Exhibit 10.3
ESCROW AGREEMENT
ESCROW AGREEMENT dated as of this 22nd day of April 2005, by and between
ADVISORS REIT I, INC., a Maryland corporation (the "Company"), AMERICAN STOCK
TRANSFER & TRUST COMPANY, a financial institution chartered under the laws of
the State of New York (the "Agent").
W I T N E S S E T H:
WHEREAS, the Company is directly offering securities in a public equity
financing (the "Financing") to investors who meet certain suitability standards
as prescribed by the Company's prospectus (the "Purchasers" or "Purchaser"); and
WHEREAS, in connection with the Financing, such securities being sold are
shares of common stock ($0.01 par value)Shares (the "Shares" or "Share"); and
WHEREAS, the Shares are being offered at a price of Ten Dollars ($10.00)
per Share (the "Offering Price"); and
WHEREAS, the Company desires to sell in the Financing a minimum of One
Million (1,000,000) Shares (the "Minimum Amount") and a maximum of Two Million
Five Hundred Thousand (2,500,000) Shares (the "Maximum Amount"); and
WHEREAS:
(a) The Financing will commence immediately upon the Securities and
Exchange Commission's approval of the Company's registration of its Form S-11
filing and will continue until the earlier of: (i) the sale of all Shares or
(ii) August 31 , 2005(the "Offering Period"), unless otherwise extended by the
Company;
(b) Once the Purchasers have subscribed and the Company has accepted
subscriptions for the Minimum Amount, the Company may conduct an initial closing
(the "First Closing") with respect to such Shares. Thereafter, the Company may
decide to conduct one or more closings for the sale of additional Shares (each,
together with the First Closing, a "Closing");
(c) Proceeds received from subscriptions for the Shares shall be
held in escrow by the Agent pending a Closing; and
(d) If the Minimum Amount is not sold at the per unit Offering Price
prior to the end of the Offering Period, the Financing will be terminated and
all funds received from Purchasers will be promptly returned, without interest,
penalty or deduction. The day that the Offering Period terminates is hereinafter
referred to as the "Termination Date." The Termination Date may be extended up
to March 31, 2006 by the Company.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and intending to be legally bound, the parties hereby agree as
follows:
1. APPOINTMENT OF AGENT. The Company hereby appoints the Agent as escrow
agent in accordance with the terms and conditions set forth herein, and the
Agent hereby accepts such appointment.
2. DELIVERY OF SUBSCRIPTION PROCEEDS. All checks, drafts, or other
instruments or wire transfer funds received from Purchasers as payment for the
Shares will be delivered by National Financial Services ("NFS") to the Agent,
made payable to "American Stock Transfer & Trust Company, as Escrow Agent for
ADVISORS REIT I, INC., Inc." The Company will cause NFS to provide the Agent
with a chart setting forth, as to each Purchaser, his name, address, social
security number or employer identification number, amount of Shares purchased,
and the amount paid in connection with such purchase. The Agent is hereby
empowered on behalf of the Company to endorse and collect all checks, drafts,
wire funds transfers, promissory notes or other instruments received on account
of purchases of the Shares.
3. AGENT TO HOLD AND DISBURSE FUNDS. The Agent will hold in a special
non-interest bearing account established for the benefit of the Company and
disburse all funds received by it pursuant to the terms of this Escrow
Agreement, as follows:
3.1 In the event that prior to the Termination Date the Agent has
received funds equal to or greater than the Minimum Amount (and such funds are
cleared within 10 days following the Termination Date) from the sale of Shares,
the Agent will, on the date of a Closing, pursuant to written instructions
signed by the Company, pay to the Company, and/or to any other person designated
in such instructions, the proceeds received by the Agent from the sale of such
Shares, provided that the Company's counsel has confirmed in writing that all
conditions for the release of the escrow funds have been met.
3.2 In the event that prior to the Termination Date the Agent has
not received funds equal to or greater than the Minimum Amount (or such funds
have not cleared within three days of the Termination Date) from the sale of the
Shares, the Agent will return all funds to NFS, without interest, penalty or
deduction.
4. EXCULPATION AND INDEMNIFICATION OF AGENT.
4.1 The Agent shall have no duties or responsibilities other than
those expressly set forth herein. The Agent shall have no duty to enforce any
obligation of any person to make any payment or delivery, or to direct or cause
any payment or delivery to be made, or to enforce any obligation of any person
to perform any other act. The Agent shall be under no liability to the other
parties hereto or to anyone else by reason of any failure on the part of any
party hereto or any maker, guarantor, endorser or other signatory of any
document or any other person to perform such person's obligations under any such
document. Except for amendments to this Agreement referred to below,
and except for instructions given to the Agent by the Company relating to the
funds deposited with the Agent under this Agreement, the Agent shall not be
obligated to recognize any agreement between any and all of the persons referred
to herein, notwithstanding that references thereto may be made herein and
whether or not it has knowledge thereof.
