EXHIBIT 4.4
CORNERSTONE REALTY FUND, INC.
FORM OF ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is entered into as of _____________,
_____ by and among U.S. BANK NATIONAL ASSOCIATION (the "Escrow Agent"),
CORNERSTONE REALTY FUND, INC., a Maryland corporation (the "Company") and
PACIFIC CORNERSTONE CAPITAL, INCORPORATED, a California corporation (the "Dealer
Manager").
R E C I T A L S
A. The Company proposes to offer up to 55,400,000 shares of its common
stock (the "Shares") pursuant to a Prospectus dated __________, 2005 (the
effective date of the Prospectus), as amended or supplemented from time to time
(the "Prospectus"), with a required minimum investment of $2,000 (or $1,000 for
tax-qualified retirement plans).
B. The Dealer Manager and others (collectively, the "Participating
Brokers") have been named as Participating Brokers in connection with the
proposed offering of the Shares and are entitled to certain commissions and
selling expense allowances set forth in those certain selling agreements among
the Company and the Participating Brokers.
C. In compliance with the Prospectus and each Selling Agreement, the
Company proposes to establish an escrow fund with the Escrow Agent for the
offering proceeds received prior to the Initial Closing Date (as hereafter
defined).
D. If subscriptions for at least $1,000,000 are not accepted by the
Company prior to ___________, 2006 (one year following the effective date of the
Prospectus) (the "Minimum Offering Termination Date"), no additional Shares in
the Company will be sold.
E. The Escrow Agent has agreed to act as escrow agent in connection with
the proposed offering.
A G R E E M E N T
It is agreed as follows:
1. Incorporation of Recitals and General Provisions. The recitals set
forth above and the General Provisions attached hereto as Exhibit "A" shall
constitute and shall be deemed to be an integral part of this Agreement.
2. Escrow.
2.1 Escrow Agent. Commencing on the date hereof, the Escrow Agent
shall act as an escrow agent for the Company and shall receive and disburse the
proceeds from the sale of the Shares in accordance with the terms of this
Agreement. The Escrow Agent hereby represents and warrants to each Participating
Broker that it
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is a "Bank" as such term is defined in Section 3(a)(6) of the Securities
Exchange Act of 1934, as amended (the "Act").
2.2 Escrow Account. Commencing on the date hereof, the parties shall
establish an interest-bearing escrow account with the Escrow Agent (the "Escrow
Account"). The Participating Brokers will instruct subscribers to make checks
for subscriptions of Shares payable to the order of the Escrow Agent. Any checks
received that are made payable to a party other than the Escrow Agent shall be
returned to the Participating Broker who submitted the check.
3. Deposits into the Escrow Account. Proceeds from the sale of Shares (the
"Proceeds") shall be received by the Escrow Agent from the Participating Brokers
and deposited no later than noon on the following business day in the Escrow
Account; provided, however, that Proceeds received by the Escrow Agent within 48
hours prior to a scheduled Initial or Additional Closing Date (as hereinafter
defined) may be held by the Escrow Agent until such closing (but not longer than
48 hours) and, upon joint instruction of the Company and the Dealer Manager,
deposited directly into the Company's account or returned to the subscriber(s).
4. Subscriber Information. Each Participating Broker shall provide the
Escrow Agent with the name, address, social security number or taxpayer
identification number, and the amount to be deposited for each subscriber whose
funds are deposited with the Escrow Agent pursuant to Section 2 hereof. Such
Participating Broker shall also notify the Escrow Agent if a properly executed
U.S. Treasury Department Form W-9 has not been received from any subscriber
whose funds are deposited with the Escrow Agent.
5. Investment of Proceeds. The Escrow Agent shall invest all Proceeds
deposited with it hereunder as directed by the Company, in (i) Bank accounts,
(ii) Bank money-market accounts, (iii) or (iv) short-term securities issued or
guaranteed by the U.S. government. The term "Bank" is defined in Section 3(a)(6)
of the Act. Such investments shall be made in a manner consistent with the
requirement that the Proceeds be available for delivery by the Escrow Agent at
the times described herein. After any reductions made in accordance with Section
10 hereof, income received from investment of the Proceeds shall be credited to
the subscribers in proportion to the amounts deposited with respect to each
subscriber and in proportion to the number of days the collected Proceeds from
each subscriber are held in the Escrow Account. Pursuant to the provisions of
this Agreement, Escrow Agent shall disburse all income earned (less any amounts
required to be withheld by the Escrow Agent under the applicable federal income
tax laws) directly to the Company with respect to the Proceeds, and the Company
shall determine and disburse to each subscriber his or her proportionate share
of such income computed as provided above. The Company is aware that there may
be a forfeiture of interest in the event of early withdrawal from an interest
bearing account of investment.
