ESCROW AGREEMENT
UMB Bank,
N.A.
0000
Xxxxx Xxxx., 0xx
Xxxxx
Mail
Stop: 1020409
Xxxxxx
Xxxx, XX 00000
Re: Xxxxxx Validus Mission
Critical REIT, Inc.
Ladies
and Gentlemen:
XXXXXX
VALIDUS MISSION CRITICAL REIT, INC., a Maryland corporation (the “Company”), will issue
in a public offering (the “Offering”) shares of
its common stock (the “Stock”) pursuant to a
registration statement on Form S-11 filed by the Company with the Securities and
Exchange Commission. SC Distributors, a Delaware limited liability
company (the “Dealer
Manager”), will act as dealer manager for the offering of the
Stock. The Company is entering into this agreement to set forth the
terms on which UMB Bank, N.A. (the “Escrow Agent”), will,
except as otherwise provided herein, hold and disburse the proceeds from
subscriptions for the purchase of the Stock in the Offering until such time as:
(i) in the case of subscriptions received from all non-affiliates of the
Company, the Company has received subscriptions for Stock resulting in a total
of 200,000 shares ($2,000,000) of common stock sold in the Offering (the “Required Capital”);
(ii) in the case of subscriptions received from residents of Pennsylvania
(“Pennsylvania
Subscribers”), the Company has received subscriptions for Stock from
non-affiliates of the Company resulting in total minimum capital raised of
$86,875,000 (the “Pennsylvania Required
Capital”); and (iii) in the case of subscriptions received from residents
of Tennessee (“Tennessee
Subscribers”), the Company has received subscriptions for Stock resulting
in a total of 1,000,000 shares ($10,000,000) of Stock sold in the Offering (the
“Tennessee Required
Capital”).
The
Company hereby appoints UMB Bank, N.A., as Escrow Agent for purposes of holding
the proceeds from the subscriptions for the Stock, on the terms and conditions
hereinafter set forth:
1. Until
such time as the Company has received subscriptions for Stock resulting in total
minimum capital raised equal to the Required Capital and such funds are
disbursed from the Escrow Account (as defined below) in accordance with
paragraph 3(a) hereof, persons subscribing to purchase the Stock (the “Subscribers”) will be
instructed by the Dealer Manager or any soliciting dealers to remit the purchase
price in the form of checks, drafts, wires, Automated Clearing House (ACH) or
money orders (hereinafter
“instruments of
payment”) payable to the order of “UMB Bank, N.A., Agent for Xxxxxx
Validus Mission Critical REIT, Inc.” or a recognizable contractor or
abbreviation thereof, including but not limited to, “UMB Bank, N.A., f/b/o for
CVREIT.” After subscriptions are received resulting in total minimum
capital raised equal to the Required Capital and such funds are disbursed from
the Escrow Account in accordance with paragraph 3(a) hereof, subscriptions shall
continue to be so submitted unless otherwise instructed by the Dealer Manager;
provided, however, that Tennessee Subscribers and Pennsylvania Subscribers shall
continue to make checks payable to the order of “UMB Bank, N.A., Agent for
Xxxxxx Validus Mission Critical REIT, Inc.” until subscriptions are received
resulting in total minimum capital raised equal to the Tennessee Required
Capital and the Pennsylvania Required Capital, as applicable, and such funds are
disbursed from the Tennessee Escrow Account (as defined below) or the
Pennsylvania Escrow Account, as applicable, in accordance with paragraph 3(a)
hereof. Any checks, drafts or money orders received made payable to a
party other than the Escrow Agent (or after the Required Capital is received,
made payable to a party other than the party designated by the Dealer Manager)
shall be returned to the soliciting dealer who submitted the check, draft or
money order. Within one (1) business day after receipt of instruments
of payment from the Offering, the Dealer Manager, the Company or their
respective agents will (a) send to the Escrow Agent: each Subscriber’s name,
address, number of shares purchased, and purchase price remitted, and (b) Escrow
Agent will deposit the instruments of payment from such Subscribers, into an
interest-bearing deposit account entitled “Escrow Account for the Benefit of
Subscribers for Common Stock of Xxxxxx Validus Mission Critical REIT, Inc.” (the
“Escrow
Account”), which deposit shall occur within one (1) business day after
the Escrow Agent’s receipt of the instrument of payment, until such Escrow
Account has closed pursuant to paragraph 3(a)
hereof. Instruments of payment received from Pennsylvania Subscribers
(as identified as such by the Company) shall be accounted for separately in a
subaccount entitled “Escrow Account for the Benefit of Pennsylvania Subscribers
for CVREIT” (the “Pennsylvania Escrow
Account”), until such Pennsylvania Escrow Account has closed pursuant to
paragraph 3(a) hereof; provided, however, that instruments of payment received
