ESCROW AGREEMENT
EXHIBIT 4.4
THIS ESCROW AGREEMENT (this “Escrow Agreement”), dated as of February 9, 2010 is entered into
by and among Healthcare Trust of America, Inc. (the “Company”), Realty Capital Securities, LLC (the
“Dealer Manager”) and DST Systems, Inc., as escrow agent (the “Escrow Agent”).
WHEREAS, the Company intends to issue in a public offering (the “Offering”) shares of its
common stock, par value $0.01 per share (the “Shares”), with anticipated gross proceeds of up to
$2,000,000,000 to investors (the “Investors”) pursuant to a Registration Statement on Form S-11
filed by the Company with the Securities and Exchange Commission (the “SEC”);
WHEREAS, the Company has entered into that certain Exclusive Dealer Manager Agreement, dated
as of April 3, 2009, with the Dealer Manager, as amended (the “Dealer Manager Agreement”), pursuant
to which the Dealer Manager is authorized to solicit and collect subscription funds on behalf of
the Company;
WHEREAS, the Company desires to deposit funds paid by the Investors with the Escrow Agent, to
be held for the benefit of the Investors and the Company; and
WHEREAS, the Escrow Agent is willing to accept the appointment as escrow agent upon the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Escrow of Investor Funds. The Company shall establish an escrow account with the Escrow Agent
(the “Escrow Account”). All funds received from Investors in payment for the Shares (“Investor
Funds”) will be delivered to the Escrow Agent by the Dealer Manager within one (1) business day
following the day upon which such Investor Funds are received by the Dealer Manager, and shall,
upon receipt of good and collected funds by the Escrow Agent, be retained in the Escrow Account by
the Escrow Agent. During the term of this Escrow Agreement, the Dealer Manager shall cause all
checks received by and made payable to the Company in payment for the Shares to be delivered to the
Escrow Agent for deposit in the Escrow Account. Investor Funds also may be wired directly to the
Escrow Account using wire instructions provided by the Escrow Agent.
2. Concerning the Escrow Agent and the Escrow Account. It is understood and agreed by the Parties
that the Escrow Agent is not a bank, but is the transfer agent for the Company pursuant to the
Agency Agreement, dated as of August 2009 by and between the Company and the Escrow Agent (the
“Agency Agreement”), and that, notwithstanding anything herein to the contrary, but subject to the
immediately following representation and warranty, the Escrow Account will not be a separate
account established solely for that purpose, but will be the same demand deposit account the
Escrow Agent uses in its capacity as transfer agent for the Company for the daily deposit and
withdrawal of funds in the daily course of the transfer agent’s business
on behalf of the Company. The Escrow Agent hereby represents and warrants that it has sufficient
and adequate controls to treat any Investor Funds in the Escrow Account subject to escrow under
Section 4(b) of this Agreement separately from any other moneys in the Escrow Account and to safe
keep such Investor Funds until they are distributed in accordance with the terms of Section 4(b).
3. Identity of Investors. The Dealer Manager shall furnish to the Escrow Agent with each delivery
of Investor Funds, a list of the Investors who have paid for the Shares showing the name, address,
tax identification number, amount of Shares subscribed for and the amount paid and deposited with
the Escrow Agent. This information comprising the identity of Investors shall be provided to the
Escrow Agent in the format set forth on Exhibit A to this Escrow Agreement (the “List of
Investors”). All Investor Funds so deposited shall not be subject to any liens or charges by the
Company or the Escrow Agent, or judgments or creditors’ claims against the Company, until released
to the Company as hereinafter provided. The Company and the Escrow Agent will treat all Investor
information as confidential. The Company understands and agrees that the Company shall not be
entitled to any Investor Funds on deposit in the Escrow Account and no such funds shall become the
property of the Company except when released to the Company as hereinafter provided. The Escrow
Agent shall not be required to accept any Investor Funds which are not accompanied by the
information on the List of Investors, and if such Investor Funds are not accepted by the Escrow
Agent, the Escrow Agent shall return such funds to the Dealer Manager.
4. Disbursement of Funds.
(a) Subject to Section 4(b), the Escrow Agent shall release the Investor Funds to the Company
on daily basis in accordance with the standing joint instructions of the Company and Dealer Manager
to the Escrow Agent.
