ESCROW AGREEMENT
EXHIBIT 10.1
THIS
ESCROW AGREEMENT (the “Agreement”) is made and
entered into as of the 26th day
of March, 2009, by and
among Xxxxx National REIT I, Inc., a Maryland corporation (the
“Company”), Xxxxx Securities, LLC (the “Dealer Manager”), and UMB Bank, N.A., a
national banking association, as escrow agent (the “Escrow Agent”).
WHEREAS, the Company proposes to offer for sale (the “Offering”), on a continuing
basis, up to $1,100,000,000 shares of the Company’s common stock, par value $0.01 per share (the
“Shares”), pursuant to the terms of the prospectus (the “Prospectus”) contained in
the registration statement on Form S-11, as amended, filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, and dated
March 26, 2009;
WHEREAS, the Dealer Manager, a registered broker-dealer and member of the Financial Industry
Regulatory Authority (“FINRA”), has agreed to serve as the dealer manager for the Offering
and will offer the Shares through other registered broker-dealers that are members of FINRA (the
“Dealers”);
WHEREAS, it is anticipated that investors will subscribe for the Shares and will provide the
Dealer Manager with subscription payments for such Shares (the “Subscription Payments”),
which subscriptions will be contingent upon (i) their respective acceptances by the Company and
(ii) the Company’s acceptance of subscriptions aggregating $2,000,000 of Shares (the “Minimum
Amount”) deposited into escrow;
WHEREAS, the Company and the Dealer Manager desire to deposit funds contributed by the
Subscribers (as defined below) with the Escrow Agent, to be held for the benefit of the Subscribers
and the Company until such time as subscriptions for the Minimum Amount have been deposited into
escrow or otherwise in accordance with the terms of this Agreement;
WHEREAS, the Company and DST Systems, Inc., a Delaware corporation (the “Transfer Agent”) have
entered into that certain Agency Agreement whereby the Company has appointed Transfer Agent as
“transfer agent” as defined under the Securities Exchange Act of 1934;
WHEREAS, the Escrow Agent has agreed to receive and hold in escrow all Subscription Payments
until the earlier of (i) such time as subscriptions for the Minimum Amount have been received and
accepted by the Company or (ii) the close of business on the date exactly one year after the
original effective date of the Prospectus (the Company shall provide written notice of such date to
the Escrow Agent) (the “Minimum Subscription Termination Date”), and to hold and distribute
such Subscription Payments in accordance with the terms and conditions herein set forth; and
WHEREAS, the Escrow Agent is willing to accept appointment as the escrow agent for only the
expressed duties, terms and conditions outlined herein.
NOW, THEREFORE, in consideration of the premises and agreements set forth herein, the parties
hereto agree as follows:
1. Appointment of Escrow Agent. The Company and the Dealer Manager hereby appoint the
Escrow Agent to serve as escrow agent, and the Escrow Agent hereby accepts such appointment, each
in accordance with the terms of this Agreement. The Company and the Dealer Manager hereby
acknowledge that the status of the Escrow Agent is that of agent only for the limited purposes set
forth herein, and hereby agree that they will not represent that the Escrow Agent has investigated
the desirability or advisability of investment in the Shares or has approved, endorsed or passed
upon the merits of the investment therein. The Company and the Dealer Manager further agree that
the name of the Escrow Agent shall not be used in any manner in connection with the offer or sale
of the Shares other than to state that the Escrow Agent has agreed to serve as escrow agent for the
limited purposes set forth herein.
2. Proceeds. An investor subscribing to purchase Shares (the “Subscriber”)
will be instructed by the Dealer Manager or the Dealers to remit the purchase price in the form of
checks, drafts or money orders (the “Payment Instruments”) payable to the order of, or
funds wired in favor of, “UMB Bank, N.A., as escrow agent for Xxxxx National REIT I, Inc.” (the
“Escrow Account”), or, after the Company meets the Minimum Amount, payable to the order of,
or funds wired in favor of “Xxxxx National REIT I, Inc.” By noon of the next business day after
receipt of any Payment Instruments, the Dealer Manager or the Dealers shall remit to the Escrow
Agent the Payment Instruments. Such Payment Instruments shall be retained in the Escrow Account by
the Escrow Agent and invested as set forth in Section 7 and shall be deposited promptly following
receipt.