from Tennessee Subscribers (as identified as such by the Company) shall be
accounted for separately in a subaccount entitled “Escrow Account for the
Benefit of Tennessee Subscribers for CVREIT” (the “Tennessee Escrow
Account”), until such Tennessee Escrow Account has closed pursuant to
paragraph 3(a) hereof. Each of the Escrow Account, the Tennessee
Escrow Account and the Pennsylvania Escrow Account will be established and
maintained in such a way as to permit the interest income calculations described
in paragraph 7. The Company shall, and shall cause its agents to,
cooperate with the Escrow Agent in separately accounting for Tennessee and
Pennsylvania subscription proceeds in the Tennessee Escrow Account and the
Pennsylvania Escrow Account, as applicable, and the Escrow Agent shall be
entitled to rely upon information provided by the Company or its agents in this
regard.
2. The Escrow Agent agrees to promptly process for collection the instruments of payment upon deposit into the Escrow Account, the Tennessee Escrow Account or the Pennsylvania Escrow Account, as applicable. Deposits shall be held in the Escrow Account, the Tennessee Escrow Account or the Pennsylvania Escrow Account until such funds are disbursed in accordance with paragraph 3 hereof. Prior to disbursement of the funds deposited in the Escrow Account, the Tennessee Escrow Account or the Pennsylvania Escrow Account, such funds shall not be subject to claims by creditors of the Company, the Dealer Manager, any soliciting dealer or any of their respective affiliates. If any of the instruments of payment are returned to the Escrow Agent for nonpayment prior to receipt of the Required Capital or, in connection with the Tennessee Subscribers, the Tennessee Required Capital or, in connection with subscriptions from Pennsylvania Subscribers, the Pennsylvania Required Capital, the Escrow Agent shall promptly notify the Dealer Manager and the Company in writing via mail, email or facsimile of such nonpayment, and is authorized to debit the Escrow Account, the Tennessee Escrow Account or the Pennsylvania Escrow Account, as applicable, in the amount of such returned payment as well as any interest earned on the amount of such payment.
3. (a) (i)
Subject to the provisions of subparagraphs 3(b)-3(f) below, once the collected
funds in the Escrow Account are an amount equal to or greater than the Required
Capital, the Escrow Agent shall promptly notify the Company and instruct the
Dealer Manager, or its agent, to deliver an executed IRS Form W-9 for each
Subscriber and, upon receiving written instruction from the Company, (A)
disburse to the Company, by check, ACH or wire transfer, the funds in the Escrow
Account representing the gross purchase price for the Stock, and (B) within five
business days after the first business day of the succeeding month, disburse to
the Subscribers or the Company, as applicable, any interest thereon pursuant to
the provisions of subparagraph 3(f). After such time the Escrow
Account shall remain open and the Company shall continue to cause subscriptions
for the Stock that are not to be deposited in the Tennessee Escrow Account or
the Pennsylvania Escrow Account to be deposited therein until the Company
informs the Escrow Agent in writing to close the Escrow Account, and thereafter
any subscription documents and instruments of payment received by the Escrow
Agent from Subscribers other than Pennsylvania Subscribers shall be forwarded
directly to the Company. For purposes of this Agreement, the term
“collected funds” shall mean all funds received by the Escrow Agent that have
cleared normal banking channels and are in the form of cash or cash
equivalent. After the satisfaction of the aforementioned
provisions of this paragraph 3(a)(i), in the event the Company receives
subscriptions made payable to the Escrow Agent (other than subscriptions that
are to be deposited in the Tennessee Escrow Account and the Pennsylvania Escrow
Account), subscription proceeds may continue to be received in this account
generally, but to the extent such proceeds shall not be subject to escrow due to
the satisfaction of the aforementioned provisions of this paragraph 3(a)(i),
such proceeds are not subject to this Escrow Agreement and at the instruction of
the Company to the Escrow Agent shall be transferred from the Escrow Account or
deposited directly into, as the case may be, a commercial deposit account in the
name of the Company with the Escrow Agent (the “Deposit Account”) that has been
previously established by the Company, unless otherwise directed by the
Company. The Company hereby covenants and agrees that it shall do all
things necessary in order to establish the Deposit Account, which shall be
subject to the Escrow Agent’s usual account guidelines and regulations, prior to
its use. No provisions of this Escrow Agreement shall apply to the Deposit
Account.
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(ii)
regardless of any release of funds from, or the closing of, the Escrow Account,
the Company, the Dealer Manager and soliciting dealers shall continue to forward
instruments of payment received from Tennessee Subscribers for deposit into the
Tennessee Escrow Account to the Escrow Agent until such time as the Company
notifies the Escrow Agent in writing that total subscription proceeds (including
the amount then in the Tennessee Escrow Account) equal or exceed the Tennessee
Required Capital. Within five days after
receipt by the Escrow Agent of such notice, the Escrow Agent shall instruct the
Dealer Manager, or its agent, to deliver an executed IRS Form W-9 for each
Tennessee Subscriber and (A) disburse to the Company, by check, ACH or wire
transfer, the funds then in the Tennessee Escrow Account representing the gross
purchase price for the Stock, and (B) within five business days after the first
business day of the succeeding month, disburse to the Tennessee Subscribers or
the Company, as applicable, any interest thereon pursuant to the provisions of
subparagraph 3(f). Following such disbursements, the Escrow
Agent shall close the Tennessee Escrow Account, and thereafter any instruments
of payment received by the Escrow Agent from Tennessee Subscribers shall not be
subject to this Escrow Agreement and shall be deposited directly into the Escrow
Account or the Deposit Account, as instructed in writing by the Company pursuant
to subparagraph 3(a)(i) above.
(iii)
regardless of any release of funds from, or the closing of, the Tennessee Escrow
Account or the Escrow Account, the Company, the Dealer Manager and soliciting
dealers shall continue to forward instruments of payment received from
Pennsylvania Subscribers for deposit into the Pennsylvania Escrow Account to the
Escrow Agent until such time as the Company notifies the Escrow Agent in writing
that total subscription proceeds (including the amount then in the Pennsylvania
Escrow Account) equal or exceed the Pennsylvania Required Capital. Within five days after
receipt by the Escrow Agent of such notice, the Escrow Agent shall instruct the
Dealer Manager, or its agent, to deliver an executed IRS Form W-9 for each
Pennsylvania Subscriber and (A) disburse to the Company, by check, ACH or wire
transfer, the funds then in the Pennsylvania Escrow Account representing the
gross purchase price for the Stock, and (B) within five business days after the
first business day of the succeeding month, disburse to the Pennsylvania
Subscribers or the Company, as applicable, any interest thereon pursuant to the
provisions of subparagraph 3(f). Following such disbursements,
the Escrow Agent shall close the Pennsylvania Escrow Account, and thereafter any
instruments of payment received by the Escrow Agent from Pennsylvania
Subscribers shall not be subject to this Escrow Agreement and shall be deposited
directly into the Escrow Account or the Deposit Account, as instructed in
writing by the Company pursuant to subparagraph 3(a)(i) above.
(b) Within
four business days of the close of business on the date that is one year
following commencement of the Offering (the “Expiration Date”),
the Escrow Agent shall promptly notify the Company if it is not in receipt of
evidence of deposits for the purchase of Stock providing for aggregate offering
proceeds that equal or exceed the Required Capital (from all sources but
exclusive of any funds received from subscriptions for Stock from entities which
the Company has notified the Escrow Agent are affiliated with the
Company). Within ten days following the date of such notice, the
Escrow Agent shall promptly return directly to each Subscriber the collected
funds deposited in the Escrow Account, the Tennessee Escrow Account and the
Pennsylvania Escrow Account on behalf of such Subscriber (unless earlier
disbursed in accordance with paragraph 3(c)), or shall return the instruments of
payment delivered, but not yet processed for collection prior to such time, in
either case, together with interest income (which interest shall be paid within
five business days after the first business day of the succeeding month) in the
amounts calculated pursuant to paragraph 7 for each Subscriber at the address
provided by the Dealer Manager or the Company to the Escrow Agent, which the
Escrow Agent shall be entitled to rely upon. Notwithstanding the
above, in the event the Escrow Agent has not received an executed IRS Form W-9
at such time for each Subscriber, the Escrow Agent shall remit an amount to the
Subscribers in accordance with the provisions hereof, withholding the applicable
percentage for backup withholding required by the Internal Revenue Code, as then
in effect, from any interest income on subscription proceeds (determined in
accordance with paragraph 7) attributable to each Subscriber for whom the Escrow
Agent does not possess an executed IRS Form W-9. However, the Escrow
Agent shall not be required to remit any payments until the Escrow Agent has
collected funds represented by such payments.
