EXHIBIT 4.4
FORM OF
AMENDED AND RESTATED
ESCROW AGREEMENT
This ESCROW AGREEMENT, effective on November 10, 2005, as amended and
restated as of __________, 2006 by and among ▇▇▇▇▇ TIMBER REAL ESTATE INVESTMENT
TRUST, INC., a Maryland corporation ("COMPANY"), ▇▇▇▇▇ INVESTMENT SECURITIES,
INC., a Georgia corporation ("DEALER MANAGER"), and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association ("ESCROW AGENT").
WITNESSETH:
WHEREAS, Company proposes to offer to the public (the "PUBLIC OFFERING") up
to a maximum of 85,000,000 shares of its common stock, par value $0.01 per share
("SHARES") pursuant to the terms of, and at the prices set forth in, Company's
prospectus ("PROSPECTUS") contained in the registration statement (the
"REGISTRATION Statement") filed with the Securities and Exchange Commission
("COMMISSION") (capitalized terms used but not otherwise defined herein shall
have the respective meanings given in the Prospectus);
WHEREAS, the Dealer Manager will distribute the Shares on behalf of Company
on a "best efforts" basis;
WHEREAS, it is anticipated that prospective investors will subscribe for
Shares and will provide Dealer Manager with subscription payments for such
Shares (the "SUBSCRIPTION PAYMENTS"), which subscriptions will be contingent
upon (i) their respective acceptances by Company and (ii) Company's acceptance
of subscriptions aggregating at least $2,000,000 in subscription proceeds (the
"MINIMUM SUBSCRIPTION");
WHEREAS, Escrow Agent has agreed to receive and hold in escrow all
Subscription Payments until the earlier of (i) such time as subscriptions for
the Minimum Subscription have been received and accepted by Company or (ii) the
close of business on the date exactly one year after the original effective date
of the Registration Statement (the "MINIMUM SUBSCRIPTION TERMINATION DATE"), and
to hold and distribute such Subscription Payments in accordance with the terms
and conditions herein set forth;
WHEREAS, pursuant to the Prospectus, if prospective investors have not
subscribed for at least the Minimum Subscription by the Minimum Subscription
Termination Date, the Public Offering shall be terminated, and all Subscription
Payments shall be returned to the prospective investors together with any
earnings thereon;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT. Company and Dealer Manager hereby appoint
Escrow Agent to serve as escrow agent hereunder, and Escrow Agent hereby accepts
such appointment in accordance with the terms of this Escrow Agreement. Company
and Dealer Manager hereby acknowledge that the status of Escrow Agent is that of
agent only for the limited purposes set forth herein, and hereby agree that they
will not represent or imply that Escrow Agent has investigated the desirability
or advisability of investment in the Shares or has approved, endorsed or passed
upon the merits of the investment therein. Company and Dealer Manager further
agree that the name of the Escrow Agent shall not be used in any manner in
connection with the offer or sale of the Shares other than to state that the
Escrow Agent has agreed to serve as escrow agent for the limited purposes set
forth herein.
2. DEPOSIT INTO ESCROW. Until such time as prospective investors have
subscribed for the Minimum Subscription, and, thereafter, whenever the Dealer
Manager receives a check made payable to the Escrow Agent, the Dealer Manager
will (i) by 12:00 p.m. Eastern Time on the next business day following Dealer
Manager's receipt of the same, deposit with Escrow Agent, or cause to be
deposited with Escrow Agent, all Subscription Payments received by it,
accompanied by a list of the names, social security numbers or tax
identification numbers, and addresses (and any other information required for
withholding purposes) of, and amounts paid by, each prospective investor, and
(ii) allow such Subscription Payments to remain in escrow with Escrow Agent and
not withdraw, or attempt to withdraw, such Subscription Payments from Escrow
Agent, except as herein provided. Notwithstanding the foregoing, if any
prospective investor shall exercise any right provided by law to rescind his or
her subscription, Escrow Agent shall, upon notice from Company or Dealer
Manager, return to such prospective investor all Subscription Payments
pertaining to such subscription, together with any earnings thereon during the
period that such Subscription Payments were held by Escrow Agent under this
Escrow Agreement. Instruments of payment and wired funds received from residents
of Pennsylvania shall be placed in a separate escrow account established
specifically for such subscribers.
