EXHIBIT 10.9
ESCROW AGREEMENT
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THIS AGREEMENT (this "Agreement") is entered into as of this 7th day of
March, by and between AmeriVest Properties Inc. (the "Company") and U.S. Bank
National Association ("Escrow Agent"), a national banking association.
RECITALS
A. The Company is conducting a public offering of units at a price of $10
per Unit, each Unit consisting of two shares of common stock and one common
stock purchase warrant to purchase one share of common stock of the Company (the
"Units"), under applicable state and Federal laws and regulations (the
"Offering"). The Offering is hereby made pursuant to a Registration Statement on
Form SB-2 to be declared effective by the Securities and Exchange Commission, a
copy to be attached to this Agreement as Exhibit A (the Registration
Statement").
B. The Company wishes to assure those who subscribe for Units (the
"Subscriber") that the Subscribers' monies will be released to the Company only
if and when not less than $2,000,000 (the "Threshold Amount") in subscriptions
for at least 200,000 Units are accepted by the Company from the sale of Shares
and upon the direction of the Company.
C. The Company desires to provide for the safekeeping of the proceeds of
the Offering until such time as subscriptions for Shares totaling the Threshold
Amount (or such greater amount as the Company may direct in writing) have been
received and upon the direction of the Company, or until such time as Escrow
Agent is required to pay and return such proceeds to the Subscribers upon the
terms hereinafter provided.
AGREEMENT
1. Deposit and Disbursement.
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a. Escrow Agent hereby agrees to receive and disburse the proceeds
from the offering of the Shares and any interest earned thereon in accordance
with the terms of this Agreement.
b. The Company or its authorized placement agents, on behalf of the
Subscribers, shall from time to time cause to be wired or deposited with Escrow
Agent all proceeds received from sales of Units to be placed in a special
interest-bearing escrow account at Escrow Agent designated as the "U.S. Bank,
Escrow Agent for AmeriVest Properties Inc. Escrow Account" (the "Escrow
Account") until the Threshold Amount (or such greater amount as the Company may
direct in writing) has been deposited in said account. All proceeds are to be
deposited in the Escrow Account within three (3) business days after receipt by
Escrow Agent.
c. As deposits are made in the Escrow Account, Company shall cause to
be delivered to Escrow Agent with each such deposit a list showing the name,
address, and tax identification number of each Subscriber together with a copy
of a fully completed subscription agreement for each Subscriber. Escrow Agent
shall keep a current list of the persons who have subscribed for the Shares and
deposited money, showing name, date, address and amount of each subscription.
All funds so deposited shall remain the property of the Subscribers, subject to
the provisions of Paragraph 5 hereof. Escrow agent shall promptly forward to the
Company any subscription agreements which it may receive directly from
Subscribers.
d. If the Company rejects any subscriptions for which Escrow Agent has
already collected funds, Escrow Agent shall promptly issue a refund check to the
rejected Subscriber in the amount of the original deposit collected from such
Subscriber, without interest. If the Company rejects any subscription for which
Escrow Agent has not yet collected funds but has submitted the Subscriber's
check for collection, Escrow Agent shall promptly issue a check in the amount of
the rejected Subscriber's check upon receipt of collected funds. Escrow Agent
shall promptly remit the Subscriber's check directly to the Subscriber.
e. In the event that the Threshold Amount is not deposited with Escrow
Agent on or before April 30, 2000, as set forth in the Company's Registration
Statement (unless that date is extended in accordance therewith), a copy of
which has been attached as Exhibit A hereto, Escrow Agent shall promptly return
the funds which have been deposited in the Escrow Account to the respective
Subscribers, in the amount and to the addresses as shown on its records, without
any interest and without any deductions. All interest earnings on the Escrow
Account shall be the property of the Company. For purposes of reporting to tax
authorities, Escrow Agent will report all interest earned by the escrow as paid
upon distribution.
f. Upon receipt of (i) the Threshold Amount (or such greater amount as
the Company may direct in writing) and (ii) written confirmation from the
Company that funds may be released from escrow, Escrow Agent shall release the
escrow funds, plus accumulated interest income less any unpaid fees and
expenses, to the Company. At the Company's option, it may continue to deposit
proceeds from the sale of additional Shares (after receipt and/or distribution
of the Threshold Amount or any greater amount as directed in writing by the
Company) and to direct the disbursement from time to time of funds so deposited
after subscriptions for the Threshold Amount have been received.
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2. Responsibilities and Obligations of Escrow Agent.
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a. Escrow Agent assumes no responsibilities, obligations, or
liabilities except those expressly provided for in this Agreement as follows:
(1) Escrow Agent shall have no responsibility, obligation or
liability to any person with respect to any action taken, suffered or omitted to
be taken by it in good faith under this Agreement and shall in no event be
liable hereunder except for its gross negligence or willful misconduct.
(2) Notwithstanding anything herein to the contrary, no reference
in this Agreement to any other agreement shall be construed or deemed to enlarge
the responsibilities, obligations, or liabilities of Escrow Agent set forth in
this Agreement, and Escrow Agent is not charged with knowledge of any other
agreement.
b. Escrow Agent shall be protected in relying upon the truth of any
statement contained in any requisition, notice, request, certificate, approval,
consent or other proper paper, and in acting on any such document, which on its
face and without inquiry as to any other facts, appears to be genuine and to be
signed by the proper party or parties, and is entitled to believe all signatures
are genuine and that any person signing any such paper who claims to be duly
authorized is in fact so authorized.
c. Escrow Agent shall be entitled to act on any instruction given to
it in writing and signed by an authorized signatory of the Company and shall be
fully protected in doing so.
d. Escrow Agent shall be entitled to act in accordance with any court
order or other final determination by any governmental authority with
jurisdiction of any matter arising hereunder.
e. Escrow Agent shall have no responsibility for, and makes no
representation as to the value, validity or genuineness of any article, asset or
document deposited with Escrow Agent in the Escrow Account under this Agreement,
provided that it will give notice to the Company of any check for money not
credited and the reason stated therefore and of any discrepancy with respect to
the value, validity or genuineness of any article, asset or document so
deposited if and when it has actual knowledge thereof.
f. Escrow Agent shall have no responsibility to make payments out of
the Escrow Account for any amount in excess of the amount of collected funds
deposited in the Escrow Account, together with any interest earnings thereon, at
the time any payment is to be made.
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g. If any controversy arises between the parties hereto or with any
third person relating to the Escrow Account , Escrow Agent shall not be required
to resolve the same or to take any action to do so but may at its discretion,
institute such interpleader or other proceedings as it deems proper. Escrow
Agent may rely on any joint written instructions as to the disposition of funds,
assets, documents or other assets held in escrow hereunder.
h. Escrow Agent may execute any of its powers or responsibilities
hereunder and exercise any of its rights hereunder either directly or by or
through its agents or attorneys. Nothing in this Agreement shall be deemed to
impose upon Escrow Agent any duty to qualify to do business or to act as a
fiduciary or otherwise in any jurisdiction. Escrow Agent shall not be
responsible for and shall not be under a duty to examine or pass upon the
validity, binding effect, execution or sufficiency of the Agreement or of any
agreement amendatory or supplemental hereto or of any other agreement.
3. Investment of Escrow Funds.
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The Company will provide written investment direction to Escrow Agent. If
any funds on deposit in escrow are exchanged for any securities which have
voting rights, the Company will be entitled to exercise such rights in writing.
Escrow Agent shall have no duty or right to invest funds on deposit in the
Escrow Account unless written investment direction is provided by the Company.
Interest earned on the Escrow Account will be the property of the Company. The
Company hereby affirms that it has received and read the prospectus describing
investment advisory fees which may be paid to Escrow Agent and its affiliates.
Income from all investments shall be taxable to the person to whom such income
is disbursed, and Escrow Agent shall have no responsibility for preparing or
filing any Federal or State tax returns in connection therewith.
4. Compensation of Escrow Agent.
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Escrow Agent shall be paid for services hereunder and shall be reimbursed
for its out of pocket expenses for fees of counsel in setting up the escrow, all
in accordance with the fee schedule attached hereto as Exhibit B. Payment of all
fees shall be the responsibility of the Company and may, to the extent of unpaid
fees and expenses, be deducted from any property placed within the escrow with
Escrow Agent.
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In the event that Escrow Agent is made a party to litigation with respect to the
property held hereunder, or brings an action in interpleader or in the event
that the conditions of this escrow are not promptly fulfilled, or Escrow Agent
is required to render any service not provided for in this Agreement and fee
schedule, or there is any assignment of the interest of this escrow or any
modification hereof, Escrow Agent shall be entitled to reasonable compensation
for such extraordinary services and reimbursement for all fees, costs, liability
and expenses, including reasonable attorneys' fees. Escrow Agent may amend its
fee schedule from time to time on sixty (60) days prior written notice to the
Company, provided, however, that any fee increase shall not exceed 10% of the
amounts set forth on the existing fee schedule.
5. Indemnification of Escrow Agent.
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The Company hereby indemnifies and holds harmless Escrow Agent against any
and all claims, losses, and damages it may suffer in connection with its
carrying out the terms of this Agreement, including, without limitation, Escrow
Agent's unpaid fees and reimbursable expenses, but excluding any loss Escrow
Agent may sustain as a result of its gross negligence or willful misconduct.
Escrow Agent shall have a lien or right of setoff on all funds, monies or other
assets held hereunder, to the extent such funds become property of the Company,
to pay all of its fees and reimbursable expenses permitted under this Agreement.
The obligations of the Company under this Section 5 shall survive termination
for any reason of this Agreement or resignation or removal of Escrow Agent.
6. Termination and Resignation.
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a. This Agreement shall terminate when (i) Escrow Agent or its
successor or assign receives written notification of termination from the
Company including final disposition instructions signed by the Company, and (ii)
there occurs the actual final disposition of the monies held in escrow hereunder
as provide in this Agreement. The rights and obligations of Escrow Agent shall
survive the termination of this Agreement.
b. Escrow Agent may resign at any time and be discharged from its
duties as escrow agent hereunder by giving the Company not fewer than sixty (60)
days prior written notice thereof. As soon as practicable after its resignation,
Escrow Agent shall turn over to a successor escrow agent appointed by the
Company all monies held hereunder upon presentation of the document from the
Company appointing a successor escrow agent and its acceptance of appointment.
Upon the designation of a successor escrow agent and the delivery to a resigning
escrow agent of the document appointing such successor escrow agent and its
acceptance of appointment, the resigning escrow agent shall be released from any
and all liabilities arising thereafter except as provided in Sections 2(a)(1)
and 5 of this Agreement.
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If no successor escrow agent is appointed by the Company within the sixty (60)
day period following such notice of resignation, Escrow Agent reserves the right
to forward the matter and all monies and other property held by Escrow Agent
pursuant to this Agreement to a court of competent jurisdiction at the expense
of the Company.
c. The Company may discharge Escrow Agent and appoint a successor
escrow agent hereunder at any time by giving Escrow Agent no fewer than sixty
(60) days prior written notice thereof. As soon as practicable after its
discharge, Escrow Agent shall turn over to the successor escrow agent appointed
by the Company all monies held hereunder upon presentation of the document from
the Company appointing such successor escrow agent and its acceptance of
appointment. Upon the designation of a successor escrow agent, the delivery to a
discharged escrow agent with its obligations pursuant to the immediately
preceding sentence, the discharged escrow agent shall be released from any and
all liabilities arising thereafter except as provided in Sections 2(a)(1) and 5
of this agreement.
7. Notices.
All notices provided for herein shall be in writing, shall be delivered by
hand or by registered or certified mail shall be deemed given when actually
received, and shall be addressed to the parties hereto at their respective
addresses, which may be changed by any party from time to time by written notice
to all other parties hereto as follows:
a. If to the Company:
AmeriVest Properties Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx With Fax Copy to:
(000) 000-0000 Xxxx X. Xxxxxxxxx
(000) 000-0000 (fax) (000) 000-0000
b. If to the Escrow Agent:
U.S. Bank Corporate Trust Services
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attn: Xxxx Xxxxx With Fax Copy to:
(000) 000-0000 Xxxxxxx XxxXxxxxx
(000) 000-0000 (fax) (000) 000-0000
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8. Disclosure.
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The parties hereby agree not to use the name of U.S. Trust National
Association to imply an association with the Offering other than that of a legal
escrow agent.
9. Brokerage Confirmation.
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The parties acknowledge that to the extent regulations of the Comptroller
of Currency or other applicable regulatory entity grant a right to receive
brokerage confirmations of security transactions of the escrow, the parties
waive receipt of such confirmations to the extent permitted by law. Escrow Agent
shall furnish a statement of security transactions on its regular monthly
reports to the Company.
10. Parties Bound.
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This Agreement shall extend to and be binding upon the respective
successors, representatives, and assigns of the Company and Escrow Agent.
11. Entire Agreement.
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This Agreement constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof and cannot be modified, amended,
supplemented, or changed, nor can any provisions hereof be waived, except by
written instrument executed by the parties hereto.
12. Assignment.
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Neither party may assign its rights or obligations under this Agreement
without the written consent of the other party hereto.
13. Applicable Law.
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The Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Colorado.
14. Severability.
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If at any time subsequent to the date hereof, any provision of this
Agreement shall be held by a court of competent jurisdiction to be illegal,
void, or unenforceable, such provision shall be of no force or effect, and shall
be limited or expanded in scope so as to carry out the intent of the parties as
expressed herein to the greatest extent possible. The illegality or
unenforceability of any such provision shall have no effect upon and shall not
impair the enforceability of any other provision of this Agreement.
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15. Counterparts.
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This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMPANY:
AMERIVEST PROPERTIES INC.
By
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Title
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U.S. BANK NATIONAL ASSOCIATION
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Name:
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Title:
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