SUBSCRIPTION ESCROW AGREEMENT DRAFT 11/6/07
Exhibit
10.1
DRAFT
11/6/07
AGREEMENT,
dated as of ______ 200_, (the “Agreement”) by and among American Realty Capital
Trust, Inc., a Maryland corporation (the “Company”) and Boston Private Bank
& Trust Company, as escrow agent (the “Escrow Agent”).
Whereas,
the
Company will issue in a public offering (the “Offering”) its common stock (the
“Shares”) to investors (the “Investors”) pursuant to a Registration Statement on
Form S-11 (the “Registration Statement”) filed by the Company with the
Securities and Exchange Commission (the “SEC”).
Whereas,
Realty Capital Securities, LLC, a Delaware limited liability company (the
“Dealer Manager”), will act as dealer manager for the Offering; and
Whereas,
until such time as subscriptions from non-affiliates of the Company have been
received for Stock, resulting in total minimum capital raised of $2,000,000
(the
“Minimum Amount”), the Company desires to deposit funds contributed by the
Investors with the Escrow Agent, to be held for the benefit of the Investors
and
the Company;
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 it’s Tranfser Agent will send to you the instruments of
payment from such subscribers, for deposit by you into an interest-bearing
deposit account entitled “ESCROW ACCOUNT FOR THE BENEFIT OF SUBSCRIBERS FOR
COMMON STOCK OF AMERICAN REALTY CAPITAL TRUST, INC.” (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, 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.
The
Escrow Agent shall have no duty to solicit funds in the Escrow Account (the
“Escrow Property”).
Section
3. Identity
of Subscribers.
The
Company or it’s Transfer Agent 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 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 consistent with normal banking channels. The Escrow
Agent may reject any subscriber that does not clear normal banking channels
by
giving written notice to the Company.
Section
4. Disbursement
of Funds.
On a
weekly basis (and more frequently if requested by the Company), the Escrow
Agent
shall notify the Company of the amount of the funds received hereunder. If
payments of the Minimum Amount or more for Shares are obtained at any time
prior
to the Termination Date (as defined in Section 6), the Escrow Agent shall
promptly notify the Company, and upon the Company delivering a written notice
(the “Disbursement Notice”) attached as Exhibit B, signed jointly by two
Authorized Persons (as defined in Section 12(q)) of the Company, stating
that is has received and accepted subscription agreements for the Minimum Amount
of Shares, then the Escrow Agent shall (i) disburse to the Company, by
check or wire transfer, the funds in the Escrow Account representing the gross
purchase price for the Stock, and (ii) disburse to the subscribers any
interest thereon calculated pursuant to the provisions of Section 5.
Following such disbursements, the Escrow Account shall close and thereafter
you
shall forward directly to the Company upon receipt by Escrow Agent of any
subscription documents and instruments of payment received by Escrow Agent
from
subscribers. If the Minimum Amount of proceeds has not been obtained and
delivered prior to the Termination Date, the Escrow Agent shall, within a
reasonable time following the Termination Date, but in no event more than thirty
(30) days after the Termination Date, refund to each investor at the address
appearing on the List of Investors, or at such other address as shall be
furnished to the Escrow Agent by the investor in writing, all sums paid by
the
investor pursuant to his subscription agreement for Shares, together with the
interest accrued on such funds in the Escrow Account, and shall then notify
the
Company in writing of such refunds. If the Company rejects any subscription
for
which you have 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 you have 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 paragraph 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 paragraph 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 responsibility 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 selection is not
made and a written direction 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 entity serving as 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 5
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 investment adviser,
administrator, shareholder servicing agent, custodian or sub-custodian with
respect to certain of the investments, (2) using affiliates to effect
transactions in certain investments and (3) effecting transactions in
investments.
Section
6. Term
of Escrow.
The
“Termination Date” shall be (i) December 31, 2010 or (ii) the date the
Escrow Agent receives written notice from the Company that it is abandoning
the
sale of the Shares. The Company may extend the termination date for up to one
year upon written notice to the Escrow Agent. Upon the termination of the
Agreement any remaining Escrow Property shall be forwarded to the Company in
accordance with the Company’s written directions.
The
provisions of Sections 8, 10 and 11 shall survive the termination of this
Agreement and the earlier resignation or removal of the Escrow
Agent.
Section
7. Intentionally
Omitted.
Section
8. Compensation
of Escrow Agent.
The
Escrow Agent shall be entitled to payment from the Company for customary fees
and expenses for all services rendered by it hereunder as separately agreed
to
in writing between the Company and the Escrow Agent (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 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. The Company 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
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 is 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 shall 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
reasonable costs required to be associated with claims for damages to persons
or
property, and reasonable 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 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 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 or any entity acting on behalf of
the
Company, (ii) for any indirect, consequential, punitive or special damages,
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 each case
in
good faith, 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.
(d) If
any
fees, expenses or costs incurred by, or any obligations owed to, the Escrow
Agent or its counsel hereunder are not promptly paid when 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.
(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 or the unavailability of the Federal Reserve
Bank
wire or facsimile or other wire or communication facility).
(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. Uninvested funds held hereunder shall not earn or accrue
interest.
(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 gross negligence,
shall not be responsible or liable in the event such communication is not
an
authorized or authentic communication of the Company or is not in the form
the
Company 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 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, in its sole discretion,
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,
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 shall
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 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 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
unless the Escrow Agent is notified in writing, by the Company, 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
State of New York without reference to the principles of conflict of
laws.
(c) Each
of
the parties hereto hereby irrevocably consents to the jurisdiction of the
courts
of the State of New York and of any Federal Court located in the Borough
of
Manhattan in such State 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.
(d) All
notices and other communications under this Agreement shall be in writing
in
English and shall be deemed given when delivered personally, on the next
Business Day after delivery to a recognized overnight courier or mailed first
class (postage prepaid)or when sent by facsimile to the parties (which facsimile
copy shall be followed, in the case of notices or other communications sent
to
the Escrow Agent, by delivery of the original) at the following addresses
(or to
such other address as a party may have specified by notice given to the other
parties pursuant to this provision):
If
to the
Company, to:
c/o
American Realty Capital
0000
Xxx
Xxxxxxx
Xxxxxxxxxx,
XX 00000
If
to the
Dealer Manager, to:
Realty
Capital Securities
Three
Xxxxxx Place, Suite 3300B
Xxxxxx,
XX 00000
If
to the
Escrow Agent, to:
Boston
Private Bank & Trust Company
Xxx
Xxxx
Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
(e) The
headings of the Sections of this Agreement have been inserted for convenience
and shall not modify, define, limit or expand the express provisions of this
Agreement.
(f) This
Agreement and the rights and obligations hereunder of parties hereto may
not be
assigned except with the prior written consent of the other parties hereto.
This
Agreement shall be binding upon and inure to the benefit of each party’s
respective successors and permitted assigns. Except as expressly provided
herein, no other person shall acquire or have any rights under or by virtue
of
this Agreement. This Agreement is intended to be for the sole benefit of
the
parties hereto, and (subject to the provisions of this Section 10(f)) their
respective successors and assigns, and none of the provisions of this Agreement
are intended to be, nor shall they be construed to be, for the benefit of
any
third person.
(g) This
Agreement may not be amended, supplemented or otherwise modified without
the
prior written consent of the parties hereto.
(h) The
Escrow Agent makes no representation as to the validity, value, genuineness
or
the collectability of any security or other document or instrument held by
or
delivered to it.
(i) Any
payments of income from the Escrow Property shall be subject to withholding
regulations then in force with respect to United States taxes. Each of 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 hereby acknowledges 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, is 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 hereby agrees that it 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 hereby represents and warrants (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 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.
(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 designated on Scheduled I attached hereto and made a part
hereof (each such representative, an “Authorized Person”) which such designation
shall include specimen signatures of such representatives, as such
Schedule I may be updated from time to time.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
|
By:
______________________________________
Name:
Title:
|
|
|
REALTY
CAPITAL SECURITIES, LLC
By:
______________________________________
Name:
Title:
|
|
|
BOSTON
PRIVATE BANK & TRUST COMPANY, as Escrow Agent
By:
______________________________________
Name:
Title:
By:
______________________________________
Name:
Title:
|
