AMENDED AND RESTATED ESCROW AGREEMENT
Exhibit 10.3
AMENDED
AND RESTATED
ESCROW AGREEMENT
ESCROW AGREEMENT
UMB Bank, N.A.
0000 Xxxxx Xxxx., 0xx Xxxxx
Mail Stop: 1020409
Xxxxxx Xxxx, XX 00000
0000 Xxxxx Xxxx., 0xx Xxxxx
Mail Stop: 1020409
Xxxxxx Xxxx, XX 00000
Re:
Xxxx Real Estate Income Strategy (Daily NAV), Inc.
Ladies and Gentlemen:
XXXX REAL ESTATE INCOME STRATEGY (DAILY NAV), INC., a Maryland corporation (the “Company”), will issue in
a public offering (the “Offering”) shares of its common stock (the “Stock”)
pursuant to a registration statement on Form S-11 filed by the Company with the Securities and
Exchange Commission. Xxxx Capital Corporation, an Arizona corporation (the “Dealer
Manager”), will act as dealer manager for the offering of the Stock. The Company is entering
into this agreement, which amends and restates that certain Escrow
Agreement between the parties, dated as of September 21, 2011, to set forth the terms on which UMB BANK, N.A. (the “Escrow Agent”),
will, except as otherwise provided herein, hold and disburse the proceeds from subscriptions for
the purchase of the Stock in the Offering until such time as: (i) the Company has received subscriptions for at least
$10,000,000 in shares of Stock in the Offering (the “Required Capital”); and (ii) in the
case of subscriptions received from residents of Pennsylvania (“Pennsylvania Subscribers”),
the Company has received subscriptions for Stock resulting in
total minimum capital raised of $200,000,000 (the “Pennsylvania Required Capital”).
The Company hereby appoints UMB Bank, N.A. as Escrow Agent for purposes of holding the proceeds
from the subscriptions for the Stock, on the terms and conditions hereinafter set forth:
1. Until such time as the Company has received subscriptions for Stock resulting in total
minimum capital raised equal to the Required Capital and such funds are disbursed from the Escrow
Account (as defined below) in accordance with paragraph 3(a) hereof, persons subscribing to
purchase the Stock (the “Subscribers”) will be instructed by the Dealer Manager or any
soliciting dealers to remit the purchase price in the form of checks, drafts, wires, Automated
Clearing House (ACH) or money orders (hereinafter “instruments of payment”) payable to the
order of “UMB Bank, N.A., Agent for Xxxx Real Estate Income Strategy (Daily NAV), Inc.” or a recognizable
contraction or abbreviation thereof, including but not limited to,
“UMB Bank, N.A., f/b/x Xxxx REIT”. After subscriptions are received resulting in total minimum
capital raised equal to the Required Capital and such funds are disbursed from the Escrow Account
in accordance with paragraph 3(a) hereof, subscriptions shall continue to be so submitted unless
otherwise instructed by the Dealer Manager. Any checks, drafts or money orders received made
payable to a party other than the Escrow Agent (or after the Required Capital is received, made
payable by a Subscriber other than a Pennsylvania Subscriber to a party other than the party
designated by the Dealer Manager) shall be returned promptly to the soliciting dealer who submitted
the check, draft or money order. Within one (1) business day after receipt of instruments of
payment from the Offering, the Dealer Manager, the Company or their respective agents will (a) send
to the Escrow Agent: each Subscriber’s name, address, number of shares purchased, and purchase
price remitted, and (b) Escrow Agent will deposit the instruments of payment from such Subscribers
into an interest-bearing deposit account entitled “Escrow Account for the Benefit of Subscribers
for Common Stock of Xxxx Real Estate Income Strategy (Daily NAV),
Inc.” (the “Escrow Account”), which deposit shall occur within one (1) business day after
the Escrow Agent’s receipt of the instrument of payment, until such Escrow Account has closed
pursuant to paragraph 3(a) hereof. The Escrow Agent agrees to maintain the funds contributed by
the Pennsylvania Subscribers in a manner in which they may be separately accounted for on the
records of Escrow Agent so that the requirements of Section 3 of this Agreement can be met. The
Escrow Account will be established and maintained in such a way as to permit the interest income
calculations described in paragraph 7. The Company shall, and shall cause its agents to, cooperate
with the Escrow Agent in separately accounting for Pennsylvania subscription proceeds in the Escrow
Account, and the Escrow Agent shall be entitled to rely upon information provided by the Company or
its agents in this regard.
