SUBSCRIPTION ESCROW AGREEMENT
THIS SUBSCRIPTION ESCROW AGREEMENT
(this “Escrow
Agreement”), dated as of January 21, 2011, is entered into by and among
Realty Capital Securities, LLC (the “Dealer Manager”), Business
Development Corporation of America (the “Company”) and Xxxxx Fargo
Bank, National Association, a national banking association, as Escrow Agent (the
“Escrow
Agent”).
WHEREAS, the Company intends
to raise cash funds from investors (the “Investors”) pursuant to a
public offering (the “Offering”) of not less than
$2,500,000 (the “Minimum
Amount”) nor more than $1,500,000,000 of shares of common stock, par
value $0.001 of the Company (the “Securities”) pursuant to the
Registration Statement on Form N-2 of the Company (No. 333-166636) (the “Offering Document”), as filed
with the U.S. Securities and Exchange Commission on May 7, 2010, and as may be
amended, a copy of which is attached as Exhibit A hereto.
WHEREAS, the Company desires
to establish an escrow account with the Escrow Agent for funds contributed by
the Investors with the Escrow Agent, to be held for the benefit of the Investors
and the Company until such time as subscriptions for the Minimum Amount of the
Securities, have been deposited into escrow or otherwise in accordance with the
terms of this Escrow Agreement.
WHEREAS, the Escrow Agent is
willing to accept appointment as escrow agent only for the expressed duties
outlined herein.
NOW, THEREFORE, in
consideration of the premises set forth above and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Proceeds to be Escrowed. On or
before the first date of the Offering, the Company shall establish an escrow
account with the Escrow Agent to be invested in accordance with Section 7 hereof
entitled “ESCROW ACCOUNT FOR THE BENEFIT OF INVESTORS FOR COMMON STOCK OF
BUSINESS DEVELOPMENT CORPORATION OF AMERICA (including such abbreviations as are
required for the Escrow Agent’s systems) (the “Escrow
Account”). All funds received from Investors in payment for
the Securities (“Investor
Funds”) will be delivered to the Escrow Agent within one (1) business day
following the day upon which such Investor Funds are received by the Company or
its agents, and shall, upon receipt by the Escrow Agent, be retained in escrow
by the Escrow Agent and invested as stated herein. During the term of this
Escrow Agreement, the Company or its agents shall cause all checks received by
and made payable to it in payment for the Securities to be endorsed in favor of
the Escrow Agent and delivered to the Escrow Agent for deposit in the Escrow
Account.
The Escrow Agent shall have no duty to
make any disbursement, investment or other use of Investor Funds until and
unless it has good and collected funds. In the event that any checks
deposited in the Escrow Account are returned or prove uncollectible after the
funds represented thereby have been released by the Escrow Agent, then the
Company shall promptly reimburse the Escrow Agent for any and all costs incurred
for such, upon request, and the Escrow Agent shall deliver the returned checks
to the Company. The Escrow Agent shall be under no duty or
responsibility to enforce collection of any check delivered to it
hereunder.
The Escrow Agent reserves the right to deny, suspend or terminate participation
by an Investor to the extent the Escrow Agent deems it advisable or necessary to
comply with applicable laws or to eliminate practices that are not consistent
with the purposes of the Offering.
2. Investors. Investors will be
instructed by Realty Capital Securities, LLC (the “Dealer Manager”) or any
soliciting dealers to remit the purchase price in the form of checks
(hereinafter “instruments of payment”) payable to the order of, or funds wired
in favor of, “XXXXX FARGO BANK, NA, ESCROW AGENT FOR BUSINESS DEVELOPMENT
CORPORATION OF AMERICA.” Any checks 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 Escrow Agent shall be furnished
with a list of the Investors who have paid for the Securities showing the name,
address, tax identification number, amount of Securities subscribed for and the
amount paid. The information comprising the identity of Investors
shall be provided to the Escrow Agent in the format set forth in the “List of
Investors” attached hereto as Exhibit B.
