ESCROW AGREEMENT
Exhibit 10.4
THIS ESCROW
AGREEMENT (this “Agreement”) made and entered into as of this
3rd day of August,
2009 by and among Xxxxx Real Estate Investments, Inc., a Delaware corporation
(the “Dealer Manager”), Xxxxx Global REIT, Inc.,
a Maryland corporation (the “Company”), and UMB Bank, N.A., as escrow agent, a national
banking association organized and existing under the laws of the United States of America (the
“Escrow Agent”).
RECITALS
WHEREAS, the Company proposes to offer and sell up to $3.0 billion of its shares of common
stock (the “Shares”) , on a best-efforts basis (excluding the shares of its common stock
to be offered and sold pursuant to the Company’s distribution reinvestment plan), at an initial
purchase price of $10.00 per share (the “Offering”) to investors pursuant to the Company’s
Registration statement on Form S-11 (File No. 333-156742), as amended from time to time (the
“Offering Document”).
WHEREAS, the Dealer Manager has been engaged by the Company to offer and sell the Shares on a
best efforts basis through a network of participating broker-dealers (the “Dealers”).
WHEREAS, the Company has agreed that the subscription price paid by subscribers for shares
will be refunded to such subscribers if at least $2.0 million of gross offering proceeds from
at least 100 persons who are not affiliated with each other,
the Company or Xxxxx Interests Limited Partnership (the
“Advisor”) (the “Minimum Offering”) has not been raised within one year from the
date the Offering Document becomes effective with the Securities and Exchange Commission (the
“Closing Date,”).
WHEREAS, the Dealer Manager and the Company desire to establish an escrow account (the
“Escrow Account”), as further described herein in which funds received from subscribers
will, except as otherwise specified herein, be deposited into an interest-bearing account entitled
“Xxxxx Global REIT, Inc. Subscription Account” and the Company desires that UMB Bank, N.A. act as
escrow agent to the Escrow Account and Escrow Agent is willing to act in such capacity.
WHEREAS, deposits received from residents of the State of Pennsylvania (the “Pennsylvania
Subscribers”) and residents from the State of New York (the “New York Subscribers”)
will remain in the Escrow Account until the conditions of Sections 3 and 4 hereof, respectively,
have been met.
WHEREAS, the Escrow Agent has engaged DST Systems (the “Processing Agent”) to receive,
examine for “good order” and facilitate subscriptions into the Escrow Account as further described
herein and to act as record keeper, maintaining on behalf of the Escrow Agent the ownership records
for the Escrow Account. In so acting DST shall be acting solely in the capacity of agent for the
Escrow Agent and not in any capacity on behalf of the Company or the
Dealer Manager, nor shall they have any interest other than that provided in this Agreement in
assets in Processing Agent’s possession as the agent of the Escrow Agent.
WHEREAS, in order to subscribe for Shares during the Escrow Period (as defined below), a
subscriber must deliver the full amount of its subscription: (i) by check made payable to
the order of UMB Bank, N.A., as Escrow Agent for Xxxxx Global REIT, Inc., in U.S.
dollars or (ii) by wire transfer of immediately available funds or Automated ClearingHouse
(ACH) in U.S. dollars, made payable as provided in Section 12(2).
AGREEMENT
NOW, THEREFORE, the Dealer Manager, the Company and Escrow Agent agree to the terms of this
Agreement as follows:
1. Establishment of Escrow Account; Escrow Period. On or prior to the commencement of the
offering of Shares pursuant to the Offering Document, the Company shall establish the Escrow
Account with the Escrow Agent, which shall be entitled “UMB Bank, N.A., as Escrow Agent for Xxxxx
Global REIT, Inc.” This Agreement shall be effective on the date on which the Offering Document
becomes effective. Except as otherwise set forth herein for the Pennsylvania Subscribers and the
New York Subscribers, the escrow period shall commence upon the effectiveness of this Agreement and
shall continue until the earlier of (i) the date upon which the Escrow Agent receives confirmation
from the Company and the Dealer Manager that the Company has raised the Minimum Offering, (ii) the
Closing Date, or (iii) the termination of the Offering by the Company prior to the receipt of the
Minimum Offering (the “Escrow Period”).
