Unassociated Document


    
      AMENDED
        AND RESTATED 

      SUBSCRIPTION
        ESCROW AGREEMENT

       

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

       

      Whereas,
        the Company will issue in a public offering (the "Offering") its common
stock
        (the "Shares") to investors (the "Investors") pursuant to a Registration
        Statement on Form S-11
        (the
        "Registration Statement") filed by the Company with the Securities and Exchange
        Commission
        (the "SEC");

       

      Whereas,
        the Dealer Manager will act as dealer manager for the Offering;

       

      Whereas,
        until such time as subscriptions of the Company have been received for Stock,
        resulting in total minimum capital raised of $7,500,000 (the "Minimum Amount")
        and, thereafter,
        in a total minimum capital raised of $45,000,000 (the "PA & MA Minimum
Amount")
        and thereafter, the Company desires to deposit funds contributed by the
        Investors with the Escrow Agent, to be held for the benefit of the Investors
        and
        the Company in accordance with the
        terms
        set forth herein; and

       

      Whereas,
        the Escrow Agent represents and warrants that it is and at all times
during
        the term of this agreement will be, deemed a "bank" as that term is defined
        in
        Section 3(a)(6) of the Securities Exchange Act of 1934, as amended;

       

      NOW,
        THEREFORE, for good and valuable consideration, the receipt and adequacy
        of which are hereby acknowledged by each of the parties hereto, the parties
        hereto, intending
        to be legally bound, do hereby agree as follows:

       

      Section
        1. Appointment
        of Escrow Agent.
        The
        Company hereby appoints Boston Private
        Bank & Trust Company as escrow agent in accordance with the terms and
        conditions set forth
        herein, and the Escrow Agent hereby accepts such appointment.

       

      Section
        2. Proceeds
        to be Escrowed.
        Persons
        subscribing to purchase the Stock will
        be
        instructed by the Dealer Manager or any soliciting dealers to remit the purchase
        price in the form of checks, drafts or wires (hereinafter called "instruments
        of
        payment") payable to the order
        of,
        or funds wired in favor of, Boston Private Bank & Trust Company, Escrow
        Agent for American Realty Capital Trust, Inc. Any checks received made payable
        to a party other than the Escrow Agent shall be returned to the soliciting
        dealer or investor who submitted the check. By 12:00
        p.m. (noon) the next business day after receipt of instruments of payment
        from
        the Offering, the Dealer Manager or its Transfer Agent will send to the Escrow
        Agent the instruments
        of payment from such subscribers, for deposit by the Escrow Agent into an
        interest-bearing
        deposit account entitled "American Realty Capital Trust, Inc., by Boston
        Private
        Bank & Trust Company as Escrow Agent" (the "Escrow Account"), which deposit
        shall occur within one (1)
        business day after you receive such materials.


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      In
        the
        event that any checks deposited in the Escrow Account prove uncollectible
        after
        the
        funds represented thereby have been released by the Escrow Agent, then the
        Company shall
        promptly reimburse the Escrow Agent for any and all costs incurred for such
        upon
        request, and the Escrow Agent shall deliver the returned checks to the
        Company.

       

      All
        funds
        in the Escrow Account (hereinafter, the "Escrow Property"), until disbursed
        to the Company in accordance with Section 4 hereof, are to be held for the
        benefit of the
        shareholders of the Company and are not to (i) be commingled with the monies
        or
        become an asset
        of
        the Company, or (ii) be subject to attachment, levy or other encumbrance
        in any
        action by
        a
        third party against the Company.

       

      Section
        3. Identity
        of Subscribers.
        The
        Company or its Transfer Agent or the Dealer
        Manager shall furnish to the Escrow Agent with each delivery of funds, as
        provided in Section
        2
        hereof, a list of the persons who have paid money for the purchase of Stock
        showing the name, address, tax identification number, number of shares
        purchased, and the amount of money
        paid. The information comprising the identity of investors shall be provided
        to
        the Escrow
        Agent in the format set forth in the List
        of Investors
        attached
        as Exhibit A. All proceeds so
        deposited shall remain the property of the subscriber and shall not be subject
        to any liens or charges
        by the Company, or the Escrow Agent, until released to the Company as
        hereinafter provided.

