exv4w4






Exhibit 4.4




ESCROW AGREEMENT




[Insert Escrow Agent

and Address]




	 	 	 	 	 
	 

	 	Re:
	 	Grubb & Ellis Healthcare REIT II, Inc.





Ladies and Gentlemen:



GRUBB & ELLIS HEALTHCARE REIT II, INC., a Maryland corporation (the “Company”), will issue
in a public offering (the “Offering”) shares of its common stock (the “Stock”)
pursuant to a registration statement on Form S-11 filed by the Company with the Securities and
Exchange Commission. GRUBB & ELLIS SECURITIES, INC., a California corporation (the “Dealer
Manager”), will act as dealer manager for the offering of the Stock. The Company is entering
into this agreement to set forth the terms on which [BANK] (the “Escrow Agent”) will,
except as otherwise provided herein, hold and disburse the proceeds from subscriptions for the
purchase of the Stock in the Offering until such time as the Company
has received subscriptions for Stock from nonaffiliates of the
Company resulting in a total
of 200,000 shares of common stock sold in the Offering (the “Required Capital”).



The Company hereby appoints [BANK] as Escrow Agent for purposes of holding the proceeds from the
subscriptions for the Stock, on the terms and conditions hereinafter set forth:



1. Until such time as the Company has received subscriptions for Stock resulting in total minimum
capital raised equal to the Required Capital and such funds are disbursed from the Escrow Account
(as defined below) in accordance with paragraph 3(a) hereof, persons subscribing to purchase the
Stock (the “Subscribers”) will be instructed by the Dealer Manager or any soliciting
dealers to remit the purchase price in the form of checks, drafts, wires, Automated Clearing House
(ACH) or money orders (hereinafter, the “instrument of payment”), payable to the order
of “          Bank, N.A., Agent for Grubb & Ellis Healthcare REIT II, Inc.” After subscriptions are
received resulting in total minimum capital raised equal to the Required Capital and such funds are
disbursed from the Escrow Account in accordance with paragraph 3(a) hereof, subscriptions shall be
continue to be so submitted and paid for by delivering a check for the full purchase price made
payable to “Grubb & Ellis Healthcare REIT II, Inc.” Within one (1) business day after receipt of
instrument of payment from the Offering, the Dealer Manager, the Company or their respective agents
will (a) send to the Escrow Agent a copy of the relevant part of
each Subscriber’s subscription agreement showing the
Subscriber’s name, address, tax identification number
(Substitute IRS Form W-9), number of shares purchased, and
purchase price remitted, and (b) deposit the instrument of payment from such
Subscribers using the Escrow Agent’s electronic facilities, into an interest-bearing deposit account entitled “Escrow Account for the Benefit of
Subscribers for Common Stock of Grubb & Ellis Healthcare REIT II, Inc.” (the “Escrow
Account”), which deposit shall occur within one (1) business day after the Escrow Agent’s
receipt of the instrument of payment, until such Escrow Account has closed pursuant to paragraph
3(a) hereof.



2. The Escrow Agent agrees to promptly process for collection the instrument of payment upon
deposit into the Escrow Account. Deposits shall be held in the Escrow Account until such funds are
disbursed in accordance with paragraph 3 hereof. Prior to disbursement of the funds deposited in
the Escrow Account, such funds shall not be subject to claims by creditors of the Company, the
Dealer Manager, any soliciting dealer or any of their respective affiliates. If the instrument of
payment is returned to the Escrow Agent for nonpayment prior to receipt of the Required Capital,
the Escrow Agent shall promptly notify the Dealer Manager and the Company in writing via mail,
email or facsimile of such




 









 







nonpayment, and is authorized to debit the Escrow Account in the amount of such returned payment as
well as any interest earned on the amount of such payment.