2. Operation of the Escrow.
(a) Deposits in the Escrow Account. During the Escrow Period, persons subscribing to
purchase Shares will be instructed by the Company, the Dealer Manager and the Dealers to make
checks for subscriptions payable to the order of “UMB Bank, N.A., as Escrow Agent for Xxxxx
Global REIT, Inc.” Completed subscription agreements and checks in payment
for the purchase price shall be remitted to the P.O. Box designated for the receipt of such
agreements and funds, and wires, or Automated ClearingHouse (ACH) payments shall be
transmitted directly to the Escrow Account. To the extent that subscription agreements and
payments are remitted by the Company or the Dealer Manager, the Company or the Dealer Manager,
as applicable, will furnish to the Escrow Agent a list detailing information regarding such
subscriptions as set forth in Exhibit B. The Processing Agent will promptly deliver
all monies received in good order from subscribers (or from the Dealer Manager or Dealers
transmitting moneys and subscriptions from subscribers) for the payment of Shares to the
Escrow Agent for deposit in the Escrow Account. The Escrow Agent hereby agrees to maintain the
funds contributed by the Pennsylvania Subscribers and New York Subscribers in a manner in
which they may be separately accounted for so that the requirements of Sections 3 and 4 of
this Agreement can be met. Deposits shall be held in the Escrow Account until such funds are
disbursed in accordance with this Agreement. Prior to disbursement of the funds deposited in
the Escrow Account, such funds shall not be subject to claims by creditors of the Company or
any of its affiliates. If any of the instruments of payment are returned to the Escrow Agent
for nonpayment prior to receipt of the Break Escrow Affidavit (as described below), the Escrow
Agent shall promptly notify the Processing Agent and the Company in writing via mail, email or
facsimile of such
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nonpayment, and the Escrow Agent is authorized to debit the Escrow Account in the amount of
such returned payment and the Processing Agent shall delete the appropriate account from the
records maintained by the Processing Agent. The Processing Agent will maintain a written
account of each sale, which account shall set forth, among other things, the following
information: (i) the subscriber’s name and address, (ii) the subscriber’s social security
number, (iii) the number of Shares purchased by such subscriber, and (iv) the amount paid by
such subscriber for such Shares. During the Escrow Period neither the Company nor the Dealer
Manager will be entitled to any principal funds received into the Escrow Account.
(b) Distribution of the Funds in the Escrow Account to Subscribers other than the
Pennsylvania Subscribers and New York Subscribers. If at any time on or prior to the
Closing Date, the Minimum Offering has been raised, then upon the happening of such event, the
funds in the Escrow Account shall remain in the Escrow Account until the Escrow Agent receives
written direction provided by the Company and the Dealer Manager instructing the Escrow Agent
to deliver such funds as the Company shall direct (other than any funds received from
Pennsylvania Subscribers and New York Subscribers which cannot be released until the
conditions of Sections 3 or 4, respectively, have been met). An affidavit or certification
from an officer of the Company and an officer of the Dealer Manager to the Escrow Agent and
Processing Agent stating that at least the Minimum Offering has been timely raised, shall
constitute sufficient evidence for the purpose of this Agreement that such event has occurred
(the “Break Escrow Affidavit”). The Affidavit shall indicate (i) the date on which the
Minimum Offering was raised and (ii) the actual total number of Shares sold as of such date.
Thereafter, the Escrow Agent shall release funds and any interest or other income earned
thereon from the Escrow Account as directed by the Company pursuant to written instruction
that the Company shall provide to the Escrow Agent from time to time.
(c) If the Escrow Agent has not received a Break Escrow Affidavit on or prior to the Closing
Date, the Processing Agent shall provide the Escrow Agent the information needed to return the
funds in the Escrow Account, together with any interest thereon, to each respective
subscriber, and the Escrow Agent shall promptly create and dispatch checks and wires drawn on
the Escrow Account to return the full amount of the funds deposited in the Escrowed Account,
together with their pro rata share of any interest thereon, to the respective
subscribers, and the Escrow Agent shall notify the Company and the Dealer Manager of its
distribution of the funds. The subscription payments returned to each
subscriber shall be free and clear of any and all claims of the Company or any of its
creditors.
