AMENDED AND RESTATED SUBSCRIPTION ESCROW AGREEMENT
AMENDED AND RESTATED SUBSCRIPTION ESCROW AGREEMENT
THIS SUBSCRIPTION ESCROW AGREEMENT dated as of August 14, 2012 (this “Agreement”), is entered into among Realty Capital Securities, LLC (the “Dealer Manager”), American Realty Capital Global Trust, Inc. (the “Company”) and UMB Bank, N.A., as escrow agent (the “Escrow Agent”).
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 GLOBAL 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”, which term shall also include Pennsylvania Investors and Tennessee Investors unless the context otherwise requires) 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.
Proceeds received from Pennsylvania Investors shall be accounted for separately in a subaccount entitled “Escrow Account for the Benefit of Pennsylvania Investors for American Realty Capital Global Trust, Inc.” (including such abbreviations as are required for the Escrow Agent’s systems) (the “Pennsylvania Escrow Account”), until such Pennsylvania Escrow Account has closed pursuant to Section 4. The Company shall, and shall cause its agents to, cooperate with the Escrow Agent in separately accounting for Investor Funds from Pennsylvania Investors in the Pennsylvania Escrow Account, and the Escrow Agent shall be entitled to rely upon information provided by the Company or its agents in this regard.
Proceeds received from Tennessee Investors shall be accounted for separately in a subaccount entitled “Escrow Account for the Benefit of Tennessee Investors for American Realty Capital Global Trust, Inc.” (including such abbreviations as are required for the Escrow Agent’s systems) (the “Tennessee Escrow Account,” and together with the Escrow Account and the Pennsylvania Escrow Account, the “Company Escrow Accounts”), until such Tennessee Escrow Account has closed pursuant to Section 5. The Company shall, and shall cause its agents to, cooperate with the Escrow Agent in separately accounting for Investor Funds from Tennessee Investors in the Tennessee Escrow Account, and the Escrow Agent shall be entitled to rely upon information provided by the Company or its agents in this regard.
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 Company Accounts 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 (including Pennsylvania and Tennessee 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, “UMB BANK, NA, ESCROW AGENT FOR AMERICAN REALTY CAPITAL GLOBAL 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, the amount of Securities subscribed for purchase, the amount paid and whether such Investors are Pennsylvania Investors or Tennessee Investors. 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. The Escrow Agent shall be entitled to conclusively rely upon the List of Investors in determining whether Investors are Pennsylvania Investors or Tennessee Investors, and shall have no duty to independently determine or verify the same.
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.
2 |
All Investor Funds deposited in the Company Escrow Accounts 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 Company Escrow Accounts and no such funds shall become the property of the Company, or any other entity except as released to the Company pursuant to Sections 3, 4 or 5 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.
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 ten (10) business 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).
3 |
If the Pennsylvania Minimum Amount has not been obtained prior to the Termination Date, the Escrow Agent shall promptly refund to each Pennsylvania Investor by check funds deposited in the Pennsylvania Escrow Account, or shall return the instruments of payment delivered to Escrow Agent if such instruments have not been processed for collection prior to such time, directly to each Pennsylvania Investor 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 Pennsylvania 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, 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 is not in receipt of evidence of subscriptions accepted on or before the close of business on such date that is 120 days after commencement of the Offering (the Company will notify the Escrow Agent in writing of the commencement date of the Offering) (the “Initial Escrow Period”), and instruments of payment dated not later than that date, for the purchase of Securities providing for total purchase proceeds from all nonaffiliated sources that equal or exceed the Pennsylvania Minimum Amount, the Escrow Agent shall promptly notify the Company. Thereafter, the Company or its agents shall send to each Pennsylvania Investor by certified mail within ten (10) calendar days after the end of the Initial Escrow Period a notification substantially in the form of Exhibit F. If, pursuant to such notification, a Pennsylvania Investor requests the return of his or her Investor Funds within ten (10) calendar days after receipt of the notification (the “Request Period”), the Escrow Agent shall promptly refund directly to each Pennsylvania Investor the collected funds deposited in the Pennsylvania Escrow Account on behalf of such Pennsylvania Investor or shall return the instruments of payment delivered, but not yet processed for collection prior to such time, to the address provided on the List of Investors, upon which the Escrow Agent shall be entitled to rely, together with interest income earned as determined in accordance with the terms and conditions specified herein (which interest shall be paid within five business days after the first business day of the succeeding month). Notwithstanding the above, if the Escrow Agent has not received an executed Form W-9 or substitute Form W-9 for such Pennsylvania Investor, the Escrow Agent shall thereupon remit an amount to such Pennsylvania Investor in accordance with the provisions hereof, withholding the applicable percentage for backup withholding required by the Internal Revenue Code, as then in effect, from any interest income earned on Investor Funds (determined in accordance with the terms and conditions specified herein) attributable to such Pennsylvania Investor. However, the Escrow Agent shall not be required to remit such payments until the Escrow Agent has collected funds represented by such payments.
4 |
The Investor Funds of Pennsylvania Investors who do not request the return of their Investor Funds within the Request Period shall remain in the Pennsylvania Escrow Account for successive 120-day escrow periods (a “Successive Escrow Period”), each commencing automatically upon the termination of the prior Successive Escrow Period, and the Company and Escrow Agent shall follow the notification and payment procedure set forth above with respect to the Initial Escrow Period for each Successive Escrow Period until the occurrence of the earliest of (i) the Termination Date, (ii) the receipt and acceptance by the Company of subscriptions for the purchase of Securities with total purchase proceeds that equal or exceed the Pennsylvania Minimum Amount and the disbursement of the Pennsylvania Escrow Account on the terms specified herein, and (iii) all funds held in the Pennsylvania Escrow Account having been returned to the Pennsylvania Investors in accordance with the provisions hereof.
If the Tennessee Minimum Amount has not been obtained prior to the Termination Date, the Escrow Agent shall promptly refund to each Tennessee Investor by check funds deposited in the Tennessee 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 Tennessee 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 Tennessee 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, 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.
5 |
6 |
7 |
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.
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 |
If to the Company:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Xx., President, Chief Operating Officer, Treasurer and Secretary
Attention: Xxxxx X. Block, Executive Vice President and Chief Financial Officer
with a copy to:
Proskauer Rose LLP
Xxxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
If to the Dealer Manager:
Realty Capital Securities, LLC
Three Xxxxxx Place
Suite 3300
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, President
with a copy to:
Proskauer Rose LLP
Xxxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
and:
American Realty Capital Global Trust, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Xx., President, Chief Operating Officer, Treasurer and Secretary
Attention: Xxxxx X. Block, Executive Vice President and Chief Financial Officer
9 |
If to Escrow Agent:
UMB Bank, N.A.
0000 Xxxxx Xxxx., 0xx Xxxxx
Mail Stop: 1020409
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Corporate Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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.
13. 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.
10 |
11 |
[Signature page follows]
12 |
AMERICAN REALTY CAPITAL GLOBAL TRUST, INC. | ||
By: | /s/ Xxxxxxxx X. Xxxxxxxx | |
Name: Xxxxxxxx X. Xxxxxxxx | ||
Title: Chief Executive Officer | ||
REALTY CAPITAL SECURITIES, LLC | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx Xxxxxx | ||
Title: President | ||
UMB BANK, N.A., as Escrow Agent | ||
By: | /s/ Xxxxx X. XxXxxxx | |
Name: Xxxxx X. XxXxxxx | ||
Title: Senior Vice President |
13 |
Exhibit A
Copy of Offering Document
14 |
Exhibit B
List of Investors
Pursuant to the Amended and Restated Escrow Agreement dated as of August 14, 2012, among Realty Capital Securities, LLC, American Realty Capital Global Trust, Inc. (the “Company”), and UMB Bank, N.A. (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:
1. | Name of Investor |
Address | |
Tax Identification Number | |
Amount of Securities subscribed for | |
Amount of money paid and deposited with Escrow Agent | |
Is Investor a resident of Pennsylvania (Yes or No)? | |
Is Investor a resident of Tennessee (Yes or No)? | |
2. | Name of Investor |
Address | |
Tax Identification Number | |
Amount of Securities subscribed for | |
Amount of money paid and deposited with Escrow Agent | |
Is Investor a resident of Pennsylvania (Yes or No)? | |
Is Investor a resident of Tennessee (Yes or No)? |
Dated: ________________________________________________
REALTY CAPITAL SECURITIES, LLC
By: | ||
Name: Xxxxxx Xxxxxx | ||
Title: President |
15 |
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 Global Trust, Inc. and are authorized to initiate and approve transactions of all types for the above-mentioned account on behalf of American Realty Capital Global Trust, Inc.
Name/Title | Specimen Signature | |
Xxxxxxxx X. Xxxxxxxx | ||
Chief Executive Officer | Signature | |
Xxxxxx X. Xxxx, Xx. | ||
President, Chief Operating Officer, Treasurer and Secretary | Signature | |
Xxxxx Xxxxx | ||
Executive Vice President and Chief Financial Officer | Signature |
16 |
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.
Name/Title | Specimen Signature | |
Xxxxxx X. Xxxx, Xx. | ||
Chief Executive Officer | Signature | |
Xxxxxx Xxxxxx | ||
President | Signature |
17 |
Exhibit D
ESCROW FEES AND EXPENSES
Acceptance Fee
Review escrow agreement, establish account $3,000
DST Agency Engagement (if applicable) $250
Annual Fees
Annual Escrow Agent $2,500
BAI Files $50 per month
Outgoing Wire Transfer $15 each
Daily Recon File to Transfer Agent $2.50 per Bus. Day
Web Exchange Access $15 per month
Overnight Delivery/Mailings $16.50 each
IRS Tax Reporting $10 per 1099
Fees specified are for the regular, routine services contemplated by the Escrow Agreement, and any additional or extraordinary services, including, but not limited to disbursements involving a dispute or arbitration, or administration while a dispute, controversy or adverse claim is in existence, will be charged based upon time required at the then standard hourly rate. In addition to the specified fees, all expenses related to the administration of the Escrow Agreement (other than normal overhead expenses of the regular staff) such as, but not limited to, travel, postage, shipping, courier, telephone, facsimile, supplies, legal fees, accounting fees, etc., will be reimbursable.
Acceptance fee and first year Annual Escrow Agent fee will be payable at the initiation of the escrow. Thereafter, the Annual Escrow Agent fees will be billed in advance and transactional fees will be billed in arrears. Other fees and expenses will be billed as incurred.
18 |
Exhibit E
Agency and Custody Account Direction
For Cash Balances
UMB Bank Money Market Deposit Accounts
Direction to use the following UMB 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 UMB Bank, N.A. (“Bank”):
UMB Bank Money Market Deposit Account (“MMDA”)
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.
American Realty Capital Global Trust, Inc. | ||
By: | ||
Signature |
Date |
19 |
Exhibit F
[Form of Notice to Pennsylvania Investors]
You have tendered a subscription to purchase shares of common stock of American Realty Capital Global Trust, Inc. (the “Company”). Your subscription is currently being held in escrow. The guidelines of the Pennsylvania Securities Commission do not permit the Company to accept subscriptions from Pennsylvania residents until an aggregate of $75,000,000 of gross offering proceeds have been received by the Company. The Pennsylvania guidelines provide that until this minimum amount of offering proceeds is received by the Company, every 120 days during the offering period Pennsylvania Investors may request that their subscription be returned. If you wish to continue your subscription in escrow until the Pennsylvania minimum subscription amount is received, nothing further is required.
If you wish to terminate your subscription for the Company’s common stock and have your subscription returned please so indicate below, sign, date, and return to the Escrow Agent, UMB Bank, N.A. at 0000 Xxxxx Xxxx., 0xx Xxxxx, Mail Stop: 1020409, Xxxxxx Xxxx, Xxxxxxxx 00000, Attn: Xxxx Xxxxxxx, Corporate Trust.
I hereby terminate my prior subscription to purchase shares of common stock of American Realty Capital Global Trust, Inc. and request the return of my subscription funds. I certify to American Realty Capital Global Trust, Inc. that I am a resident of Pennsylvania.
Signature: | |
Name: | |
(please print) | |
Date: |
Please send the subscription refund to:
20 |