3. (a) Subject to the provisions of subparagraphs 3(b)-3(d) below, once the collected funds in
the Escrow Account are an amount equal to or greater than the Required Capital, the Escrow Agent
shall, upon receiving written instruction from the Dealer Manager or
the Company,
(A) disburse to the Company, by check, ACH or wire transfer, the funds in the Escrow Account
representing the gross purchase price for the Stock, and (B) within five business days after the
first business day of the succeeding month, disburse to the Subscribers or the Company, as
applicable, any interest thereon pursuant to the provisions of subparagraph 3(d). After such time
the Escrow Account shall remain open and the Dealer Manager or the Company shall continue to cause subscriptions for the
Stock to be deposited therein until the Company informs the Escrow Agent in writing to close the
Escrow Account. For purposes of this
Agreement, the term “collected funds” shall mean all funds received by the Escrow Agent that have
cleared normal banking channels and are in the form of cash or cash equivalent. After the
satisfaction of the aforementioned provisions of this paragraph 3(a), in the event the Company
receives subscriptions made payable to the Escrow Agent, subscription proceeds may continue to be
received in this account generally, but to the extent such proceeds shall not be subject to escrow
due to the satisfaction of the aforementioned provisions of this paragraph 3(a), such proceeds are
not subject to this Escrow Agreement and at the instruction of the
Dealer Manager or the Company to the Escrow Agent
shall be transferred from the Escrow Account to the Company.



     (b) Within four business days of the close of business on the date that is one year following
commencement of the Offering (the “Expiration Date”), the Escrow Agent shall promptly
notify the Company if it is not in receipt of evidence of deposits for the purchase of Stock
providing for aggregate offering proceeds that equal or exceed the Required Capital (from all
sources but exclusive of any funds received from subscriptions for Stock from entities which the
Company has notified the Escrow Agent are affiliated with the Company). Within ten days following
the date of such notice, the Escrow Agent shall promptly return directly to each Subscriber the
collected funds deposited in the Escrow Account on behalf of such Subscriber, or shall return the
instrument of payment delivered, but not yet processed for collection prior to such time, in either
case, 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 paragraph 7
for each Subscriber at the address provided by the Dealer Manager or the Company to the Escrow
Agent, which the Escrow Agent shall be entitled to rely upon. However, the Escrow Agent shall not be required to remit any payments until the
Escrow Agent has collected funds represented by such payments.



     (c) If the Company rejects any subscription for which the Escrow Agent has collected funds,
the Escrow Agent shall, upon the written request of the Dealer
Manager or the Company, promptly issue a refund to the
rejected Subscriber at the address provided by the Dealer Manager or the Company, which the Escrow
Agent shall



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be entitled to rely upon. 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 return the funds in the amount of the Subscriber’s check to the rejected
Subscriber, at the address provided by the Dealer Manager or the Company or their respective
agents, which the Escrow Agent shall be entitled to rely upon, after such funds have been
collected.



     (d) At any time after funds are disbursed upon the Company’s acceptance of subscriptions
pursuant to subparagraph 3(a) above on the fifth business day following the first business day of
the next succeeding month following the date of such acceptance, the Escrow Agent shall promptly
provide directly to each Subscriber the amount of the interest payable to the Subscribers. However, the
Escrow Agent shall not be required to remit any payments until the Escrow Agent has collected funds
represented by such payments. The forgoing notwithstanding, interest, if any, earned on accepted
subscription proceeds will be payable to a Subscriber only if the Subscriber’s funds have been held
in escrow by the Escrow Agent for at least 35 days; interest, if any, earned on accepted
subscription proceeds of Subscribers’ funds held less than 35 days will be payable to the Company.



     In the event that the instrument of payment are returned for nonpayment, the Escrow Agent is
authorized to debit the Escrow Account, as applicable, in accordance with paragraph 2 hereof.


4. The
Escrow Agent shall provide the Dealer Manager and the Company with electronic access to view the account balance and account activity in the Escrow Account and shall provide
 the Company printed monthly statements (or more frequently as
reasonably requested by the Company) on the account balance in each of the Escrow Account, and the
activity in such accounts since the last report.