All Investor Funds deposited in the
Escrow Account shall not be subject to any liens or charges by the Company or
the Escrow Agent, or judgments or creditors’ claims against the Company, until
and unless released to the Company as hereinafter provided. The
Company understands and agrees that the Company shall not be entitled to any
Investor Funds on deposit in the Escrow Account and no such funds shall become
the property of the Company, or any other entity except as released to the
Company pursuant to Section 3. The Escrow Agent will not use the
information provided to it by the Company for any purpose other than to fulfill
its obligations as Escrow Agent. The Company and the Escrow Agent
will treat all Investor information as confidential. The Escrow Agent
shall not be required to accept any Investor Funds which are not accompanied by
the information on the List of Investors.
3. Disbursement of
Funds. Once the Escrow Agent is in receipt of good and
collected Investor Funds totaling at least the Minimum Amount from Investors,
the Escrow Agent shall notify the Company of same in writing. Additionally, at
the end of the third business day following the Termination Date (as defined in
Section 4), the Escrow Agent shall notify the Company of the amount of the
Investor Funds received. If the Minimum Amount has been obtained on
or before the Termination Date, the Escrow Agent shall promptly notify the
Company and, upon receiving an acknowledgement of such notice written
instructions from the Company’s General Counsel or Chief Financial Officer, the
Escrow Agent shall disburse to the Company, by check or wire transfer, the funds
in the Escrow Account representing the gross purchase price of the Securities,
except for amounts payable by the Company to the Escrow Agent pursuant to
Exhibit D to this Escrow Agreement, which remain outstanding. The
Escrow Agent agrees that funds in the Escrow Account shall not be released to
the Company until and unless the Escrow Agent receives written instructions to
release the funds from the Company’s General Counsel or Chief Financial
Officer.
2
If the Minimum Amount has not been
obtained prior to the Termination Date, the Escrow Agent shall, promptly
following the Termination Date, but in no event more than thirty (30) days after
the Termination Date, refund to each Investor by check funds deposited in the
Escrow Account, or shall return the instruments of payment delivered to Escrow
Agent if such instruments have not been processed for collection prior to such
time, directly to each Investor at the address provided in the list of
Investors. Included in the remittance shall be a proportionate share of the
income earned in the account allocable to each Investor’s investment in
accordance with the terms and conditions specified herein, except that in the
case of Investors who have not provided an executed Form W-9 or substitute Form
W-9 (or the applicable substitute Form W-8 for foreign investors), the Escrow
Agent shall withhold the applicable percentage of the earnings attributable to
those Investors in accordance with IRS regulations. Notwithstanding the
foregoing, the Escrow Agent shall not be required to remit any payments until
funds represented by such payments have been collected by Escrow
Agent.
In the event the Escrow Agent receives
written notice from the Company that the Company intends to reject an Investor’s
subscription, the Escrow Agent shall pay to the applicable Investor(s), within a
reasonable time not to exceed ten (10) business days after receiving notice of
the rejection, by first class United States Mail at the address appearing on the
List of Investors, or at such other address as shall be furnished to the Escrow
Agent by the Investor in writing, all collected sums paid by the Investor for
Securities and received by the Escrow Agent, together with the interest earned
on such Investor Funds.
4. Term of Escrow. The
“Termination Date” shall be the earlier of (i) the close of business on the one
year anniversary of the date of this Escrow Agreement; (ii) all funds held in
the Escrow Account are distributed to the Company or to Investors
pursuant to Section 3 and the Company has informed the Escrow Agent in writing
to close the Escrow Account; (iii) the date the Escrow Agent receives written
notice from the Company that it is abandoning the sale of the Securities; or
(iv) the date the Escrow Agent receives notice from the Securities and Exchange
Commission or any other federal or state regulatory authority that a stop or
similar order has been issued with respect to the Offering Document and has
remained in effect for at least twenty (20) days. After the
Termination Date the Company and its agents shall not deposit, and the Escrow
Agent shall not accept, any additional amounts representing payments by
prospective Investors.