(b) In the event that the Dealer Manager delivers written notice (a “Stop Notice”) to the
Escrow Agent that the conditions to the Dealer Manager’s obligations under the Dealer Manager
Agreement have not been fulfilled, within one business day of Escrow Agent’s receipt of the Stop
Notice, Escrow Agent shall commence holding the Investor Funds and shall not release the Investor
Funds to the Company in accordance with Section 4(a). Thereafter, the Escrow Agent shall release
the Investor Funds, including all earnings thereon, in accordance with a written direction of the
Dealer Manager either: (i) to the Company or (ii) to the applicable Investor, within ten (10)
business days after receiving such written direction, by first class United States Postal Service
at the address appearing on the List of Investors, or at such other address or federal wire
instructions as are furnished to the Escrow Agent by the Investor in writing, all collected sums
paid by the Investor for Shares and received by the Escrow Agent. In the event the Escrow Agent
has not received such written direction from the Dealer Manager within one hundred eighty (180)
days of its receipt of the Stop Notice, the Escrow Agent may be discharged of its duties and
obligations hereunder upon its deposit, at any time after a written notice is given to all the
parties hereto, of the Investor Funds with a court of competent jurisdiction in the State of New
York. The parties hereto agree to submit to the personal jurisdiction of any such court, and
consent to service of process by hand delivery or mail delivery thereof to their respective
addresses set forth in Section 7 hereof.
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5. Term of Escrow.
(a) The Escrow Agreement shall terminate (subject to the continuing provisions set forth in
subsection 5(b)) upon the conclusion of the Offering, which is expected to occur on or about July
12, 2012 (the “Termination Date”); provided however, that in all events this Escrow Agreement shall
terminate early upon the occurrence of any of the following: (i) the date the Escrow Agent receives
written notice from the Company that it is abandoning the sale of the Shares; (ii) the date the
Escrow Agent receives notice from the SEC or any other federal or state regulatory authority that a
stop or similar order has been issued with respect to the Offering; (iii) the date the Escrow Agent
deposits the Investor Funds with a court of competent jurisdiction in the State of New York
pursuant to Section 4(b) of this Agreement; or (iv) the date the Escrow Agent institutes an
interpleader or similar action. After the Termination Date, the Company shall not deposit, and the
Escrow Agent shall not accept, any additional amounts representing payments by prospective
Investors. The Company may extend the Offering beyond its anticipated expiration, and in such an
event shall provide notice to Escrow Agent that the Termination Date has been extended to the date
set forth in such notice.
(b) In the event that the Escrow Agreement is terminated as set forth in Section 4(a) and
Investor Funds remain in the Escrow Account as of the Termination Date, Escrow Agent may, in its
sole discretion (1) continue to hold the Investor Funds in the Escrow Account until the Dealer
Manager notifies Escrow Agent as to the manner in which the Escrow Account should be liquidated, or
(2) institute an interpleader action in any court of competent jurisdiction to determine the rights
of the parties. So long as any Investor Funds remain in the Escrow Account, the provisions of this
Agreement set forth in Sections 5, 6, 7, 8, 9 and 10 shall remain in full force and effect,
notwithstanding termination of the Escrow Agreement.
6. Duty and Limitation on Liability of the Escrow Agent.
(a) The Escrow Agent’s rights and responsibilities shall be governed solely by this Escrow
Agreement. Neither the Offering document, nor any other agreement or document shall govern the
Escrow Agent even if such other agreement or document is referred to herein, is deposited with, or
is otherwise known to, the Escrow Agent.
(b) The Escrow Agent shall be under no duty to determine whether the Company is complying with
the requirements of the Offering or applicable securities or other laws in tendering the Investor
Funds to the Escrow Agent. The Escrow Agent shall not be responsible for, or be required to
enforce, any of the terms or conditions of any Offering document or other agreement between the
Company and any other party.
(c) The Escrow Agent may conclusively rely upon and shall be fully protected in acting upon
any statement, certificate, notice, request, consent, order or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties. The Escrow Agent
shall have no duty or liability to verify any such statement, certificate, notice, request,
consent, order or other document. Upon or before the execution of this Escrow Agreement, the
Company and the Dealer Manager shall deliver to the Escrow Agent the
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Certificate as to Authorized Signatures set forth in Exhibit B to this Escrow Agreement.