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3. Distribution of the Funds from Pennsylvania Subscribers.
(a) Notwithstanding anything to the contrary herein, disbursements of funds contributed
by Pennsylvania Subscribers may only be distributed in compliance with the provisions of this
Section 3. Irrespective of any disbursement of funds from the Escrow Account pursuant to
Section 2 hereof, the Escrow Agent will continue to place deposits from the Pennsylvania
Subscribers into the Escrow Account, until such time as the Company notifies the Escrow Agent
in writing that total subscriptions (including amounts previously disbursed as directed by the
Company and the amounts then held in the Escrow Account) equal or exceed $100,000,000,
whereupon the Escrow Agent shall disburse to the Company, at the Company’s request, any funds
from the Pennsylvania Subscribers received by the Escrow Agent for accepted subscriptions, but
not those funds of a subscriber whose subscription has been rejected or rescinded of which the
Escrow Agent has been notified by the Company, or otherwise in accordance with the Company’s
written request.
(b) If the
Company has not received total subscriptions of at least $100,000,000 within
120 days of the date the Company first receives a subscription from a Pennsylvania Subscriber
(the “Initial Escrow Period”), the Company shall notify each Pennsylvania Subscriber by
certified mail or any other means (whereby receipt of delivery is obtained) of the right of
Pennsylvania Subscribers to have their investment returned to them. If, pursuant to such
notice, a Pennsylvania Subscriber requests the return of his or her subscription funds within
ten (10) days after receipt of the notification (the “Request Period”), the Escrow Agent shall
promptly refund, directly to each Pennsylvania Subscriber the
funds deposited in the Escrow Account on behalf of the Pennsylvania Subscriber, together with his
or her pro rata share of any interest thereon.
(c) The funds of Pennsylvania Subscribers who do not request the return of their funds
within the Request Period shall remain in the Escrow Account for successive 120-day
escrow periods (each 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 Section 3(b) above with
respect to the Initial Escrow Period for each Successive Escrow Period until
the occurrence of the earliest of (i) the termination of the offering, (ii) the receipt
and acceptance by the Company of total subscriptions that equal or exceed $100,000,000 and
the disbursement of the Escrow Account on the terms specified in this Section 3, or (iii)
all funds held in the Escrow Account that were contributed by Pennsylvania Subscribers
having been returned to the Pennsylvania Subscribers in accordance with the provisions
hereof.
If, upon termination of the Offering, the Company has not received and accepted total
subscriptions that equal or exceed $100,000,000, all funds in the Escrow Account that were
contributed by Pennsylvania Subscribers will be promptly returned in full to such Pennsylvania
Subscribers, together with their pro rata share of any interest earned thereon
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pursuant to instructions made by the Company, upon which the Escrow Agent may conclusively
rely.
4. Distribution of the Funds from New York Subscribers.
(a) Notwithstanding anything to the contrary herein, disbursements of funds contributed
by New York Subscribers may only be distributed in compliance with the provisions of this
Section 4. Irrespective of any disbursement of funds from the Escrow Account pursuant to
Section 2 hereof, the Escrow Agent will continue to place deposits from the New York
Subscribers into the Escrow Account, until such time as the Company notifies the Escrow Agent
in writing that total subscription proceeds (including amounts previously disbursed as
directed by the Company and the amounts then held in the Escrow Account) equal or exceed
$2,500,000, whereupon the Escrow Agent shall disburse to the Company, at the Company’s
request, any funds from New York Subscribers in the Escrow Account received by the Escrow
Agent for accepted subscriptions, but not those funds of a subscriber whose subscription has
been rejected or rescinded of which the Escrow Agent has been notified by the Company, or
otherwise in accordance with the Company’s written request.
(b) If the Company has not received total subscriptions of at least $2,500,000 prior to
the termination of the Offering all funds in the Escrow Account that were contributed by New
York Subscribers will be promptly returned in full to such New York Subscribers, together with
their pro rata share of any interest earned thereon pursuant to instructions made by
the Company, upon which the Escrow Agent may conclusively rely.
