FORM OF THIRD AMENDED AND RESTATED SUBSCRIPTION ESCROW AGREEMENT
EXHIBIT
10.1
FORM
OF THIRD AMENDED AND RESTATED SUBSCRIPTION ESCROW AGREEMENT
THIS THIRD AMENDED AND RESTATED
SUBSCRIPTION ESCROW AGREEMENT dated as
of ,
2010 (this “Agreement”), is entered into
among Realty Capital Securities, LLC (the “Dealer Manager”), American
Realty Capital New York Recovery REIT, Inc. (the “Company”) and ▇▇▇▇▇ Fargo
Bank, National Association, as escrow agent (the “Escrow Agent”).
WHEREAS, the Company intends
to raise cash funds from investors (the “Investors”) pursuant to a
public offering (the “Offering”) of not less than
200,000 (the “Minimum
Amount”) nor more than 150,000,000 shares of common stock, par value
$0.01 of the Company (the “Securities”), pursuant to the
registration statement on Form S-11 of the Company (No. 333-163069) (as amended,
the “Offering
Document”) a copy of which is attached as Exhibit A hereto.
WHEREAS, the parties entered into the Escrow Agreement on July
9, 2010 (the “Original
Agreement”) under which the Company established an
escrow account with the Escrow Agent for funds contributed by the Investors with
the Escrow Agent, to be held for the benefit of the Investors and the Company
until such time as (i) subscriptions for the Minimum Amount of the Securities,
have been deposited into escrow or otherwise in accordance with the terms of
this Agreement, and (ii) in the case of subscriptions received from
residents of Pennsylvania (“Pennsylvania Investors”),
aggregate subscriptions from all Investors resulting in a total minimum capital
raised of $50,000,000 (the “Original
Pennsylvania Minimum Amount”) and
deposited into escrow or otherwise provided in accordance with the terms of this
Agreement.
WHEREAS, the
parties amended and restated the Original Agreement by entering into the Amended
and Restated Escrow Agreement on August 2, 2010 under which the Company
established an additional escrow account with the Escrow Agent for funds
contributed pursuant to subscriptions received from residents of Tennessee (“Tennessee
Investors”), to be
held for the benefit of the Investors and the Company until such time as
aggregate subscriptions have been received from all Investors resulting
in a total miminum capital raised of $20,000,000 (the “Tennessee
Minimum Amount”) and deposited into escrow or otherwise provided in
accordance with the terms of this Agreement.
WHEREAS, the parties amended
and restated the Amended and Restated Escrow Agreement by entering into the
Second Amended and Restated Escrow Agreement on August 20, 2010 (the “Amended and Restated
Agreement”) under which the parties amended the term of
escrow.
WHEREAS, the parties have
agreed to correct the Original Pennsylvania Minimum Amount so that funds
contributed pursuant to subscriptions received from Pennsylvania Investors will
be held for the benefit of the Investors and the Company until such time as
aggregate subscriptions have been received from all Investors resulting in a
total minimum capital raised of $75,000,000 (the “Pennsylvania Minimum Amount”) and deposited into
escrow or otherwise provided in accordance with the terms of this
Agreement.
WHEREAS, the parties have agreed to make
certain amendments and desire to amend and restate the Amended and Restated
Agreement in its entirety.
WHEREAS, the Escrow Agent is
willing to accept appointment as escrow agent only for the expressed duties
outlined herein.
NOW, THEREFORE, in
consideration of the
foregoing and of the mutual covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree that the Amended and
Restated Agreement hereby is amended and restated in its entirety to read
as follows:
1.
Proceeds to be Escrowed.
On or before the first date of the Offering, the Company shall establish
an escrow account with the Escrow Agent to be invested in accordance with
Section 9 hereof entitled “ESCROW ACCOUNT FOR THE BENEFIT OF INVESTORS FOR
COMMON STOCK OF AMERICAN REALTY CAPITAL NEW YORK RECOVERY REIT, INC.” (including
such abbreviations as are required for the Escrow Agent’s systems) (the
“Escrow
Account”). All funds received from subscribers
of Securities (“Investors”, which term
also shall include Pennsylvania Investors and Tennessee Investors unless the
context otherwise requires) in payment for the Securities (“Investor Funds”) will be
delivered to the Escrow Agent within one (1) business day following the day upon
which such Investor Funds are received by the Company or its agents, and shall,
upon receipt by the Escrow Agent, be retained in escrow by the Escrow Agent and
invested as stated herein. During the term of this Agreement, the Company
or its agents shall cause all checks received by and made payable to it in
payment for the Securities to be endorsed in favor of the Escrow Agent and
delivered to the Escrow Agent for deposit in the Escrow Account.
Proceeds received from Pennsylvania
Investors shall be accounted for separately in a subaccount entitled “Escrow
Account for the Benefit of Pennsylvania Investors for American Realty
Capital New York Recovery REIT, Inc.” (including
such abbreviations as are required for the Escrow
Agent’s systems) (the “Pennsylvania
Escrow Account”), until such
Pennsylvania Escrow Account has closed pursuant to Section 4. The Company
shall, and shall cause its agents to, cooperate with the Escrow Agent in
separately accounting for Investor Funds from
Pennsylvania Investors in the Pennsylvania Escrow Account, and the Escrow
Agent shall be entitled to rely upon information provided by the Company or its
agents in this regard.