2. The Escrow Agent agrees to promptly process for collection the instruments of payment upon
deposit into the Escrow Account. Deposits shall be held in the Escrow Account until such funds are
disbursed in accordance with paragraph 3 hereof. Prior to disbursement of the funds deposited in
the Escrow Account, such funds shall not be subject to claims by creditors of the Escrow Agent, the
Company, the Dealer Manager, any soliciting dealer or any of their respective affiliates. If any
of the instruments of payment are returned to the Escrow Agent for nonpayment prior to receipt of
the Required Capital or, in connection with subscriptions from Pennsylvania Subscribers, the
Pennsylvania Required Capital, the Escrow Agent shall promptly notify the Dealer Manager and the
Company in writing via mail, email or facsimile of such nonpayment, and is authorized to debit the
Escrow Account in the amount of such returned payment as well as any interest earned on the amount
of such payment.
3. (a) (i) Subject to the provisions of subparagraphs 3(b)-3(g) below, once the collected
funds in the Escrow Account are an amount equal to or greater than the Required Capital, the Escrow
Agent shall promptly notify the Company and, upon receiving written instruction from the Company,
(A) promptly disburse to the Company, by check, ACH or wire transfer, the funds in the Escrow
Account representing the gross purchase price for the Stock less any funds received from
Pennsylvania Subscribers, and (B) within five business days after the first business day of the
succeeding month, disburse to the Company any interest thereon pursuant to the provisions of
subparagraph 3(g). After such time the Escrow Account shall remain open and the Company shall
continue to cause subscriptions for the Stock to be deposited therein until the Company informs the
Escrow Agent in writing to cease depositing subscriptions received from Subscribers other than
Pennsylvania Subscribers, and thereafter any subscription documents and instruments of payment
received by the Escrow Agent from Subscribers other than Pennsylvania Subscribers shall be
forwarded directly to the Company. For purposes of this Agreement, the term “collected funds”
shall mean all funds received by the Escrow Agent that have cleared normal banking channels and are
in the form of cash or cash equivalent. After the satisfaction of the aforementioned provisions
of this paragraph 3(a)(i), in the event the Company receives subscriptions made payable to the
Escrow Agent (other than subscriptions from Pennsylvania Subscribers), such subscription proceeds
may continue to be received in this account generally, but to the extent such proceeds shall not be
subject to escrow due to the satisfaction of the aforementioned provisions of this paragraph
3(a)(i), such proceeds are not subject to this Escrow Agreement and at the instruction of the
Company to the Escrow Agent shall be transferred from the Escrow Account or deposited directly
into, as the case may be, a commercial deposit account in the name of the Company (the “Deposit
Account”) that has been previously established by the Company, unless otherwise directed by the
Company. The Company hereby covenants and agrees that it shall do all things necessary in order to
establish the Deposit Account, which, if established with the Escrow Agent, shall be subject to the
Escrow Agent’s usual account guidelines and regulations, prior to its use. No provisions of this
Escrow Agreement shall apply to the Deposit Account.
(ii) regardless of any release of funds from the Escrow Account from Subscribers other than
Pennsylvania Subscribers, the Company, the Dealer Manager and soliciting dealers shall continue to
forward instruments of payment received from Pennsylvania Subscribers for deposit into the
Escrow
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Account to the Escrow Agent until such time as the Company notifies the Escrow Agent in
writing that total subscription proceeds (including the amount then in the Escrow Account from
Pennsylvania Subscribers) equal or exceed the Pennsylvania Required Capital. Promptly after
receipt by the Escrow Agent of such notice, the Escrow Agent shall (A) disburse to the Company, by
check, ACH or wire transfer, the funds then in the Escrow Account representing the gross purchase
price for the Stock from Pennsylvania Subscribers, and (B) within five business days after the
first business day of the succeeding month, disburse to the Company any interest thereon pursuant
to the provisions of subparagraph 3(g). Following such disbursements, the Escrow Agent shall close
the Escrow Account, and thereafter any instruments of payment received by the Escrow Agent from
Pennsylvania Subscribers shall not be subject to this Escrow Agreement and shall be deposited
directly into the Deposit Account, as instructed in writing by the Company pursuant to subparagraph
3(a)(i) above.