(d) The Escrow Agent shall be under no obligation to institute and/or defend any action, suit
or proceeding in connection with this Escrow Agreement unless first indemnified to its
satisfaction.
(e) The Escrow Agent may consult counsel of its own choice with respect to any question
arising under this Escrow Agreement and the Escrow Agent shall not be liable for any action taken
or omitted in good faith upon the advice of such counsel.
(f) The Escrow Agent shall not be liable for any action taken or omitted by it except to the
extent that a court of competent jurisdiction determines that the Escrow Agent’s willful misconduct
was the primary cause of loss.
(g) The Escrow Agent is acting solely as escrow agent hereunder and owes no duties, covenants
or obligations, fiduciary or otherwise, to any person by reason of this Escrow Agreement, except as
otherwise explicitly set forth in this Escrow Agreement, and no implied duties, covenants or
obligations, fiduciary or otherwise, shall be read into this Escrow Agreement against the Escrow
Agent.
(h) In the event of any disagreement between any of the parties to this Escrow Agreement, or
between any of them and any other person, including any Investor, resulting in adverse or
conflicting claims or demands being made in connection with the matters covered by this Escrow
Agreement, or in the event that the Escrow Agent is in doubt as to what action it should take
hereunder, the Escrow Agent may, at its option, refuse to comply with any claims or demands on it,
or refuse to take any other action hereunder, so long as such disagreement continues or such doubt
exists, and in any such event, the Escrow Agent shall not be or become liable in any way or to any
person for its failure or refusal to act, and the Escrow Agent shall be entitled to continue so to
refrain from acting until (i) the rights of all interested parties shall have been fully and
finally adjudicated by a court of competent jurisdiction, or (ii) all differences shall have been
adjudged and all doubt resolved by agreement among all of the interested persons, and the Escrow
Agent shall have been notified thereof in writing signed by all such persons. Notwithstanding the
foregoing, the Escrow Agent may in its discretion obey the order, judgment, decree or levy of any
court, whether with or without jurisdiction and the Escrow Agent is hereby authorized in its sole
discretion to comply with and obey any such orders, judgments, decrees or levies.
(i) The Company hereby irrevocably directs the Escrow Agent that upon the Escrow Agent’s
receipt of a Stop Notice, it shall ignore any notices from the Company regarding or pertaining to
the disposition of moneys in the Escrow Account that is not also signed by the Dealer Manager
notwithstanding any provisions to the contrary in the Agency Agreement and regardless of whether
the Escrow Agent is acting in its capacity as Escrow Agent under the terms of this Agreement or as
transfer agent to the Company under the terms of the Agency Agreement.
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(j) In the event that any controversy should arise with respect to this Escrow Agreement, the
Escrow Agent shall have the right, at its option, to institute an interpleader action in any court
of competent jurisdiction to determine the rights of the parties.
(k) The parties agree that the Escrow Agent had no role in the preparation of the Offering
documents, has not reviewed any such documents, and makes no representations or warranties with
respect to the information contained therein or omitted therefrom.
7. No Escrow Agent Fee. The Escrow Agent shall not be entitled to additional compensation for its
services under this Agreement; provided, however, that in the event that the conditions for the
disbursement of funds under this Escrow Agreement are not fulfilled, or the Escrow Agent renders
any material service not contemplated in this Escrow Agreement, or there is any assignment of
interest in the subject matter of this Escrow Agreement, or any material modification hereof, or if
any material controversy arises hereunder, or the Escrow Agent is made a party to any litigation
relating to this Escrow Agreement, or the subject matter hereof, then the Escrow Agent shall be
reasonably compensated for such extraordinary services and reimbursed for all costs and expenses,
including reasonable attorney’s fees and expenses, occasioned by any delay, controversy, litigation
or event, and the same shall be paid by the Company under and in accordance with the provisions of
Section 6 of the Agency Agreement. The Company’s obligations under this Section 7 shall survive
the resignation or removal of the Escrow Agent and the assignment or termination of this Escrow
Agreement.
