FORM OF ESCROW AGREEMENT
FORM
OF ESCROW AGREEMENT
THIS
SUBSCRIPTION ESCROW AGREEMENT (this
“Escrow
Agreement”),
dated
as of November l,
2008,
is entered into by and among Lightstone Securities, LLC (the “Dealer
Manager”),
Lightstone Value Plus Real Estate Investment Trust II, Inc. (the “Company”)
and
Xxxxx Fargo Bank, National Association, as Escrow Agent (the “Escrow
Agent”).
WHEREAS,
the
Company intends to raise cash funds from investors (the “Investors”)
pursuant to a public offering (the “Offering”)
of not
less than $5,000,000 (the “Minimum
Amount”)
nor
more than $510,000,000 of shares of common stock, par value $0.01 of the Company
(the “Securities”)
pursuant to the registration statement on Form S-11 of the Company (No.
333-151532) (the “Offering
Document”),
a
copy of which is attached as Exhibit A hereto.
WHEREAS,
the
Company desires to establish an escrow account with the Escrow Agent for funds
contributed by the Investors with the Escrow Agent, to be held for the benefit
of the Investors and the Company until such time as (i) subscriptions for the
Minimum Amount of the Securities, have been deposited into escrow or otherwise
in accordance with the terms of this Escrow Agreement and (ii) in the case
of
subscriptions received from residents of Pennsylvania (“Pennsylvania
Investors”)
and
residents of Massachusetts (“Massachusetts
Investors”),
subscriptions resulting in a total minimum capital raised of $25,500,000 (the
“Pennsylvania
and Massachusetts Minimum Amount”)
and
deposited into escrow or otherwise provided in accordance with the terms of
this
Escrow Agreement.
WHEREAS,
the
Escrow Agent is willing to accept appointment as Escrow Agent only for the
expressed duties outlined herein.
NOW,
THEREFORE,
in
consideration of the premises set forth above and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1.
Proceeds
to be Escrowed. On
or
before the first date of the Offering, the Company shall establish an escrow
account with the Escrow Agent to be invested in accordance with Section 8 hereof
entitled “ESCROW ACCOUNT FOR THE BENEFIT OF SUBSCRIBERS FOR COMMON STOCK OF
LIGHTSTONE VALUE PLUS REAL ESTATE INVESTMENT TRUST II, INC.” (the “Escrow
Account”).
All
funds received from Investors in payment for the Securities (“Investor
Funds”)
will
be delivered to the Escrow Agent within one (1) business day following the
day
upon which such Investor Funds are received by the Company, and shall, upon
receipt by the Escrow Agent, be retained in escrow by the Escrow Agent and
invested as stated herein. During the term of this Escrow Agreement, the Company
or its agents shall cause all checks received by and made payable to it in
payment for the Securities to be endorsed in favor of the Escrow Agent and
delivered to the Escrow Agent for deposit in the Escrow Account.
Proceeds
received from Pennsylvania Investors and Massachusetts Investors shall be
accounted for separately in a subaccount entitled “Escrow Account for the
Benefit of Pennsylvania and Massachusetts Subscribers for Lightstone II” (the
“Pennsylvania
and Massachusetts Escrow Account”),
until
such Pennsylvania and Massachusetts Escrow Account has closed pursuant to
Section 4 hereof. The Company shall, and shall cause its agents to, cooperate
with the Escrow Agent in separately accounting for subscription proceeds from
Pennsylvania Investors and Massachusetts Investors in the Pennsylvania and
Massachusetts Escrow Account, and the Escrow Agent shall be entitled to rely
upon information provided by the Company or its agents in this
regard.
1
The
Escrow Agent shall have no duty to make any disbursement, investment or other
use of Investor Funds until and unless it has good and collected funds. In
the
event that any checks deposited in the Escrow Account or Pennsylvania and
Massachusetts Escrow Account are returned or prove uncollectible after the
funds
represented thereby have been released by the Escrow Agent, then the Company
shall promptly reimburse the Escrow Agent for any and all costs incurred for
such, upon request, and the Escrow Agent shall deliver the returned checks
to
the Company. The Escrow Agent shall be under no duty or responsibility to
enforce collection of any check delivered to it hereunder.
The
Escrow Agent reserves the right to deny, suspend or terminate participation
by
an Investor to the extent the Escrow Agent deems it advisable or necessary
to
comply with applicable laws or to eliminate practices that are not consistent
with the purposes of the Offering.
