AMENDED AND RESTATED SUBSCRIPTION ESCROW AGREEMENT
AMENDED
AND RESTATED
This
AMENDED AND RESTATED SUBSCRIPTION ESCROW AGREEMENT,
dated as of April 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.
(1)
In
the event of any dispute between or conflicting claims among the Company
and any other person or entity with respect to any Escrow Property, the
Escrow
Agent shall
be
entitled, in its sole discretion, to refuse to comply with any and all
claims,
demands or instructions with respect to such Escrow Property for so long
as such
dispute or conflict shall continue,
and the Escrow Agent shall not be or become liable in any way to the Company
or
any other
person for failure or refusal to comply with such conflicting claims, demands
or
instructions.
The Escrow Agent shall be entitled to refuse to act until, to its sole
satisfaction, either
(i) such conflicting or adverse claims or demands shall have been determined
by
a final order, judgment or decree of a court of competent jurisdiction,
which
order, judgment or decree is
not
subject to appeal, or settled by agreement between the conflicting parties
as
evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow
Agent
shall have received security or an
indemnity satisfactory to it sufficient to hold it harmless from and against
any
and all losses which
it
may incur by reason of so acting. Any court order, judgment or decree shall
be
accompanied
by a legal opinion by counsel for the presenting party, satisfactory to
the
Escrow Agent in its sole discretion, to the effect that said order, judgment
or
decree represents a final adjudication
of the rights of the parties by a court of competent jurisdiction, and
that the
time for appeal
from such order, judgment or decree has expired without an appeal having
been
filed with
such
court. The Escrow Agent may act on such court order and legal opinions
without
further
question. The Escrow Agent may, in addition, elect, in its sole discretion,
to
commence an
interpleader action or seek other judicial relief or orders as it may deem,
in
its sole discretion, necessary.
The costs and expenses (including reasonable attorneys' fees and expenses)
incurred in
connection with such proceeding shall be paid by, and shall be deemed an
obligation of, the Company.
(m)
The
Escrow Agent shall have no responsibility for the contents of any writing
of the arbitrators or any third party contemplated herein as a means to
resolve
disputes and
may
conclusively rely without any liability upon the contents thereof.
(n)
The
Escrow Agent does not have any interest in the Escrow Property deposited
hereunder but is serving as escrow holder only and having only possession
thereof. The
Company shall pay or reimburse the Escrow Agent upon request for any transfer
taxes or other
taxes relating to the Escrow Property incurred in connection herewith and
shall
indemnify and hold harmless the Escrow Agent from any amounts that it is
obligated to pay in the way of such
taxes. Any payments of income from this Escrow Account shall be subject
to
withholding regulations
then in force with respect to United States taxes. The Company or the Dealer
Manager
will provide the Escrow Agent with appropriate W-9 forms for tax identification
number
certifications, or W-8 forms for non-resident alien certifications. This
paragraph shall survive notwithstanding any termination of this Agreement
or the
resignation or removal of the Escrow
Agent.
(o)
The
Escrow Agent shall provide to the Company and the Dealer Manager monthly
statements identifying transactions, transfers or holdings of Escrow Property
and each such
statement shall be deemed to be correct and final upon receipt thereof
by the
Company and the
Dealer Manager unless the Escrow Agent is notified in writing, by the Company
or
the Dealer
Manager, to the contrary within thirty (30) business days of the date of
such
statement.
Section
12. Miscellaneous.
(a) This
Agreement embodies the entire agreement and understanding among the
parties relating to the subject matter hereof.
(b) This
Agreement shall be governed by and construed in accordance with the
laws
of the Commonwealth of Massachusetts without reference to its principles
of
conflict of
laws.
(c) Each
of
the parties hereto hereby irrevocably consents to the jurisdiction of
the
courts of the Commonwealth of Massachusetts and of any Federal Court located
in
such Commonwealth in connection with any action, suit or other proceeding
arising out of or relating to this Agreement or any action taken or omitted
hereunder, and waives any claim of forum non conveniens and any objections
as to
laying of venue. Each party further waives personal service of any summons,
complaint or other process and agrees that service thereof may be made
by
certified
or registered mail directed to such person at such person's address for
purposes
of notices
hereunder. Each party further waives any claim to trial by
jury.
(d)
All
notices and other communications under this Agreement shall be in writing
in English and shall be deemed given when delivered personally, on the
next
Business Day
after
delivery to a recognized overnight courier or mailed first class (postage
prepaid)or when sent by facsimile to the parties (which facsimile copy
shall be
followed, in the case of notices
or other communications sent to the Escrow Agent, by delivery of the original)
at the following
addresses (or to such other address as a party may have specified by notice
given to the
other
parties pursuant to this provision):
If
to the
Company, to:
c/o
American Realty Capital
0000
Xxx
Xxxxxxx
Xxxxxxxxxx,
XX 00000
If
to the
Dealer Manager, to:
Realty
Capital Securities
Three
Xxxxxx Place, Suite 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.
(1)
The
Company and the Dealer Manager hereby acknowledge that, in accordance
with Section 326 of the USA Patriot Act, the Escrow Agent, like all financial
institutions
and in order to help fight the funding of terrorism and money laundering,
are
required
to obtain, verify, and record information that identifies each person or
legal
entity that establishes a relationship or opens an account with Boston
Private
Bank & Trust Company. The Company
and the Dealer Manager hereby agree that each will provide the Escrow Agent
with
such information as it may request in order for the Escrow Agent to satisfy
the
requirements of the
USA
Patriot Act.
(m)
The
Company and the Dealer Manager hereby represent and warrant (i)
that
this Agreement has been duly authorized, executed and delivered on its
behalf
and constitutes its legal, valid and binding obligation and (ii) that the
execution, delivery and performance
of this Agreement by the Company and the Dealer Manager does not and will
not
violate
any applicable law or regulation.
(n)
The
invalidity, illegality or unenforceability of any provision of this Agreement
shall in no way affect the validity, legality or enforceability of any
other
provision; and
if
any provision is held to be unenforceable as a matter of law, the other
provisions shall not be
affected thereby and shall remain in full force and effect.
(o)
No
printed or other material in any language, including prospectuses, notices,
reports, and promotional material which mentions Boston Private Bank & Trust
Company
or any of their respective affiliates by name or the rights, powers, or
duties
of the Escrow
Agent under this Agreement shall be issued by any other parties hereto,
or on
such party's
behalf, without the prior written consent of the Escrow Agent.
(p)
For
purposes of this Agreement, "Business Day" shall mean any day that is
not
a
Saturday or Sunday or a day on which banks are required or permitted by
law or
executive order
to
be closed in the City of Boston, Massachusetts.
(q)
For
purposes of sending and receiving instructions or directions hereunder,
all
such
instructions or directions shall be, and the Escrow Agent may conclusively
rely
upon such
instructions or directions, delivered, and executed by representatives
of the
Company and the
Dealer Manager designated on Scheduled I attached hereto and made a part
hereof
(each such
representative, an "Authorized Person") which such designation shall include
specimen signatures of such representatives, as such Schedule I may be
updated
from time to time.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the
day
and year first above written.
By:
/s/ Xxxxx X. Block
Name:
Xxxxx X. Block
Title:
Chief Financial Officer
REALTY
CAPITAL SECURITIES, LLC
By:
/s/ Xxxxxx X. X'Xxxxx
Name:
Xxxxxx X. X'Xxxxx
Title:
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