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(c) Notwithstanding
subparagraphs 3(a) and 3(b) above, if the Escrow Agent is not in receipt of
evidence of subscriptions accepted on or before the close of business on such
date that is 120 days after commencement of the Offering (the Company will
notify the Escrow Agent of the commencement date of the Offering) (the “Initial Escrow
Period”), and instruments of payment dated not later than that date, for
the purchase of Stock providing for total purchase proceeds from all
nonaffiliated sources that equal or exceed the Pennsylvania Required Capital,
the Escrow Agent shall promptly notify the Company. Thereafter, the
Company shall send to each Pennsylvania Subscriber by certified mail within ten
(10) calendar days after the end of the Initial Escrow Period a notification in
the form of Exhibit A. If, pursuant to such notification, a
Pennsylvania Subscriber requests the return of his or her subscription funds
within ten (10) calendar days after receipt of the notification (the “Request Period”), the
Escrow Agent shall promptly refund directly to each Pennsylvania Subscriber the
collected funds deposited in the Pennsylvania Escrow Account on behalf of such
Pennsylvania Subscriber or shall return the instruments of payment delivered,
but not yet processed for collection prior to such time, to the address provided
by the Dealer Manager or the Company or their respective agents to the Escrow
Agent, which the Escrow Agent shall be entitled to rely upon, together with
interest income (which interest shall be paid within five business days after
the first business day of the succeeding month) in the amounts calculated
pursuant to paragraph 7. Notwithstanding the above, if the Escrow
Agent has not received an executed IRS Form W-9 is for such Pennsylvania
Subscriber, the Escrow Agent shall thereupon remit an amount to such
Pennsylvania Subscriber in accordance with the provisions hereof, withholding
the applicable percentage for backup withholding required by the Internal
Revenue Code, as then in effect, from any interest income earned on subscription
proceeds (determined in accordance with paragraph 7) attributable to such
Pennsylvania Subscriber. However, the Escrow Agent shall not be
required to remit such payments until the Escrow Agent has collected funds
represented by such payments.
(d) The
subscription funds of Pennsylvania Subscribers who do not request the return of
their subscription funds within the Request Period shall remain in the
Pennsylvania Escrow Account for successive 120-day escrow periods (a “Successive Escrow
Period”), each commencing automatically upon the termination of the prior
Successive Escrow Period, and the Company and Escrow Agent shall follow the
notification and payment procedure set forth in subparagraph 3(c) above with
respect to the Initial Escrow Period for each Successive Escrow Period until the
occurrence of the earliest of (i) the Expiration Date, (ii) the receipt and
acceptance by the Company of subscriptions for the purchase of Stock with total
purchase proceeds that equal or exceed the Pennsylvania Required Capital and the
disbursement of the Pennsylvania Escrow Account on the terms specified herein,
or (iii) all funds held in the Pennsylvania Escrow Account having been returned
to the Pennsylvania Subscribers in accordance with the provisions
hereof.
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(e)
If the Company rejects any subscription for which the Escrow Agent has collected
funds, the Escrow Agent shall, upon the written request of the Company, promptly
issue a refund to the rejected Subscriber at the address provided by the Dealer
Manager or the Company, which the Escrow Agent shall be entitled to rely
upon. If the Company rejects any subscription for which the Escrow
Agent has not yet collected funds but has submitted the Subscriber’s check for
collection, the Escrow Agent shall promptly return the funds in the amount of
the Subscriber’s check to the rejected Subscriber, at the address provided by
the Dealer Manager or the Company or their respective agents, which the Escrow
Agent shall be entitled to rely upon, after such funds have been
collected. If the Escrow Agent has not yet submitted a rejected
Subscriber’s check for collection, the Escrow Agent shall promptly remit the
Subscriber’s check directly to the Subscriber.