2.
Subscribers.
Persons
subscribing to purchase the Securities will be instructed by Lightstone
Securities, LLC (the “Dealer
Manager”)
or any
soliciting dealers to remit the purchase price in the form of checks
(hereinafter “instruments of payment”) payable to the order of, or funds wired
in favor of, “XXXXX FARGO BANK, NA, ESCROW AGENT FOR LIGHTSTONE II.” Any checks
received made payable to a party other than the Escrow Agent shall be returned
to the soliciting dealer who submitted the check. By 12:00 p.m. (noon) the
next
business day after receipt of instruments of payment from the Offering, the
Escrow Agent shall be furnished with a list of the Investors
who have paid for the Securities showing the name, address, tax identification
number, amount of Securities subscribed for, the amount paid and whether such
Investors are Pennsylvania Investors or not. The information comprising the
identity of Investors shall be provided to the Escrow Agent in the format set
forth in the “List of Investors” attached hereto as Exhibit B. The Escrow Agent
shall be entitled to conclusively rely upon the list of Investors in determining
whether Investors are Pennsylvania Investors or not, and shall have no duty
to
independently determine or verify the same.
All
Investor Funds deposited in the Escrow Account or Pennsylvania and Massachusetts
Escrow Account shall not be subject to any liens or charges by the Company
or
the Escrow Agent, or judgments or creditors’ claims against the Company, until
and unless released to the Company as hereinafter provided. The Company
understands and agrees that the Company shall not be entitled to any Investor
Funds on deposit in the Escrow Account or Pennsylvania and Massachusetts Escrow
Account and no such funds shall become the property of the Company, or any
other
entity except as released to the Company pursuant to Section 3 or Section 4
for
Pennsylvania Investors. The Escrow Agent will not use the information provided
to it by the Company for any purpose other than to fulfill its obligations
as
Escrow Agent. The Company and the Escrow Agent will treat all Investor
information as confidential. The Escrow Agent shall not be required to accept
any Investor Funds which are not accompanied by the information on the List
of
Investors.
2
3.
Disbursement
of Funds. Once
the
Escrow Agent is in receipt of good and collected Investor Funds totaling at
least the Minimum Amount, the Escrow Agent shall notify the Company of same
in
writing. Additionally, at the end of the third business day following the
Termination Date (as defined in Section 5), the Escrow Agent shall notify the
Company of the amount of the Investor Funds received. If the Minimum Amount
has
been obtained on or before the Termination Date, the Escrow Agent shall promptly
notify the Company and, upon receiving written instructions from the Company,
the Escrow Agent shall disburse to the Company, by check or wire transfer,
the
funds in the Escrow Account representing the gross purchase price of the
Securities.
If
the
Minimum Amount has not been obtained prior to the Termination Date, the Escrow
Agent shall, within a reasonable time following the Termination Date, but in
no
event more than thirty (30) days after the Termination Date, refund to each
Investor by check funds deposited in the Escrow Account, or shall return the
instruments of payment delivered to Escrow Agent if such instruments have not
been processed for collection prior to such time, directly to each Investor
at
the address provided in the list of Investors. Included in the remittance shall
be a proportionate share of the income earned in the account allocable to each
Investor’s investment in accordance with the terms and conditions specified
herein, except that in the case of subscribers who have not provided an executed
Form W-9 or substitute Form W-9 (or the applicable substitute Form W-8 for
foreign investors), the Escrow Agent shall withhold the applicable percentage
of
the earnings attributable to those Investors in accordance with IRS regulations.
Notwithstanding the foregoing, the Escrow Agent shall not be required to remit
any payments until funds represented by such payments have been collected by
Escrow Agent.
In
the
event the Escrow Agent receives written notice from the Company that the Company
intends to reject an Investor’s subscription, the Escrow Agent shall pay to the
applicable Investor(s), within a reasonable time not to exceed ten (10) business
days after receiving notice of the rejection, by first class United States
Mail
at the address appearing on the List of Investors, or at such other address
as
shall be furnished to the Escrow Agent by the Investor in writing, all collected
sums paid by the Investor for Securities and received by the Escrow Agent,
together with the interest earned on such Investor Funds.
4.