5. Funds in the Escrow Account. Upon receipt of funds from subscribers, the Escrow Agent
shall hold such funds in escrow pursuant to the terms of this Agreement. All such funds held in
the Escrow Account shall be invested in bank accounts (e.g., savings accounts),
or a money market mutual fund that
invests primarily in US Treasuries and US Government
Securities, and any other investments in a manner as permitted under Rule 15c2-4 of the
Securities Exchange Act of 1934, as amended, at the direction of the Company. All funds in the
Escrow Account shall at all times be placed in interest-bearing accounts.
The Escrow Agent shall be entitled to sell or redeem any such investment as necessary to make
any distributions required under this Agreement and shall not be liable or responsible for any loss
resulting from any such sale or redemption.
Income, if any, resulting from the investment of the funds in the Escrow Account shall be
distributed according to this Agreement.
The Escrow Agent shall provide to the Company monthly statements (or more frequently as
reasonably requested by the Company) on the account balance in the Escrow Account and the activity
in such accounts since the last report.
6. Duties of the Escrow Agent. The Escrow Agent shall have no duties or responsibilities
other than those expressly set forth in this Agreement, and no implied duties or obligations shall
be
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read into this Agreement against the Escrow Agent. The Escrow Agent is not a party to, or bound by,
any other agreement among the other parties hereto with respect to the subject matter hereof, and
the Escrow Agent’s duties shall be determined solely by reference to this Agreement. The Escrow
Agent shall have no duty to enforce any obligation of any person, other than as provided herein.
The Escrow Agent shall be under no liability to anyone by reason of any failure on the part of any
party hereto or any maker, endorser or other signatory of any document or any other person to
perform such person’s obligations under any such document.
7. Liability of the Escrow Agent and the Processing Agent; Indemnification. The Escrow
Agent acts hereunder as a depository only. The Escrow Agent is not responsible or liable in any
manner for the sufficiency, correctness, genuineness or validity of this Escrow Agreement or with
respect to the form of execution of the same. Each of the Escrow Agent and the Processing Agent
shall not be liable for any action taken or omitted by it, or any action suffered by it to be taken
or omitted, in good faith, and in the exercise of its own best judgment, and may rely conclusively
and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of
counsel (including counsel chosen by the Escrow Agent or the Processing 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 and acceptability of any information
therein contained) which is believed by the Escrow Agent or the Processing Agent to be genuine and
to be signed or presented by the proper person(s). Each of the Escrow Agent and the Processing
Agent shall not be held liable for any error in judgment made in good faith by an officer or
employee of either unless it shall be proved that the Escrow Agent or the Processing Agent, as
appropriate, was grossly negligent or reckless in ascertaining the pertinent facts or acted
intentionally in bad faith. The Escrow Agent shall not be bound by any notice of demand, or any
waiver, modification, termination or rescission of this 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.
Either of the Escrow Agent and the Processing Agent may consult legal counsel and shall exercise
reasonable care in the selection of such counsel, in the event of any dispute or question as to the
construction of any provisions hereof or its duties hereunder, and it shall incur no liability and
shall be fully protected in acting in accordance with the reasonable opinion or instructions of
such counsel.
Each of the Escrow Agent and the Processing Agent shall not be responsible, may conclusively rely
upon and shall be protected, indemnified and held harmless by the Company, for the sufficiency or
accuracy of the form of, or the execution, validity, value or genuineness of any document or
property received, held or delivered by it hereunder, or of the signature or endorsement thereon,
or for any description therein; nor shall the Escrow Agent or the Processing Agent be responsible
or liable in any respect on account of the identity, authority or rights of the persons executing
or delivering or purporting to execute or deliver any document, property or this Agreement.
In the event that either the Escrow Agent or the Processing Agent shall become involved in any
arbitration or litigation relating to the funds in the Escrow Account, each is authorized to comply
with any decision reached through such arbitration or litigation.
