FORM OF SUBSCRIPTION ESCROW AGREEMENT
Exhibit
10.1
THIS SUBSCRIPTION ESCROW
AGREEMENT dated as
of ,
2010 (this “Escrow
Agreement”), is entered into among Realty Capital Securities, LLC (the
“Dealer Manager”),
American Realty Capital New York Recovery REIT, Inc. (the “Company”) and Xxxxx Fargo
Bank, National Association, as Escrow Agent (the “Escrow Agent”).
WHEREAS, the Company intends
to raise cash funds from investors (the “Investors”) pursuant to a
public offering (the “Offering”) of not less than
200,000 (the “Minimum
Amount”) nor more than 150,000,000 shares of common stock, par value
$0.01 of the Company (the “Securities”), pursuant to the
registration statement on Form S-11 of the Company (No. 333-163069) (as amended,
the “Offering
Document”) a copy of which is attached as Exhibit A hereto.
WHEREAS, the Company desires
to establish an escrow account with the Escrow Agent for funds contributed by
the Investors with the Escrow Agent, to be held for the benefit of the Investors
and the Company until such time as (i) subscriptions for the Minimum Amount of
the Securities, have been deposited into escrow or otherwise in accordance with
the terms of this Escrow Agreement, and (ii) in the case of subscriptions
received from residents of Pennsylvania (“Pennsylvania Investors”),
aggregate subscriptions from all Investors resulting in a total minimum capital
raised of $50,000,000 (the “Pennsylvania Minimum Amount”) and
deposited into escrow or otherwise provided in accordance with the terms of this
Escrow Agreement.
WHEREAS, the Escrow Agent is
willing to accept appointment as escrow agent only for the expressed duties
outlined herein.
NOW, THEREFORE, in
consideration of the premises set forth above and other good and valuable
consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
1.
Proceeds to be Escrowed.
On or before the first date of the Offering, the Company shall establish
an escrow account with the Escrow Agent to be invested in accordance with
Section 8 hereof entitled “ESCROW ACCOUNT FOR THE BENEFIT OF INVESTORS FOR
COMMON STOCK OF AMERICAN REALTY CAPITAL NEW YORK RECOVERY REIT, 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
also shall include Pennsylvania 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 Escrow 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 New York Recovery REIT, Inc.” (including
such abbreviations as are required for the Escrow
Agent’s systems) (the “Pennsylvania
Escrow Account,” and together
with the Escrow Account, the “ARC NYRR Escrow Accounts”),
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.
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 ARC NYRR Escrow 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 Investors) will be instructed by Realty
Capital Securities, LLC (the “Dealer Manager”) or any
soliciting dealers to remit the purchase price in the form of checks
(hereinafter “instruments of payment”) payable to the order of, or funds wired
in favor of, “XXXXX FARGO BANK, NA, ESCROW AGENT FOR AMERICAN REALTY CAPITAL NEW
YORK RECOVERY REIT, 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 Escrow Agent shall be furnished
with a list of the Investors who have paid for the Securities showing the name,
address, tax identification number, amount of Securities subscribed for, the
amount paid and whether such Investors are Pennsylvania
Investors. 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 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, and shall have no duty to independently determine or verify the
same.
All Investor Funds deposited in the ARC
NYRR 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 ARC NYRR 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 Section
3, or, for Pennsylvania Investors, Section 4. The Escrow Agent will
not use the information provided to it by the Company for any purpose other than
to fulfill its obligations as Escrow Agent. The Company and the
Escrow Agent will treat all Investor information as confidential. The
Escrow Agent shall not be required to accept any Investor Funds which are not
accompanied by the information on the List of Investors.
3.
Disbursement of
Funds. Once the Escrow Agent is in receipt of good and
collected Investor Funds totaling at least the Minimum Amount from Investors
(excluding funds from Pennsylvania Investors), the Escrow Agent shall notify the
Company of same in writing. Additionally, at the end of the third business day
following the Termination Date (as defined in Section 5), the Escrow Agent shall
notify the Company of the amount of the Investor Funds received. If
the Minimum Amount has been obtained on or before the Termination Date, the
Escrow Agent shall promptly notify the Company and, upon receiving an
acknowledgement of such notice written instructions from the Company’s General
Counsel or Chief Financial Officer, the Escrow Agent shall disburse to the
Company, by check or wire transfer, the funds in the Escrow Account representing
the gross purchase price of the Securities, except
for amounts payable by the Company to the Escrow Agent pursuant to Exhibit D to this Escrow Agreement
that remain outstanding. The Escrow Agent agrees that funds in
the Escrow Account shall not be released to the Company until and unless the
Escrow Agent receives written instructions to release the funds from the
Company’s General Counsel or Chief Financial Officer.
If the Minimum Amount has not been
obtained 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 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
in 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 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 collected sums paid by the Investor for
Securities and received by the Escrow Agent, together with the interest earned
on such Investor Funds.
4.
Disbursement of Proceeds for
Pennsylvania Investors. Notwithstanding
the foregoing, proceeds from Pennsylvania Investors will not count towards
meeting the Minimum Amount for purposes of Section 3. Proceeds
received from Pennsylvania Investors will not be released from the Pennsylvania
Escrow Account until the Pennsylvania Minimum Amount is obtained. If
the Pennsylvania Minimum Amount is obtained at any time prior to the Termination
Date, the Escrow Agent shall promptly notify the Company and, upon receiving
acknowledgement of such notice and written instructions from the Company’s
General Counsel or Chief Financial Officer, the Escrow Agent shall disburse to
the Company, by check or wire transfer, the funds in the Pennsylvania Escrow
Account representing the gross purchase price of the Securities, except
for amounts payable by the Company to the Escrow Agent pursuant to Exhibit D to this
Escrow Agreement that remain outstanding. The Escrow
Agent agrees that funds in the Pennsylvania Escrow Account shall not be released
to the Company until and unless the Escrow Agent receives written instructions
to release the funds from the Company’s General Counsel or Chief Financial
Officer.
If the
Pennsylvania Minimum Amount has not been obtained 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 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 in 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 by the Dealer Manager or the Company or their respective
agents to the Escrow Agent, which the Escrow Agent shall be entitled to rely
upon, together with interest income (which interest shall be paid within five
business days after the first business day of the succeeding month) in the
amounts calculated pursuant to Section
8. 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
Section 8) 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.
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.
5.
Term of Escrow. The
"Termination Date" shall be the earliest of: (i) the close of business on the
one year anniversary of the date of this Escrow Agreement; (ii) all funds held
in the ARC NYRR Escrow Accounts are distributed to the Company or to Investors
pursuant to Section 3,
or, for Pennsylvania Investors, Section 4, and the Company has
informed the Escrow Agent in writing to close each of the ARC NYRR Escrow
Accounts; (iii) the date the Escrow Agent receives written notice from the
Company that it is abandoning the sale of the Securities; and (iv) the date
the Escrow Agent receives notice from the Securities and Exchange Commission or
any other federal or state regulatory authority that a stop or similar order has
been issued with respect to the Offering Document and has remained in effect for
at least twenty (20) days. After the Termination Date the Company and
its agents shall not deposit, and the Escrow Agent shall not accept, any
additional amounts representing payments by prospective Investors.
6.
Duty
and Liability of the Escrow Agent. The sole duty of the Escrow Agent
shall be to receive Investor Funds and hold them subject to release, in
accordance herewith, and the Escrow Agent shall be under no duty to determine
whether the Company or the Dealer Manager is complying with requirements of this
Escrow Agreement, the Offering or applicable securities or other laws in
tendering the Investor Funds to the Escrow Agent. No other agreement entered
into between the parties, or any of them, shall be considered as adopted or
binding, in whole or in part, upon the Escrow Agent notwithstanding that any
such other agreement may be referred to herein or deposited with the Escrow
Agent or the Escrow Agent may have knowledge thereof, including specifically but
without limitation any Offering Documents (including
the subscription agreement and exhibits thereto), and the
Escrow Agent's rights and responsibilities shall be governed solely by this
Escrow Agreement. The Escrow Agent shall not be responsible for or be
required to enforce any of the terms or conditions of any Offering Document
(including
the subscription agreement and exhibits thereto) or other agreement
between the Company and any other party. The Escrow Agent may
conclusively rely upon and shall be protected in acting upon any statement,
certificate, notice, request, consent, order or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Escrow Agent shall have no duty or liability to verify any such statement,
certificate, notice, request, consent, order or other document, and its sole
responsibility shall be to act only as expressly set forth in this Escrow
Agreement. Concurrent with the execution of this Escrow Agreement, the Company
shall deliver to the Escrow Agent an authorized signers form in the form of
Exhibit C to this Escrow
Agreement. The Escrow Agent shall be under no obligation to institute
or defend any action, suit or proceeding in connection with this Escrow
Agreement unless first indemnified to its satisfaction. The Escrow
Agent may consult counsel of its own choice with respect to any question arising
under this Escrow Agreement and the Escrow Agent shall not be liable for any
action taken or omitted in good faith upon advice of such
counsel. The Escrow Agent shall not be liable for any action taken or
omitted by it in good faith except to the extent that a court of competent
jurisdiction determines that the Escrow Agent's gross negligence or willful
misconduct was the primary cause of loss. The Escrow Agent is acting solely as
escrow agent hereunder and owes no duties, covenants or obligations, fiduciary
or otherwise, to any other person by reason of this Escrow Agreement, except as
otherwise stated herein, and no implied duties, covenants or obligations,
fiduciary or otherwise, shall be read into this Escrow Agreement against the
Escrow Agent. If any disagreement between any of the parties to this
Escrow Agreement, or between any of them and any other person, including any
Investor, resulting in adverse claims or demands being made in connection with
the matters covered by this Escrow Agreement, or if the Escrow Agent is in
doubt as to what action it should take hereunder, the Escrow Agent may, at its
option, refuse to comply with any claims or demands on it, or refuse to take any
other action hereunder, so long as such disagreement continues or such doubt
exists, and in any such event, the Escrow Agent shall not be or become liable in
any way or to any person for its failure or refusal to act, and the Escrow Agent
shall be entitled to continue so to refrain from acting until (i) the rights of
all interested parties shall have been fully and finally adjudicated by a court
of competent jurisdiction, or (ii) all differences shall have been adjudged and
all doubt resolved by agreement among all of the interested persons, and the
Escrow Agent shall have been notified thereof in writing signed by all such
persons. Notwithstanding the foregoing, the Escrow Agent may in its discretion
obey the order, judgment, decree or levy of any court, whether with or without
jurisdiction and the Escrow Agent is hereby authorized in its sole discretion to
comply with and obey any such orders, judgments, decrees or
levies. If any controversy should arise with respect to this Escrow
Agreement the Escrow Agent shall have the right, at its option, to institute an
interpleader action in any court of competent jurisdiction to determine the
rights of the parties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE,
DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR
DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN
IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR
DAMAGES AND REGARDLESS OF THE FORM OF ACTION. The parties agree that
the Escrow Agent has no role in the preparation of the Offering Documents (including
the subscription agreement and exhibits thereto) and makes no
representations or warranties with respect to the information contained therein
or omitted therefrom. The Escrow Agent shall have no obligation, duty
or liability with respect to compliance with any federal or state securities,
disclosure or tax laws concerning the Offering Documents (including
the subscription agreement and exhibits thereto) or the issuance,
offering or sale of the Securities. The Escrow Agent shall have no
duty or obligation to monitor the application and use of the Investor Funds once
transferred to the Company, that being the sole obligation and responsibility of
the Company.
7.
Escrow Agent's Fee. The Escrow
Agent shall be entitled to compensation for its services as stated in the fee
schedule attached hereto as Exhibit
D, which compensation shall be paid by the Company. The fee agreed upon
for the services rendered hereunder is intended as full compensation for the
Escrow Agent's services as contemplated by this Escrow Agreement; provided,
however, that if the conditions for the disbursement of funds under this
Escrow Agreement are not fulfilled, or the Escrow Agent renders any material
service not contemplated in this Escrow Agreement, or there is any assignment of
interest in the subject matter of this Escrow Agreement, or any material
modification hereof, or if any material controversy arises hereunder, or the
Escrow Agent is made a party to any litigation pertaining to this Escrow
Agreement, or the subject matter hereof, then the Escrow Agent shall be
reasonably compensated for such extraordinary services and reimbursed for all
costs and expenses, including reasonable attorney's fees, occasioned by any
delay, controversy, litigation or event, and the same shall be recoverable from
the Company. The Company’s obligations under this Section 7
shall survive the resignation or removal of the Escrow Agent and the assignment
or termination of this Escrow Agreement.
8.
Investment of Investor Funds.
The Investor Funds shall be deposited in the ARC NYRR Escrow Accounts in
accordance with Section 3,
or, for Pennsylvania Investors, Section 4. The Escrow Agent
is hereby directed to invest all funds received under this Escrow Agreement,
including principal and interest in, the Xxxxx Fargo Bank Money Market
Deposit Account, as directed in writing in the form of Exhibit E to this Escrow
Agreement. The Escrow Agent shall invest the Investor Funds in
alternative investments in accordance with written instructions as may from time
to time be provided to the Escrow Agent and signed by the Company. In
the absence of written investment instructions from the Company to the contrary,
the Escrow Agent is hereby directed to invest the Investor Funds in the Xxxxx
Fargo Bank Money Market Deposit Account. Notwithstanding the
foregoing, Investor Funds shall not be invested in anything other than “Short
Term Investments” in compliance with Rule 15c2-4 of the Securities Exchange Act
of 1934, as amended. The following are not permissible investments:
(a) money market mutual funds; (b) corporate debt or equity securities; (c)
repurchase agreements; (d) banker’s acceptance; (e) commercial paper; and (f)
municipal securities. Any interest received by the Escrow Agent with
respect to the Investor Funds, including reinvested interest shall become part
of the Investor Funds, and shall be disbursed pursuant to Section 3, or, for Pennsylvania
Investors, Section
4.
The Escrow Agent shall be entitled to
sell or redeem any such investments as necessary to make any payments or
distributions required under this Escrow Agreement. The Escrow Agent
shall have no responsibility or liability for any loss which may result from any
investment made pursuant to this Escrow 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 Escrow 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. 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 Escrow Agreement.
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
Escrow 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 Escrow Agreement and the resignation or removal of the
Escrow Agent.
9. Notices. All
notices, requests, demands, and other communications under this Escrow Agreement
shall be in writing and shall be deemed to have been duly given (a) on the date
of service if served personally on the party to whom notice is to be given, (b)
on the day of transmission if sent by facsimile/email transmission bearing an
authorized signature to the facsimile number/email address given below, and
written confirmation of receipt is obtained promptly after completion of
transmission, (c) on the day after delivery to Federal Express or similar
overnight courier or the Express Mail service maintained by the United States
Postal Service, or (d) on the fifth day after mailing, if mailed to the party to
whom notice is to be given, by first class mail, registered or certified,
postage prepaid, and properly addressed, return receipt requested, to the party
as follows:
If to the
Company:
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention: Xxxxxxx
Xxxx, Executive Vice President and Secretary
Attention: Xxxxx
X. Block, Executive Vice President and Chief Financial Officer
with a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention:
Xxxxx X. Xxxx, Esq.
Attention: Xxxxx
X. Gerkis, Esq.
If to the
Dealer Manager:
Realty
Capital Securities, LLC
Three
Xxxxxx Place
Suite
3300
Xxxxxx,
XX 00000
Attention: Xxxxxx
Xxxxxx, President
with a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention:
Xxxxx X. Xxxx, Esq.
Attention: Xxxxx
X. Gerkis, Esq.
and:
American
Realty Capital New York Recovery REIT, Inc.
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention: Xxxxxxx
Xxxx, Executive Vice President and Secretary
Attention: Xxxxx
X. Block, Executive Vice President and Chief Financial Officer
If to
Escrow Agent:
Xxxxx
Fargo Bank, National Association
00
Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Fax:
(000) 000-0000
Attention: Xxxx
Xxxxxxx
Any party
may change its address for purposes of this Section by giving the other party
written notice of the new address in the manner set forth above.
10. Indemnification of Escrow Agent.
The Company and the Dealer Manager hereby jointly and severally
indemnify, defend and hold harmless the Escrow Agent from and against, any and
all loss, liability, cost, damage and expense, including, without limitation,
reasonable counsel fees and expenses, which the Escrow Agent may suffer or incur
by reason of any action, claim or proceeding brought against the Escrow Agent
arising out of or relating in any way to this Escrow Agreement or any
transaction to which this Escrow Agreement relates unless such loss, liability,
cost, damage or expense is finally determined by a court of competent
jurisdiction to have been primarily caused by the willful misconduct of the
Escrow Agent. The terms of this Section shall survive the termination
of this Escrow Agreement and the resignation or removal of the Escrow
Agent.
11. Successors and Assigns. Except
as otherwise provided in this Escrow Agreement, no party hereto shall assign
this Escrow Agreement or any rights or obligations hereunder without the prior
written consent of the other parties hereto and any such attempted assignment
without such prior written consent shall be void and of no force and effect.
This Escrow Agreement shall inure to the benefit of and shall be binding upon
the successors and permitted assigns of the parties hereto. Any
corporation or association into which the Escrow Agent may be converted or
merged, or with which it may be consolidated, or to which it may sell or
transfer all or substantially all of its corporate trust business and assets as
a whole or substantially as a whole, or any corporation or association resulting
from any such conversion, sale, merger, consolidation or transfer to which the
Escrow Agent is a party, shall be and become the successor Escrow Agent under
this Escrow Agreement and shall have and succeed to the rights, powers, duties,
immunities and privileges as its predecessor, without the execution or filing of
any instrument or paper or the performance any further act.
12. Governing Law; Jurisdiction.
This Escrow 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.
13. Severability. If any part of
this Escrow Agreement is declared by any court or other judicial or
administrative body to be null, void, or unenforceable, said provision shall
survive to the extent it is not so declared, and all of the other provisions of
this Escrow Agreement shall remain in full force and effect.
14. Amendments; Waivers. This
Escrow Agreement may be amended or modified, and any of the terms, covenants,
representations, warranties, or conditions hereof may be waived, only by a
written instrument executed by the parties hereto, or in the case of a waiver,
by the party waiving compliance. Any waiver by any party of any condition, or of
the breach of any provision, term, covenant, representation, or warranty
contained in this Escrow Agreement, in any one or more instances, shall not be
deemed to be nor construed as further or continuing waiver of any such
condition, or of the breach of any other provision, term, covenant,
representation, or warranty of this Escrow Agreement. The Company and
the Dealer Manager agree that any requested waiver, modification or amendment of
this Escrow Agreement shall be consistent with the terms of the
Offering.
15. Entire Agreement. This Escrow
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the escrow contemplated hereby and supersedes and
replaces all prior and contemporaneous agreements and understandings, oral or
written, with regard to such escrow.
16. Section Headings. The section
headings in this Escrow Agreement are for reference purposes only and shall not
affect the meaning or interpretation of this Escrow Agreement.
17.
Counterparts. This Escrow Agreement may be
executed (including by facsimile transmission) with counterpart signature
pages or in counterparts, each of which shall be deemed an original, but
all of which shall constitute the same instrument.
18.
Resignation.
The Escrow Agent may resign upon 30
days’ advance written notice to the parties hereto. If a successor escrow
agent is not appointed by the Company within the 30-day period following
such notice, the Escrow Agent may petition any court of competent
jurisdiction to name a successor escrow agent, or may interplead the
Investor Funds with such court, whereupon the Escrow Agent’s duties
hereunder shall terminate.
19. References to Escrow
Agent. Other than the Offering Document (including the
subscription agreement and exhibits thereto) and any amendments thereof or
supplements thereto, no printed or other matter in any language (including,
without limitation, notices, reports and promotional material) which mentions
the Escrow Agent’s name or the rights, powers, or duties of the Escrow Agent
shall be issued by the Company or the Dealer Manager, or on the Company’s or the
Dealer Manager’s behalf, unless the Escrow Agent shall first have given its
specific written consent thereto. Notwithstanding the foregoing, any
amendment or supplement to the Offering Document (including the subscription
agreement and exhibits thereto) that revises, alters, modifies, changes or adds
to the description of the Escrow Agent or its rights, powers or duties hereunder
shall not be issued by the Company or the Dealer Manager, or on the Company’s or
Dealer Manager’s behalf, unless the Escrow Agent has first given specific
written consent thereto.
[Signature
page follows]
IN WITNESS WHEREOF, the
parties hereto have caused this Escrow Agreement to be executed the date and
year first set forth above.
AMERICAN
REALTY CAPITAL
NEW YORK
RECOVERY REIT, INC.
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By:
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Name:
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Xxxxxxxx
X. Xxxxxxxx
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Title:
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Chief
Executive Officer
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REALTY
CAPITAL SECURITIES, LLC
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By:
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Name:
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Xxxxxx
Xxxxxx
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Title:
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President
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XXXXX
FARGO BANK, NATIONAL
ASSOCIATION,
as Escrow Agent
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By:
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Name:
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Title:
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Exhibit
A
Copy of
Offering Document
Exhibit
B
List of
Investors
Pursuant
to the Escrow Agreement dated as
of ,
2010, among Realty
Capital Securities, LLC, American Realty Capital New York Recovery REIT,
Inc., (the “Company”),
and Xxxxx Fargo Bank, National Association (the “Escrow Agent”), the Company
hereby certifies that the following Investors have paid money for the purchase
of shares of the Company’s common stock, par value $0.01, and the money has been
deposited with the Escrow Agent:
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1.
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Name
of Investor
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Address
Tax
Identification Number
Amount of
Securities subscribed for
Amount of
money paid and deposited with Escrow Agent
Is
Investor a
resident of Pennsylvania (Yes or No)?
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2.
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Name
of Investor
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Address
Tax
Identification Number
Amount of
Securities subscribed for
Amount of
money paid and deposited with Escrow Agent
Is
Investor a
resident of Pennsylvania (Yes or No)?
Dated:
________________________
REALTY
CAPITAL SECURITIES, LLC
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By:
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Name: Xxxxxx
Xxxxxx
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Title:
President
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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 New York
Recovery REIT, Inc. and are authorized to initiate and approve
transactions of all types for the above-mentioned account on behalf of American Realty Capital New York
Recovery REIT, Inc.
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Name/Title
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Specimen
Signature
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Xxxxxxxx
X. Xxxxxxxx
Chief
Executive Officer
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_______________________________
Signature
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Xxxxxxx
X. Xxxxxx
President
and Treasurer
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_______________________________
Signature
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Xxxxxxx
Xxxxxx
Executive
Vice President and Chief Investment Officer
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_______________________________
Signature
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Xxxxx
Xxxxx
Executive
Vice President and Chief Financial Officer
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_______________________________
Signature
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Xxxxxxx
Xxxx
Executive
Vice President and Secretary
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_______________________________
Signature
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Exhibit
D
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Wells
Fargo Bank
Corporate
Trust Services
0000
Xxxx Xxxxxx, 0xx
Xxxxx
Xxx
X0000-000
Xxxxxx,
XX 00000
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[NAME]
[POSITION]
Tel: [__________]
Fax: [__________]
[EMAIL]
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[logo] |
GENERAL
SCHEDULE OF FEES
to
act as ESCROW AGENT for the
American
Realty Capital New York Recovery REIT, Inc. Subscription Escrow up to
$50,000,000
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Acceptance
Fee:
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$500
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Initial
Fees as they relate to Xxxxx Fargo Bank acting in the capacity of Escrow Agent –
includes review of the Escrow Agreement; acceptance of the Escrow appointment;
setting up of Escrow Account(s) and accounting records; and coordination of
receipt of funds for deposit to the Escrow Account(s).
Acceptance
Fee payable at time of Escrow Agreement execution.
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Escrow Agent Annual
Administration Fee:
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$5,000.00
on first offering, $3,500 on
subsequent
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Pennsylvania
Sub-Accounting Administration Fee:
$750
For
ordinary administrative services by Escrow Agent – includes daily routine
account management; investment transactions; cash transaction processing
(including wire and check processing); monitoring claim notices pursuant to the
agreement; disbursement of funds in accordance with the agreement; and mailing
of trust account statements to all applicable parties. Float credit
received by the bank for receiving funds that remain uninvested are deemed part
of the Paying Agent/Escrow Agent’s compensation. These fees do not
contemplate paying interest to Investors or providing 1099s which would be the
responsibility of ACS. If individual 1099s, interest checks, interest accrual
calculations or any individual Investor information are required additional fees
will be charged. For rejected subscriptions or a failed offering, the
following fees will apply.
1099
Reporting $25 each
Interest
Rate Calculations and Interest Checks/Wires $ 35 each
Returned
Item Charges $35 each
The administrative fee is payable in
advance, with the first year fee due upon opening of the account. The
Annual Fee covers a full year or any part thereof, and therefore will not be
prorated or refunded in the year of early termination. These fees do
not include bank activity fees associated with Desktop Deposit
system. Fees for these services will be provided separately by our
Treasury Management Group.
Xxxxx
Fargo’s bid is based on the following assumptions:
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·
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Number
of Escrow Accounts to be
established: Two (2)
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·
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Number
of Deposits to Escrow Accounts: Electronically, approximately
(10-20 per day)
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·
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Number
of Withdrawals from Escrow Accounts: Not more than two per
week.
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·
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Term
of Escrow: One (1) year
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·
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APPOINTMENT SUBJECT TO RECEIPT
OF REQUESTED DUE DILIGENCE INFORMATION AS PER THE USA PATRIOT
ACT
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·
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THIS PROPOSAL ASSUMES THAT
BALANCES IN THE ACCOUNT WILL BE INVESTED IN MONEY MARKET
FUNDS
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·
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ALL FUNDS WILL
BE RECEIVED FROM OR DISTRIBUTED TO A DOMESTIC OR AN APPROVED
FOREIGN ENTITY
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·
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IF THE ACCOUNT(S) DOES NOT OPEN
WITHIN THREE (3) MONTHS OF THE DATE SHOWN BELOW, THIS PROPOSAL WILL BE
DEEMED TO BE NULL AND VOID
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Out-of Pocket
Expenses:
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At
Cost
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We will
charge for out-of-pocket expenses in response to specific tasks assigned by the
client or provided for in the escrow agreement. Possible expenses
would be, but are not limited to, express mail and messenger charges, travel
expenses to attend closing or other meetings. There are no
charges for indirect out-of- pocket expenses.
This
fee schedule is based upon the assumptions listed above which pertain to the
responsibilities and risks involved in Xxxxx Fargo undertaking the role of
Escrow Agent. These assumptions are based on information provided to
us as of the date of this fee schedule. Our fee schedule is subject
to review and acceptance of the final documents. Should any of the
assumptions, duties or responsibilities change, we reserve the right to affirm,
modify or rescind our fee schedule. Extraordinary services (services other than
the ordinary administration services of Escrow Agent described above) are not
included in the annual administration fee and will be billed as incurred at the
rates in effect from time to time.
Submitted
on: ,
2010
Exhibit
E
Agency
and Custody Account Direction
For
Cash Balances
Xxxxx
Fargo Bank Money Market Deposit Accounts
Direction
to use the following Xxxxx Fargo Bank Money Market Deposit Accounts for Cash
Balances for the escrow account (the “Account”) created under the Escrow
Agreement to which this Exhibit E is attached.
You are
hereby directed to deposit, as indicated below, or as we shall direct further in
writing from time to time, all cash in the Account in the following money market
deposit account of Xxxxx Fargo Bank, National Association (“Bank”):
Xxxxx
Fargo Bank Money Market Deposit Account (“MMDA”)
We
understand that amounts on deposit in the MMDA are insured, subject to the
applicable rules and regulations of the Federal Deposit Insurance Corporation
(the “FDIC”), in the basic FDIC insurance amount of $250,000 per depositor, per
insured bank. This includes principal and accrued interest up to a total of
$250,000.
We
acknowledge that we have full power to direct investments in the
Account.
We
understand that we may change this direction at any time and that it shall
continue in effect until revoked or modified by us by written notice to
you.
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American
Realty Capital New York Recovery REIT, Inc.
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By:
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Signature
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Date
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Exhibit
F
[Form of
Notice to Pennsylvania Investors]
You have
tendered a subscription to purchase shares of common stock of American Realty
Capital New York Recovery REIT, 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 $50,000,000 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, Xxxxx Fargo Bank, National Association at 00
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attn: Xxxx
Xxxxxxx.
I hereby
terminate my prior subscription to purchase shares of common stock of American
Realty Capital New York Recovery REIT, Inc. and request the return of my
subscription funds. I certify to American Realty Capital New York
Recovery REIT, Inc. that I am a resident of Pennsylvania.
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Signature:
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|||||
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Name:
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|||||
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(please
print)
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|||||
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Date:
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|||||
Please
send the subscription refund to:
