EXHIBIT 10.4
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into as of the ____ day of
________, 2004, by and between Desert Capital REIT, Inc., a Maryland corporation
(the "Company"), and Premier Trust of Nevada, Inc. (the "Escrow Agent").
WHEREAS, the Company intends to raise cash funds from investors (the
"Investors") pursuant to subscription agreements for the purpose of capitalizing
the Company;
WHEREAS, pending the capitalization of the Company, it desires to
deposit funds contributed by the Investors with a bank serving as Escrow Agent
for the Investors and the Company;
WHEREAS, the Company intends to offer not less than $2.5 million of
shares of common stock, par value $0.01 per share (each, a "Share" and
collectively, the "Shares"), for which each Investor will pay $10.00 per Share;
WHEREAS, it has been determined that the proceeds to be received from
the offering should be placed in escrow until such time as subscriptions for
250,000 Shares (the "Minimum Amount") has been deposited into escrow; and
WHEREAS, the Escrow Agent is willing to accept appointment as 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. PROCEEDS TO BE ESCROWED. All funds received from Investors
("Investors Funds") pursuant to their subscription agreements for the purchase
of Shares will be forwarded to the Escrow Agent by noon of the second day after
receipt of the subscription in accordance with the instructions contained in
section 9 hereof and shall be retained in an escrow account by the Escrow Agent
and invested as stated herein. During the term of this Agreement, the Company
shall cause all checks received by and made payable to it in payment for such
Shares to be endorsed in favor of Desert Capital REIT, Inc., Escrow Account.
If any checks deposited in the escrow account prove uncollectible after
the funds represented thereby have been released by the Escrow Agent to the
Company, then the Company shall promptly reimburse the Escrow Agent for any and
all cost incurred for such, upon request, and the Escrow Agent shall deliver the
returned checks to the Company.
2. IDENTITY OF INVESTORS. Company shall furnish to the Escrow Agent
with each delivery of funds, as provided in section 1 hereof, a list of the
persons who have paid money for the purchase of Shares showing the name,
address, amount of Shares subscribed for and the amount of money paid. All
proceeds so deposited shall remain the property of the Investors and 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 released to the
Company as hereinafter provided.
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. Regardless,
Escrow Agent will treat this information as confidential.
3. DISBURSEMENT OF FUNDS. From time to time, and at the end of the
third business day following the Termination Date (as defined in section 4
hereof), the Escrow Agent shall notify the Company of the amount of Investors
Funds received hereunder. If Investors Funds totaling the Minimum Amount or more
are obtained at any time prior to the Termination Date and the Company has
delivered a written notice (the "Notice") attached as Exhibit A, signed by two
of the officers of the Company, stating that the Company has received and
accepted subscription agreements for the Minimum Amount of Shares, then the
Escrow Agent shall pay out the escrowed funds and all earnings thereon when and
as directed by such officers. If the Minimum Amount of proceeds has not been
delivered prior to the Termination Date, the Escrow Agent shall, within a
reasonable time following the Termination Date, but in no event more than 30
days after the Termination Date, refund to each of the Investors at the address
appearing on the list of Investors, or at such other address as shall be
furnished to the Escrow Agent by the Investors in writing, all sums paid by the
Investors pursuant to their subscription agreements for Shares, together with
the interest earned on such funds in the escrow account, and shall then notify
the Company in writing of such refunds. The Company may extend the offering once
the Minimum Amount has been received by the Escrow Agent until such time as the
Company has sold the maximum amount of Shares, as provided in the Form S-11 (as
defined below) by giving written notice to the Escrow Agent.
4. TERM OF ESCROW. The "Termination Date" shall be the earlier of (i) 1
year from the effectiveness of the Company's Registration Statement on Form S-11
(the "Form S-11") or (ii) the date the Escrow Agent received written notice from
the Company that it is abandoning the sale of the Shares, subject to section 3
hereof. The Company may extend the termination date 60 days upon written notice
to the Escrow Agent. In all events, this escrow shall terminate upon the second
year anniversary from the date of this Agreement.
5. DUTY AND LIABILITY OF THE ESCROW AGENT
(a) Any written authorization or instructions by the Issuer to the
Escrow Agent may be given in separate instruments.
(b) The Escrow Agent is not a party to, and is not bound by, or charged
with notice of, any of the underlying agreements, arrangements or understandings
between outside parties, and the Escrow Agent has not assumed any obligation or
liability under any of such agreements, arrangements or understandings.
(c) The Escrow Agent is acting only as a depository for the subject
matter of the Escrow Agreement.
(d) If the subject matter of the escrow includes any check, draft, or
other order for the payment of money, or if in the performance of the Escrow
Agreement the Escrow Agent receives a check, draft or other order for the
payment of money, the Escrow Agent shall deposit any such
2
item for collection and the Escrow Agent shall not be responsible or accountable
for the proceeds of any such item until they are received by the Escrow Agent.
(e) The Escrow Agent, in the performance of this Escrow Agreement, and
in its dealings with the Company, shall be entitled to assume and rely upon the
genuineness of any written notice, request, waiver, consent, receipt,
authorization, power of attorney or other document furnished to the Escrow
Agent, and the Escrow Agent shall have no liability to the Company, and shall be
fully protected and indemnified, when acting or relying in good faith upon any
such document which Escrow Agent believes to be genuine.