Disbursement
of Proceeds for Pennsylvania Investors and
Massachusetts Investors. Proceeds
from Pennsylvania Investors and Massachusetts Investors will count towards
meeting the Minimum Amount for purposes of Section 3, but notwithstanding
anything to the contrary herein such proceeds will not be released from the
Pennsylvania and Massachusetts Escrow Account until the Pennsylvania and
Massachusetts Minimum Amount is obtained. If the Pennsylvania and Massachusetts
Minimum Amount is obtained at any time prior to the Termination Date, the Escrow
Agent shall promptly notify the Company and, upon receiving written instructions
from the Company, the Escrow Agent shall disburse to the Company, by check
or
wire transfer, the funds in the Pennsylvania and Massachusetts Escrow Account
representing the gross purchase price of the Securities.
If
the
Pennsylvania and Massachusetts Minimum Amount has not been obtained prior to
the
Termination Date, the Escrow Agent shall, within a reasonable time following
the
Termination Date, but in no event more than thirty (30) days after the
Termination Date, refund to each Pennsylvania Investor and Massachusetts
Investor by check funds deposited in the Pennsylvania and Massachusetts Escrow
Account, or shall return the instruments of payment delivered to Escrow Agent
if
such instruments have not been processed for collection prior to such time,
directly to each Pennsylvania Investor or Massachusetts Investors at the address
provided in the list of Investors. Included in the remittance shall be a
proportionate share of the income earned in the account allocable to each
Pennsylvania Investor’s or and Massachusetts Investor’s investment in accordance
with the terms and conditions specified herein, except that in the case of
subscribers who have not provided an executed Form W-9 or substitute Form W-9,
the Escrow Agent shall withhold the applicable percentage of the earnings
attributable to those Investors in accordance with IRS regulations.
Notwithstanding the foregoing, the Escrow Agent shall not be required to remit
any payments until funds represented by such payments have been collected by
Escrow Agent.
3
If
the
Escrow Agent is not in receipt of evidence of subscriptions accepted on or
before the close of business on such date that is 120 days after commencement
of
the Offering (the Company will notify the Escrow Agent of the commencement
date
of the Offering) (the “Initial
Escrow Period”),
and
instruments of payment dated not later than that date, for the purchase of
Securities providing for total purchase proceeds from all nonaffiliated sources
that equal or exceed the Pennsylvania and Massachusetts Minimum Amount, the
Escrow Agent shall promptly notify the Company. Thereafter, the Company or
its
agents shall send to each Pennsylvania Investor by certified mail within ten
(10) calendar days after the end of the Initial Escrow Period a
notification substantially in the form of Exhibit F. If, pursuant to such
notification, a Pennsylvania Investor requests the return of his or her
subscription funds within ten (10) calendar days after receipt of the
notification (the “Request
Period”),
the
Escrow Agent shall promptly refund directly to each Pennsylvania Investor the
collected funds deposited in the Pennsylvania and Massachusetts Escrow Account
on behalf of such Pennsylvania Investor or shall return the instruments of
payment delivered, but not yet processed for collection prior to such time,
to
the address provided by the Dealer Manager or the Company or their respective
agents to the Escrow Agent, which the Escrow Agent shall be entitled to rely
upon, together with interest income (which interest shall be paid within five
business days after the first business day of the succeeding month) in the
amounts calculated pursuant to Section 8. Notwithstanding the above, if the
Escrow Agent has not received an executed Form W-9 or substitute Form W-9 for
such Pennsylvania Investor, the Escrow Agent shall thereupon remit an amount
to
such Pennsylvania Investor in accordance with the provisions hereof, withholding
the applicable percentage for backup withholding required by the Internal
Revenue Code, as then in effect, from any interest income earned on subscription
proceeds (determined in accordance with Section 8) attributable to such
Pennsylvania Investor. However, the Escrow Agent shall not be required to remit
such payments until the Escrow Agent has collected funds represented by such
payments.
The
subscription funds of Pennsylvania Investors who do not request the return
of
their subscription funds within the Request Period shall remain in the
Pennsylvania and Massachusetts Escrow Account for successive 120-day escrow
periods (a “Successive
Escrow Period”),
each
commencing automatically upon the termination of the prior Successive Escrow
Period, and the Company and Escrow Agent shall follow the notification and
payment procedure set forth above with respect to the Initial Escrow Period
for
each Successive Escrow Period until the occurrence of the earliest of
(i) the Termination Date, (ii) the receipt and acceptance by the
Company of subscriptions for the purchase of Securities with total purchase
proceeds that equal or exceed the Pennsylvania and Massachusetts Minimum Amount
and the disbursement of the Pennsylvania and Massachusetts Escrow Account on
the
terms specified herein, or (iii) all funds held in the Pennsylvania and
Massachusetts Escrow Account having been returned to the Pennsylvania Investors
and Massachusetts Investors in accordance with the provisions hereof.