(b) Within four business days of the close of business on the date that is 180 days following
commencement of the Offering (the “Expiration Date”), the Escrow Agent shall promptly
notify the Company if it is not in receipt of evidence of deposits for the purchase of Stock
providing for aggregate offering proceeds that equal or exceed the
Required Capital and the Offering will abruptly terminate. Within ten days following
the date of such notice, the Escrow Agent shall promptly return directly to each Subscriber the
collected funds deposited in the Escrow Account on behalf of such Subscriber (unless earlier
disbursed in accordance with paragraph 3(c)), or shall return the instruments of payment delivered,
but not yet processed for collection prior to such time, in either case, together with interest
income (which interest shall be paid within five business days after the first business day of the
succeeding month) in the amounts calculated pursuant to paragraph 7 for each Subscriber at the
address provided by the Dealer Manager or the Company to the Escrow Agent, which the Escrow Agent
shall be entitled to rely upon. Notwithstanding the above, in the event the Escrow Agent has not
received an executed IRS Form W-9 at such time for each Subscriber, the Escrow Agent shall remit an
amount to the Subscribers in accordance with the provisions hereof, withholding the applicable
percentage for backup withholding required by the Internal Revenue Code, as then in effect, from
any interest income on subscription proceeds (determined in accordance with paragraph 7)
attributable to each Subscriber for whom the Escrow Agent does not possess an executed IRS Form
W-9. However, the Escrow Agent shall not be required to remit any payments until the Escrow Agent
has collected funds represented by such payments.
(c) Notwithstanding subparagraphs 3(a) and 3(b) above, if the Escrow Agent is not in receipt
of evidence of subscriptions accepted on or before the close of business on such date that is 120
days after the effective date of the Offering (the Company will notify the Escrow Agent of the
effective date of the Offering) (the “Initial Escrow Period”), and instruments of payment
dated not later than that date, for the purchase of Stock providing for total purchase proceeds
that equal or exceed the Pennsylvania Required Capital, the Escrow
Agent shall promptly notify the Company. Thereafter, the Company shall send to each Pennsylvania
Subscriber by certified mail within ten (10) calendar days after the end of the Initial Escrow
Period a notification in the form of Exhibit A. If, pursuant to such notification, a Pennsylvania
Subscriber requests the return of his or her subscription funds within ten (10) calendar days after
receipt of the notification (the “Request Period”), the Escrow Agent shall, within fifteen
(15) calendar days after receipt of such request, refund directly to each Pennsylvania Subscriber
the collected funds deposited in the Escrow Account on behalf of such Pennsylvania Subscriber or
shall return the instruments of payment delivered, but not yet processed for collection prior to
such time, to the address provided by the Dealer Manager or the Company or their respective agents
to the Escrow Agent, which the Escrow Agent shall be entitled to rely upon, together with interest
income (which interest shall be paid within five business days after the first business day of the
succeeding month) in the amounts calculated pursuant to paragraph 7. Notwithstanding the above, if
the Escrow Agent has not received an executed IRS Form W-9 is for such Pennsylvania
Subscriber, the
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Escrow Agent shall thereupon remit an amount to such Pennsylvania Subscriber in
accordance with the provisions hereof, withholding the applicable percentage for backup withholding
required by the Internal Revenue Code, as then in effect, from any interest income earned on
subscription proceeds (determined in accordance with paragraph 7) attributable to such Pennsylvania
Subscriber. However, the Escrow Agent shall not be required to remit such payments until the
Escrow Agent has collected funds represented by such payments.
(d) The subscription funds of Pennsylvania Subscribers who do not request the return of their
subscription funds within the Request Period shall remain in the Escrow Account for successive
120-day escrow periods (a “Successive Escrow Period”), each commencing automatically upon
the termination of the prior Successive Escrow Period, and the Company and Escrow Agent shall
follow the notification and payment procedure set forth in subparagraph 3(c) above with respect to
the Initial Escrow Period for each Successive Escrow Period until the occurrence of the earliest of
(i) the Expiration Date (if the Company has not received the Required Capital on or before the
Expiration Date), (ii) the receipt and acceptance by the Company of subscriptions for the purchase
of Stock with total purchase proceeds that equal or exceed the Pennsylvania Required Capital and
the disbursement of the funds from Pennsylvania Subscribers from the Escrow Account on the terms
specified herein, or (iii) all funds held in the Escrow Account from Pennsylvania Subscribers
having been returned to the Pennsylvania Subscribers in accordance with the provisions hereof.
