Exhibit 10.8
EXECUTION
COPY
ESCROW AGREEMENT
THIS ESCROW AGREEMENT
(this “ Agreement ”)
made and entered into as of this 24 th day of August,
2009 by and among
Inland Diversified Real Estate Trust, Inc., a Maryland corporation
(the “ Company ”), Inland Securities
Corporation, a Delaware corporation (the “ Dealer
Manager ”), and UMB Bank, N.A., as escrow agent, a
national banking association organized and existing under the laws
of the United States of America (the “ Escrow Agent
”).
RECITALS
WHEREAS , the Company will issue in a public offering (the
“ Offering ”) shares of its common stock, $0.001
par value per share (the “ Shares ”), pursuant
to a Registration Statement on Form S-11 (Registration No.
333-153356) filed by the Company with the Securities and Exchange
Commission, and as amended from time to time (the “
Offering Document ”);
WHEREAS , the Dealer Manager has been engaged by the Company
to offer and sell the Shares on a “best efforts” basis
through a network of participating broker-dealers (the “
Dealers ”);
WHEREAS , the Company is entering into this Agreement to set
forth the terms on which the Escrow Agent will, except as otherwise
provided herein, hold and disburse the proceeds from subscriptions
for the purchase of the Shares in the Offering until such time as:
(1) in the case of subscriptions received from residents
of Pennsylvania (“ Pennsylvania Subscribers ”),
the Company has received subscriptions for Shares from persons who
are not affiliated with the Company, the Dealer Manager, any Dealer
or Inland Diversified Business Manager & Advisor, Inc. (the
“ Affiliated Persons ”), resulting in gross
offering proceeds of $250,000,000 (the “ Pennsylvania
Minimum Offering Amount ”); (2) in the case of
subscriptions received from residents of Tennessee (“
Tennessee Subscribers ”), the Company has received
subscriptions for Shares from persons who are not Affiliated
Persons resulting in gross offering proceeds of $10,000,000 (the
“ Tennessee Minimum Offering Amount ”); and
(3) in all other cases of subscriptions received from persons,
specifically excluding the Pennsylvania Subscribers and the
Tennessee Subscribers (the “ Primary Subscribers
” and, together with the Pennsylvania Subscribers and the
Tennessee Subscribers, the “ Subscribers ”), who
are not Affiliated Persons, the Company has received subscriptions
for Shares resulting in gross offering proceeds of $2,000,000 (the
“ Minimum Offering Amount ” and, together with
the Pennsylvania Minimum Offering Amount and the Tennessee Minimum
Offering, “ All Minimum Offering Amounts
”);
WHEREAS , the Dealer Manager and the Company desire to
establish an escrow account, as further described herein, in which
funds received from Subscribers will be deposited, and the Company
desires that UMB Bank, N.A. act as escrow agent to the escrow
account and Escrow Agent is willing to act in such capacity;
and
WHEREAS , the Escrow Agent has engaged DST Systems, Inc. (the
“ Processing Agent ”) to receive, examine for
“good order” and facilitate subscriptions into the
escrow account as further described herein and to act as record
keeper, maintaining on behalf of the Escrow
Agent the ownership records for the
escrow account. In so acting, the Processing Agent will be
acting solely in the capacity of agent for the Escrow Agent and not
in any capacity on behalf of the Company or the Dealer Manager, nor
shall they have any interest other than that provided in this
Agreement in assets in Processing Agent’s possession as the
agent of the Escrow Agent.
AGREEMENT
NOW, THEREFORE, the Company, the Dealer
Manager and the Escrow Agent agree to the terms of this Agreement
as follows:
1.
Appointment and Commencement of
Duties . The Company
hereby appoints the Escrow Agent for purposes of holding the
proceeds from the subscriptions for Shares on the terms and
conditions set forth herein. On or prior to the commencement
of the Offering of Shares, the Company shall establish the Escrow
Account (as hereinafter defined). This Agreement shall be
effective on the date on which the Offering Document is declared
effective by the Securities and Exchange Commission (the “
SEC ”).
2.
Operation of the Escrow
Account .
(a)
Deposits in the Escrow
Account .