Prior to meeting the Minimum Amount and the disbursement of Collected Funds to Company in
accordance with Section 4 of this Agreement, upon receipt of the Payment Instruments, Escrow Agent
shall fax or scan a listing of the Subscriber name and purchase price to Transfer Agent, together
with all other subscription documents sent with the Payment Instruments.
In the event that any Payment Instruments deposited in the Escrow Account prove uncollectible
after the funds represented thereby have been released by the Escrow Agent to the Company, then the
Dealer Manager or Company shall promptly reimburse the Escrow Agent for any and all costs incurred
for such, upon request, and the Escrow Agent shall deliver the uncollectible Payment Instrument to
the Company. Notwithstanding the foregoing, if any Subscriber exercises any right provided by law
to rescind his or her subscription, the Escrow Agent shall, upon notice from the Company or the
Dealer Manager, return to such Subscriber all Subscription Payments pertaining to such
subscription, together with any earnings thereon during the period that such payments were held by
the Escrow Agent under this Agreement.
3. Subscriber Identity. Upon receipt of a Payment Instrument by the Escrow Agent, the
Dealer Manager shall furnish to the Escrow Agent each accepted Subscriber’s name, address, social
security number or tax identification number, number of Shares purchased and purchase price
remitted. All proceeds so deposited shall be considered the property of the Subscribers and shall
be held for the benefit of such Subscribers and shall not be: (i) commingled
with the monies or become an asset of the Company, or (ii) 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 Escrow Agent will not use the information
provided to it by the Company for any purpose other than to fulfill its obligations as the Escrow
Agent. The Escrow Agent agrees to treat all Subscriber information as confidential.
4. Disbursement of Proceeds. On a weekly basis, and at the end of the third business
day following the Minimum Subscription Termination Date (and more frequently, if requested by the
Company), the Escrow Agent shall notify the Company and Transfer Agent of the amount of Payment
Instruments received (the “Collected Funds”) since the last report. If (a) the Collected
Funds are in an amount equal to or greater than the Minimum Amount at any time prior to the Minimum
Subscription Termination Date, and (b) an officer of the Company has delivered a an affidavit or
certification to the Escrow Agent stating that (i) Collected Funds for the Minimum Amount of Shares
from persons who are not affiliated with the Company or its advisor has been timely raised, (ii)
the date on which the Minimum Amount were raised and (iii) the actual number of total shares sold
(the “Notice”), then the Escrow Agent shall deliver the Collected Funds and all earnings
thereon to the Company when and as directed by the Notice. Following such disbursement, the Escrow
Account shall close and thereafter the Escrow Agent shall forward directly to the Transfer Agent,
upon receipt, any subscription documents and Payment Instruments received from Subscribers.
If the Collected Funds are not equal to the Minimum Amount on the Minimum Subscription
Termination Date, the Escrow Agent shall (i) notify the Company, Transfer Agent and the Dealer
Manager immediately following the Minimum Subscription Termination Date and (ii) within a
reasonable time following the Minimum Subscription Termination Date, but in no event more than
thirty (30) days after the Minimum Subscription Termination Date, refund to each of the Subscribers
all sums paid by the Subscribers, with a pro-rata portion of any interest earned thereon, unless,
prior to such Minimum Subscription Termination Date, the Minimum Subscription Termination Date has
been extended by the Company for up to an additional one hundred and twenty (120) days. The
Company shall provide written notice to the Escrow Agent of any such Minimum Subscription
Termination Date extension.