Proceeds received from Tennessee Investors shall be accounted for separately in
a subaccount entitled “Escrow Account for the Benefit of Tennessee Investors for
American Realty Capital New York Recovery REIT, Inc.” (including such
abbreviations as are required for the Escrow Agent's systems) (the “Tennessee Escrow Account,” and together with the Escrow Account and the
Pennsylvania Escrow Account, the “ARC NYRR
Escrow Accounts”), until such Tennessee Escrow Account has closed
pursuant to Section 5. The Company shall, and shall cause its agents to,
cooperate with the Escrow Agent in separately accounting for Investor Funds from
Tennessee Investors in the Tennessee Escrow Account, and the Escrow Agent shall
be entitled to rely upon information provided by the Company or its agents in
this regard.
The Escrow Agent shall have no duty to
make any disbursement, investment or other use of Investor Funds until and
unless it has good and collected funds. If any checks deposited in
the ARC NYRR Escrow Accounts are returned or prove uncollectible after the funds
represented thereby have been released by the Escrow Agent, then the Company
shall promptly reimburse the Escrow Agent for any and all costs incurred for
such, upon request, and the Escrow Agent shall deliver the returned checks to
the Company. The Escrow Agent shall be under no duty or
responsibility to enforce collection of any check delivered to it
hereunder.
The Escrow Agent reserves the right to deny, suspend or terminate participation
by an Investor to the extent the Escrow Agent deems it advisable or necessary to
comply with applicable laws or to eliminate practices that are not consistent
with the purposes of the Offering.
2.
Investors. Investors
(including Pennsylvania Investors and Tennessee Investors) will be
instructed by Realty Capital Securities, LLC (the “Dealer Manager”) or any
soliciting dealers to remit the purchase price in the form of checks
(hereinafter “instruments of payment”) payable to the order of, or funds wired
in favor of, “▇▇▇▇▇ FARGO BANK, NA, ESCROW AGENT FOR AMERICAN REALTY CAPITAL NEW
YORK RECOVERY REIT, INC.” Any checks made payable to a party other
than the Escrow Agent shall be returned to the soliciting dealer who submitted
the check. By 12:00 p.m. (Noon) the next business day after receipt
of instruments of payment from the Offering, the Escrow Agent shall be furnished
with a list of the Investors who have paid for the Securities showing the name,
address, tax identification number, amount of Securities subscribed for, the
amount paid and whether such Investors are Pennsylvania Investors or Tennessee
Investors. The information comprising the identity of Investors shall
be provided to the Escrow Agent in the format set forth in the “List of
Investors” attached hereto as Exhibit
B. The Escrow Agent shall be entitled to conclusively rely
upon the list of Investors in determining whether Investors are Pennsylvania
Investors or Tennessee Investors, and shall have no duty to independently
determine or verify the same.
All Investor Funds deposited in the ARC
NYRR Escrow Accounts shall not be subject to any liens or charges by the Company
or the Escrow Agent, or judgments or creditors' claims against the Company,
until and unless released to the Company as hereinafter provided. The
Company understands and agrees that the Company shall not be entitled to any
Investor Funds on deposit in the ARC NYRR Escrow Accounts and no such funds
shall become the property of the Company, or any other entity except as released
to the Company pursuant to Sections 3, 4 or 5 hereto.
The Escrow Agent will not use the information provided to it by the
Company for any purpose other than to fulfill its obligations as Escrow
Agent. The Company and the Escrow Agent will treat all Investor
information as confidential. The Escrow Agent shall not be required
to accept any Investor Funds which are not accompanied by the information on the
List of Investors.
3.
Disbursement of
Funds. Once the Escrow Agent is in receipt of good and
collected Investor Funds totaling at least the Minimum Amount from Investors
(excluding funds from Pennsylvania Investors and Tennessee Investors), the
Escrow Agent shall notify the Company of same in writing. Additionally, at the
end of the third business day following the Termination Date (as defined in
Section 6), the Escrow Agent
shall notify the Company of the amount of the Investor Funds
received. If the Minimum Amount has been obtained on or before the
Termination Date, the Escrow Agent shall promptly notify the Company and, upon
receiving acknowledgement of such notice and written instructions from the
Company’s President or Chief Financial Officer to disburse the Investor
Funds, the Escrow Agent shall disburse to the Company, by check or wire
transfer, the funds in the Escrow Account representing the gross purchase price
of the Securities, except
for amounts payable by the Company to the Escrow Agent pursuant to Exhibit D to this Agreement that
remain outstanding. The Escrow Agent agrees that funds in the
Escrow Account shall not be released to the Company until and unless the Escrow
Agent receives written instructions to release the funds from the
Company’s President or Chief Financial Officer.
If the Minimum Amount has not been
obtained prior to the Termination Date, the Escrow Agent shall, within a
reasonable time following the Termination Date, but in no event more than thirty
(30) days after the Termination Date, refund to each Investor by check funds
deposited in the Escrow Account, or shall return the instruments of payment
delivered to Escrow Agent if such instruments have not been processed for
collection prior to such time, directly to each Investor at the address provided
on the List of Investors. Included in the remittance shall be a proportionate
share of the income earned in the account allocable to each Investor's
investment in accordance with the terms and conditions specified herein, except
that in the case of Investors who have not provided an executed Form W-9 or
substitute Form W-9 (or the applicable substitute Form W-8 for foreign
investors), the Escrow Agent shall withhold the applicable percentage of the
earnings attributable to those Investors in accordance with IRS regulations.
