Exhibit 10.13
BOSTON CAPITAL REAL ESTATE INVESTMENT TRUST, INC.
ESCROW AGREEMENT
This Agreement made as of the 1st day of March 2004, by and between Boston
Capital Real Estate Investment Trust, Inc., a Maryland corporation (the "REIT"),
Boston Capital REIT Advisors, LLC, a Delaware limited liability company (the
"Advisor"), Boston Private Bank & Trust Company, Boston, Massachusetts (the
"Escrow Agent") and Boston Capital Services, Inc., a Massachusetts corporation,
as dealer-manager (the "Dealer-Manager").
1. THE OFFERING. The REIT intends to offer for subscription 31,500,000
shares at a price of $10.00 per share. The initial minimum purchase by each
potential investor completing an Investor Information Form (a "Subscriber") is
100 shares ($1,000). The offering will be made through a group of soliciting
dealers (the "Soliciting Dealers"), organized by and including Boston Capital
Services, Inc. as dealer-manager (the "Dealer-Manager"), which are members of
the National Association of Securities Dealers, Inc. The REIT hereby appoints
Boston Private Bank & Trust Co., Boston, Massachusetts as its Escrow Agent to
receive from the Soliciting Dealers and Dealer-Manager (i) the monies paid by
the subscribers for the shares to which they have each subscribed (the
"Subscription Payments"), (ii) to hold and invest such Subscription Payments.
The offering by the REIT will terminate no later than May 1, 2007, unless
terminated earlier (the "Termination Date"), and is subject to the condition
that subscriptions for at least 3,000,000 shares be accepted by the Advisor by
the Termination Date. The Advisor will notify the Escrow Agent in writing
received by the Escrow Agent no later than 5:00 p.m. on the second business day
next preceding the date the Advisor determines as the Termination Date.
2. ESTABLISHMENT OF THE ESCROW. The Escrow Agent will establish an escrow
account for the benefit of Subscribers (in the name of the Escrow Agent or the
name of its nominee or nominees) into which all Subscription Payments shall be
deposited (the "Escrow Account"). Directors of state securities divisions shall
have the right to inspect and make copies of the records of the Escrow Agent at
any reasonable time wherever the records are located. Credit on the books of the
Escrow Agent will be given as of the date of deposit of each check. Interest on
each deposited check will begin to accrue one (1) business day after each such
date of deposit. If the Escrow Agent receives notice that a check for a
Subscription Payment has been dishonored, it shall give immediate oral notice
(to be confirmed in writing promptly thereafter) to the Advisor; and, unless
otherwise instructed at that time by the Advisor, shall undertake routine steps
to collect such check through the Escrow Agent's customary collections channels.
In the event that collections from the Subscribers in the form of checks or
other demand remittances are credited by the Escrow Agent to the Escrow Account
and the items giving rise to such credits are subsequently dishonored, the
Escrow Agent may, in its discretion, charge to the Escrow Account the amount of
any item so dishonored. Upon final payment of any such item, the Escrow Agent
shall credit to the Escrow Account the amount thereof with appropriate advice to
the REIT. Subscription proceeds deposited may not be withdrawn by Subscribers.
The Advisor agrees to inform the Escrow Agent when offers and sales in the
REIT have begun and terminated.
3. CLOSING AND DISBURSEMENT OF FUNDS. The REIT intends to make the
offering on the condition that a minimum of 3,000,000 shares ($30,000,000)
shall have been accepted by the Advisor by the Termination Date. Until
subscriptions for at least 3,000,000 shares are received, no Subscriber will
be recognized as an investor and subscriptions will be deposited with the
Escrow Agent. New Mexico Subscriber's subscriptions shall not be released
until subscriptions for at least 3,150,000 shares are received. If
$30,000,000 (3,000,000 shares) of Subscription Payments have not been
collected and are not then held in cleared funds in the possession of the
Escrow Agent on the Termination Date, and upon written notice from, and
instructions by, the Advisor, the Escrow Agent shall return to the
Subscribers the Subscription Payments with interest, earned at prevailing
market rates, on the fifth business day after the later of the Termination
Date or receipt of the instructions from the Advisor.
If at least $30,000,000 of Subscription Payments have been collected and
are then held in cleared funds in the possession of the Escrow Agent by the
Termination Date, then upon written notice from, and instruction by, the
Advisor, the Escrow Agent shall pay to the REIT all funds then held in the
Escrow Account including interest earned at prevailing market rates thereon
prior to the Termination Date without deduction for expenses, including fees of
the Escrow Agent. The REIT shall determine the amount of interest due to each
Subscriber and within 75 days after the end of the fiscal quarter following a
Closing Date shall itself pay such interest to Subscribers. Subsequent to, but
not including, such Termination Date, any interest earned will be paid to the
REIT. A Subscriber will be entitled to the amount of interest earned on his
subscription proceeds starting from the day after such proceeds were deposited
in the Escrow Account until, but not including, the Closing Date. The Escrow
Agent shall notify directors of state securities divisions, as directed by the
Advisor, upon the release from escrow of the Subscription Payments.
Subscriptions for shares will be accepted or rejected by the Advisor, in
its sole discretion, within 30 days of receipt, but the issuance of shares to a
Subscriber shall be subject to acceptance of subscriptions for a number of
shares sufficient to effectuate a closing. If the Subscription Payments
allocated to such rejected or cancelled subscription ("Rejected Funds") have
been delivered to Escrow Agent, the Advisor will inform Escrow Agent of the
rejection or cancellation, and Escrow Agent, upon receiving such notice, will
refund to the Subscriber the Rejected Funds within 10 days of such notice,
without interest.
4. INVESTMENT OF FUNDS. The REIT hereby directs the Escrow Agent to
invest (in the name of the Escrow Agent or the name of its nominee or nominees)
funds in the Escrow Account for the benefit of the Subscribers in any one or a
combination of the following: bank time deposits; short-term securities issued
or guaranteed by the United States Government; bank money market accounts; and
short-term certificates of deposit issued by a bank. Investments for periods of
five days or less shall not be required.
5. COMPENSATION. The REIT agrees to pay to the Escrow Agent compensation
of $1.00 per Subscriber whose funds are received by the Escrow Agent for all
services rendered by the Escrow Agent under this Agreement and, in addition, the
reasonable compensation of its counsel and all other reasonable expenses
incurred by the Escrow Agent hereunder.
6. EXCULPATION. The Advisor agrees to indemnify the Escrow Agent for, and
to hold it harmless against, any loss, liability, or expense incurred without
gross negligence, bad faith, reckless disregard of its duties and obligations
under this Agreement, fraud or willful misconduct on the part of the Escrow
Agent, its affiliates or agents arising directly or indirectly from any action
or omission to act on the part of the Escrow Agent, its affiliates or agents
pursuant to this Agreement, as well as the reasonable costs and expenses of
defending any claim or liability or of prosecuting any action in the premises.
The Escrow Agent shall not be obligated to take any action hereunder which might
in its reasonable judgment subject it to any expense or liability unless it
shall have been furnished with indemnity acceptable to it. Prior to the
Termination Date, Subscription Payments held by the Escrow Agent shall remain
the property of the Subscribers making such Payments and shall not be subject to
a lien of the Escrow Agent or any other creditors of the REIT or the Advisor.
The Escrow Agent shall not be obligated to take any action which it is
not expressly directed to take in this Agreement unless and until it shall
have received written instruction from the REIT. The Escrow Agent shall be
liable only for its own, including its affiliates or agents own, gross
negligence, bad faith, fraud, willful misconduct or reckless disregard of its
duties and obligations under this Agreement and shall incur no liability for
action in accordance with the terms of this Escrow Agreement or with the
terms of any instructions received by it from the Advisor, whether or not
contrary to the provisions of this Agreement or to the agreements between the
REIT and the Subscribers. The Escrow Agent may rely upon, and shall be
protected in acting upon, any resolution, certificate, opinion, notice,
request, consent, or other paper or document believed by it to be genuine and
to have been signed by the proper person or persons. Any notice or
instruction from the REIT shall be sufficient if it bears or purports to bear
the signature of any one of the following: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇.
▇▇▇▇, whose signatures appear hereon, with or without designation of
principal or of representative capacity. The Escrow Agent may consult with
counsel, and the opinion of such counsel shall be full and complete
protection in respect to any action taken or not taken, or suffered by it
hereunder in accordance with such opinion. The Escrow Agent may petition any
court of competent jurisdiction to resolve any disagreement relating hereto
and may refuse to act until such court has ordered it to act. Such rights and
remedies shall be alternative and any action taken or not taken in
conformance with an opinion of counsel or court order shall not constitute
negligence or misconduct and shall be complete and final acquittance and
discharge of the Escrow Agent's responsibilities with respect thereto.
Notwithstanding the foregoing, it is understood and agreed by the parties
that no member of the Advisor acting in its capacity as such shall have any
personal liability under this agreement and that any person asserting a claim
against the Advisor hereunder shall look solely to the assets of such Advisor
(specifically excluding the personal assets of the members thereof).
7. STANDARD OF CARE. The Escrow Agent shall be obligated to exercise care
and diligence in the performance of its duties hereunder, to act in good faith
and to use its best efforts, within reasonable limits, in performing services
provided for under this Agreement. The Escrow Agent shall be liable for any
damages arising out of its failure to perform its duties under this Agreement to
the extent such damages arise out of its willful misfeasance, fraud, bad faith,
gross negligence or reckless disregard of its duties.
8. NOTICES. All notices and other communications hereunder shall be in
writing, or if given by telephone, telegraph or telex shall be confirmed in
writing. No notice shall be given until given in writing and shall be sent,
postage prepaid, addressed as follows:
(a) If to the REIT or the Advisor, notice is deemed given when received by
▇▇▇▇ ▇. ▇▇▇▇, c/o Boston Capital Partners, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇.
(b) If to the Escrow Agent, notice is deemed given when received by
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or to such other address as the Escrow Agent shall
subsequently designate in writing to the Advisor.
9. MISCELLANEOUS.
(c) This Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties hereto.
(d) This Agreement shall be governed and construed in accordance with the
laws of the Commonwealth of Massachusetts, without regard to
principles of conflicts of law, and shall not be amended except by
written instrument executed by the parties hereto.
(e) This Agreement may be executed in one or more counterparts, each of
which shall constitute the original, and all of which collectively
shall constitute one and the same instrument.
(f) This Agreement embodies the entire agreement and understanding among
the parties and supersedes all prior agreements and understandings
relating to the subject matter hereof; provided that, the parties may
embody in one or more separate documents their agreement, if any, with
respect to delegated duties and instructions.
10. TERMINATION. This Agreement shall continue until terminated by either
party upon sixty (60) days prior written notice. Upon the termination of this
Agreement and upon the delivery of the balance of the Escrow Account to a
successor escrow agent or such other person as may be designated by written
instructions, the Escrow Agent shall be released and discharged of any and all
further obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal on the day and year first above written.
BOSTON CAPITAL REIT ADVISORS, LLC BOSTON PRIVATE BANK & TRUST
By: Boston Capital Corporation, By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
its manager -----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
Signatories
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇
BOSTON CAPITAL REAL ESTATE
INVESTMENT TRUST, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Operating Officer
BOSTON CAPITAL SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