5. Duty and Liability of the Escrow Agent. The sole duty of the Escrow Agent, other
than as herein specified, shall be to receive the Subscribers’ Payment Instruments and hold them
subject to release, in accordance herewith, and the Escrow Agent shall be under no duty to
determine whether the Company or the Dealer Manager is complying with requirements of this
Agreement or the Prospectus in tendering to the Escrow Agent said proceeds of the sale of the
Shares. The Escrow Agent shall have the right to perform any of its duties hereunder through its
agents, attorneys, custodians or nominees. The Escrow 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 conclusively rely upon and shall be protected in
acting upon any statement, certificate, notice, request, consent, order or other document
reasonably 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, and its sole responsibility shall
be to act only as expressly set forth in this Agreement. The Escrow Agent shall be under no
obligation to institute or defend any action, suit or proceeding in connection with this
Agreement unless first indemnified to its satisfaction. The Escrow Agent may consult and hire
counsel in respect of any question arising under this Agreement, and the Escrow Agent shall not be
liable for any action taken or omitted in good faith upon advice of such counsel.
The Escrow Agent is acting solely as escrow agent hereunder and owes no duties, covenants or
obligations, fiduciary or otherwise, to any other person by reason of this Agreement, except as
otherwise stated herein, and no implied duties, covenants or obligations, fiduciary or otherwise,
shall be read into this Agreement against the Escrow Agent. In no event shall the Escrow Agent be
liable, directly or indirectly, for any (i) damages, losses or expenses arising out of the services
provided hereunder, other then damages, losses or expenses which have been finally adjudicated to
have directly resulted from the Escrow Agent’s gross negligence or willful misconduct, or (ii)
special, indirect or consequential losses or damages of any kind whatsoever (including without
limitation lost profits), even if the Escrow Agent has been advised of the possibility of such
losses or damages and regardless of the form of action. The parties agree that the Escrow Agent
has 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. The Escrow Agent agrees that it may be named in the Prospectus and Offering documents,
to the extent necessary to describe this Agreement and the duties of the Escrow Agent herein. The
Escrow Agent shall have no obligation, duty or liability with respect to compliance with any
federal or state securities, disclosure or tax laws concerning the Offering documents or the
issuance, offering or sale of the Shares. The Escrow Agent shall have no duty or obligation to
monitor the application and use of the Subscriber funds once transferred to the Company, that being
the sole obligation and responsibility of the Company.
6. Escrow Agent Fee. The Escrow Agent shall be entitled to compensation for its
services, as stated in the fee schedule attached hereto as Exhibit A, which compensation
shall be paid by the Company. Subject to the provisions of Section 10, the fee agreed upon for the
services rendered hereunder in Exhibit A is intended as full compensation for the Escrow
Agent’s services as contemplated by this Agreement. Notwithstanding anything contained herein to
the contrary, in no event shall any fee, reimbursement for costs and expenses, indemnification for
damages incurred by the Escrow Agent or monies whatsoever be paid out of or chargeable to the
income of assets of the Escrow Account.
7. Investment of Subscription Payments. The Escrow Agent shall invest all Collected
Funds in the Fidelity Treasury 2016 (FT), or a successor or similar fund or account offered by the
Escrow Agent
Any interest received by the Escrow Agent with respect to the Collected Funds, including
reinvested interest, shall become part of the proceeds of the Escrow Account (the “Escrow
Income”), and shall be disbursed to the Company if Collected Funds, including interest
earnings, total the Minimum Amount. Any loss or expense incurred as a result of an investment will
be borne by the Escrow Account.
The parties recognize and agree that the Escrow Agent will not provide supervision,
recommendations or advice relating to either the investment of moneys held in the Escrow Account or
the purchase, sale, retention or other disposition of any permitted investment.
The Escrow Agent is hereby authorized to execute purchases and sales of permitted investments
through the facilities of its own trading or capital markets operations or those of any affiliated
entity. The Escrow Agent shall send statements to each of the parties hereto on a monthly basis
reflecting activity in the Escrow Account for the preceding month. No statement need be rendered
for the Escrow Account if no activity occurred for such month.