8. Notices. All notices, requests, demands, and other communications under this Escrow Agreement
shall be in writing and shall be deemed to have been duly given (a) on the date of service if
served personally on the party to whom notice is to be given, (b) on the day after delivery to
Federal Express or similar overnight courier or the Express Mail service maintained by the United
States Postal Service, or (c) on the fifth day after mailing, if mailed to the party to whom notice
is to be given, by United States Postal Service first class mail, registered or certified, postage
prepaid, and properly addressed, return receipt requested, to the party as follows:
If to the Company:
Xxxxx X. Xxxxxx, Chief Executive Officer
Healthcare Trust of America, Inc.
The Promenade, Suite 440
16427 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Healthcare Trust of America, Inc.
The Promenade, Suite 440
16427 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
with a copy to (which shall not constitute notice):
Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
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If to the Dealer Manager:
Xxxxxx X. Xxxxxx, President
Realty Capital Securities, LLC
Three Xxxxxx Place, Suite 3300
Xxxxxx, XX 00000
Realty Capital Securities, LLC
Three Xxxxxx Place, Suite 3300
Xxxxxx, XX 00000
If to Escrow Agent:
DST Systems, Inc.
000 Xxxx 00xx Xxxxxx, 0xx XX
Xxxxxx Xxxx, XX 00000
Attn: Vice President – Full Service
000 Xxxx 00xx Xxxxxx, 0xx XX
Xxxxxx Xxxx, XX 00000
Attn: Vice President – Full Service
with a copy to (which shall not constitute notice):
DST Systems, Inc.
000 Xxxx 00xx Xxxxxx, 0xx XX
Xxxxxx Xxxx, XX 00000
Attn: General Counsel
000 Xxxx 00xx Xxxxxx, 0xx XX
Xxxxxx Xxxx, XX 00000
Attn: General Counsel
Any party may change its address for purposes of this section by giving the other parties written
notice of the new address in the manner set forth above.
9. Indemnification of Escrow Agent. The Company hereby indemnifies, defends and holds harmless the
Escrow Agent from and against, any and all loss, liability, cost, damage and expense, including,
without limitation, reasonable counsel fees and expenses (including without limitation any
reasonable counsel fees and expenses incurred in any interpleader under Sections 5 or 6(i) of this
Agreement), which the Escrow Agent may suffer or incur by reason of any action, claim or proceeding
brought against the Escrow Agent arising out of or relating in any way to this Escrow Agreement or
any transaction to which this Escrow Agreement relates unless such loss, liability, cost, damage or
expense is finally determined by a court of competent jurisdiction to have been primarily caused by
the willful misconduct of the Escrow Agent. The terms of this Section 8 shall survive the
assignment or termination of this Escrow Agreement and the resignation or removal of the Escrow
Agent.
10. Resignation. The Escrow Agent may resign upon thirty (30) days’ advance written notice to the
Company and the Dealer Manager. If a successor escrow agent is not appointed within the thirty
(30) day period following such notice, the Escrow Agent may petition any court of competent
jurisdiction to name a successor escrow agent or interplead the Investor Funds with such court,
whereupon the Escrow Agent’s duties hereunder shall terminate.
11. Successors and Assigns. Except as otherwise provided in this Escrow Agreement, no party hereto
shall assign this Escrow Agreement or any rights or obligations hereunder without the prior written
consent of the other parties hereto and any such attempted assignment without such prior written
consent shall be void and of no force and effect. This Escrow Agreement shall
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inure to the benefit of and shall be binding upon the successors and permitted assigns of the
parties hereto.
12. Governing Law; Jurisdiction. This Escrow Agreement shall be construed, performed, and enforced
in accordance with, and governed by, the internal laws of the State of New York, without giving
effect to the principles of conflicts of laws thereof. Notwithstanding the foregoing, each of the
Parties hereto hereby irrevocably and unconditionally: (i) consents and submits to the exclusive
jurisdiction of the courts of the State of Missouri and of the United States of America located in
Xxxxxxx County, Missouri, for any actions, suits or proceedings arising out of or relating to this
Agreement; (ii) agrees that service of any process, summons, notice or document by U.S. registered
mail to the attention of the General Counsel at the address set forth above shall be effective
service of process for any actions, suit or proceeding brought against it in any such court: (iii)
waives any objection to the laying of venue in any action, suit or proceeding arising out of this
Agreement, or the transactions contemplated hereby, in the courts of the State of Missouri or of
the United States of America located in Xxxxxxx County, Missouri; and (iv) waives any claim and
agrees not to plead or claim in any such court that any such action, suit or proceeding is brought
in an inconvenient forum.
