SUBSCRIPTION ESCROW AGREEMENT
This
SUBSCRIPTION ESCROW AGREEMENT, dated as of December 11th 2007 (the “Agreement”),
is made by and among American Realty Capital Trust, Inc., a Maryland corporation
(the “Company”), Realty Capital Securities, LLC, a Delaware limited liability
company (“the Dealer Manager”), and Boston Private Bank & Trust Company, a
Massachusetts trust company (the “Escrow Agent”).
Whereas,
the
Company will issue in a public offering (the “Offering”) its common stock (the
“Shares”) to investors (the “Investors”) pursuant to a Registration Statement on
Form S-11 (the “Registration Statement”) filed by the Company with the
Securities and Exchange Commission (the “SEC”);
Whereas,
the Dealer Manager will act as dealer manager for the Offering;
Whereas,
until such time as subscriptions from non-affiliates of the Company have been
received for Stock, resulting in total minimum capital raised of $2,000,000
(the
“Minimum Amount”), the Company desires to deposit funds contributed by the
Investors with the Escrow Agent, to be held for the benefit of the Investors
and
the Company; and
Whereas,
the Escrow Agent represents and warrants that it is and at all times during
the
term of this agreement will be, deemed a “bank” as that term is defined in
Section 3(a)(6) of the Securities Exchange Act of 1934, as
amended;
NOW,
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged by each of the parties hereto, the parties hereto,
intending to be legally bound, do hereby agree as follows:
Section
1. Appointment
of Escrow Agent.
The
Company hereby appoints Boston Private Bank & Trust Company as escrow agent
in accordance with the terms and conditions set forth herein, and the Escrow
Agent hereby accepts such appointment.
Section
2. Proceeds
to be Escrowed.
Persons
subscribing to purchase the Stock will be instructed by the Dealer Manager
or
any soliciting dealers to remit the purchase price in the form of checks, drafts
or wires (hereinafter called “instruments of payment”) payable to the order of,
or funds wired in favor of, Boston Private Bank & Trust Company, Escrow
Agent for American Realty Capital Trust, Inc. Any checks received made payable
to a party other than the Escrow Agent shall be returned to the soliciting
dealer or investor who submitted the check. By 12:00 p.m. (noon) the next
business day after receipt of instruments of payment from the Offering, the
Dealer Manager or its Transfer Agent will send to the Escrow Agent the
instruments of payment from such subscribers, for deposit by the Escrow Agent
into an interest-bearing deposit account entitled “American Realty Capital
Trust, Inc., by Boston Private Bank & Trust Company as Escrow Agent” (the
“Escrow Account”), which deposit shall occur within one (1) business day after
you receive such materials.
In
the
event that any checks deposited in the Escrow Account 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.
All
funds
in the Escrow Account (hereinafter, the “Escrow Property”), until disbursed to
the Company in accordance with Section 4 hereof, are to be held for the
benefit of the shareholders of the Company and are not to (i) be commingled
with
the monies or become an asset of the Company, or (ii) be subject to attachment,
levy or other encumbrance in any action by a third party against the Company.
Section
3. Identity
of Subscribers.
The
Company or its Transfer Agent or the Dealer Manager shall furnish to the Escrow
Agent with each delivery of funds, as provided in Section 2 hereof, a list
of
the persons who have paid money for the purchase of Stock showing the name,
address, tax identification number, number of shares purchased, and the amount
of money paid. The information comprising the identity of investors shall be
provided to the Escrow Agent in the format set forth in the List
of Investors
attached
as Exhibit A. All proceeds so deposited shall remain the property of the
subscriber and shall not be subject to any liens or charges by the Company,
or
the Escrow Agent, until released to the Company as hereinafter provided.
The
Company and the Dealer Manager hereby acknowledges the Escrow Agent’s sole right
to reject any subscriber based on the results of the Escrow Agent’s internal due
diligence policies and procedures, including, but not limited to, its “Know Your
Customer” and anti-money laundering policies. The Escrow Agent may, in its sole
discretion, reject any subscriber by giving written notice to the Company and
the Dealer Manager.
Section
4. Disbursement
of Funds.