Escrow Agent is hereby authorized to invest funds in a U.S. Bank National
Association ("U.S. Bank") Money Market Account, an interest-bearing time deposit
account with U.S. Bank. Depositors acknowledge that by selecting this
investment, they are providing authorization to place funds on deposit with U.S.
Bank. U.S. Bank shall use the daily balance method to calculate interest on this
account (actual/365 or 366) by applying a daily periodic rate to the principal
balance in the account each day. Interest is accrued daily and credited monthly
to the account. Interest rates are determined at U.S. Bank's discretion, and may
be tiered based on customer deposit amount. The owner of the account is U.S.
Bank as Agent for its trust customers and U.S. Bank's trust department performs
all account deposits and withdrawals. The deposit account is insured by the
Federal Deposit Insurance Corporation up to $100,000. Any and all interest
earned on the Proceeds after the deposit shall be added to the Proceeds and
shall become a part thereof. Escrow Agent shall thereafter hold, maintain and
utilize the Proceeds pursuant to the terms and conditions of this Agreement.
Depositors shall provide Escrow Agent with a W-9 or W-8 IRS tax form prior to
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the disbursement of interest and Escrow Agent will file the appropriate 1099 or
other required forms pursuant to Federal and applicable state laws. A statement
of citizenship will be provided if requested by Escrow Agent. Escrow Agent shall
not be responsible for maximizing the yield on the Proceeds. Escrow Agent shall
not be liable for losses, penalties or charges incurred upon any sale or
purchase of any such investment.
6. Initial Closing Date. The term "Qualifying Subscriptions" shall refer
to all subscriptions which have been received by the Company and which the
Company intends to accept into the Company. If Qualifying Subscriptions have
been received for at least $1,000,000 of Shares on or before the Minimum
Offering Termination Date, the Company shall notify the Escrow Agent and by
instructions (which may accompany such notice or be provided subsequently) given
at least 2 business days in advance, shall specify the "Initial Closing Date"
(which must be not more than 10 days after the Minimum Offering Termination
Date), the approximate amount of Qualifying Subscriptions for the Company to be
accepted as of such Initial Closing Date, the identity of the subscribers whose
subscriptions are anticipated to be accepted as of the Initial Closing Date, and
the approximate amount of the Proceeds to be paid to the Company and to each
Participating Broker, respectively. On the Initial Closing Date, the Escrow
Agent, upon telephonic notice from the Company and the Dealer Manager that all
contingencies for payment have been satisfied as required by Rule 15c2-4 under
the Act (which notice the Company shall promptly confirm in writing) shall pay
to the Company and each Participating Broker the amounts specified by such
notice, and shall additionally pay to the Company the interest earned on such
Proceeds for disbursement to subscribers pursuant to Section 5 hereof.
7. Rejected Subscriptions. From time to time, upon instructions from the
Company identifying those subscribers whose subscriptions have been rejected,
the Escrow Agent shall return such funds to the subscribers so identified with
such interest as has been credited to them pursuant to Section 5 hereof. If the
Company rejects any subscription for which the Escrow Agent has already
collected funds, the Escrow Agent shall promptly issue a refund check to the
rejected subscriber. 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 issue a check in the
amount of the subscriber's check to the rejected subscriber after the Escrow
Agent has cleared such funds. 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.
8. Failure to Meet Minimum Subscription. If Qualifying Subscriptions for
at least $1,000,000 of Shares have not been received by the Minimum Offering
Termination Date, then the Escrow Agent, upon instructions from the Company,
shall promptly return all collected funds and uncollected checks and other
instruments to the subscribers, with such interest as has been credited to them
pursuant to Section 5 hereof. Prior to the Initial Closing Date, the Company is
aware and understands that it is not entitled to any funds received into escrow
and no amounts deposited in the Escrow Account shall become the property of the
Company or any other entity, or be subject to the debts of the Company or any
other entity.
9. Notice of Termination of Offering. Upon final termination of the
escrow, the Company shall instruct Escrow Agent pursuant to Section 6 as to the
disposition of any remaining funds and interest thereon.
10. Fees. The Escrow Agent, for services rendered under this Agreement,
shall receive the fees set forth on Exhibit "B" hereto. The fees of the Escrow
Agent shall be paid by the Company. In no event shall the fees of the Escrow
Agent be deducted from or otherwise offset against the Proceeds deposited with
the Escrow Agent (or interest earned thereon) of subscribers.
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11. Duties and Responsibilities of Escrow Agent. The Escrow Agent shall
have no duties or responsibilities other than those set forth herein and shall:
(a) Be under no duty to enforce payment of any subscription which is
to be paid to and held by it hereunder;
(b) Be under no duty to accept funds, checks, drafts or instruments
for the payment of money from anyone other than the Participating Brokers or the
Company or to give any receipt therefor except to the Participating Brokers or
the Company;
(c) Be protected in acting upon any notice, request, certificate,
approval, consent or other paper believed by it to be genuine, signed by the
proper party or parties and in accordance with the terms of this Agreement;
(d) Be deemed conclusively to have given and delivered any notice
required to be given or delivered hereunder if the same is in writing, signed by
any one of its authorized officers and mailed, by registered or certified mail,
in a sealed postpaid wrapper, addressed to the Company at the following address:
Cornerstone Realty Fund, Inc.
