EXHIBIT 10.5
FORM OF SUBSCRIPTION ESCROW
AGREEMENT
between
INDUSTRIAL INCOME TRUST
INC.,
DIVIDEND CAPITAL SECURITIES
LLC
and
THE BANK OF NEW YORK
MELLON
Dated as of
, 20
ACCOUNT NUMBER(S)
SHORT TITLE OF ACCOUNT
ESCROW AGREEMENT
Escrow Agreement
(the “Agreement”), dated as of
, 20 among The Bank of New York
Mellon, a New York banking corporation with its principal corporate
trust office at 101 Barclay Street, 8 th Floor West, New York, New York
10286 (the “Escrow Agent”), and Industrial Income Trust
Inc., a Maryland corporation, with its principal office at 518
Seventeenth Street, 17 th Floor, Denver, CO 80202 (the
“Company”) and Dividend Capital Securities LLC, as
sales agent (the “Sales Agent”), for itself and for and
on behalf of its selected dealers (the “Selected
Dealers”) the identity of which will be disclosed to the
Escrow Agent as the same are selected by the Sales
Agent.
WHEREAS, the Company intends to
offer for sale on a continuous basis (the “Offering”)
up to $2,000,000,000 in shares of the Company’s common stock,
par value $.01 per share (the “Common Stock”), under
the Securities Act of 1933, as amended, pursuant to a registration
statement on Form S-11 (Registration No. 333-
) filed with the Securities and Exchange Commission, dated
, 20 (the “Registration
Statement”);
WHEREAS, the Sales Agent and the
Selected Dealers are expected to offer the Common Stock on behalf
of the Company;
WHEREAS, the Company and the Sales
Agent propose to engage the Escrow Agent for the purpose of
receiving, depositing and holding in a segregated escrow account
all funds (“Proceeds” shall mean all funds wired into
the escrow account and funds presumed cleared from check deposits)
from subscribers for Common Stock (“Subscribers”)
received in connection with the sale of Common Stock until such
time as such funds are to be released to the Company or returned to
the Subscribers; and
WHEREAS, the Escrow Agent has agreed
to act as escrow agent in connection with the proposed subscription
and sale of Common Stock.
NOW, THEREFORE, it is agreed as
follows:
Section 1.
Establishment of Escrow Account; Deposits
.
(a) The
Escrow Agent shall promptly (and, in any case, on or prior to the
commencement of the Offering) cause to be opened a fully segregated
escrow account, which escrow account shall be entitled
“Industrial Income Trust Inc. - Escrow Account” (the
“Escrow Account”) for the purpose of holding in trust
all Proceeds for the Company and the Subscribers. The Sales Agent
and the Selected Dealers shall, as to each Subscriber in connection
with all Proceeds received under the Offering, instruct each
Subscriber to remit the purchase price in the form of checks (which
checks must be certified if remitted during the last five
(5) business days of the offering period) or wire transfers to
(insert “the Company” or “Sales Agent”) the
Sales Agent for forwarding to the Escrow Agent by noon of the next
business day following receipt of the funds. All such checks and
wire transfers forwarded to the Escrow Agent shall be accompanied
by information identifying each Subscriber, subscription, the
Subscriber’s social security or ID number and address. Wire
transfers to the Escrow Account shall be made in Federal Funds
transferred as follows:
1
Bk of NYC
ABA No. 021000018
GLA 111-565
Cust A/C #
A/C Name
(b) On
the terms and conditions of this Agreement, the Escrow Agent shall
deposit the Proceeds and any interest earned thereon in the Escrow
Account. The Proceeds shall be invested as promptly as practicable
upon their receipt by the Escrow Agent, in accordance with this
Agreement. All amounts deposited in the Escrow Account shall be
invested and reinvested in the manner provided in Section 2
hereof.
(c) Except
as and to the extent provided herein, the Escrow Agent shall not be
obligated nor, without the consent of the Company and the Sales
Agent, is it authorized to accept instructions under this Agreement
directly from any Selected Dealer.
Section 2.
Investment of Proceeds .
Proceeds (and any interest earned
thereon), and until such time as all Proceeds and interest earned
thereon have been disbursed from the Escrow Account as provided in
Section 4 and Section 5, shall be invested and reinvested
by the Escrow Agent without unreasonable delay and only in such
obligations issued or guaranteed by the United States Government or
any agency thereof, or in such national or state bank or trust
company certificates of deposit, and with such maturities, as shall
be designated in writing from time to time by the Company, such
writing to specify the particular investment. Temporarily
uninvested funds held hereunder shall be deposited in The Bank of
New York Deposit Reserve. The Escrow Agent shall not be responsible
for interest losses, taxes or other charges on investments.
Interest actually earned from the time the Proceeds are deposited
into the Escrow Account until the close of business on the date
preceding the date the Proceeds are disbursed by the Escrow Agent
as provided herein shall be held in trust for the Subscribers and,
upon the occurrence of the conditions set forth in Section 4
and Section 5 hereof, shall be payable in accordance with the
provisions set forth in Section 5 hereof. If, at the time the
Escrow Agent is required to make a disbursement pursuant to
Section 5, the Proceeds are invested as provided in this
Section 2, the Escrow Agent shall, in anticipation of such
disbursement, sell or otherwise liquidate such investments.
Instructions from the Company as to any such investments or the
sale or other disposition thereof shall be confirmed in writing
(but no delay or failure by the Company to confirm in writing an
instruction given by telephone shall effect the validity of such
instruction or result in any liability to the Escrow Agent for
acting on such instruction).
Section 3.
Acceptance or Rejection of Subscription .
Within 30 days from the date of
receipt of each subscription, the Company will determine whether or
not the subscription is to be accepted or rejected in whole or in
part.
With respect to each subscription
which is to be accepted, the Company will notify the Escrow Agent
of such acceptance. With respect to each subscription which is to
be rejected (in whole or in part), the Company will notify the
Escrow Agent of such rejection in writing, and upon receipt of such
notification, the Escrow Agent will, within 10 business days from
the date the Escrow Agent receives such notification, transfer the
amount represented by such
2
subscription) and issue a check in the amount of
the rejected Subscriber’s subscription and all interest, if
any, earned thereon, directly to the rejected
Subscriber.
Section 4.
Disbursements from the Proceeds .
(a) If
subscriptions of at least $2,000,000 in Common Stock from at least
one-hundred (100) subscribers who are independent of the
Company and of each other have not been deposited in the Escrow
Account and accepted by the Company on or before the earlier of
(i) one year from the date of the Registration Statement or
(ii) the date upon which the Company or the Sales Agent elects
to terminate the Offering (the “Termination Date”),
upon instruction by the Sales Agent as to the amounts and
recipients of the funds then held in escrow, the Escrow Agent shall
terminate the Escrow Account and return the subscription funds to
each Subscriber without deductions.
(b) If
subscriptions for at least $2,000,000 in Common Stock from at least
one-hundred (100) subscribers who are independent of the
Company and of each other have been deposited in the Escrow Account
and accepted by the Company on or before the Termination Date,
pursuant to the joint instructions of the Sales Agent and the
Company identifying the Subscribers whose subscriptions are to be
accepted, the Escrow Agent shall on the date designated by the
Sales Agent and the Company in such joint instructions (the
“Closing Date”) which date shall be at any time on or
after the giving of such notice, release to the Company all or a
specified portion of the Proceeds held by the Escrow Agent
(including all accrued interest thereon) in the Escrow Account in
the manner described in Section 4(a).
Section 5.
Procedure for Disbursement from the Escrow Account
.
The Proceeds held in the Escrow
Account and interest earned thereon shall be subject to, and
distributed in accordance with, the following
provisions:
(a) On
the Closing Date, upon satisfaction of the applicable requirements
of Section 4 hereof, the Escrow Agent shall (i) transfer
by wire to an account designated by the Company the Proceeds
requested to be transferred on such date in the notice jointly
executed by the Company and the Sales Agent, and (ii) the
Escrow Agent shall within 10 business days of the Closing Date
transfer by check to each Subscriber any interest actually earned
on such Proceeds. At the time of such transfer, the Escrow Agent
shall confirm in writing to the Company and the Sales Agent the
amount of interest earned for the account of each Subscriber and
the date such subscription was received.
(b) Within
10 business days from the date the Company notifies the Escrow
Agent in writing that a subscription has been rejected, the Escrow
Agent shall transfer by check the Proceeds and all interest, if
any, earned thereon, of any Subscribers (without deduction) whose
subscriptions were obtained by the Sales Agent or the Selected
Dealer but rejected by the Company since the commencement of the
Offering. At the time of such transfer, the Escrow Agent shall
identify in writing to the Company and the Sales Agent the amount
of interest earned for the account of each such Subscriber and the
date such subscription was received.
(c) Promptly
after the Termination Date (but in no event later than 30 business
days following the Termination Date), all Proceeds received by the
Escrow Agent (other than Proceeds previously disbursed or to be
distributed by the Escrow Agent pursuant to
3
Section 5(a) or Section 5(b) shall be
returned by check directly to the Subscriber having provided such
Proceeds, without deduction, penalty or expense to the Subscriber
and together with each such Subscriber’s pro rata portion of
the interest actually earned thereon. The Escrow Agent shall notify
the Company and the Sales Agent of the distribution of such funds
to the Subscribers.
(d) The Escrow Agent does not have
any interest in the Escrowed Property deposited hereunder but is
serving as escrow holder only and having only possession thereof.
The Company shall pay or reimburse the Escrow Agent upon request
for any transfer taxes or other taxes relating to the Escrowed
Property incurred in connection herewith and shall indemnify and
hold harmless the Escrow Agent any amounts that it is obligated to
pay in the way of such taxes. Any payments of income from this
Escrow Account shall be subject to withholding regulations then in
force with respect to United States taxes. The parties hereto will
provide the Escrow Agent with appropriate W-9