(1)
Until such time as the Company has
received subscriptions for Shares resulting in gross offering
proceeds equal to the Minimum Offering Amount and funds are
distributed from the Escrow Account (as hereinafter defined) in
accordance with Section 2(b)(1) , the Primary Subscribers
will be instructed by the Company, the Dealer Manager and the
Dealers to make checks for subscriptions payable to the order of
“Inland Diversified Real Estate Trust, Inc.” Checks or
money orders in payment for the purchase price of Shares shall be
remitted to the P.O. Box designated for the receipt of such funds,
and drafts, wires, or Automated ClearingHouse (ACH) payments shall
be transmitted directly to the Escrow Account. The Processing
Agent will, except as otherwise specified herein, promptly deliver
all monies received in good order from Primary Subscribers (or from
the Dealer Manager or Dealers transmitting monies from Primary
Subscribers) for the payment of Shares to the Escrow Agent for
deposit into a single interest-bearing account entitled
“ESCROW ACCOUNT FOR THE BENEFIT OF SUBSCRIBERS FOR COMMON
STOCK OF INLAND DIVERSIFIED REAL ESTATE TRUST, INC.” or such
similar designation as the parties may agree (the “ Escrow
Account ”). Further, to the extent that payments
are remitted by the Processing Agent, the Processing Agent will
furnish to the Escrow Agent a list detailing information regarding
those subscriptions as set forth in Exhibit B .
(2)
Until such time as the Company has
received subscriptions for Shares resulting in gross offering
proceeds equal to the Tennessee Minimum Offering Amount and funds
are distributed from the Escrow Account in accordance with
Section 2(b)(2) , the Tennessee Subscribers will be
instructed by the Company, the Dealer Manager and the Dealers to
make checks for
2
subscriptions payable to the order of
“Inland Diversified Real Estate Trust, Inc.” Checks or
money orders in payment for the purchase price of Shares shall be
remitted to the P.O. Box designated for the receipt of such funds,
and drafts, wires, or Automated ClearingHouse (ACH) payments shall
be transmitted directly to the Escrow Account. The Processing
Agent will, except as otherwise specified herein, promptly deliver
all monies received in good order from Tennessee Subscribers (or
from the Dealer Manager or Dealers transmitting monies from
Tennessee Subscribers) for the payment of Shares to the Escrow
Agent for deposit into the Escrow Account. Further, to the
extent that payments are remitted by the Processing Agent, the
Processing Agent will furnish to the Escrow Agent a list detailing
information regarding those subscriptions as set forth in
Exhibit B .
(3)
Until such time as the Company has
received subscriptions for Shares resulting in gross offering
proceeds equal to the Pennsylvania Minimum Offering Amount and
funds are distributed from the Escrow Account in accordance with
Section 2(b)(3) and 2(b)(4) , Pennsylvania Subscribers will
be instructed by the Company, the Dealer Manager and the Dealers to
make checks for subscriptions payable to the order of “UMB
Bank, N.A., as Escrow Agent for Inland Diversified Real Estate
Trust, Inc.” Checks or money orders in payment
for the purchase price of Shares shall be remitted to the P.O. Box
designated for the receipt of such funds, and drafts, wires, or
Automated ClearingHouse (ACH) payments shall be transmitted
directly to the Escrow Account. The Processing Agent will,
except as otherwise specified herein, promptly deliver all monies
received in good order from Pennsylvania Subscribers (or from the
Dealer Manager or Dealers transmitting monies from Pennsylvania
Subscribers) for the payment of Shares to the Escrow Agent for
deposit into the Escrow Account. Further, to the extent that
payments are remitted by the Processing Agent, the Processing Agent
will furnish to the Escrow Agent a list detailing information
regarding those subscriptions as set forth in Exhibit B .
(4)
Deposits shall be held in the Escrow
Account until the funds are disbursed in accordance with Section
2(b) . Prior to disbursement of the funds deposited in
the Escrow Account, the funds shall not be subject to claims by
creditors of the Company or any of its affiliates. If any of the
instruments of payment are returned to the Escrow Agent for
nonpayment prior to the funds being disbursed in accordance with
Section 2(b) , the Escrow Agent shall promptly notify the
Processing Agent and the Company in writing via mail, electronic
mail or facsimile of such nonpayment, and the Escrow Agent shall be
authorized to debit the Escrow Account, as applicable, in the
amount of the returned payment as well as any interest earned on
the amount of such payment and the Processing Agent w