EXHIBIT 10.5
FORM OF ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement"), effective on _______ __, 2006, by
and among NNN APARTMENT REIT, INC., a Maryland corporation ("Company"), NNN
CAPITAL CORP., a California corporation ("Dealer Manager"), and Trust Company
of America, a national banking association ("Escrow Agent").
WITNESSETH:
WHEREAS, Company proposes to offer to the public (the "Public Offering")
shares of its common stock, par value $0.01 per share (the "Shares"), pursuant
to the terms of and at the prices set forth in Company's prospectus contained in
the registration statement filed with the Securities and Exchange Commission, as
amended (the "Registration Statement");
WHEREAS, it is anticipated that investors will subscribe for the 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 from investors who are
not affiliates of Company (the "Minimum Subscription"); and
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.
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, and Escrow Agent hereby accepts such
appointment, each in accordance with the terms of this 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 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 Escrow Agent shall not be used in any manner in
connection with the offer or sale of the Shares other than to state that Escrow
Agent has agreed to serve as escrow agent for the limited purposes set forth
herein.
2. DEPOSIT INTO ESCROW.
(a) Prior to the date that subscriptions have been received for the Minimum
Subscription, investors will be instructed by Dealer Manager or any soliciting
dealers to remit the purchase price in the form of checks payable to the order
of, or funds wired in favor of, "Trust Company of America, as escrow agent
for NNN Apartment REIT." Any instruments of payment made payable to a party
other than Escrow Agent shall be returned to Dealer Manager.
(b) Until such time as investors have subscribed for the Minimum
Subscription and, thereafter, whenever Dealer Manager receives an instrument of
payment made payable to Escrow Agent, Dealer Manager will (i) send to Escrow
Agent, or cause to be sent to Escrow Agent, each Subscription Payment received
by it, accompanied by each investor's name, social security number or tax
identification number, address (and any other information required for
withholding purposes), number of Shares subscribed for and amounts paid by such
investor, and (ii) allow such Subscription Payments to remain in escrow with
Escrow Agent and not withdraw such Subscription Payments from Escrow Agent
except as herein provided. Notwithstanding the foregoing, if any investor shall
exercise any right provided by law to rescind his or her subscription, Escrow
Agent shall, upon notice
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from Company or Dealer Manager, return to such 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 Agreement.
(c) 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 NNN Apartment REIT, Inc." (the "Escrow Account"). The Escrow
Account shall be created and maintained subject to the terms of this Agreement
and the customary rules and regulations of Escrow Agent pertaining to such
accounts.
(d) If any of the investors' instruments of payment 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 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 Agreement. Dealer Manager or Company
may examine any and all documentation regarding the investment of the Escrow
Account during normal business hours at the offices of Escrow Agent.
4. DISBURSEMENTS FROM ESCROW ACCOUNT.
(a) Rejected Subscriptions. No later than five (5) business days after
receipt by Escrow Agent of notice from Company or Dealer Manager that Company
intends to reject an 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 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 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 Subscription Payments dated
not later than that date (or actual wired funds) at least equal to the Minimum
Subscription, Escrow Agent shall promptly notify Company and Dealer Manager, and
Escrow Agent shall promptly return all funds received in full directly to the
investors, together with their pro rata share of any interest earned thereon,
pursuant to instructions made by Company or Dealer Manager, upon which Escrow
Agent may conclusively rely.
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(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 Agreement until such date (the "Minimum Subscription
Satisfaction Date") as Escrow Agent determines that the Escrow Account is equal
to or greater than the Minimum Subscription and has given written notice to
Company and Dealer Manager of such occurrence (the "Minimum Subscription
Notice"). After receipt of the Minimum Subscription Notice, Company or Dealer
Manager shall deliver to Escrow Agent a written instruction regarding the
delivery of all Subscription Payments in the Escrow Account to Company (the
"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 Disbursement
Instruction. After Escrow Agent has delivered the Minimum Subscription Notice,
Dealer Manager shall send Subscription Payments to Escrow Agent made payable to
Escrow Agent, and Escrow Agent will deposit the Subscription Payments into the
Escrow Account, as described herein and deliver the Subscription Payments and
any interest thereon in the Escrow Account to the Company as directed.
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 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 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 earlier 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 from
Escrow Agent. Escrow Agent shall promptly pay the Subscription Payments in the
Escrow Account, including interest thereon, to the successor escrow agent. 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.
7. LIABILITY OF ESCROW AGENT. Escrow Agent shall not be liable to Company or
Dealer Manager 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 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 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 attorneys' 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
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
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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 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 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 Agreement, together with instituting any other
legal proceeding it deems appropriate, and thereupon Escrow Agent shall be
discharged from all further duties under this Agreement. The filing of any such
legal proceeding shall not deprive Escrow Agent of its compensation earned prior
to such filing.
10. 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 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 Agreement.
11. NOTICES. All notices, demands or other communications to be given or
delivered under or by reason of any provision of this 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., Pacific 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
Agreement are:
If to Company: NNN Apartment REIT, Inc.
1551 N. Tustin Avenue, Suite 200
Santa Ana, California 92705
Facsimile No.: (___) ___-____8198
Attention: [____________], President
With a copy to: NNN Apartment REIT, Inc.
1551 N. Tustin Avenue, Suite 200
Santa Ana, California 92705
Facsimile No.: (___) ___-____8198
Attention: Andrea R. Biller, Esq.
If to Dealer Manager: NNN Capital Corp.
4 Hutton Centre Drive, Suite 700
Santa Ana, California 92707
Facsimile No.: (714) 667-6843
Attention: Kevin K. Hull, President and CEO
If to Escrow Agent: Trust Company of America
7103 South Revere Parkway
Centennial, CO 80112
Facsimile No.: (___) ___-____
Attention: __________________
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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 11.
12. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
13. TERM. This Agreement shall terminate within thirty (30) days receipt of
written notice of termination by Company and Dealer Manager to Escrow Agent.
14. AMENDMENTS. This 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 Escrow Agent. Should, at any time, any attempt be
made to modify this Agreement in a manner that would increase the duties and
responsibilities of Escrow Agent or to modify this 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
Agreement without regards to any such modification.
15. ASSIGNMENT. Except as otherwise provided herein, no party may, without the
express written consent of each other party, assign or transfer this Agreement
in whole or in part.
16. GOVERNING LAW. This Agreement is governed by, and shall be construed and
enforced in accordance with, the laws of the State of California without regard
to its conflict of laws rules.
17. SEVERABILITY. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under California 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 Agreement.
18. HEADINGS. The headings as to contents of particular sections of this
Agreement are inserted for convenience and shall not be construed as a part of
this Agreement or as a limitation on or expansion of the scope of any terms or
provisions of this Agreement.
19. COUNTERPARTS. This 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. 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.
20. ENTIRE AGREEMENT. This 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 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 written above.
COMPANY:
NNN APARTMENT REIT, INC.
By:
-----------------------------------
Name: [ ]
-------------------------------
Title: President
DEALER MANAGER:
NNN CAPITAL CORP.
By:
-----------------------------------
Name: Kevin K. Hull
Title: President and CEO
ESCROW AGENT:
TRUST COMPANY OF AMERICA
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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Exhibit A
Escrow Agent Fees
One-Time Escrow Services Fee - Payable in advance - $____
Exhibit B
Identifying Information
Taxpayer Identification Numbers:
Company:
Dealer Manager: 33-0158098