(e) In the event that, prior to the Expiration Date, a Subscriber notifies the Company or the
Dealer Manager that the Subscriber has elected to withdraw his or her subscription for Stock, the
Company or Dealer Manager, as the case may be, shall notify the Escrow Agent of the Subscriber’s
election. Promptly following its receipt of such notice, the Escrow Agent shall return directly to
such Subscriber the collected funds deposited in the Escrow Account on behalf of such Subscriber,
or shall return the instruments of payment delivered, but not yet processed for collection prior to
such time, in either case, together with interest income (which interest shall be paid within five
business days after the first business day of the succeeding month) in the amounts calculated
pursuant to paragraph 7 for each such Subscriber at the address provided by the Dealer Manager or
the Company to the Escrow Agent, which the Escrow Agent shall be entitled to rely upon.
Notwithstanding the above, in the event the Escrow Agent has not received an executed IRS Form W-9
at such time for any such Subscriber, the Escrow Agent shall remit an amount to such Subscriber in
accordance with the provisions hereof, withholding the applicable percentage for backup withholding
required by the Internal Revenue Code, as then in effect, from any interest income earned on
subscription proceeds (determined in accordance with paragraph 7) attributable to such Subscriber.
However, the Escrow Agent shall not be required to remit such payments until the Escrow Agent has
collected funds represented by such payments.
(f) If the Company rejects any subscription for which the Escrow Agent has collected funds,
the Escrow Agent shall, upon the written request of the Company, promptly issue a refund to the
rejected Subscriber at the address provided by the Dealer Manager or the Company, which the Escrow
Agent shall be entitled to rely upon. If the Company rejects any subscription for which the Escrow
Agent has not yet collected funds but has submitted the Subscriber’s check for collection, the
Escrow Agent shall promptly return the funds in the amount of the Subscriber’s check to the
rejected Subscriber, at the address provided by the Dealer Manager or the Company or their
respective agents, which the Escrow Agent shall be entitled to rely upon, after such funds have
been collected. If the Escrow Agent has not yet submitted a rejected Subscriber’s check for
collection, the Escrow Agent shall promptly remit the Subscriber’s check directly to the
Subscriber.
(g) At any time after funds are disbursed upon the Company’s acceptance of subscriptions
pursuant to subparagraph 3(a) above, on the fifth business day following the first business day of
the next
succeeding month following the date of such acceptance, the Escrow Agent shall promptly
provide
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directly to the Company the amount of the interest payable to the Company. However, the
Escrow Agent shall not be required to remit any payments until the Escrow Agent has collected the
funds represented by such payments.
In the event that instruments of payment are returned for nonpayment, the Escrow Agent is
authorized to debit the Escrow Account in accordance with paragraph 2 hereof.
4. The Escrow Agent shall provide to the Company monthly statements (or more frequently as
reasonably requested by the Company) which include, without limitation, if such amounts are not
available to the Company at least daily pursuant to the “TrustDirect” program, the account balance
in the Escrow Account, the account balance of the funds in the Escrow Account from Pennsylvania
Subscribers, and the activity in the Escrow Account and, separately, the activity involving
Pennsylvania Subscribers since the last report. The Escrow Agent will provide access to its
“TrustDirect” program to allow the Company to view account balances for the Escrow Account and the
funds in the Escrow Account from Pennsylvania Subscribers at any time.
5. Prior to the disbursement of funds deposited in the Escrow Account in accordance with the
provisions of paragraph 3 hereof, the Escrow Agent shall invest all of the funds deposited as well
as earnings and interest derived therefrom in the Escrow Account in the “Short-Term Investments”
specified below at the written direction of the Company, unless the costs to the Company for the
making of such investment are reasonably expected to exceed the anticipated interest earnings from
such investment in which case the funds and interest thereon shall remain in the Escrow Account
until the balance in the Escrow Account reaches the minimum amount necessary for the anticipated
interest earnings from such investment to exceed the costs to the Company for the making of such
investment, as determined by the Company based upon applicable interest rates.
“Short-Term Investments” include obligations of, or obligations guaranteed by, the United
States government or bank money-market accounts or certificates of deposit of national or state
banks that have deposits insured by the Federal Deposit Insurance Corporation (including
certificates of deposit of any bank acting as a depository or custodian for any such funds) which
mature on or before the Expiration Date, unless such instrument cannot be readily sold or otherwise
disposed of for cash by the Expiration Date without any dissipation of the offering proceeds
invested. Without limiting the generality of the foregoing, Exhibit B hereto sets forth
specific Short-Term Investments that shall be deemed permissible investments hereunder.
