AMENDED AND RESTATED ADVISORY AGREEMENT AMONG AMERICAN REALTY CAPITAL TRUST, INC., AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP, L.P. and AMERICAN REALTY CAPITAL ADVISORS, LLC
AMENDED
AND RESTATED
ADVISORY
AGREEMENT AMONG
AMERICAN
REALTY CAPITAL OPERATING PARTNERSHIP, L.P.
and
AMERICAN
REALTY CAPITAL ADVISORS, LLC
This
Amended and Restated Advisory Agreement (this “Agreement”) dated as of June 2,
2010 is among American Realty Capital Trust, Inc., a Maryland corporation (the
“Company”), American Realty Capital Operating Partnership, L.P., a Delaware
limited partnership (the “OP”), and American Realty Capital Advisors, LLC, a
Delaware limited liability company (the “Advisor”). The Company and the OP are
sometimes referred to herein collectively as the “Advisees” and each
individually as an “Advisee.”
WITNESSETH:
WHEREAS,
the Company is a Maryland corporation created in accordance with applicable
provisions of the Maryland General Corporation Law, as amended from time to time
(the “Maryland GCL”); and
WHEREAS,
the purposes of the Company are, as determined from time to time by the board of
directors of the Company (the “Board of Directors”), to engage in any lawful
business or activity for which a corporation may be created under the Maryland
GCL; and
WHEREAS,
the Company is the general partner of the OP; and
WHEREAS,
the Company desires, on its own behalf and as general partner of the OP, to
avail itself of the experience, sources of information, advice and assistance of
the Advisor and to have the Advisor undertake the duties and responsibilities
hereinafter set forth, on behalf of and subject to the supervision of the Board
of Directors, all as provided herein;
WHEREAS,
the Advisor is willing to render such services, subject to the supervision of
the Board of Directors, on the terms and conditions hereinafter set forth;
and
WHEREAS,
the Company, the OP and the Advisor desire to amend and restate that certain
Advisory Agreement, dated January 25, 2008 (the “Initial
Agreement”).
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, IT IS
AGREED that the Initial Agreement
is hereby amended and restated in its entirety to read as
follows:
1. Definitions.
Capitalized terms used but not defined herein shall have the meaning ascribed to
them in the Company’s Charter (as herein defined), and the following terms, as
used herein, shall have the meanings set forth below:
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(a) “Acquisition Expenses”
shall mean expenses related to the Advisee’s selection of, and investment in,
real properties and mortgage investments and other investments, whether or not
acquired or made, including but not limited to advertising costs, brokerage
fees, environmental, engineering and other due diligence expenses, legal fees
and expenses, travel and communications expenses, cost of appraisals, accounting
fees and expenses, title insurance and miscellaneous other
expenses.
(b) “Acquisition Fee”
shall have the meaning set forth in Section 11(a)(i).
(c) “Affiliate” means a
Person who is (i) in the case of an individual, any relative of such Person,
(ii) any officer, director, trustee, partner, manager, employee or holder of ten
percent (10%) or more of any class of the voting securities of or equity
interest in such Person; (iii) any corporation, partnership, limited liability
company, trust or other entity controlling, controlled by or under common
control with such Person; or (iv) any officer, director, trustee, partner,
manager, employee or holder of ten percent (10%) or more of the outstanding
voting securities of any corporation, partnership, limited liability company,
trust or other entity controlling, controlled by or under common control with
such Person. For purposes of this definition, the term “controls,” “is
controlled by,” or “is under common control with” shall mean the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of an entity, whether through the ownership of voting
rights, by contract or otherwise.
(d) “Asset Management Fee”
shall have the meaning set forth in Section 11(a)(ii).
(e) “Average Invested
Assets” shall mean the average, at the end of each calendar month during
the calendar quarter in respect of which an Asset Management Fee is being
calculated, of the aggregate book value of the Advisees’ assets invested in
equity interests in and loans secured by real estate, before reserves for
depreciation or bad debt or other similar non-cash reserves.
(f) “Board of Directors”
shall have the meaning set forth in the recitals hereto.
(g) “Cause” shall mean (x)
fraud, criminal conduct, willful misconduct or illegal or negligent breach of
fiduciary duty by the Advisor or a breach of this Agreement by the Advisor; or
(y) if any of the following events occur: (i) the Advisor shall violate any
material provision of this Agreement, and after written notice of such
violation, shall not cure such default within 30 days or have begun action
within 30 days to cure the default which shall be completed with reasonable
diligence, (ii) the Advisor shall be adjudged bankrupt or insolvent by a court
of competent jurisdiction, or an order shall be made by a court of competent
jurisdiction for the appointment of a receiver, liquidator, or trustee of the
Advisor, for all or substantially all of its property by reason of the
foregoing, or if a court of competent jurisdiction approves any petition filed
against the Advisor for reorganization, and such adjudication or order shall
remain in force or unstayed for a period of 30 days, (iii) the Advisor shall
institute proceedings for voluntary bankruptcy or shall file a petition seeking
reorganization under the federal bankruptcy laws, or for relief under any law
for relief of debtors, or shall consent to the appointment of a receiver for
itself or for all or substantially all of its property, or shall make a general
assignment for the benefit of its creditors, or shall admit in writing its
inability to pay its debts, generally, as they become due.
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(h) “Charter” shall mean
the Articles of Incorporation of the Company, as amended from time to
time.
(i) “Financing Coordination
Fee” shall have the meaning set forth in Section 11(a)(iii).
(j) “Good Reason” shall
mean, with respect to the termination of this Agreement, (x) any failure to
obtain a satisfactory agreement from any successor to an Advisee to assume and
agree to perform such Advisee’s obligations under this Agreement; or (y) any
material breach (subject to the right to cure set forth in the definition
of “cause” herein) of this Agreement of any nature whatsoever by an
Advisee.
(k) “Independent Director”
shall have the meaning set forth in the By-laws of the Company, as amended from
time to time.
(l) “Initial Term” shall
have the meaning set forth in Section 17(a).
(m) “Offering Expenses”
shall have the meaning set forth in Article 1 of the Partnership
Agreement.
(n) “Offering Proceeds”
shall have the meaning set forth in Section 16.
(o) “Partnership
Agreement” shall mean the Agreement of Limited Partnership of the OP, as
amended and restated from time to time.
(p) “Person” shall mean an
individual, corporation, partnership, joint venture, association, company
(whether of limited liability or otherwise), trust, bank or other entity, or
government or any agency or political subdivision of a government.
(q) “Property Disposition
Fee” shall have the meaning set forth in Section 11(a)(iv).
(r) “Preferred Return”
shall mean the receipt by the stockholders of the Company of (i) a Cumulative
Non-Compound Return of 7% per year on such stockholders’ net investment, and
(ii) the amount of such net investment.
(s) “Prospectus” shall
mean the final prospectus of the Company in connection with the initial
registration of the Shares filed with the SEC on Form S-11, as amended and
supplemented from time to time.
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(t) “SEC” shall mean the
United States Securities and Exchange Commission.
(u) “Share” shall mean a
share of the Common Stock, par value $0.01, of the Company.
(v) “Total Operating
Expenses” of a Person means the aggregate of all expenses paid or
incurred by such Person, but excluding organization and offering expenses,
interest payments, taxes, non-cash expenditures, any Acquisition Fee or other
acquisition expenses.
2. Duties of Advisor.
The Company, on its own behalf, and as general partner of the OP, hereby retains
and appoints the Advisor as the advisor of the Company and the OP to perform the
services hereinafter set forth, and the Advisor hereby accepts such appointment,
all subject to the terms and conditions hereinafter set forth. In the
performance of this undertaking, subject to the supervision of the Board of
Directors and consistent with the provisions of the Company’s Charter and the
Agreement of Limited Partnership of the OP (the “Partnership Agreement”), the
Advisor shall devote sufficient resources to the administration of the Company
to discharge is obligations hereunder and shall:
a. obtain
for the Advisees, furnish and/or supervise the services necessary to perform any
ministerial functions in connection with the management of the day-to-day
operations of the Advisees;
b. use
its best efforts to seek out, present and recommend to the Advisees, whether
through its own efforts or those of third parties retained by it, suitable
investment opportunities that are consistent with the Advisees’ respective
investment objectives and policies and acquisition strategy and objectives, as
adopted by the Board of Directors from time to time, and negotiate on behalf of
the Advisees with respect to potential investments or the disposition
thereof;
c. exercise
absolute discretion, subject to the Board of Directors’ review, in decisions to
originate, acquire, retain or sell real properties, provided, that, the Advisor may
acquire on behalf of the Advisees any real property with purchase price that is
less than $15,000,000, or finance such an acquisition on the Advisees’ behalf,
without the prior approval of the Board of Directors if and to the extent
that:
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i.