       

      The
        Company and the Dealer Manager hereby acknowledges the Escrow Agent's
sole
        right to reject any subscriber based on the results of the Escrow Agent's
        internal due diligence
        policies and procedures, including, but not limited to, its "Know Your Customer"
        and anti-money
        laundering policies. The Escrow Agent may, in its sole discretion, reject
        any
subscriber
        by giving written notice to the Company and the Dealer Manager.

       

      Section
        4. Disbursement
        of Funds.
        On a
        weekly basis (and more frequently if requested
        by the Company), the Escrow Agent shall notify the Company and the Dealer
        Manager of
        the
        amount of the funds received hereunder.

       

      (a)
        If,
        payments of the Minimum Amount or more for Shares are obtained at any time
        prior
        to the Termination Date (as defined in Section 6), the Escrow Agent shall
        promptly
        notify the Company and the Dealer Manager, and upon the Company's and Dealer
        Manager's
        delivering a joint written notice (the "Disbursement Notice") attached as
        Exhibit B signed jointly by two Authorized Persons (as defined in Section
        12(q))
        of the Company, stating that
        it
        has received and accepted subscription agreements for the Minimum Amount
        of
        Shares then
        the
        Escrow Agent shall (i) disburse to the Company, by check or wire transfer,
        the
        funds in the
        Escrow Account representing the gross purchase price for the Stock less the
        funds in the Escrow
        Account representing proceeds from subscriptions of Investors who are
        Pennsylvania or Massachusetts
        residents, and (ii) disburse to the subscribers any interest thereon
        calculated pursuant
        to the provisions of Section 5. Proceeds from Pennsylvania and Massachusetts
        residents
        will count towards meeting the Minimum Amount, but, pursuant to Section 4(b)
        below, such
        proceeds from Pennsylvania and Massachusetts residents will not be released
        from
        escrow until
        the
        PA & MA Minimum Amount is reached.


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


       

      (b) Following
        such disbursements in Section 4(a) above, the Escrow Agent shall
        thereafter deposit into the Escrow Account funds contributed from subscriptions
        of Investors
        who are Pennsylvania or Massachusetts residents and with respect to subscribers
        that are not Pennsylvania or Massachusetts residents, (i) will forward directly
        to American Realty Capital
        Trust, Inc, Account @ Wachovia National Bank upon receipt by Escrow Agent
        of any
subscription
        documents received by Escrow Agent f and (ii) disburse to American Realty
        Capital Trust,
        Inc, Account @ Wachovia National Bank, by check or wire transfer, the funds
        in
        the Escrow
        Account representing the gross purchase price for the Stock by Investors
        who are
        not Pennsylvania
        or Massachusetts residents. If, payments of the PA & MA Minimum Amount or
more
        for
        Shares are obtained at any time prior to the Termination Date (as defined
        in
        Section 6), the Escrow Agent shall promptly notify the Company and the Dealer
        Manager, and upon the Company's
        and Dealer Manager's delivering a joint written notice (the "Disbursement
        Notice") attached as Exhibit C signed jointly by two Authorized Persons (as
        defined in Section 12(q)) of the
        Company, stating that is has received and accepted subscription agreements
        for
        the PA & MA Minimum Amount of Shares, then the Escrow Agent shall (x)
        disburse to the Company, by check or
        wire
        transfer, the funds in the Escrow Account representing the gross purchase
        price
        for the Stock,
        and (y) disburse to the subscribers any interest thereon calculated pursuant
        to
        the provisions of Section 5.

       

      (c) Following
        such disbursements in Sections 4(a) and (b) above, the Escrow Account
        shall close and thereafter Escrow Agent shall forward directly to the Company
        upon receipt
        by Escrow Agent of any subscription documents and instruments of payment
        received by Escrow
        Agent from subscribers.

       

      
        
          
          

          (d) If
            the
            Minimum Amount and PA & MA Minimum Amount of proceeds has not
            been
            obtained and delivered prior to the Termination Date, the Escrow Agent
            shall,
            within a reasonable time following the Termination Date, but in no event
            more
            than thirty (30) days after the Termination Date, refund to each investor
            at the
            address appearing on the List of Investors, or at
            such
            other address as shall be furnished to the Escrow Agent by the investor
            in
            writing, all sums
            paid
            by the investor pursuant to his subscription agreement for Shares, together
            with
            the interest
            accrued on such funds in the Escrow Account, and shall then notify the
            Company
            in writing
            of such refunds. If the Company rejects any subscription for which the
            Escrow
            Agent has already
            collected funds, the Escrow Agent shall, upon the written request of
            the
            Company, promptly
            issue a refund check to the rejected subscriber. If the Company rejects
            any
            subscription for which the Escrow Agent has not yet collected funds but
            has
            submitted the subscriber's check for
            collection, the Escrow Agent shall promptly issue a check in the amount
            of the
            subscriber's check
            to
            the rejected subscriber after the Escrow Agent has cleared such funds.
            If the
            Escrow Agent
            has
            not yet submitted a rejected subscriber's check for collection, the Escrow
            Agent
            shall promptly
            remit the subscriber's check directly to the subscriber.