3
5. Duty and Liability of the Escrow
Agent. The sole duty of the Escrow Agent shall be to receive Investor
Funds 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 Escrow Agreement, the Offering or
applicable securities or other laws in tendering the Investor Funds to the
Escrow Agent. No other agreement entered into between the parties, or any of
them, shall be considered as adopted or binding, in whole or in part, upon the
Escrow Agent notwithstanding that any such other agreement may be referred to
herein or deposited with the Escrow Agent or the Escrow Agent may have knowledge
thereof, including specifically but without limitation any Offering Documents
(including the subscription agreement and exhibits thereto), and the Escrow
Agent’s rights and responsibilities shall be governed solely by this Escrow
Agreement. The Escrow Agent shall not be responsible for or be
required to enforce any of the terms or conditions of any Offering Document
(including the subscription agreement and exhibits thereto) or other agreement
between the Company and any other party. The Escrow Agent may
conclusively rely upon and shall be protected in acting upon any statement,
certificate, notice, request, consent, order or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Escrow Agent shall have no duty or liability to verify any such statement,
certificate, notice, request, consent, order or other document, and its sole
responsibility shall be to act only as expressly set forth in this Escrow
Agreement. Concurrent with the execution of this Escrow Agreement, the Company
shall deliver to the Escrow Agent an authorized signers form in the form of
Exhibit C to this Escrow Agreement. The Escrow Agent shall be under
no obligation to institute or defend any action, suit or proceeding in
connection with this Escrow Agreement unless first indemnified to its
satisfaction. The Escrow Agent may consult counsel of its own choice
with respect to any question arising under this Escrow Agreement and the Escrow
Agent shall not be liable for any action taken or omitted in good faith upon
advice of such counsel. The Escrow Agent shall not be liable for any
action taken or omitted by it in good faith except to the extent that a court of
competent jurisdiction determines that the Escrow Agent’s gross negligence or
willful misconduct was the primary cause of loss. 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 Escrow Agreement,
except as otherwise stated herein, and no implied duties, covenants or
obligations, fiduciary or otherwise, shall be read into this Escrow Agreement
against the Escrow Agent. In the event of any disagreement between any of
the parties to this Escrow Agreement, or between any of them and any other
person, including any Investor, resulting in adverse claims or demands being
made in connection with the matters covered by this Escrow Agreement, or in the
event that the Escrow Agent is in doubt as to what action it should take
hereunder, the Escrow Agent may, at its option, refuse to comply with any claims
or demands on it, or refuse to take any other action hereunder, so long as such
disagreement continues or such doubt exists, and in any such event, the Escrow
Agent shall not be or become liable in any way or to any person for its failure
or refusal to act, and the Escrow Agent shall be entitled to continue so to
refrain from acting until (i) the rights of all interested parties shall have
been fully and finally adjudicated by a court of competent jurisdiction, or (ii)
all differences shall have been adjudged and all doubt resolved by agreement
among all of the interested persons, and the Escrow Agent shall have been
notified thereof in writing signed by all such persons. Notwithstanding the
foregoing, the Escrow Agent may in its discretion obey the order, judgment,
decree or levy of any court, whether with or without jurisdiction and the Escrow
Agent is hereby authorized in its sole discretion to comply with and obey any
such orders, judgments, decrees or levies. In the event that any
controversy should arise with respect to this Escrow Agreement the Escrow Agent
shall have the right, at its option, to institute an interpleader action in any
court of competent jurisdiction to determine the rights of the
parties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR
INDIRECTLY, FOR ANY 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 (including the
subscription agreement and exhibits thereto) and makes no representations or
warranties with respect to the information contained therein or omitted
therefrom. 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 (including the
subscription agreement and exhibits thereto) or the issuance, offering or sale
of the Securities. The Escrow Agent shall have no duty or obligation
to monitor the application and use of the Investor Funds once transferred to the
Company, that being the sole obligation and responsibility of the
Company.
4
6. Escrow Agent’s Fee. The Escrow
Agent shall be entitled to compensation for its services as stated in the fee
schedule attached hereto as Exhibit D, which compensation shall be paid by the
Company. The fee agreed upon for the services rendered hereunder is intended as
full compensation for the Escrow Agent’s services as contemplated by this Escrow
Agreement; provided, however, that in the event that the conditions for the
disbursement of funds under this Escrow Agreement are not fulfilled, or the
Escrow Agent renders any material service not contemplated in this Escrow
Agreement, or there is any assignment of interest in the subject matter of this
Escrow Agreement, or any material modification hereof, or if any material
controversy arises hereunder, or the Escrow Agent is made a party to any
litigation pertaining to this Escrow Agreement, or the subject matter hereof,
then the Escrow Agent shall be reasonably compensated for such extraordinary
services and reimbursed for all costs and expenses, including reasonable
attorney’s fees, occasioned by any delay, controversy, litigation or event, and
the same shall be recoverable from the Company. The Company’s
obligations under this Section 6 shall survive the resignation or removal of the
Escrow Agent and the assignment or termination of this Escrow
Agreement.
