Unassociated Document

This AMENDED AND RESTATED SUBSCRIPTION ESCROW AGREEMENT, dated as of July 15, 2008 (the “Agreement”), is made by and among American Realty Capital Trust, Inc., a Maryland corporation (the “Company”), Realty Capital Securities, LLC, a Delaware limited liability company (“the Dealer Manager”), and Boston Private Bank & Trust Company, a Massachusetts trust company (the “Escrow Agent”), and hereby amends and restates in its entirety that certain SUBSCRIPTION ESCROW AGREEMENT entered by and among the Company, the Dealer Manager, and the Escrow Agent as of December 11, 2007.

Whereas, 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

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.

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.

(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.

(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 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.

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.

(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.

(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.

(l) In the event of any dispute between or conflicting claims among the Company and any other person or entity with respect to any Escrow Property, the Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such Escrow Property for so long as such dispute or conflict shall continue, and the Escrow Agent shall not be or become liable in any way to the Company or any other person for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until, to its sole satisfaction, either (i) such conflicting or adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent in its sole discretion, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent may act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Company.

(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.

(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):

(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

(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.

(l) The Company and the Dealer Manager hereby acknowledge that, in accordance with Section 326 of the USA Patriot Act, the Escrow Agent, like all financial institutions and in order to help fight the funding of terrorism and money laundering, are required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with Boston Private Bank & Trust Company. The Company and the Dealer Manager hereby agree that each will provide the Escrow Agent with such information as it may request in order for the Escrow Agent to satisfy the requirements of the USA Patriot Act.

(q) For purposes of sending and receiving instructions or directions hereunder, all such instructions or directions shall be, and the Escrow Agent may conclusively rely upon such instructions or directions, delivered, and executed by representatives of the Company and the Dealer Manager designated on Schedule I attached hereto and made a part hereof (each such representative, an “Authorized Person”) which such designation shall include specimen signatures of such representatives, as such Schedule I may be updated from time to time.


	AMERICAN REALTY CAPITAL TRUST, INC.

	By:	/s/ Brian S. Block
		Name: Brian S. Block
		Title: Chief Financial Officer


	REALTY CAPITAL SECURITIES, LLC

	By:	/s/ Louisa Quarto
		Name: Louisa Quarto
		Title: Senior Vice President


	BOSTON PRIVATE BANK & TRUST COMPANY, as Escrow Agent

	By:	/s/ Kathleen M. McQuillan
		Name: Kathleen M. McQuillan
		Title: Senior Vice President




	By:	/s/ Torrance Childs
		Name: Torrance Childs
		Title: Senior Vice President and Director of Sales