FORM OF SUBSCRIPTION ESCROW AGREEMENT
FORM
OF
THIS SUBSCRIPTION ESCROW AGREEMENT
dated as of ___, 20__ (this “Agreement”), is entered into
among Realty Capital Securities, LLC (the “Dealer Manager”), American
Realty Capital Healthcare Trust, 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
200,000 (the “Minimum
Amount”) nor more than 150,000,000 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- 169075) (as amended,
the “Offering
Document”) a copy of which is attached as Exhibit A
hereto.
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 foregoing and of the mutual covenants and agreements
contained herein, the parties hereto, intending to be legally bound, hereby
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 7 hereof
entitled “ESCROW ACCOUNT FOR THE BENEFIT OF INVESTORS FOR COMMON STOCK OF
AMERICAN REALTY CAPITAL HEALTHCARE TRUST, INC.” (including such abbreviations as
are required for the Escrow Agent’s systems) (the “Escrow Account”). All
funds received from subscribers of Securities (“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 or
its agents, 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
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.
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. If any checks deposited in the
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.
Investors. Investors will be
instructed by 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 AMERICAN REALTY CAPITAL HEALTHCARE TRUST, INC.” Any checks 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
Company or the Dealer Manager shall furnish the Escrow Agent with a list of the
Investors who have paid for the Securities showing the name, address, tax
identification number and the amount of Securities subscribed for
purchase. The information comprising the identity of Investors shall be
provided to the Escrow Agent in substantially the format set forth in the “List
of Investors” attached hereto as Exhibit B.
When
Soliciting Dealer’s internal supervisory procedures are conducted at the site at
which the subscription agreement and check were initially received by Soliciting
Dealer from the subscriber, Soliciting Dealer shall transmit the subscription
agreement and check to the Escrow Agent by the end of the next business day
following receipt of the check and subscription agreement. When, pursuant to
Soliciting Dealer’s internal supervisory procedures, Soliciting Dealer’s final
internal supervisory procedures are conducted at a different location (the
“Final Review Office”), Soliciting Dealer shall transmit the check and
subscription agreement to the Final Review Office by the end of the next
business day following Soliciting Dealer’s receipt of the subscription agreement
and check. The Final Review Office will, by the end of the next business day
following its receipt of the subscription agreement and check, forward both the
subscription agreement and check to the Escrow Agent. If any subscription
agreement solicited by Soliciting Dealer is rejected by the Dealer Manager or
the Company, then the subscription agreement and check will be returned to the
rejected subscriber within ten (10) business days from the date of
rejection.
All
Investor Funds deposited in the 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 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 hereto. 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.
3.
Disbursement of Funds.
Once the Escrow Agent is in receipt of good and collected Investor Funds
totaling at least the Minimum Amount from Investors, 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 4), 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 acknowledgement of such notice and written instructions from the
Company’s President or Chief Financial Officer to disburse the Investor Funds,
the Escrow Agent shall disburse to the Company, by check or wire transfer, the
funds in the Escrow Account, except for amounts payable by the Company to the
Escrow Agent pursuant to Exhibit D to this
Agreement that remain outstanding. The Escrow Agent agrees that funds in
the Escrow Account shall not be released to the Company until and unless the
Escrow Agent receives written instructions to release the funds from the
Company’s President or Chief Financial Officer.
2
If the Minimum Amount has not been
obtained prior to the Termination Date, the Escrow Agent shall promptly
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 on 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 Investors 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.
If 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 provided 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 (determined in accordance with the terms and conditions
specified herein).
4.
Term of Escrow. The “Termination Date” shall be
the earliest of: (i) the close of business on ______, 20__, the one
year anniversary of the date the Offering Document was declared effective by the
Securities and Exchange Commission; (ii) all funds held in the Escrow Account
are distributed to the Company or to Investors pursuant to Section 3 and the
Company has informed the Escrow Agent in writing to close each of the Escrow
Account; (iii) the date the Escrow Agent receives written notice from the
Company that it is abandoning the sale of the Securities; and (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 and its
agents shall not deposit, and the Escrow Agent shall not accept, any additional
amounts representing payments by prospective Investors.
3
5.
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 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
(including the subscription agreement and exhibits thereto), and the Escrow
Agent’s rights and responsibilities shall be governed solely by this
Agreement. The Escrow Agent shall not be responsible for or be required to
enforce any of the terms or conditions of any Offering Document (including the
subscription agreement and exhibits thereto) 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 Agreement. Concurrent with
the execution of this Agreement, the Company and the Dealer Manager shall
deliver to the Escrow Agent an authorized signers form in the forms of Exhibit C and Exhibit C-1 to this
Agreement. 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
counsel of its own choice with respect to 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
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
Agreement, except as otherwise stated herein, and no implied duties, covenants
or obligations, fiduciary or otherwise, shall be read into this Agreement
against the Escrow Agent. If any disagreement between any of the parties
to this 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 Agreement, or if 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. If any
controversy should arise with respect to this 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 (including the subscription agreement and
exhibits thereto) 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 (including the subscription agreement and exhibits thereto) 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.
4
6.
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 Agreement; provided, however, that if the
conditions for the disbursement of funds under this Agreement are not fulfilled,
or the Escrow Agent renders any material service not contemplated in this
Agreement, or there is any assignment of interest in the subject matter of this
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 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 Agreement.
7.
Investment of Investor Funds.
The Investor Funds shall be deposited in the Escrow Account in accordance
with Section
3. The Escrow Agent is hereby directed to invest all funds received
under this Agreement, including principal and interest in, the Xxxxx Fargo Bank
Money Market Deposit Account, as directed in writing in the form of Exhibit E to this
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.
The
Escrow Agent shall be entitled to sell or redeem any such investments as
necessary to make any payments or distributions required under this
Agreement. The Escrow Agent shall have no responsibility or liability for
any loss which may result from any investment made pursuant to this 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 Agreement shall provide the Escrow Agent with a
certified tax identification number by furnishing appropriate IRS form W-9 or
W-8 (or substitute Form W-9 or W-8) and other forms and documents that the
Escrow Agent may reasonably request, including without limitation a tax form for
each Investor. 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
Agreement. For tax reporting purposes, all interest and other income from
investment of the Investor Funds shall, as of the end of each calendar year and
to the extent required by the Internal Revenue Service, be reported as having
been earned by the party to whom such interest or other income is distributed,
in the year in which it is distributed.
5
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 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 Agreement and the resignation or removal of the Escrow
Agent.
8.
Notices. All notices,
requests, demands, and other communications under this 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 bearing an authorized
signature to the facsimile number/email address given below, and written
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 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention: Xxxxxx
X. Xxxx, Xx., Executive Vice President and Secretary
Attention: Xxxxx
X. Block, Executive Vice President and Chief Financial Officer
with a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention:
Xxxxx X. Xxxx, Esq.
Attention: Xxxxxx
Xxxxxxx, Esq.
If to the
Dealer Manager:
Realty
Capital Securities, LLC
Three
Xxxxxx Xxxxx
Xxxxx
0000
Xxxxxx,
XX 00000
Attention: Xxxxxx
Xxxxxx, President
6
with a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention:
Xxxxx X. Xxxx, Esq.
Attention: Xxxxx
X. Gerkis, Esq.
and:
American
Realty Capital Healthcare Trust, Inc.
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention: Xxxxxx
X. Xxxx, Xx., Executive Vice President and Secretary
Attention: Xxxxx
X. Block, Executive Vice President and Chief Financial Officer
If to
Escrow Agent:
Xxxxx
Fargo Bank, National Association
00
Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Fax:
(000) 000-0000
Attention: Xxxx
Xxxxxxx
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.
9.
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 Agreement or any transaction to
which this 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 Agreement and the
resignation or removal of the Escrow Agent.
7
10.
Successors and Assigns. 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 void and of no force and effect. This
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
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.
11.
Governing Law; Jurisdiction.
This 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.
12.
Severability. If 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.
13.
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. The Company and the Dealer Manager agree that any
requested waiver, modification or amendment of this Agreement shall be
consistent with the terms of the Offering.
14.
Entire Agreement. This
Agreement contains the entire agreement and 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.
15.
Section Headings. The section
headings in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
16.
Counterparts. This Agreement
may be executed (including by facsimile transmission) with counterpart signature
pages or in counterparts, each of which shall be deemed an original, but all of
which shall constitute the same instrument.
17.
Resignation. The Escrow Agent
may resign upon 30 days’ advance written notice to the parties hereto. If a
successor escrow agent is not appointed by the Company 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 may interplead the Investor
Funds with such court, whereupon the Escrow Agent’s duties hereunder shall
terminate.
8
18.
References to Escrow Agent.
Other than the Offering Document (including the subscription agreement
and exhibits thereto) and any amendments thereof 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.
[Signature
page follows]
9
IN WITNESS WHEREOF, the
parties hereto have caused this Escrow Agreement to be executed the date and
year first set forth above.
AMERICAN
REALTY CAPITAL HEALTHCARE TRUST, INC.
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By:
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Name:
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Xxxxxxxx
X. Xxxxxxxx
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Title:
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Chief
Executive Officer
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REALTY
CAPITAL SECURITIES, LLC
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By:
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Name:
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Xxxxxx
Xxxxxx
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Title:
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President
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XXXXX
FARGO BANK, NATIONAL
ASSOCIATION,
as Escrow Agent
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By:
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Name:
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Title:
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10
Exhibit
A
Copy of
Offering Document
11
Exhibit
B
List of
Investors
Pursuant
to the Escrow Agreement dated as of ____, 2010, among Realty Capital Securities,
LLC, American Realty Capital Healthcare Trust, 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 shares of the Company’s common stock, par value $0.01 (“Securities”), and the
money has been deposited with the Escrow Agent:
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1.
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Name
of Investor
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Address
Tax
Identification Number
Amount of
Securities subscribed for
Amount of
money paid and deposited with Escrow Agent
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2.
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Name
of Investor
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Address
Tax
Identification Number
Amount of
Securities subscribed for
Amount of
money paid and deposited with Escrow Agent
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Dated:
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REALTY
CAPITAL SECURITIES, LLC
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By:
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Name:
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Xxxxxx
Xxxxxx
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Title:
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President
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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 American Realty Capital Healthcare
Trust, Inc. and are authorized to initiate and approve transactions of
all types for the above-mentioned account on behalf of American Realty Capital Healthcare
Trust, Inc.
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Name/Title
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Specimen Signature
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Xxxxxxxx
X. Xxxxxxxx
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Chief
Executive Officer
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Signature
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Xxxxxxx
X. Xxxxxx
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President
and Treasurer
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Signature
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Xxxxx
Xxxxx
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Executive
Vice President and Chief Financial Officer
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Signature
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Xxxxxx
X. Xxxx, Xx.
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Executive
Vice President and Secretary
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Signature
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13
Exhibit
C-1
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 Realty Capital Securities, LLC
and are authorized to initiate and approve transactions of all types for
the above-mentioned account on behalf of Realty Capital Securities,
LLC
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Name/Title
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Specimen Signature
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Xxxxxx
Xxxxxx
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President
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Signature
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Xxxxx
Xxxxxxxx
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Executive
Vice President and Chief Compliance Officer
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Signature
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14
Exhibit
D
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Wells
Fargo Bank
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[NAME]
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[logo]
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Corporate
Trust Services
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[POSITION]
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0000
Xxxx Xxxxxx, 0xx
Xxxxx
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Tel: [__________]
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Mac
T5303-022
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Fax: [__________]
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Xxxxxx,
XX 00000
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[EMAIL]
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GENERAL
SCHEDULE OF FEES
to
act as ESCROW AGENT for the
American
Realty Capital Healthcare Trust, Inc. Subscription Escrow up to
$50,000,000
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Acceptance Fee:
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$500
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Initial
Fees as they relate to Xxxxx Fargo Bank acting in the capacity of Escrow Agent –
includes review of the Escrow Agreement; acceptance of the Escrow appointment;
setting up of Escrow Account(s) and accounting records; and coordination of
receipt of funds for deposit to the Escrow Account(s).
Acceptance
Fee payable at time of Escrow Agreement execution.
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Escrow Agent Annual Administration
Fee:
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$5,000.00
on first offering, $3,500 on
subsequent
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For
ordinary administrative services by Escrow Agent – includes daily routine
account management; investment transactions; cash transaction processing
(including wire and check processing); monitoring claim notices pursuant to the
agreement; disbursement of funds in accordance with the agreement; and mailing
of trust account statements to all applicable parties. Float credit
received by the bank for receiving funds that remain uninvested are deemed part
of the Paying Agent/Escrow Agent’s compensation. These fees do not
contemplate paying interest to Investors or providing 1099s which would be the
responsibility of the Company. If individual 1099s, interest checks, interest
accrual calculations or any individual Investor information are required
additional fees will be charged. For rejected subscriptions or a failed
offering, the following fees will apply.
1099
Reporting $25 each
Interest
Rate Calculations and Interest Checks/Wires $ 35 each
Returned
Item Charges $35 each
The administrative fee is payable in
advance, with the first year fee due upon opening of the account. The
Annual Fee covers a full year or any part thereof, and therefore will not be
prorated or refunded in the year of early termination. These fees do not
include bank activity fees associated with Desktop Deposit system. Fees
for these services will be provided separately by our Treasury Management
Group.
Xxxxx
Fargo’s bid is based on the following assumptions:
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·
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Number of
Escrow Accounts to be established: Three
(3)
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Number of
Deposits to Escrow Accounts: Electronically, approximately
(10-20 per day)
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·
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Number of
Withdrawals from Escrow Accounts: Not more than two per
week.
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·
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Term of
Escrow: One (1) year
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APPOINTMENT SUBJECT TO RECEIPT
OF REQUESTED DUE DILIGENCE INFORMATION AS PER THE USA PATRIOT
ACT
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15
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·
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THIS PROPOSAL ASSUMES THAT
BALANCES IN THE ACCOUNT WILL BE INVESTED IN MONEY MARKET
FUNDS
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ALL FUNDS WILL BE RECEIVED
FROM OR DISTRIBUTED TO A DOMESTIC OR AN APPROVED FOREIGN
ENTITY
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IF THE ACCOUNT(S) DOES NOT OPEN
WITHIN THREE (3) MONTHS OF THE DATE SHOWN BELOW, THIS PROPOSAL WILL BE
DEEMED TO BE NULL AND VOID
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Out-of Pocket
Expenses:
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At
Cost
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We will
charge for out-of-pocket expenses in response to specific tasks assigned by the
client or provided for in the escrow agreement. Possible expenses would
be, but are not limited to, express mail and messenger charges, travel expenses
to attend closing or other meetings. There are no charges for
indirect out-of- pocket expenses.
This
fee schedule is based upon the assumptions listed above which pertain to the
responsibilities and risks involved in Xxxxx Fargo undertaking the role of
Escrow Agent. These assumptions are based on information provided to us as
of the date of this fee schedule. Our fee schedule is subject to review
and acceptance of the final documents. Should any of the assumptions,
duties or responsibilities change, we reserve the right to affirm, modify or
rescind our fee schedule. Extraordinary services (services other than the
ordinary administration services of Escrow Agent described above) are not
included in the annual administration fee and will be billed as incurred at the
rates in effect from time to time.
Submitted
on: ,
2010
16
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 E 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 $250,000 per depositor, per insured bank. This
includes principal and accrued interest up to a total of $250,000.
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.
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American
Realty Capital Healthcare Trust, Inc.
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By:
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Signature
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Date
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17