(f) In the performance of its duties under the Escrow Agreement, the
Escrow Agent and its agents, employees, representatives and attorneys: (i) shall
have no liability of any kind to the Company except for the Escrow Agent's own
gross negligence or intentional misconduct; and (ii) may seek the advice of
legal counsel from time to time, and shall incur no liability and shall be fully
protected in acting in accordance with the opinion or instructions of such
counsel.
(g) The Company, shall save, indemnify, defend and hold the Escrow
Agent and its agents, employees, representatives and attorneys harmless from and
against all claims, causes of action and liabilities pertaining to, or arising
from, the performance by the Escrow Agent of his duties under and in accordance
with this Escrow Agreement, including without limitation: (i) all attorney fees,
costs of court and cost of investigation incurred by the Escrow Agent; (ii) all
damages of every type and nature, whether actual, direct, incidental,
consequential, punitive or exemplary; and (iii) all claims and causes of action
arising from the negligence or alleged negligence of the Escrow Agent or its
agents employees, representatives and attorneys; provided however that this
indemnity shall not extend to the Escrow Agent's own gross negligence or
intentional misconduct.
As a condition to making or bringing a claim for indemnification against the
Company, the Escrow Agent shall not be required to have made any payment or
incurred any expense in conjunction with the claim, and if sued may immediately
join the Company as third-party defendants to such suit for the purpose of
asserting its indemnification rights.
(h) If (i) there is any disagreement or dispute in connection with the
Escrow Agreement or the subject matter thereof including any dispute of the
Company; (ii) there is any disagreement or dispute between the Escrow Agent and
Issuer; (iii) there is any disagreement or dispute between the Company and any
person not a party to the Escrow Agreement; (iv) there are any adverse or
inconsistent claims or demands upon, or inconsistent instructions, to the Escrow
Agent; or (v) the Escrow Agent in good faith is in doubt as to what action to
take pursuant to the Escrow Agreement, then, in the case of (i) through (v) of
this section (h), the Escrow Agent may at its election refuse to comply any of
such claims, demands or instructions, or refuse to take any other action
pursuant to this Escrow Agreement, until: (i) the rights of all persons involved
in the dispute have been fully and finally adjudicated by a court of competent
jurisdiction, or the Escrow Agent has resolved any such doubts to its good faith
satisfaction; or (ii) all disputes have been resolved between the persons
involved, and the Escrow Agent has received written notice thereof satisfactory
to it from all such persons. Without limiting the generality of the foregoing,
the Escrow Agent may at its election interplead the subject matter of this
Escrow Agreement with a court of competent jurisdiction, or commence judicial
proceedings
3
for a declaratory judgment, and the Escrow Agent shall be entitled to recover
from the Company its attorney's fees and costs in connection with any such
interpleader or declaratory judgment action.
(i) The obligations by the Issuer to the Escrow Agent, including the
payment of compensation and the Issuer's indemnity obligations pursuant hereto,
shall be performable or payable at the Escrow Agent's offices in Las Vegas,
Nevada.
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 B, 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 Agreement; provided, however,
that in the event that the conditions for the disbursement of funds under this
Agreement are not fulfilled, or the Escrow Agent renders any material service
not contemplated in this Agreement, or there is any assignment of interest in
the subject matter of this 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 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.
6. INVESTMENT OF PROCEEDS. All funds held by the Escrow Agent pursuant
to this Agreement shall constitute trust property for the purposes for which
they are held. The Escrow Agent shall invest all funds received from Investors
in bank accounts, including interest-bearing savings accounts and bank money
market accounts, in short-term certificates of deposit issued by a bank, or in
short-term securities directly or indirectly issued or guaranteed by the United
States government.
7. ISSUANCE OF CERTIFICATES. Until the terms of this Agreement with
respect to Shares have been met and the funds hereunder received from
subscriptions for Shares have been released to the Company, the Company may not
issue any certificates or other evidence of Shares, except subscription
agreements.
8. NOTICES. All notices, requests, demands, and other communications
under this 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
transmission to the facsimile number given below, and telephonic 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 Company:
Desert Capital REIT, Inc.
0000 Xxxxxxxxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, Xxxxxx 00000
4
If to Escrow Agent:
Premier Trust of Nevada, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0
Xxx Xxxxx, XX 00000
Wires to Escrow Agent should be directed to the following:
[Wiring Instructions]
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.
9. SUCCESSORS AND ASSIGNS. 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 party
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 successors and permitted assigns of the
parties hereto.
10. GOVERNING LAW; JURISDICTION. This Agreement shall be construed,
performed, and enforced in accordance with, and governed by, the internal laws
of the State of Nevada, 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 Nevada.
11. 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.
12. 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.
13. ENTIRE AGREEMENT. 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.
14. SECTION HEADINGS. The section headings in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
15. COUNTERPARTS. This agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which shall constitute the same
instrument.
5
16. TIME OF ESSENCE. Time is of the essence in the performance of the
obligations under this Agreement.
17. RESIGNATION. Escrow Agent may resign upon 30 days advance written
notice to the Company. If a successor Escrow Agent is not appointed within the
30-day period following such notice, Escrow Agent may petition any court of
competent jurisdiction to name a successor Escrow Agent.
18. COMPLIANCE. No funds will be released and no sales commissions will
be paid except in compliance with Rule 15c2-4 under the Security Exchange Act of
1934, as amended.
[Remainder of Page Intentionally Left Blank]
6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first set forth above.
DESERT CAPITAL REIT, INC.
By:
-----------------------------------------
Its:
----------------------------------------
PREMIER TRUST OF NEVADA, INC.
By:
-----------------------------------------
Its:
----------------------------------------
7
