EXHIBIT 10.1
Form of Escrow Agreement between
CNL Retirement Properties, Inc.
and SouthTrust Bank
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is dated this ____ day of
_________, 2003, by and among CNL RETIREMENT PROPERTIES, INC., a Maryland
corporation (the "Company"), CNL SECURITIES CORP., a Florida corporation (the
"Managing Dealer"), and SOUTHTRUST BANK (the "Escrow Agent"). This Agreement
shall be effective as of the effective date of the Company's Registration
Statement filed with the Securities and Exchange Commission (the "Effective
Date").
WHEREAS, the Company proposes to offer and sell, on a best-efforts
basis through the Managing Dealer and selected broker-dealers who are registered
with the National Association of Securities Dealers, Inc. or who are exempt from
broker-dealer registration (the Managing Dealer and such selected broker-dealers
are hereinafter referred to collectively as the "Soliciting Dealers") up to
400,000,000 shares of common stock of the Company (the "Shares") to investors at
$10.00 per Share pursuant to a registration statement (the "Registration
Statement") filed with the Securities and Exchange Commission;
WHEREAS, the Company and the Managing Dealer desire to establish an
escrow in which funds received from subscribers will be deposited, and the
Escrow Agent is willing to serve as Escrow Agent upon the terms and conditions
herein set forth; and
WHEREAS, in order to subscribe for Shares, a subscriber must deliver
the full amount of its subscription: (i) by Payment in U.S. dollars, (ii) by
wire transfer of immediately available funds in U.S. dollars, or (iii) as
otherwise agreed to by the Company (collectively, the "Payment").
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, the parties covenant and agree as follows.
1. Establishment of Escrow Accounts. On or prior to the Effective
Date, the Company and the Managing Dealer shall establish an interest-bearing
escrow account with the Escrow Agent, which escrow account shall be entitled
"ESCROW ACCOUNT FOR THE BENEFIT OF SUBSCRIBERS FOR COMMON STOCK OF CNL
RETIREMENT PROPERTIES, INC." (the "Escrow Account"). All monies deposited in the
Escrow Account are hereinafter referred to as the "Escrowed Funds." The Managing
Dealer will, and will cause selected broker-dealers acting as Soliciting Dealers
to, instruct subscribers to make Payments for subscriptions payable to either
the Escrow Agent or the Company. The Managing Dealer may authorize certain
Soliciting Dealers which are "$250,000 broker-dealers" to instruct their
customers to make their Payments for Shares subscribed for payable directly to
the Soliciting Dealer. In such case, the Soliciting Dealer will collect the
proceeds of the subscribers' Payments and issue a Payment made payable to the
order of the Escrow Agent for the aggregate amount of the subscription proceeds.
In addition, certain Soliciting Dealers that have entered into Addendum B to the
Participating Broker Agreement may issue a Payment made payable to the order of
the Escrow Agent for the aggregate amount of the subscription proceeds less any
selling commissions to which such Soliciting Dealers are entitled (pursuant to
the Participating Broker Agreement and the Prospectus).
2. Deposits into the Escrow Account. The Managing Dealer will
promptly deliver all monies received from subscribers for the payment of Shares
to the Escrow Agent for deposit in the Escrow Account.
3. Collection Procedure.
(a) The Escrow Agent is hereby authorized to forward each
Payment for collection and, upon collection of the proceeds of each
Payment, to deposit the collected proceeds in the Escrow Account or,
alternatively, the Escrow Agent may telephone the bank on which the
Payment is drawn to confirm that the Payment has been paid.
(b) Any Payment returned unpaid to the Escrow Agent shall
be returned to the Soliciting Dealer that submitted the Payment. In
such cases the Escrow Agent will promptly notify the Company of such
return.
