EX-10.1
8
v125432_ex10-1.htm
AMENDED
AND RESTATED
SUBSCRIPTION
ESCROW AGREEMENT
This
AMENDED AND RESTATED
SUBSCRIPTION ESCROW AGREEMENT, dated as of July 15, 2008
(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”), and hereby
amends and restates in its entirety that certain
SUBSCRIPTION ESCROW AGREEMENT
entered by and among
the
Company, the Dealer Manager, and the Escrow Agent as of December 11,
2007.
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 of the Company have been received for Stock,
resulting in total minimum capital raised of $7,500,000 (the “Minimum Amount”)
and, thereafter, in a total minimum capital raised of $45,000,000 (the “PA &
MA Minimum Amount”)
and thereafter, 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 in accordance with the
terms
set forth herein; 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.
(a) 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 it 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 less the
funds in the Escrow Account representing proceeds from subscriptions of
Investors who are Pennsylvania or Massachusetts residents, and (ii) disburse
to
the subscribers any interest thereon calculated pursuant to the provisions
of
Section 5. Proceeds from Pennsylvania and Massachusetts residents
will count towards
meeting
the Minimum Amount, but, pursuant to Section 4(b) below, such
proceeds from Pennsylvania and Massachusetts residents will not be released
from
escrow until the PA & MA Minimum Amount is reached.
(b) Following
such disbursements in Section 4(a) above, the Escrow Agent shall thereafter
deposit into the Escrow Account funds contributed from subscriptions of
Investors who are Pennsylvania or Massachusetts residents and with respect
to
subscribers that are not Pennsylvania or Massachusetts residents, (i) will
forward directly to American Realty Capital Trust, Inc, Account @ Wachovia
National Bank upon receipt by Escrow Agent of any subscription
documents received by Escrow Agent f and (ii) disburse to American Realty
Capital Trust,
Inc, Account @ Wachovia National Bank, by check or wire transfer, the funds
in
the Escrow Account representing the gross purchase price for the Stock by
Investors who are not Pennsylvania or Massachusetts residents. If, payments
of
the PA & MA 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 C 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 PA & MA Minimum Amount of Shares, then the Escrow Agent shall (x)
disburse to the Company, by check or
wire
transfer, the funds in the Escrow Account representing the gross purchase price
for the Stock, and (y) disburse to the subscribers any interest thereon
calculated pursuant to the provisions of Section 5.
(c) Following
such disbursements in Sections 4(a) and (b) above, 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.
(d) If
the
Minimum Amount and PA & MA 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) January 25, 2009 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 therefor 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:
American
Realty Capital Trust, Inc.
c/o
American Realty Capital
0000
Xxx
Xxxxxxx
Xxxxxxxxxx,
XX 00000
If
to the
Dealer Manager, to:
Realty
Capital Securities
Three
Xxxxxx Place, Suite 3300
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 Schedule
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.
| | | |
| | AMERICAN
REALTY
CAPITAL TRUST, INC. |
|
|
|
|
| | By: | /s/ Xxxxx
X.
Block |
| |
Name:
Xxxxx X. Block |
| | Title:
Chief Financial Officer |
| | | |
| | REALTY
CAPITAL
SECURITIES, LLC |
|
|
|
|
| | By: | /s/ Xxxxxx
Xxxxxx |
| |
Name:
Xxxxxx Xxxxxx |
| | Title:
Senior Vice President |
| | | |
| |
BOSTON
PRIVATE
BANK & TRUST COMPANY,
as
Escrow Agent
|
|
|
|
|
| | By: | /s/ Xxxxxxxx
X. XxXxxxxxx |
| |
Name:
Xxxxxxxx X. XxXxxxxxx |
| | Title:
Senior Vice President |
| | | |
| | |
| | | |
| | By: | /s/ Torrance
Childs |
| |
Name:
Torrance Childs |
| | Title:
Senior Vice President and Director of
Sales |
Schedule
II
$3,000.00
Initial Administrative Fee
$1,500.00
Annual Fee
TBD
-
Legal Fees