(f) At
any time after funds are disbursed upon the Company’s acceptance of
subscriptions pursuant to subparagraph 3(a) above on the fifth business day
following the first business day of the next succeeding month following the date
of such acceptance, the Escrow Agent shall promptly provide directly to each
Subscriber the amount of the interest payable to the Subscribers; provided that
the Escrow Agent is in possession of such Subscriber’s executed IRS Form
W-9. In the event an executed IRS Form W-9 is not received for each
Subscriber the Escrow Agent shall remit an amount to the Subscribers in
accordance with the provisions hereof, withholding the applicable percentage for
backup withholding required by the Internal Revenue Code, as then in effect,
from any interest income on subscription proceeds (determined in accordance with
paragraph 7) attributable to those Subscribers for whom the Escrow Agent does
not possess an executed IRS Form W-9. However, the Escrow Agent shall
not be required to remit any payments until the Escrow Agent has collected funds
represented by such payments. The forgoing notwithstanding, interest,
if any, earned on accepted subscription proceeds will be payable to a Subscriber
only if the Subscriber’s funds have been held in escrow by the Escrow Agent for
at least 35 days; interest, if any, earned on accepted subscription proceeds of
Subscribers’ funds held less than 35 days will be payable to the
Company.
In the
event that instruments of payment are returned for nonpayment, the Escrow Agent
is authorized to debit the Escrow Account, the Tennessee Escrow Account or the
Pennsylvania Escrow Account, as applicable, in accordance with paragraph 2
hereof.
4. The
Escrow Agent shall provide to the Company monthly statements (or more frequently
as reasonably requested by the Company, which includes, without limitation, if
such amounts are not available to the Company at least daily pursuant to the
“TrustDirect” program) on the account balance in each of the Escrow Account, the
Tennessee Escrow Account and the Pennsylvania Escrow Account, and the activity
in such accounts since the last report. The Escrow Agent will provide
access to its “TrustDirect” program to allow the Company to view account
balances for the Escrow Account, the Tennessee Escrow Account and the
Pennsylvania Escrow Account at any time.
5. Prior
to the disbursement of funds deposited in the Escrow Account, the Tennessee
Escrow Account or the Pennsylvania Escrow Account in accordance with the
provisions of paragraph 3 hereof, the Escrow Agent shall invest all of the funds
deposited as well as earnings and interest derived therefrom in the Escrow
Account, the Tennessee Escrow Account or the Pennsylvania Escrow Account, as
applicable, in the “Short-Term Investments” specified below at the written
direction of the Company, unless the costs to the Company for the making of such
investment are reasonably expected to exceed the anticipated interest earnings
from such investment in which case the funds and interest thereon shall remain
in the respective escrow account until the balance in the respective escrow
account reaches the minimum amount necessary for the anticipated interest
earnings from such investment to exceed the costs to the Company for the making
of such investment, as determined by the Company based upon applicable interest
rates.
5
“Short-Term
Investments” include obligations of, or obligations guaranteed by, the United
States government or bank money-market accounts or certificates of deposit of
national or state banks that have deposits insured by the Federal Deposit
Insurance Corporation (including certificates of deposit of any bank acting as a
depository or custodian for any such funds) which mature on or before the
Expiration Date, unless such instrument cannot be readily sold or otherwise
disposed of for cash by the Expiration Date without any dissipation of the
offering proceeds invested. Without limiting the generality of the
foregoing, Exhibit B hereto
sets forth specific Short-Term Investments that shall be deemed permissible
investments hereunder.
The
following securities are not permissible investments:
(a)
|
money
market funds;
|
(b)
|
corporate
equity or debt securities;
|
(c)
|
repurchase
agreements;
|
(d)
|
bankers’
acceptances;
|
(e)
|
commercial
paper; and
|
(f)
|
municipal
securities.
|
It is
hereby expressly agreed and stipulated by the parties hereto that the Escrow
Agent shall not be required to exercise any discretion hereunder and shall have
no investment or management responsibility and, accordingly, shall have no duty
to, or liability for its failure to, provide investment recommendations or
investment advice to the parties hereto. It is the intention of the
parties hereto that the Escrow Agent shall never be required to use, advance or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties or the exercise of any of its rights and powers
hereunder.
