EXHIBIT 10.7
ESCROW AGREEMENT
Trust Company of America
0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Re: A REIT, Inc.
Ladies and Gentlemen:
A REIT, Inc., a Maryland corporation (the "Company"), will issue in a
public offering (the "Offering") its common stock (the "Stock") pursuant to a
Registration Statement on Form S-11 (the "Registration Statement") filed by the
Company with the Securities and Exchange Commission (the "SEC"). NNN Capital
Corp., a California corporation (the "Dealer Manager"), will act as dealer
manager for the Offering. The Company is entering into this agreement with Trust
Company of America (the "Escrow Agent") to set forth the terms on which you, as
Escrow Agent, will hold and disburse the proceeds from subscriptions from the
purchase of Stock in the Offering until such time as subscriptions from
nonaffiliates of the Company have been received for Stock, resulting in total
minimum capital raised of $2,000,000 (the "Required Capital"). Based upon your
representation and warranty that you are, and at all times during the term of
this agreement will be, deemed a "bank" as that term is defined in Section
3(a)(6) of the Securities Exchange Act of 1934, as amended, the Company hereby
appoints you as Escrow Agent for purposes of holding the proceeds from the
subscriptions for the Stock, on the terms and conditions hereinafter set forth:
1. Persons subscribing to purchase the Stock will be instructed by
the Dealer Manager or any soliciting dealers to remit the purchase price in the
form of checks, drafts or money orders (hereinafter called "instruments of
payment") payable to the order of, or funds wired in favor of, "A REIT, Inc."
Any checks received made payable to a party other than the Escrow Agent shall be
returned to the soliciting dealer who submitted the check. By 12:00 p.m. (noon)
the next business day after receipt of instruments of payment from the Offering,
the Dealer Manager will send to you: (a) each subscriber's name, address, number
of shares purchased and purchase price remitted, and (b) the instruments of
payment from such subscribers, for deposit by you into an interest-bearing
deposit account entitled "ESCROW ACCOUNT FOR THE BENEFIT OF SUBSCRIBERS FOR
COMMON STOCK OF A REIT, INC." (the "Escrow Account"), which deposit shall occur
within one (1) business day after you receive such materials. The Escrow Account
will be established and maintained in such a way as to permit the interest
income calculations described in paragraph 8.
2. You agree to promptly process for collection the instruments of
payment upon deposit into the Escrow Account. You will hold the deposited funds
in the Escrow Account until such funds are disbursed in accordance with
paragraph 3 hereof. If any of the instruments of payment are returned to you for
nonpayment prior to receipt by you of the Required Capital, you shall promptly
notify the Dealer Manager and the Company in writing of such nonpayment, and you
are authorized to debit the Escrow Account in the amount of such return payment
as well as any interest earned on the amount of such payment.
3. (a) Subject to the provisions of subparagraphs 3(b) and 3(c)
below, once you have received and collected subscription proceeds in the Escrow
Account in collected funds an amount equal to or greater than the Required
Capital, you shall promptly notify the Company and, upon receiving written
instructions from the Company, (i) disburse to the Company, by check or wire
transfer, the funds in the Escrow Account representing the gross purchase price
for the Stock, and (ii) disburse to the subscribers any interest thereon
calculated pursuant to the provisions of paragraph 8. 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. Following such disbursements, the Escrow Account shall close and
thereafter you shall forward directly to the Company upon receipt by you of any
subscription documents and instruments of payment received by you from
subscribers.
(b) If, at the close of business on ________, 2005 (the
"Expiration Date"), you are not in receipt of evidence of subscriptions accepted
on or before such date and instruments of payment dated not later than that date
(or actual wired funds) for the purchase of Stock providing for total purchase
proceeds that equal or exceed the Required Capital (from all sources but
exclusive of any funds received from subscriptions for Stock from entities which
the Company has notified you are affiliated with the Company or its affiliates),
you shall promptly so notify the Company. Thereafter, you agree to request an
executed IRS Form W-9 from each subscriber within ten (10) calendar days after
you provide such notice. On the tenth (10th) day following the date of your
receipt of the notice, you shall promptly return directly to each subscriber by
your check the collected funds deposited in the Escrow Account on behalf of such
subscriber (unless earlier disbursed in accordance with paragraph 3(c) below),
or shall return the instruments of payment delivered to you if such instruments
have not been processed for collection prior to such time, together with
interest in the amounts calculated pursuant to paragraph 8 for each subscriber
at the address given to you by the Dealer Manager of the Company. In the event
an executed Form W-9 is not received by you from each subscriber within such
period, you shall thereupon remit an amount to such subscribers in accordance
with the provisions hereof, withholding thirty-one percent (31%) of any interest
income on subscription proceeds (determined in accordance with paragraph 8)
attributable to those subscribers not furnishing executed forms in accordance
with IRS Regulations. However, you shall not be required to remit any payments
until funds represented by such payments have been collected by you.
(c) If the Company rejects any subscription for which you have
already collected funds, you shall, upon the written request of the Company,
promptly issue a refund check to the rejected subscriber. If the Company rejects
any subscription for which you have not yet collected funds but have submitted
the subscriber's check for collection, you shall promptly issue a check in the
amount of the subscriber's check to the rejected subscriber after you have
cleared such funds. If you have not yet submitted a rejected subscriber's check
for collection, you shall promptly remit the subscriber's check directly to the
subscriber.
4. You shall notify the Company on a weekly basis (and more
frequently if requested by the Company) of the amount of collected funds in the
Escrow Account, as well as the activity in the Escrow Account since the last
report. 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.
5. All funds in the Escrow Account, until disbursed to the Company
in accordance with paragraph 3 hereof, are to be held for the benefit of the
shareholders of the Company and are not to (i) be commingled with the monies or
become an asset of the Company, or (ii) be subject to attachment, levy or other
encumbrance in any action by a third party against the Company.
6. Prior to the disbursement of funds deposited in the Escrow
Account in accordance with the provisions of paragraph 3 hereof, you shall
invest all of the funds deposited in the Escrow Account in "Short-Term
Investments" (as defined below) in compliance with SEC Rule 15c2-4 and you are
further authorized and you agree to reinvest all earnings and interest derived
therefrom in Short-Term Investments specified below. In the event that
instruments of payment are returned to you for nonpayment, you are authorized to
debit the Escrow Account in accordance with paragraph 2 hereof.
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"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, including, without limitation, such certificates or instruments of
American International Bank) which mature on or before the termination of the
Offering, unless such instrument cannot be readily sold or otherwise disposed of
for cash by the termination of the Offering without any dissipation of the
offering proceeds invested.
The following securities are not permissible investments:
(a) money market mutual funds;
(b) corporate equity or debt securities;
(c) repurchase agreements;
(d) bankers' acceptances;
(e) commercial paper; and
(f) municipal securities.
7. You are entitled to rely upon written instructions you receive
from the Company, unless you have actual knowledge that such instructions are
not valid or genuine; provided that, if in your opinion, any instructions from
the Company are unclear, you may request clarification from the Company prior to
taking any action and if such instructions continue to be unclear, you may rely
upon written instructions from the Company's legal counsel in distributing or
continuing to hold any funds. However, you shall not be required to disburse any
funds attributable to instruments of payment which have not been collected by
you, provided you shall use your best efforts to promptly collect such funds
after your receipt of disbursement instructions from the Company and shall
disburse such funds in compliance with the disbursement instructions from the
Company.