The Company and the Dealer Manager acknowledge and agree that the delivery of the escrowed
property is subject to the sale and final settlement of permitted investments. Proceeds of a sale
of permitted investments will be delivered on the business day on which the appropriate
instructions are delivered to the Escrow Agent if received prior to the deadline for same day sale
of such permitted investments. If such instructions are received after the applicable deadline,
proceeds will be delivered on the next succeeding business day.
8. Tax Reporting. As of each calendar year-end, the Escrow Agent shall report to the
Internal Revenue Service (the “IRS”) and to the Company or Subscribers all income earned
from the investment of any sum held in the Escrow Account against the Company or each Subscriber,
as and to the extent required under the provisions of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder (the “Code”). For the avoidance of
doubt, all interest or other taxable income earned on the Collected Funds in any tax year shall be
taxable to the person or entity receiving the interest or other taxable income.
The Company shall provide the Escrow Agent with certified tax identification numbers by
furnishing appropriate IRS forms W-9 or W-8 and other forms and documents that the Escrow Agent may
reasonably request. The parties hereto understand that if such tax reporting documentation is not
so certified to the Escrow Agent, the Escrow Agent may be required by the Internal Revenue Code of
1986, as amended, to withhold a portion of any interest or other income earned on the Collected
Funds pursuant to this Agreement for the Escrow Agent is not required to prepare and file any
income or other tax returns applicable to the Escrow Account with the IRS or required state and
local departments of revenue for years income is earned in any particular tax year. Any taxes
payable on income earned from the investment of any sums held in the Escrow Account shall be paid
by the Company or each Subscriber, whether or not the income was distributed by the Escrow Agent
during any particular year and to the extent required under the provisions of the Code.
To the extent that payment is due on any taxes in respect of income derived from the
investment of funds held or payments made hereunder, the Escrow Agent shall satisfy such liability
to the extent possible from the Collected Funds and the Escrow Agent shall not be liable for the
payment of such taxes in the event the Collected Funds are insufficient to pay such taxes. The
Company agrees to indemnify and hold the Escrow Agent harmless from and against any taxes,
additions for late payment, interest, penalties and other expenses that may be assessed against the
Escrow Agent on or with respect to any payment or other activities under this Agreement unless any
such tax, addition for late payment, interest, penalties and other expenses
shall arise out of or be caused by the gross negligence or willful misconduct of the Escrow Agent.
9. Notices. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given (i) on the date of
service if served personally on the party to whom notice is to be given, (ii) on the day of
transmission if sent by facsimile transmission to the facsimile number given below, and written
confirmation of receipt is obtained promptly after completion of transmission, (iii) on the day
after delivery to the United Parcel Service or similar overnight courier or the Express Mail
service maintained by the United States Postal Service and sent via overnight delivery or (iv) on
the fifth day after mailing, if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, and properly addressed, return receipt requested,
to the party as follows:
If to Company:
Xxxxx
National REIT I, Inc.
0000 Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax: 000-000-0000
0000 Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax: 000-000-0000
If to the Dealer Manager:
Xxxxx Securities, LLC
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Fax: 000-000-0000
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Fax: 000-000-0000
If to the Escrow Agent:
UMB Bank, N.A.
0000 Xxxxx Xxxx., 0xx Xxxxx
Mail Stop: 1020409
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Corporate Trust
Telephone: 000-000-0000
Fax: 000-000-0000
0000 Xxxxx Xxxx., 0xx Xxxxx
Mail Stop: 1020409
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Corporate Trust
Telephone: 000-000-0000
Fax: 000-000-0000
If to the Transfer Agent:
0000 Xxxxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Group Vice President-Full Service
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Group Vice President-Full Service
Facsimile No.: 000-000-0000
Wires to the Escrow Agent should be directed to the following:
UMB Bank, N.A.
ABA Routing Number: 000000000
Account Number: 9871737772
ABA Routing Number: 000000000
Account Number: 9871737772
Any party may change its address for purposes of this paragraph by giving the other party written
notice of the new address in the manner set forth above.