Notwithstanding the foregoing, the Escrow Agent shall not be required to remit
any payments until funds represented by such payments have been collected by
Escrow Agent.
If the Escrow Agent receives written
notice from the Company that the Company intends to reject an Investor’s
subscription, the Escrow Agent shall pay to the applicable Investor(s), within a
reasonable time not to exceed ten (10) business days after receiving notice of
the rejection, by first class United States Mail at the address provided on
the List of Investors, or at such other address as shall be furnished to the
Escrow Agent by the Investor in writing, all collected sums paid by the Investor
for Securities and received by the Escrow Agent, together with the interest
earned on such Investor Funds (determined in accordance with the terms and
conditions specified herein).
4.
Disbursement of Proceeds for
Pennsylvania Investors. Notwithstanding
the foregoing, proceeds from Pennsylvania Investors will not count towards
meeting the Minimum Amount for purposes of Section 3. Proceeds
received from Pennsylvania Investors will not be released from the Pennsylvania
Escrow Account until the Pennsylvania Minimum Amount is obtained. If
the Pennsylvania Minimum Amount is obtained at any time prior to the Termination
Date, the Escrow Agent shall promptly notify the Company and, upon receiving
acknowledgement of such notice and written instructions from the
Company’s President or Chief Financial Officer, the Escrow Agent shall
disburse to the Company, by check or wire transfer, the funds in the
Pennsylvania Escrow Account representing the gross purchase price of the
Securities, except
for amounts payable by the Company to the Escrow Agent pursuant to Exhibit D to this Agreement that
remain outstanding. The Escrow Agent agrees that funds in the
Pennsylvania Escrow Account shall not be released to the Company until and
unless the Escrow Agent receives written instructions to release the funds from
the Company’s President or Chief Financial Officer.
If the
Pennsylvania Minimum Amount has not been obtained prior to the Termination Date,
the Escrow Agent shall, within a reasonable time following the Termination Date,
but in no event more than thirty (30) days after the Termination Date, refund to
each Pennsylvania Investor by check funds deposited in the Pennsylvania Escrow
Account, or shall return the instruments of payment delivered to Escrow Agent if
such instruments have not been processed for collection prior to such time,
directly to each Pennsylvania Investor at the address provided on the List of
Investors. Included in the remittance shall be a proportionate share of the
income earned in the account allocable to each Pennsylvania Investor's
investment in accordance with the terms and conditions specified herein, except
that in the case of Investors who have not provided an executed Form W-9 or
substitute Form W-9, the Escrow Agent shall withhold the applicable percentage
of the earnings attributable to those Investors in accordance with IRS
regulations. Notwithstanding the foregoing, the Escrow Agent shall not be
required to remit any payments until funds represented by such payments have
been collected by Escrow Agent.
If the Escrow Agent is not in receipt
of evidence of subscriptions accepted on or before the close of business on such
date that is 120 days after commencement of the Offering (the Company will
notify the Escrow Agent in writing of the commencement date of the Offering)
(the “Initial Escrow
Period”), and instruments of payment dated not later than that date, for
the purchase of Securities providing for total purchase proceeds from all
nonaffiliated sources that equal or exceed the Pennsylvania Minimum Amount, the
Escrow Agent shall promptly notify the Company. Thereafter, the Company or its
agents shall send to each Pennsylvania Investor by certified mail within ten
(10) calendar days after the end of the Initial Escrow Period a
notification substantially in the form of Exhibit F. If,
pursuant to such notification, a Pennsylvania Investor requests the return of
his or her Investor Funds within ten (10) calendar days after receipt of the
notification (the “Request
Period”), the Escrow Agent shall promptly refund directly to each
Pennsylvania Investor the collected funds deposited in the Pennsylvania Escrow
Account on behalf of such Pennsylvania Investor or shall return the instruments
of payment delivered, but not yet processed for collection prior to such time,
to the address provided on the List of Investors upon which the Escrow
Agent shall be entitled to rely, together with interest income earned
as determined
in accordance with the terms and conditions specified herein (which
interest shall be paid within five business days after the first business day of
the succeeding month). Notwithstanding the above, if the Escrow Agent has not
received an executed Form W-9 or substitute Form W-9 for such Pennsylvania
Investor, the Escrow Agent shall thereupon remit an amount to such Pennsylvania
Investor in accordance with the provisions hereof, withholding the applicable
percentage for backup withholding required by the Internal Revenue Code, as then
in effect, from any interest income earned on Investor Funds (determined
in accordance with the terms and conditions specified herein)
attributable to such Pennsylvania Investor. However, the Escrow Agent shall not
be required to remit such payments until the Escrow Agent has collected funds
represented by such payments.
The
Investor Funds of Pennsylvania Investors who do not request the return of their
Investor Funds within the Request Period shall remain in the Pennsylvania Escrow
Account for successive 120-day escrow periods (a “Successive Escrow Period”),
each commencing automatically upon the termination of the prior Successive
Escrow Period, and the Company and Escrow Agent shall follow the notification
and payment procedure set forth above with respect to the Initial Escrow Period
for each Successive Escrow Period until the occurrence of the earliest of
(i) the Termination Date, (ii) the receipt and acceptance by the
Company of subscriptions for the purchase of Securities with total purchase
proceeds that equal or exceed the Pennsylvania Minimum Amount and the
disbursement of the Pennsylvania Escrow Account on the terms specified herein,
and (iii) all funds held in the Pennsylvania Escrow Account having
been returned to the Pennsylvania Investors in accordance with the provisions
hereof.
