THIRD AMENDMENT TO CREDIT AGREEMENT
EXECUTION VERSION
THIRD AMENDMENT TO
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is made and entered into as of this 2nd day of July, 2012 by and among American Realty Capital Operating Partnership, L.P., a Delaware limited partnership (“Borrower”), AMERICAN REALTY CAPITAL TRUST, INC., a Maryland corporation and the sole member of the sole general partner of Borrower (“Parent”), and RBS CITIZENS, N.A., a national banking association, as Administrative Agent for the benefit of the Lenders (in such capacity, the “Administrative Agent”), as L/C Issuer and as Swing Line Lender.
WITNESSETH:
WHEREAS, Borrower, Parent, the Administrative Agent and the Lenders are parties to a certain Credit Agreement dated as of August 17, 2011 (together with any modifications and amendments, collectively, the “Credit Agreement”);
WHEREAS, Borrower has requested that the Administrative Agent and the Lenders amend certain terms and conditions of the Credit Agreement and the other Loan Documents; and
WHEREAS, the Administrative Agent and the Required Lenders have agreed to so amend certain terms and conditions of the Credit Agreement, all on the terms and conditions set forth below in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows:
| 1. | Definitions. All capitalized undefined terms used in this Amendment shall have the meanings ascribed thereto in the Credit Agreement, as amended hereby. |
| 2. | Amendments to Credit Agreement. The Credit Agreement is amended as of the Third Amendment Effective Date (as defined below), as follows: |
| a. | Section 1.01 of the Credit Agreement is hereby amended by deleting the definition of “Capitalization Rate” in its entirety and substituting the following in lieu thereof: |
“Capitalization Rate” means seven and 75/100 percent (7.75%).
| b. | Section 1.01 of the Credit Agreement is hereby amended by deleting the parenthetical at the end of the definition of “Incentive Listing Fee Note” and substituting the following in lieu thereof: |
“(it being understood and agreed that the draft Incentive Listing Fee Note attached as Exhibit A to the Third Amendment is satisfactory).”
| c. | Section 1.01 of the Credit Agreement is hereby amended by deleting the parenthetical at the end of the definition of “Subordination Agreement” and substituting the following in lieu thereof: |
“(it being understood and agreed that the draft Subordination Agreement attached as Exhibit B to the Third Amendment is satisfactory).”
| d. | Section 1.01 of the Credit Agreement is hereby amended by inserting the following definition in appropriate alphabetical order: |
“Third Amendment” means the Third Amendment to Credit Agreement, dated as of July 2, 2012, among Borrower, Parent, the Administrative Agent and the Lenders.
| e. | Section 8.07 of the Credit Agreement is hereby amended by deleting clause (h) in its entirety and substituting the following in lieu thereof: |
“(h) Parent and Borrower may, and Borrower may make dividends or distributions to Parent to allow Parent to, make payments with respect to the Incentive Listing Fee Note (including the conversion thereof) to the extent Permitted by the Subordination Agreement;”
| f. | Section 8.11 of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following Section 8.11 in lieu thereof: |
“8.11 Incentive Listing Fee Note. The Parent and Borrower shall not, collectively, make cash payments under the Incentive Listing Fee Note in excess of $100,000,000 in the aggregate during the term of the Incentive Listing Fee Note.”
| g. | Section 8.13 of the Credit Agreement is hereby amended by inserting the following new clause (e) at the end thereof: |
“(e) Any Subsidiary to provide Guarantees to support obligations under the Term Loan Agreement (or any Refinancings (as defined in the Intercreditor Agreement) thereof) unless such Subsidiary shall promptly, and in any event no later than the tenth (10th) day following providing such Guarantee in respect of the Term Loan Agreement, become party to a Subsidiary Guaranty unconditionally guarantying in favor of Administrative Agent and Lenders the full payment and performance of the Obligations.”
| h. | Section 8.14(g) of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following Section 8.14(g) in lieu thereof: |
| -2- |
“(g) Minimum Tangible Net Worth. Tangible Net Worth of Parent, on a consolidated basis, to be less than the sum of (i) $900,000,000 plus (ii) eighty-five percent (85%) of net cash proceeds of any Equity Issuances received by Parent or Borrower after such fiscal quarter end (other than (x) proceeds received within ninety (90) days after the redemption, retirement or repurchase of ownership or equity interests in Borrower or Parent, up to the amount paid by Borrower or Parent in connection with such redemption, retirement or repurchase, where, for the avoidance of doubt, the net effect is that neither Borrower nor Parent shall have increased its Tangible Net Worth as a result of any such proceeds and (y) proceeds received from any Equity Issuance to the extent such proceeds shall be used solely to make cash payments pursuant to the terms of the Incentive Listing Fee Note subject to the limitation set forth in Section 8.11).”
| i. | Schedule 6.13 to the Credit Agreement is deleted in their entirety and replaced with the Schedule 6.13 attached as Exhibit C hereto. |
| 3. | Conditions to Effectiveness. This Amendment shall not be effective until each of the following conditions precedent has been fulfilled to the satisfaction of the Administrative Agent (such date, the “Third Amendment Effective Date”): |
| a. | The Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by each of the parties hereto; |
| b. | the Administrative Agent shall have received counterparts of the Counterpart to Subsidiary Guaranty, in the form attached as Exhibit D hereto (the “Counterpart to Guaranty”), duly executed and delivered by each of the parties thereto (each Subsidiary executing the Counterpart to Guaranty as an “Additional Guarantor”, an “Additional Guarantor”); |
| c. | the Administrative Agent shall have received counterparts of the Pledge Amendment, in the form attached as Exhibit E hereto (the “Pledge Amendment”, and together with the Amendment and the Counterpart to Guaranty, the “Amendment Documents”), duly executed and delivered by each of the parties thereto; |
| d. | the Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party party hereto, as Administrative Agent may require; evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Third Amendment and the Amendment Documents; |
| e. | the Administrative Agent shall have received such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Additional Guarantor is duly organized or formed and in good standing in its jurisdiction of formation, except to the extent that failure to do so would not have a Material Adverse Effect; |
| -3- |
| f. | the Administrative Agent shall have received a favorable opinion of legal counsel to the Additional Guarantors and local counsel to the Additional Guarantors in the jurisdiction of formation of each Additional Guarantor, addressed to the Administrative Agent and each Lender, as to matters concerning due formation and applicable good standing of the Additional Guarantors and the due execution and enforceability of the Amendment Documents; |
| g. | the Administrative Agent shall have received a duly completed Borrowing Base Report as of the Third Amendment Effective Date, signed by a Responsible Officer of Borrower (the “Third Amendment Effective Date Borrowing Base Certificate”), together with Property Information with respect to each new Borrowing Base Property reflected on the Third Amendment Effective Date Borrowing Base Certificate; |
| h. | the Administrative Agent shall have received fully executed copies of the amendment to the Term Loan Agreement dated as of the Third Amendment Effective Date, together with the other documents executed in connection therewith; and |
| i. | the Administrative Agent shall have received evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, including, without limitation, with respect to the Additional Guarantors. |
| 4. | Representations and Warranties. The representations and warranties of Borrower and each other Loan Party, including without limitation, the Additional Guarantors, contained in Article VI of the Credit Agreement or any other Loan Document are true and correct in all material respects (except to the extent that any such representation and warranty is qualified as to “materiality,” “Material Adverse Effect” or similar language, in which case it shall be true and correct in all respects (after giving effect to any such qualification)) on and as of the Third Amendment Effective Date; provided, if any such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects (except to the extent that any such representation and warranty is qualified as to “materiality,” “Material Adverse Effect” or similar language, in which case it shall be true and correct in all respects (after giving effect to any such qualification)) as of such earlier date. |
| 5. | Further Assurances and Post-Closing Condition. |