10. Indemnification of the Escrow Agent. The Company and the Dealer Manager hereby
jointly and severally indemnify and hold the Escrow Agent (and its officers, directors, employees
and agents) harmless from and against any and all loss, claim, liability, cost, damage and expense,
including, without limitation, reasonable counsel fees and expenses, 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 Agreement or any transaction to which this Agreement
relates unless such action, claim or proceeding is the result of the willful misconduct or gross
negligence of the Escrow Agent. The provisions of this section shall survive the termination of
this Agreement and the resignation or removal of the Escrow Agent.
11. Attachment of Escrow Account; Compliance with Legal Orders. In the event that any
escrow property shall be attached, garnished or levied upon by any court order, or the delivery
thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall
be made or entered by any court order affecting the property deposited under this Agreement, the
Escrow Agent is hereby expressly authorized, in its sole discretion, to obey and comply with all
writs, orders or decrees so entered or issued, which it is advised by legal counsel of its own
choosing is binding upon it, whether with or without jurisdiction, and in the event that the Escrow
Agent obeys or complies with any such writ order or decree it shall not be liable to any of the
parties hereto or to any other person, firm of corporation, by reason of such compliance
notwithstanding such writ, order or decree by subsequently reversed, modified, annulled, set aside
or vacated.
12. Successors and Assigns.
(i) Except as otherwise provided in this Agreement, no party hereto shall assign this
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 Agreement shall inure to the benefit of and shall be binding upon
the heirs, executors, administrators, successors and permitted assigns of the parties hereto.
(ii) Notwithstanding the above, any corporation or association into which the Escrow Agent may
be converted or merged, or with which it may be consolidated, or to which it may sell or transfer
all or substantially all of its corporate trust business and assets as a whole or substantially as
a whole, or any corporation or association resulting from any such conversion,
sale, merger, consolidation or transfer to which the Escrow Agent is a party, shall be and
become the successor Escrow Agent under this Agreement and shall have and succeed to the rights,
powers, duties, immunities and privileges as its predecessor, without the execution or filing of
any instrument or paper or the performance of any further act.
13. Term. This Agreement shall terminate within thirty (30) days of receipt of
written notice of termination by the Company and the Dealer Manager to the Escrow Agent. In the
event of the release of all Subscriber funds and all accrued interest in accordance with Section 4
of this Agreement, this Agreement shall terminate and the Escrow Agent shall be relieved of all
responsibilities in connection with the Escrow Account, except claims which are occasioned by its
gross negligence or willful misconduct.
14. Governing Law; Jurisdiction. This Agreement shall be construed, performed, and
enforced in accordance with, and governed by, the internal laws of the State of Missouri, without
giving effect to the principles of conflicts of laws thereof. Each party hereby consents to the
personal jurisdiction and venue of any court of competent jurisdiction in the State of Missouri.
15. Severability. 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.
16. Amendments; Waivers. This 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 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 Agreement.
17. Entire Agreement; Counterparts. This 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. This Agreement, and any amendments hereto, may be executed by the parties hereto in two or
more counterparts, each of which shall be deemed an original. 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 suite in the appropriate court of law.
18. Section Headings. The section headings in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this Agreement.
19. Disputes. In the event of a disagreement among any of the parties to this
Agreement, or among them or any other person resulting in adverse claims and demands being made in
connection with or from any property in the Escrow Account, the Escrow Agent shall be entitled to
refuse to comply with any such claims or demands as long as such disagreement may continue, and in
so refusing, shall make no delivery or other disposition of any property then held by it in the
Escrow Account under this Agreement, and in so doing, the Escrow Agent shall be entitled to
continue to refrain from acting until (i) the right of adverse claimants shall have been finally
settled by binding arbitration or finally adjudicated in a court assuming and having jurisdiction
of the property involved herein or affected hereby or (ii) all differences shall have been adjusted
by agreement and the Escrow Agent shall have been notified in writing of such agreement signed by
the parties hereto.