8. If the Offering terminates prior to receipt of the Required
Capital, interest income earned on subscription proceeds deposited in the Escrow
Account (the "Escrow Income") shall be remitted to subscribers in accordance
with paragraph 3 and without any deductions for escrow expenses. Each
subscriber's pro rata portion of Escrow Income shall be determined as follows:
the total amount of Escrow Income shall be multiplied by a fraction, (i) the
numerator of which is determined by multiplying the number of shares of Stock
purchased by said subscriber times the number of days said subscriber's proceeds
are held in the Escrow Account prior to the date of disbursement, and (ii) the
denominator of which is the total of the numerators for all such subscribers in
such account. The Company shall reimburse the Escrow Agent for all escrow
expenses. You shall remit all such Escrow Income in accordance with paragraph 3.
9. As compensation for serving as Escrow Agent hereunder, you
shall receive a fee, as set forth in the Fee Agreement attached hereto.
10. In performing any of your duties hereunder, you shall not incur
any liability to anyone for any damages, losses, or expenses, except for your
willful misconduct, breach of trust, or gross negligence. Accordingly, you shall
not incur any such liability with respect to any action taken or omitted (a) in
good faith upon advice of your counsel given with respect to any questions
relating to your 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 you 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.
11. The Company hereby agrees to indemnify and hold you harmless
against any and all losses, claims, damages, liabilities and expenses, including
reasonable attorneys' fees and disbursements, that may be imposed on you or
incurred by you in connection with your acceptance of appointment as the Escrow
Agent hereunder, or the performance of your 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
your willful misconduct, breach of trust or gross negligence.
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12. In the event of a dispute between the parties hereto sufficient
in your discretion to justify doing so, you shall be entitled to tender into the
registry or custody of any court of competent jurisdiction all money or property
in your hands under this Agreement, together with such legal pleadings as you
deem appropriate, and thereupon be discharged from all further duties and
liabilities under this Agreement. In the event of any uncertainty as to your
duties hereunder, you may refuse to act under the provisions of this Agreement
pending order of a court of competent jurisdiction and you 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 you shall determine to have
jurisdiction thereof. The filing of any such legal proceedings shall not deprive
you of your compensation earned prior to such filing.
13. 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:
if to the Company:
A REIT, Inc.
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
fax: (000) 000-0000
Attn.: Xxxxxxx X. Xxxxxxxx, President
if to the Dealer Manager:
NNN Capital Corp.
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
fax: (000) 000-0000
Attn.: Xxxxx X. Xxxxxxxx
if to you:
Trust Company of America
0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
fax: (000) 000-0000
Attn.: Xxxxxxx X. 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.
14. This Agreement shall be governed by the laws of the State of
California as to both interpretation and performance without regard to the
conflict of laws rules thereof.
15. The provisions of this Agreement shall be binding upon the
legal representatives, successors and assigns of the parties hereto.
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16. The Company and the Dealer Manager hereby acknowledge that you
are serving as Escrow Agent only for the limited purposes herein set forth, and
hereby agree that they will not represent or imply that you, 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 your name in any
manner whatsoever in connection with the offer or sale of the Stock other than
by acknowledgment that you have agreed to serve as Escrow Agent for the limited
purposes herein set forth.
17. 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.
18. In the event that you receive instruments of payment (or wired
funds) after the Required Capital has been received and the proceeds of the
Escrow Account have been distributed to the Company, you are 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 such funds into a
deposit account or to forward such funds directly to the Company, in either case
as directed by the Company, shall be a full acquittance to you and you shall not
be responsible for the application of such funds thereafter.
19. 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.
20. Indemnification provisions set forth herein shall survive the
termination of this Agreement.
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
pursuant to paragraph 3 hereof or (b) to a successor escrow agent upon written
instructions from the Company.
22. The Escrow Agent has no responsibility for accepting, rejecting
or approving subscriptions.
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, 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.
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Agreed to as of the ___day of _______, 2004.
A REIT, INC.
By:______________________________________________
Name: ___________________________________________
Title: __________________________________________
NNN CAPITAL CORP.
By:______________________________________________
Name: ___________________________________________
Title: __________________________________________
The terms and conditions contained above are hereby accepted and agreed to by:
TRUST COMPANY OF AMERICA
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
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