All Subscription Payments delivered to Escrow Agent by Dealer Manager
pursuant hereto shall be deposited immediately by Escrow Agent in a separate
account designated as the "Escrow Account for the Benefit of Subscribers for
Common Stock of ▇▇▇▇▇ Timber Real Estate Investment Trust, Inc." (the "ESCROW
ACCOUNT"). The Escrow Account shall be created and maintained subject to the
terms of this Escrow Agreement and the customary rules and regulations of Escrow
Agent pertaining to such accounts.
If any of the instruments of payment for the subscription of Shares are
dishonored or returned to Escrow Agent for nonpayment prior to receipt of the
Minimum Subscription, Escrow Agent shall promptly notify Dealer Manager in
writing of such nonpayment and return such instruments of payment to Dealer
Manager. In any such instance, Escrow Agent is authorized to debit the Escrow
Account in the amount of such return payment as well as any earnings on the
investment represented by such payment.
3. INVESTMENT OF THE FUNDS IN THE ESCROW ACCOUNT. Escrow Agent shall hold
funds delivered to it under the terms of this Escrow Agreement and shall from
time to time invest and reinvest the funds held in the Escrow Account, as and
when instructed pursuant to joint written instructions by Company and Dealer
Manager, in any one or more of the following:
(a) obligations of the United States of America;
(b) obligations guaranteed or collateralized by the United States of
America;
(c) money market accounts of any national banks or state banks insured by
the Federal Deposit Insurance Corporation, including Escrow Agent; and
(d) certificates of deposit of any national banks or state banks insured by
the Federal Deposit Insurance Corporation, including Escrow Agent.
No investment shall be made in any instrument or security that has a
maturity of greater than three (3) months. If no joint written instructions are
received by Escrow Agent as provided above, Escrow Agent may invest amounts held
in the Escrow Account in money market funds of the type described in
subparagraph (c) above. Any income or interest realized from the investments
made by Escrow Agent pursuant hereto shall be reinvested by Escrow Agent until
directed otherwise under the terms of this Escrow Agreement. Dealer Manager and
Company may examine any and all documentation regarding the investment of the
Escrow Account during normal business hours at the offices of Escrow Agent.
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4. DISBURSEMENTS FROM ESCROW ACCOUNT.
(a) Rejected Subscriptions. No later than five (5) business days after
receipt by Escrow Agent of written notice from Company or Dealer Manager that
Company intends to reject a potential investor's subscription, Escrow Agent
shall pay, by certified or bank check and by first-class mail, the amount of the
Subscription Payment paid by such potential investor (together with all earnings
thereon) or Escrow Agent shall return the instruments of payment delivered to
Escrow Agent with respect to any Subscription Payment if such instruments have
not been processed for collection prior to such time directly to such potential
investor.
(b) Termination of Public Offering. In the event that on the Minimum
Subscription Termination Date, Escrow Agent is not in receipt of evidence of
subscriptions accepted on or before such date, and instruments of payment dated
not later than that date (or actual wired funds), for the purchase of Shares at
least equal to the Minimum Subscription, Escrow Agent shall promptly notify
Company and Escrow Agent shall promptly return all funds received in full to
subscribers, together with their pro rata share of any interest earned thereon,
pursuant to instructions made by Company, upon which Escrow Agent may
conclusively rely.