In the event of such dispute, the Escrow Agent shall be entitled, in its discretion and
judgment, 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 the Escrow
Agent deems appropriate, and thereupon be discharged from all further duties and liabilities under
this Agreement. In the event of any uncertainty as to its duties hereunder, the Escrow Agent may
refuse to act under the provisions of this Agreement pending order of a court of competent
jurisdiction and the Escrow Agent shall have no liability to the Company, the Dealer Manager 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.
20. Limited Purpose. The Company and the Dealer Manager hereby acknowledge that the
Escrow Agent is serving as the escrow agent only for the limited purposes herein set forth, and
hereby agree that they will not represent or imply that the Escrow Agent, by serving as the 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 Shares, nor shall they use
its name in any manner whatsoever in connection with the offer or sale of the Shares other than by
acknowledgment that the Escrow Agent has agreed to serve as the Escrow Agent for the limited
purposes set forth herein.
21. Resignation. The Escrow Agent may resign upon thirty (30) days advance written
notice to the Company and the Dealer Manager. Such resignation shall become effective on the date
specified in such notice, which shall be not earlier than thirty (30) days after such written
notice has been given. In the event of any such resignation, a successor escrow agent, which shall
be a bank or trust company organized under the laws of the United States of America, shall be
appointed by the mutual agreement of the Company and the Dealer Manager. Any such successor escrow
agent shall deliver to the Company and the Dealer Manager a written instrument accepting such
appointment, and thereupon shall succeed to all the rights and duties of the Escrow Agent hereunder
and shall be entitled to receive the Escrow Account from the Escrow Agent. The Escrow Agent shall
promptly pay the Subscription Payments in the Escrow Account, including interest thereon, to the
successor escrow agent. If a successor escrow agent is not appointed by the Company or the Dealer
Manager 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. All costs, expenses and reasonable attorneys fees the Escrow
Agent incurs in connection with such proceeding shall be paid by the Company.
22. Removal. The Escrow Agent may be jointly removed by the Company and the Dealer
Manager at any time, by written notice executed by both of them (which may be executed in
counterparts) provided to the Escrow Agent, which instrument shall become 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. In the event of any such removal, a
successor escrow agent, which shall be a bank or trust company organized under the laws of the
United States of America, shall be appointed by the mutual agreement of the Company and the Dealer
Manager. Any such successor escrow agent shall deliver to the Company and the Dealer Manager a
written instrument accepting such appointment, and thereupon shall succeed to all the rights and
duties of the Escrow Agent hereunder and shall be entitled to receive the Escrow Account from the
Escrow Agent. The Escrow Agent shall promptly pay the Subscription Payments in the Escrow Account,
including interest thereon, to the successor escrow agent. If a successor escrow agent is not
appointed by the Company or the Dealer Manager 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. All costs, expenses and reasonable attorneys fees the Escrow Agent incurs in
connection with such proceeding shall be paid by the Company.
23. Maintenance of Records. The Escrow Agent shall maintain accurate records of all
transactions hereunder. Promptly after the termination of this Agreement, and as may from time to
time be reasonably requested by the Company before such termination, the Escrow Agent shall provide
the Company with a copy of such records, certified by the Escrow Agent to be a complete and
accurate account of all transactions hereunder. The authorized representatives of the Company and
the Dealer Manager shall also have access to the Escrow Agent’s books and records to the extent
relating to its duties hereunder, during normal business hours upon reasonable notice to the Escrow
Agent, and at the requesting party’s expense.
24. Force Majeure. No party to this Agreement shall be liable to any other party for
losses arising out of, or the inability to perform its obligations under the terms of this
Agreement, due to acts of God, which shall include, but shall not be limited to, fire, floods,
strikes, mechanical failure, war, riot, nuclear accident, earthquake, terrorist attack, computer
piracy, cyber-terrorism or other acts beyond the control of the parties hereto.