7. Investment of Investor Funds.
The Investor Funds shall be deposited in the Escrow Account in accordance
with Section 3. The Escrow Agent is hereby directed to invest all
funds received under this Escrow Agreement, including principal and interest in,
the Xxxxx Fargo Bank Money Market Deposit Account, as directed in writing in the
form of Exhibit E to this Escrow Agreement. The Escrow Agent shall
invest the Investor Funds in alternative investments in accordance with written
instructions as may from time to time be provided to the Escrow Agent and signed
by the Company. In the absence of written investment instructions
from the Company to the contrary, the Escrow Agent is hereby directed to invest
the Investor Funds in the Xxxxx Fargo Bank Money Market Deposit Account. Notwithstanding the
foregoing, Investor Funds shall not be invested in anything other than “Short
Term Investments” in compliance with Rule 15c2-4 of the Securities Exchange Act
of 1934, as amended. The following are not permissible investments:
(a) money market mutual funds, (b) corporate debt or equity securities, (c)
repurchase agreements, (d) banker’s acceptance, (e) commercial paper, and (f)
municipal securities. Any interest received by the Escrow Agent with
respect to the Investor Funds, including reinvested interest shall become part
of the Investor Funds, and shall be disbursed pursuant to Section
3.
The Escrow Agent shall be entitled to
sell or redeem any such investments as necessary to make any payments or
distributions required under this Escrow Agreement. The Escrow Agent
shall have no responsibility or liability for any loss which may result from any
investment made pursuant to this Escrow Agreement, or for any loss resulting
from the sale of such investment. The parties acknowledge that the
Escrow Agent is not providing investment supervision, recommendations, or
advice.
5
The Company on the date of this Escrow
Agreement shall provide the Escrow Agent with a certified tax identification
number by furnishing appropriate IRS form W-9 or W-8 (or substitute form W-9 or
W-8) and other forms and documents that the Escrow Agent may reasonably
request. The Company understands 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 Investor Funds pursuant to this
Escrow Agreement.
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
Escrow Agreement unless any such tax, addition for late payment, interest,
penalties and other expenses shall be determined by a court of competent
jurisdiction to have been caused by the Escrow Agent’s gross negligence or
willful misconduct. The terms of this Section shall survive the
termination of this Escrow Agreement and the resignation or removal of the
Escrow Agent.
8. Notices. All
notices, requests, demands, and other communications under this Escrow Agreement
shall be in writing and shall be deemed to have been duly given (a) on the date
of service if served personally on the party to whom notice is to be given, (b)
on the day of transmission if sent by facsimile/email transmission bearing an
authorized signature to the facsimile number/email address given below, and
written confirmation of receipt is obtained promptly after completion of
transmission, (c) on the day after delivery to Federal Express or similar
overnight courier or the Express Mail service maintained by the United States
Postal Service, or (d) 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 the
Company:
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention: Xxxxx
X. Block, Chief Financial Officer
with a
copy to:
Bass,
Xxxxx & Xxxx PLC
000
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxx 00000-0000
Fax: (000)
000-0000
Attention: Xxxx
Xxxx, Esq.
If to the
Dealer Manager:
Realty
Capital Securities, LLC
Three
Xxxxxx Place
Suite
3300
Xxxxxx,
XX 00000
Fax: (000)
000-0000.
Attention: Xxxxxx
Xxxxxx, President
6
with a
copy to:
Bass,
Xxxxx & Xxxx PLC
000
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxx 00000-0000
Fax: (000)
000-0000
Attention: Xxxx
Xxxx, Esq.
and:
Business
Development Corporation of America
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention: Xxxxx
X. Block, Chief Financial Officer
If to
Escrow Agent:
Xxxxx
Fargo Bank, National Association
00
Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Fax:
(000) 000-0000
Attention: Xxxx
Xxxxxxx
Any party
may change its address for purposes of this Section by giving the other party
written notice of the new address in the manner set forth above.
9. Indemnification of Escrow Agent.
The Company and the Dealer Manager hereby jointly and severally
indemnify, defend and hold harmless the Escrow Agent from and against, any and
all loss, 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 Escrow Agreement or any
transaction to which this Escrow Agreement relates unless such loss, liability,
cost, damage or expense is finally determined by a court of competent
jurisdiction to have been primarily caused by the willful misconduct of the
Escrow Agent. The terms of this Section shall survive the termination
of this Escrow Agreement and the resignation or removal of the Escrow
Agent.
7
10. Successors and Assigns. Except
as otherwise provided in this Escrow Agreement, no party hereto shall assign
this Escrow Agreement or any rights or obligations hereunder without the prior
written consent of the other parties hereto and any such attempted assignment
without such prior written consent shall be void and of no force and effect.
This Escrow Agreement shall inure to the benefit of and shall be binding upon
the successors and permitted assigns of the parties hereto. 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 Escrow 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 any further act.
11. Governing Law; Jurisdiction.
This Escrow Agreement shall be construed, performed, and enforced in
accordance with, and governed by, the internal laws of the State of New York,
without giving effect to the principles of conflicts of laws
thereof.
12. Severability. In the event
that any part of this Escrow Agreement is declared by any court or other
judicial or administrative body to be null, void, or unenforceable, said
provision shall survive to the extent it is not so declared, and all of the
other provisions of this Escrow Agreement shall remain in full force and
effect.
13. Amendments; Waivers. This
Escrow Agreement may be amended or modified, and any of the terms, covenants,
representations, warranties, or conditions hereof may be waived, only by a
written instrument executed by the parties hereto, or in the case of a waiver,
by the party waiving compliance. Any waiver by any party of any condition, or of
the breach of any provision, term, covenant, representation, or warranty
contained in this Escrow Agreement, in any one or more instances, shall not be
deemed to be nor construed as further or continuing waiver of any such
condition, or of the breach of any other provision, term, covenant,
representation, or warranty of this Escrow Agreement. The Company and
the Dealer Manager agree that any requested waiver, modification or amendment of
this Escrow Agreement shall be consistent with the terms of the
Offering.
14. Entire Agreement. This Escrow
Agreement contains the entire understanding among the parties hereto with
respect to the escrow contemplated hereby and supersedes and replaces all prior
and contemporaneous agreements and understandings, oral or written, with regard
to such escrow.
15. Section Headings. The section
headings in this Escrow Agreement are for reference purposes only and shall not
affect the meaning or interpretation of this Escrow Agreement.
16. Counterparts. This Escrow
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute the same instrument.
17. Resignation. The Escrow Agent
may resign upon 30 days’ advance written notice to the parties hereto. If a
successor escrow agent is not appointed by the Company within the 30-day period
following such notice, the Escrow Agent may petition any court of competent
jurisdiction to name a successor escrow agent, or may interplead the Investor
Funds with such court, whereupon the Escrow Agent’s duties hereunder shall
terminate.
8
18. References to Escrow
Agent. Other than the Offering Document (including the
subscription agreement and exhibits thereto) and any amendments or supplements
thereto, no printed or other matter in any language (including, without
limitation, notices, reports and promotional material) which mentions the Escrow
Agent’s name or the rights, powers, or duties of the Escrow Agent shall be
issued by the Company or the Dealer Manager, or on the Company’s or the Dealer
Manager’s behalf, unless the Escrow Agent shall first have given its specific
written consent thereto. Notwithstanding the foregoing, any amendment
or supplement to the Offering Document (including the subscription agreement and
exhibits thereto) that revises, alters, modifies, changes or adds to the
description of the Escrow Agent or its rights, powers or duties hereunder shall
not be issued by the Company or the Dealer Manager, or on the Company’s or
Dealer Manager’s behalf, unless the Escrow Agent has first given specific
written consent thereto.
[Signature
page follows]
9
IN WITNESS WHEREOF, the
parties hereto have caused this Escrow Agreement to be executed the date and
year first set forth above.
|
BUSINESS
DEVELOPMENT CORPORATION OF AMERICA
|
|
|
By:
|
/s/ Xxxxxxxx X. Xxxxxxxx |
|
Name:
|
Xxxxxxxx
X. Xxxxxxxx
|
|
Title:
|
Chief
Executive Officer
|
|
REALTY
CAPITAL SECURITIES, LLC
|
|
|
By:
|
/s/ Xxxxxx Xxxxxx |
|
Name:
|
Xxxxxx
Xxxxxx
|
|
Title:
|
President
|
|
XXXXX
FARGO BANK, NATIONAL
|
|
|
ASSOCIATION,
as Escrow Agent
|
|
|
By:
|
/s/
Xxxxxxx Xxxxxxx
|
|
Name:
|
Xxxxxxx
Xxxxxxx
|
|
Title:
|
Vice President |
10
Exhibit
A
Copy of
Offering Document
11
Exhibit
B
List of
Investors
Pursuant
to the Escrow Agreement dated January 21, 2011, by and between Business
Development Corporation of America (the “Company”), and Xxxxx Fargo
Bank, National Association (the “Escrow Agent”), the Company
hereby certifies that the following Investors have paid money for the purchase
of shares of the Company’s common stock, par value $0.001, and the money has
been deposited with the Escrow Agent:
1. Name
of Investor
Address
Tax
Identification Number
Amount of
Securities subscribed for
Amount of
money paid and deposited with Escrow Agent
2. Name
of Investor
Address
Tax
Identification Number
Amount of
Securities subscribed for
Amount of
money paid and deposited with Escrow Agent
|
Company:
|
|
|
By:
|
|
|
Its:
|
|
|
Date:
|
12
Exhibit
C
CERTIFICATE
AS TO AUTHORIZED SIGNATURES
Account
Name:
Account
Number:
The
specimen signatures shown below are the specimen signatures of the individuals
who have been designated as Authorized Representatives of Business Development Corporation of
America and are authorized to initiate and approve transactions of all
types for the above-mentioned account on behalf of Business Development Corporation of
America.
|
Name/Title
|
Specimen Signature
|
|
|
Xxxxxxxx
X. Xxxxxxxx
|
||
|
Chief
Executive Officer
|
Signature
|
|
|
Xxxxxxx
X. Xxxxxx
|
||
|
President
and Chief Operating Officer
|
Signature
|
|
|
Xxxxx
X. Block
|
||
|
Chief
Financial Officer
|
Signature
|
|
|
Xxxxx
X. Xxxxx
|
||
|
Chief
Investment Officer
|
Signature
|
13
Exhibit
D
|
Wells
Fargo Bank
|
[NAME]
|
[logo]
|
|
Corporate
Trust Services
|
[POSITION]
|
|
|
0000
Xxxx Xxxxxx, 0xx
Xxxxx
|
Tel: [__________]
|
|
|
Mac
T5303-022
|
Fax: [__________]
|
|
|
Xxxxxx,
XX 00000
|
[EMAIL]
|
GENERAL
SCHEDULE OF FEES
to
act as ESCROW AGENT for the
Business
Development Corporation of America Subscription Escrow
|
Acceptance
Fee:
|
$500
|
Initial
Fees as they relate to Xxxxx Fargo Bank acting in the capacity of Escrow Agent –
includes review of the Escrow Agreement; acceptance of the Escrow appointment;
setting up of Escrow Account(s) and accounting records; and coordination of
receipt of funds for deposit to the Escrow Account(s).
Acceptance
Fee payable at time of Escrow Agreement execution.
|
Escrow Agent Annual
Administration Fee:
|
$5,000.00
on first offering,
|
|
$750.00
per subsequent Account
|
For
ordinary administrative services by Escrow Agent – includes daily routine
account management; investment transactions; cash transaction processing
(including wire and check processing); monitoring claim notices pursuant to the
agreement; disbursement of funds in accordance with the agreement; and mailing
of trust account statements to all applicable parties. Float credit
received by the bank for receiving funds that remain uninvested are deemed part
of the Paying Agent/Escrow Agent’s compensation. These fees do not
contemplate paying interest to Investors or providing 1099s which would be the
responsibility of ACS. If individual 1099s, interest checks, interest accrual
calculations or any individual Investor information are required additional fees
will be charged. For rejected subscriptions or a failed offering, the
following fees will apply.