(c) Receipt of Minimum Subscription Payments. Subject to the provisions of
Section 2 and Section 4(a) and (b) hereof, Escrow Agent shall hold all
Subscription Payments deposited with Escrow Agent in the Escrow Account under
the terms of this Escrow Agreement until such date ("MINIMUM SUBSCRIPTION
SATISFACTION DATE") as Company and Dealer Manager shall have delivered to the
Escrow Agent a joint written instruction notifying Escrow Agent that the Minimum
Subscription has been received and accepted (the "MINIMUM SUBSCRIPTION NOTICE
AND DISBURSEMENT INSTRUCTION"). Within two (2) business days of the Minimum
Subscription Notice and Disbursement Instruction, Escrow Agent shall deliver all
Subscription Payments in the Escrow Account and all earnings thereon to Company
in the manner, amounts and to the bank accounts set forth in the Minimum
Subscription Notice and Disbursement Instruction. If after the Escrow Agent has
received the Minimum Subscription Notice and Disbursement Instruction, the
Dealer Manager shall send the Escrow Agent Subscription Payments made payable
to the Escrow Agent after the Escrow Agent has received the Minimum
Subscription Notice and Disbursement Instruction, the Escrow Agent will deposit
the Subscription Payments into the Escrow Account, as described herein and,
within twenty four (24) hours of such deposit, deliver the Subscription
Payments in the Escrow Account in the manner, amounts and to the bank accounts
set forth in the Minimum Subscription Notice and Disbursement Instruction.
5. ESCROW AGENT COMPENSATION. Escrow Agent shall be entitled to receive
compensation for its services as Escrow Agent hereunder as set forth on the
schedule attached hereto and made a part hereof as Exhibit A, which compensation
shall be paid by Company. Notwithstanding anything contained in this Escrow
Agreement to the contrary, in no event shall any fee, reimbursement for costs
and expenses, indemnification for any damages incurred by Escrow Agent, or
monies whatsoever be paid out of or chargeable to the income or assets in the
Escrow Account held by Escrow Agent.
6. RESIGNATION AND REMOVAL OF ESCROW AGENT. Escrow Agent may resign at any
time from its obligations under this Escrow Agreement by providing written
notice to Company and Dealer Manager. Such resignation shall be effective on the
date specified in such notice, which shall be not less than thirty (30) days
after such written notice has been given. In addition, Company and Dealer
Manager may jointly remove Escrow Agent as the escrow agent at any time with or
without cause, by a written instrument executed by both of them (which may be
executed in counterparts) given to Escrow Agent, which instrument shall
designate the effective date of such removal. In the event of any such
resignation or removal, a successor escrow agent, which shall be a bank or trust
company organized under the laws of the United States of America, shall be
appointed by the mutual agreement of Company and Dealer Manager. Any such
successor escrow agent shall deliver to Company and Dealer Manager a written
instrument accepting such appointment, and thereupon it shall succeed to all the
rights and duties of Escrow Agent hereunder and shall be entitled to receive the
Escrow Account. If no successor escrow agent is named by Company and Dealer
Manager, Escrow Agent may apply to a court of competent jurisdiction for
appointment of a successor Escrow Agent.
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7. LIABILITY OF ESCROW AGENT. Escrow Agent shall not be liable to anyone
for any losses, claims, damages, liabilities or expenses that it may incur as a
result of any act or omission of Escrow Agent, unless such losses, claims,
damages, liabilities or expenses are caused by Escrow Agent's bad faith, willful
misconduct or gross negligence. Accordingly, Escrow Agent shall not incur any
such liability with respect to (i) any action taken or omitted in good faith
upon the advice of Escrow Agent's counsel or counsel for any other party hereto,
given with respect to any question relating to the duties and responsibilities
of Escrow Agent under this Escrow Agreement or (ii) any action taken or omitted
in reliance upon any instrument, including execution, or the identity or
authority of any person executing such instrument, its validity and
effectiveness, but also as to the truth and accuracy of any information
contained therein that Escrow Agent shall, in good faith, believe to be genuine,
to have been signed by a proper person or persons and to conform to the
provisions of this Escrow Agreement.
8. INDEMNIFICATION OF ESCROW AGENT. Company and Dealer Manager hereby
jointly and severally agree to indemnify and hold Escrow Agent (and its
officers, directors, employees and agents) harmless from and against any and all
losses, claims, damages, liabilities and expenses, including reasonable
attorney's fees and expenses, that may be imposed on Escrow Agent or incurred by
Escrow Agent in connection with Escrow Agent's acceptance of its appointment
hereunder, or the performance of Escrow Agent's duties hereunder, except where
such losses, claims, damages, liabilities and expenses result from Escrow
Agent's bad faith, gross negligence or willful misconduct.