5. Disbursement of Proceeds for
Tennessee Investors. Notwithstanding the foregoing, proceeds from
Tennessee Investors will not count towards meeting the Mininum Amount for
purposes of Section 3. Proceeds received from
Tennessee Investors will not be released from the Tennessee Escrow Account until
the Tennessee Minimum Amount is obtained. If the Tennessee Minimum Amount is
obtained at any time prior to the Termination Date, the Escrow Agent shall
promptly notify the Company and, upon receiving acknowledgement of such notice
and written instructions from the Company's President or Chief Financial
Officer, the Escrow Agent shall disburse to the Company, by check or wire
transfer, the funds in the Tennessee Escrow Account representing the gross
purchase price of the Securities, except for amounts payable by the Company to
the Escrow Agent pursuant to Exhibit
D to this Agreement that remain outstanding. The Escrow Agent agrees that
funds in the Tennessee Escrow Account shall not be released to the Company until
and unless the Escrow Agent receives written instructions to release the funds
from the Company's President or Chief Financial Officer.
If the Tennessee Minimum Amount has not been obtained prior to the Termination
Date, the Escrow Agent shall, within a reasonable time following the Termination
Date, but in no event more than thirty (30) days after the Termination Date,
refund to each Tennessee Investor by check funds deposited in the Tennessee
Escrow Account, or shall return the instruments of payment delivered to Escrow
Agent if such instruments have not been processed for collection prior to such
time, directly to each Tennessee Investor at the address provided on the List of
Investors. Included in the remittance shall be a proportionate share of the
income earned in the account allocable to each Tennessee Investor's investment
in accordance with the terms and conditions specified herein, except that in the
case of Investors who have not provided an executed Form W-9 or substitute Form
W-9, the Escrow Agent shall withhold the applicable percentage of the earnings
attributable to those Investors in accordance with IRS regulations.
Notwithstanding the foregoing, the Escrow Agent shall not be required to remit
any payments until funds represented by such payments have been collected by
Escrow Agent.
6.
Term of Escrow. The
"Termination Date" shall be the earliest of: (i) all funds held in the ARC NYRR
Escrow Accounts are distributed to the Company or to Investors pursuant to Section 3, for Pennsylvania
Investors, Section 4, or, for
Tennessee Investors, Section 5,
and the Company has informed the Escrow Agent in writing to close each of the
ARC NYRR Escrow Accounts; (ii) the date the Escrow Agent receives written notice
from the Company that it is abandoning the sale of the Securities;
and (iii) the date the Escrow Agent receives notice from the Securities and
Exchange Commission or any other federal or state regulatory authority that a
stop or similar order has been issued with respect to the Offering Document and
has remained in effect for at least twenty (20) days. After the
Termination Date the Company and its agents shall not deposit, and the Escrow
Agent shall not accept, any additional amounts representing payments by
prospective Investors.
7.
Duty
and Liability of the Escrow Agent. The sole duty of the Escrow Agent
shall be to receive Investor Funds and hold them subject to release, in
accordance herewith, and the Escrow Agent shall be under no duty to determine
whether the Company or the Dealer Manager is complying with requirements of this
Agreement, the Offering or applicable securities or other laws in tendering the
Investor Funds to the Escrow Agent. No other agreement entered into between the
parties, or any of them, shall be considered as adopted or binding, in whole or
in part, upon the Escrow Agent notwithstanding that any such other agreement may
be referred to herein or deposited with the Escrow Agent or the Escrow Agent may
have knowledge thereof, including specifically but without limitation any
Offering Documents (including
the subscription agreement and exhibits thereto), and the
Escrow Agent's rights and responsibilities shall be governed solely by this
Agreement. The Escrow Agent shall not be responsible for or be
required to enforce any of the terms or conditions of any Offering Document
(including
the subscription agreement and exhibits thereto) or other agreement
between the Company and any other party. The Escrow Agent may
conclusively rely upon and shall be protected in acting upon any statement,
certificate, notice, request, consent, order or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Escrow Agent shall have no duty or liability to verify any such statement,
certificate, notice, request, consent, order or other document, and its sole
responsibility shall be to act only as expressly set forth in this Agreement.
Concurrent with the execution of this Agreement, the Company shall deliver to
the Escrow Agent an authorized signers form in the form of Exhibit C to this Agreement. The
Escrow Agent shall be under no obligation to institute or defend any action,
suit or proceeding in connection with this Agreement unless first
indemnified to its satisfaction. The Escrow Agent may consult counsel
of its own choice with respect to any question arising under this Agreement and
the Escrow Agent shall not be liable for any action taken or omitted in good
faith upon advice of such counsel. The Escrow Agent shall not be
liable for any action taken or omitted by it in good faith except to the extent
that a court of competent jurisdiction determines that the Escrow Agent's gross
negligence or willful misconduct was the primary cause of loss. The Escrow Agent
is acting solely as escrow agent hereunder and owes no duties, covenants or
obligations, fiduciary or otherwise, to any other person by reason of this
Agreement, except as otherwise stated herein, and no implied duties, covenants
or obligations, fiduciary or otherwise, shall be read into this Agreement
against the Escrow Agent. If any disagreement between any of the parties
to this Agreement, or between any of them and any other person, including any
Investor, resulting in adverse claims or demands being made in connection with
the matters covered by this Agreement, or if the Escrow Agent is in doubt
as to what action it should take hereunder, the Escrow Agent may, at its option,
refuse to comply with any claims or demands on it, or refuse to take any other
action hereunder, so long as such disagreement continues or such doubt exists,
and in any such event, the Escrow Agent shall not be or become liable in any way
or to any person for its failure or refusal to act, and the Escrow Agent shall
be entitled to continue so to refrain from acting until (i) the rights of all
interested parties shall have been fully and finally adjudicated by a court of
competent jurisdiction, or (ii) all differences shall have been adjudged and all
doubt resolved by agreement among all of the interested persons, and the Escrow
Agent shall have been notified thereof in writing signed by all such persons.
Notwithstanding the foregoing, the Escrow Agent may in its discretion obey the
order, judgment, decree or levy of any court, whether with or without
jurisdiction and the Agent is hereby authorized in its sole discretion to comply
with and obey any such orders, judgments, decrees or levies. If any
controversy should arise with respect to this Agreement the Escrow Agent shall
have the right, at its option, to institute an interpleader action in any court
of competent jurisdiction to determine the rights of the parties. IN
NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY
SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER
(INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM
OF ACTION. The parties agree that the Escrow Agent has no role in the
preparation of the Offering Documents (including
the subscription agreement and exhibits thereto) and makes no
representations or warranties with respect to the information contained therein
or omitted therefrom. The Escrow Agent shall have no obligation, duty
or liability with respect to compliance with any federal or state securities,
disclosure or tax laws concerning the Offering Documents (including
the subscription agreement and exhibits thereto) or the issuance,
offering or sale of the Securities. The Escrow Agent shall have no
duty or obligation to monitor the application and use of the Investor Funds once
transferred to the Company, that being the sole obligation and responsibility of
the Company.
8.
Escrow Agent's Fee. The Escrow
Agent shall be entitled to compensation for its services as stated in the fee
schedule attached hereto as Exhibit
D, which compensation shall be paid by the Company. The fee agreed upon
for the services rendered hereunder is intended as full compensation for the
Escrow Agent's services as contemplated by this Agreement; provided, however,
that if the conditions for the disbursement of funds under this Agreement
are not fulfilled, or the Escrow Agent renders any material service not
contemplated in this Agreement, or there is any assignment of interest in the
subject matter of this Agreement, or any material modification hereof, or
if any material controversy arises hereunder, or the Escrow Agent is made a
party to any litigation pertaining to this Agreement, or the subject matter
hereof, then the Escrow Agent shall be reasonably compensated for such
extraordinary services and reimbursed for all costs and expenses, including
reasonable attorney's fees, occasioned by any delay, controversy, litigation or
event, and the same shall be recoverable from the Company. The
Company’s obligations under this Section 8 shall survive the resignation or
removal of the Escrow Agent and the assignment or termination of this
Agreement.
9.
Investment of Investor Funds.
The Investor Funds shall be deposited in the ARC NYRR Escrow Accounts in
accordance with Section
3, for Pennsylvania Investors, Section
4, or, for Tennessee Investors,
Section
5. The Escrow Agent is hereby directed to invest all
funds received under this Agreement, including principal and interest in,
the ▇▇▇▇▇ Fargo Bank Money Market Deposit Account, as directed in writing
in the form of Exhibit E to this
Agreement. The Escrow Agent shall invest the Investor Funds in
alternative investments in accordance with written instructions as may from time
to time be provided to the Escrow Agent and signed by the Company. In
the absence of written investment instructions from the Company to the contrary,
the Escrow Agent is hereby directed to invest the Investor Funds in the ▇▇▇▇▇
Fargo Bank Money Market Deposit Account. Notwithstanding the
foregoing, Investor Funds shall not be invested in anything other than “Short
Term Investments” in compliance with Rule 15c2-4 of the Securities Exchange Act
of 1934, as amended. The following are not permissible investments:
(a) money market mutual funds; (b) corporate debt or equity securities; (c)
repurchase agreements; (d) banker’s acceptance; (e) commercial paper; and (f)
municipal securities. Any interest received by the Escrow Agent with
respect to the Investor Funds, including reinvested interest shall become part
of the Investor Funds, and shall be disbursed pursuant to Section 3, for Pennsylvania
Investors, Section
4, or, for Tennessee Investors, Section 5.
The Escrow Agent shall be entitled to
sell or redeem any such investments as necessary to make any payments or
distributions required under this Agreement. The Escrow Agent shall
have no responsibility or liability for any loss which may result from any
investment made pursuant to this Agreement, or for any loss resulting from
the sale of such investment. The parties acknowledge that the Escrow
Agent is not providing investment supervision, recommendations, or
advice.
The
Company on the date of this Agreement shall provide the Escrow Agent with a
certified tax identification number by furnishing appropriate IRS form W-9 or
W-8 (or substitute Form W-9 or W-8) and other forms and documents that the
Escrow Agent may reasonably request. The Company understands that if
such tax reporting documentation is not so certified to the Escrow Agent, the
Escrow Agent may be required by the Internal Revenue Code of 1986, as amended,
to withhold a portion of any interest or other income earned on the Investor
Funds pursuant to this Agreement.