On a
weekly basis (and more frequently if requested by the Company), the Escrow
Agent
shall notify the Company and the Dealer Manager of the amount of the funds
received hereunder. If payments of the Minimum Amount or more for Shares are
obtained at any time prior to the Termination Date (as defined in
Section 6), the Escrow Agent shall promptly notify the Company and the
Dealer Manager, and upon the Company’s and Dealer Manager’s delivering a joint
written notice (the “Disbursement Notice”) attached as Exhibit B signed jointly
by two Authorized Persons (as defined in Section 12(q)) of the Company,
stating that is has received and accepted subscription agreements for the
Minimum Amount of Shares, then the Escrow Agent shall (i) disburse to the
Company, by check or wire transfer, the funds in the Escrow Account representing
the gross purchase price for the Stock, and (ii) disburse to the
subscribers any interest thereon calculated pursuant to the provisions of
Section 5. Following such disbursements, the Escrow Account shall close and
thereafter Escrow Agent shall forward directly to the Company upon receipt
by
Escrow Agent of any subscription documents and instruments of payment received
by Escrow Agent from subscribers. If the Minimum Amount of proceeds has not
been
obtained and delivered prior to the Termination Date, the Escrow Agent shall,
within a reasonable time following the Termination Date, but in no event more
than thirty (30) days after the Termination Date, refund to each investor at
the
address appearing on the List of Investors, or at such other address as shall
be
furnished to the Escrow Agent by the investor in writing, all sums paid by
the
investor pursuant to his subscription agreement for Shares, together with the
interest accrued on such funds in the Escrow Account, and shall then notify
the
Company in writing of such refunds. If the Company rejects any subscription
for
which the Escrow Agent has already collected funds, the Escrow Agent shall,
upon
the written request of the Company, promptly issue a refund check to the
rejected subscriber. If the Company rejects any subscription for which the
Escrow Agent has not yet collected funds but has submitted the subscriber’s
check for collection, the Escrow Agent shall promptly issue a check in the
amount of the subscriber’s check to the rejected subscriber after the Escrow
Agent has cleared such funds. If the Escrow Agent has not yet submitted a
rejected subscriber’s check for collection, the Escrow Agent shall promptly
remit the subscriber’s check directly to the subscriber.
Section
5. Investment
of the Escrow Property.
Prior
to the disbursement of funds deposited in the Escrow Account in accordance
with
the provisions of Section 2 & 3 hereof, the Escrow Agent shall invest all of
the funds deposited in the Escrow Account in “Short-Term Investments” (as
defined below) in compliance with SEC Rule 15c2-4 and the Escrow Agent is
further authorized and agrees to reinvest all earnings and interest derived
there from in Short-Term Investments specified below. In the event that
instruments of payment are returned to the Escrow Agent for nonpayment, the
Escrow Agent is authorized to debit the Escrow Account in accordance with
Section 2 hereof.
“Short-Term
Investments” include obligations of, or obligations guaranteed by, the United
States government or bank money-market accounts or certificates of deposit
of
national or state banks that have deposits insured by the Federal Deposit
Insurance Corporation (including certificates of deposit of any bank acting
as a
depository or custodian for any such funds) which mature on or before the
termination of the Offering, unless such instrument cannot be readily sold
or
otherwise disposed of for cash by the termination of the Offering without any
dissipation of the offering proceeds invested.
The
following securities are not permissible investments:
|
(a)
|
money
market mutual funds;
|
|
(b)
|
corporate
equity or debt securities;
|
|
(c)
|
repurchase
agreements;
|
|
(d)
|
bankers’
acceptances;
|
|
(e)
|
commercial
paper; and
|
|
(f)
|
municipal
securities.
|
The
Escrow Agent shall have no obligation to invest or reinvest the Escrow Property
if deposited with the Escrow Agent after noon (E.S.T.) on such day of deposit.
Instructions received after noon (E.S.T.) will be treated as if received on
the
following business day. The Escrow Agent shall have no liability whatsoever
to
any party or other person or entity for any investment losses resulting from
the
investment, reinvestment or liquidation of the Escrow Property. Any interest
or
other income received on such investment and reinvestment of the Escrow Property
shall become part of the Escrow Property and any losses incurred on such
investment and reinvestment of the Escrow Property shall be debited against
the
Escrow Property. If a written direction is not given to the Escrow Agent, the
Escrow Property shall remain uninvested with no liability for interest therein.
