EXHIBIT 10.1
CORNERSTONE REALTY FUND, LLC
ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is entered into ____________ ,
2000 by and among U.S. Bank, National Association (the "Escrow Agent"),
Cornerstone Realty Fund, LLC, a California limited liability company (the
"Fund") and Pacific Cornerstone Capital, Incorporated, a California
corporation (the "Dealer Manager").
R E C I T A L S
A. The Fund proposes to offer up to $50,000,000 of limited
liability company units ("Units") in the Fund, pursuant to a Prospectus dated
____________ , 2000, as amended or supplemented from time to time (the
"Prospectus"), with a minimum investment required of five Units at $500 per
Unit (or two Units at $500 per Unit 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 Units and are entitled to
certain commissions and selling expense allowances set forth in those certain
selling agreements among the Fund, the Participating Brokers and the Managing
Member of the Fund, Cornerstone Industrial Properties, LLC, a California
limited liability company ("Managing Member").
C. In compliance with the Prospectus and each Selling
Agreement, the Fund 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 $3,000,000 are not accepted
by the Fund prior to _______________, 2001(the "Minimum Offering Termination
Date"), no Units in the Fund 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.
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2. ESCROW.
2.1 ESCROW AGENT. For a period commencing on the
date hereof and terminating 15 days after the Minimum Offering Termination
Date, the Escrow Agent shall act as an escrow agent and shall receive and
disburse the proceeds from the sale of the Units in accordance with the terms
of this Agreement. The Escrow Agent hereby represents and warrants to each
Participating Broker that it 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 Units 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 Units (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 Managing Member and the Dealer Manager, deposited directly
into the Fund'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 Fund, in (i) Bank
accounts, (ii) Bank money-market accounts, (iii) short-term certificates of
deposit of Banks located in the United States, 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
Fund with respect to the Proceeds, and the Managing Member shall determine
and disburse to each subscriber his or her proportionate share of such income
computed as provided above. The Fund is aware that there may be a forfeiture
of interest in the event of early withdrawal from an interest bearing account
of investment.
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6. INITIAL CLOSING DATE. The term "Qualifying Subscriptions"
shall refer to all subscriptions which have been received by the Managing
Member and which the Managing Member intends to accept into the Fund. If
Qualifying Subscriptions have been received for at least $3,000,000 of Units
on or before the Minimum Offering Termination Date, the Managing Member 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 Fund 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 Fund and to each Participating Broker,
respectively. On the Initial Closing Date, the Escrow Agent, upon telephonic
notice from the Managing Member and the Dealer Manager that all contingencies
for payment have been satisfied as required by Rule 15c2-4 under the Act
(which notice the Managing Member shall promptly confirm in writing) shall
pay to the Fund and each Participating Broker the amounts specified by such
notice, and shall additionally pay to the Fund 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 Managing Member 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 Managing Member 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
Managing Member 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 $3,000,000 of Units have not been received by the
Minimum Offering Termination Date, then the Escrow Agent, upon instructions
from the Managing Member, 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 Fund 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 Fund or any other entity, or
be subject to the debts of the Fund or any other entity.
9. NOTICE OF EXTENSION OR TERMINATION OF OFFERING. Upon
final termination of the offering, the Managing Member 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 a fee as set forth on Exhibit "B" hereto. The fees
of the Escrow Agent shall be paid by the Fund. If Qualifying Subscriptions
for at least $3,000,000 of Units have not been received by the Minimum
Offering Termination Date, then the fees of the Escrow Agent shall be paid by
the Managing Member. In no event shall the fees of the Escrow Agent be
deducted from or otherwise offset against the Proceeds (or interest earned
thereon) of subscribers.
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11. RESIGNATION. The Escrow Agent shall have the right to
resign at any time and be discharged from its duties as escrow agent
hereunder by giving the Fund at least 30 days prior written notice thereof;
provided, however, that if the Escrow Agent shall exercise its right of
resignation hereunder, it shall receive as its fee for services rendered as
escrow agent a fee as provided in Section 10 hereof.
12. 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 Managing Member or to give any receipt therefor
except to the Participating Brokers or the Managing Member;
(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
Fund at the following address:
Cornerstone Realty Fund, LLC
4590 MacArthur Blvd.
Suite 610
Newport Beach, CA 92660
(e) Be indemnified and held harmless by the
Managing Member from any and all claims made against it (including claims
regarding the disbursement of funds), or any and all expenses incurred by it
(including reasonable attorneys' fees), by reason of its acting or failing to
act in connection with any of the transactions contemplated hereby and
against any loss it may sustain in carrying out the terms of this Agreement,
except such claims, expenses or losses which are occasioned by its bad faith,
negligence or willful misconduct; and
(f) Not be liable for any forgeries or
impersonations concerning any documents to be handled by it.
13. DISPUTES. If the Managing Member, the Participating
Brokers, or anyone else, disagree on any matter connected with this escrow,
(i) Escrow Agent will not have to settle the matter, (ii) Escrow Agent may
wait for a settlement by appropriate legal proceedings or other means Escrow
Agent may require, and in such event Escrow Agent will not be liable for
interest or damage, (iii) Escrow Agent will be entitled to such reasonable
compensation for services, costs and attorneys' fees as a court may award if
Escrow Agent intervenes in or is made a party to any legal proceedings, (iv)
Escrow Agent shall be entitled to hold documents and funds deposited in this
escrow pending settlement of the disagreement by
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any of the above means, and (v) Escrow Agent shall be entitled to file an
interpleader action and deposit any Proceeds or property with an appropriate
court.
14. 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.
15. 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, in a sealed postpaid wrapper, addressed as follows:
U.S. Bank, National Association
4100 Newport Place
Suite 130
Newport Beach, CA 92660
Attn: Gloria Garriott
16. 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 Fund.
17. 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 Managing Member.
18. 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.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed on the day and year first hereinabove written.
CORNERSTONE REALTY FUND, LLC,
a California limited liability company
By: CORNERSTONE INDUSTRIAL PROPERTIES, LLC,
a California limited liability company
By: CORNERSTONE VENTURES, INC.,
its Operating Partner
By:
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Terry G. Roussel, President
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PACIFIC CORNERSTONE CAPITAL, INCORPORATED,
a California corporation
By:
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Terry G. Roussel, President
ACKNOWLEDGED AND AGREED
U.S. BANK, NATIONAL ASSOCIATION
By:
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EXHIBIT "A"
GENERAL PROVISIONS
DEPOSITS - All funds received in escrow shall be deposited in 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 any Property 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, including any Principal, 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 Principals 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 - Principals 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 Principals or any other proper person, and (b)
incurred in connection with any act or thing done hereunder.
EXERCISE OF JUDGMENT - Escrow Agent shell 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 Principals, 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 Principals, 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 Property, 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 Principals, 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:
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a. the rights of the adverse claimants have been fully
adjudicated in a court assuming and having jurisdiction of the claimants and
the Property; or
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 Property deposited in
escrow; and the Principals 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
Principals 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 Principals 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 Principals 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
Principals 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 ten (10) days
written notice to any of the Principals, 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 Principals or resignation by
Escrow Agent, after deducting Escrow Agent's fees, costs and expenses, the
balance of any funds or Property shall be returned to the respective
Principals 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. Escrow Agent shall have a
first lien on the Property for such compensation and
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expenses, and the Principals agree jointly and severally to pay the same for
its ordinary services hereunder.
Escrow Agent shall be entitled to an initial, non-refundable set-up fee
("initial fee") of $1,500.00, payable concurrently with its acceptance, and
to additional compensation for wire fees, messenger fees, $250.00 yearly
hold-open fee (due if escrow open over 1 year from the date of these
instructions), and/or any other reasonable and necessary out-of-pocket
expenses incurred by Escrow Agent.
The Principals 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.
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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U.S. BANK, NATIONAL ASSOCIATION
SCHEDULE OF FEES
FOR
CORNERSTONE REALTY FUND, LLC
Acceptance Fee (Non-Refundable)....................................................... $1,500.00
Additional Escrow Fees of $1.00 per $1,000.00 subscription fun
as received in escrow in excess of $1,500,000.00. Yearly Hold-Open Fee
(due if escrow open over 1 year from the date of these instructions)................ $ 250.00
Wire fee, per wire.................................................................... $ 25.00
Disbursement fee, per check........................................................... $ 15.00
Reasonable and customary charges for unscheduled services,
including messenger fees, federal express charges or other
out-of pocket expense.............................................................. various
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