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The Company, hereby agrees to indemnify both the Escrow Agent and the Processing Agent for, and to
hold it harmless against any loss, liability or expense incurred in connection herewith without
gross negligence, recklessness or willful misconduct on the part of either of the Escrow Agent or
the Processing Agent, including without limitation legal or other fees arising out of or in
connection with its entering into this Agreement and carrying out its duties hereunder, including
without limitation the costs and expenses of defending itself against any claim of liability in the
premises or any action for interpleader. Neither the Escrow Agent, nor the Processing Agent, shall
be under any obligation to institute or defend any action, suit, or legal proceeding in connection
herewith, unless first indemnified and held harmless to its satisfaction in accordance with the
foregoing, except that neither shall be indemnified against any loss, liability or expense arising
out of its own gross negligence, recklessness or willful misconduct. Such indemnity shall survive
the termination or discharge of this Agreement or resignation of the Escrow Agent.
8. The Escrow Agent’s Fee. Escrow Agent shall be entitled to fees and expenses for its
regular services as Escrow Agent as set forth in Exhibit A. Additionally, Escrow Agent is
entitled to reasonable fees for extraordinary services and reimbursement of any reasonable out of
pocket and extraordinary costs and expenses related to its obligations as Escrow Agent under this
Agreement, including, but not limited to, reasonable attorneys’ fees. All of the Escrow Agent’s
compensation, costs and expenses shall be paid by the Company.
9. Security Interests. No party to this Escrow Agreement shall grant a security interest in
any monies or other property deposited with the Escrow Agent under this Escrow Agreement, or
otherwise create a lien, encumbrance or other claim against such monies or borrow against the same.
10. Dispute. In the event of any disagreement between the undersigned or the person or
persons named in the instructions contained in this Agreement, or any other person, resulting in
adverse claims and demands being made in connection with or for any papers, money or property
involved herein, or affected hereby, the Escrow Agent shall be entitled to refuse to comply with
any demand or claim, as long as such disagreement shall continue, and in so refusing to make any
delivery or other disposition of any money, papers or property involved or affected hereby, the
Escrow Agent shall not be or become liable to the undersigned or to any person named in such
instructions for its refusal to comply with such conflicting or adverse demands, and the Escrow
Agent shall be entitled to refuse and refrain to act until: (a) The rights of the adverse claimants
shall have been fully and finally adjudicated in a Court assuming and having jurisdiction of the
parties and money, papers and property involved herein or affected hereby, or (b) All differences
shall have been adjusted by agreement and the Escrow Agent shall have been notified thereof in
writing, signed by all the interested parties.
11. Resignation of Escrow Agent. Escrow Agent may resign or be removed, at any time, for
any reason, by written notice of its resignation or removal to the proper parties at their
respective addresses as set forth herein, at least 60 days before the date specified for such
resignation or removal to take effect; upon the effective date of such resignation or removal:
(a) All cash and other payments and all other property then held by the Escrow Agent
hereunder shall be delivered by it to such successor escrow agent as may be designated in
writing by the Company, whereupon the Escrow Agent’s obligations hereunder shall cease and
terminate;
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(b) If no such successor escrow agent has been designated by such date, all obligations
of the Escrow Agent hereunder shall, nevertheless, cease and terminate, and the Escrow Agent’s
sole responsibility thereafter shall be to keep all property then held by it and to deliver
the same to a person designated in writing by the Company or in accordance with the directions
of a final order or judgment of a court of competent jurisdiction.
(c) Further, if no such successor escrow agent has been designated by such date, the
Escrow Agent may petition any court of competent jurisdiction for the appointment of a
successor agent; further the Escrow Agent may pay into court all monies and property deposited
with Escrow Agent under this Agreement.