It is agreed and understood that the Escrow Agent may earn fees associated
with
the investments outlined above in accordance with the terms of such investments.
Notwithstanding the foregoing, the Escrow Agent shall have the power to sell
or
liquidate the foregoing investments whenever the Escrow Agent shall be required
to release all or any portion of the Escrow Property pursuant to Section 4
hereof. In no event shall the Escrow Agent be deemed an investment manager
or
adviser in respect of any selection of investments hereunder. It is understood
and agreed that the Escrow Agent or its affiliates are permitted to receive
additional compensation that could be deemed to be in the Escrow Agent’s
economic self-interest for (1) serving as administrator, shareholder
servicing agent, custodian or sub-custodian with respect to certain of the
investments, (2) using affiliates to effect transactions in certain
investments and (3) effecting transactions in investments.
Section
6. Term
of Escrow.
The
“Termination Date” shall be (i) December 31, 2010 or (ii) the date the
Escrow Agent receives written notice from the Company that it is abandoning
the
sale of the Shares. The Company may extend the termination date for up to one
year upon written notice to the Escrow Agent. Upon the termination of the
Agreement any remaining Escrow Property shall be forwarded to the Company in
accordance with the Company’s written directions.
The
provisions of Sections 8, 10 and 11 shall survive the termination of this
Agreement and the earlier resignation or removal of the Escrow
Agent.
Section
7. Intentionally
Omitted.
Section
8. Compensation
of Escrow Agent.
The
Escrow Agent shall be entitled to payment from the Company for customary fees
and expenses for all services rendered as described in Schedule II (as such
fees
may be adjusted from time to time). Annual fees are due annually in advance
for
each year or any part thereof. The
Company shall reimburse the Escrow Agent on demand for all loss, liability,
damage, disbursements, advances or expenses paid or incurred by it in the
administration of its duties hereunder, including, but not limited to, all
counsel, advisors’ and agents’ fees and disbursements and all taxes or other
governmental charges. The obligations contained in this Section 8 shall survive
the termination of this Agreement and the resignation or removal of the Escrow
Agent.
Section
9. Resignation
of Escrow Agent.
The
Escrow Agent may, in its sole discretion, resign and be discharged from its
duties hereunder at any time by giving thirty (30) calendar days’ prior
written notice of such resignation to the Company and the Dealer Manager.
The
Company and the Dealer Manager may remove the Escrow Agent at any time by
giving
thirty (30) calendar days’ prior written notice to the Escrow Agent. Upon such
notice, a successor escrow agent shall be appointed by the Company and the
Dealer Manager who shall provide written notice of such to the resigning
Escrow
Agent. Such successor escrow agent shall become the escrow agent hereunder
upon
the resignation or removal date specified in such notice. If the Company
and the
Dealer Manager are unable to agree upon a successor escrow agent within thirty
(30) days after such notice, the Escrow Agent may, in its sole discretion,
deliver the Escrow Property to the Company at the address provided herein
or may
apply to a court of competent jurisdiction for the appointment of a successor
escrow agent or for other appropriate relief. The costs and expenses (including
its attorneys’ fees and expenses) incurred by the Escrow Agent in connection
with such proceeding shall be paid by the Company. Upon receipt of the identity
of the successor escrow agent, the Escrow Agent shall either deliver the
Escrow
Property then held hereunder to the successor Escrow Agent, less the Escrow
Agent’s fees, costs and expenses or other obligations owed to the Escrow Agent
to be paid from any interest earned in respect of the Escrow Property, or
hold
any interest earned in respect of the Escrow Property (or any portion thereof),
pending distribution, until all such fees, costs and expenses or other
obligations are paid. Upon its resignation and delivery of the Escrow Property
as set forth in this Section 9, the Escrow Agent shall be discharged of and
from
any and all further obligations arising in connection with the Escrow Property
or this Agreement.
Section
10. Indemnification
of Escrow Agent.
The
Company and the Dealer Manager shall jointly and severally indemnify, defend
and
hold harmless the Escrow Agent and its officers, directors, employees,
representatives and agents, from and against and reimburse the Escrow Agent
for
any and all claims, expenses, obligations, liabilities, losses, damages,
injuries (to person, property, or natural resources), penalties, stamp or other
similar taxes, actions, suits, judgments, reasonable costs and expenses
(including reasonable attorney’s fees and expenses) of whatever kind or nature
regardless of their merit, demanded, asserted or claimed against the Escrow
Agent directly or indirectly relating to, or arising from, claims against the
Escrow Agent by reason of its participation in the transactions contemplated
hereby, including without limitation all costs required to be associated with
claims for damages to persons or property, and all attorneys’ and consultants’
fees and expenses and court costs. Except to the extent caused by the Escrow
Agent’s gross negligence or willful misconduct. The provisions of this Section
10 shall survive the termination of this Agreement or the earlier resignation
or
removal of the Escrow Agent.
Section
11. The
Escrow Agent.
(a) The
duties, responsibilities and obligations of Escrow Agent shall be limited to
those expressly set forth herein and no duties, responsibilities or obligations
shall be inferred or implied against the Escrow Agent. The Escrow Agent shall
not be subject to, nor required to comply with, any other agreement to which
the
Company or the Dealer Manager is a party, even though reference thereto may
be
made herein, or to comply with any direction or instruction (other than those
contained herein or delivered in accordance with this Agreement) from the
Company, the Dealer Manager or an entity acting on its behalf. The Escrow Agent
shall not be required to expend or risk any of its own funds or otherwise incur
any liability, financial or otherwise, in the performance of any of its duties
hereunder.
(b) If
at any
time the Escrow Agent is served with any judicial or administrative order,
judgment, decree, writ or other form of judicial or administrative process
which
in any way affects the Escrow Property (including but not limited to orders
of
attachment or garnishment or other forms of levies or injunctions or stays
relating to the transfer of the Escrow Property), the Escrow Agent is authorized
to comply therewith in any manner it or legal counsel of its own choosing deems
appropriate; and if the Escrow Agent complies with any such judicial or
administrative order, judgment, decree, writ or other form of judicial or
administrative process, Escrow Agent shall not be liable to any of the parties
hereto or to any other person or entity even though such order, judgment,
decree, writ or process may be subsequently modified or vacated or otherwise
determined to have been without legal force or effect.
(c) The
Escrow Agent shall not be liable for any action taken or omitted or for any
loss
or injury resulting from its actions or its performance or lack of performance
of its duties hereunder in the absence of gross negligence or willful misconduct
on its part. In no event shall the Escrow Agent be liable (i) for acting in
accordance with or conclusively relying upon any instruction, notice, demand,
certificate or document from the Company, the Dealer Manager, or any entity
acting on behalf of the Company, (ii) for any indirect, consequential, punitive
or special damages, multiple damages under M.G.L. c. 93A or any other authority,
damages for lost profits, damages for emotional distress, or attorney’s fees and
costs, all regardless of the form of action and whether or not any such damages
were foreseeable or contemplated, (iii) for the acts or omissions of its
nominees, correspondents, designees, agents, subagents or subcustodians, (iv)
for the investment or reinvestment of any cash held by it hereunder in
accordance with the terms hereof, including without limitation any liability
for
any delays (not resulting from its gross negligence or willful misconduct)
in
the investment or reinvestment of the Escrow Property, or any loss of interest
or income incident to any such delays, or (v) for an amount in excess of the
value of the Escrow Property, valued as of the date of deposit, but only to
the
extent of direct money damages. The provisions of this subsection shall survive
the termination of this Agreement or the earlier resignation or removal of
the
Escrow Agent.
(d) If
any
fees, expenses or costs incurred by, or any obligations owed to, the Escrow
Agent or its counsel hereunder are not paid within fifteen (15) calendar
days of
when they are due, the Escrow Agent may reimburse itself therefore from the
Escrow Property and may sell, liquidate, convey or otherwise dispose of any
investment in respect of the Escrow Property for such purpose. The Escrow
Agent
may in its sole discretion withhold from any distribution of any interest
earned
in respect of the Escrow Property an amount it believes would, upon sale
or
liquidation, produce proceeds equal to any unpaid amounts to which the Escrow
Agent is entitled to hereunder.
(e) The
Escrow Agent may consult with legal counsel of its own choosing, at the expense
of the Company as to any matter relating to this Agreement, and the Escrow
Agent
shall not incur any liability in acting in good faith in accordance with any
advice from such counsel. Reliance on such advice of counsel shall not effect
or
be deemed to be a waiver of the Escrow Agent’s attorney-client privilege or any
other applicable privilege or protection.
(f) The
Escrow Agent shall not incur any liability for not performing any act or
fulfilling any duty, obligation or responsibility hereunder by reason of any
occurrence beyond the control of the Escrow Agent (including but not limited
to
any act or provision of any present or future law or regulation or governmental
authority, any act of God or war, civil unrest, local or national disturbance
or
disaster, any act of terrorism, the unavailability of the Federal Reserve Bank
wire or facsimile or other wire or communication facility, or any computer
or
other technological malfunction).
(g) The
Escrow Agent shall be entitled to conclusively rely upon any order, judgment,
certification, demand, notice, instrument or other writing delivered to it
hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity or the
service thereof. The Escrow Agent may act in conclusive reliance upon any
instrument or signature believed by it to be genuine and may assume that any
person purporting to give receipt or advice to make any statement or execute
any
document in connection with the provisions hereof has been duly authorized
to do
so.
(h) The
Escrow Agent shall not be responsible in any respect for the form, execution,
validity, value or genuineness of documents or securities deposited hereunder,
or for any description therein, or for the identity, authority or rights of
persons executing or delivering or purporting to execute or deliver any such
document, security or endorsement. The Escrow Agent shall not be called upon
to
advise any party as to the wisdom in selling or retaining or taking or
refraining from any action with respect to any securities or other property
deposited hereunder.
(i) The
Escrow Agent shall not be under any duty to give the Escrow Property held by
it
hereunder any greater degree of care than it gives its own similar property
and
shall not be required to invest any funds held hereunder except as directed
in
this Agreement.
(j) When
the
Escrow Agent acts on any information, instructions, communications, (including,
but not limited to, communications with respect to the delivery of securities
or
the wire transfer of funds) sent by telex, facsimile, email or other form of
electronic or data transmission, the Escrow Agent, absent its own gross
negligence, shall not be responsible or liable in the event such communication
is not an authorized or authentic communication of the Company or the Dealer
Manager or is not in the form the Company or the Dealer Manager sent or intended
to send (whether due to fraud, distortion or otherwise). The Company shall
indemnify the Escrow Agent against any loss, liability, claim or expense
(including legal fees and expenses) it may incur with its acting in accordance
with any such communication.
(k) In
the
event of any ambiguity or uncertainty hereunder or in any notice, instruction
or
other communication received by the Escrow Agent hereunder, the Escrow Agent
may, in its sole discretion, refrain from taking any action other than to retain
possession of the Escrow Property, unless the Escrow Agent receives written
instructions, signed by the Company which eliminates such ambiguity or
uncertainty.
(l) In
the
event of any dispute between or conflicting claims among the Company and any
other person or entity with respect to any Escrow Property, the Escrow Agent
shall be entitled, in its sole discretion, to refuse to comply with any and
all
claims, demands or instructions with respect to such Escrow Property for so
long
as such dispute or conflict shall continue, and the Escrow Agent shall not
be or
become liable in any way to the Company or any other person for failure or
refusal to comply with such conflicting claims, demands or instructions. The
Escrow Agent shall be entitled to refuse to act until, to its sole satisfaction,
either (i) such conflicting or adverse claims or demands shall have been
determined by a final order, judgment or decree of a court of competent
jurisdiction, which order, judgment or decree is not subject to appeal, or
settled by agreement between the conflicting parties as evidenced in a writing
satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have
received security or an indemnity satisfactory to it sufficient to hold it
harmless from and against any and all losses which it may incur by reason of
so
acting. Any court order, judgment or decree shall be accompanied by a legal
opinion by counsel for the presenting party, satisfactory to the Escrow Agent
in
its sole discretion, to the effect that said order, judgment or decree
represents a final adjudication of the rights of the parties by a court of
competent jurisdiction, and that the time for appeal from such order, judgment
or decree has expired without an appeal having been filed with such court.
The
Escrow Agent may act on such court order and legal opinions without further
question. The Escrow Agent may, in addition, elect, in its sole discretion,
to
commence an interpleader action or seek other judicial relief or orders as
it
may deem, in its sole discretion, necessary. The costs and expenses (including
reasonable attorneys’ fees and expenses) incurred in connection with such
proceeding shall be paid by, and shall be deemed an obligation of, the
Company.
(m) The
Escrow Agent shall have no responsibility for the contents of any writing of
the
arbitrators or any third party contemplated herein as a means to resolve
disputes and may conclusively rely without any liability upon the contents
thereof.
(n) The
Escrow Agent does not have any interest in the Escrow Property deposited
hereunder but is serving as escrow holder only and having only possession
thereof. The Company shall pay or reimburse the Escrow Agent upon request for
any transfer taxes or other taxes relating to the Escrow Property incurred
in
connection herewith and shall indemnify and hold harmless the Escrow Agent
from
any amounts that it is obligated to pay in the way of such taxes. Any payments
of income from this Escrow Account shall be subject to withholding regulations
then in force with respect to United States taxes. The Company or the Dealer
Manager will provide the Escrow Agent with appropriate W-9 forms for tax
identification number certifications, or W-8 forms for non-resident alien
certifications. This paragraph shall survive notwithstanding any termination
of
this Agreement or the resignation or removal of the Escrow Agent.
(o) The
Escrow Agent shall provide to the Company and the Dealer Manager monthly
statements identifying transactions, transfers or holdings of Escrow Property
and each such statement shall be deemed to be correct and final upon receipt
thereof by the Company and the Dealer Manager unless the Escrow Agent is
notified in writing, by the Company or the Dealer Manager, to the contrary
within thirty (30) business days of the date of such statement.
Section
12. Miscellaneous.
(a) This
Agreement embodies the entire agreement and understanding among the parties
relating to the subject matter hereof.
(b) This
Agreement shall be governed by and construed in accordance with the laws of
the
Commonwealth of Massachusetts without reference to its principles of conflict
of
laws.
(c) Each
of
the parties hereto hereby irrevocably consents to the jurisdiction of the courts
of the Commonwealth of Massachusetts and of any Federal Court located in such
Commonwealth in connection with any action, suit or other proceeding arising
out
of or relating to this Agreement or any action taken or omitted hereunder,
and
waives any claim of forum non conveniens and any objections as to laying of
venue. Each party further waives personal service of any summons, complaint
or
other process and agrees that service thereof may be made by certified or
registered mail directed to such person at such person’s address for purposes of
notices hereunder. Each party further waives any claim to trial by
jury.
(d) All
notices and other communications under this Agreement shall be in writing in
English and shall be deemed given when delivered personally, on the next
Business Day after delivery to a recognized overnight courier or mailed first
class (postage prepaid)or when sent by facsimile to the parties (which facsimile
copy shall be followed, in the case of notices or other communications sent
to
the Escrow Agent, by delivery of the original) at the following addresses (or
to
such other address as a party may have specified by notice given to the other
parties pursuant to this provision):
If
to the
Company, to:
c/o
American Realty Capital
0000
Xxx
Xxxxxxx
Xxxxxxxxxx,
XX 00000
If
to the
Dealer Manager, to:
Realty
Capital Securities
Three
Xxxxxx Place, Suite 3300B
Xxxxxx,
XX 00000
If
to the
Escrow Agent, to:
Boston
Private Bank & Trust Company
Xxx
Xxxx
Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
(e) The
headings of the Sections of this Agreement have been inserted for convenience
and shall not modify, define, limit or expand the express provisions of this
Agreement.
(f) This
Agreement and the rights and obligations hereunder of parties hereto may not
be
assigned except with the prior written consent of the other parties hereto.
This
Agreement shall be binding upon and inure to the benefit of each party’s
respective successors and permitted assigns. Except as expressly provided
herein, no other person shall acquire or have any rights under or by virtue
of
this Agreement. This Agreement is intended to be for the sole benefit of the
parties hereto, and (subject to the provisions of this Section 10(f)) their
respective successors and assigns, and none of the provisions of this Agreement
are intended to be, nor shall they be construed to be, for the benefit of any
third person.
(g) This
Agreement may not be amended, supplemented or otherwise modified without the
prior written consent of the parties hereto.
(h) The
Escrow Agent makes no representation as to the validity, value, genuineness
or
the collectability of any security or other document or instrument held by
or
delivered to it.
(i) Any
payments of income from the Escrow Property shall be subject to withholding
regulations then in force with respect to United States taxes. The Company
will
provide the Escrow Agent with its Employer Identification Number for use by
the
Escrow Agent if necessary. It is understood that the Escrow Agent shall be
responsible for income reporting only with respect to income earned on the
Escrow Property and will not be responsible for any other
reporting.
(j) This
Agreement may be executed in two or more counterparts, each of which shall
be an
original, but all of which together shall constitute one and the same
instrument.
(k) The
rights and remedies conferred upon the parties hereto shall be cumulative,
and
the exercise or waiver of any such right or remedy shall not preclude or inhibit
the exercise of any additional rights or remedies. The waiver of any right
or
remedy hereunder shall not preclude the subsequent exercise of such right or
remedy.
(l) The
Company and the Dealer Manager hereby acknowledge that, in accordance with
Section 326 of the USA Patriot Act, the Escrow Agent, like all financial
institutions and in order to help fight the funding of terrorism and money
laundering, are required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens
an account with Boston Private Bank & Trust Company. The Company and the
Dealer Manager hereby agree that each will provide the Escrow Agent with such
information as it may request in order for the Escrow Agent to satisfy the
requirements of the USA Patriot Act.
(m) The
Company and the Dealer Manager hereby represent and warrant (i) that this
Agreement has been duly authorized, executed and delivered on its behalf and
constitutes its legal, valid and binding obligation and (ii) that the
execution, delivery and performance of this Agreement by the Company and the
Dealer Manager does not and will not violate any applicable law or
regulation.
(n) The
invalidity, illegality or unenforceability of any provision of this Agreement
shall in no way affect the validity, legality or enforceability of any other
provision; and if any provision is held to be unenforceable as a matter of
law,
the other provisions shall not be affected thereby and shall remain in full
force and effect.
(o) No
printed or other material in any language, including prospectuses, notices,
reports, and promotional material which mentions Boston Private Bank & Trust
Company or any of their respective affiliates by name or the rights, powers,
or
duties of the Escrow Agent under this Agreement shall be issued by any other
parties hereto, or on such party’s behalf, without the prior written consent of
the Escrow Agent.
(p) For
purposes of this Agreement, “Business Day” shall mean any day that is not a
Saturday or Sunday or a day on which banks are required or permitted by law
or
executive order to be closed in the City of Boston, Massachusetts.
(q) For
purposes of sending and receiving instructions or directions hereunder, all
such
instructions or directions shall be, and the Escrow Agent may conclusively
rely
upon such instructions or directions, delivered, and executed by representatives
of the Company and the Dealer Manager designated on Scheduled I attached
hereto and made a part hereof (each such representative, an “Authorized Person”)
which such designation shall include specimen signatures of such
representatives, as such Schedule I may be updated from time to
time.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
By:
__________________________________
Name:
Xxxxx X. Block
Title:
Chief Financial Officer
REALTY
CAPITAL SECURITIES, LLC
By:
__________________________________
Name:
Xxxxx Xxxxxxxx
Title:
President
BOSTON
PRIVATE BANK & TRUST COMPANY, as Escrow Agent
By:
__________________________________
Name:
Xxxxxxxx X. XxXxxxxxx
Title:
Senior Vice President
By:
__________________________________
Name:
Xxxxxx X. Xxxxxxxx
Title:
Executive Vice President & Treasurer
Schedule
II
$3,000.00
Initial Administrative Fee
$1,500.00
Annual Fee
TBD
-
Legal Fees