The following securities are not permissible investments:
(a) money market funds;
(b) corporate equity or debt securities;
(c) repurchase agreements;
(d) bankers’ acceptances;
(e) commercial paper; and
(f) municipal securities.
It is hereby expressly agreed and stipulated by the parties hereto that the Escrow Agent shall not
be required to exercise any discretion hereunder and shall have no investment or management
responsibility and, accordingly, shall have no duty to, or liability for its failure to, provide
investment recommendations or investment advice to the parties hereto. It is the intention of the
parties hereto that the Escrow Agent shall never be required to use, advance or risk its own funds
or otherwise incur financial liability in the performance of any of its duties or the exercise of
any of its rights and powers hereunder.
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6. The Escrow Agent is entitled to rely upon written instructions received from the Company or the
Dealer Manager or their respective agents, unless the Escrow Agent has actual knowledge that such
instructions are not valid or genuine; provided that, if in the Escrow Agent’s opinion, any
instructions from the Company or the Dealer Manager or their respective agents are unclear, the
Escrow Agent may request clarification from the Company or the Dealer Manager or their respective
agents, as applicable, prior to taking any action, and if such instructions continue to be unclear,
the Escrow Agent may rely upon written instructions from the Company’s legal counsel in
distributing or continuing to hold any funds. However, the Escrow Agent shall not be required to
disburse any funds attributable to instruments of payment that have not been processed for
collection, until such funds are collected and then shall disburse such funds in compliance with
the disbursement instructions from the Company or the Dealer Manager or their respective agents.
7. If (a) the Offering terminates prior to receipt of the Required Capital, (b) one or more
Pennsylvania Subscribers elects to have his or her subscription returned in accordance with
paragraph 3, or (c) one or more Subscribers elects to have his or her subscription returned in
accordance with paragraph 3(e), interest income earned in the Escrow Account on subscription
proceeds deposited in the Escrow Account (the “Escrow Income”) shall be remitted to the
applicable Subscribers at the addresses provided by the Dealer Manager or the Company to the Escrow
Agent, which the Escrow Agent shall be entitled to rely upon, in accordance with paragraph 3 and
without any deductions for escrow expenses. The Company shall reimburse the Escrow Agent for all
escrow expenses. If the Escrow Agent remits interest income pursuant to this Agreement, the Escrow
Agent shall be responsible for any necessary federal tax reporting associated with such income;
provided, however, that the Escrow Agent shall not be responsible for any other tax reporting
associated with this Agreement. The Escrow Agent shall remit all such Escrow Income in accordance
with paragraph 3. If the Company chooses to leave the Escrow Account open to Subscribers other
than Pennsylvania Subscribers after receiving the Required Capital, then it shall make regular
acceptances of such subscriptions therein, but no less frequently than monthly, and the Escrow
Income from the last such acceptance shall be calculated and remitted to the Company pursuant to
the provisions of paragraph 3(g).
8. The Escrow Agent shall receive compensation from the Company as set forth in Exhibit
C attached hereto, which such Exhibit C is hereby incorporated by reference.
9. In performing any of its duties hereunder, the Escrow Agent shall not incur any liability to
anyone for any damages, losses, or expenses, except for willful misconduct, breach of trust, or
gross negligence. Accordingly, the Escrow Agent shall not incur any such liability with respect to
any action taken or omitted (a) in good faith upon advice of the Escrow Agent’s counsel given with
respect to any questions relating to the Escrow Agent duties and responsibilities under this
Agreement, or (b) in reliance upon any instrument, including any written instrument or instruction
provided for in this Agreement, not only as to its due execution and validity and effectiveness of
its provisions but also as to the truth and accuracy of information contained therein, which the
Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by a
proper person or persons and to conform to the provisions of this Agreement.
10. The Company hereby agrees to indemnify and hold the Escrow Agent harmless against any and all
losses, claims, damages, liabilities, and expenses, including reasonable attorneys’ fees and
disbursements, that may be imposed on or incurred by the Escrow Agent in connection with acceptance
of appointment as the Escrow Agent hereunder, or the performance of the duties hereunder, including
any litigation arising from this Agreement or involving the subject matter hereof, except where
such losses, claims, damages, liabilities, and expenses result from willful misconduct, breach of
trust, or gross negligence.
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11. In the event of a dispute between the parties hereto sufficient in the Escrow Agent’s
discretion to justify 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 this
Agreement, together with such legal pleadings as deemed appropriate, and thereupon be discharged
from all further duties and liabilities under this Agreement. In the event of any uncertainty as to
the duties hereunder, the Escrow Agent may refuse to act under the provisions of this Agreement
pending order of a court of competent jurisdiction and shall have no liability to the Company or to
any other person as a result of such action. Any such legal action may be brought in such court,
as the Escrow Agent shall determine to have jurisdiction thereof. The filing of any such legal
proceedings shall not deprive the Escrow Agent of its compensation earned prior to such filing.
12. All communications and notices required or permitted by this Agreement shall be in writing and
shall be deemed to have been given when delivered personally or by messenger or by overnight
delivery service or when received via telecopy or other electronic transmission, in all cases
addressed to the person for whom it is intended at such person’s address set forth below or to such
other address as a party shall have designated by notice in writing to the other party in the
manner provided by this paragraph:
| (a) | if to the Company: | ||
| Xxxx Real Estate Income Strategy (Daily NAV), Inc. 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000 Xxxxxxx, Xxxxxxx 00000 Fax: (000) 000-0000 Attention: D. Xxxx XxXxxxxxxx, Xx. |
|||
| (b) | if to the Dealer Manager: | ||
| Xxxx Capital Corporation 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000 Xxxxxxx, Xxxxxxx 00000 Fax: (000) 000-0000 Attention: Xxxx X. Xxxxx, Esq. |
|||
| (c) | if to the Escrow Agent: | ||
| UMB Bank, N.A. Corporate Trust Department M/S 1020409 0000 Xxxxx Xxxx., 0xx Xxxxx Mail Stop: 1020409 Xxxxxx Xxxx, XX 00000 Attention: Xxxx Xxxxxxx |
Each party hereto may, from time to time, change the address to which notices to it are to be
delivered or mailed hereunder by notice in accordance herewith to the other parties.
13. This Agreement shall be governed by the laws of the State of Arizona as to both interpretation
and performance without regard to the conflict of laws rules thereof.
14. The provisions of this Agreement shall be binding upon the legal representatives, successors,
and assigns of the parties hereto.
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15. The Company and the Dealer Manager hereby acknowledge that UMB Bank, N.A. is serving as Escrow
Agent only for the limited purposes herein set forth, and hereby agree that they will not represent
or imply that, by serving as Escrow Agent hereunder or otherwise, have investigated the
desirability or advisability of investment in the Company or have approved, endorsed, or passed
upon the merits of the Stock or the Company, nor shall they use the name of the Escrow Agent in any
manner whatsoever in connection with the offer or sale of the Stock other than by acknowledgment
that is has agreed to serve as Escrow Agent for the limited purposes herein set forth.
16. This Agreement and any amendment hereto may be executed by the parties hereto in one or more
counterparts, each of which shall be deemed to be an original.
17. Except as otherwise required for subscription funds received from Pennsylvania Subscribers as
provided herein, in the event that the Dealer Manager receives instruments of payment after the
Required Capital has been received and the proceeds of the Escrow Account have been distributed to
the Company, the Escrow Agent is hereby authorized to deposit such instruments of payment within
one (1) business day to any deposit account as directed by the Company. The application of said
funds into a deposit account or to forward such funds directly to the Company, in either case
directed by the Company shall be a full acquittance to the Escrow Agent, who shall not be
responsible for the application of said funds thereafter.
18. The Escrow Agent shall be bound only by the terms of this Escrow Agreement and shall not be
bound by or incur any liability with respect to any other agreements or understanding between any
other parties, whether or not the Escrow Agent has knowledge of any such agreements or
understandings.
19. Indemnification provisions set forth herein shall survive the termination of this Agreement.
20. In the event that any part of this Agreement is declared by any court or other judicial or
administrative body to be null, void, or unenforceable, said provision shall survive to the extent
it is not so declared, and all of the other provisions of this Agreement shall remain in full force
and effect.
21. Unless otherwise provided in this Agreement, final termination of this Escrow 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 pursuant to paragraph 3 hereof or (b) to a successor escrow agent upon written
instructions from the Company.
22. Neither the Escrow Agent, nor its agents, shall have responsibility for accepting, rejecting,
or approving subscriptions. 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. The Company shall provide a copy of each
subscription check in order that the Escrow Agent, or its agent, may perform such OFAC search.
23. This Agreement shall not be modified, revoked, released, or terminated unless reduced to
writing and signed by all parties hereto, subject to the following paragraph.
If, at any time, any attempt is made to modify this Agreement in a manner that would increase the
duties and responsibilities of the Escrow Agent or to modify this Agreement in any manner which the
Escrow Agent shall deem undesirable, or at any other time, the Escrow Agent may resign by providing
written notice to the Company and until (a) the acceptance by a successor escrow agent as shall be
appointed by the Company; or (b) thirty (30) days after such written notice has been given,
whichever occurs sooner,
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the Escrow Agent’s only remaining obligation shall be to perform its
duties hereunder in accordance with the terms of the Agreement.
24. The Escrow Agent may resign at any time from its obligations under this Escrow Agreement by
providing written notice to the Company. Such resignation shall be effective on the date specified
in such notice, which shall be not less than thirty (30) days after such written notice has been
given. The Escrow Agent shall have no responsibility for the appointment of a successor escrow
agent.
25. The Escrow Agent may be removed for cause by the Company by written notice to the Escrow Agent
effective on the date specified in such written notice. The removal of the Escrow Agent shall not
deprive the Escrow Agent of its compensation earned prior to such removal.
26. The Company shall provide to Escrow Agent any documentation and information reasonably
requested by the Escrow Agent for it to comply with the USA Patriot Act of 2001, as amended from
time to time.
27. If any state securities administrator requires the Company to cause the Escrow Agent to notify
such administrator when the Escrow Agent releases the funds in the Escrow Account to the Company,
the Company shall notify the Escrow Agent of such requirement, and provide the Escrow Agent with
the contact information for such administrator. The Escrow Agent agrees to notify such
administrator in writing when the Escrow Agent releases the funds in the Escrow Account to the
Company. The Escrow Agent agrees to permit state securities administrators to inspect the Escrow
Agent’s records related to the Escrow Account at any reasonable time at the location where the
records are located, and to copy any records that are inspected.
[Signature page follows]
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Agreed to
as of the 21st day of
November, 2011.
XXXX REAL ESTATE INCOME STRATEGY (DAILY NAV), INC. |
||||
| By: | /s/ Xxxxxxxxxxx X. Xxxx | |||
| Xxxxxxxxxxx X. Xxxx | ||||
| President and Chief Executive Officer | ||||
| XXXX CAPITAL CORPORATION |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx | ||||
| President, Secretary and Treasurer | ||||
The terms and conditions contained above are hereby accepted and agreed to by:
UMB Bank, N.A. as Escrow Agent
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
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EXHIBIT A
[Form of Notice to Pennsylvania Subscribers]
You have tendered a subscription to purchase
shares of common stock of Xxxx Real Estate Income
Strategy (Daily NAV), Inc. (the “Company”). Your subscription is currently being held in escrow. The guidelines
of the Pennsylvania Securities Commission do not permit the Company to accept subscriptions from
Pennsylvania residents until an aggregate of $200,000,000 of gross offering proceeds have been
received by the Company. The Pennsylvania guidelines provide that until this minimum amount of
offering proceeds is received by the Company, every 120 days during the offering period
Pennsylvania subscribers may request that their subscriptions be returned.
If you wish to continue your subscription in escrow until the Pennsylvania minimum
subscription amount is received, nothing further is required.
If you wish to terminate your subscription for the Company’s common stock and have your
subscription returned please so indicate below, sign, date, and return to the Escrow Agent, UMB
Bank, N.A.
I hereby terminate my prior subscription to purchase shares of
common stock of Xxxx Real Estate
Income Strategy (Daily NAV), Inc. and request the return of my subscription funds. I certify to Xxxx Real Estate
Income Strategy (Daily NAV), Inc. that I am a resident of Pennsylvania.
| Signature: | ||||
| Name: | ||||
| (please print) | ||||
| Date: | ||||
Please send the subscription refund to:
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EXHIBIT B
PERMISSIBLE ESCROW INVESTMENTS
| (i) | Bank accounts; | |
| (ii) | Bank money-market accounts; | |
| (iii) | Short time certificates of deposit issued by a bank; and | |
| (iv) | Short-term securities issued or guaranteed by the U.S. government |