        


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        


        Section
          5. Investment
          of the Escrow Property.
          Prior
          to the disbursement of funds deposited in the Escrow Account in accordance
          with
          the provisions of Section 2 & 3 hereof, the Escrow Agent shall invest all of
          the funds deposited in the Escrow Account in "Short-Term Investments" (as
          defined below) in compliance with SEC Rule 15c2-4 and the Escrow Agent
          is
further
          authorized and agrees to reinvest all earnings and interest derived there
          from
          in Short-Term
          Investments specified below. In the event that instruments of payment are
          returned to the Escrow Agent for nonpayment, the Escrow Agent is authorized
          to
          debit the Escrow Account in accordance
          with Section 2 hereof.

         

        "Short-Term
          Investments" include obligations of, or obligations guaranteed by, the
          United States government or bank money-market accounts or certificates
          of
          deposit of national
          or state banks that have deposits insured by the Federal Deposit Insurance
          Corporation (including
          certificates of deposit of any bank acting as a depository or custodian
          for any
          such funds)
          which mature on or before the termination of the Offering, unless such
          instrument cannot be readily sold or otherwise disposed of for cash by
          the
          termination of the Offering without any dissipation
          of the offering proceeds invested.

         

        The
          following securities are not permissible investments:

         


        (a) money
          market mutual funds;

         


        (b) corporate
          equity or debt securities;

         


        (c) repurchase
          agreements;

         

        
        

        (d) bankers'
          acceptances;

         


        (e) commercial
          paper; and

          


        (f) municipal
          securities.

         

        The
          Escrow Agent shall have no obligation to invest or reinvest the Escrow
          Property
          if deposited with
          the
          Escrow Agent after noon (E.S.T.) on such day of deposit. Instructions received
          after noon (E.S.T.) will be treated as if received on the following business
          day. The Escrow Agent shall
          have no liability whatsoever to any party or other person or entity for
          any
          investment losses resulting
          from the investment, reinvestment or liquidation of the Escrow Property.
          Any
          interest or other income received on such investment and reinvestment of
          the
          Escrow Property shall become
          part of the Escrow Property and any losses incurred on such investment
          and
          reinvestment of
          the
          Escrow Property shall be debited against the Escrow Property. If a written
          direction is not given
          to
          the Escrow Agent, the Escrow Property shall remain uninvested with no liability
          for interest
          therein. It is agreed and understood that the Escrow Agent may earn fees
          associated with the
          investments outlined above in accordance with the terms of such investments.
          Notwithstanding
          the foregoing, the Escrow Agent shall have the power to sell or liquidate
          the
          foregoing investments whenever the Escrow Agent shall be required to release
          all
          or any portion of
          the
          Escrow Property pursuant to Section 4 hereof. In no event shall the Escrow
          Agent
          be deemed
          an
          investment manager or adviser in respect of any selection of investments
          hereunder. It
          is
          understood and agreed that the Escrow Agent or its affiliates are permitted
          to
          receive additional
          compensation that could be deemed to be in the Escrow Agent's economic
          self-interest
          for (1) serving as administrator, shareholder servicing agent, custodian
          or
          sub-custodian with respect to certain of the investments, (2) using affiliates
          to effect transactions in certain investments
          and (3) effecting transactions in investments.


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        


         

        Section
          6. Term
          of Escrow.
          The
          "Termination Date" shall be (i) January 25, 2009
          or
          (ii) the date the Escrow Agent receives written notice from the Company
          that it
          is abandoning
          the sale of the Shares. The Company may extend the termination date for
          up to
          one year
          upon
          written notice to the Escrow Agent. Upon the termination of the Agreement
          any
remaining
          Escrow Property shall be forwarded to the Company in accordance with the
          Company's written directions.

         

        The
          provisions of Sections 8, 10 and 11 shall survive the termination of this
          Agreement and the earlier
          resignation or removal of the Escrow Agent.

         

        Section
          7. Intentionally
          Omitted.

         

        Section
          8. Compensation
          of Escrow Agent.
          The
          Escrow Agent shall be entitled to
          payment from the Company for customary fees and expenses for all services
          rendered as described
          in Schedule II (as such fees may be adjusted from time to time). Annual
          fees are
          due annually in advance for each year or any part thereof. The Company
          shall
          reimburse the Escrow Agent
          on
          demand for all loss, liability, damage, disbursements, advances or expenses
          paid
          or incurred
          by it in the administration of its duties hereunder, including, but not
          limited
          to, all counsel,
          advisors' and agents' fees and disbursements and all taxes or other governmental
          charges. The obligations contained in this Section 8 shall survive the
          termination of this Agreement and the resignation or removal of the Escrow
          Agent.

         

        Section
          9. Resignation
          of Escrow Agent.
          The
          Escrow Agent may, in its sole discretion,
          resign and be discharged from its duties hereunder at any time by giving
          thirty
(30)
          calendar days' prior written notice of such resignation to the Company
          and the
          Dealer Manager.
          The Company and the Dealer Manager may remove the Escrow Agent at any time
          by
          giving thirty (30) calendar days' prior written notice to the Escrow Agent.
          Upon
          such notice, a successor escrow agent shall be appointed by the Company
          and the
          Dealer Manager who shall provide written notice of such to the resigning
          Escrow
          Agent. Such successor escrow agent shall become
          the escrow agent hereunder upon the resignation or removal date specified
          in
          such notice.
          If the Company and the Dealer Manager are unable to agree upon a successor
          escrow agent within thirty (30) days after such notice, the Escrow Agent
          may, in
          its sole discretion, deliver
          the Escrow Property to the Company at the address provided herein or may
          apply
          to a court
          of
          competent jurisdiction for the appointment of a successor escrow agent
          or for
          other appropriate
          relief. The costs and expenses (including its attorneys' fees and expenses)
          incurred by
          the
          Escrow Agent in connection with such proceeding shall be paid by the Company.
          Upon receipt
          of the identity of the successor escrow agent, the Escrow Agent shall either
          deliver the Escrow
          Property then held hereunder to the successor Escrow Agent, less the Escrow
          Agent's fees,
          costs and expenses or other obligations owed to the Escrow Agent to be
          paid from
          any interest
          earned in respect of the Escrow Property, or hold any interest earned in
          respect
          of the Escrow
          Property (or any portion thereof), pending distribution, until all such
          fees,
          costs and expenses
          or other obligations are paid. Upon its resignation and delivery of the
          Escrow
          Property as
          set
          forth in this Section 9, the Escrow Agent shall be discharged of and from
          any
          and all further
          obligations arising in connection with the Escrow Property or this
          Agreement.


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        


         

        Section
          10. Indemnification
          of Escrow Agent.
          The
          Company and the Dealer Manager
          shall jointly and severally indemnify, defend and hold harmless the Escrow
          Agent
          and its
          officers, directors, employees, representatives and agents, from and against
          and
          reimburse the Escrow
          Agent for any and all claims, expenses, obligations, liabilities, losses,
          damages, injuries (to
          person, property, or natural resources), penalties, stamp or other similar
          taxes, actions, suits, judgments, reasonable costs and expenses (including
          reasonable attorney's fees and expenses) of whatever
          kind or nature regardless of their merit, demanded, asserted or claimed
          against
          the Escrow
          Agent directly or indirectly relating to, or arising from, claims against
          the
          Escrow Agent by
          reason
          of its participation in the transactions contemplated hereby, including
          without
limitation
          all costs required to be associated with claims for damages to persons
          or
          property, and all
          attorneys' and consultants' fees and expenses and court costs. Except to
          the
          extent caused by the
          Escrow Agent's gross negligence or willful misconduct. The provisions of
          this
          Section 10 shall
          survive the termination of this Agreement or the earlier resignation or
          removal
          of the Escrow Agent.

         

        
        

        Section
          11. The
          Escrow Agent.

         

        (a) The
          duties, responsibilities and obligations of Escrow Agent shall be limited
          to those expressly set forth herein and no duties, responsibilities or
          obligations shall be inferred or implied against the Escrow Agent. The
          Escrow
          Agent shall not be subject to, nor required
          to comply with, any other agreement to which the Company or the Dealer
          Manager
          is a party,
          even though reference thereto may be made herein, or to comply with any
          direction or instruction (other than those contained herein or delivered
          in
          accordance with this Agreement) from
          the
          Company, the Dealer Manager or an entity acting on its behalf. The Escrow
          Agent
shall
          not
          be required to expend or risk any of its own funds or otherwise incur any
          liability, financial
          or otherwise, in the performance of any of its duties hereunder.

         

        (b) If
          at any
          time the Escrow Agent is served with any judicial or administrative
          order, judgment, decree, writ or other form of judicial or administrative
          process which in any way affects the Escrow Property (including but not
          limited
          to orders of attachment or
          garnishment or other forms of levies or injunctions or stays relating to
          the
          transfer of the Escrow
          Property), the Escrow Agent is authorized to comply therewith in any manner
          it
          or legal counsel of its own choosing deems appropriate; and if the Escrow
          Agent
          complies with any such judicial
          or administrative order, judgment, decree, writ or other form of judicial
          or
administrative
          process, Escrow Agent shall not be liable to any of the parties hereto
          or to any
other
          person or entity even though such order, judgment, decree, writ or process
          may
          be subsequently
          modified or vacated or otherwise determined to have been without legal
          force or
effect.

         

        (c) The
          Escrow Agent shall not be liable for any action taken or omitted or for
          any
          loss
          or injury resulting from its actions or its performance or lack of performance
          of its duties
          hereunder in the absence of gross negligence or willful misconduct on its
          part.
          In no event shall
          the
          Escrow Agent be liable (i) for acting in accordance with or conclusively
          relying
          upon any
          instruction, notice, demand, certificate or document from the Company,
          the
          Dealer Manager,
          or any entity acting on behalf of the Company, (ii) for any indirect,
          consequential, punitive or special damages, multiple damages under M.G.L.
          c. 93A
          or any other authority, damages
          for lost profits, damages for emotional distress, or attorney's fees and
          costs,
          all regardless
          of the form of action and whether or not any such damages were foreseeable
          or
          contemplated, (iii) for the acts or omissions of its nominees, correspondents,
          designees, agents, subagents
          or subcustodians, (iv) for the investment or reinvestment of any cash held
          by it
hereunder
          in accordance with the terms hereof, including without limitation any liability
          for any delays
          (not resulting from its gross negligence or willful misconduct) in the
          investment or reinvestment
          of the Escrow Property, or any loss of interest or income incident to any
          such
delays,
          or (v) for an amount in excess of the value of the Escrow Property, valued
          as of
          the date of
          deposit, but only to the extent of direct money damages. The provisions
          of this
          subsection shall
          survive the termination of this Agreement or the earlier resignation or
          removal
          of the Escrow
          Agent.


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        


        
           

          (d) If
            any
            fees, expenses or costs incurred by, or any obligations owed to, the
            Escrow
            Agent or its counsel hereunder are not paid within fifteen (15) calendar
            days of
            when they
            are
            due, the Escrow Agent may reimburse itself therefor from the Escrow Property
            and
            may sell,
            liquidate, convey or otherwise dispose of any investment in respect of
            the
            Escrow Property for
            such
            purpose. The Escrow Agent may in its sole discretion withhold from any
            distribution of any interest earned in respect of the Escrow Property
            an amount
            it believes would, upon sale or liquidation, produce proceeds equal to
            any
            unpaid amounts to which the Escrow Agent is entitled to
            hereunder.

           

        

        
        

        (e) The
          Escrow Agent may consult with legal counsel of its own choosing, at the
          expense
          of the Company as to any matter relating to this Agreement, and the Escrow
          Agent
shall
          not
          incur any liability in acting in good faith in accordance with any advice
          from
          such counsel.
          Reliance on such advice of counsel shall not effect or be deemed to be
          a waiver
          of the Escrow Agent's attorney-client privilege or any other applicable
          privilege or protection.