9. DISPUTES. In the event of any disagreement among any of the parties to
this Escrow Agreement, or among them or any other person resulting in adverse
claims and demands being made in connection with or from any property in the
Escrow Account, Escrow Agent shall be entitled to refuse to comply with any such
claims or demands as long as such disagreement may continue, and in so refusing,
shall make no delivery or other disposition of any property then held by it in
the Escrow Account under this Escrow Agreement, and in so doing Escrow Agent
shall be entitled to continue to refrain from acting until (i) the right of
adverse claimants shall have been finally settled by binding arbitration or
finally adjudicated in a court assuming and having jurisdiction of the property
involved herein or affected hereby or (ii) all differences shall have been
adjusted by agreement and Escrow Agent shall have been notified in writing of
such agreement signed by the parties hereto.
In the event of such disagreement (or a resignation by Escrow Agent under
the terms of this Escrow Agreement), Escrow Agent may tender into the registry
or custody of any court of competent jurisdiction all money or property in its
hands under the terms of this Escrow Agreement, together with instituting any
other legal proceeding it deems appropriate, and thereupon Escrow Agent shall be
discharged from all further duties under this Escrow Agreement. The filing of
any such legal proceeding shall not deprive Escrow Agent of its compensation
earned prior to such filing.
10. REPRESENTATIONS AND WARRANTIES. Each of Company and Dealer Manager
respectively makes the following representations and warranties to Escrow Agent:
(a) It is a corporation, duly organized, validly existing, and in good
standing under the laws of the state of its incorporation, and has full power
and authority to execute and deliver this Escrow Agreement and to perform its
obligations hereunder.
(b) This Escrow Agreement has been duly approved by all necessary corporate
action, including any necessary shareholder approval, has been executed by its
duly authorized officers, and constitutes its valid and binding agreement,
enforceable in accordance with its terms.
(c) The execution, delivery, and performance of this Escrow Agreement will
not violate, conflict with, or cause a default under its articles of
incorporation or bylaws, any applicable law or
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regulation, any court order or administrative ruling or decree to which it is a
party or any of its property is subject, or any agreement, contract, indenture,
or other binding arrangement to which it is a party or any of its property is
subject. The execution, delivery and performance of this Escrow Agreement is
consistent with the Prospectus, and the Prospectus properly describes the
allocation of interest and other earnings to potential investors pursuant to
this Escrow Agreement.
(d) All of its representations and warranties contained herein are true and
complete as of the date hereof and will be true and complete at the time of any
deposit to or disbursement from the Escrow Account.
11. IDENTIFYING INFORMATION. Company and Dealer Manager acknowledge that
the identifying information set forth on Exhibit B is being requested by Escrow
Agent in connection with the USA Patriot Act, Pub.L.107-56 (the "ACT"), and
Company and Dealer Manager agree to provide any additional information
reasonably requested by Escrow Agent in connection with the Act or any similar
legislation or regulation to which Escrow Agent is subject, in a timely manner.
Company and Dealer Manager each represents that its respective identifying
information set forth on Exhibit B, including without limitation, its Taxpayer
Identification Number assigned by the Internal Revenue Service or any other
taxing authority, is true and complete on the date hereof and each agrees to
notify Escrow Agent of any change with respect thereto during the term of this
Escrow Agreement.