| a. | The Loan Parties and the Additional Guarantors shall take any and all such actions and execute any and all such instruments and agreements as the Bank shall reasonably request for the purpose of effectuating the Amendment Documents. Prior to or contemporaneously with the execution of the Incentive Listing Fee Note, Borrower will cause AR Capital to deliver an executed counterpart to the Subordination Agreement to the Administrative Agent. |
| -4- |
| b. | On or before July 31, 2012, (or such later date as the Administrative Agent may determine in its sole discretion), the Borrower shall deliver to the Administrative Agent copies of filed UCC termination statements with respect to each of the unterminated UCC financing statements appearing in the UCC lien search reports for the Additional Guarantors delivered to the Administrative Agent prior to the Third Amendment Effective Date. Failure to comply with the provisions of this Section 5(b) shall be deemed an immediate Event of Default under Section 9(b) of the Credit Agreement. |
| 6. | Release of Guarantors; Release from Borrowing Base. It is understood and agreed that the Subsidiaries of the Borrower listed on Schedule 1 hereto (the “Non-Guarantor Subsidiaries”) are released from any obligations under the Subsidiary Guaranty, and shall not constitute Subsidiary Guarantors or Property Owners for all purposes of the Loan Documents, and that any Property owned by such Non-Guarantor Subsidiaries shall be disregarded for purposes of any calculation of the Borrowing Base required hereby (the “Non-Guarantor Release”). The Lenders hereby agree that the Non-Guarantor Release shall have retroactive effect with respect to each Non-Guarantor Subsidiary and that the release effected hereby is effective as to each Non-Guarantor Subsidiary as of the date such Non-Guarantor Subsidiary was initially joined to the Subsidiary Guaranty and expressly waives any default or event of default that may have arisen in connection with such Non-Guarantor Subsidiary being deemed a Subsidiary Guarantor hereunder or under the Subsidiary Guaranty and the inclusion of any Property owned by such Non-Guarantor Subsidiary in any calculation of the Borrowing Base provided to the Agent or the Lenders hereunder prior to the date hereof. |
| 7. | Retroactive Effect. It is understood and agreed that the amendment effected by clause h of Section 2 hereof is effective as of June 29, 2012 and that Parent’s Consolidated Tangible Net Worth as of June 30, 2012 shall the amount required pursuant to Section 8.14(g) of the Credit Agreement as amended hereby. |
| 8. | Limited Amendment; Ratification of Loan Documents. Except as specifically amended hereby, the terms and conditions of the Credit Agreement and the other Loan Documents shall remain in full force and effect, and are hereby ratified and affirmed in all respects. This Amendment shall not be deemed a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Credit Agreement or any other Loan Document, except as expressly set forth herein. |
| 9. | Waiver of Claims. Each Loan Party and each Additional Guarantor acknowledges and agrees that as of the date hereof, it does not have any claims, counterclaims, offsets, or defenses against the Bank directly or indirectly relating to such Person’s relationship with, and/or the Obligations under, the Loan Documents, and to the extent that such Loan Party currently has or ever had prior to the date hereof any such claims, counterclaims, offsets, or defenses against the Bank, such Loan Party affirmatively WAIVES the same and, on behalf of itself and its representatives, successors and assigns, hereby RELEASES, and forever discharges the Bank and its officers, directors, agents, servants, attorneys, and employees, and their respective representatives, successors and assigns, of, to, and from all known debts, demands, actions, suits, accounts, covenants, contracts, agreements, damages, and any and all claims, demands, or liabilities whatsoever, of every name and nature, both at law and in equity through the date hereof related to the same. |
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| 10. | Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York. |
| 11. | Miscellaneous. This Amendment may be executed in any number of counterparts, which shall together constitute an entire original agreement, and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Amendment expresses the entire understanding of the parties with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof. Any determination that any provision of this Amendment or any application hereof is invalid, illegal or unenforceable in any respect and in any instance shall not affect the validity, legality, or enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provisions of this Amendment. The Loan Parties and the Additional Guarantors represent and warrant that they have consulted with independent legal counsel of their selection in connection with the Amendment Documents and are not relying on any representations or warranties of the Administrative Agent or the Lenders or their counsel in entering into this Amendment |
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the day and year first above written.
| BORROWER: | ||
| AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP, L.P., | ||
| a Delaware limited partnership | ||
| By: | /s/ Xxxxx. X. Xxxxxxxx | |
| Name: Xxxxx. X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
| PARENT: | ||
| AMERICAN REALTY CAPITAL TRUST, INC., a Maryland corporation | ||
| By: | /s/ Xxxxx. X. Xxxxxxxx | |
| Name: Xxxxx. X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Third Amendment]
| RBS CITIZENS, N.A., as Administrative Agent, Swing Line Lender, L/C Issuer and as a Lender | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: Senior Vice President | ||
[Signature Page to Third Amendment]
| Xxxxxxx Sachs Bank USA, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxxx Xxxxxxx | |
| Name: Xxxxxxxx Xxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Third Amendment]
| CAPITAL ONE, NATIONAL BANK, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxxx Xxxxxx | |
| Name: Xxxxxxxx Xxxxxx | ||
| Title: Vice President | ||
[Signature Page to Third Amendment]
| XXXXXXX XXXXX BANK, N.A., | ||
| as a Lender | ||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxxx | ||
| Title: Senior Vice President | ||
[Signature Page to Third Amendment]
| U.S. BANK NATIONAL ASSOCIATION, | ||
| as a Lender | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: Xxxxxx X. Xxxxxx | ||
| Title: Vice President | ||
[Signature Page to Third Amendment]
| REGIONS BANK, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: Director | ||
[Signature Page to Third Amendment]
| COMERCIA BANK, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: Xxxxxxx Xxxxxxx | ||
| Title: Vice President | ||
[Signature Page to Third Amendment]
The undersigned, American Realty Capital Trust, Inc., as Guarantor under that certain Parent Guaranty Agreement dated as of August 17, 2011, hereby consents to the foregoing Third Amendment to Credit Agreement and acknowledges and agrees that the Parent Guaranty Agreement executed by the undersigned dated as of August 17, 2011 (as amended, restated or supplemented as of the date hereof) remains in full force and effect.
| AMERICAN REALTY CAPITAL TRUST, INC., a Maryland corporation | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Third Amendment]
Each of the undersigned, as Guarantor under that certain Subsidiary Guaranty Agreement dated as of August 17, 2011, hereby consents to the foregoing Third Amendment to Credit Agreement and acknowledges and agrees that the Subsidiary Guaranty Agreement executed by the undersigned dated as of August 17, 2011 (as amended, restated or supplemented as of the date hereof) remains in full force and effect.
| ARC ARABLOH001, LLC | ||
| ARC ARABRNC001, LLC | ||
| ARC ARBYCMI001, LLC | ||
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| ARC BFMDBFLO01, LLC | ||
| ARC BFMWKWI001, LLC | ||
| ARC BFNRFNJ001, LLC | ||
| ARC BFOKCOK001, LLC, each a Delaware | ||
| limited liability company | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Third Amendment]
| ARC BFTULOK001, LLC | ||
| ARC BFYKNOK001, LLC | ||
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| ARC DGBNTM0001, LLC | ||
| ARC DGBSMAL001, LLC | ||
| ARC DGBSNKY001, LLC | ||
| ARC DGCATIL001, LLC | ||
| ARC DGCCPM0001, LLC, each a Delaware | ||
| limited liability company | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Third Amendment]
| ARC DGCLBIL001, LLC | ||
| ARC DGCNTMI001, LLC | ||
| ARC DGCPCTX001, LLC | ||
| ARC DGCPMMI001, LLC | ||
| ARC DGCRGIL001, LLC | ||
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| ARC DGCPCTX001, LLC | ||
| ARC DGCPMMI001, LLC | ||
| ARC DGCRGIL001, LLC | ||
| ARC DGCVLAL001, LLC | ||
| ARC DGDRNKY001, LLC | ||
| ARC DGDSNLA001, LLC, each a Delaware | ||
| limited liability company | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Third Amendment]
| ARC DGMTSIA001, LLC | ||
| ARC DGNMKMI001, LLC | ||
| ARC DGNPTOH001, LLC | ||
| ARC DGOKHOH001, LLC | ||
| ARC DGOLKAL001, LLC | ||
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| ARC DGOROM0001, LLC | ||
| ARC DGPNKMI001, LLC | ||
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| ARC DGQNCM0001, LLC | ||
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| ARC DGSLBAL001, LLC | ||
| ARC DGSMTFLO01, LLC | ||
| ARC DGSPHMI001, LLC | ||
| ARC DGSSTAL001, LLC | ||
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| ARC DGTBYAL001, LLC | ||
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| ARC DGUVLM0001, LLC | ||
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| ARC DGOKHOH001, LLC | ||
| ARC DGOLKAL001, LLC | ||
| ARC DGOLSLA001, LLC | ||
| ARC DGOROM0001, LLC | ||
| ARC DGPNKMI001, LLC | ||
| ARC DGPVTLA001, LLC, each a Delaware | ||
| limited liability company | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Third Amendment]
| ARC FESAGMI001, LLC | ||
| ARC FESHRTX001, LLC | ||
| ARC FEWLBNH001, LLC | ||
| ARC GSBRICNY001, LLC | ||
| ARC GSBRNTX001, LLC | ||
| ARC GSCOSC0001, LLC | ||
| ARC GSDALTX001, LLC | ||
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| ARC GSKNXTN001, LLC | ||
| ARC GSNPRFLO01, LLC | ||
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| ARC GSREDCA001, LLC | ||
| ARC GSSCYIA001, LLC | ||
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| ARC HVHVPA0001 GP LLC | ||
| ARC HVLHNPA001 GP LLC | ||
| ARC HVLNDPA001 GP LLC | ||
| ARC HVLNDPA002 GP LLC | ||
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| ARC HVSTNPA002 GP LLC | ||
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| ARC FESAGMI001, LLC | ||
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| ARC GSBRKNY001, LLC | ||
| ARC GSBRNTX001, LLC | ||
| ARC GSCOSC0001, LLC | ||
| ARC GSDALTX001, LLC | ||
| ARC GSEAGTX001, LLC, each a Delaware | ||
| limited liability company | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Third Amendment]
| ARC IHBRGLA001, LLC | ||
| ARC IHSALOR001, LLC | ||
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| ARC NTKNSGA001, LLC | ||
| ARC NTLBNGA001, LLC | ||
| ARC ORBVAMI001, LLC | ||
| ARC ORRSVMI001, LLC, each a Delaware | ||
| limited liability company | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Third Amendment]
| ARC ORSGNMI001, LLC | ||
| ARC ORWFDMI001, LLC | ||
| ARC PBLVGNV001, LLC | ||
| ARC PBNWLPA001, LLC | ||
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| ARC SEBRDFLO01, LLC | ||
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| ARC WGANGNY001, LLC | ||
| ARC WGBKLNY001 LLC | ||
| ARC WGBKLNY002 LLC | ||
| ARC WGELKIN001, LLC, each a Delaware | ||
| limited liability company | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Third Amendment]
| ARC WGESTMS001, LLC | ||
| ARC WGLSPGA001, LLC | ||
| ARC WGMRCLA001, LLC | ||
| ARC WGPTHNY001 LLC | ||
| ARC WGQNSNY001 LLC | ||
| ARC WGQNSNY002 LLC | ||
| ARC WGQNSNY003 LLC | ||
| ARC WMEBBPA001, LLC | ||
| ARC WPMRNOH001, LLC | ||
| CRE JV Mixed Five IL 1 Branch Holdings LLC, | ||
| each a Delaware limited liability company | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Third Amendment]
| ARC PA-QRS Trust, a Virginia business trust | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Third Amendment]
| Acknowledged and Agreed to as of | ||
| the date first above written: | ||
| ARC FEHOUTX 001, LLC | ||
| ARC JBDESM0001, LLC | ||
| ARC JBTDAOR001, LLC | ||
| ARC JBCCRTX001, LLC | ||
| ARC JBVANWA001, LLC | ||
| ARC JBHOUTX001, LLC | ||
| ARC WGBYRMS001, LLC | ||
| ARC WGIRDNY001, LLC | ||
| ARC WGPYNNY001, LLC | ||
| ARC WRELPTX001, LLC | ||
| ARC WPIACIA001, LLC | ||
| ARC GEMSKWI001, LLC | ||
| ARC LMLUFTX001, LLC | ||
| ARC FESPKWA001, LLC | ||
| ARC VZHRMMD001, LLC | ||
| ARC RRBDFTX001, LLC | ||
| ARC ROC17MA LLC | ||
| ARC PANJOH54 LLC | ||
| ARC ROCK17MA Member LLC | ||
| ARC PANJOH54 Member LLC | ||
| ARC PA-QRS Trust Member LLC, each a Delaware limited liability company | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Third Amendment]
Schedule 1
Non-Guarantor Subsidiaries
| 1. | ARC BFABQNM001, DST |
| 2. | ARC BFRKWTX001, DST |
| 3. | ARC BFALLTX001, DST |
| 4. | ARC BFCRWTX001, DST |
| 5. | ARC BFLGCTX001, DST |
| 6. | ARC BFWTFTX001, DST |
| 7. | ARC JJLKGNY001, LLC |
Exhibit A
Incentive Listing Fee Note
Exhibit B
Subordination Agreement
EXHIBIT C
SCHEDULE 6.13
SUBSIDIARIES AND
OTHER EQUITY INVESTMENTS
AND EQUITY INTERESTS IN EACH PROPERTY OWNER
Schedule 6.13
EXHIBIT D
Form of Counterpart to Subsidiary Guaranty
COUNTERPART TO SUBSIDIARY GUARANTY AGREEMENT
In witness whereof, the undersigned Additional Guarantor has caused this Counterpart to Subsidiary Guaranty Agreement (“Counterpart”) to be executed and delivered by its officer thereunto duly authorized as of July 2, 2012. Schedule 1 sets forth a list of the each Additional Guarantor executing this Counterpart. Each Additional Guarantor acknowledges and agrees that by its execution of this Counterpart it shall become a Guarantor under and be bound by the terms of that certain Subsidiary Guaranty Agreement, dated as of August 17, 2011 (as amended, modified, supplemented, or restated from time to time), related to that certain Credit Agreement dated as of August 17, 2011 (as amended, modified, supplemented, or restated from time to time, the “Credit Agreement”), among American Realty Capital Operating Partnership, L.P., American Realty Capital Trust, Inc., the Lenders thereto, and RBS Citizens, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. Unless otherwise defined herein, capitalized terms shall have the meanings set forth in the Credit Agreement.
| ADDITIONAL GUARANTORS: | |||
| [INSERT SIGNATURE BLOCK FOR ADDITIONAL GUARANOTORS] | |||
| By: | |||
| Name: | |||
| Title: | |||
[Counterpart to Subsidiary Guaranty Agreement]
SCHEDULE 1
ADDITIONAL GUARANTORS
| 1. | [Insert List] |
Schedule I to
Counterpart to Guaranty
EXHIBIT E
Form of Pledge Amendment
PLEDGE AMENDMENT
This Pledge Amendment, dated July 2, 2012, is delivered pursuant to Section 5(d) of the Pledge Agreement referred to below. The undersigned hereby agrees that this Pledge Amendment may be attached to the Pledge Agreement dated as of August 17, 2011, between the undersigned and RBS Citizens, N.A., as Administrative Agent for the benefit of the Secured Parties, (the “Pledge Agreement;” capitalized terms defined therein being used herein as therein defined), and that the Equity Interests listed on Schedule I to this Pledge Amendment shall be deemed to be part of the Equity Interests pledged under the Pledge Agreement and shall become part of the Collateral and shall secure all Secured Obligations.
| PLEDGOR: | |||
| AMERICAN REALTY CAPITAL OPERATING | |||
| PARTNERSHIP, L.P., a Delaware limited partnership | |||
| By: | |||
| Name: | |||
| Title: | |||
[Pledge Amendment]
Acknowledged and Agreed as of the date first written above:
| ADDITIONAL GUARANTORS: | |||
| [INSERT SIGNATURE BLOCK FOR ADDITNIOAL GUARANTORS] | |||
| By: | |||
| Name: | |||
| Title: | |||
[Acknowledgement to Pledge Amendment]
SCHEDULE I to
PLEDGE AMENDMENT
| Pledgor | Limited Liability Company |
Jurisdiction of Organization |
Percent Interest | |
| 1. | Delaware | 100% | ||
| 2. | Delaware | 100% | ||
| 3. | Delaware | 100% | ||
| 4. | Delaware | 100% | ||
| 5. | Delaware | 100% | ||
| 6. | Delaware | 100% | ||
| 7. | Delaware | 100% | ||
| 8. | Delaware | 100% | ||
| 9. | Delaware | 100% | ||
| 10. | Delaware | 100% | ||
| 11. | Delaware | 100% | ||
| 12. | Delaware | 100% | ||
| 13. | Delaware | 100% | ||
| 14. | Delaware | 100% | ||
| 15. | Delaware | 100% | ||
| 16. | Delaware | 100% | ||
| 17. | Delaware | 100% | ||
| 18. | Delaware | 100% | ||
| 19. | Delaware | 100% | ||
| 20. | Delaware | 100% | ||
| 21. | Delaware | 100% | ||
| 22. | Delaware | 100% |
Schedule I to
Pledge Amendment
| Pledgor | Limited Liability Company |
Jurisdiction of Organization |
Percent Interest | |
| 23. | Delaware | 100% | ||
| 24. | Delaware | 100% | ||
| 25. | Delaware | 100% | ||
| 26. | Delaware | 100% | ||
| 27. | Delaware | 100% | ||
| 28. | Delaware | 100% | ||
| 29. | Delaware | 100% | ||
| 30. | Delaware | 100% | ||
| 31. | Delaware | 100% | ||
| 32. | Delaware | 100% | ||
| 33. | Delaware | 100% | ||
| 34. | Delaware | 100% | ||
| 35. | Delaware | 100% | ||
| 36. | Delaware | 100% | ||
| 37. | Delaware | 100% | ||
| 38. | Delaware | 100% | ||
| 39. | Delaware | 100% | ||
| 40. | Delaware | 100% | ||
| 41. | Delaware | 100% | ||
| 42. | Delaware | 100% | ||
| 43. | Delaware | 100% | ||
| 44. | Delaware | 100% | ||
| 45. | Delaware | 100% |
Schedule I to
Pledge Amendment
| Pledgor | Limited Liability Company |
Jurisdiction of Organization |
Percent Interest | |
| 46. | Delaware | 100% | ||
| 47. | Delaware | 100% | ||
| 48. | Delaware | 100% | ||
| 49. | Delaware | 100% | ||
| 50. | Delaware | 100% | ||
| 51. | Delaware | 100% | ||
| 52. | Delaware | 100% | ||
| 53. | Delaware | 100% | ||
| 54. | Delaware | 100% | ||
| 55. | Delaware | 100% | ||
| 56. | Delaware | 100% | ||
| 57. | Delaware | 100% | ||
| 58. | Delaware | 100% | ||
| 59. | Delaware | 100% | ||
| 60. | Delaware | 100% | ||
| 61. | Delaware | 100% | ||
| 62. | Delaware | 100% | ||
| 63. | Delaware | 100% | ||
| 64. | Delaware | 100% | ||
| 65. | Delaware | 100% | ||
| 66. | Delaware | 100% | ||
| 67. | Delaware | 100% | ||
| 68. | Delaware | 100% |
Schedule I to
Pledge Amendment
| Pledgor | Limited Liability Company |
Jurisdiction of Organization |
Percent Interest | |
| 69. | Delaware | 100% | ||
| 70. | Delaware | 100% | ||
| 71. | Delaware | 100% | ||
| 72. | Delaware | 100% | ||
| 73. | Delaware | 100% | ||
| 74. | Delaware | 100% | ||
| 75. | Delaware | 100% | ||
| 76. | Delaware | 100% | ||
| 77. | Delaware | 100% | ||
| 78. | Delaware | 100% | ||
| 79. | Delaware | 100% | ||
| 80. | Delaware | 100% | ||
| 81. | Delaware | 100% | ||
| 82. | Delaware | 100% | ||
| 83. | Delaware | 100% | ||
| 84. | Delaware | 100% | ||
| 85. | Delaware | 100% | ||
| 86. | Delaware | 100% | ||
| 87. | Delaware | 100% | ||
| 88. | Delaware | 100% | ||
| 89. | Delaware | 100% | ||
| 90. | Delaware | 100% | ||
| 91. | Delaware | 100% |
Schedule I to
Pledge Amendment
| Pledgor | Limited Liability Company |
Jurisdiction of Organization |
Percent Interest | |
| 92. | Delaware | 100% | ||
| 93. | Delaware | 100% | ||
| 94. | Delaware | 100% | ||
| 95. | Delaware | 100% | ||
| 96. | Delaware | 100% | ||
| 97. | Delaware | 100% | ||
| 98. | Delaware | 100% | ||
| 99. | Delaware | 100% | ||
| 100. | Delaware | 100% |
Schedule I to
Pledge Amendment