4
5.
Term
of Escrow. The
“Termination Date” shall be the earlier of (i) the close of business on the one
year anniversary of the date of this Escrow Agreement; (ii) all funds held
in
the Escrow Account and the Pennsylvania and Massachusetts Escrow Account are
distributed to the Company or to Investors pursuant to Section 3 and Section
4
for Pennsylvania Investors and Massachusetts Investors and the Company has
informed the Escrow Agent in writing to close the Escrow Account and the
Pennsylvania and Massachusetts Escrow Account; (iii) the date the Escrow Agent
receives written notice from the Company that it is abandoning the sale of
the
Securities; or (iv) the date the Escrow Agent receives notice from the
Securities and Exchange Commission or any other federal or state regulatory
authority that a stop or similar order has been issued with respect to the
Offering Document and has remained in effect for at least twenty (20) days.
After the Termination Date the Company shall not deposit, and the Escrow Agent
shall not accept, any additional amounts representing payments by prospective
Investors.
6.
Duty
and Liability of the Escrow Agent. The
sole
duty of the Escrow Agent shall be to receive Investor Funds and hold them
subject to release, in accordance herewith, and the Escrow Agent shall be under
no duty to determine whether the Company or the Dealer Manager is complying with
requirements of this Escrow Agreement, the Offering or applicable securities
or
other laws in tendering the Investor Funds to the Escrow Agent. No other
agreement entered into between the parties, or any of them, shall be considered
as adopted or binding, in whole or in part, upon the Escrow Agent
notwithstanding that any such other agreement may be referred to herein or
deposited with the Escrow Agent or the Escrow Agent may have knowledge thereof,
including specifically but without limitation any Offering Documents, and the
Escrow Agent’s rights and responsibilities shall be governed solely by this
Escrow Agreement. The Escrow Agent shall not be responsible for or be required
to enforce any of the terms or conditions of any Offering Document or other
agreement between the Company and any other party. The Escrow Agent may
conclusively rely upon and shall be protected in acting upon any statement,
certificate, notice, request, consent, order or other document believed by
it to
be genuine and to have been signed or presented by the proper party or parties.
The Escrow Agent shall have no duty or liability to verify any such statement,
certificate, notice, request, consent, order or other document, and its sole
responsibility shall be to act only as expressly set forth in this Escrow
Agreement. Concurrent with the execution of this Escrow Agreement, the Company
shall deliver to the Escrow Agent an authorized signers form in the form of
Exhibit C to this Escrow Agreement. The Escrow Agent shall be under no
obligation to institute or defend any action, suit or proceeding in connection
with this Escrow Agreement unless first indemnified to its satisfaction. The
Escrow Agent may consult counsel of its own choice with respect to any question
arising under this Escrow Agreement and the Escrow Agent shall not be liable
for
any action taken or omitted in good faith upon advice of such counsel. The
Escrow Agent shall not be liable for any action taken or omitted by it in good
faith except to the extent that a court of competent jurisdiction determines
that the Escrow Agent’s gross negligence or willful misconduct was the primary
cause of loss. The Escrow Agent is acting solely as escrow agent hereunder
and
owes no duties, covenants or obligations, fiduciary or otherwise, to any other
person by reason of this Escrow Agreement, except as otherwise stated herein,
and no implied duties, covenants or obligations, fiduciary or otherwise, shall
be read into this Escrow Agreement against the Escrow Agent. In the event
of any disagreement between any of the parties to this Escrow Agreement, or
between any of them and any other person, including any Investor, resulting
in
adverse claims or demands being made in connection with the matters covered
by
this Escrow Agreement, or in the event that the Escrow Agent is in doubt as
to
what action it should take hereunder, the Escrow Agent may, at its option,
refuse to comply with any claims or demands on it, or refuse to take any other
action hereunder, so long as such disagreement continues or such doubt exists,
and in any such event, the Escrow Agent shall not be or become liable in any
way
or to any person for its failure or refusal to act, and the Escrow Agent shall
be entitled to continue so to refrain from acting until (i) the rights of all
interested parties shall have been fully and finally adjudicated by a court
of
competent jurisdiction, or (ii) all differences shall have been adjudged and
all
doubt resolved by agreement among all of the interested persons, and the Escrow
Agent shall have been notified thereof in writing signed by all such persons.
Notwithstanding the foregoing, the Escrow Agent may in its discretion obey
the
order, judgment, decree or levy of any court, whether with or without
jurisdiction and the Escrow Agent is hereby authorized in its sole discretion
to
comply with and obey any such orders, judgments, decrees or levies. In the
event
that any controversy should arise with respect to this Escrow Agreement the
Escrow Agent shall have the right, at its option, to institute an interpleader
action in any court of competent jurisdiction to determine the rights of the
parties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY,
FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND
WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE ESCROW
AGENT
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS
OF
THE FORM OF ACTION. The parties agree that the Escrow Agent has no role in
the
preparation of the Offering Documents and makes no representations or warranties
with respect to the information contained therein or omitted therefrom. The
Escrow Agent shall have no obligation, duty or liability with respect to
compliance with any federal or state securities, disclosure or tax laws
concerning the Offering Documents or the issuance, offering or sale of the
Securities. The Escrow Agent shall have no duty or obligation to monitor the
application and use of the Investor Funds once transferred to the Company,
that
being the sole obligation and responsibility of the Company.
5
7.
Escrow
Agent’s Fee. The
Escrow Agent shall be entitled to compensation for its services as stated in
the
fee schedule attached hereto as Exhibit D, which compensation shall be paid
by
the Company. The fee agreed upon for the services rendered hereunder is intended
as full compensation for the Escrow Agent’s services as contemplated by this
Escrow Agreement; provided, however, that in the event that the conditions
for
the disbursement of funds under this Escrow Agreement are not fulfilled, or
the
Escrow Agent renders any material service not contemplated in this Escrow
Agreement, or there is any assignment of interest in the subject matter of
this
Escrow Agreement, or any material modification hereof, or if any material
controversy arises hereunder, or the Escrow Agent is made a party to any
litigation pertaining to this Escrow Agreement, or the subject matter hereof,
then the Escrow Agent shall be reasonably compensated for such extraordinary
services and reimbursed for all costs and expenses, including reasonable
attorney’s fees, occasioned by any delay, controversy, litigation or event, and
the same shall be recoverable from the Company. The Company’s obligations under
this Section 6 shall survive the resignation or removal of the Escrow Agent
and
the assignment or termination of this Escrow Agreement.
8. Investment
of Proceeds. The
Investor Funds shall be deposited in the Escrow Account and the Pennsylvania
and
Massachusetts Escrow Account, as applicable. The Escrow Agent is hereby directed
to invest all funds received under this Escrow Agreement, including principal
and interest in, a Xxxxx Fargo Bank Money Market Deposit Account, as directed
in
writing in the form of Exhibit E to this Escrow Agreement. The Escrow Agent
shall invest the Investor Funds in alternative investments in accordance with
written instructions as may from time to time be provided to the Escrow Agent
and signed by the Company. In the absence of written investment instructions
from the Company to the contrary, the Escrow Agent is hereby directed to invest
the Investor Funds in the Xxxxx Fargo Bank Money Market Deposit Account.
Notwithstanding
the foregoing, Investor Funds shall not be invested in anything other than
“Short Term Investments” in compliance with Rule 15c2-4 of the Securities
Exchange Act of 1934, as amended. The following are not permissible investments:
(a) money market mutual funds, (b) corporate debt or equity securities, (c)
repurchase agreements, (d) banker’s acceptance, (e) commercial paper, and (f)
municipal securities. Any interest received by the Escrow Agent with respect
to
the Investor Funds, including reinvested interest shall become part of the
Investor Funds, and shall be disbursed pursuant to Section 3 or Section 4 for
Pennsylvania Investors and Massachusetts Investors.
The
Escrow Agent shall be entitled to sell or redeem any such investments as
necessary to make any payments or distributions required under this Escrow
Agreement. The Escrow Agent shall have no responsibility or liability for any
loss which may result from any investment made pursuant to this Escrow
Agreement, or for any loss resulting from the sale of such investment. The
parties acknowledge that the Escrow Agent is not providing investment
supervision, recommendations, or advice.
The
Company on the date of this Escrow Agreement shall provide the Escrow Agent
with
certified tax identification numbers by furnishing appropriate IRS forms W-9
or
W-8 and other forms and documents that the Escrow Agent may reasonably request.
The Company understands that if such tax reporting documentation is not so
certified to the Escrow Agent, the Escrow Agent may be required by the Internal
Revenue Code of 1986, as amended, to withhold a portion of any interest or
other
income earned on the Investor Funds pursuant to this Escrow Agreement.
The
Company agrees to indemnify and hold the Escrow Agent harmless from and against
any taxes, additions for late payment, interest, penalties and other expenses
that may be assessed against the Escrow Agent on or with respect to any payment
or other activities under this Escrow Agreement unless any such tax, addition
for late payment, interest, penalties and other expenses shall be determined
by
a court of competent jurisdiction to have been caused by the Escrow Agent’s
gross negligence or willful misconduct. The terms of this Section shall survive
the termination of this Escrow Agreement and the resignation or removal of
the
Escrow Agent.
6
9.
Notices.
All
notices, requests, demands, and other communications under this Escrow Agreement
shall be in writing and shall be deemed to have been duly given (a) on the
date
of service if served personally on the party to whom notice is to be given,
(b)
on the day of transmission if sent by facsimile/email transmission to the
facsimile number/email address given below, and telephonic confirmation of
receipt is obtained promptly after completion of transmission, (c) on the day
after delivery to Federal Express or similar overnight courier or the Express
Mail service maintained by the United States Postal Service, or (d) on the
fifth
day after mailing, if mailed to the party to whom notice is to be given, by
first class mail, registered or certified, postage prepaid, and properly
addressed, return receipt requested, to the party as follows:
If
to the
Company:
000
Xxxxx
Xxxxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
Fax
(000)
000-0000
Attention:
Xxxxx Xxxxxxxxxxxx, Chief Executive Officer
with
a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention:
Xxxxx X. Xxxx, Esq.
If
to the
Dealer Manager:
Lightstone
Securities, LLC
Xxx
Xxxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxx Xxxxxx 00000
Attention:
Xxxxxxx Xxxxxxx, Chief Executive Officer
with
a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention:
Xxxxx X. Xxxx, Esq.
If
to
Escrow Agent:
Xxxxx
Fargo Bank, National Association
000
Xxxx
Xxxxxx, Xxxxx 000
Xxxxx
Xxxxx, Xxxxx 00000-0000
Attention:
Xxxx X. Xxxxxxxxx; Corporate,
Municipal and Escrow Services
7
Any
party
may change its address for purposes of this Section by giving the other party
written notice of the new address in the manner set forth above.
10.
Indemnification
of Escrow Agent: The
Company and the Dealer Manager hereby jointly and severally indemnify, defend
and hold harmless the Escrow Agent from and against, any and all loss,
liability, cost, damage and expense, including, without limitation, reasonable
counsel fees and expenses, which the Escrow Agent may suffer or incur by reason
of any action, claim or proceeding brought against the Escrow Agent arising
out
of or relating in any way to this Escrow Agreement or any transaction to which
this Escrow Agreement relates unless such loss, liability, cost, damage or
expense is finally determined by a court of competent jurisdiction to have
been
primarily caused by the willful misconduct of the Escrow Agent. The terms of
this Section shall survive the termination of this Escrow Agreement and the
resignation or removal of the Escrow Agent.
11.
Successors
and Assigns. Except
as
otherwise provided in this Escrow Agreement, no party hereto shall assign this
Escrow Agreement or any rights or obligations hereunder without the prior
written consent of the other parties hereto and any such attempted assignment
without such prior written consent shall be void and of no force and effect.
This Escrow Agreement shall inure to the benefit of and shall be binding upon
the successors and permitted assigns of the parties hereto. Any corporation
or
association into which the Escrow Agent may be converted or merged, or with
which it may be consolidated, or to which it may sell or transfer all or
substantially all of its corporate trust business and assets as a whole or
substantially as a whole, or any corporation or association resulting from
any
such conversion, sale, merger, consolidation or transfer to which the Escrow
Agent is a party, shall be and become the successor Escrow Agent under this
Escrow Agreement and shall have and succeed to the rights, powers, duties,
immunities and privileges as its predecessor, without the execution or filing
of
any instrument or paper or the performance any further act.
12.
Governing
Law; Jurisdiction. This
Escrow Agreement shall be construed, performed, and enforced in accordance
with,
and governed by, the internal laws of the State of New York, without giving
effect to the principles of conflicts of laws thereof.
13.
Severability.
In
the
event that any part of this Escrow Agreement is declared by any court or other
judicial or administrative body to be null, void, or unenforceable, said
provision shall survive to the extent it is not so declared, and all of the
other provisions of this Escrow Agreement shall remain in full force and
effect.
14.
Amendments;
Waivers. This
Escrow Agreement may be amended or modified, and any of the terms, covenants,
representations, warranties, or conditions hereof may be waived, only by a
written instrument executed by the parties hereto, or in the case of a waiver,
by the party waiving compliance. Any waiver by any party of any condition,
or of
the breach of any provision, term, covenant, representation, or warranty
contained in this Escrow Agreement, in any one or more instances, shall not
be
deemed to be nor construed as further or continuing waiver of any such
condition, or of the breach of any other provision, term, covenant,
representation, or warranty of this Escrow Agreement. The Company and the Dealer
Manager agree that any requested waiver, modification or amendment of this
Escrow Agreement shall be consistent with the terms of the Offering.
8
15.
Entire
Agreement. This
Escrow Agreement contains the entire understanding among the parties hereto
with
respect to the escrow contemplated hereby and supersedes and replaces all prior
and contemporaneous agreements and understandings, oral or written, with regard
to such escrow.
16.
Section
Headings. The
section headings in this Escrow Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Escrow
Agreement.
17.
Counterparts.
This
Escrow Agreement may be executed in counterparts, each of which shall be deemed
an original, but all of which shall constitute the same instrument.
18.
Resignation.
The
Escrow Agent may resign upon 30 days advance written notice to the parties
hereto. If a successor escrow agent is not appointed within the 30-day period
following such notice, the Escrow Agent may petition any court of competent
jurisdiction to name a successor escrow agent or interplead the Investor Funds
with such court, whereupon the Escrow Agent’s duties hereunder shall
terminate.
19. References
to Escrow Agent.
Other
than the Offering Document (including the subscription agreement and exhibits
thereto) and any amendments or supplements thereto, no printed or other matter
in any language (including, without limitation, notices, reports and promotional
material) which mentions the Escrow Agent’s name or the rights, powers, or
duties of the Escrow Agent shall be issued by the Company or the Dealer Manager,
or on the Company’s or the Dealer Manager’s behalf, unless the Escrow Agent
shall first have given its specific written consent thereto. Notwithstanding
the
foregoing, any amendment or supplement to the Offering Document (including
the
subscription agreement and exhibits thereto) that revises, alters, modifies,
changes or adds to the description of the Escrow Agent or its rights, powers
or
duties hereunder shall not be issued by the Company or the Dealer Manager,
or on
the Company’s or Dealer Manager’s behalf, unless the Escrow Agent has first
given specific written consent thereto.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
9
IN
WITNESS WHEREOF,
the
parties hereto have caused this Escrow Agreement to be executed the date and
year first set forth above.
| LIGHTSTONE VALUE PLUS REAL
ESTATE INVESTMENT TRUST II, INC. |
|||
|
By: Xxxxx Xxxxxxxxxxxx |
|||
| Title: Chief Executive Officer | |||
| LIGHTSTONE SECURITIES, LLC | |||
|
By: Xxxxxxx Xxxxxxx |
|||
| Title: Chief Executive Officer | |||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Escrow Agent |
|||
|
By: |
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| Title: |
10
Exhibit
A
Copy
of
Offering Document
11
Exhibit
B
List
of Investors
Pursuant
to the Escrow Agreement dated October , 2008, by and between Lightstone Value
Plus Real Estate Investment Trust II, Inc., (the “Company”),
and
Xxxxx Fargo Bank, National Association (the “Escrow
Agent”),
the
Company hereby certifies that the following Investors have paid money for the
purchase of ____________ (the “Securities”),
and
the money has been deposited with the Escrow Agent:
|
1.
|
Name
of Subscriber
|
Address
Tax
Identification Number
Amount
of
Securities subscribed for
Amount
of
money paid and deposited with Escrow Agent
Is
Subscriber a resident of Pennsylvania (Yes or No)?
