained) which is believed by the
Escrow Agent to be genuine and to be signed or presented by the proper person or
persons. The Escrow Agent shall not be bound by any notice or demand, or any
waiver, modification, termination or rescission of this Escrow Agreement or any
of the terms hereof, unless evidenced by a writing delivered to the Escrow Agent
signed by the proper party or parties and, if the duties or rights of the Escrow
Agent are affected, unless it shall give its prior written consent thereto.
(c) The Escrow Agent shall have the right to assume, in the
absence of written notice to the contrary from the proper person or persons,
that a fact or an event by reason of which an action would or might be taken by
the Escrow Agent does not exist or has not occurred, without incurring liability
for any action taken or omitted, or any action taken or omitted by it or to be
taken or omitted, in good faith and in the exercise of its own best judgment, in
reliance upon such assumption.
(d) To the extent that the Escrow Agent becomes liable for the
payment of taxes, including withholding taxes, in respect of income derived from
the investment of funds held hereunder or any payment made hereunder, the Escrow
Agent may pay such taxes from the funds held. The Escrow Agent may withhold from
any payment of monies held by it hereunder such amount as the Escrow Agent
estimates to be sufficient to provide for the payment of such taxes not yet
paid, and may use the sum withheld for that purpose. The Escrow Agent shall be
indemnified and held harmless against any liability for taxes and for any
penalties or interest in respect of taxes on such investment income or payments
in the
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manner provided in Section 6(e) hereof. The Escrow Agent shall provide to each
Investor, or, in the case of AMEX Investors, to AMEX all information necessary
regarding on whose behalf such withholdings have been made so that the proper
adjustments may be made to the escrow interest payment received by the Investor
or to the Investor's AMEX account.
(e) The Escrow Agent shall be indemnified and held harmless by
the Company and the Sales Agent, jointly and severally, from and against any
costs, liabilities, claims, judgments and other expenses, including reasonable
counsel fees and disbursements, or loss suffered by the Escrow Agent in
connection with or directly or indirectly arising out of or relating to this
Escrow Agreement, the services of the Escrow Agent hereunder, the money or other
property held by it hereunder or any income earned from investment of such
money, provided, however, that such indemnification shall not apply to any such
expenses, losses, claims or demands caused by the gross negligence or willful
misconduct of the Escrow Agent or its officers, employees or agents. Promptly
after the receipt by the Escrow Agent of notice of any demand or claim or the
commencement of any action, suit or proceeding, the Escrow Agent shall, if a
claim in respect thereof is to be made against any of the other parties hereto,
notify such other parties thereof in writing; but the failure by the Escrow
Agent promptly to give such notice shall not relieve any party from any
liability which such party may have to the Escrow Agent hereunder. For the
purposes hereof, the term "expense or loss" shall include all amounts paid or
payable to satisfy any claim, demand or liability, or in settlement of any
claim, demand, action, suit or proceeding settled with the express written
consent of the Escrow Agent, all reasonable costs and expenses, including, but
not limited to, counsel fees and disbursements, paid or incurred in
investigating or defending against any claim, demand, action, suit or
proceeding. Anything in this subsection (e) to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any such claim,
demand, action, suit or proceeding effected without its written consent.
(f) Should any dispute or conflicting claims arise with respect
to the payment or ownership or right of possession of the Escrow Funds or Escrow
Interest, the Escrow Agent shall be entitled, in its sole discretion, to refuse
to comply with any and all claims, demands, or instructions with respect to, and
to retain possession of, such Escrow Funds or Escrow Interest so long as such
dispute or conflict shall continue and the Escrow Agent shall not be liable for
its failure or refusal to comply with such conflicting claims, demands or
instructions. The Escrow Agent shall be entitled to refuse to act until such
disputes or conflicting claims have been settled either by mutual agreement
among the parties concerned or by the final order, decree or judgment of a court
or other tribunal of competent jurisdiction in the United States of America and
the expiration of time for appeal without perfection of any appeal, but the
Escrow Agent shall be
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under no duty whatsoever to institute or defend any such proceeding.
(g) The Escrow Agent's duties are only such as are herein specifically
provided, being purely ministerial in nature, and that the Escrow Agent shall
use reasonable diligence in the performance of its obligations hereunder, but
shall incur no liability whatever, except for willful misconduct or gross
negligence, so long as the Escrow Agent has acted in good faith. The Escrow
Agent shall have no duty to enforce any obligation of any person to make any
payment or delivery, or to direct or cause any payment or delivery to be made,
or to enforce any obligation of any person to perform any other act. The Escrow
Agent shall be under no liability to the other parties hereto or to anyone else
by reason of any failure on the part of any party hereto or any maker,
guarantor, endorser or other signatory of any document or any other person to
perform such person's obligations under any such document. Except for amendments
to this agreement referred to below and except for joint instructions given to
the Escrow Agent by the other parties hereto relating to the escrow deposit
under this agreement, the Escrow Agent shall not be obligated to recognize any
agreement between any or all of the persons referred to herein, notwithstanding
that references thereto may be made herein and whether or not it has knowledge
thereof. The Escrow Agent is not a party to, and is not bound by, any agreement
or other document out of which this Escrow Agreement may arise or any other
agreement or other document in connection with the Company.
6. Notwithstanding anything to the contrary contained in this Escrow
Agreement, the Escrow Agent (a) may resign from its duties under this Escrow
Agreement by giving 30 calendar days' prior written notice of such resignation
to the other parties hereto and (b) may be discharged from its duties under this
Escrow Agreement upon the receipt from each of the other parties hereto of 30
calendar days' prior written notice of such discharge. Upon the resignation or
discharge of the Escrow Agent, the Company shall retain a substitute escrow
agent to perform the functions theretofore performed by the Escrow Agent under
this Escrow Agreement. As soon as practicable after its resignation, the Escrow
Agent shall turn over to a successor escrow agent appointed by the other parties
hereto all money and property held hereunder upon presentation of a document
appointing the new escrow agent and its acceptance thereof. If no new escrow
agent is so appointed prior to the effectiveness of such resignation or
discharge, the Escrow Agent may deposit the aforesaid money and property with
any court it deems appropriate.
7 (a) The Company shall compensate the Escrow Agent in accordance with
the fee schedule attached hereto as Exhibit A.
(b) It is understood that fees and usual charges agreed upon for the
Escrow Agent's services hereunder shall be considered compensation for its
ordinary services as contemplated by this Escrow Agreement and in the event the
conditions of this Escrow
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Agreement are not promptly fulfilled by parties other than the Escrow Agent or
that the Escrow Agent renders any service hereunder not provided for in, or
contemplated by, this Escrow Agreement, or that there is any modification
hereof, or that any controversy arises hereunder or that the Escrow Agent is
made a party to, or intervenes in, or that there is, any litigation pertaining
to this Escrow Agreement or the subject matter thereof, the Escrow Agent and its
legal counsel shall be reasonably compensated for services rendered in
connection with, and reimbursed for all reasonable costs and expenses occasioned
by, such events and the Escrow Agent shall have the right to retain all
documents and/or other things of value at any time held by it hereunder, except
Escrow Funds, Escrow Interest or subscription material, until such fees, costs
and expenses shall be paid. The Company hereby promises to pay the foregoing
sums upon demand.
(c) It is understood that from time to time on and after the date
hereof, the other parties hereto shall deliver or cause to be delivered to the
Escrow Agent such further documents and instruments and shall do and cause to be
done such further acts as the Escrow Agent reasonably shall request (it being
understood that the Escrow Agent shall have no obligation to make any such
request) to carry out more effectively the provisions and purposes of this
Escrow Agreement, to evidence compliance herewith or to assure itself that it is
protected in acting hereunder.
8. If, after the receipt by the Escrow Agent of any check or
instrument pursuant hereto, the Escrow Agent shall inform the Company and the
Sales Agent that such check or instrument has been entered for collection by it
hereunder and is uncollectable and payment of the funds represented by such
check or instrument has been made pursuant to the terms of this Escrow
Agreement, then the Company shall immediately reimburse the Escrow Agent for
such payment plus interest thereon, and the Escrow Agent shall deliver the
returned check or instrument to the Company provided, however, that nothing
contained herein shall require the Escrow Agent to invest or pay out funds which
it has reason to believe are uncollectable or prior to funds respecting such
check or instrument having been paid (it being understood that the Escrow Agent
shall be under no duty to investigate the collectability of any such funds). The
Escrow Agent shall have no duty or responsibility to enforce collection of any
check delivered to the Escrow Agent hereunder. Notwithstanding anything to the
contrary contained herein, the Escrow Agent shall not be required to advance its
own funds to the Company, the Sales Agent or any Selected Dealer or any Investor
for any purpose under this Agreement.
9. All distributions of payments for Shares by the Escrow Agent to
Investors or to any other person or entity pursuant to this Escrow Agreement
shall be made by check, payable in accordance with Section 3(a) hereof. All
payments by the Escrow Agent to the Company shall be made in immediately
available funds, if and to the extent that the funds on deposit with the
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Escrow Agent are immediately available at the time of such payment.
10. The Company may at any time assign its right to receive up
to 85% of the amount of the Escrow Funds attributable to Non-Plan Investors as
security for borrowings from third parties, provided that any such assignment
shall be subordinate to the rights of Investors to receive, and no such
assignment shall in any way prevent the return to Investors of, the Escrow Funds
and Escrow Interest in accordance with Sections 3(a) and (b) hereof. The Escrow
Agent shall accept and acknowledge instructions for the payment of the Escrow
Funds in accordance with the provisions of Section 3(a) hereof designating any
such third party for such payment. It is specifically understood that, in order
for the parties hereto to change such instructions pursuant to this Escrow
Agreement, any party that has been assigned the right to receive Escrow Funds
shall join in the execution of an agreement changing such instructions or shall
otherwise give its written consent to such agreement. The Escrow Agent may rely
on any instructions it receives pursuant to this Section 10 until it receives
properly executed instructions which specifically supersede such previously
received instructions. The Company hereby agrees not to submit instructions
altering previously submitted instructions concerning payment of Escrow Funds to
third parties unless such new instructions are signed or consented to in writing
by such third party. All reasonable expenses incurred by the Escrow Agent as a
result of any such assignment referred to above shall be paid by the Company.
11. All notices, requests, demands, communications and
instructions required or desired to be given under this Escrow Agreement shall
be in writing and shall be deemed to be duly given if delivered personally or
sent by registered or certified U.S. mail, postage prepaid, return receipt
requested, to the following addresses:
To the Escrow Agent:
The United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxx Xxxxxxx
To the Company:
Corporate Property Associates 14 Incorporated
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Vice President
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To the Sales Agent:
Xxxxx Financial Corporation
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: H. Xxxxxxxx Xxxxx, President
or to such other address and to the attention of such other person as any of the
above may have furnished to the other parties by personal delivery or registered
or certified mail, return receipt requested.
12. The Company shall deliver to the Escrow Agent a certificate
of the secretary of the Company as to (a) the authority of certain officers
thereof to act on behalf of the Company both in connection with this Escrow
Agreement and (b) the incumbency and signatures of such officers, and the Escrow
Agent may act in reliance on such certificate and upon the instructions or
directions, or any other certificate, communication or other document, given to
it in accordance with the terms of this Escrow Agreement by the Company through
a person authorized so to act in such certificate.
13. The Sales Agent shall deliver to the Escrow Agent a
certificate of the secretary or any assistant secretary of the Sales Agent as to
(a) the authority of certain officers thereof to act on behalf of the Sales
Agent in connection with this Escrow Agreement and (b) the incumbency and
signatures of such officers, and the Escrow Agent may act in reliance on such
certificate and upon the instructions or directions, or any other certificate,
communication or other document, given to it in accordance with the terms of
this Escrow Agreement by the Sales Agent through a person authorized so to act
in such certificate.
14. Nothing in this Escrow Agreement is intended to or shall
confer upon anyone other than the parties hereto any legal or equitable right,
remedy or claim. This Escrow Agreement shall be deemed to be an agreement made
under the laws of the State of New York and for all purposes shall be construed
and enforced in accordance with and governed by the laws of New York applicable
to agreements made and to be wholly performed within such State. Notwithstanding
the foregoing, each party recognizes that each Investor is a third party
beneficiary of this Escrow Agreement. Each of the other parties hereto hereby
irrevocably consents to the jurisdiction of the courts of the State of New York
and of any Federal court located in such state in connection with any action,
suit or other proceeding arising out of or relating to this Escrow Agreement or
any action taken or omitted hereunder, and waives personal service of any
summons, complaint or other process and agrees that the service thereof may be
made by certified or registered mail directed to such person at such person's
address for purposes of notices
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hereunder. Should the person so served fail to appear or answer within the time
prescribed by law, that person shall be deemed in default and judgment may be
entered by the Escrow Agent against that person for the amount of other relief
as demanded in any summons, complaint or other process so served.
15. This Escrow Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute but one and the same instrument.
16. This agreement shall terminate on the final disposition of
the monies and property held in escrow hereunder, provided that the rights of
the Escrow Agent and the obligations of the other parties hereto under Sections
5, 7 and 14 hereof shall survive the termination hereof.
17. The Escrow Agent represents and warrants to the Company and
the Sales Agent that it satisfies the requirements of Section 3(a)(6) of the
Securities Exchange Act of 1934, as amended, and the requirements of NASD Notice
to Members 84-7 with respect to qualifications of escrow agents.
18. (a) All amounts referred to herein are expressed in United
States Dollars and all payments by the Escrow Agent shall be made in such
dollars.
(b) If, for any reasons, the escrow deposit is not received by
the Escrow Agent as contemplated herein, the other parties hereto shall
reimburse the Escrow Agent for all expenses, including counsel fees and
disbursements, paid or incurred by it, in making preparations for providing the
services contemplated hereby.
(c) This Escrow Agreement shall be construed without regard to
any presumption or other rule requiring construction against the party causing
such instrument to be drafted. The terms "hereby", "hereof", "hereto",
"hereunder" and any similar terms, as used in this agreement, refer to this
agreement in its entirety and not only to the particular portion of this
agreement where the term is used. The word "person" shall mean any natural
person, partnership, corporation, government and any other form of business or
legal entity. All words or terms used in this agreement, regardless of the
number or gender in which they are used, shall be deemed to include any other
number and any other gender as the context may require. This agreement shall not
be admissible in evidence to construe the provision of any prior agreement. The
rule of ejusdem generis shall not be applicable herein to limit a general
statement, which is followed by or referable to an enumeration of specific
matters, to matters similar to the matters specifically mentioned.
(d) This agreement and the rights and obligations hereunder of
any party hereto may be assigned by those parties
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only to a successor to the relevant party's entire business with the prior
written consent of all other parties. This agreement shall be binding upon and
inure to the benefit of each party's respective successors, heirs and permitted
assigns. No other person shall acquire or have any rights under or by virtue of
this agreement. This Escrow Agreement constitutes the entire agreement of the
parties and supersedes all other prior agreements or understandings, written or
oral, among the parties with respect to the subject matter hereof and may not be
waived or modified, in whole or in part, except by a writing signed by each of
the parties hereto. No waiver of any provision of this Escrow Agreement in any
instance shall be deemed to be a waiver of the same or any other provision in
any other instance. Failure of any party to enforce any provision of this Escrow
Agreement shall not be construed as a waiver of its rights under such provision.
(e) The representations and warranties contained in this
agreement shall survive the execution and delivery hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year first above written.
CORPORATE PROPERTY ASSOCIATES 14
INCORPORATED
By: _____________________________________
Name:
Title:
THE UNITED STATES TRUST COMPANY OF
NEW YORK
By: _____________________________________
Name:
Title:
XXXXX FINANCIAL CORPORATION
By: _____________________________________
Name:
Title:
Exhibit Index
Exhibit A - Fee Schedule
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EXHIBIT A
Fee Schedule
Initial Fee $2,500.00
Covers acceptance of appointment as Escrow
Agent, including complete study of drafts of
Escrow Agreement and all supporting documents
in connection therewith, conferences until
final Agreement is agreed upon, execution of
final Agreement, deposit of funds into the
Plan Subaccount and the Non-Plan Subaccount
and maintenance and custody thereof.
Annual Administration Fee: $3,500.00
(Payable each year in advance)
Payment by check, per check $ 1.25
Wire transfer of funds, per wire $ 25.00
Preparation and filing appropriate
federal tax forms, per 1099 $ 1.00
NOTE:
Charges for any services not specifically covered in this schedule will be
billed commensurate with the services rendered. This schedule reflects charges
which are now in effect for the normal and regular services of the Escrow Agent
and are minimal only, subject to modification where unusual conditions or
requirements prevail, and does not include counsel fees or expenses and
disbursements, which will be billed at cost. The Escrow Agent does not
anticipate incurring counsel expense unless an unusual problem or disagreement
needing legal interpretation should arise.
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