5. Prior to the disbursement of funds deposited in the Escrow Account in accordance with the
provisions of paragraph 3 hereof, the Escrow Agent shall invest all of the funds deposited as well
as earnings and interest derived therefrom in the Escrow Account in the “Short-Term Investments”
specified below at the written direction of the Company, unless the costs to the Company for the
making of such investment are reasonably expected to exceed the anticipated interest earnings from
such investment in which case the funds and interest thereon shall remain in the respective escrow
account until the balance in the respective escrow account reaches the minimum amount necessary for
the anticipated interest earnings from such investment to exceed the costs to the Company for the
making of such investment, as determined by the Company based upon applicable interest rates.




     “Short-Term Investments” include obligations of, or obligations guaranteed by, the United
States government or bank money-market accounts or certificates of deposit of national or state
banks that have deposits insured by the Federal Deposit Insurance Corporation (including
certificates of deposit of any bank acting as a depository or custodian for any such funds) which
mature on or before the Expiration Date, unless such instrument cannot be readily sold or otherwise
disposed of for cash by the Expiration Date without any dissipation of the offering proceeds
invested. Without limiting the generality of the foregoing, Exhibit A hereto sets forth
specific Short-Term Investments that shall be deemed permissible investments hereunder.


The following securities are not permissible investments:




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	 	(a)	 	money market funds;
	 
	 	(b)	 	corporate equity or debt securities;
	 
	 	(c)	 	repurchase agreements;
	 
	 	(d)	 	bankers’ acceptances;
	 
	 	(e)	 	commercial paper; and
	 
	 	(f)	 	municipal securities.




It is hereby expressly agreed and stipulated by the parties hereto that the Escrow Agent shall not
be required to exercise any discretion hereunder and shall have no investment or management
responsibility and, accordingly, shall have no duty to, or liability for its failure to, provide
investment recommendations or investment advice to the parties hereto. It is the intention of the
parties hereto that the Escrow Agent shall never be required to use, advance or risk its own funds
or otherwise incur financial liability in the performance of any of its duties or the exercise of
any of its rights and powers hereunder.



6. The Escrow Agent is entitled to rely upon written instructions received from the Company or the
Dealer Manager or their respective agents, unless the Escrow Agent has actual knowledge that such
instructions are not valid or genuine; provided that, if in the Escrow Agent’s opinion, any
instructions from the Company or the Dealer Manager or their respective agents are unclear, the
Escrow Agent may request clarification from the Company or the Dealer Manager or their respective
agents, as applicable, prior to taking any action, and if such instructions continue to be unclear,
the Escrow Agent may rely upon written instructions from the Company’s legal counsel in
distributing or continuing to hold any funds. However, the Escrow Agent shall not be required to
disburse any funds attributable to the instrument of payment that have not been processed for
collection, until such funds are collected and then shall disburse such funds in compliance with
the disbursement instructions from the Company or the Dealer Manager or their respective agents.



7. If the Offering terminates prior to receipt of the Required Capital, interest income earned on
subscription proceeds deposited in the Escrow Account (the “Escrow Income”), shall be
remitted to Subscribers to the address provided by the Dealer Manager or the Company to the Escrow
Agent, which the Escrow Agent shall be entitled to rely upon, or to the Company if the applicable
Subscriber’s funds have been held in escrow by the Escrow Agent for less than 35 days, in
accordance with paragraph 3 and without any deductions for escrow expenses. The Company shall
reimburse the Escrow Agent for all escrow expenses. If the Escrow Agent remits interest income
pursuant to this Agreement, the Escrow Agent shall be responsible for any necessary federal tax
reporting associated with such income; provided, however, that the Escrow Agent shall not be
responsible for any other tax reporting associated with this Agreement. The Escrow Agent shall
remit all such Escrow Income in accordance with paragraph 3. If the Company chooses to leave the
Escrow Account open after receiving the Required Capital then it shall make regular acceptances of
subscriptions therein, but no less frequently than monthly, and the Escrow Income from the last
such acceptance shall be calculated and remitted to the Subscribers or the Company, as applicable,
pursuant to the provisions of paragraph 3(d).



8. The Escrow Agent shall receive compensation from the Company as set forth in Exhibit B
attached hereto, which such Exhibit B is hereby incorporated by reference.