1099
Reporting $25 each
Interest
Rate Calculations and Interest Checks/Wires $ 35 each
Returned
Item Charges $35 each
The administrative fee is payable in
advance, with the first year fee due upon opening of the account. The
Annual Fee covers a full year or any part thereof, and therefore will not be
prorated or refunded in the year of early termination. These fees do
not include bank activity fees associated with Desktop Deposit
system. Fees for these services will be provided separately by our
Treasury Management Group.
Xxxxx
Fargo’s bid is based on the following assumptions:
|
·
|
Number
of Escrow Accounts to be established: Two
(2)
|
|
·
|
Number
of Deposits to Escrow Accounts: Electronically, approximately
(10-20 per day)
|
|
■
|
Number
of Withdrawals from Escrow Accounts: Not more than two per
week.
|
|
·
|
Term
of Escrow: One (1) year
|
|
■
|
APPOINTMENT
SUBJECT TO RECEIPT OF REQUESTED DUE DILIGENCE INFORMATION AS PER THE USA
PATRIOT ACT
|
|
·
|
THIS
PROPOSAL ASSUMES THAT BALANCES IN THE ACCOUNT WILL BE INVESTED IN MONEY
MARKET FUNDS
|
14
|
·
|
ALL
FUNDS WILL BE RECEIVED FROM OR DISTRIBUTED TO A DOMESTIC OR AN
APPROVED FOREIGN ENTITY
|
|
■
|
IF
THE ACCOUNT(S) DOES NOT OPEN WITHIN THREE (3) MONTHS OF THE DATE SHOWN
BELOW, THIS PROPOSAL WILL BE DEEMED TO BE NULL AND
VOID
|
|
Out-of
Pocket Expenses:
|
At
Cost
|
We will
charge for out-of-pocket expenses in response to specific tasks assigned by the
client or provided for in the escrow agreement. Possible expenses
would be, but are not limited to, express mail and messenger charges, travel
expenses to attend closing or other meetings. There are no
charges for indirect out-of- pocket expenses.
This
fee schedule is based upon the assumptions listed above which pertain to the
responsibilities and risks involved in Xxxxx Fargo undertaking the role of
Escrow Agent. These assumptions are based on information provided to
us as of the date of this fee schedule. Our fee schedule is subject
to review and acceptance of the final documents. Should any of the
assumptions, duties or responsibilities change, we reserve the right to affirm,
modify or rescind our fee schedule. Extraordinary services (services other than
the ordinary administration services of Escrow Agent described above) are not
included in the annual administration fee and will be billed as incurred at the
rates in effect from time to time.
Submitted
on: ,
2010
15
Exhibit
E
Agency
and Custody Account Direction
For
Cash Balances
Xxxxx
Fargo Bank Money Market Deposit Accounts
Direction
to use the following Xxxxx Fargo Bank Money Market Deposit Accounts for Cash
Balances for the escrow account (the “Account”) created under the Escrow
Agreement to which this Exhibit E is attached.
You are
hereby directed to deposit, as indicated below, or as we shall direct further in
writing from time to time, all cash in the Account in the following money market
deposit account of Xxxxx Fargo Bank, National Association (“Bank”):
Xxxxx
Fargo Bank Money Market Deposit Account (“MMDA”)
We
understand that amounts on deposit in the MMDA are insured, subject to the
applicable rules and regulations of the Federal Deposit Insurance Corporation
(the “FDIC”), in the basic FDIC insurance amount of $250,000 per depositor, per
insured bank. This includes principal and accrued interest up to a total of
$250,000.
We
acknowledge that we have full power to direct investments in the
Account.
We
understand that we may change this direction at any time and that it shall
continue in effect until revoked or modified by us by written notice to
you.
|
Business
Development Corporation of
America
|
||
|
Signature
|
||
|
Date
|
||
16