6. The
Escrow Agent is entitled to rely upon written instructions received from the
Company or the Dealer Manager or their respective agents, unless the Escrow
Agent has actual knowledge that such instructions are not valid or genuine;
provided that, if in the Escrow Agent’s opinion, any instructions from the
Company or the Dealer Manager or their respective agents are unclear, the Escrow
Agent may request clarification from the Company or the Dealer Manager or their
respective agents, as applicable, prior to taking any action, and if such
instructions continue to be unclear, the Escrow Agent may rely upon written
instructions from the Company’s legal counsel in distributing or continuing to
hold any funds. However, the Escrow Agent shall not be required to
disburse any funds attributable to instruments of payment that have not been
processed for collection, until such funds are collected and then shall disburse
such funds in compliance with the disbursement instructions from the Company or
the Dealer Manager or their respective agents.
7. If
the Offering terminates prior to receipt of the Required Capital, or, with
respect to the Tennessee Subscribers or Pennsylvania Subscribers or one or more
Pennsylvania Subscribers elects to have his or her subscription returned in
accordance with paragraph 3, interest income earned on subscription proceeds
deposited in the Escrow Account (the “Escrow Income”), the
Tennessee Escrow Account (the “Tennessee Escrow
Income”) or the Pennsylvania Escrow Account (the “Pennsylvania Escrow
Income”), as applicable, shall be remitted to Subscribers to the address
provided by the Dealer Manager or the Company to the Escrow Agent, which the
Escrow Agent shall be entitled to rely upon, in accordance with paragraph 3 and
without any deductions for escrow expenses. The Company shall
reimburse the Escrow Agent for all escrow expenses. If the Escrow
Agent remits interest income pursuant to this Agreement, the Escrow Agent shall
be responsible for any necessary federal tax reporting associated with such
income; provided, however, that the Escrow Agent shall not be responsible for
any other tax reporting associated with this Agreement. The Escrow
Agent shall remit all such Escrow Income, Tennessee Escrow Income and
Pennsylvania Escrow Income in accordance with paragraph 3. If the
Company chooses to leave the Escrow Account open after receiving the Required
Capital then it shall make regular acceptances of subscriptions therein, but no
less frequently than monthly.
6
8. The
Escrow Agent shall receive compensation from the Company as set forth in Exhibit C attached
hereto, which such Exhibit C is hereby
incorporated by reference.
9. In
performing any of its duties hereunder, the Escrow Agent shall not incur any
liability to anyone for any damages, losses, or expenses, except for willful
misconduct, breach of trust, or gross negligence. Accordingly, the
Escrow Agent shall not incur any such liability with respect to any action taken
or omitted (a) in good faith upon advice of the Escrow Agent’s counsel given
with respect to any questions relating to the Escrow Agent duties and
responsibilities under this Agreement, or (b) in reliance upon any instrument,
including any written instrument or instruction provided for in this Agreement,
not only as to its due execution and validity and effectiveness of its
provisions but also as to the truth and accuracy of information contained
therein, which the Escrow Agent shall in good faith believe to be genuine, to
have been signed or presented by a proper person or persons and to conform to
the provisions of this Agreement.
10. The
Company hereby agrees to indemnify and hold the Escrow Agent harmless against
any and all losses, claims, damages, liabilities, and expenses, including
reasonable attorneys’ fees and disbursements, that may be imposed on or incurred
by the Escrow Agent in connection with acceptance of appointment as the Escrow
Agent hereunder, or the performance of the duties hereunder, including any
litigation arising from this Agreement or involving the subject matter hereof,
except where such losses, claims, damages, liabilities, and expenses result from
willful misconduct, breach of trust, or gross negligence.
11. In
the event of a dispute between the parties hereto sufficient in the Escrow
Agent’s discretion to justify doing so, the Escrow Agent shall be entitled to
tender into the registry or custody of any court of competent jurisdiction all
money or property in its hands under this Agreement, together with such legal
pleadings as deemed appropriate, and thereupon be discharged from all further
duties and liabilities under this Agreement. In the event of any uncertainty as
to the duties hereunder, the Escrow Agent may refuse to act under the provisions
of this Agreement pending order of a court of competent jurisdiction and shall
have no liability to the Company or to any other person as a result of such
action. Any such legal action may be brought in such court, as the
Escrow Agent shall determine to have jurisdiction thereof. The filing
of any such legal proceedings shall not deprive the Escrow Agent of its
compensation earned prior to such filing.
12. All
communications and notices required or permitted by this Agreement shall be in
writing and shall be deemed to have been given when delivered personally or by
messenger or by overnight delivery service or when received via telecopy or
other electronic transmission, in all cases addressed to the person for whom it
is intended at such person’s address set forth below or to such other address as
a party shall have designated by notice in writing to the other party in the
manner provided by this paragraph:
(a) if
to the Company:
Xxxxxx
Validus Mission Critical REIT, Inc.
0000 Xxxx
Xxx Xxxxx Xxxx., Xxxxx 000
Xxxxx,
Xxxxxxx 00000
Fax: (000)
000-0000
Attention:
Xxxx X. Xxxxxx
7
with a
copy to:
Xxxxxx
Validus Mission Critical REIT, Inc.
0000 Xxxx
Xxx Xxxxx Xxxx., Xxxxx 000
Xxxxx,
Xxxxxxx 00000
Fax: (000)
000-0000
Attention:
Xxxx Xxxxxxxx
(b) if
to the Dealer Manager:
SC
Distributors, LLC
0 Xxx
Xxxxxxx, Xxx. 000
Xxxxxxx
Xxxxx, XX 00000
Fax: _____________
Attention: Xxxxxxx
X. Xxxxxx
(c) if
to the Escrow Agent:
UMB Bank,
N.A.
0000
Xxxxx Xxxx., 0xx
Xxxxx
Mail
Stop: 1020409
Xxxxxx
Xxxx, XX 00000
Attention:
Each
party hereto may, from time to time, change the address to which notices to it
are to be delivered or mailed hereunder by notice in accordance herewith to the
other parties.
13. This
Agreement shall be governed by the laws of the State of Florida as to both
interpretation and performance without regard to the conflict of laws rules
thereof.
14. The
provisions of this Agreement shall be binding upon the legal representatives,
successors, and assigns of the parties hereto.
15. The
Company and the Dealer Manager hereby acknowledge that UMB Bank, N.A. is serving
as Escrow Agent only for the limited purposes herein set forth, and hereby agree
that they will not represent or imply that, by serving as Escrow Agent hereunder
or otherwise, have investigated the desirability or advisability of investment
in the Company or have approved, endorsed, or passed upon the merits of the
Stock or the Company, nor shall they use the name of the Escrow Agent in any
manner whatsoever in connection with the offer or sale of the Stock other than
by acknowledgment that is has agreed to serve as Escrow Agent for the limited
purposes herein set forth.
16. This
Agreement and any amendment hereto may be executed by the parties hereto in one
or more counterparts, each of which shall be deemed to be an
original.
17. In
the event that the Dealer Manager receives instruments of payment after the
Required Capital, the Tennessee Required Capital or the Pennsylvania Required
Capital, as applicable, has been received and the proceeds of the Escrow
Account, the Tennessee Escrow Account or the Pennsylvania Capital Account, as
applicable, have been distributed to the Company, the Escrow Agent is hereby
authorized to deposit such instruments of payment within one (1) business day to
any deposit account as directed by the Company. The application of
said funds into a deposit account or to forward such funds directly to the
Company, in either case directed by the Company shall be a full acquittance to
the Escrow Agent, who shall not be responsible for the application of said funds
thereafter.
8
18. The
Escrow Agent shall be bound only by the terms of this Escrow Agreement and shall
not be bound by or incur any liability with respect to any other agreements or
understanding between any other parties, whether or not the Escrow Agent has
knowledge of any such agreements or understandings.
19. Indemnification
provisions set forth herein shall survive the termination of this
Agreement.
20. 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.
21. Unless
otherwise provided in this Agreement, final termination of this Escrow Agreement
shall occur on the date that all funds held in the Escrow Account, the Tennessee
Escrow Account and the Pennsylvania Escrow Account are distributed either (a) to
the Company or to Subscribers and the Company has informed the Escrow Agent in
writing to close the Escrow Account and the Pennsylvania Escrow Account pursuant
to paragraph 3 hereof or (b) to a successor escrow agent upon written
instructions from the Company.
22. Neither
the Escrow Agent, nor its agents, shall have responsibility for accepting,
rejecting, or approving subscriptions. The Escrow Agent, or its
agent, shall complete an OFAC search, in compliance with its policy and
procedures, of each subscription check and shall inform the Company if a
subscription check fails the OFAC search. The Dealer Manager shall
provide a copy of each subscription check in order that the Escrow Agent, or its
agent, may perform such OFAC search.
23. This
Agreement shall not be modified, revoked, released, or terminated unless reduced
to writing and signed by all parties hereto, subject to the following
paragraph.
If, at
any time, any attempt is made to modify this Agreement in a manner that would
increase the duties and responsibilities of the Escrow Agent or to modify this
Agreement in any manner which the Escrow Agent shall deem undesirable, or at any
other time, the Escrow Agent may resign by providing written notice to the
Company and until (a) the acceptance by a successor escrow agent as shall be
appointed by the Company; or (b) thirty (30) days after such written notice has
been given, whichever occurs sooner, the Escrow Agent’s only remaining
obligation shall be to perform its duties hereunder in accordance with the terms
of the Agreement.
24. The
Escrow Agent may resign at any time from its obligations under this Escrow
Agreement by providing written notice to the Company. 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. The Escrow Agent shall have no responsibility for the
appointment of a successor escrow agent.
25. The
Escrow Agent may be removed for cause by the Company by written notice to the
Escrow Agent effective on the date specified in such written
notice. The removal of the Escrow Agent shall not deprive the Escrow
Agent of its compensation earned prior to such removal.
26. The
Company shall provide to Escrow Agent any documentation and information
reasonably requested by the Escrow Agent for it to comply with the USA Patriot
Act of 2001, as amended from time to time.
9
[Signature
page follows]
10
Agreed to
as of the ___ day of _________, 2010.
XXXXXX
VALIDUS MISSION CRITICAL REIT, INC.
By:
__________________________
Xxxx
X. Xxxxxx, Chief Executive Officer
SC
DISTRIBUTORS, LLC
By:
__________________________
Xxxxxxx
X. Xxxxxx, President
|
The terms
and conditions contained above are hereby accepted and agreed to
by:
UMB Bank, N.A., as Escrow Agent
By:
__________________________
Name:
________________________ Title:
_________________________
11
EXHIBIT
A
[Form of
Notice to Pennsylvania Subscribers]
You have
tendered a subscription to purchase shares of common stock of Xxxxxx Validus
Mission Critical REIT, Inc. (the “Company”). Your subscription is
currently being held in escrow. The guidelines of the Pennsylvania
Securities Commission do not permit the Company to accept subscriptions from
Pennsylvania residents until an aggregate of $86,875,000 of gross offering
proceeds have been received by the Company. The Pennsylvania
guidelines provide that until this minimum amount of offering proceeds is
received by the Company, every 120 days during the offering period Pennsylvania
Subscribers may request that their subscription be returned.
If you
wish to continue your subscription in escrow until the Pennsylvania minimum
subscription amount is received, nothing further is required.
If you
wish to terminate your subscription for the Company’s common stock and have your
subscription returned please so indicate below, sign, date, and return to the
Escrow Agent, UMB Bank, N.A.
I hereby
terminate my prior subscription to purchase shares of common stock of Xxxxxx
Validus Mission Critical REIT, Inc. and request the return of my subscription
funds. I certify to Xxxxxx Validus Mission Critical REIT, Inc. that I
am a resident of Pennsylvania.
Signature:
___________________________
Name: ___________________________
(please print)
Date:
___________________________
|
|
Please
send the subscription refund to:
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
EXHIBIT
B
PERMISSIBLE
ESCROW INVESTMENTS
|
(i)
|
Bank
accounts;
|
|
(ii)
|
Bank
money-market accounts;
|
|
(iii)
|
Short
time certificates of deposit issued by a bank;
and
|
|
(iv)
|
Short-term
securities issued or guaranteed by the U.S.
government
|
EXHIBIT
C
ESCROW
FEES AND EXPENSES