9. In performing any of its duties hereunder, the Escrow Agent shall not incur any liability to
anyone for any damages, losses, or expenses, except for willful misconduct, breach of trust, or
gross negligence. Accordingly, the Escrow Agent shall not incur any such liability with respect to
any action taken or omitted (a) in good faith upon advice of the Escrow Agent’s counsel given with
respect to any questions relating to the Escrow Agent duties and responsibilities under this
Agreement, or (b) in reliance upon any instrument, including any written instrument or instruction
provided for in this Agreement, not



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only as to its due execution and validity and effectiveness of its provisions but also as to the
truth and accuracy of information contained therein, which the Escrow Agent shall in good faith
believe to be genuine, to have been signed or presented by a proper person or persons and to
conform to the provisions of this Agreement.



10. The Company hereby agrees to indemnify and hold the Escrow Agent harmless against any and all
losses, claims, damages, liabilities, and expenses, including reasonable attorneys’ fees and
disbursements, that may be imposed on or incurred by the Escrow Agent in connection with acceptance
of appointment as the Escrow Agent hereunder, or the performance of the duties hereunder, including
any litigation arising from this Agreement or involving the subject matter hereof, except where
such losses, claims, damages, liabilities, and expenses result from willful misconduct, breach of
trust, or gross negligence.



11. In the event of a dispute between the parties hereto sufficient in the Escrow Agent’s
discretion to justify doing so, the Escrow Agent shall be entitled to tender into the registry or
custody of any court of competent jurisdiction all money or property in its hands under this
Agreement, together with such legal pleadings as deemed appropriate, and thereupon be discharged
from all further duties and liabilities under this Agreement. In the event of any uncertainty as to
the duties hereunder, the Escrow Agent may refuse to act under the provisions of this Agreement
pending order of a court of competent jurisdiction and shall have no liability to the Company or to
any other person as a result of such action. Any such legal action may be brought in such court,
as the Escrow Agent shall determine to have jurisdiction thereof. The filing of any such legal
proceedings shall not deprive the Escrow Agent of its compensation earned prior to such filing.



12. All communications and notices required or permitted by this Agreement shall be in writing and
shall be deemed to have been given when delivered personally or by messenger or by overnight
delivery service or when received via telecopy or other electronic transmission, in all cases
addressed to the person for whom it is intended at such person’s address set forth below or to such
other address as a party shall have designated by notice in writing to the other party in the
manner provided by this paragraph:





	 	(a)	 	if to the Company:
	 
	 	 	 	Grubb & Ellis Healthcare REIT II, Inc.

1551 N. Tustin Avenue, Suite 300

Santa Ana, California 92705

Attention: Jeffrey T. Hanson
	 
	 	(b)	 	if to the Dealer Manager:
	 
	 	 	 	Grubb & Ellis Securities, Inc.

4 Hutton Centre Drive, Suite 700

Santa Ana, CA 92707

Facsimile No.: (866) 508-4705

Attention: Kevin K. Hull, CEO and President
	 
	 	(c)	 	if to the Escrow Agent:
	 
	 	 	 	[TO BE PROVIDED]




Each party hereto may, from time to time, change the address to which notices to it are to be
delivered or mailed hereunder by notice in accordance herewith to the other parties.




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13. This Agreement shall be governed by the laws of the State of California as to both
interpretation and performance without regard to the conflict of laws rules thereof.



14. The provisions of this Agreement shall be binding upon the legal representatives, successors,
and assigns of the parties hereto.



15. The Company and the Dealer Manager hereby acknowledge that ___is serving as
Escrow Agent only for the limited purposes herein set forth, and hereby agree that they will not
represent or imply that, by serving as Escrow Agent hereunder or otherwise, have investigated the
desirability or advisability of investment in the Company or have approved, endorsed, or passed
upon the merits of the Stock or the Company, nor shall they use the name of the Escrow Agent in any
manner whatsoever in connection with the offer or sale of the Stock other than by acknowledgment
that is has agreed to serve as Escrow Agent for the limited purposes herein set forth.



16. This Agreement and any amendment hereto may be executed by the parties hereto in one or more
counterparts, each of which shall be deemed to be an original.



17. In the event that the Dealer Manager receives the instrument of payment after the Required
Capital has been received and the proceeds of the Escrow Account have been distributed to the
Company, the Escrow Agent is hereby authorized to deposit such instrument of payment within one (1)
business day to any deposit account as directed by the Company. The application of said funds into
a deposit account or to forward such funds directly to the Company, in either case directed by the
Company shall be a full acquittance to the Escrow Agent, who shall not be responsible for the
application of said funds thereafter.



18. The Escrow Agent shall be bound only by the terms of this Escrow Agreement and shall not be
bound by or incur any liability with respect to any other agreements or understanding between any
other parties, whether or not the Escrow Agent has knowledge of any such agreements or
understandings.



19. Indemnification provisions set forth herein shall survive the termination of this Agreement.



20. In the event that any part of this 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 Agreement shall remain in full force
and effect.



21. Unless otherwise provided in this Agreement, final termination of this Escrow Agreement shall
occur on the date that all funds held in the Escrow Account are distributed either (a) to the
Company or to Subscribers and the Company has informed the Escrow Agent in writing to close the
Escrow Account pursuant to paragraph 3 hereof or (b) to a successor escrow agent upon written
instructions from the Company.



22. Neither the Escrow Agent, nor its agents, shall have responsibility for accepting, rejecting,
or approving subscriptions. The Escrow Agent, or its agent, shall complete an OFAC search, in
compliance with its policy and procedures, of each subscription check and shall inform the Company
if a subscription check fails the OFAC search. The Dealer Manager shall provide a copy of each
subscription check in order that the Escrow Agent, or its agent, may perform such OFAC search.



23. This Agreement shall not be modified, revoked, released, or terminated unless reduced to
writing and signed by all parties hereto, subject to the following paragraph.




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If, at any time, any attempt is made to modify this Agreement in a manner that would increase the
duties and responsibilities of the Escrow Agent or to modify this Agreement in any manner which the
Escrow Agent shall deem undesirable, or at any other time, the Escrow Agent may resign by providing
written notice to the Company and until (a) the acceptance by a successor escrow agent as shall be
appointed by the Company; or (b) sixty (60) days after such written notice has been given,
whichever occurs sooner, the Escrow Agent’s only remaining obligation shall be to perform its
duties hereunder in accordance with the terms of the Agreement.



24. The Escrow Agent may resign at any time from its obligations under this Escrow Agreement by
providing written notice to the Company. Such resignation shall be effective on the date specified
in such notice, which shall be not less than thirty (30) days after such written notice has been
given. The Escrow Agent shall have no responsibility for the appointment of a successor escrow
agent.



25. The Escrow Agent may be removed for cause by the Company by written notice to the Escrow Agent
effective on the date specified in such written notice. The removal of the Escrow Agent shall not
deprive the Escrow Agent of its compensation earned prior to such removal.



26. The Company shall provide to Escrow Agent any documentation and information reasonably
requested by the Escrow Agent for it to comply with the USA Patriot Act of 2001, as amended from
time to time.




[Signature page follows]




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Agreed to as of the            day of                          , 2009.




	 	 	 	 	 	 	 
	 	 	GRUBB & ELLIS HEALTHCARE REIT II, INC.,	 	 
	 	 	a Maryland corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
	 	 
	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS SECURITIES, INC.,	 	 
	 	 	a California corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 	 	 	 	 	 	 






The terms and conditions contained above are hereby accepted and agreed to by:



                                         as Escrow Agent




	 	 	 	 	 
	By:

	 	 
	 	 
	 	 	 	 	 
	Name:
	 	 	 	 
	 	 	 	 	 
	Title:
	 	 	 	 
	 	 	 	 	 







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EXHIBIT A




PERMISSIBLE ESCROW INVESTMENTS





	(i)	 	Bank accounts;
	 
	(ii)	 	Bank money-market accounts;
	 
	(iii)	 	Short time certificates of deposit issued by a bank; and
	 
	(iv)	 	Short-term securities issued or guaranteed by the U.S. government




 









 











EXHIBIT B




ESCROW FEES AND EXPENSES