Is
Subscriber a resident of Massachusetts (Yes or No)?
|
2.
|
Name
of Subscriber
|
Address
Tax
Identification Number
Amount
of
Securities subscribed for
Amount
of
money paid and deposited with Escrow Agent
Is
Subscriber a resident of Pennsylvania (Yes or No)?
Is
Subscriber a resident of Massachusetts (Yes or No)?
Company:
_________________________________
By:
________________________
Its:
________________________
Date:
______________________
12
Exhibit
C
CERTIFICATE
AS TO AUTHORIZED SIGNATURES
Account
Name:
Account
Number:
The
specimen signatures shown below are the specimen signatures of the individuals
who have been designated as Authorized Representatives of Lightstone
Value Plus Real Estate Investment Trust II, Inc. and
are
authorized to initiate and approve transactions of all types for the
above-mentioned account on behalf of Lightstone
Value Plus Real Estate Investment Trust II, Inc.
|
Name
/ Title
|
Specimen
Signature
|
||
| Xxxxx Xxxxxxxxxxxx | |||
| Chief Executive Officer |
Signature
|
||
| Xxxxxxx Xxxxxxx | |||
| President |
Signature
|
||
| Xxxxx Xxxxxxx | |||
| Chief Financial Officer |
Signature
|
||
| Xxxxxx Xxxxxxxx | |||
| General Counsel |
Signature
|
13
Exhibit
D
Fee
Schedule
14
Exhibit
E
Agency
and Custody Account Direction
For
Cash Balances
Xxxxx
Fargo Bank Money Market Deposit Accounts
Direction
to use the following Xxxxx Fargo Bank Money Market Deposit Accounts for Cash
Balances for the escrow account (the “Account”) created under the Escrow
Agreement to which this Exhibit is attached.
You
are
hereby directed to deposit, as indicated below, or as we shall direct further
in
writing from time to time, all cash in the Account in the following money market
deposit account of Xxxxx Fargo Bank, National Association (“Bank”):
Xxxxx
Fargo Bank Money Market Deposit Account (“MMDA”)
We
understand that amounts on deposit in the MMDA are insured, subject to the
applicable rules and regulations of the Federal Deposit Insurance Corporation
(the “FDIC”), in the basic FDIC insurance amount of $100,000 per depositor, per
insured bank. This includes principal and accrued interest up to a total of
$100,000. We understand that deposits in the MMDA are not secured.
Xxxxx
Fargo Bank, National Association has short term debt ratings of “P-1” from
Xxxxx’x Investors Service and “A-1+” from Standard & Poor’s Ratings
Services.
We
acknowledge that we have full power to direct investments in the
Account.
We
understand that we may change this direction at any time and that it shall
continue in effect until revoked or modified by us by written notice to
you.
| Lightstone Value Plus Real
Estate Investment Trust II, Inc. |
|||
|
Signature |
|||
|
Date |
15
Exhibit
F
[Form
of
Notice to Pennsylvania Investors]
You
have
tendered a subscription to purchase shares of common stock of Lightstone Value
Plus Real Estate Investment Trust II, Inc. (the “Company”). Your subscription is
currently being held in escrow. The guidelines of the Pennsylvania Securities
Commission do not permit the Company to accept subscriptions from Pennsylvania
residents until an aggregate of $25,500,000 of gross offering proceeds have
been
received by the Company. The Pennsylvania guidelines provide that until this
minimum amount of offering proceeds is received by the Company, every
120 days during the offering period Pennsylvania Investors may request that
their subscription be returned. If you wish to continue your subscription in
escrow until the Pennsylvania minimum subscription amount is received, nothing
further is required.
If
you
wish to terminate your subscription for the Company’s common stock and have your
subscription returned please so indicate below, sign, date, and return to the
Escrow Agent, Xxxxx Fargo Bank, National Association.
I
hereby
terminate my prior subscription to purchase shares of common stock of Lightstone
Value Plus Real Estate Investment Trust II, Inc. and request the return of
my
subscription funds. I certify to Lightstone Value Plus Real Estate Investment
Trust II, Inc. that I am a resident of Pennsylvania.
|
|
|
|
|
|
|
|
|
|
|
Signature:
|
|
|
|
|
|||||
|
|
|
|
Name:
|
|
|
|
|
|
|
|
(please
print)
|
|
|
|
|||||
|
|
|
|
Date:
|
|
|
Please
send the subscription refund to:
16