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the
proposed acquisition or financing would not, if consummated, violate or
conflict with the investment guidelines of the Advisees as set forth in
the Prospectus;
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ii.
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the
proposed acquisition or financing would not, if consummated, violate the
restriction set forth in section 2(f) below;
and
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iii.
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the
consideration proposed to be paid for such real property does not exceed
the fair market value of such property, as determined by a qualified
independent real estate appraiser selected in good faith by the Advisor
and acceptable to the Independent
Directors;
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d. recommend
investment opportunities consistent with the Advisees’ respective investment
objectives and policies and negotiate on behalf of the Advisees with respect to
potential investments or the disposition thereof;
e. structure
the terms and conditions pursuant to which acquisitions of properties will be
made, subject to the Board of Directors’ review;
f. arrange
for financing and refinancing of properties, subject to the Board of Directors’
prior approval if such financing or refinancing, when consummated causes the
total leverage on each such property or on all such properties in the aggregate
to exceed 75% of such property’s or properties’, as the case may be, fair market
value;
g. obtain
for the Advisees such other services as may be required in acquiring or
disposing of investments, disbursing and collecting the funds of the Advisees,
paying the debts and fulfilling the obligations of the Advisees, and handling,
prosecuting and settling any claims of the Advisees;
h. obtain
for the Advisees such services as may be required for property management,
leasing, mortgage brokerage and servicing, and other activities relating to the
investment portfolio of the Advisees;
i. supervise
the servicing of the Advisees’ loan portfolios;
j. administer
the Advisee’s respective bookkeeping and accounting functions, and prepare, or
cause to be prepared, statements and other relevant information for distribution
to stockholders or partners, as the case may be, including annual and quarterly
reports and any filings required by regulatory authorities;
k. monitor
operations and expenses of the Advisees;
l. from
time to time, or as requested by the Board of Directors, make reports to the
Advisees as to its performance of the foregoing services;
m. perform
any other powers of the Board of Directors or the Company (as general partner of
the OP) which (with respect to the Company) are set forth in the Charter and the
Partnership Agreement, as applicable, which may be delegated to it by the Board
of Directors from time to time;
n. render
such other services as the Board of Directors deems appropriate;
and
o. do
all things necessary to assure its ability to render the services contemplated
herein.
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3. Fiduciary
Relationship. The Advisor, as a result of its relationship with the
Advisees pursuant to this Agreement, stands in a fiduciary relationship with the
stockholders of the Company and the partners of the OP.
4. No Partnership or Joint
Venture. The Advisees and the Advisor are not partners or joint venturers
with each other and nothing herein shall be construed to make them partners or
joint venturers or impose any liability as such on either of them.
5. Records. At all
times, the Advisor shall keep books of account and records relating to services
performed hereunder, which books of account and records shall be accessible for
inspection by the Advisees and the Advisee’s appointees at any time during the
ordinary business hours of the Advisor.
6. REIT Qualification; Other
Limitations on Advisor Actions. Anything else in this Agreement to the
contrary notwithstanding, the Advisor shall refrain from any action which, in
its sole judgment made in good faith, or, in the judgment of the Board of
Directors provided that the Board of Directors give the Advisor written notice
to such effect, would (a) adversely affect the status of the Company as a real
estate investment trust pursuant to Section 856 of the Code; (b) cause the
Advisees to be classified as an “investment company” for purposes of the
Investment Company Act of 1940, as amended, (c) cause the OP to be classified
other than as a partnership for purposes of the Code; (d) violate any law, rule,
regulation or statement of policy of any governmental body or agency having
jurisdiction over the Advisees or over their securities, or (e) be prohibited by
the Company’s Charter or the Partnership Agreement of the OP.