(c) In the event that (i) the Company rejects any
subscription for Shares or (ii) an investor who
has telephonically or orally subscribed for Shares properly withdraws
such subscription within ten (10) days from the date written
confirmation has been received by the subscriber, and, in either such
event, the Escrow Agent has already collected funds for such
subscription, the Escrow Agent shall promptly issue a refund Payment to
the drawer of the Payment submitted by or on behalf of the rejected or
withdrawing subscriber. If either of the events specified in the
clauses (i) or (ii) of the preceding sentence occur and, in either such
event, the Escrow Agent has not yet collected funds for such
subscription but has submitted the Payment relating to such
subscription for collection, the Escrow Agent shall promptly issue a
Payment in the amount of such Payment to the rejected or withdrawing
subscriber after the Escrow Agent has cleared such funds. If the Escrow
Agent has not yet submitted the Payment relating to the subscription of
the rejected or withdrawing subscriber, the Escrow Agent shall promptly
remit such Payment directly to the drawer of the Payment submitted by
or on behalf of the subscriber.
4. Investment of Escrowed Funds. The Escrow Agent, immediately
upon receipt of each Payment remitted to it, shall deposit such Payment in a
bank account (including, but not limited to, interest-bearing savings accounts
and bank money market accounts), in short-term certificates of deposit issued by
a bank, in short-term securities directly or indirectly issued or guaranteed by
the United States Government, or in other short-term, highly liquid investments
with appropriate safety of principal, all as directed by the Company. Interest
and dividends earned on such investments shall be similarly reinvested.
5. Distribution of Escrowed Funds. The Escrow Agent shall release
from the Escrow Account to the Company any and all Escrowed Funds therein,
together with all interest earned thereon, upon the written request of an
officer of the Company.
6. Liability of Escrow Agent.
(a) In performing any of its duties under this Agreement,
or upon the claimed failure to perform its duties hereunder, the Escrow
Agent shall not be liable to anyone for any damages, losses, or
expenses which it may incur as a result of the Escrow Agent so acting,
or failing to act; provided, however, the Escrow Agent shall be liable
for damages arising out of its willful default or misconduct or its
gross negligence under this Agreement. Accordingly, the Escrow Agent
shall not incur any such liability with respect to (i) any action taken
or omitted to be taken in good faith upon advice of its counsel or
counsel for the Company which is given with respect to any questions
relating to the duties and responsibilities of the Escrow Agent
hereunder, or (ii) any action taken or omitted to be taken in reliance
upon any document, including any written notice or instructions
provided for in this Escrow Agreement, not only as to its due execution
and to the validity and effectiveness of its provisions but also as to
the truth and accuracy of any information contained therein, if the
Escrow Agent shall in good faith believe such document to be genuine,
to have been signed or presented by a proper person or persons, and to
conform with the provisions of this Agreement.
(b) The Company hereby agrees to indemnify and hold
harmless the Escrow Agent against any and all losses, claims, damages,
liabilities and expenses, including, without limitation, reasonable
costs of investigation and counsel fees and disbursements which may be
incurred by it resulting from any act or omission of the Company;
provided, however, that the Company shall not indemnify the Escrow
Agent for any losses, claims, damages, or expenses arising out of the
Escrow Agent's willful default, misconduct, or gross negligence under
this Agreement.
(c) If a dispute ensues between any of the parties hereto
which, in the opinion of the Escrow Agent, is sufficient to justify its
doing so, the Escrow Agent shall be entitled to tender into the
registry or custody of any court of competent jurisdiction, including
the Circuit Court of Orange County, Florida, all money or property in
its hands under the terms of this Agreement, and to file such legal
proceedings as it deems appropriate, and shall thereupon be discharged
from all further duties under this Agreement. Any such legal action may
be brought in any such court as the Escrow Agent shall determine to
have jurisdiction thereof. The Company shall indemnify the Escrow Agent
against its court costs and attorneys' fees incurred in filing such
legal proceedings.