4590 MacArthur Blvd.
Suite 610
Newport Beach, CA 92660
Attention: Terry G. Roussel
Telephone: (949) 852-1007
Fax: (949) 250-0592
(e) Not be liable for any forgeries or impersonations concerning any
documents to be handled by it.
12. No Legal Advice. This transaction is an escrow and Escrow Agent is an
escrow holder only and as escrow holder Escrow Agent may not give legal advice
as to any conditions or requirements in this escrow.
13. Notices to Escrow Agent. Any written notice required to be given or
delivered to the Escrow Agent shall be deemed conclusively given and delivered
hereunder if the written notice is mailed, by registered or certified mail,
addressed as follows:
U.S. Bank National Association
633 West Fifth Street, 24th Floor
Los Angeles, CA 90071
Attn: Kimberly P. Davidson
Telephone: (213) 615-6013
Fax: (213) 615-6199
14. Instructions; Copies of Notices. Any instructions or other
communications to the Escrow Agent provided for herein shall be in writing, but
may be in telegraphic or telex form if promptly confirmed in writing. A copy of
this Agreement, or any amendment or addendum hereto, or closing statement or
document deposited in this escrow shall be furnished by Escrow Agent to those
persons outside of this escrow designated from time to time by the Company.
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15. Payments. All disbursements from the escrow account shall be made to
the party concerned, by Escrow Agent's cashier's check to such party's order or
to deposit to such party's bank account. All checks, documents, and
correspondence shall be mailed to such party at the address given by the
Company.
16. Miscellaneous. Nothing in this Agreement is intended to or shall
confer upon anyone other than the parties hereto any legal or equitable right,
remedy or claim. This Agreement shall be construed in accordance with the laws
of the State of California and may be modified only in writing.
(Signature Page Follows)
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed on the day and year first hereinabove written.
CORNERSTONE REALTY FUND, INC,
a Maryland corporation
By: __________________________________________
Terry G. Roussel, President
PACIFIC CORNERSTONE CAPITAL, INCORPORATED,
a California corporation
By: __________________________________________
Terry G. Roussel, President
ACKNOWLEDGED AND AGREED
U.S. BANK NATIONAL ASSOCIATION
By: ___________________________________
_______________, Authorized Officer
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EXHIBIT "A"
GENERAL PROVISIONS
DEPOSITS - All funds received in escrow shall be deposited in (U.S. Bank Money
Market Account) an interest bearing escrow account of U.S. Bank National
Association.
RESPONSIBILITY FOR DEPOSITED PROPERTY - Escrow Agent is not a party to, or bound
by, any provisions contained in any agreements which may be deposited under,
evidenced by, or arise out of these instructions, and with respect thereto, acts
as a depository only and is not responsible or liable in any manner whatsoever
for the sufficiency, correctness, genuineness, or validity of or with respect to
the form or execution of any agreements, or the identity, authority or right of
any person executing or depositing any property herein.
DEFAULTS - Escrow Agent shall not be required to take or be bound by notice of
any default of any person or to take any action with respect to such default
whether or not such action involves any expense or liability. These instructions
shall not be subject to modification or rescission except upon receipt by Escrow
Agent (at the office named above) of written instructions from each of the
Company and the Dealer Manager or their successors in interest, and no such
rescission or modification shall be effective unless and until consented to by
Escrow Agent in writing.
NOTICES - The Company and the Dealer Manager hereby indemnify and hold Escrow
Agent harmless against any loss, liability, damage, cost or expense, including
reasonable attorneys' fees, (a) related in any way to Escrow Agent's acting upon
any notice, request, waiver, consent, receipt or other paper or document
believed by Escrow Agent to be signed by The Company or the Dealer Manager or
any other proper person, and (b) incurred in connection with any act or thing
done hereunder.
EXERCISE OF JUDGMENT - Escrow Agent shall not be liable for any error of
judgment or for any act done or step taken or omitted by it in good faith or for
any mistake of fact or law or for anything which Escrow Agent may do or refrain
from doing in connection herewith, except its own gross negligence or willful
misconduct. Escrow Agent shall have duties only to The Company and the
Participating Brokers, and no person or entity shall be deemed a third party
beneficiary of these instructions.
COUNSEL - Escrow Agent may consult with legal counsel in the event of any
dispute or question as to the construction of these instructions or Escrow
Agent's duties thereunder, and Escrow Agent shall incur no liability and shall
be fully protected in acting in accordance with the opinion and instructions of
counsel.
DISAGREEMENTS - In the event of any disagreement between the Company and the
Participating Brokers, or any of them or any other person or persons whether or
not named in these instructions, and adverse claims or demands are made in
connection with or for any of the Proceeds, Escrow Agent shall be entitled at
its option to refuse to comply with any such claim or demand so long as such
disagreement shall continue, and in so doing, Escrow Agent shall not be or
become liable for damages or interest to the Company and the Participating
Brokers, or any of them, or to any other person or persons for Escrow Agent's
failure or refusal to comply with such conflicting or adverse claims or demands.
Escrow Agent shall be entitled to continue so to refrain and refuse so to act
until:
a. the rights of the adverse claimants have been fully adjudicated in a
court assuming and having jurisdiction of the claimants and the Proceeds; or
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b. all differences shall have been adjusted by agreement, and Escrow Agent
shall have been notified thereof in writing by all persons deemed by Escrow
Agent, in its sole discretion, to have an interest therein.
In addition, Escrow Agent, in its sole discretion, may file a suit in
interpleader for the purpose of having the respective rights of all claimants
adjudicated, and may deposit with the court all of the Proceeds deposited in
escrow; and the Company and the Dealer Manager agree to pay all costs and
counsel fees incurred by Escrow Agent in such action, such costs and fees to be
included in the judgment in any such action.
INDEMNITY - In consideration of this appointment by Escrow Agent, the Company
and the Dealer Manager agree to indemnify and hold Escrow Agent harmless as to
any liability incurred by Escrow Agent to any person, firm or corporation by
reason of its having accepted same or in carrying out any of the terms hereof,
and to reimburse Escrow Agent for all its expenses, including among other
things, counsel fees and court costs incurred by reason of its position or
actions taken pursuant to these Escrow Instructions. The Company and the Dealer
Manager hereby agree that the Escrow Agent shall not be liable to any of them
for any actions taken by Escrow Agent pursuant to the terms hereof.
COURT ORDERS - Escrow Agent is hereby authorized, in its exclusive discretion,
to obey and comply with all writs, orders, judgments or decrees issued by any
court or administrative agency affecting any money, documents or things held by
Escrow Agent, Escrow Agent shall not be liable to any of the parties hereto,
their successors, heirs or personal representatives by reason of Escrow Agent's
compliance with such writ, order, judgment or decree, notwithstanding if such
writ, order, judgment or decree is later reversed, modified, set aside or
vacated.
ATTORNEY'S FEES - If any action be brought to interpret or enforce these
instructions, or any part thereof, the Company and the Dealer Manager jointly
and severally agree to pay to Escrow Agent all Escrow Agent's attorney fees,
accounting fees, special and extra service fees and other costs related to such
action.
CANCELLATION - In the event the escrow established hereby is cancelled, the
Company and the Dealer Manager jointly and severally shall nevertheless pay to
the Escrow Agent the initial fee together with all costs end expenses of Escrow
Agent, including attorney fees. Notwithstanding anything in these instructions
to the contrary, Escrow Agent may, in its sole discretion, upon thirty (30) days
written notice to the Company, resign as Escrow Agent and shall be entitled to
reimbursement for those costs and expenses incurred to the date of such
resignation. Upon cancellation by the Company or resignation by Escrow Agent,
the balance of any Proceeds shall be returned to the respective Participating
Brokers who shall have deposited same.
FEES AND CHARGES - In the event that (a) Escrow Agent performs any services not
specifically provided for herein or (b) there is an assignment or attachment of
any interest in the subject matter of the escrow established hereby or any
modification thereof, or (c) any dispute or controversy arises hereunder, or (d)
Escrow Agent is named a party to, or intervenes in, any litigation pertaining to
this escrow or the subject matter thereof, Escrow Agent shall, in addition to
fees and charges for ordinary services, be reasonably compensated therefore and
reimbursed for all costs and expenses, including attorneys' fees, occasioned
thereby.
The Company and the Dealer Manager understand that Escrow Agent will charge
additional fees, including premium hourly fees, for any services performed
according to these Escrow Instructions, or any modification or any service not
specifically provided therein, that involve concerted effort, employees working
overtime, expedited handling of any aspect of the Escrow, or other similar
services.
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SIGNATURES - These instructions may be executed in counterparts, each of which
so executed shall be deemed as original, irrespective of the date of its
execution and delivery, and said counterparts together shall constitute one and
the same instrument.
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EXHIBIT "B"
U.S. BANK NATIONAL ASSOCIATION
SCHEDULE OF FEES
FOR
CORNERSTONE REALTY FUND, LLC
Acceptance Fee (Non-Refundable)........................................... $1,000.00
Annual administration fee for services as escrow agent.................... $2,500.00
Wire fee, per wire........................................................ $ 25.00