12. NOTICES. All notices, demands or other communications to be given or
delivered under or by reason of any provision of this Escrow Agreement shall be
in writing and shall be deemed to have been given (i) on the date delivered in
person, (ii) on the date indicated on the return receipt if mailed postage
prepaid, by certified or registered U.S. Mail, with return receipt requested,
(iii) on the date transmitted by facsimile, if sent by 5:00 P.M., Eastern Time
on a business day (or the next business day if after such time or if sent on a
day other than a business day), and confirmation of receipt thereof is obtained,
or (iv) on the next business day after delivery (in time for and specifying next
day delivery) to Federal Express or other nationally recognized overnight
courier service or overnight express U.S. Mail, with service charges or postage
prepaid. The addresses and facsimile numbers of the parties for purposes of this
Escrow Agreement are:
If to Company: ▇▇▇▇▇ Timber Real Estate Investment Trust, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇, III, President
With a copy to: ▇▇▇▇▇▇ & Bird LLP
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
If to Dealer Manager: ▇▇▇▇▇ Investment Securities, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
With a copy to: ▇▇▇▇▇▇ & Bird LLP
One Atlantic Center
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
If to Escrow Agent: Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇ - ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: April Bright, Trust Officer
or to such other address or facsimile number, or to the attention of such other
person, as the receiving party has specified by prior written notice to the
sending party pursuant to this Section 12.
13. BINDING EFFECT. This Escrow Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
14. TERM. This Escrow Agreement shall terminate within thirty (30) days
receipt of written notice by the Escrow Agent that the Company and the Dealer
Manager have agreed to terminate this Escrow Agreement.
15. AMENDMENTS. This Escrow Agreement shall not be modified, revoked,
released or terminated except upon the mutual consent of Company and Dealer
Manager, given in writing and delivered to the Escrow Agent. Should, at any
time, any attempt be made to modify this Escrow Agreement in a manner that would
increase the duties and responsibilities of Escrow Agent or to modify this
Escrow Agreement in any manner that Escrow Agent deems undesirable, Escrow Agent
may resign by notifying Company and Dealer Manager in writing, by certified
mail, and until (i) acceptance by a successor escrow agent appointed jointly by
Company and Dealer Manager or (ii) thirty (30) days following the date upon
which such notice was delivered by Escrow Agent, whichever occurs sooner, Escrow
Agent's only remaining obligation shall be to perform its duties hereunder in
accordance with the terms of the Escrow Agreement without regards to any such
modification.
16. ASSIGNMENT. Except as otherwise provided herein, no party may, without
the express written consent of each other party, assign or transfer this Escrow
Agreement in whole or in part.
17. GOVERNING LAW. This Escrow Agreement is governed by, and shall be
construed and enforced in accordance with, the laws of the State of Georgia
without regard to its conflict of laws rules.
18. SEVERABILITY. Whenever possible, each provision of this Escrow
Agreement shall be interpreted in such manner as to be effective and valid under
Georgia law, but if any provision shall be prohibited by or be invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Escrow Agreement.
19. HEADINGS. The headings as to contents of particular sections of this
Escrow Agreement are inserted for convenience and shall not be construed as a
part of this Escrow Agreement or as a limitation on or expansion of the scope of
any terms or provisions of this Escrow Agreement.
20. COUNTERPARTS. This Escrow Agreement may be executed 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.
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It shall not be necessary for every party hereto to sign each counterpart but
only that each party shall sign at least one such counterpart.
21. ENTIRE AGREEMENT. This Escrow Agreement contains the entire
understanding between and among the parties hereto and supersedes any previous
understandings, written or oral, that the parties may have reached, with respect
to the subject matter of this Escrow Agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties hereto have made and entered into this
Escrow Agreement on the date first hereinabove set forth.
COMPANY:
▇▇▇▇▇ TIMBER REAL ESTATE
INVESTMENT TRUST, INC.
By:
------------------------------------
Name:
Title:
DEALER MANAGER:
▇▇▇▇▇ INVESTMENT SECURITIES, INC.
By:
------------------------------------
Name:
Title:
ESCROW AGENT:
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
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EXHIBIT A
ESCROW AGENT FEES
One-Time Escrow Services Fee - Payable in advance - $2,500
A-1
EXHIBIT B
IDENTIFYING INFORMATION
Taxpayer Identification Numbers:
Company: ▇▇-▇▇▇▇▇▇▇
Dealer Manager: ▇▇-▇▇▇▇▇▇▇
B-1