4.2 The Agent shall not be liable to the Company or to anyone else
for any action taken or omitted by it, or any action suffered by it to be taken
or omitted, in good faith and in the exercise of its own best judgment. The
Agent may rely conclusively and shall be protected in acting upon any order,
notice, demand, certificate, opinion or advice of counsel (including counsel
chosen by the Agent), statement, instrument, report or other paper or document
(not only as to its due execution and the validity and effectiveness of its
provisions, but also as to the truth and acceptability of any information
therein contained), which is believed by the Agent to be genuine and to be
signed or presented by the proper person or persons. The Agent shall not be
bound by any notice or demand, or any waiver, modification, termination or
rescission of this Agreement or any of the terms thereof, unless evidenced by a
writing delivered to the Agent signed by the proper party or parties and, if the
duties or rights of the Agent are affected, unless it shall give its prior
written consent thereto.
4.3 The Agent shall not be responsible for the sufficiency or
accuracy of the form of, or the execution, validity, value or genuineness of,
any document or property received, held or delivered by it hereunder, or of any
signature or endorsement thereon, or for any lack of endorsement thereon, or for
any description therein; nor shall the Agent be responsible or liable to the
other parties hereto or to anyone else in any respect on account of the
identity, authority or rights of the persons executing or delivering or
purporting to execute or deliver any document or property or this Agreement. The
Agent shall have no responsibility with respect to the use or application of any
funds or other property paid or delivered by the Agent pursuant to the
provisions hereof. The Agent shall not be liable to the Company or to anyone
else for any loss which may be incurred by reason of any investment of any
monies which it holds hereunder provided the Agent has complied with the
provisions of Section 3.2 hereunder.
4.4 The Agent shall have the right to assume in the absence of
written notice to the contrary from the proper person or persons that a fact or
an event by reason of which an action would or might be taken by the Agent does
not exist or has not occurred, without incurring liability to the other parties
hereto or to anyone else for any action taken or omitted, or any action suffered
by it to be taken or omitted, in good faith and in the exercise of its own best
judgment, in reliance upon such assumption.
4.5 To the extent that the Agent becomes liable for the payment of
taxes, including withholding taxes, in respect of income derived from the
investment of funds held hereunder or any payment made hereunder, the Agent may
pay such taxes. The Agent shall be indemnified and held harmless against any
liability for taxes and for any penalties or interest in respect of taxes, on
such investment income or payments in the manner provided in Section 4.6.
4.6 The Agent will be indemnified and held harmless by the Company
from and against any and all expenses, including reasonable counsel fees and
disbursements, or loss suffered by the Agent in connection with any action, suit
or other proceeding involving any claim, or in connection with any claim or
demand, which in any way, directly or indirectly, arises out of or relates to
this Agreement, the services of the Agent hereunder, the monies or other
property held by it hereunder or any income earned from investment of such
monies, except for the Escrow Agent's gross negligence or misconduct. Promptly
after the receipt by the Agent or notice of any demand or claim or the
commencement of any action, suit or proceeding, the Agent shall, if a claim in
respect thereof is to be made against the Company, notify the Company thereof in
writing, but the failure by the Agent to give such notice shall not relieve the
Company from any liability which the Company may have to the Agent hereunder.
4.7 For the purposes hereof, the term "expense or loss" shall
include all amounts paid or payable to satisfy any claim, demand or liability,
or in settlement of any claim, demand, action, suit or proceeding settled with
the express written consent of the Agent, and all costs and expenses, including,
but not limited to, reasonable counsel fees and disbursements, paid or incurred
in investigating or defending against any such claim, demand, action, suit or
proceeding.
5. TERMINATION OF AGREEMENT AND RESIGNATION OF AGENT.
5.1 This Escrow Agreement shall terminate on the final disposition
of the monies and property held in escrow hereunder, provided that the rights of
the Agent and the obligations of the other parties hereto under Sections 4 and 7
shall survive the termination hereof.
5.2 The Agent may resign at any time and be discharged from its
duties as Agent hereunder by giving the Company at least 30 days notice thereof.
As soon as practicable after its resignation, the Agent shall turn over to a
successor escrow agent appointed by the Company all monies and property held
hereunder upon presentation of the document appointing the new escrow agent and
its acceptance thereof. If no new Agent is so appointed within the 60-day period
following such notice of resignation, the Agent may deposit the aforesaid monies
and property with any court it deems appropriate.
6. FORM OF PAYMENTS BY AGENT.
6.1 Any payments by the Agent to Purchasers or to persons other than
the Company pursuant to the terms of this Agreement shall be made by check,
payable to the order of each respective subscriber or other person.
6.2 All amounts referred to herein are expressed in United States
Dollars and all payments by the Agent shall be made in such dollars.
7. COMPENSATION OF AGENT. For services rendered, the Agent shall
receive as compensation a fee payable at the rate of Twenty Five Dollars
($25.00) per Purchaser, which fee shall be paid by the Company by no later than
the day when Agent disburses funds received by it from time to time pursuant to
the terms of this Escrow Agreement. The Agent shall also be entitled to
reimbursement from the Company for all expenses paid or incurred by it in the
administration of its duties hereunder, including, but not limited to, all
counsel, advisors' and Agents' fees and disbursements and all reasonable taxes
or other governmental charges. It is anticipated that such disbursement shall
not exceed $500.00 barring any unforeseen circumstances.
8. NOTICES. All notices, requests, demands and other communications
provided for herein shall be in writing, shall be delivered by hand or by
first-class mail, shall be deemed given when received and shall be addressed to
the parties hereto at their respective addresses listed below or to such other
persons or addresses as the relevant party shall designate as to itself from
time to time in writing delivered in like manner.
If to the Company: ADVISORS REIT I, INC.
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With a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
Suite 565
7701 East ▇▇▇▇▇▇▇
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If to the Agent: American Stock Transfer & Trust Company
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With a copy to: American Stock Transfer & Trust Company
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9. FURTHER ASSURANCES: From time to time on and after the date hereof,
the Company shall deliver or cause to be delivered to the Agent such further
documents and instruments and shall do and cause to be done such further acts as
the Agent shall reasonably request (it being understood that the Agent shall
have no obligation to make any such request) to carry out more effectively the
provisions and purposes of this Agreement, to evidence compliance herewith or to
assure itself that it is protected in acting hereunder.
10. CONSENT TO SERVICE OF PROCESS. The Company hereby irrevocably consents
to the jurisdiction of the courts of the State of New York and of any federal
court located in such State in connection with any action, suit or other
proceeding arising out of or relating to this Agreement or any action taken or
omitted hereunder, and waives personal service of any summons, complaint or
other process and agrees that the service thereof may be made by certified or
registered mail directed to the Company at its address for purposes of notices
hereunder.
11. MISCELLANEOUS.
11.1 This Agreement shall be construed without regard to any
presumption or other rule requiring construction against the party causing such
instrument to be drafted. The terms "hereby", "hereof", "hereto", "hereunder"
and any similar terms, as used in this Agreement, refer to the Agreement in its
entirety and not only to the particular portion of this Agreement where the term
is used. The word "person" shall mean any natural person, partnership, company,
government and any other form of business or legal entity. All words or terms
used in this Agreement, regardless of the number or gender, in which they are
used, shall be deemed to include any other number and any other gender as the
context may require. This Agreement shall not be admissible in evidence to
construe the provisions of any prior agreement.
11.2 SUCCESSION AND ASSIGNMENT. This Agreement and the rights and
obligations hereunder of the Company may be assigned by the Company only to a
successor to the Company's entire business. This Agreement and the rights and
obligations hereunder of the Agent may be assigned by the Agent only to a
successor to its entire business. This Agreement shall be binding upon and inure
to the benefit of each party's respective successors, heirs and permitted
assigns. No other person shall acquire or have any rights under or by virtue of
this Agreement. This Agreement may not be changed orally or modified, amended or
supplemented without an express written agreement executed by the Agent and the
Company. This Agreement is intended to be for the sole benefit of the parties
hereto, and (subject to the provisions of this Section 11.2) their respective
successors, heirs and assigns, and none of the provisions of this Agreement are
intended to be, nor shall they be construed to be, for the benefit of any third
person.
11.3 AMENDMENTS AND WAIVERS. This Agreement may be amended only with
the written consent of the Agent and the Company. No waiver of any right or
remedy hereunder shall be valid unless the same shall be in writing and signed
by the party giving such waiver. No waiver by any party with respect to any
condition, default or breach of covenant hereunder shall be deemed to extend to
any prior or subsequent condition, default or breach of covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
11.4 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York. The
representations and warranties contained in this Agreement shall survive the
execution and delivery hereof and any investigations made by any party. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect any of the terms hereof.
12. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signature of all of the parties reflected hereon as the
signatures.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
on the day and year first above written.
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
ADVISORS REIT I, INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ /s/
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President