7. Inability to Deliver. In the event that Payments for
subscriptions delivered to the Escrow Agent by the Company pursuant to this
Agreement are not cleared through normal banking channels within 120 days after
such
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delivery, the Escrow Agent shall deliver such uncleared Payments to the Company.
8. Notice. All notices, requests, demands and other
communications or deliveries required or permitted to be given hereunder shall
be in writing and shall be deemed to have been duly given if delivered
personally, given by prepaid telegram or deposited for mailing, first class,
postage prepaid, registered or certified mail, as follows:
If to the subscribers for Shares: To their respective addresses as
specified in their Subscription
Agreements.
If to the Company: CNL Retirement Properties, Inc.
CNL Center at City Commons
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X.
Xxxxxxxxx III,
Chief Executive Officer and
President
If to the Managing Dealer: CNL Securities Corp.
CNL Center at City Commons
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx,
President
If to the Escrow Agent: SOUTHTRUST BANK
000 Xxxxxx Xxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxxx
9. Fees to Escrow Agent. In consideration of the services to be
provided by the Escrow Agent hereunder, the Company will pay the Escrow Agent a
fee for its services hereunder (the "Escrow Fee"). The Escrow Fee shall be $350
for each month or any portion thereof that the Escrow Account continues for the
Company. Payments by the Company, if any, shall be due and payable no less
frequently than six-month intervals while the escrow continues for the Company.
In no event shall the total Escrow Fees payable by the Company pursuant to this
Agreement be less than $2,100, nor more than $4,200, for any 12-month period.
Notwithstanding anything contained in this Agreement to the contrary, in no
event shall any fee, reimbursement for costs and expenses, indemnification for
any damages incurred by the Escrow Agent, or monies whatsoever be paid out of or
chargeable to the Escrowed Funds in the Escrow Account.
10. General.
(a) This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the State of
Florida applicable to contracts to be made and performed entirely in
said state.
(b) The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(c) This Agreement sets forth the entire agreement and
understanding of the parties with regard to this escrow transaction and
supersedes all prior agreements, arrangements and understandings
relating to the subject matter hereof.
(d) This Agreement may be amended, modified, superseded
or cancelled, and any of the terms or conditions hereof may be waived,
only by a written instrument executed by each party hereto or, in the
case of a waiver, by the party waiving compliance. The failure of any
party at any time or times to require performance of any provision
hereof shall in no manner affect the right at a later time to enforce
the same. No waiver in any one or more instances by any party of any
condition, or of the breach of any term contained in this Agreement,
whether by conduct or otherwise, shall be deemed to be, or construed
as, a further or continuing waiver of any such condition or breach, or
a waiver of any other condition or of the breach of any other terms of
this Agreement.
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(e) This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(f) This Agreement shall inure to the benefit of the
parties hereto and their respective administrators, successors, and
assigns.
11. Representation of the Company. The Company hereby acknowledges
that the status of the Escrow Agent with respect to the offering of the Shares
is that of agent only for the limited purposes herein set forth, and hereby
agrees it will not represent or imply that the Escrow Agent, by serving as the
Escrow Agent hereunder or otherwise, has investigated the desirability or
advisability of an investment in the Shares, or has approved, endorsed or passed
upon the merits of the Shares, nor shall the Company use the name of the Escrow
Agent in any manner whatsoever in connection with the offer or sale of the
Shares, other than by acknowledgement that it has agreed to serve as Escrow
Agent for the limited purposes herein set forth.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
"COMPANY"
CNL RETIREMENT PROPERTIES, INC.
By: __________________________________
Xxxxxx X. Xxxxxxxxx III
Chief Executive Officer and
President
"MANAGING DEALER"
CNL SECURITIES CORP.
Attest: _________________________ By: __________________________________
XXXXXX X. XXXXXX
President
"ESCROW AGENT"
SOUTHTRUST BANK
Attest: ________________________ By: _______________________________
Name: _______________________________
Title: _______________________________
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