Exhibit 10.2


 


FORM OF ESCROW AGREEMENT


 


THIS ESCROW AGREEMENT (the “Agreement”) is
made and entered into as of the      day of        ,
2010 (“Effective Date”), by and among Clarion Property Trust Inc. (the “Company”), ING Investments Distributor, LLC (the “Dealer
Manager”), and BNY Mellon
Investment Servicing (US) Inc., as escrow agent (the “Escrow Agent”
or “BNY”).


 


RECITALS


 


WHEREAS, the Company proposes to offer for sale (the
“Offering”), on a continuing basis, up to $2,250,000,000 in shares of
the Company’s common stock, par value $0.01 per share, some of which will be
designated as Class A and some of which will be designated as Class W
(collectively the “Shares”), pursuant to the terms of the prospectus
(the “Prospectus”) contained in the Company’s Registration Statement on Form S-11,
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, and dated February 8, 2010, as it may be amended from
time to time;


 


WHEREAS, the Dealer Manager, a registered
broker-dealer and member of the Financial Industry Regulatory Authority (“FINRA”),
has agreed to serve as the dealer manager for the Offering and will offer the
Shares through other registered broker-dealers that are members of FINRA (the “Dealers”);


 


WHEREAS, it is anticipated that investors submitting
orders for the purchase of Shares (“Investors”) will provide the Dealer
Manager with payments for such Shares (“Share Payments”), which purchase
orders will be contingent upon (i) their respective acceptances by the
Company; (ii) the Company’s acceptance of purchases aggregating at least
$50,000,000 from investors (the “Minimum Offering Amount”) before the
date on which the minimum offering period expires (the “Minimum Offering
Termination Date”), which is 180 days following the first date on which the
Shares are offered for sale to the public (the “Initial Offering Date”);
and (iii) a determination by the Company’s board of directors that it is
in the best interest of the stockholders of the Company to cause the proceeds to
be released to the Company so that it may commence operations before the
Minimum Offering Termination Date;


 


WHEREAS, the Company and the Dealer Manager desire
to deposit Share Payments with the Escrow Agent, to be held for the benefit of
Purchasers (as defined herein) and the Company until such time as purchases for
the Minimum Offering Amount have been deposited into escrow or otherwise in
accordance with the terms of this Agreement;


 


WHEREAS, the Escrow Agent has agreed to receive
and hold in escrow all Share Payments in accordance with this Agreement; and


 


WHEREAS, the Escrow Agent is willing to accept
appointment as the escrow agent for only the expressed duties, terms and
conditions outlined herein.


 


NOW, THEREFORE, in consideration of the
foregoing and the agreements set forth herein, the parties hereto, intending to
be legally bound, hereby agree as follows:


 


1.                                      Appointment of Escrow Agent.  The Company and the Dealer
Manager hereby appoint the Escrow Agent to serve as escrow agent, and the
Escrow Agent hereby accepts such appointment, each in accordance with the terms
of this Agreement. The Company and the Dealer Manager hereby acknowledge that
the status of the Escrow Agent is that of agent only for the limited purposes
set forth herein, and hereby agree that they will not represent (i) that
the Escrow Agent has investigated the desirability or advisability of
investment in the Shares or has approved, endorsed or passed upon the merits of
the investment therein, or (ii) that the Escrow Agent serves in any other
capacity, except as 


 

















 


transfer
agent in the event the Company and BNY enter into an agreement providing for
BNY to perform transfer agency and related shareholder services to the Company.
The Company and the Dealer Manager further agree that the name of the Escrow
Agent shall not be used in any manner in connection with the offer or sale of
the Shares other than to state that the Escrow Agent has agreed to serve as
escrow agent for the limited purposes set forth herein.  The Escrow Agreement acknowledges and agrees
that the Escrow Account (defined below) shall at all times be an account in a
commercial banking institution as described in Section 7 below.


 


2.                                      Proceeds.


 


(a)                                  Until such time
as the Escrow Agent receives the Disbursement Instruction (as defined below):


 


(i)                                     Escrow Agent shall accept
for deposit into the Consolidated DDA Account (as defined in Schedule F), on
behalf of a particular Investor, “Conforming Instruments”, which are
hereby defined to be personal checks of that Investor (i) payable to the
order of “BNY Mellon Investment Servicing (US) Inc., as escrow agent for
Clarion Properties Trust Inc.,” or a recognizable contraction or abbreviation
thereof reasonably acceptable to the Escrow Agent, (ii) which have been
delivered to Escrow Agent by the Company’s transfer agent (the “Transfer
Agent”) (iii) with instructions of the Transfer Agent to deposit such
personal check into the Consolidated DDA Account; and


 


(ii)                              Escrow Agent shall accept
for deposit into the Consolidated DDA Account “Conforming Wire Payments”,
which are hereby defined to be funds sent by wire transfer (i) with
respect to which the Escrow Agent has been notified in advance by the Transfer
Agent to accept, and (ii) that have been transmitted pursuant to the wire
instructions set forth on Exhibit C.


 


(b)                                 Escrow Agent
shall not be obligated to accept for deposit into the Consolidated DDA Account
any Share Payment which is not a Conforming Instrument or a Conforming Wire
Payment.  In the event Escrow Agent
receives in connection with the Offering personal checks other than a
Conforming Instrument or other negotiable instruments or wire transfers other
than a Conforming Wire Payment, Escrow Agent may take any appropriate
commercially reasonable action, including (i) delivering any instrument
which is not a Conforming Instrument to the Transfer Agent, and (ii) refusing
acceptance of or returning to the sending institution any wire transfer which
is not a Conforming Wire Payment.


 


(c)                                  Following its
receipt of the Disbursement Instruction and on and after the Minimum Offering
Termination Date, and notwithstanding any other provision of this Agreement:
Escrow Agent will have no obligation to accept any Share Payment for deposit
into the Consolidated DDA Account or for any other reason and the Escrow Agent’s
only obligation with respect to any Share Payment received after he
Disbursement Instruction has been received will be to notify the Transfer Agent
of such and (i) deliver it to the Transfer Agent in the case of personal
checks or other negotiable instruments, and (ii) refuse acceptance or
return it to the sending institution in the case of wire transfers.


 


(d)                             By 5:00 PM
(Eastern Time) of the business day following the business day the Escrow Agent
receives a Conforming Instrument or Conforming Wire Payment (collectively, “Conforming
Payments”) the Escrow Agent shall deposit the Conforming Payment into the
Consolidated DDA Account.  Investors with
respect to whom the Escrow Agent has deposited one or more Conforming Payments
into the Consolidated DDA Account are referred to herein as “Purchasers”.


 


(e)                                  By 5:00 PM
(Eastern Time) of the business day following the business day the Escrow Agent
has deposited a particular Conforming Payment into the Consolidated DDA Account
on behalf of a person who is eligible under Federal banking law and Regulation
D (“Regulation D”) of the Board of Governors 


 


2

















 


of
the Federal Reserve System to hold a NOW account, the Escrow Agent shall
transfer amounts corresponding to such Conforming Payment into the Escrow
(Eligible) Account.  By 5:00 PM (Eastern
Time) of the business day following the business day the Escrow Agent has
deposited a particular Conforming Payment into the Consolidated DDA Account on
behalf of a person who is not eligible under Federal banking laws and
Regulation D to hold a NOW account, the Escrow Agent shall transfer amounts
corresponding to such Conforming Payment into the Escrow (Non-Eligible)
Account.


 


(f)                                    All Conforming
Payments deposited into the Consolidated DDA Account and transferred to the
Escrow (Non-Eligible) Account or the Escrow (Eligible) Account (all three
accounts being collectively the “Escrow Account”) shall be considered
the property of the respective Purchasers and shall be held for the benefit of
such Purchasers and shall not be (i) commingled with the monies or become
an asset of the Company, or (ii) subject to any liens or charges by the
Company or the Escrow Agent, or judgments or creditors’ claims against the
Company, until released to the Company pursuant to the Disbursement
Instructions.


 


(g)                                 In the event
that any Payment Instrument or Wire Transfer deposited in the Escrow Account is
returned or reversed as uncollectible (“Uncollectible Amounts”) after
the funds represented thereby have been released by the Escrow Agent pursuant
to this Agreement, the Dealer Manager or the Company shall, upon the request of
the Escrow Agent, promptly reimburse the Escrow Agent the full amount of the
Payment Instrument or Wire Transfer and any and all costs incurred in
connection with the uncollectability of funds, and the Escrow Agent shall
deliver any such uncollectible Payment Instrument to the party from whom the
Escrow Agent has requested reimbursement pursuant to this provision. Company
and Dealer Manager shall be jointly and severally liable to Escrow Agent for
the foregoing payment obligation.


 


(h)                                 If the Escrow
Agent receives a request for a full or partial refund from any Purchaser which
the Escrow Agent determines to be in good order in accordance with applicable
industry standards and legal requirements (respectively, a “Full Refund
Request” and a “Partial Refund Request”, and collectively, “Refund
Requests”) prior to receiving the Disbursement Instruction, the Escrow
Agent shall notify the Dealer Manager of the Refund Request and return to the
Purchaser:


 


(i)                                     if a Partial Refund Request,
the amount of the requested refund, without deduction for escrow expenses, or


 


(ii)                                  if a Full Refund Request: (A) the
aggregate amount of all Conforming Payments made by the Purchaser, together
with all Allocable Interest (as defined in Section 4(c) below), or (B) at
the option of the Escrow Agent, if all Conforming Payments were made with
Payment Instruments and the relevant Payment Instruments have not been tendered
for deposit into the Escrow Account, the relevant Payment Instruments.


 


The
Escrow Agent shall have no liability with respect to a Refund Request it
receives after it receives the Disbursement Instruction and its sole duty with
respect to such a Refund Request shall be to deliver it to the Transfer Agent.


 


3                                         [Reserved]


 


4.                                      Disbursement of Proceeds.


 


(a)                                  On or about
5:00 PM (Eastern Time) of the Minimum Offering Termination Date (or, if not a
business day, the next business day), and prior thereto on a weekly basis or as
otherwise reasonably requested by Company, the Escrow Agent shall notify the
Company of the aggregate amount of 


 


3

















 


Conforming
Payments the Escrow Agent has received, adjusted for any Refund Requests,
Uncollected Amounts and Rejection Notifications (as defined in Section 4(e) below)
(the “Collected Funds”) as of such time and date or as of the time of
the request, as applicable. The notification given by the Escrow Agent pursuant
to the foregoing sentence with respect the Minimum Offering Termination Date is
referred to herein as the “Termination Date Collected Funds Notice”.  If as of 5:00 PM (Eastern Time) on any
business day prior to the Minimum Offering Termination Date the Collected Funds
are equal to or greater than the Minimum Offering Amount, the Escrow Agent
shall promptly deliver notice to the Company and the Dealer Manager stating the
amount of the Collected Funds (the “Minimum Offering Amount Notice”).


 


(b)                                 If after
delivering a Minimum Offering Amount Notice or if after delivering a
Termination Date Collected Funds Notice indicating Collected Funds equal to or
exceeding the Minimum Offering Amount, the Escrow Agent receives a Written
Instruction from the Company citing this Section 4(b) and instructing
the Escrow Agent to disburse the entire balance in the Escrow Account to the
Company or its designee (the “Disbursement Instruction”), the Escrow
Agent shall, after it has sufficient opportunity to deposit all Conforming
Payments into the Escrow Account in accordance with Sections 2(d) and 2(e) and
after the removal of any funds availability restrictions imposed by the
Depository Bank (as defined in Schedule F) and set forth on Exhibit E,
deliver as soon as practicable and in no event later than two (2) business
days following receipt of the Disbursement Instruction the entire balance in
the Escrow Account to the Company or to its designee in the manner set forth in
the Disbursement Instruction along with a list that includes the name of each
Purchaser, the number and Class of Shares purchased by such Purchaser, the
aggregate Share Payments remitted by such Purchaser, and such Purchaser’s
Allocable Interest (defined below).


 


(c)                                  Purchasers
shall be entitled to a pro rata share of the aggregate interest earned by
balances in the Escrow Account (“Interest”), with such pro rata share
determined by reference to the amount of Conforming Payments made by each
Purchaser and deposited in the Escrow Account and the period of time each such
amount was held in, as appropriate, the Escrow (Eligible) Account or Escrow
(Non-Eligible) Account (“Allocable Interest”).  In the absence of commercially reasonable
Written Instructions from the Company directing the Escrow Agent with respect
to the methodology for calculating the Allocable Interest of each Purchaser,
the Escrow Agent may employ any commercially reasonable methodology for
calculating the pro rata share of Allocable Interest of each Purchaser.


 


(d)                                 If the
Termination Date Collected Funds Notice indicates an amount of Collected Funds
that does not equal or exceed the Minimum Offering Amount, the Escrow Agent
shall within a reasonable time following the Minimum Offering Termination Date,
but in no event more than fifteen (15) days after the Minimum Offering
Termination Date, send to each Purchaser by first-class mail a covering letter
furnished by the Company or Dealer Manager and (i) a check in an aggregate
amount equal to all Conforming Payments paid by such Purchaser (and not
refunded) together with any Allocable Interest, or (ii) at the option of
the Escrow Agent, if all Conforming Payments of a Purchaser were made by
Conforming Instruments and the relevant Conforming Instruments have not been
tendered for deposit into the Escrow Account, then the relevant Conforming
Instruments.  In addition, the Escrow
Agent shall deliver to the Company a list that includes the name of each
Purchaser, the number and Class of Shares purchased by such Purchaser, the
aggregate Share Payments remitted by such Purchaser, and such Purchaser’s
Allocable Interest.


 


(e)                                  In the event
the Escrow Agent receives written notification from the Company or Dealer
Manager that a Purchaser’s purchase order for Shares has been rejected (“Rejection
Notification”) prior to its receipt of the Disbursement Instruction, the
Escrow Agent shall no later than the fifth (5th) business day following receipt of the
Rejection Notification send to the Purchaser by first-class mail a covering
letter furnished by the Company or Dealer Manager and (i) a check in an
aggregate amount equal to all 


 


4

















 


Conforming
Payments paid by such Purchaser (and not refunded) together with any Allocable
Interest, or (ii) at the option of the Escrow Agent, if all Conforming
Payments of the Purchaser were made by Conforming Instruments and the relevant
Conforming Instruments have not been deposited into the Escrow Account, then
the relevant Conforming Instruments. The Escrow Agent shall have no duty or
liability with respect to a Rejection Notification it receives after it
receives the Disbursement Instruction.


 


5.                                      Duties
and Liabilities of the Escrow Agent.


 


(a)                                  The duties,
responsibilities and obligations of the Escrow Agent are purely ministerial in
nature and shall be limited to those expressly set forth herein and no duties,
responsibilities, covenants or obligations, fiduciary or otherwise, shall be
inferred or implied, against the Escrow Agent by reason of this Agreement. The
Escrow Agent shall not be subject to, nor required to comply with, any other
agreement between or among the Company or to which the Company is a party, even
though reference thereto may be made herein, or to comply with any direction or
instruction (other than those expressly contained herein or Written
Instructions delivered pursuant to this Agreement and in accordance with
applicable requirements) from the Company or the Dealer Manager. The Escrow
Agent shall be under no duty to determine whether the Company or the Dealer
Manager is complying with requirements of this Agreement or the Prospectus in
tendering to the Escrow Agent the Share Payments or in connection with any
other matter or action or inaction of any nature.


 


(b)                                 The Escrow
Agent shall have the right to perform any of its duties hereunder through its
agents, attorneys, custodians or nominees; provided that the Escrow Agent shall
at all times have ultimate responsibility for performing its obligations under
this Agreement.


 


(c)                                  The Escrow
Agent may conclusively rely upon and shall be protected in acting upon any
statement, certificate, notice, request, consent, order or other document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties.


 


(d)                                 The Escrow
Agent shall not be under any duty or obligation to inquire into and shall not
be liable for the validity, authority, truthfulness, accuracy, sufficiency,
correctness, genuineness, or lack of any of the foregoing, of any asset
deposited with it or of any statement, certificate, notice, request,
instruction, direction, document, instrument, consent, order or information
which the Escrow Agent reasonably believes to be genuine.


 


(e)                                  The Escrow
Agent shall be under no obligation to institute or defend any action, suit or
proceeding in connection with this Agreement unless first indemnified to its
satisfaction. The Escrow Agent may consult and hire counsel in respect of any
question arising under this 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 have the right to seek an adjudication in a court of
competent jurisdiction as to the respective rights of the parties hereto and
shall not be held liable by any party hereto for any delay or the consequences
of any delay occasioned by such resort to court.  The expenses associated with such retention
of counsel shall be borne by the Company and Dealer Manager, jointly and
severally.


 


(f)                                    In the event
the Escrow Agent determines that it requires instructions from the Company or
Dealer Manager in order for it to perform a service or obligation hereunder in
circumstances where the manner of performing the service or obligation is not
expressly provided for herein or in the standard operating procedures of the
Escrow Agent, the Escrow Agent may require the Company or Dealer Manager, as
the case may be, to furnish commercially reasonable Written Instructions in a
form or format reasonably acceptable to the Escrow Agent in its sole discretion
(“Conforming Written Instructions”) and may refrain from acting (or omitting an
action) in connection with such a service or obligation until 


 


5

















 


receiving
such Conforming Written Instruction. 
Escrow Agent’s obligation to act on Written Instructions is limited to
acting on Conforming Written Instructions. The Escrow Agent shall be entitled
to assume that any Written Instruction received hereunder is not in any way
inconsistent with the provisions of the Company’s charter or other governing
instruments or this Agreement or of any vote, resolution or proceeding of the
Company’s or Dealer Manager’s Board of Directors, unless and until the Escrow
Agent receives Written Instructions to the contrary.


 


(g)                                 Subject to the
terms of this Section 5, the Escrow Agent shall be liable to the Company
and Dealer Manager (or any person or entity claiming through either) only to
the extent the Loss (defined below) to the Company or Dealer Manager is finally
adjudicated to have directly resulted from or been caused by the Escrow Agent’s
own intentional misconduct, bad faith or gross negligence with respect to its
duties under this Agreement.


 


(h)                                 Except for
Losses related to the Escrow Agent’s fraud or willful misconduct, the Escrow
Agent’s aggregate cumulative liability to the Company and the Dealer Manager,
considered collectively, and any person or entity claiming through the Company
or Dealer Manager for any loss, claim, suit, controversy, breach or damage of any
nature whatsoever (including but not limited to those arising out of or related
to this Agreement) and regardless of the form of action or legal theory (“Loss”)
shall not exceed the lesser of (i) the fees received by the Escrow Agent for
services provided hereunder during the period preceding the date of the last
such Loss; or (ii) $250,000.


 


(i)                                     Notwithstanding
any other provision of the Agreement, neither party, nor its affiliates nor any
of its or their directors, officers, employees, agents or subcontractors shall
be liable under any theory of tort, contract, strict liability or other legal
or equitable theory for lost profits, for exemplary, punitive, special,
incidental, indirect or consequential damages, or for any other damages which
are not direct damages regardless of whether such damages were or could have
been foreseeable to any extent and regardless of whether any entity has been
advised of the possibility of such damages, all and each of which damages is
hereby excluded by agreement of the parties. 
For purposes of clarification: no other provision of this Agreement
shall be interpreted to condition, limit, modify, nullify or otherwise prevail
in whole or in part over this Section 5(i).  Notwithstanding the foregoing provisions of
this Section 5(i), this Section 5(i) shall not in any manner
restrict, limit or condition BNY’s ability to receive payment of fees, charges
and reimbursable expenses owed hereunder to BNY due to services rendered
hereunder by BNY or BNY’s ability to claim lost fees as damages in any claim
for wrongful termination.


 


(j)                                     Notwithstanding
any other provision, and for all purposes, of this Agreement: Neither party
shall be liable for any Loss (including Loss caused by delays, failure, errors,
interruption or loss of data) or breach hereunder occurring directly or
indirectly by reason of any event or circumstance, whether foreseeable or
unforeseeable, which despite the taking of commercially reasonable measures is
beyond its reasonable control (“Event Beyond Reasonable Control”).  Upon the occurrence of an Event Beyond
Reasonable Control, the affected party shall be excused from any
non-performance caused by the Event Beyond Reasonable Control for so long as (i) the
Event Beyond Reasonable Control or circumstances caused by it prevail and such
party continues to use commercially reasonable efforts to attempt to perform
the obligation so impacted and (ii) the affected party gives prompt notice
to the other parties of the occurrence of such Event Beyond Reasonable Control.


 


(k)                                  No party may
assert a cause of action against the Escrow Agent or any of its affiliates that
allegedly occurred more than eighteen (18) months immediately prior to the
filing of the suit (or, if applicable, commencement of arbitration proceedings)
alleging such cause of action.


 


(l)                                     The Company
will provide such information and documentation as the Escrow Agent may
reasonably request in connection with the services provided by the Escrow Agent
under this Agreement.


 


6

















 


(m)                               Except as
expressly provided in this Agreement, the Escrow Agent hereby disclaims all
representations and warranties, express or implied, made to the Company and the
Dealer Manager or any other person, including, without limitation, any warranties
regarding quality, suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing, custom or usage of
trade), of any services or goods provided incidental to services provided under
this Agreement.  The Escrow Agent
disclaims any warranty of title or non-infringement except as otherwise set
forth in this Agreement.


 


(n)                                 Notwithstanding
any other provision in this Agreement, the Company and the Dealer Manager each
agrees not to amend or adopt any governing documents, amend or adopt any
policies or amend the terms of the Offering or Prospectus which would
materially affect the obligations or responsibilities of the Escrow Agent
hereunder without the prior written approval of the Escrow Agent, which approval
shall not be unreasonably withheld or delayed.


 


(o)                                 The parties
agree that the Escrow Agent has no role in the preparation of the documents
used in the Offering (the “Offering Documents”), has not reviewed any
such documents and makes no representations or warranties with respect to the
information contained therein or omitted therefrom. The Escrow Agent agrees
that it may be named in the Prospectus and other Offering Documents, to the
extent necessary to describe this Agreement and the duties of the Escrow Agent
herein, and for no other purpose. 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 Shares. The Escrow Agent shall have no duty
or obligation to monitor the application and use of Collected Funds once
transferred to the Company, that being the sole obligation and responsibility
of the Company.


 


(p)                                 The quoted
terms below have the indicated meanings:


 


(i)                                     “Authorized Person”
means those officers of the Company or Dealer Manager, as the case may be, set
forth on Exhibit D and any other person set forth on a revised Exhibit D
signed by an Authorized Person and delivered to the Escrow Agent by the Company
or the Dealer Manager, as the case may be, and each such person is duly
authorized by, respectively, the Company or the Dealer Manager to give Written
Instructions on behalf of, respectively, the Company or the Dealer Manager.  An Authorized Person’s scope of authority may
be limited by setting forth such limitation in a written document signed by an
Authorized Person.


 


(ii)                                  “BNY Authorized Person”
means those employees of the Escrow Agent set forth on Exhibit D
and any other person set forth on a revised Exhibit D signed by a
BNY Authorized Person and delivered to the Company and Dealer Manager by the
Escrow Agent, and each such person is duly authorized by the Escrow Agent to
give Written Instructions on behalf of the Escrow Agent.  A BNY Authorized Person’s scope of authority
may be limited by setting forth such limitation in a written document signed by
a BNY Authorized Person.


 


(ii)                                  “Written Instructions”
means:


 


(A)                              written instructions signed
by an Authorized Person (or a person reasonably believed by the Escrow Agent to
be an Authorized Person), addressed to and received by the Escrow Agent, and
delivered by hand, private messenger with signed acknowledgment of receipt,
U.S. Postal Service with signed acknowledgment of receipt, or overnight
national courier service with signed acknowledgment of receipt; and


 


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(B)                                email sent by an Authorized
Person (or a person reasonably believed by the Escrow Agent to be an Authorized
Person) to the email address of a BNY Authorized Person, with a return email
from the BNY Authorized Person acknowledging receipt.


 


6.                                      Escrow Agent Fee. The Escrow
Agent shall be entitled to compensation for its services, as stated in the fee
schedule attached hereto as Exhibit B, and reimbursement of the
reasonable out-of-pocket expenses incurred in connection with such services,
which compensation and reimbursement shall be paid by the Company. The
foregoing obligation of the Company shall become an obligation of the Dealer
Manager with respect to fees and reimbursable expenses that the Company does
not pay within 30 days of being invoiced by BNY. Subject to the provisions of
Section 10 hereof, the fee agreed upon for the services rendered hereunder
in Exhibit B is intended as full compensation for the Escrow Agent’s
services as contemplated by this Agreement. Any fee, reimbursement for costs
and expenses, indemnification for damages incurred by the Escrow Agent or other
monies of any sort may be paid out of or chargeable to the income of assets of
the Escrow Account if such is not paid by the Company or Dealer manager within
thirty (30) days of demand by the Escrow Agent, but any partial recovery
by the Escrow Agent pursuant to the foregoing sentence shall not be construed
as an accord and satisfaction of all amounts that may be owed.


 


7.                                      Investment of Share Payments.


 


(a)                                  The accounts
constituting the Escrow Account shall be titled in a manner as the parties
hereto may agree.


 


(b)                                 All interest
earned by funds in the Escrow Account shall be retained in the Escrow Account
until disbursed in accordance with Section 4 or Section 2(f).


 


(c)                                  The Escrow
Agent shall have no responsibility or liability for any loss which may result
from the deposit of Conforming Payments into and holding of the proceeds of the
Conforming Payments and interest in the Escrow Account unless such loss is the
result of willful misconduct or gross negligence of the Escrow Agent.


 


(d)                                 The parties
recognize and agree that the Escrow Agent will not provide supervision,
recommendations or advice relating to either the investment of moneys held in
the Escrow Account.


 


(e)                                  The Escrow
Agent shall send statements to the Company on a monthly basis reflecting
activity in the Escrow Account for the preceding month, provided that no such
statement need be rendered for the Escrow Account if no activity occurred for
such month.


 


8.                                      Tax Reporting.


 


(a)                                  As of the end
of each calendar year and to the extent required under the provisions of the
Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder (the “Code”), whether or not such income was disbursed during
a such calendar year, the Escrow Agent shall report to the Internal Revenue
Service (the “IRS”) all income earned from the investment of any sum
held in the Escrow Account to the person or entity receiving the interest or
other taxable income.


 


(b)                                 The Company
shall, upon request of the Escrow Agent after the date hereof, 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 parties hereto understand that if such tax
reporting documentation is not so certified to the Escrow Agent, the Escrow
Agent may be required by the Code to withhold a portion of any interest or
other income earned on the Collected Funds.


 


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(c)                                  To the extent
that the Escrow Agent becomes liable for the payment of any taxes in respect of
income derived from the investment of funds held or payments made hereunder,
the Escrow Agent shall satisfy such liability to the extent possible from the
funds in the Escrow Account.


 


9.                                      Notices. 
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given
(i) on the date of service if served personally on the party to whom
notice is to be given, (ii) on the day of transmission if sent by
facsimile transmission to the facsimile number given below, and written
confirmation of receipt is obtained promptly after completion of transmission,
(iii) on the day after delivery to the United Parcel Service or similar
overnight courier or the Express Mail service maintained by the United States
Postal Service and sent via overnight delivery or (iv) 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 Company:


 


Clarion Property Trust Inc.


230 Park Avenue, New York, NY 10169


Attention:
Michael O’Connor and Amy Boyle


Fax: (212) 883-2700


 


With
a copy (which shall not constitute notice) to:


 


Alston &
Bird LLP


1201
West Peachtree Street


Atlanta,
Georgia 30309


Attention:  Rosemarie Thurston


Fax:  (404) 881-7777


 


If
to the Dealer Manager:


 


ING Investments Distributor, LLC


7337 E. Doubletree Ranch Road, Scottsdale, AR 85258


Attention: Senior Vice President of Operations


Fax:
[                                  ]


 


If
to the Escrow Agent:


 


BNY Mellon Investment Servicing (US) Inc.


[                                          ]


Attention:
[                         ]


Fax:
[                                  ]


 


Wires
to the Escrow Agent should be directed to the following:


 


BNY Mellon Investment Servicing (US) Inc.


[                                          ]


Attention: [                         ]


Fax: [                                  ]


 


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Any
party hereto may change its address for purposes of this paragraph by giving
the other party written notice of the new address in the manner set forth
above.


 


10.          Indemnification
of the Escrow Agent. The Company and
the Dealer Manager each hereby agree to jointly and severally indemnify and
defend the Escrow Agent and its officers, directors, employees and agents, and
hold them harmless, from and against any and all claims, suits, actions,
proceedings, damages, losses, liabilities, obligations, costs and reasonable
expenses (including attorneys’ fees and court costs, travel costs, reasonable
settlement costs and other reasonable out-of-pocket costs related to dispute
resolution) which the Escrow Agent may suffer or incur directly or indirectly
from or which relate in any way to (i) this Agreement, (ii) any
transaction to which this Agreement relates, (iii) for avoidance of doubt:
any actions taken or not taken hereunder pursuant to Sections 11, 19 or 21
(except, with respect to Section 21, a removal attributable to a material
breach of the Agreement by the Escrow Agent) or the second to last sentence of Section 20
hereunder, (iv) any action taken or omitted to be taken by the Escrow
Agent in connection with the provision of services to the Company or pursuant
to Written Instructions, and, (v) for the avoidance of doubt: any
liability for taxes or any additions for late payment, interest, penalties or
other assessments or expenses that may be charged to or incurred by the Escrow
Agent under applicable tax laws or tax regulations attributable to the
investment of funds held in escrow by the Escrow Agent or disbursements made
hereunder; except to the extent any of the foregoing in clauses (i) through
(v) is finally adjudicated to have directly resulted from or been caused
by the Escrow Agent’s own intentional misconduct, bad faith or gross negligence
with respect to its duties under this Agreement. The provisions of this
Section 10 shall survive the termination of this Agreement and the
resignation or removal of the Escrow Agent.


 


11.          Attachment
of Escrow Property; Compliance with Legal Orders. In the event that any property held under escrow
hereunder (“Escrow Property”) shall be attached, garnished or levied
upon by any court order, or the delivery thereof shall be stayed or enjoined by
an order of a court, or any order, judgment or decree shall be made or entered
by any court order affecting the Escrow Property, the Escrow Agent is hereby
expressly authorized, in its sole discretion, to respond as it deems appropriate
or to comply with all writs, orders or decrees so entered or issued, or which
it is advised by legal counsel of its own choosing is binding upon it, whether
with or without jurisdiction. In the event that the Escrow Agent obeys or
complies with any such writ, order or decree, it shall not be liable to the
Company or the Dealer Manager or to any other person, firm or corporation,
should, by reason of such compliance notwithstanding, such writ, order or
decree be subsequently reversed, modified, annulled, set aside or vacated.


 


12.          Successors
and Assigns.


 


(a)           Except as otherwise provided
in this Agreement, no party hereto shall assign this 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 null and void and of no force and effect. This Agreement shall inure
to the benefit of and shall be binding upon the heirs, executors,
administrators, successors and permitted assigns of the parties hereto,


 


(b)           Notwithstanding the above,
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 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 of any further act.


 


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(c)           For purposes of
clarification: a change in control of Escrow Agent shall not constitute an
assignment under this Section 12.


 


13.          Term.  This Agreement shall
terminate thirty (30) days after the day BNY receives written notice of
termination from the Company and the Dealer Manager. In the event the Escrow
Agent disburses all funds in the Escrow Account in accordance with
Section 4 of this Agreement, this Agreement shall terminate upon the
conclusion of all actions and activities of the Escrow Agent in connection with
such disbursement and the Escrow Agent shall thereafter be relieved of all
responsibilities, including those relating to the Escrow Account, except claims
which are occasioned by its gross negligence or willful misconduct.


 


14.          Governing
Law. This Agreement shall be
construed, performed, and enforced in accordance with, and governed by, the
laws of the State of New York, without giving effect to the principles of
conflicts of laws thereof. 


 


15.          Severability. 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.


 


16.          Amendments;
Waivers. This 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
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 Agreement.


 


17.          Entire
Agreement; Counterparts. This Agreement
contains the entire understanding among the parties hereto with respect to the
subject matter of this Agreement and supersedes and replaces all prior and
contemporaneous agreements and understandings, oral or written, with regard to
the subject matter of this Agreement. This Agreement, and any amendments
hereto, may be executed by the parties hereto in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.


 


18.          Section Headings. The section headings in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.


 


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19.          Disputes.


 


(a)           In the event of a
disagreement among any of the parties to this Agreement, or among them or any
other person resulting in adverse claims and demands being made in connection
with or from any property in the Escrow Account, the Escrow Agent shall be
entitled to refuse to comply with any such claims or demands as long as such
disagreement may continue, and in so refusing, shall make no delivery or other
disposition of any property then held by it in the Escrow Account under this
Agreement, and in so doing, the Escrow Agent shall be entitled to continue to
refrain from acting until (i) the right of adverse claimants shall have
been finally settled by binding arbitration or finally adjudicated in a court
assuming and having jurisdiction of the property involved herein or affected
hereby or (ii) all differences shall have been adjusted by agreement and
the Escrow Agent shall have been notified in writing of such agreement signed
by the parties hereto.


 


(b)           In the event of such a
dispute, the Escrow Agent shall be entitled, in its discretion and judgment, to
tender into the registry or custody of any court of competent jurisdiction
subject to the limitations set forth in Section 14 of this Agreement, all
money or property in its hands under this Agreement, together with such legal
pleadings as the Escrow Agent deems appropriate, and thereupon be discharged
from all further duties and liabilities under this Agreement. In the event of
any uncertainty as to its duties hereunder, the Escrow Agent may refuse to act
under the provisions of this Agreement pending order of a court of competent
jurisdiction and the Escrow Agent shall have no liability to the Company, the
Dealer Manager, any Dealer or to any other person as a result of such action.
The filing of any such legal proceedings shall not deprive the Escrow Agent of
its compensation earned under this Agreement.


 


20.          Resignation. The Escrow Agent may resign upon thirty
(30) days advance written notice to the Company and the Dealer Manager (a “Resignation
Notice”). Such resignation shall become effective on the date specified in
a Resignation Notice, which shall be not earlier than thirty (30) days
after such Resignation Notice has been given. In the event of any such
resignation, a successor escrow agent, which shall be a bank or trust company
organized under the laws of the United States of America, shall be appointed by
the mutual agreement of the Company and the Dealer Manager. Any such successor
escrow agent shall deliver to the Company and the Dealer Manager a written
instrument accepting such appointment, and thereupon shall succeed to all the
rights and duties of the Escrow Agent hereunder and shall be entitled to
receive the Escrow Account from the Escrow Agent. The Escrow Agent shall
promptly pay all funds in the Escrow Account, including interest thereon, to
the successor escrow agent. If a successor escrow agent is not appointed by the
Company or the Dealer Manager within the thirty (30) day period following
delivery of a Resignation Notice by the Escrow Agent, the Escrow Agent may
petition any court of competent jurisdiction to name a successor escrow agent.
All costs, expenses and reasonable attorney’s fees the Escrow Agent incurs in
connection with such proceeding shall be paid by the Company.


 


21.          Removal. The Escrow Agent may be jointly removed by the
Company and the Dealer Manager at any time, by written notice executed by both
of them (a “Removal Notice”), which Removal Notice shall become
effective on the date specified in such Removal Notice. The removal of the
Escrow Agent shall not deprive the Escrow Agent of its compensation earned
prior to such removal. In the event of any such removal, a successor escrow
agent, which shall be a bank or trust company organized under the laws of the
United States of America, shall be appointed by the mutual agreement of the
Company and the Dealer Manager. Any such successor escrow agent shall deliver
to the Company and the Dealer Manager a written instrument accepting such
appointment, and thereupon shall succeed to all the rights and duties of the
Escrow Agent hereunder and shall be entitled to receive the Escrow Account from
the Escrow Agent. The Escrow Agent shall promptly pay all funds in the Escrow
Account, including interest thereon, to the successor escrow agent. If a
successor escrow agent is not appointed by the Company or the Dealer Manager
within the thirty (30) day period following delivery of a Removal Notice,
the Escrow


 


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Agent
may petition any court of competent jurisdiction to name a successor escrow
agent. All costs, expenses and reasonable attorneys fees the Escrow Agent
incurs in connection with such proceeding shall be paid by the Company.


 


22.          Maintenance
of Records. The Escrow Agent shall
maintain accurate records of all transactions hereunder. Promptly after the
termination of this Agreement, and as may from time to time be reasonably
requested by the Company before such termination, the Escrow Agent shall, at
the Company’s sole cost and expense, provide the Company with a copy of such
records, certified by the Escrow Agent to be a complete and accurate account of
all transactions hereunder. The authorized representatives of the Company and
the Dealer Manager shall also have access to the Escrow Agent’s books and
records to the extent relating to its duties hereunder, during normal business
hours upon reasonable notice to the Escrow Agent, and at the requesting party’s
expense.


 


23.          Representatives. The applicable persons designated in Exhibit D
hereto have been duly appointed to act as the representatives of the Company or
Dealer Manager, as applicable, hereunder and have full power and authority to
execute and deliver any Written Instructions, to amend, modify or waive any
provision of this Agreement and to take any and all other actions on behalf of
the Company or Dealer Manager, as applicable, under this Agreement, all without
further consent or direction from, or notice to, the Company or Dealer Manager,
as applicable, or any other party.


 


24.          USA Patriot
Act. The Company and Dealer
Manager acknowledge that the Escrow Agent may request identifying information
in connection with the USA Patriot Act, Pub.L. 107-56 (the “Patriot Act”),
and the Company and Dealer Manager agree to provide any such information
requested by the Escrow Agent in connection with the Patriot Act or any similar
legislation or regulation to which the Escrow Agent is subject, in a timely
manner.


 


25.          Illegal
Activities. The Escrow Agent shall have
the right in its sole discretion to not accept appointment as escrow agent and
reject funds and collateral from any party in the event that the Escrow Agent
has reason to believe that such funds or collateral violate applicable banking
practices or applicable laws or regulations, including, but not limited to, the
Patriot Act. In the event of suspicious or illegal activity and pursuant to all
applicable laws, regulations and practices, the other parties to this Agreement
will assist the Escrow Agent and comply with any reviews, investigations and
examinations directed against the deposited funds.


 


IN WITNESS WHEREOF, the parties hereto have
caused this Escrow Agreement to be executed the day and year first set forth
above.


 


	
   

  	
  Clarion Property Trust Inc., the
  Company

  
	
   

  	
   

  	
   

  
	
   

  	
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  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ING Investments Distributor, LLC, as
  Dealer Manager

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


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  BNY
  Mellon Investment Servicing (US) Inc., as Escrow Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


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