7. Bank Accounts. The
Advisor may establish and maintain one or more bank accounts in the name of the
Advisees or in its own name as agent for the Advisees and may collect and
deposit in and disburse from any such account, any money on behalf of the
Advisees, under such terms and conditions as the Board of Directors may approve,
provided that no funds in such account shall be commingled with funds of the
Advisor. From time to time and upon appropriate request, the Advisor shall
render appropriate accounting of such collections and payments to the Board of
Directors and the auditors of the Advisees.
8. Bond. If required by
the Board of Directors, the Advisor will maintain a fidelity bond with a
responsible surety company in such amounts as may be required by the Board of
Directors, covering all members or partners thereof together with employees and
agents of the advisor handling funds of the Advisees and investment documents or
records pertaining to investments of the Advisees. Such bonds shall inure to the
benefit of the Advisees in respect of losses from acts of such partners,
employees and agents through theft, embezzlement, fraud, negligence, error or
omission or otherwise. The premiums on such bonds shall be paid by the
Advisees.
9. Information Furnished to
Advisor. The Board of Directors shall, at all times, keep the Advisor
fully informed with regard to the investment policies of the Advisees, including
any specific types of real properties, mortgage investments and mortgage
securities desired, and any criteria or conditions established by the Board of
Directors as to whether the Advisees will make a particular investment, the
capitalization policy of the Advisees (including the policy with regard to the
incurrence of indebtedness by the Advisees) and their intentions as to the
future operations of the Advisees. In particular, the Board of Directors shall
notify the Advisor promptly of their intention to either sell or otherwise
dispose of any of the Advisees’ investments, to make any new investment, to
incur any indebtedness or to issue any additional shares of Common Stock or
Preferred Stock of the Company or any partnership interests in the
OP.
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10. Consultation and
Advice. In addition to the services described above, the Advisor shall
consult with the Board of Directors and shall, at the request of the Board of
Directors of the Company, furnish advice and recommendations with respect to
other aspects of the business and affairs of the Advisees.
11. Fees and Other Compensation
of the Advisor.
a. The
Advisor or its designees shall be entitled to receive from the respective
Advisees (except those payable by others as noted below) the following fees and
other compensation, which shall be paid to the Advisor by the OP on its own
behalf or on behalf of the Company:
(i) Acquisition Fee.
The Advisor or its
Affiliates shall receive an acquisition fee (the “Acquisition
Fee”) of one percent (1%)
of the gross contract purchase price of each property acquired by an Advisee,
including the amount of any mortgage securing such property, payable by the OP
on behalf of the applicable Advisee upon consummation of the investment;
provided, that, the Acquisition Fee, together with any
and all Acquisition Expenses and other acquisition fees paid to the Advisor or
to any third parties, whether or not affiliated with the Advisor or the
Advisees, shall not exceed, in the aggregate, four percent (4.0%) of the gross
contract purchase price of a particular property, including the amount of any
mortgage securing such property. In the event that such acquisition fees and
expenses, including the Acquisition Fee, exceed such limitation, the Acquisition
Fee shall be reduced by such excess amount.
(ii) Asset Management
Fee. The Advisor or its
Affiliates shall receive an asset management fee (the “Asset
Management Fee”) in the
form of a of a yearly fee equal to 1% of the contract purchase price of all the
properties payable quarterly in advance, on January 1, April 1, July 1 and
October 1 based on assets held by the OP on that date, adjusted for appropriate
closing dates for individual property acquisitions.
(iii) Financing
Coordination Fee. For services in connection with the origination or
refinancing of any debt financing the Advisee obtains and uses to acquire
properties or to make other permitted investments, or that is assumed, directly
or indirectly, in connection with the acquisition of properties, the Advisor or
its Affiliates shall receive a financing coordination fee (the “Financing Coordination
Fee”) equal to 1% of the amount available and/or outstanding under such
financing; provided, however,
that the Advisor will not be entitled to a financing coordination fee in
connection with the refinancing of any loan secured by any particular property
that was previously subject to a refinancing in which the Advisor received such
a fee. Financing coordination fees payable from loan proceeds from permanent
financing will be paid to the Advisor as the Advisees acquire and/or assume such
permanent financing.