13. Severability. In the event that any part of this Escrow 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 Escrow
Agreement shall remain in full force and effect.
14. Amendments; Waivers. This Escrow Agreement may be amended or modified, and any of the terms,
covenants, representations, warranties, or conditions hereof may be waived, only by a written
instrument executed by the parties hereto, or in the case of a waiver, by the party waiving
compliance. Any waiver by any party of any condition, or of the breach of any provision, term,
covenant, representation, or warranty contained in this Escrow Agreement, in any one or more
instances, shall not be deemed to be nor construed as further or continuing waiver of any such
condition, or of the breach of any other provision, term, covenant, representation, or warranty of
this Escrow Agreement. The Company agrees that any requested waiver, modification or amendment of
this Escrow Agreement shall be consistent with the terms of the Offering.
15. Entire Agreement. This Escrow Agreement contains the entire understanding among the parties
hereto with respect to the escrow contemplated hereby and supersedes and replaces all prior and
contemporaneous agreements and understandings, oral or written, with regard to such escrow.
16. References to Escrow Agent. No printed or other matter in any language (including, without
limitation, the Offering document, any supplement or amendment relating thereto, notices, reports
and promotional material) which mentions the Escrow Agent’s name or the rights, powers, or duties
of the Escrow Agent shall be issued by the Company or on the Company’s behalf unless the Escrow
Agent shall first have given its specific written consent thereto.
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17. Section Headings. The section headings in this Escrow Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Escrow Agreement.
18. Counterparts. This Escrow Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which shall constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be executed the
day and year first set forth above.
By:
|
/s/ Xxxxxx X. Xxxxxx
|
|||
Its:
|
Chief Accounting Officer | |||
| Realty Capital Securities, LLC | ||||
By:
|
/s/ Xxxxxx X. Xxxxxx
|
|||
Its:
|
President | |||
| DST Systems, Inc. | ||||
By: Its: |
/s/ Xxxxxx Xxxxxxx
Vice President |
|||
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EXHIBIT A
List of Investors
Pursuant to the Escrow Agreement dated February 9, 2010 by and among Healthcare Trust of
America, Inc. (the “Company”), Realty Capital Securities, LLC (the “Dealer Manager”) and DST
Systems, Inc., as escrow agent (the “Escrow Agent”), the Company and Dealer Manager hereby certify
that the following Investors have paid money for the purchase of shares of common stock, par value
$0.01 per share (the “Shares”) of the Company and the money has been deposited with the Escrow
Agent:
| 1. | Name of Investor Address Tax Identification Number Amount of Shares subscribed for Amount of money paid and deposited with Escrow Agent |
| 2. | Name of Investor Address Tax Identification Number Amount of Shares subscribed for Amount of money paid and deposited with Escrow Agent |
EXHIBIT B
CERTIFICATE AS TO AUTHORIZED SIGNATURES
The specimen signatures shown below are the specimen signatures of the individuals who have
been designated as authorized representatives of Healthcare Trust of America, Inc. and are
authorized to initiate and approve transactions of all types for the escrow account or accounts
established under the Escrow Agreement to which this Exhibit B is attached, on behalf of Healthcare
Trust of America, Inc.
| Name / Title | Specimen Signature | |||
Xxxxx X. Xxxxxx Chief Executive Officer & President |
/s/ Xxxxx X. Xxxxxx
|
|||
Xxxxxx X. Xxxxxx Chief Accounting Officer |
/s/ Xxxxxx X. Xxxxxx
|
The specimen signatures shown below are the specimen signatures of the individuals who have been
designated as authorized representatives of Realty Capital Securities, LLC and are authorized to
initiate and approve transactions of all types for the escrow account or accounts established under
the Escrow Agreement to which this Exhibit B is attached, on behalf of Realty Capital Securities,
LLC.
| Name / Title | Specimen Signature | |||
Xxxxxx X. Xxxxxx President |
/s/ Xxxxxx X. Xxxxxx
|
|||
Xxxxx Xxxxxxxx Executive Vice President and Chief Compliance Officer |
/s/ Xxxxx Xxxxxxxx
|