25. Representatives. The applicable persons designated on Exhibit B hereto
have been duly appointed to act as its representatives hereunder and have full power and authority
to execute and deliver any written directions, to amend, modify or waive any provision of this
Agreement and to take any and all other actions on behalf of the Company or Dealer Manager, as
applicable, under this Agreement, all without further consent or direction from, or notice to, it
or any other party.
26. USA PATRIOT Act. Company and Dealer Manager acknowledge that a portion of the
identifying information set forth on Exhibit B is being requested by the Escrow Agent in
connection with the USA Patriot Act, Pub.L. 107-56 (the “Act”), and Company and Dealer
Manager agree to provide any additional information requested by the Escrow Agent in
connection with the Act or any similar legislation or regulation to which Escrow Agent is subject,
in a timely manner. The Company and the Dealer Manager each represents that its respective
identifying information set forth on Exhibit B, including without limitation, its Taxpayer
Identification Number assigned by the Internal Revenue Service or any other taxing authority, is
true and complete on the date hereof and will be true and complete at the time of any disbursement
of the Escrow Funds.
27. Illegal Activities. Escrow Agent shall have the rights in its sole discretion to
not accept appointment as escrow agent and reject funds and collateral from any party in the event
that Escrow Agent has reason to believe that such funds or collateral violate applicable banking
practices or applicable laws or regulations, including but not limited to the Patriot Act. In the
event of suspicious or illegal activity and pursuant to all applicable laws, regulations and
practices, the other parties to this Agreement will assist Escrow Agent and comply with any
reviews, investigations and examinations directed against the deposited funds.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the
day and year first set forth above.
| XXXXX NATIONAL REIT
I, INC., a Maryland corporation, the Company |
||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||
| Name: | Xxxxx X. Xxxxx
|
|||||
| Title: | Chief Executive Officer and President
|
|||||
| XXXXX SECURITIES, LLC, a Delaware limited liability company, as Dealer Manager |
||||||
| By: | /s/ Xxxx Xxxxx | |||||
| Name: | Xxxx Xxxxx
|
|||||
| Title: | President
|
|||||
| UMB BANK, N.A., a national banking association, as Escrow Agent |
||||||
| By: | /s/ Xxxx X. Xxxxxxx | |||||
| Name: | Xxxx
X. Xxxxxxx
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| Title: | Vice
President
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EXHIBIT A
These fees are based upon our current understanding of our duties under the escrow agreement.
Escrow Agent reserves the right to adjust its fees should the duties change under the agreement.
ONE-TIME ESCROW AGENT FEE
Review escrow agreement and establish account |
$ | 8,000.00 |
TRANSACTION FEES
(a) per outgoing disbursement |
$ | 25.00 | ||
(b) per form 1099 (Int., B or Misc.) |
$ | 15.00 | ||
(c) per investment purchase, sale or settlement |
$ | 35.00 | * |
| * | Excludes money market 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 its
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. The escrow agent fee will be payable at the initiation of the escrow and will be for
a period of one year. If the escrow period extends beyond one year, an additional escrow agent fee
of $750.00 per month will be payable.
The Escrow Agent shall have the right to perform its duties under the Escrow Agreement either
directly or through agents and shall not be responsible for any misconduct or negligence on the
part of any agent appointed or chosen by it with due care. The Company shall reimburse the Escrow
Agent for any reasonable expenses incurred by the Escrow Agent in the hiring of any third party
agent with the duties set forth in this Agreement. Such expenses are estimated to be $3,000.00 and
are included in the One-Time Escrow Agent fee stated above.
Exhibit B
Company |
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Representative:
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The following individual(s) is hereby appointed as representative of the Company under the Escrow Agreement: |
| Name: | Specimen Signature: | |||||||
| Name: | Specimen Signature: | |||||||
Dealer Manager |
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Representative:
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The following individual(s) is hereby appointed as representative of the Dealer Manager under the Escrow Agreement: |
| Name: | Specimen Signature: | |||||||
| Name: | Specimen Signature: | |||||||