12. Notices. All notices, demands and requests required or permitted to be given under the
provisions hereof must be in writing and shall be deemed to have been sufficiently given, upon
receipt, if (i) personally delivered, (ii) sent by telecopy and confirmed by phone or (iii) mailed
by registered or certified mail, with return receipt requested, or by overnight courier with
signature required, delivered to the addresses set forth below, or to such other address as a party
shall have designated by notice in writing to the other parties in the manner provided by this
paragraph:
(1) If to Company:
|
Xxxxx Global REIT, Inc. | |
| 0000 Xxxx Xxx Xxxxxxxxx | ||
| Xxxxx 0000 | ||
| Xxxxxxx, Xxxxx 00000-0000 | ||
| Company Wire Instructions: | ||
| XXXXXXX Company | ||
| ABA Routing Number: xxxxxxxxx | ||
| Account Number: xxxxxxxxxx | ||
| FFC Account Name: XXXXXXXX Corporation | ||
| FFC: xxxxxxxxxx | ||
| Attn: xxxxxxxxx | ||
(2) If to the Escrow Agent:
|
UMB Bank, N.A. | |
| 0000 Xxxxx Xxxx., 0xx Xxxxx | ||
| Mail Stop: 1020409 | ||
| Xxxxxx Xxxx, Xxxxxxxx 00000 | ||
| Attention: Xxxx Xxxxxxx, | ||
| Corporate Trust | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 | ||
| Escrow Agent Wiring Instructions: | ||
| UMB Bank, N.A. | ||
| ABA Routing Number: 000000000 | ||
| Account Number: 9871737640 |
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| Account Name: UMB Bank, N.A., as Agent for Xxxxx Global REIT, Inc. | ||
| Checks Payable Information: | ||
| UMB Bank as Agent for Xxxxx Global REIT, Inc. | ||
| Attention: Xxxx Xxxxxxx, Corporate Trust | ||
| 0000 Xxxxx Xxxxxxxxx, 0xx Xxxxx | ||
| M/S 1020409 | ||
| Xxxxxx Xxxx, Xxxxxxxx 00000 | ||
(3) If to Dealer Manager:
|
Xxxxx Real Estate Investments, Inc. | |
| Suite 5000 | ||
| 0000 Xxxx Xxx Xxxxxxxxx | ||
| Xxxxxxx, Xxxxx 00000-0000 |
13. Governing Law. This Agreement shall be construed and enforced in accordance with the
laws of the State of Texas without regard to the principles of conflicts of law.
14. Binding Effect; Benefit. This Agreement shall be binding upon and inure to the benefit
of the permitted successors and assigns of the parties hereto.
15. Modification. This Agreement may be amended, modified or terminated at any time by a
writing executed by the Dealer Manager, the Company and the Escrow Agent.
16. Assignability. This Agreement shall not be assigned by the Escrow Agent without the
Company’s prior written consent.
17. Counterparts. This Agreement may be executed in one or more counterparts, each of which
will be deemed an original, but all of which together will constitute one and the same instrument.
Copies, telecopies, facsimiles, electronic files and other reproductions of original executed
documents shall be deemed to be authentic and valid counterparts of such original documents for all
purposes, including the filing of any claim, action or suit in the appropriate court of law.
18. Headings. The section headings contained in this Agreement are inserted for convenience
only, and shall not affect in any way, the meaning or interpretation of this Agreement.
19. Severability. This Agreement constitutes the entire agreement among the parties and
supersedes all prior and contemporaneous agreements and undertakings of the parties in connection
herewith. No failure or delay of the Escrow Agent in exercising any right, power or remedy may be,
or may be deemed to be, a waiver thereof; nor may any single or partial exercise of any right,
power or remedy preclude any other or further exercise of any right, power or remedy. In the event
that any one or more of the provisions contained in this Agreement, shall, for any reason, be held
to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by
law, such invalidity, illegality or unenforceability shall not affect any other provision of this
Agreement.
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20. Earnings Allocation; Tax Matters; Patriot Act Compliance; OFAC Search Duties. The
Company or its agent shall be responsible for all tax reporting under this Escrow Agreement. The
Company shall provide to Escrow Agent upon the execution of this Agreement any documentation
requested and any information reasonably requested by the Escrow Agent to comply with the USA
Patriot Act of 2001, as amended from time to time. 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 Dealer Manager shall provide
a copy of each subscription check in order that the Escrow Agent, or its agent, may perform such
OFAC search.
21. Miscellaneous. This Agreement shall not be construed against the party preparing it,
and shall be construed without regard to the identity of the person who drafted it or the party who
caused it to be drafted and shall be construed as if all parties had jointly prepared this
Agreement and it shall be deemed their joint work product, and each and every provision of this
Agreement shall be construed as though all of the parties hereto participated equally in the
drafting hereof; and any uncertainty or ambiguity shall not be interpreted against any one party.
As a result of the foregoing, any rule of construction that a document is to be construed against
the drafting party shall not be applicable.
22. Third Party Beneficiaries. The Processing Agent shall be a third party beneficiary
under this Agreement, entitled to enforce any rights, duties or obligations owed to it under this
Agreement notwithstanding the terms of any other agreements between the Processing Agent and any
Party hereto.
23. Termination of the Escrow Agreement. This Escrow Agreement, except for Sections 7 and
11 hereof, which shall continue in effect, shall terminate upon written notice from the Company to
the Escrow Agent. Unless otherwise provided, 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 or (b) to a successor escrow agent upon written instructions from the Company.
24. Relationship of Parties. The Dealer Manager, the Company and the Escrow Agent are
unaffiliated parties, and this Agreement does not create any partnership or joint venture among
them.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed by their duly
authorized representatives as of the date first written hereinabove:
| DEALER MANAGER: | ||||||
| XXXXX REAL ESTATE INVESTMENTS, INC. | ||||||
| By: | /s/ Xxxxx X. Apollo | |||||
| Name: | Xxxxx X. Apollo | |||||
| Title: | Senior Vice President | |||||
| COMPANY: | ||||||
| XXXXX GLOBAL REIT, INC. | ||||||
| By: | /s/ Xxxx X. Xxxx | |||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Chief Accounting Officer | |||||
| ESCROW AGENT: | ||||||
| UMB BANK, N.A. | ||||||
| By: | /s/ Xxxx X. Xxxxxxx | |||||
| Name: | Xxxx X. Xxxxxxx | |||||
| Title: | Vice President | |||||
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EXHIBIT A
ESCROW FEES AND EXPENSES
Acceptance Fee |
||||
Review escrow agreement and establish account |
$ | 3,000.00 | ||
Annual Fee |
||||
Maintain account |
$ | 3,000.00 | ||
Transaction Fees |
||||
(a) per outgoing wire transfer |
$ | 35.00 | ||
(b) per Form 1099 (Int., B or Misc.) |
$ | 10.00 | * | |
(c) per investment purchase, sale or settlement |
$ | 35.00 | ** |
| * | Not anticipated to be charged | |
| ** | Excludes money market mutual fund transactions |
Fees specified are for the regular, routine services contemplated by the Escrow Agreement, and any
additional or extraordinary services, including, but not limited to disbursements involving a
dispute or arbitration, or administration while a dispute, controversy or adverse claim is in
existence, will be charged based upon time required at the then standard hourly rate. In addition
to the specified fees, all expenses related to the administration of the Escrow Agreement (other
than normal overhead expenses of the regular staff) such as, but not limited to, travel, postage,
shipping, courier, telephone, facsimile, supplies, legal fees, accounting fees, etc., will be
reimbursable. Acceptance and first year annual fees will be payable at the initiation of the escrow
and annual fees will be payable in advance thereafter. Other fees and expenses will be billed as
incurred.
EXHIBIT B
Form of Subscriber List
Pursuant
to the Escrow Agreement dated as of August 3, 2009, by and
among Xxxxx Global REIT, Inc., (the “Company”), UMB Bank, N.A., as escrow agent (the
“Escrow Agent”), and Xxxxx Real Estate Investments, Inc. (the “Dealer Manager”), the Dealer Manager
hereby notifies the Escrow Agent that, as of the date set forth below, the following Subscribers
have submitted subscription funds for the purchase of shares of common stock of the Company (the
“Shares”), such subscription funds have been deposited with Escrow Agent in accordance with
the Escrow Agreement:
| 1. | Name of Subscriber Address Tax Identification Number Number of Shares subscribed for Amount of money paid and deposited with Escrow Agent |
||
| 2. | Name of Subscriber Address Tax Identification Number Number of Shares subscribed for Amount of money paid and deposited with Escrow Agent |
||
| ... | Name of Subscriber Address Tax Identification Number Number of Shares subscribed for Amount of money paid and deposited with Escrow Agent |
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Date: | ___, 200___ | |||||