         

        (f) The
          Escrow Agent shall not incur any liability for not performing any act
or
          fulfilling any duty, obligation or responsibility hereunder by reason of
          any
          occurrence beyond the
          control of the Escrow Agent (including but not limited to any act or provision
          of any present or
          future
          law or regulation or governmental authority, any act of God or war, civil
          unrest, local or
          national disturbance or disaster, any act of terrorism, the unavailability
          of
          the Federal Reserve
          Bank wire or facsimile or other wire or communication facility, or any
          computer
          or other
          technological malfunction).

         

        (g) The
          Escrow Agent shall be entitled to conclusively rely upon any order, judgment,
          certification, demand, notice, instrument or other writing delivered to
          it
          hereunder without
          being required to determine the authenticity or the correctness of any
          fact
          stated therein or
          the
          propriety or validity or the service thereof. The Escrow Agent may act
          in
          conclusive reliance
          upon any instrument or signature believed by it to be genuine and may assume
          that any person purporting to give receipt or advice to make any statement
          or
          execute any document in connection with the provisions hereof has been
          duly
          authorized to do so.

         

         


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        


         

        (h)
          The
          Escrow Agent shall not be responsible in any respect for the form, execution,
          validity, value or genuineness of documents or securities deposited hereunder,
          or for any description therein, or for the identity, authority or rights
          of
          persons executing or delivering or
          purporting to execute or deliver any such document, security or endorsement.
          The
          Escrow Agent
          shall not be called upon to advise any party as to the wisdom in selling
          or
          retaining or taking
          or
          refraining from any action with respect to any securities or other property
          deposited hereunder.

         

        (i)
          The
          Escrow Agent shall not be under any duty to give the Escrow Property
held
          by
          it hereunder any greater degree of care than it gives its own similar property
          and shall not
          be
          required to invest any funds held hereunder except as directed in this
          Agreement.

         

        (j)
          When
          the Escrow Agent acts on any information, instructions, communications,
          (including, but not limited to, communications with respect to the delivery
          of
          securities or the wire transfer of funds) sent by telex, facsimile, email
          or
          other form of electronic or
          data
          transmission, the Escrow Agent, absent its own gross negligence, shall
          not be
responsible
          or liable in the event such communication is not an authorized or authentic
          communication
          of the Company or the Dealer Manager or is not in the form the Company
          or the
Dealer
          Manager sent or intended to send (whether due to fraud, distortion or
          otherwise). The Company
          shall indemnify the Escrow Agent against any loss, liability, claim or
          expense
(including
          legal fees and expenses) it may incur with its acting in accordance with
          any
          such communication.

         

        (k)
          In
          the event of any ambiguity or uncertainty hereunder or in any notice,
instruction
          or other communication received by the Escrow Agent hereunder, the Escrow
          Agent
may,
          in
          its sole discretion, refrain from taking any action other than to retain
          possession of the Escrow
          Property, unless the Escrow Agent receives written instructions, signed
          by the
          Company which
          eliminates such ambiguity or uncertainty.

         

        (1)
          In
          the event of any dispute between or conflicting claims among the Company
          and any other person or entity with respect to any Escrow Property, the
          Escrow
          Agent shall
          be
          entitled, in its sole discretion, to refuse to comply with any and all
          claims,
          demands or instructions with respect to such Escrow Property for so long
          as such
          dispute or conflict shall continue,
          and the Escrow Agent shall not be or become liable in any way to the Company
          or
          any other
          person for failure or refusal to comply with such conflicting claims, demands
          or
instructions.
          The Escrow Agent shall be entitled to refuse to act until, to its sole
          satisfaction, either
          (i) such conflicting or adverse claims or demands shall have been determined
          by
          a final order, judgment or decree of a court of competent jurisdiction,
          which
          order, judgment or decree is
          not
          subject to appeal, or settled by agreement between the conflicting parties
          as
          evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow
          Agent
          shall have received security or an
          indemnity satisfactory to it sufficient to hold it harmless from and against
          any
          and all losses which
          it
          may incur by reason of so acting. Any court order, judgment or decree shall
          be
accompanied
          by a legal opinion by counsel for the presenting party, satisfactory to
          the
          Escrow Agent in its sole discretion, to the effect that said order, judgment
          or
          decree represents a final adjudication
          of the rights of the parties by a court of competent jurisdiction, and
          that the
          time for appeal
          from such order, judgment or decree has expired without an appeal having
          been
          filed with
          such
          court. The Escrow Agent may act on such court order and legal opinions
          without
further
          question. The Escrow Agent may, in addition, elect, in its sole discretion,
          to
          commence an
          interpleader action or seek other judicial relief or orders as it may deem,
          in
          its sole discretion, necessary.
          The costs and expenses (including reasonable attorneys' fees and expenses)
          incurred in
          connection with such proceeding shall be paid by, and shall be deemed an
          obligation of, the Company.


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

        (m)
          The
          Escrow Agent shall have no responsibility for the contents of any writing
          of the arbitrators or any third party contemplated herein as a means to
          resolve
          disputes and
          may
          conclusively rely without any liability upon the contents thereof.

         

        (n)
          The
          Escrow Agent does not have any interest in the Escrow Property deposited
          hereunder but is serving as escrow holder only and having only possession
          thereof. The
          Company shall pay or reimburse the Escrow Agent upon request for any transfer
          taxes or other
          taxes relating to the Escrow Property incurred in connection herewith and
          shall
          indemnify and hold harmless the Escrow Agent from any amounts that it is
          obligated to pay in the way of such
          taxes. Any payments of income from this Escrow Account shall be subject
          to
          withholding regulations
          then in force with respect to United States taxes. The Company or the Dealer
          Manager
          will provide the Escrow Agent with appropriate W-9 forms for tax identification
          number
          certifications, or W-8 forms for non-resident alien certifications. This
          paragraph shall survive notwithstanding any termination of this Agreement
          or the
          resignation or removal of the Escrow
          Agent.

         

        (o)
          The
          Escrow Agent shall provide to the Company and the Dealer Manager monthly
          statements identifying transactions, transfers or holdings of Escrow Property
          and each such
          statement shall be deemed to be correct and final upon receipt thereof
          by the
          Company and the
          Dealer Manager unless the Escrow Agent is notified in writing, by the Company
          or
          the Dealer
          Manager, to the contrary within thirty (30) business days of the date of
          such
          statement.

         

        Section
          12. Miscellaneous.

         

        (a) This
          Agreement embodies the entire agreement and understanding among the
          parties relating to the subject matter hereof.

         

        (b) This
          Agreement shall be governed by and construed in accordance with the
          laws
          of the Commonwealth of Massachusetts without reference to its principles
          of
          conflict of
          laws.

         

        (c) Each
          of
          the parties hereto hereby irrevocably consents to the jurisdiction of
the
          courts of the Commonwealth of Massachusetts and of any Federal Court located
          in
          such Commonwealth in connection with any action, suit or other proceeding
          arising out of or relating to this Agreement or any action taken or omitted
          hereunder, and waives any claim of forum non conveniens and any objections
          as to
          laying of venue. Each party further waives personal service of any summons,
          complaint or other process and agrees that service thereof may be made
          by
certified
          or registered mail directed to such person at such person's address for
          purposes
          of notices
          hereunder. Each party further waives any claim to trial by
          jury.


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        


        (d)
          All
          notices and other communications under this Agreement shall be in writing
          in English and shall be deemed given when delivered personally, on the
          next
          Business Day
          after
          delivery to a recognized overnight courier or mailed first class (postage
          prepaid)or when sent by facsimile to the parties (which facsimile copy
          shall be
          followed, in the case of notices
          or other communications sent to the Escrow Agent, by delivery of the original)
          at the following
          addresses (or to such other address as a party may have specified by notice
          given to the
          other
          parties pursuant to this provision):

         

        If
          to the
          Company, to:

         
          

        American
          Realty Capital Trust, Inc.

         
          

        c/o
          American Realty Capital

         

        
        

        1725
          The
          Fairway

           
          

        Jenkintown,
          PA 19046

         

         

        If
          to the
          Dealer Manager, to: 

         

        
        

        Realty
          Capital Securities 

         

        
        

        Three
          Copley Place, Suite 3300 

         

        
        

        Boston,
          MA 02116

         

         
          

        If
          to the
          Escrow Agent, to:

         


        Boston
          Private Bank & Trust Company

         

        Ten
          Post
          Office Square

         
          

        Boston,
          MA 02109

         

        (e) The
          headings of the Sections of this Agreement have been inserted for convenience
          and shall not modify, define, limit or expand the express provisions of
          this
          Agreement.

         

        (f) This
          Agreement and the rights and obligations hereunder of parties hereto
may
          not
          be assigned except with the prior written consent of the other parties
          hereto.
          This Agreement
          shall be binding upon and inure to the benefit of each party's respective
          successors and
          permitted assigns. Except as expressly provided herein, no other person
          shall
          acquire or have
          any
          rights under or by virtue of this Agreement. This Agreement is intended
          to be
          for the sole
          benefit of the parties hereto, and (subject to the provisions of this Section
          10(f)) their respective
          successors and assigns, and none of the provisions of this Agreement are
          intended to be,
          nor
          shall they be construed to be, for the benefit of any third
          person.


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        


         

        (g)
          This
          Agreement may not be amended, supplemented or otherwise modified without
          the
          prior written consent of the parties hereto.

         

        (h)
          The
          Escrow Agent makes no representation as to the validity, value, genuineness
          or the collectability of any security or other document or instrument held
          by or
delivered
          to it.

         

        (i)
          Any
          payments of income from the Escrow Property shall be subject to withholding
          regulations then in force with respect to United States taxes. The Company
          will
provide
          the Escrow Agent with its Employer Identification Number for use by the
          Escrow
          Agent if
          necessary. It is understood that the Escrow Agent shall be responsible
          for
          income reporting only
          with
          respect to income earned on the Escrow Property and will not be responsible
          for
          any other
          reporting.

         

        (j)
          This
          Agreement may be executed in two or more counterparts, each of which shall
          be an
          original, but all of which together shall constitute one and the same
          instrument.

         

        (k)
          The
          rights and remedies conferred upon the parties hereto shall be cumulative,
          and the exercise or waiver of any such right or remedy shall not preclude
          or
          inhibit the exercise of any additional rights or remedies. The waiver of
          any
          right or remedy hereunder shall
          not
          preclude the subsequent exercise of such right or remedy.

         

        (1)
          The
          Company and the Dealer Manager hereby acknowledge that, in accordance
          with Section 326 of the USA Patriot Act, the Escrow Agent, like all financial
          institutions
          and in order to help fight the funding of terrorism and money laundering,
          are
required
          to obtain, verify, and record information that identifies each person or
          legal
          entity that establishes a relationship or opens an account with Boston
          Private
          Bank & Trust Company. The Company
          and the Dealer Manager hereby agree that each will provide the Escrow Agent
          with
          such information as it may request in order for the Escrow Agent to satisfy
          the
          requirements of the
          USA
          Patriot Act.

         

        (m)
          The
          Company and the Dealer Manager hereby represent and warrant (i)
          that
          this Agreement has been duly authorized, executed and delivered on its
          behalf
          and constitutes its legal, valid and binding obligation and (ii) that the
          execution, delivery and performance
          of this Agreement by the Company and the Dealer Manager does not and will
          not
violate
          any applicable law or regulation.

         

        (n)
          The
          invalidity, illegality or unenforceability of any provision of this Agreement
          shall in no way affect the validity, legality or enforceability of any
          other
          provision; and
          if
          any provision is held to be unenforceable as a matter of law, the other
          provisions shall not be
          affected thereby and shall remain in full force and effect.


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        


        (o)
          No
          printed or other material in any language, including prospectuses, notices,
          reports, and promotional material which mentions Boston Private Bank & Trust
Company
          or any of their respective affiliates by name or the rights, powers, or
          duties
          of the Escrow
          Agent under this Agreement shall be issued by any other parties hereto,
          or on
          such party's
          behalf, without the prior written consent of the Escrow Agent.

         

        (p)
          For
          purposes of this Agreement, "Business Day" shall mean any day that is
not
          a
          Saturday or Sunday or a day on which banks are required or permitted by
          law or
          executive order
          to
          be closed in the City of Boston, Massachusetts.

         

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


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        


        IN
          WITNESS WHEREOF, the parties hereto have executed this Agreement as of
          the
          day
          and year first above written.

         

        AMERICAN
          REALTY CAPITAL TRUST, INC.


        


        By:
          /s/ Brian S. Block            

        Name:
          Brian S. Block

        Title:
          Chief Financial Officer


         

        REALTY
          CAPITAL SECURITIES, LLC


         
          

        By:
          /s/ Thomas P. O'Neill            

        Name:
          Thomas P. O'Neill 

        Title:
          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


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        


        Schedule
          II

         

        $3,000.00
          Initial Administrative Fee 

         

        $1,500.00
          Annual Fee 

         
          

        TBD
          -
          Legal Fees