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(iv) Property
Disposition Fee. The Advisor or its Affiliates shall receive an amount
equal to up to one-half of the brokerage commission (the “Property Disposition
Fee”) paid on the sale of property, not to exceed 3% of the contract
price of each property sold; provided, however, in
no event may the real estate commissions paid to our Advisor, its Affiliates and
unaffiliated third parties exceed 6% of the contract sales
price.
(v) Fees for
Additional Services. (i) In the event that the Company’s board of
directors elects to internalize any management services provided by the Advisor,
neither the Company nor its OP shall pay any compensation or other remuneration
to the Advisor or its Affiliates in connection with the internalization
transaction. (ii) Subject to Section 15 below, the Advisor shall be entitled to
receive compensation for any additional services requested from time to time by
the Advisees on separate agreed-upon terms, subject to approval by a majority of
the Independent Directors as being fair and reasonable to the
Company.
b. Stockholder/Partner
Interests Distributions. The Advisor shall be
entitled to receive distributions from the Advisees in respect of any shares of
Common Stock of the Company or partner interests of the OP which it holds, along
with the other holders of such shares or interests.
12. Statements. Prior to
the payment of any fees hereunder, the Advisor shall furnish to the Advisees a
statement showing the computation of the fees, if any, payable under Section 11
hereof.
13. Expenses of the
Company.
a. The
OP, on its own behalf and on behalf of the Company, shall pay all of the
Advisees’ expenses. Without limiting the foregoing, it is specifically agreed
that the following expenses of an Advisee shall be paid by the OP on its own
behalf or on behalf of the Company and shall not be borne by the Advisor unless
such expense is a fee or other service for which the Advisor is otherwise
receiving a fee from the Advisees:
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(i) the
cost of money borrowed by the Advisee;
(ii) all
taxes applicable to the Advisee including, without limitation, taxes on income
and on assessments of real property;
(iii) fees
and expenses paid to independent contractors, unaffiliated mortgage servicers,
consultants, managers and other agents employed by or no behalf of the
Advisee;
(iv) Acquisition
Expenses and expenses directly connected with the ownership and disposition of
real property or other investments, and with the purchase or origination of real
property and mortgage investments (including the costs of foreclosure, insurance
premiums, legal services, brokerage and sales commission, maintenance, repair
and improvement of property);
(v) expenses
of maintaining and managing real estate equity interests, processing and
servicing mortgage and other loans and managing the Advisee’s other
investments;
(vi) insurance
coverage in connection with the business of the Advisee (including officers’,
directors’ and partners’ liability insurance);
(vii) the
expenses of dissolving and liquidating the Advisee or revising, amending or
modifying its organizational documents;
(viii) expenses
connected with payments of dividends or interest or distribution in cash or any
other form made or caused to be made by the Board of Directors to the
stockholders or partners, as the case may be, of such Advisee.
(ix) all
expenses connected with communications to stockholders or partners, as the case
may be, and other bookkeeping and clerical work necessary in maintaining
relations with the stockholders or partners, as the case may be, including the
cost of printing and mailing certificates for securities, proxy solicitation
materials and reports to holders of the Advisee’s securities;
(x) the
cost of any accounting, statistical or bookkeeping equipment necessary for the
maintenance of the books and records of the Advisee;
(xi) transfer
agent’s and registrar’s fees and charges; and
(xii) other
legal, accounting and auditing fees and expenses as well as any costs incurred
in connection with any litigation in which the Advisee is involved and the
examination, investigation or other proceedings conducted by any regulatory
agency with respect to the Advisee.
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b. The
Advisor shall bear the expenses it incurs in connection with performing its
duties under the advisory agreement. These include salaries and fringe benefits
of its directors and officers and travel and other administrative expenses of
its directors or officers.
c. The
OP shall reimburse the Advisor and its Affiliates on its own behalf or on behalf
of the Company for (i) advertising expenses, expense reimbursements, and legal
and accounting fees; (ii) the actual cost of goods and materials used by the
Advisees and obtained from entities not affiliated with the Advisor; (iii)
administrative services (including personnel costs; provided, however, that no
reimbursement shall be made for costs of personnel to the extent that such
personnel perform services in transactions for which the Advisor receives a
separate fee); (iv) acquisition expenses, which include travel and expenses
related to the selection and acquisition of properties, for goods and services
provided by the Advisor; (v) rent, leasehold improvement costs, utilities or
other administrative items generally constituting Advisor’s overhead; and (vi)
expenses related to negotiating and servicing mortgage loans. In no event shall
the OP reimburse the Advisor for any services for which the Advisor shall
receive a separate fee. The amounts charged to an Advisee for services performed
shall not exceed the lesser of (a) the actual cost of such services, or (b) the
amount which such Advisee would be required to pay to independent parties for
comparable services.
d. Notwithstanding
the foregoing, reimbursements of expenses and payment of fees under this
Agreement will be subject to approval by the Board of Directors (including the
approval of the majority of Independent Directors).
14. Reimbursement by
Advisor.
a. For
any year which the Company qualifies as a real estate investment trust under the
Internal Revenue Code of 1986, as amended, the Advisor shall be obligated to
reimburse the Advisees for the amounts, if any, by which the sum of Advisees’
Total Operating Expenses and Asset Management Fees paid during the immediately
prior fiscal year exceed the greater of (i) 2.0% of the Company’s and the OP’s
Average Invested Assets during the four quarters of such fiscal year, or (ii)
25.0% of the Company’s and the OP’s net income for such fiscal year; provided,
however, that the Board of Directors (including a majority of the Independent
Directors) may require a lower amount which the Advisor shall be obligated to
reimburse the Company, upon a determination that such lower reimbursement amount
is justified in light of such unanticipated, unusual or non-recurring factors
which may have occurred within sixty (60) days after the end of the quarter for
which the excess occurred, and there shall be sent to the stockholders of the
Company a written disclosure of such determination, together with an explanation
of the factors the Board of Directors considered in arriving at the conclusion
that the higher Total Operating Expenses were justified.
15. Other Activities of
Advisor.
(a) Except
as set forth in this Section 15, nothing in this Agreement shall prevent the
Advisor or any of its Affiliates from engaging in other business activities
related to real estate, mortgage investments or other investments whether
similar or dissimilar to those made by any of the Advisees or from acting as
advisor to any other person or entity having investment policies whether similar
or dissimilar to those of the Company or the OP (including other REITs or
partnerships); provided, that, before the
Advisor and all Persons controlled by the Advisor may take advantage of an
opportunity for their own account or present or recommend it to others, they are
obligated to present an investment opportunity to an Advisee if (i) such
opportunity is compatible with such Advisee’s investment objectives and policies
(including such Advisee’s requirements relating to all pertinent factors,
including diversification, property type and location), (ii) such opportunity is
of a character which could be taken by such Advisee, and (iii) the Advisee has
the financial resources to take advantage of such opportunity. In furtherance,
and not in limitation, of the immediately preceding sentence, neither the
Advisor nor any Affiliate of the Advisor may make any investment in residential,
retail, industrial and office properties where the investment objective is
substantially similar to the investment objectives of the Advisees until such
time as seventy five percent (75.0%) of the total gross proceeds (the “Offering
Proceeds”) from the offering of the Company’s shares offered for sale pursuant
to a registration statement on form S-11 filed with the SEC, following final
closing of such offering, have been invested or committed for investment in such
properties.
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(b) The
Advisor will use its best efforts to present suitable investments to the
Advisees consistent with their investment procedures, objectives and policies.
If the Advisor or any of its Affiliates is presented with a potential investment
in a property which might be made by more than one investment entity which it
advises or manages, the decision as to the suitability of the property for
investment by a particular entity will be based upon a review of the investment
portfolio of each entity and upon factors such as: (i) cash flow from the
property; (ii) the effect of the acquisition of the property on the
diversification of each entity's portfolio; (iii) rental payments during any
renewal period; (iv) the amount of equity required to make the investment; (v)
the policies of each entity relating to leverage; (vi) the funds of each entity
available for investment; and (vii) the length of time the funds have been
available for investment and the manner in which the potential investment can be
structured by each entity. To the extent that a particular property might be
determined to be suitable for more than one investment entity, priority
generally will be given to the investment entity having uninvested funds for the
longest period of time.
16. Term; Termination of
Agreement. This Agreement shall continue in force for a period of one
year from the date hereof (the “Initial Term”) and thereafter it may be renewed
from year to year by written consent of the parties hereto. Notwithstanding any
other provision to the contrary, this Agreement may be terminable by the Advisor
or by the Advisees (upon determination of the majority of the Independent
Directors) at any time upon 60 days’ prior written notice to the non-terminating
party. In the event of the termination of this Agreement, the Advisor will
cooperate with the Advisees and take all reasonable steps requested to assist
the Advisees in making an orderly transition of the advisory
function.
17. Amendments. This
Agreement shall not be changed, modified, terminated or discharged in whole or
in part except by an instrument in writing signed by all parties hereto, or
their respective successors or permitted assigns, or otherwise as provided
herein.
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18. Assignment. This
Agreement may not be assigned by the Advisor, except to an Affiliate of the
Advisor, and then only upon the consent of the Advisees and the approval of a
majority of the Independent Directors. Any assignee of the Advisor shall be
bound hereunder to the same extent as the Advisor. This Agreement shall not be
assigned by any Advisee without the written consent of the Advisor, except to a
corporation, association, trust or other organization which is a successor to
such Advisee. Such successor shall be bound hereunder to the same extent as such
Advisee. Notwithstanding anything to the contrary contained herein, the economic
rights of the Advisor hereunder, including the right to receive all compensation
hereunder, may be sold, transferred or assigned by the Advisor without the
consent of the Advisees.
19. Action Upon
Termination. From and after the effective date of termination of this
Agreement, pursuant to Section 17 hereof, the Advisor shall not be entitled to
compensation for further service rendered hereunder but shall be paid all
compensation and reimbursed for all expenses accrued through the date of
termination within thirty (30) days of such termination. The Advisor shall
forthwith upon such termination:
(a) Pay
over to the Advisees all moneys collected and held for the account of such
Advisees pursuant to this Agreement, after deducting any accrued compensation
and reimbursement for its expenses to which it is then entitled;
(b) Deliver
to the Advisees a full accounting, including a statement showing all payments
collected by it and a statement of all moneys held by it, covering the period
following the date of the last accounting furnished to the Advisees;
and
(c) Deliver
to the Advisees all property and documents of the Advisees then in the custody
of the Advisor.
20. Incorporation of the Charter
and the Partnership Agreement. To the extent the Charter or the
Partnership Agreement impose obligations or restrictions on the Advisor or grant
the Advisor certain rights which are not set forth in this Agreement, the
Advisor shall abide by such obligations or restrictions and such rights shall
inure to the benefit of the Advisor with the same force and effect as if they
were set forth herein.
21. Standard of
Care.
a. The
duties to be performed by the Advisor pursuant to this Agreement may be
performed by it or by officers, members or directors or by Affiliates of the
foregoing under the direction of the Advisor or delegated to unaffiliated third
parties under its direction.
b. The
Advisor shall look solely to the assets of the Advisees for satisfaction of all
claims against the Advisees, and in no event shall any stockholder, partner or
director of the Advisees, as the case may be, have any personal liability for
the obligations of the Advisees under this Agreement.
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22. Indemnification of
Advisor.
a. Subject
to sections (b)-(d) below, the Advisees shall indemnify the Advisor and its
Affiliates for any loss arising out of any of their acts or omissions in
connection with this Agreement and the Advisor and its Affiliates will be held
harmless for any loss of liability suffered by the Advisees.
b. The
Advisees shall not indemnify the Advisor or its Affiliates for any liability
loss suffered by the Advisor or its Affiliates, nor shall it hold the Advisor or
its Affiliates harmless for any loss or liability suffered by the Advisees
unless all of the following conditions are met: (i) the Advisor or its
Affiliates determined in good faith that the course of conduct which caused the
loss or liability was in the best interests of the Advisees, (ii) the Advisor or
its Affiliates were acting on behalf of the Advisees or performing services for
the Advisees, (iii) such liability or loss or expense was not the result of
negligence or misconduct on the part of the Advisor or its Affiliates and (iv)
such indemnification or agreement to hold harmless shall be recoverable only out
of the net assets of the Advisees and not from the stockholders, partners or
members of the Advisees.
c. Notwithstanding
anything to the contrary in subsection b, the Advisees shall not indemnify the
Advisor or its Affiliates or any persons acting as a broker-dealer for any
losses, liabilities or expenses arising from or out of an alleged violation of
federal or state securities laws by such party unless one or more of the
following conditions are met: (i) there has been a successful adjudication on
the merits of each count involving alleged securities law violations as to the
particular Indemnitee, (ii) such claims have been dismissed with prejudice on
the merits by a court of competent jurisdiction as to the particular Indemnitee
or (iii) a court of competent jurisdiction approves a settlement of the claims
against a particular Indemnitee and finds that indemnification of the settlement
and related costs should be made, and the court considering the matter has been
advised of the position of the Securities and Exchange Commission and the
published position of any state securities regulatory authority as to
indemnification for violations of securities law.
d. The
Advisees will advance amounts to the Advisor or its Affiliates for legal
expenses and other costs incurred as a result of any legal action for which
indemnification is being sought is permissible only if all of the following
conditions are satisfied: (i) the legal action relates to acts or omissions with
respect to the performance of duties or services on behalf of the Advisees, (ii)
the legal action is initiated by a third party who is not a Stockholder or is
initiated by a Stockholder acting in his or her capacity as such and a court of
competent jurisdiction specifically approves the advancement and (iii) the
Advisor or its Affiliates undertake in writing to repay the advanced funds to
the Advisees, together with the applicable legal rate of interest thereon, in
cases in which such the Advisor or its Affiliates are found not to be entitled
to indemnification.
23. Notices. Any notice,
report or other communication required or permitted to be given hereunder shall
be in writing, and shall be given by delivering such notice by hand or by
certified mail, return receipt requested, postage pre-paid, at the following
addresses of the parties hereto:
13
Advisees:
The
Company:
0000 Xxx
Xxxxxxx
Xxxxxxxxxx,
XX 00000
Attn: Xxxxxxxx X.
Xxxxxxxx
Chief
Executive Officer
With a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxx, Esq.
The OP
American
Realty Capital Operating Partnership, L.P.
0000 Xxx
Xxxxxxx
Xxxxxxxxxx,
XX 00000
With a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxx, Esq.
The
Advisor:
American
Realty Capital Advisors, LLC
0000 Xxx
Xxxxxxx
Xxxxxxxxxx,
XX 00000
Attn: Xxxxxxxx X.
Xxxxxxxx
With a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxx, Esq.
Any party
may at any time change its address for the purpose of this Section 25 by like
notice.
14
24. Headings. The section
headings herein have been inserted for convenience of reference only and shall
not be construed to affect the meaning, construction or effect of this
Agreement.
25. No Waivers. Neither
the failure nor any delay on the party of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power or privilege with respect to any other occurrences. No waiver
shall be effective unless it is in writing and is signed by the party asserted
to have granted such waiver.
26. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, and all of which shall together constitute one and the
same instrument.
27. Entire Agreement.
This Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof.
28. Governing Law. The
provisions of this Agreement shall be construed and interpreted in accordance
with the laws of the State of Pennsylvania as at the time in
effect.
[END OF
TEXT]
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IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be signed as of
the day and year first above written.
|
By:
|
_________________________________
|
|
Name:
Xxxxxxxx X. Xxxxxxxx
|
||
|
Title: Chief
Executive Officer
|
AMERICAN
REALTY CAPITAL OPERATING PARTNERSHIP, L.P.
|
By:
|
||
|
its
General Partner
|
|
|
|
|
By:
|
_________________________________
|
|
Name:
Xxxxxxxx X. Xxxxxxxx
|
||
|
Title: Chief
Executive Officer
|
AMERICAN
REALTY CAPITAL ADVISORS, LLC
|
By:
|
_________________________________
|
|
|
Name:
Xxxxxxxx X. Xxxxxxxx
|
||
|
Title: Chief
Executive Officer
|
16
