Unassociated Document


    Exhibit
      10.1

     

    SUBSCRIPTION
      ESCROW AGREEMENT

    DRAFT
      11/6/07

    


    AGREEMENT,
      dated as of ______ 200_, (the “Agreement”) by and among American Realty Capital
      Trust, Inc., a Maryland corporation (the “Company”) and Boston Private Bank
& Trust Company, as escrow agent (the “Escrow Agent”).

     

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

     

    Whereas,
      Realty Capital Securities, LLC, a Delaware limited liability company (the
“Dealer Manager”), will act as dealer manager for the Offering; and 

     

    Whereas,
      until such time as subscriptions from non-affiliates of the Company have been
      received for Stock, resulting in total minimum capital raised of $2,000,000
      (the
“Minimum Amount”), the Company desires to deposit funds contributed by the
      Investors with the Escrow Agent, to be held for the benefit of the Investors
      and
      the Company;

     

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

     

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

     

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

     

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

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

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

     

    The
      Escrow Agent shall have no duty to solicit funds in the Escrow Account (the
      “Escrow Property”).

     

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


     

    The
      Company hereby acknowledges the Escrow Agent’s sole right to reject any
      subscriber based on the results of the Escrow Agent’s internal due diligence
      policies and procedures consistent with normal banking channels. The Escrow
      Agent may reject any subscriber that does not clear normal banking channels
      by
      giving written notice to the Company.

     

    Section
      4. Disbursement
      of Funds.
      On a
      weekly basis (and more frequently if requested by the Company), the Escrow
      Agent
      shall notify the Company of the amount of the funds received hereunder. If
      payments of the Minimum Amount or more for Shares are obtained at any time
      prior
      to the Termination Date (as defined in Section 6), the Escrow Agent shall
      promptly notify the Company, and upon the Company delivering a written notice
      (the “Disbursement Notice”) attached as Exhibit B, signed jointly by two
      Authorized Persons (as defined in Section 12(q)) of the Company, stating
      that is has received and accepted subscription agreements for the Minimum Amount
      of Shares, then the Escrow Agent shall (i) disburse to the Company, by
      check or wire transfer, the funds in the Escrow Account representing the gross
      purchase price for the Stock, and (ii) disburse to the subscribers any
      interest thereon calculated pursuant to the provisions of Section 5.
      Following such disbursements, the Escrow Account shall close and thereafter
      you
      shall forward directly to the Company upon receipt by Escrow Agent of any
      subscription documents and instruments of payment received by Escrow Agent
      from
      subscribers. If the Minimum Amount of proceeds has not been obtained and
      delivered prior to the Termination Date, the Escrow Agent shall, within a
      reasonable time following the Termination Date, but in no event more than thirty
      (30) days after the Termination Date, refund to each investor at the address
      appearing on the List of Investors, or at such other address as shall be
      furnished to the Escrow Agent by the investor in writing, all sums paid by
      the
      investor pursuant to his subscription agreement for Shares, together with the
      interest accrued on such funds in the Escrow Account, and shall then notify
      the
      Company in writing of such refunds. If the Company rejects any subscription
      for
      which you have already collected funds, the Escrow Agent shall, upon the written
      request of the Company, promptly issue a refund check to the rejected
      subscriber. If the Company rejects any subscription for which you have already
      collected funds, the Escrow Agent shall, upon the written request of the
      Company, promptly issue a refund check to the rejected subscriber. If the
      Company rejects any subscription for which the Escrow Agent has not yet
      collected funds but has submitted the subscriber’s check for collection, the
      Escrow Agent shall promptly issue a check in the amount of the subscriber’s
      check to the rejected subscriber after the Escrow Agent has cleared such funds.
      If the Escrow Agent has not yet submitted a rejected subscriber’s check for
      collection, the Escrow Agent shall promptly remit the subscriber’s check
      directly to the subscriber. 

    
       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

    

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

     

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

     

    The
      following securities are not permissible investments: 

    

      
        	
              	(a)	
                money
                  market mutual funds; 

              


      

       

      
        	
              	(b)	
                corporate
                  equity or debt securities; 

              


      

       

      
        	
              	(c)	
                repurchase
                  agreements; 

              


      

       

      
        	
              	(d)	
                bankers’
                  acceptances; 

              


      

       

      
        	
              	(e)	
                commercial
                  paper; and 

              


      

       

      
        	
              	(f)	
                municipal
                  securities. 

              


      

    

     

    The
      Escrow Agent shall have no obligation to invest or reinvest the Escrow Property
      if deposited with the Escrow Agent after noon (E.S.T.) on such day of deposit.
      Instructions received after noon (E.S.T.) will be treated as if received on
      the
      following business day. The Escrow Agent shall have no responsibility for any
      investment losses resulting from the investment, reinvestment or liquidation
      of
      the Escrow Property. Any interest or other income received on such investment
      and reinvestment of the Escrow Property shall become part of the Escrow Property
      and any losses incurred on such investment and reinvestment of the Escrow
      Property shall be debited against the Escrow Property. If a selection is not
      made and a written direction not given to the Escrow Agent, the Escrow Property
      shall remain uninvested with no liability for interest therein. It is agreed
      and
      understood that the entity serving as Escrow Agent may earn fees associated
      with
      the investments outlined above in accordance with the terms of such investments.
      Notwithstanding the foregoing, the Escrow Agent shall have the power to sell
      or
      liquidate the foregoing investments whenever the Escrow Agent shall be required
      to release all or any portion of the Escrow Property pursuant to Section 5
      hereof. In no event shall the Escrow Agent be deemed an investment manager
      or
      adviser in respect of any selection of investments hereunder. It is understood
      and agreed that the Escrow Agent or its affiliates are permitted to receive
      additional compensation that could be deemed to be in the Escrow Agent’s
      economic self-interest for (1) serving as investment adviser,
      administrator, shareholder servicing agent, custodian or sub-custodian with
      respect to certain of the investments, (2) using affiliates to effect
      transactions in certain investments and (3) effecting transactions in
      investments.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Section
      6. Term
      of Escrow.
      The
“Termination Date” shall be (i) December 31, 2010 or (ii) the date the
      Escrow Agent receives written notice from the Company that it is abandoning
      the
      sale of the Shares. The Company may extend the termination date for up to one
      year upon written notice to the Escrow Agent. Upon the termination of the
      Agreement any remaining Escrow Property shall be forwarded to the Company in
      accordance with the Company’s written directions.

     

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

     

    Section
      7. Intentionally
      Omitted.
      

     

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

     

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

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

    

      Section
        11. The
        Escrow Agent.

       

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

       

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

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      (c) The
        Escrow Agent shall not be liable for any action taken or omitted or for any
        loss
        or injury resulting from its actions or its performance or lack of performance
        of its duties hereunder in the absence of gross negligence or willful misconduct
        on its part. In no event shall the Escrow Agent be liable (i) for acting
        in
        accordance with or conclusively relying upon any instruction, notice, demand,
        certificate or document from the Company or any entity acting on behalf of
        the
        Company, (ii) for any indirect, consequential, punitive or special damages,
        regardless of the form of action and whether or not any such damages were
        foreseeable or contemplated, (iii) for the acts or omissions of its nominees,
        correspondents, designees, agents, subagents or subcustodians, (iv) for the
        investment or reinvestment of any cash held by it hereunder, in each case
        in
        good faith, in accordance with the terms hereof, including without limitation
        any liability for any delays (not resulting from its gross negligence or
        willful
        misconduct) in the investment or reinvestment of the Escrow Property, or
        any
        loss of interest or income incident to any such delays, or (v) for an amount
        in
        excess of the value of the Escrow Property, valued as of the date of deposit,
        but only to the extent of direct money damages. 

       

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

       

      (e) The
        Escrow Agent may consult with legal counsel of its own choosing, at the expense
        of the Company as to any matter relating to this Agreement, and the Escrow
        Agent
        shall not incur any liability in acting in good faith in accordance with
        any
        advice from such counsel. 

       

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

       

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

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

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

       

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

       

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

       

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

       

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

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

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

       

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

       

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

       

      Section
        12. Miscellaneous.

       

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

       

      (b) This
        Agreement shall be governed by and construed in accordance with the laws
        of the
        State of New York without reference to the principles of conflict of
        laws.

       

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

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

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

       

      If
        to the
        Company, to:

       

      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 3300B

      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. Each of the
        Company will provide the Escrow Agent with its Employer Identification Number
        for use by the Escrow Agent if necessary. It is understood that the Escrow
        Agent
        shall be responsible for income reporting only with respect to income earned
        on
        the Escrow Property and will not be responsible for any other
        reporting.

       

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

       

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

       

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

       

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

       

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

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

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

       

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

       

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

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


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

       

       

      
        	 	
                AMERICAN
                  REALTY CAPITAL TRUST, INC.

                 

                 

                By:
                  ______________________________________

                Name:

                Title:

              
	 	 
	 	 
	 	
                REALTY
                  CAPITAL SECURITIES, LLC

                 

                 

                
                  By:
                    ______________________________________

                  Name:

                  Title:

                

              
	 	 
	 	 
	 	
                BOSTON
                  PRIVATE BANK & TRUST COMPANY, as Escrow Agent

                 

                 

                
                  By:
                    ______________________________________

                  Name:

                  Title:

                   

                  
                     

                    By:
                      ______________________________________

                    Name:

                    Title: