AGREEMENT FOR TRANSFER OF MEMBERSHIP INTERESTS
ARC
WBPCFL0001, LLC
ARC
WBPBFL0001, LLC
AGREEMENT
FOR TRANSFER
OF
MEMBERSHIP INTERESTS
THIS
AGREEMENT FOR TRANSFER OF MEMBERSHIP INTERESTS (this “Agreement”)
entered into as of August ___, 2008 between ARC GROWTH FUND I, LLC, a Delaware
limited liability company (“Seller”),
and
AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership (“Buyer”).
STATEMENT
OF PURPOSE
Seller
is
the sole member of ARC WBPCFL0001, LLC ("Palm
Coast"),
and
ARC WBPBFL0001, LLC ("Pompano
Beach"),
each
a Delaware limited liability company (each a “Company”,
together the "Companies").
Palm
Coast is a single-purpose entity created for the purpose of owning, operating
and managing that certain tract or parcel of land more particularly described
in
Exhibit “A-1” attached hereto (the “Palm
Coast Land”)
and
those certain improvements commonly known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇. Pompano Beach is also a single-purpose entity created for the purpose
of owning, operating and managing the tracts or parcels of land more
particularly described in Exhibit “A-2” attached hereto (collectively, the
“Pompano
Beach Land”,
together with the Palm Coast Land, the "Land")
and
those certain improvements commonly known as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇.
Palm
Coast currently leases the Palm Coast Land and improvements located thereon
to
National City Bank (the “Tenant”),
pursuant to that certain lease agreement more particularly described in Exhibit
“B-1” attached hereto (the “Palm
Coast Lease”).
Pompano
Beach currently leases the Pompano Beach Land and improvements located thereon
to Tenant pursuant to that certain lease agreement more particularly described
in Exhibit “B-2” attached hereto (the “Pompano
Beach Lease”
together with the Palm Coast Lease, the "Leases").
Buyer
desires to purchase from Seller, and Seller desires to sell and transfer all
of
its right, title and interest in and to the Companies to Buyer subject to the
terms and provisions of this Agreement.
AGREEMENT
1. Transfer
of Membership Interests.
Seller
agrees to sell to Buyer, and Buyer agrees to purchase from Seller, all of
Seller’s right title and interest in and to Seller’s membership interests in the
Companies (each a “Membership
Interest”
and
collectively, the “Membership
Interests”),
as
set forth in the Limited Liability Company Agreements for each Company, copies
of which are attached hereto as Exhibits “C-1” and “C-2”,
respectively.
2. Representations
and Warranties of Seller.
Seller
represents and warrants to Buyer as of the date hereof and as of the Closing
as
follows:
(a) Ownership
of Membership Interests.
Seller
is the sole owner of the Membership Interests. Seller owns the Membership
Interests free and clear of all liens, encumbrances, claims or restrictions
on
transfer or voting, other than restrictions on transfer imposed by the terms
of
the Loan, and federal and state securities laws. At all times between the date
of formation of the Companies and the Closing Date, Seller has constituted
and
shall constitute the sole holder of the Membership Interests.
(b) Authority
of Seller.
Subject
to obtaining the consent of Lender (as hereinafter defined) to the transaction
contemplated by this Agreement (the “Transaction”),
Seller has the right, power and authority to enter into this Agreement and
to
consummate the Transaction. This Agreement is a valid and legally binding
obligation of Seller, enforceable in accordance with its terms except to the
extent that enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting the rights
of
creditors generally, and except as enforcement is subject to the laws of equity.
Subject to obtaining Lender’s consent to the Transaction, the execution by
Seller of this Agreement and consummation of the Transaction does not, and
as of
the Closing will not, result in the breach of any of the terms and provisions
of, or constitute a default under any document to which Seller or the Company
is
a party.
(c) Assets
of the Company.
The
assets of each Company are more particularly described in Exhibits "D-1" and
"D-2", respectively, attached hereto (each a "Property",
and
collectively, the "Properties").
(d) The
Loan.
Seller
represents and warrants that the Properties are encumbered by that certain
loan
in the principal amount of up to $32,000,000.00 (the “Loan”)
by KBC
Bank, N.V. (together with its successors and assigns, the “Lender”).
(e) Due
Formation of Seller.
Seller
is a limited liability company duly organized and validly existing and in good
standing under the laws of the State of Delaware.
(f) The
Membership Interests.
The
Membership Interests comprises all of the economic interest in the
Companies.
(g) Bankruptcy.
Neither
Seller nor either of the Companies are the subject of or a party to any state
or
federal bankruptcy or insolvency proceeding. Neither Seller nor either of the
Companies is contemplating either (i) the filing of a petition by it under
any
state or federal bankruptcy or insolvency laws, or (ii) the liquidation of
all
or a major portion of the assets of Seller or either of the
Companies.
(h) Due
Formation of Companies.
The
Companies are limited liability companies duly organized, validly existing
and
in good standing under the laws of the State of Delaware and qualified to do
business in, and in good standing under the laws of the State of Florida. The
Companies have not transacted business in any state other than the State of
Florida. The Companies have the requisite power and authority to conduct their
business as now conducted and to own their respective Property.
-
2 -
(i) Litigation.
There
are no pending or, to Seller’s knowledge, threatened or contemplated actions,
suits, proceedings, arbitrations, claims or governmental investigations which
affect, or may affect, the Companies or the Properties or the Membership
Interests.
(j) FIRPTA.
Seller
is not a “foreign person” as defined in Section 1445(f)(3) of the Internal
Revenue Code.
The
representations and warranties contained in this Section 2 shall survive the
Closing for a period of six (6) months following the Closing. Except as
expressly provided otherwise in this Section 2, the remaining representations
and warranties contained in this Section 2 shall survive the
Closing.
To
the
extent that Seller makes representations and warranties “to Seller’s knowledge”
or the like, such representations and warranties are made without due inquiry
and are limited solely to the knowledge of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall
not have any liability hereunder in connection with such representations or
warranties.
3. Representations
and Warranties of the Buyer.
Buyer
hereby represents and warrants to Seller, that:
(a) Authority
of Buyer.
Buyer
is a limited partnership validly existing and in good standing under the laws
of
the State of Delaware. Buyer has the right, power and authority to enter into
this Agreement and to consummate the Transaction. This Agreement is a valid
and
legally binding obligation of Buyer, enforceable in accordance with its terms,
except to the extent that enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or affecting
the rights of creditors generally, and except as enforcement is subject to
the
laws of equity. The execution by Buyer of this Agreement and consummation of
the
Transaction does not, and, as of the Closing, will not, result in the breach
of
any of the terms and provisions of, or constitute a default under any document
to which Buyer is a party.
(b) Litigation.
There
are no pending or, to Buyer’s knowledge, threatened or contemplated actions,
suits, proceedings, arbitrations, claims or governmental investigations which
affect, or may affect, the ability of the Buyer to consummate the Transaction
contemplated hereby.
(c) Consents
and Approvals.
The
execution, delivery and performance by Buyer of this Agreement and the
consummation of the transactions contemplated hereby do not and will not require
any consent, approval, authorization or other action by, or declaration, filing
or registration with, or notification to, any governmental agencies or
bodies.
Except
as
expressly provided otherwise in this Section 3, the representations and
warranties contained in this Section 3 shall survive the Closing.
-
3 -
4. Purchase
Price.
The
total purchase price (the “Purchase Price”) to be paid by Buyer to Seller for
the Membership Interests shall be SIX MILLION SIX HUNDRED SIXTY THREE THOUSAND
SEVEN HUNDRED EIGHTY SIX AND NO/100 DOLLARS ($6,663,786.00), of which
$3,000,000.00 shall be allocated to the purchase of Palm Coast's Membership
Interests, and $3,663,786.00 shall be allocated to the purchase of Pompano
Beach's Membership Interests. The total Purchase Price shall be payable as
follows:
(a) By
cash
or immediately available funds, or by check subject to collection, to the order
of Chicago Title Insurance Company (in this capacity, “Escrow
Agent”)
located at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Tel: (▇▇▇) ▇▇▇-▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇, in the amount of
THREE HUNDRED THIRTY THREE THOUSAND ONE HUNDRED NINETY AND NO/100 DOLLARS
($333,190.00) (the “Deposit”),
simultaneously with the execution and delivery of this Agreement by Buyer to
Seller to be held in accordance with the terms of this Agreement and Escrow
Agent’s standard escrow instructions. The Deposit shall be
non-refundable.
(b) By
unendorsed bank check or certified check to the order of Escrow Agent, drawn
on
a bank that is a member of the New York Clearing House Association, or, at
Seller’s option, by wire transfer of immediately available funds for the
difference between the Purchase Price minus the Deposit on the Closing Date
for
the balance of the Purchase Price, subject to adjustment as hereinafter
provided, on the Closing Date.
5. Conditions
Precedent. Seller’s
obligation to Close is contingent upon Seller having obtained
the
written approval of Lender to the Transaction.
6. Closing
and Closing Date.
The
consummation of the transfer by Seller to Buyer of the Membership Interests
(the
“Closing”)
shall
take place through escrow at the offices of Escrow Agent on the later of (i)
September 15, 2008 or (ii) the date which is three (3) business days after
the
Lender approves the Transaction (oral confirmation by Lender with written
confirmation by Lender being delivered at Closing shall be deemed sufficient)
(the “Closing
Date”).
TIME
BEING OF THE ESSENCE WITH RESPECT TO THE CLOSING DATE.
7. Liabilities
of the Companies.
Buyer
acknowledges the existence of the liabilities of the Companies under the
Permitted Exceptions (as defined in Section 8 herein) and the Leases, and
provided that the Transaction closes in accordance with Section 6 herein, agrees
to accept the Membership Interests and the Properties subject to all the terms
and conditions contained in the Permitted Exceptions and the
Leases.
8. Title
to the Property.
At the
Closing, the Companies shall hold fee simple title to the Land and Improvements,
respectively, subject only to exceptions to title described in the title
insurance policies (the “Permitted
Exceptions”)
and
real estate taxes, sewer charges and assessments which are a lien but not yet
due and payable.
9. Closing
Costs.
Subject
to the limitations set forth below, Seller shall pay deed transfer and/or stamp
taxes, if any. All charges and expenses relating to any loan secured by the
Properties obtained after the Closing shall be payable by Buyer. Escrow fees
payable to Escrow Agent shall be split 50/50 between Seller and Buyer. Each
party shall pay its own legal and attorneys’ fees.
10. Proration.
Net
rent due under the Leases, to the extent the same is payable upon the Closing
(computed as accrued Basic Rent (as defined in the Lease) shall be apportioned
as of the date of the Closing. No other apportionments shall be made at the
Closing.
-
4 -
11. No
Other Representations.
Except
for the representations and warranties of Seller in this Agreement, it is
expressly agreed that Buyer shall accept the Properties, in their present
condition, “AS IS”, “WHERE IS” and “WITH ALL FAULTS”, subject to all patent and
latent defects and faults, if any, with no representation or warranty by Seller
as to the fitness, suitability, merchantability, habitability, or usability,
including but not limited to, (a)
the
quality or condition of all improvements and the real property, including
without limitation, the water, soil and geology, (b) any
construction defects, errors, omissions or on account of any other conditions
affecting the Land and Improvements, (c)
the
manner of operating the Land or Improvements and the expenses related thereto,
(d)
the
compliance of the Land or Improvements with any laws, rules, ordinances or
regulations of any governmental body; and (e)
the
nature and extent of any recorded servitudes, rights-of-way, leases, possession,
liens, encumbrances, licenses, reservations, conditions or otherwise.
12. Brokers
Fees.
Seller
and Buyer represent and warrant each to the other that they have not dealt
with
any broker or realtor in connection with the Transaction. In the event of a
breach of the foregoing warranties, the breaching party agrees to save, defend,
indemnify and hold harmless the non breaching party from and against any claims,
losses, damages, liabilities and expenses, including but not limited to
attorneys’ fees.
13. Closing
Documents.
(a) At
Closing, Seller shall deliver to Escrow Agent the following:
(i) A
duly
executed Assignment and Assumption of Membership Interest for each Company
in
the form attached hereto as Exhibit
“E”
to this
Agreement;
(ii) A
certification in a form reasonably acceptable to Buyer, that Seller is not
a
foreign person;
(iii) Such
documents as Buyer’s counsel may reasonably request to evidence Seller’s
authority to execute and perform under this Agreement and to execute and deliver
all documents assigning the Membership Interests to Buyer;
(iv) Such
documents described in this Agreement to be executed by Seller, and deliver
such
other documents and papers which may be reasonably necessary to the consummation
of the Transaction as may be reasonably requested by Buyer, or its respective
counsel;
(v) Certificates
of Good Standing for each Company and Certificates of Authority from each state
where the Companies are qualified to do business in;
(vi) Copies
of
the Certificate of Formation and Operating Agreement together with all
modifications and amendments thereto for each Company, certified as true and
correct by an authorized officer of Seller;
(vii) The
original Limited Liability Company Agreement for each Company to which a
certification from an authorized officer of Seller shall be attached stating
that the Limited Liability Company Agreements have not been modified or amended
except in requested herein;
-
5 -
(viii) The
original Title Insurance issued by First American Insurance Company for each
Property; and
(ix) Notice
to
Tenant notifying Tenant of this Transaction;
(b) At
closing, Buyer shall:
(i) Deliver
to Escrow Agent the balance of the Purchase Price;
(ii) Deliver
to Seller such documents as Seller or Seller’s respective counsel, may
reasonably request to evidence Buyer’s authority to execute and perform under
this Agreement;
(iii) Deliver
to Seller a duly executed Assignment and Assumption of Membership Interest
for
each Company; and
(iv) Such
documents described in this Agreement to be executed by Buyer, and deliver
such
other documents and papers which may be reasonably necessary to the consummation
of the Transaction as may be reasonably requested by Seller, Seller’s respective
counsel.
14. Default
and Remedies.
(a) In
the
event Seller defaults or willfully fails to perform any of the conditions or
obligations of Seller under this Agreement
and
provided Buyer has performed all of its obligations hereunder
required
to be performed as of the date of Seller’s breach,
Buyer,
as Buyer’s sole and exclusive remedy,
shall
have the
right to declare
this Agreement terminated and, upon such termination (in which event Escrow
Agent shall return the Deposit to Buyer), the parties shall have no further
rights,
liabilities
or
obligations with respect to this Agreement.
(b) In
the
event that the terms and conditions of this Agreement have been satisfied by
Seller and Buyer fails to close on this Agreement within the time limits set
forth, Seller, as Sellers sole and exclusive remedy, shall be entitled to retain
the Deposit as liquidated damages and declare this Agreement terminated, the
parties shall have no further rights, obligations or liabilities with respect
to
this Agreement.
15. Notices.
Any
notice required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been given when deposited in the United
States mail, registered or certified mail, postage prepaid, return receipt
requested, or when faxed or deposited with a nationally recognized overnight
courier service for next day delivery, and addressed to each party as set forth
below. Either party may, from time to time, designate a different address to
which notices shall be sent.
-
6 -
To
Seller:
ARC
GROWTH FUND I, LLC
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
To
Buyer:
AMERICAN
REALTY CAPITAL OPERATING
PARTNERSHIP,
L.P.
▇▇▇
▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
16. Miscellaneous.
(a) This
Agreement shall be governed by and construed in accordance with the laws of
Delaware.
(b) This
Agreement and the attached Exhibits contain the entire understanding and
agreement by and between the parties with respect to the subject matter of
this
Agreement and all prior or contemporaneous oral or written agreements or
instruments are merged in this Agreement and no amendment to this Agreement
shall be effective unless the same is in writing and signed by the parties
hereto.
(c) The
parties hereby designate Buyer’s attorney as the responsible party for filing a
Form 1099 (or other substitute, additional or replacement forms) reporting
this
transaction to the Internal Revenue Service and agree to furnish such party
with
all information necessary to permit such party to file the same.
(d) This
Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective heirs, successors, executors, administrators and permitted
assigns.
(e) Each
party represents and warrants to the other party that the execution of this
Agreement and any other documents required or necessary to be executed pursuant
to the provisions of this Agreement are valid, binding obligations and are
enforceable in accordance with their terms.
(f) The
captions and headings throughout this Agreement are for convenience and
reference only and the words contained therein shall in no way be held to define
or add to the interpretation, construction or meaning of any provision of this
Agreement.
(g) This
Agreement may not be changed orally, but only by an agreement in writing signed
by both Buyer and Seller. No waiver of any of the provisions to this Agreement
shall be valid unless in writing and signed by the party against whom such
waiver is sought to be enforced.
-
7 -
(h) In
the
event either party shall bring any action or proceeding pursuant to this
Agreement, the prevailing party therein shall be entitled to recover its costs
and expenses in such action or proceeding, including reasonable attorneys’ fees.
The provisions of this subparagraph (g) shall survive the Closing or early
termination of this Agreement.
(i) This
Agreement shall not be assignable without the consent of the Seller which may
be
withheld or granted in its sole discretion; provided, however, nothing herein
shall prevent Buyer from assigning this Agreement to an Intermediary (as
hereinafter defined) or to an entity which is owned or controlled by or commonly
controlled with Buyer, or the Intermediary. Buyer shall nevertheless have the
right with notice to Seller to assign this Agreement or its right to purchase
the Company to an entity owned by, controlled by or under common control with
Buyer. In no event shall any assignment of this Agreement release or discharge
Buyer from any liability or obligation hereunder.
(j) This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, and all such counterparts together shall constitute one and the
same instrument. Delivery of executed facsimile counterparts of this Agreement
shall be deemed effective delivery hereof.
17. NO
ATTORNEY CLIENT RELATIONSHIP/NO TAX ADVICE.
BUYER
ACKNOWLEDGES THAT SELLER HAS NOT HELD ITSELF OUT AS ENGAGED IN THE PRACTICE
OF
LAW OR ACCOUNTING AND HAS NOT ESTABLISHED, DIRECTLY OR INDIRECTLY, AN
ATTORNEY-CLIENT OR ACCOUNTANT-CLIENT RELATIONSHIP WITH SELLER, OR ANY OF
SELLER’S OFFICERS, DIRECTORS, MANAGERS, AGENTS, EMPLOYEES OR REPRESENTATIVES
(INCLUDING, WITHOUT LIMITATION, SELLER’S LEGAL COUNSEL) (COLLECTIVELY,
“SELLER’S
PARTIES”).
IT IS
UNDERSTOOD AND AGREED THAT ANY REPRESENTATIONS OR STATEMENTS MADE BY SELLER
OR
ANY OF SELLER’S PARTIES REGARDING LEGAL OR TAX CONSEQUENCES MAY NOT BE USED OR
RELIED UPON BY BUYER. BUYER REPRESENTS THAT IT HAS EITHER OBTAINED LEGAL COUNSEL
AND TAX ADVICE PRIOR TO ENTERING INTO THIS AGREEMENT OR IT HAS ITSELF DEEMED
IT
UNNECESSARY TO SEEK SUCH ADVICE. SELLER SHALL NOT BE HELD RESPONSIBLE FOR ANY
FAILURE OF BUYER TO SEEK AND OBTAIN LEGAL AND TAX ADVICE.
18. Recordation.
Neither
this Agreement nor any memorandum hereof may be recorded or filed. Any attempted
recordation of this Agreement or a memorandum hereof shall render it null and
void with Seller entitled to retain the Deposit paid hereunder.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-
8 -
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be executed by their authorized
representatives.
|
SELLER
|
|||||
|
ARC
GROWTH FUND I, LLC,
|
|||||
|
a
Delaware limited liability company
|
|||||
|
By:
|
|||||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
||||
|
Title:
|
President
|
||||
|
BUYER
|
|||||
|
AMERICAN
REALTY CAPITAL
OPERATING
PARTNERSHIP, L.P.,
|
|||||
|
a
Delaware limited partnership
|
|||||
|
By:
|
American
Realty Capital Trust, Inc., its general partner
|
||||
|
By:
|
|||||
| Name: |
▇▇▇▇▇
▇▇▇▇▇
|
||||
| Title: |
Chief
Financial Officer
|
||||
SCHEDULE
OF EXHIBITS
|
Exhibit
A-1
|
Description
of the Palm Coast Land
|
|
Exhibit
A-2
|
Description
of the Pompano Beach Land
|
|
Exhibit
B-1
|
The
Palm Coast Lease
|
|
Exhibit
B-2
|
The
Pompano Beach Lease
|
|
Exhibit
C-1
|
Limited
Liability Company Agreement of ARC WBPCFL0001, LLC
|
|
Exhibit
C-2
|
Limited
Liability Company Agreement of ARC WBPBFL0001, LLC
|
|
Exhibit
D-1
|
The
Palm Coast Property
|
|
Exhibit
D-2
|
The
Pompano Beach Property
|
|
Exhibit
E
|
Form
of Assignment and Assumption of Membership
Interest
|
EXHIBIT
“A-1”
Description
of the Palm Coast Land
▇▇▇
▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ I, according to the plat thereof, as recorded in Plat
Book 29, Pages 94 and 95, of the Public Records of Flagler County,
Florida.
EXHIBIT
"A-2"
Description
of the Pompano Beach Land
All
of
Tract B of PALM-AIRE MARKETPLACE, according to the Plat thereof recorded in
Plat
Book 164, Page 35, of the Public Records of Broward County,
Florida.
EXHIBIT
“B-1”
The
Palm Coast Lease
Lease
dated as of June 30, 2008, between American Realty Capital II, LLC (predecessor
in interest to ARC WBPCFL0001, LLC), as landlord, and National City Bank, as
tenant, as assigned by that certain Assignment and Assumption of Lease dated
as
of July, 2008 by American Realty Capital II, LLC, as assignor, to ARC
WBPCFL0001, LLC, as assignee, as further amended by letter agreement dated
August 22, 2008 from National City Bank to ARC WBPCFL0001, LLC, and further
by
that certain Commencement Date Certificate dated as of August 22,
2008.
EXHIBIT
“B-2”
The
Pompano Beach Lease
Lease
dated as of July 23, 2008, between ARC WBPBFL0001, LLC, as landlord, and
National City Bank, as tenant.
EXHIBIT
“C-1”
Limited
Liability Company Agreement for ARC WBPCFL0001, LLC
[TO
BE
ATTACHED]
EXHIBIT
“C-2”
Limited
Liability Company Agreement for ARC WBPBFL0001, LLC
[TO
BE
ATTACHED]
EXHIBIT
“D-1”
Palm
Coast Property
With
respect to ARC
WBPCFL0001, LLC (collectively,
the "Palm
Coast Property"):
(a) All
of
the Palm Coast’s interest as fee owner of the Palm Coast Land;
(b) Subject
to the terms of the Palm Coast Lease, all improvements and fixtures now located
on the Palm Coast Land including, without limitation, any and all other
buildings, structures, parking areas, landscaping improvements and other
amenities currently located on the Palm Coast Land (collectively, the
"Palm
Coast Improvements");
(c) Subject
to the terms of the Palm Coast Lease, all personal property, if any, now owned
or hereafter acquired by Palm Coast and located on or to be located on or in
or
used in connection with the Palm Coast Land and Palm Coast Improvements
(collectively, the "Palm
Coast Personal Property");
(d) All
of
the Palm Coast's interest, if any, in any intangible property now or hereafter
owned by the Palm Coast and used in connection with the Palm Coast Land, the
Palm Coast Improvements and the Palm Coast Personal Property, including, without
limitation, the following: (A) all existing warranties and guaranties issued
in
connection with the Palm Coast Property; and (B) all existing permits, licenses,
approvals and authorizations issued by any governmental authority in connection
with the Palm Coast Property, including, without limitation, the right to use
any name or trade name associated with any of the foregoing (collectively,
the
“Palm
Coast Intangible Property”).
(e) All
of
the Palm Coast's right, title and interest as landlord under the Lease,
including any and all rents, charges, and claims of landlord thereunder, tenant
estoppel certificates, reimbursement rights, and the like (collectively, the
“Palm
Coast Lease Rights”).
EXHIBIT
“D-2”
Pompano
Beach Property
With
respect to Pompano Beach (collectively, the "Pompano
Beach Property"):
(a) All
of
the Pompano Beach’s interest as fee owner of the Pompano Beach
Land;
(b) Subject
to the terms of the Pompano
Beach Lease,
all improvements and fixtures now located on the Pompano
Beach Land
including, without limitation, any and all other buildings, structures, parking
areas, landscaping improvements and other amenities currently located on the
Pompano
Beach Land
(collectively, the "Pompano
Beach Improvements",
together with the Palm Coast Improvements, the "Improvements");
(c) Subject
to the terms of the Pompano
Beach Lease,
all personal property, if any, now owned or hereafter acquired by Pompano Beach
and located on or to be located on or in or used in connection with the
Pompano
Beach Land
and
Pompano
Beach Improvements
(collectively, the "Pompano
Beach Personal
Property",
together with the Palm Coast Personal Property, the "Personal
Property");
(d) All
of
the Pompano Beach's interest, if any, in any intangible property now or
hereafter owned by the Pompano Beach and used in connection with the
Pompano
Beach Land,
the
Pompano
Beach Improvements
and the Pompano
Beach Personal
Property, including, without limitation, the following: (A) all existing
warranties and guaranties issued in connection with the Pompano
Beach Property;
and (B) all existing permits, licenses, approvals and authorizations issued
by
any governmental authority in connection with the Pompano
Beach Property,
including, without limitation, the right to use any name or trade name
associated with any of the foregoing (collectively, the “Pompano
Beach Intangible
Property”,
together with the Palm Coast Intangible Property, the "Intangible
Property").
(e) All
of
the Pompano Beach's right, title and interest as landlord under the Pompano
Beach Lease,
including any and all rents, charges, and claims of landlord thereunder, tenant
estoppel certificates, reimbursement rights, and the like (collectively, the
“Pompano
Beach Lease
Rights”,
together with the Palm Coast Lease Rights, the "Lease
Rights").
EXHIBIT
“E”
Assignment
and Assumption of Membership Interest
THIS
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST (“Assignment”)
is
entered into as of __________, 2008 by and among ARC GROWTH FUND I, LLC
(“Transferor”),
and
AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP, L.P. (“Transferee”).
RECITALS:
A. ARC
_________, LLC, a Delaware limited liability company (the “LLC”),
was
formed pursuant to a Limited Liability Company Agreement dated as of
_____________ (the “LLC
Agreement”),
executed by Transferor, as the sole member of the LLC.
B. Pursuant
to Section 8.1 of the LLC Agreement Transferor desires to assign and transfer
one hundred percent (100%) of its Membership Interest (as such term is defined
in the LLC Agreement) in the LLC, as the sole Member (as such term is defined
in
the LLC Agreement) in the LLC to Transferee and to admit Transferee as a Member
of the LLC (the “Transaction”).
AGREEMENT:
NOW,
THEREFORE, in consideration of the mutual covenants set forth in this Assignment
and the LLC Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions.
All
terms used herein which have their initial letter capitalized which have been
specially defined in the LLC Agreement shall have the same meaning herein as
set
forth in the LLC Agreement, unless expressly provided otherwise
herein.
2. Assignment.
Transferor does hereby assign and transfer unto Transferee one hundred percent
(100%) of its Membership Interest in the LLC, which Membership Interest
constitutes the entire ownership interest outstanding in the LLC. By execution
of this Assignment, Transferee intends to become the sole Member of the LLC.
Transferee hereby accepts the assignment and transfer of such Membership
Interest in the LLC from Transferor, and does hereby ratify, accept, adopt
and
agree to and hereby agrees to be bound by, all of the terms and provisions
of
the LLC Agreement, and such Transferee hereby assumes all obligations,
responsibilities, duties, liabilities and costs of a Member accruing or becoming
due from and after the date hereof. The Transferor, as the Member of the LLC,
hereby approves Transferee and the transfer of the Membership Interest belonging
to the Transferor to Transferee. Transferee is hereby admitted as a Member
with
respect to the Membership Interest so transferred, and from and after the
execution and delivery of this Assignment, Transferee shall be the sole Member
of the LLC under the LLC Agreement.
3. Counterparts.
To
facilitate execution, this instrument may be executed in as many counterparts
as
may be convenient or required. It shall not be necessary that the signature
or
acknowledgment of, or on behalf of, each party, or that the signature of all
persons required to bind any party, or the acknowledgment of such party, appear
on each counterpart. All counterparts shall collectively constitute a single
instrument. It shall not be necessary in making proof of this instrument to
produce or account for more than a single counterpart containing the respective
signatures of, or on behalf of, and the respective acknowledgments of, each
of
the parties hereto. Any signature or acknowledgment page to any counterpart
may
be detached from such counterpart without impairing the legal effect of the
signatures or acknowledgments thereon and thereafter attached to another
counterpart identical thereto except having attached to it additional signature
or acknowledgment pages.
4. Severability.
Any
provision of this Assignment that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
5. Successors
and Assigns.
All
covenants and agreements contained herein shall be binding upon and inure to
the
benefit of the parties hereto, and their respective successors and assigns.
Any
request, notice, direction, consent, waiver, or other writing or action by
the
Managers or the Members prior to the date hereof shall bind each of its or
their
successors and assigns.
6. No
Amendments.
Except
as amended hereby, the LLC Agreement shall not be amended and shall remain
in
full force and effect in accordance with its terms.
7. Governing
Law.
THIS
ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF DELAWARE APPLICABLE TO CONTRACTS TO BE PERFORMED ENTIRELY WITHIN
SUCH STATE, INCLUDING ALL MEANS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
[SIGNATURES
TO APPEAR ON THE FOLLOWING PAGES]
-
2 -
EXECUTED
as of the date first above written.
|
TRANSFEROR:
|
||||||
|
ARC
GROWTH FUND I, LLC,
|
||||||
|
By:
|
||||||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
|||||
|
Title:
|
President
|
|||||
| TRANSFEREE: | ||||||
|
AMERICAN REALTY CAPITAL
OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
|
||||||
|
By:
|
American
Realty Capital Trust, Inc., its general partner
|
|||||
|
By:
|
||||||
| Name: |
▇▇▇▇▇
▇▇▇▇▇
|
|||||
| Title: |
Chief
Financial Officer
|
|||||