The Company agrees to indemnify and
hold the Escrow Agent harmless from and against any taxes, additions for late
payment, interest, penalties and other expenses that may be assessed against the
Escrow Agent on or with respect to any payment or other activities under this
Agreement unless any such tax, addition for late payment, interest, penalties
and other expenses shall be determined by a court of competent jurisdiction to
have been caused by the Escrow Agent's gross negligence or willful
misconduct. The terms of this Section shall survive the termination
of this Agreement and the resignation or removal of the Escrow
Agent.
10. Notices. All
notices, requests, demands, and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given (a) on the date of
service if served personally on the party to whom notice is to be given, (b) on
the day of transmission if sent by facsimile/email transmission bearing an
authorized signature to the facsimile number/email address given below, and
written confirmation of receipt is obtained promptly after completion of
transmission, (c) on the day after delivery to Federal Express or similar
overnight courier or the Express Mail service maintained by the United States
Postal Service, or (d) on the fifth day after mailing, if mailed to the party to
whom notice is to be given, by first class mail, registered or certified,
postage prepaid, and properly addressed, return receipt requested, to the party
as follows:
If to the
Company:
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇, ▇▇., Executive Vice President and Secretary
Attention: ▇▇▇▇▇
▇. Block, Executive Vice President and Chief Financial Officer
with a
copy to:
Proskauer
Rose LLP
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Attention: ▇▇▇▇▇
▇. Gerkis, Esq.
If to the
Dealer Manager:
Realty
Capital Securities, LLC
Three
▇▇▇▇▇▇ Place
Suite
3300
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇, President
with a
copy to:
Proskauer
Rose LLP
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Attention: ▇▇▇▇▇
▇. Gerkis, Esq.
and:
American
Realty Capital New York Recovery REIT, Inc.
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇, ▇▇., Executive Vice President and Secretary
Attention: ▇▇▇▇▇
▇. Block, Executive Vice President and Chief Financial Officer
If to
Escrow Agent:
▇▇▇▇▇
Fargo Bank, National Association
▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇
Any party
may change its address for purposes of this Section by giving the other party
written notice of the new address in the manner set forth above.
11. Indemnification of Escrow Agent.
The Company and the Dealer Manager hereby jointly and severally
indemnify, defend and hold harmless the Escrow Agent from and against, any and
all loss, liability, cost, damage and expense, including, without limitation,
reasonable counsel fees and expenses, which the Escrow Agent may suffer or incur
by reason of any action, claim or proceeding brought against the Escrow Agent
arising out of or relating in any way to this Agreement or any transaction to
which this Agreement relates unless such loss, liability, cost, damage or
expense is finally determined by a court of competent jurisdiction to have been
primarily caused by the willful misconduct of the Escrow Agent. The
terms of this Section shall survive the termination of this Agreement and the
resignation or removal of the Escrow Agent.
12. Successors and Assigns. Except
as otherwise provided in this Agreement, no party hereto shall assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the other parties hereto and any such attempted assignment without
such prior written consent shall be void and of no force and effect. This
Agreement shall inure to the benefit of and shall be binding upon the successors
and permitted assigns of the parties hereto. Any corporation or
association into which the Escrow Agent may be converted or merged, or with
which it may be consolidated, or to which it may sell or transfer all or
substantially all of its corporate trust business and assets as a whole or
substantially as a whole, or any corporation or association resulting from any
such conversion, sale, merger, consolidation or transfer to which the Escrow
Agent is a party, shall be and become the successor Escrow Agent under this
Agreement and shall have and succeed to the rights, powers, duties, immunities
and privileges as its predecessor, without the execution or filing of any
instrument or paper or the performance any further act.
13. Governing Law; Jurisdiction.
This Agreement shall be construed, performed, and enforced in accordance
with, and governed by, the internal laws of the State of New York, without
giving effect to the principles of conflicts of laws thereof.
14. Severability. If any part of
this Agreement is declared by any court or other judicial or administrative body
to be null, void, or unenforceable, said provision shall survive to the extent
it is not so declared, and all of the other provisions of this Agreement shall
remain in full force and effect.
15. Amendments; Waivers. This
Agreement may be amended or modified, and any of the terms, covenants,
representations, warranties, or conditions hereof may be waived, only by a
written instrument executed by the parties hereto, or in the case of a waiver,
by the party waiving compliance. Any waiver by any party of any condition, or of
the breach of any provision, term, covenant, representation, or warranty
contained in this Agreement, in any one or more instances, shall not be deemed
to be nor construed as further or continuing waiver of any such condition, or of
the breach of any other provision, term, covenant, representation, or warranty
of this Agreement. The Company and the Dealer Manager agree that any
requested waiver, modification or amendment of this Agreement shall be
consistent with the terms of the Offering.
16. Entire Agreement. This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the escrow contemplated hereby and supersedes and
replaces all prior and contemporaneous agreements and understandings, oral or
written, with regard to such escrow.
17. Section Headings. The section
headings in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
18.
Counterparts. This Agreement may be executed
(including by facsimile transmission) with counterpart signature pages or
in counterparts, each of which shall be deemed an original, but all of
which shall constitute the same instrument.
19.
Resignation.
The Escrow Agent may resign upon 30
days’ advance written notice to the parties hereto. If a successor escrow
agent is not appointed by the Company within the 30-day period following
such notice, the Escrow Agent may petition any court of competent
jurisdiction to name a successor escrow agent, or may interplead the
Investor Funds with such court, whereupon the Escrow Agent’s duties
hereunder shall terminate.
20. References to Escrow
Agent. Other than the Offering Document (including the
subscription agreement and exhibits thereto) and any amendments thereof or
supplements thereto, no printed or other matter in any language (including,
without limitation, notices, reports and promotional material) which mentions
the Escrow Agent’s name or the rights, powers, or duties of the Escrow Agent
shall be issued by the Company or the Dealer Manager, or on the Company’s or the
Dealer Manager’s behalf, unless the Escrow Agent shall first have given its
specific written consent thereto. Notwithstanding the foregoing, any
amendment or supplement to the Offering Document (including the subscription
agreement and exhibits thereto) that revises, alters, modifies, changes or adds
to the description of the Escrow Agent or its rights, powers or duties hereunder
shall not be issued by the Company or the Dealer Manager, or on the Company’s or
Dealer Manager’s behalf, unless the Escrow Agent has first given specific
written consent thereto.
[Signature
page follows]
IN WITNESS WHEREOF, the
parties hereto have caused this Third Amended and Restated Escrow Agreement
to be executed the date and year first set forth above.
AMERICAN
REALTY CAPITAL
NEW YORK
RECOVERY REIT, INC.
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By:
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Name:
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▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Title:
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Chief
Executive Officer
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REALTY
CAPITAL SECURITIES, LLC
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By:
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Name:
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▇▇▇▇▇▇
▇▇▇▇▇▇
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Title:
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President
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▇▇▇▇▇
FARGO BANK, NATIONAL
ASSOCIATION,
as Escrow Agent
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By:
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Name:
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Title:
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Exhibit
A
Copy of
Offering Document
Exhibit
B
List of
Investors
Pursuant
to the Third Amended and Restated Escrow Agreement dated as
of ,
2010, among Realty
Capital Securities, LLC, American Realty Capital New York Recovery REIT,
Inc., (the “Company”),
and ▇▇▇▇▇ Fargo Bank, National Association (the “Escrow Agent”), the Company
hereby certifies that the following Investors have paid money for the purchase
of shares of the Company’s common stock, par value $0.01, and the money has been
deposited with the Escrow Agent:
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1.
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Name
of Investor
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Address
Tax
Identification Number
Amount of
Securities subscribed for
Amount of
money paid and deposited with Escrow Agent
Is
Investor a
resident of Pennsylvania (Yes or No)?
Is Investor a resident of Tennessee (Yes or No)?
Is Investor a resident of Tennessee (Yes or No)?
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2.
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Name
of Investor
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Address
Tax
Identification Number
Amount of
Securities subscribed for
Amount of
money paid and deposited with Escrow Agent
Is
Investor a
resident of Pennsylvania (Yes or No)?
Is Investor a resident of Tennessee (Yes or No)?
Is Investor a resident of Tennessee (Yes or No)?
Dated:
________________________
REALTY
CAPITAL SECURITIES, LLC
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By:
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Name: ▇▇▇▇▇▇
▇▇▇▇▇▇
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Title:
President
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Exhibit
C
CERTIFICATE
AS TO AUTHORIZED SIGNATURES
Account
Name:
Account
Number:
The
specimen signatures shown below are the specimen signatures of the individuals
who have been designated as Authorized Representatives of American Realty Capital New York
Recovery REIT, Inc. and are authorized to initiate and approve
transactions of all types for the above-mentioned account on behalf of American Realty Capital New York
Recovery REIT, Inc.
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Name/Title
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Specimen
Signature
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▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Chief
Executive Officer
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_______________________________
Signature
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
President
and Treasurer
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_______________________________
Signature
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▇▇▇▇▇▇▇
▇▇▇▇▇▇
Executive
Vice President and Chief Investment Officer
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_______________________________
Signature
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▇▇▇▇▇
▇▇▇▇▇
Executive
Vice President and Chief Financial Officer
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_______________________________
Signature
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▇▇▇▇▇▇
▇. ▇▇▇▇, ▇▇.
Executive
Vice President and Secretary
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_______________________________
Signature
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Exhibit
D
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Wells
Fargo Bank
Corporate
Trust Services
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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[NAME]
[POSITION]
Tel: [__________]
Fax: [__________]
[EMAIL]
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[logo] |
GENERAL
SCHEDULE OF FEES
to
act as ESCROW AGENT for the
American
Realty Capital New York Recovery REIT, Inc. Subscription Escrow up to
$75,000,000
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Acceptance
Fee:
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$500
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Initial
Fees as they relate to ▇▇▇▇▇ Fargo Bank acting in the capacity of Escrow Agent –
includes review of the Escrow Agreement; acceptance of the Escrow appointment;
setting up of Escrow Account(s) and accounting records; and coordination of
receipt of funds for deposit to the Escrow Account(s).
Acceptance
Fee payable at time of Escrow Agreement execution.
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Escrow Agent Annual
Administration Fee:
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$5,000.00
on first offering, $3,500 on
subsequent
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Pennsylvania
Sub-Accounting Administration Fee:
$750
Tennessee
Sub-Accounting Administration
Fee:
$750
For
ordinary administrative services by Escrow Agent – includes daily routine
account management; investment transactions; cash transaction processing
(including wire and check processing); monitoring claim notices pursuant to the
agreement; disbursement of funds in accordance with the agreement; and mailing
of trust account statements to all applicable parties. Float credit
received by the bank for receiving funds that remain uninvested are deemed part
of the Paying Agent/Escrow Agent’s compensation. These fees do not
contemplate paying interest to Investors or providing 1099s which would be the
responsibility of ACS. If individual 1099s, interest checks, interest accrual
calculations or any individual Investor information are required additional fees
will be charged. For rejected subscriptions or a failed offering, the
following fees will apply.
1099
Reporting $25 each
Interest
Rate Calculations and Interest Checks/Wires $ 35 each
Returned
Item Charges $35 each
The administrative fee is payable in
advance, with the first year fee due upon opening of the account. The
Annual Fee covers a full year or any part thereof, and therefore will not be
prorated or refunded in the year of early termination. These fees do
not include bank activity fees associated with Desktop Deposit
system. Fees for these services will be provided separately by our
Treasury Management Group.
▇▇▇▇▇
Fargo’s bid
is based on the following assumptions:
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·
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Number
of Escrow Accounts to be
established: Three (3)
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·
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Number
of Deposits to Escrow Accounts: Electronically, approximately
(10-20 per day)
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·
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Number
of Withdrawals from Escrow Accounts: Not more than two per
week.
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·
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Term
of Escrow: One (1)
year
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·
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APPOINTMENT SUBJECT TO RECEIPT
OF REQUESTED DUE DILIGENCE INFORMATION AS PER THE USA PATRIOT
ACT
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·
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THIS PROPOSAL ASSUMES THAT
BALANCES IN THE ACCOUNT WILL BE INVESTED IN MONEY MARKET
FUNDS
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·
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ALL FUNDS WILL
BE RECEIVED FROM OR DISTRIBUTED TO A DOMESTIC OR AN APPROVED
FOREIGN ENTITY
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·
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IF THE ACCOUNT(S) DOES NOT OPEN
WITHIN THREE (3) MONTHS OF THE DATE SHOWN BELOW, THIS PROPOSAL WILL BE
DEEMED TO BE NULL AND
VOID
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Out-of Pocket
Expenses:
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At
Cost
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We will
charge for out-of-pocket expenses in response to specific tasks assigned by the
client or provided for in the escrow agreement. Possible expenses
would be, but are not limited to, express mail and messenger charges, travel
expenses to attend closing or other meetings. There are no
charges for indirect out-of- pocket expenses.
This
fee schedule is based upon the assumptions listed above which pertain to the
responsibilities and risks involved in ▇▇▇▇▇ Fargo undertaking the role of
Escrow Agent. These assumptions are based on information provided to
us as of the date of this fee schedule. Our fee schedule is subject
to review and acceptance of the final documents. Should any of the
assumptions, duties or responsibilities change, we reserve the right to affirm,
modify or rescind our fee schedule. Extraordinary services (services other than
the ordinary administration services of Escrow Agent described above) are not
included in the annual administration fee and will be billed as incurred at the
rates in effect from time to time.
Submitted
on: ,
2010
Exhibit
E
Agency
and Custody Account Direction
For
Cash Balances
▇▇▇▇▇
Fargo Bank Money Market Deposit Accounts
Direction
to use the following ▇▇▇▇▇ Fargo Bank Money Market Deposit Accounts for Cash
Balances for the escrow account (the “Account”) created under
the Third Amended and Restated Escrow Agreement to which this Exhibit
E is attached.
You are
hereby directed to deposit, as indicated below, or as we shall direct further in
writing from time to time, all cash in the Account in the following money market
deposit account of ▇▇▇▇▇ Fargo Bank, National Association (“Bank”):
▇▇▇▇▇
Fargo Bank Money Market Deposit Account (“MMDA”)
We
understand that amounts on deposit in the MMDA are insured, subject to the
applicable rules and regulations of the Federal Deposit Insurance Corporation
(the “FDIC”), in the basic FDIC insurance amount of $250,000 per depositor, per
insured bank. This includes principal and accrued interest up to a total of
$250,000.
We
acknowledge that we have full power to direct investments in the
Account.
We
understand that we may change this direction at any time and that it shall
continue in effect until revoked or modified by us by written notice to
you.
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American
Realty Capital New York Recovery REIT, Inc.
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By:
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Signature
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Date
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Exhibit
F
[Form of
Notice to Pennsylvania Investors]
You have
tendered a subscription to purchase shares of common stock of American Realty
Capital New York Recovery REIT, Inc. (the “Company”). Your subscription is
currently being held in escrow. The guidelines of the Pennsylvania
Securities Commission do not permit the Company to accept subscriptions from
Pennsylvania residents until an aggregate of $75,000,000 of gross offering
proceeds have been received by the Company. The Pennsylvania guidelines provide
that until this minimum amount of offering proceeds is received by the Company,
every 120 days during the offering period Pennsylvania Investors may
request that their subscription be returned. If you wish to continue
your subscription in escrow until the Pennsylvania minimum subscription amount
is received, nothing further is required.
If you
wish to terminate your subscription for the Company’s common stock and have your
subscription returned please so indicate below, sign, date, and return to the
Escrow Agent, ▇▇▇▇▇ Fargo Bank, National Association at ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇
▇▇▇▇▇▇▇.
I hereby
terminate my prior subscription to purchase shares of common stock of American
Realty Capital New York Recovery REIT, Inc. and request the return of my
subscription funds. I certify to American Realty Capital New York
Recovery REIT, Inc. that I am a resident of Pennsylvania.
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Signature:
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Name:
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|||||
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(please
print)
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Date:
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Please
send the subscription refund to: