Exhibit 10.1 


 


SECOND AMENDED AND RESTATED


 


ADVISORY AGREEMENT


 


BY AND AMONG


 


AMERICAN REALTY CAPITAL DAILY NET ASSET VALUE
TRUST, INC.,


 


AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP
II, L.P.,


 


AND


 


AMERICAN REALTY CAPITAL ADVISORS II, LLC


 


Dated as of June 26, 2015


 




    	 



    	 



    

 


TABLE OF CONTENTS


 





	 	 	Page
	 	 	 
	1.	DEFINITIONS	1
	 	 	 
	2.	APPOINTMENT	7
	 	 	 
	3.	DUTIES OF THE ADVISOR	7
	 	 	 
	4.	AUTHORITY OF ADVISOR	9
	 	 	 
	5.	FIDUCIARY RELATIONSHIP	9
	 	 	 
	6.	NO PARTNERSHIP OR JOINT VENTURE	9
	 	 	 
	7.	BANK ACCOUNTS	9
	 	 	 
	8.	RECORDS; ACCESS	9
	 	 	 
	9.	LIMITATIONS ON ACTIVITIES	9
	 	 	 
	10.	FEES.	10
	 	 	 
	11.	EXPENSES	12
	 	 	 
	12.	OTHER SERVICES	13
	 	 	 
	13.	REIMBURSEMENT TO THE ADVISOR	13
	 	 	 
	14.	OTHER ACTIVITIES OF THE ADVISOR	13
	 	 	 
	15.	THE AMERICAN REALTY CAPITAL NAME	14
	 	 	 
	16.	TERM OF AGREEMENT	14
	 	 	 
	17.	TERMINATION BY THE PARTIES	14
	 	 	 
	18.	ASSIGNMENT TO AN AFFILIATE	14
	 	 	 
	19.	PAYMENTS TO AND DUTIES OF ADVISOR UPON TERMINATION	14
	 	 	 
	20.	INCORPORATION OF THE ARTICLES OF INCORPORATION AND THE OPERATING PARTNERSHIP AGREEMENT	15
	 	 	 
	21.	INDEMNIFICATION BY THE COMPANY AND THE OPERATING PARTNERSHIP	15
	 	 	 
	22.	INDEMNIFICATION BY ADVISOR	16
	 	 	 
	23.	NOTICES	16
	 	 	 
	24.	MODIFICATION	17
	 	 	 
	25.	SEVERABILITY	17



 






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	26.	GOVERNING LAW	17
	 	 	 
	27.	ENTIRE AGREEMENT	17
	 	 	 
	28.	NO WAIVER	17
	 	 	 
	29.	PRONOUNS AND PLURALS	17
	 	 	 
	30.	HEADINGS	17
	 	 	 
	31.	EXECUTION IN COUNTERPARTS	17




 




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SECOND AMENDED AND RESTATED ADVISORY AGREEMENT


 


THIS SECOND AMENDED AND RESTATED ADVISORY AGREEMENT
(this “Agreement”) dated as of June 26, 2015, is entered into among American Realty Capital Daily Net Asset
Value Trust, Inc., a Maryland corporation (the “Company”), American Realty Capital Operating Partnership II,
L.P., a Delaware limited partnership (the “Operating Partnership”), and American Realty Capital Advisors II,
LLC, a Delaware limited liability company.


 


WITNESSETH


 


WHEREAS, the Company is a Maryland corporation
created in accordance with Maryland General Corporation Law and intends to qualify as a REIT (as defined below);


 


WHEREAS, the Company is the general partner
of the Operating Partnership;


 


WHEREAS, the Company and the Operating Partnership
desire to avail themselves of the experience, sources of information, advice, assistance and certain facilities 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 of the Company, all as provided herein;


 


WHEREAS, the Advisor is willing to render such
services, subject to the supervision of the Board of Directors of the Company, on the terms and subject to the conditions hereinafter
set forth;


 


WHEREAS, the Company, the Operating Partnership
and the Advisor entered into that certain Advisory Agreement, dated as of August 3, 2011;


 


WHEREAS, the Company, the Operating Partnership
and the Advisor entered into that certain Amended and Restated Advisory Agreement, dated as of July 15, 2013, (as amended, the
“Amended Advisory Agreement”);


 


WHEREAS, the Company, the Operating Partnership
and the Advisor desire to amend and restate the Amended Advisory Agreement;


 


NOW, THEREFORE, in consideration of the foregoing
and of the mutual covenants and agreements contained herein, the parties hereto, intending to be legally bound, hereby agree that
the Amended Advisory Agreement is amended and restated in its entirety to read as follows:


 


1. DEFINITIONS. As used in this Agreement,
the following terms have the definitions set forth below:


 


“Acquisition Expenses”
means any and all expenses, exclusive of Acquisition Fees, incurred by the Company, the Operating Partnership, the Advisor or any
of their Affiliates in connection with the selection, evaluation, acquisition, origination, making or development of any Investments,
whether or not acquired, including, without limitation, legal fees and expenses, travel and communications expenses, brokerage
fees, costs of appraisals, nonrefundable option payments on property not acquired, accounting fees and expenses, title insurance
premiums and the costs of performing due diligence.


 


“Acquisition Fee”
means the fees payable to the Advisor or its Affiliates pursuant to Section 10(a).


 


“Advisor” means American
Realty Capital Advisors II, LLC, a Delaware limited liability company, any successor advisor to the Company and the Operating Partnership,
or any Person to which American Realty Capital Advisors II, LLC or any successor advisor subcontracts substantially all its functions.
Notwithstanding the foregoing, a Person hired or retained by American Realty Capital Advisors II, LLC to perform property management
and related services for the Company or the Operating Partnership that is not hired or retained to perform substantially all the
functions of American Realty Capital Advisors II, LLC with respect to the Company and the Operating Partnership as a whole shall
not be deemed to be an Advisor.


 




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“Affiliate” or “Affiliated”
means with respect to any Person, (i) any other Person directly or indirectly owning, controlling or holding, with the power to
vote, ten percent (10%) or more of the outstanding voting securities of such Person; (ii) any other Person ten percent (10%) or
more of whose outstanding voting securities are directly or indirectly owned, controlled or held, with the power to vote, by such
Person; (iii) any other Person directly or indirectly controlling, controlled by or under common control with such Person; (iv)
any executive officer, director, trustee or general partner of such Person; and (v) any legal entity for which such Person acts
as an executive officer, director, trustee or general partner. For purposes of this definition, the terms “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 ownership or voting rights, by contract
or otherwise.


 


“Agreement” has the
meaning set forth in the preamble, and such term shall include any amendment or supplement hereto from time to time.


 


“Annual Subordinated Performance
Fee” means the fees payable to the Advisor or its assignees pursuant to Section 10(e).


 


“Articles of Incorporation”
means the charter of the Company, as the same may be amended from time to time.


 


“Asset Management Fee”
means the fees payable to the Advisor pursuant to Section 10(d).


 


“Average Invested Assets”
has the meaning set forth in the Articles of Incorporation. For an equity interest owned in a Joint Venture, the calculation of
Average Invested Assets shall take into consideration the underlying Joint Venture’s aggregate book value for the equity
interest.


 


“Board of Directors”
or “Board” means the Board of Directors of the Company.


 


“Business Day” means
any day on which the New York Stock Exchange is open for trading.


 


“By-laws” means the
by-laws of the Company, as amended and as the same are in effect from time to time.


 


“Cause” means (i)
fraud, criminal conduct, willful misconduct or illegal or negligent breach of fiduciary duty by the Advisor, or (ii) if any of
the following events occur: (A) the Advisor shall breach any material provision of this Agreement, and after written notice of
such breach, shall not cure such default within thirty (30) days or have begun action within thirty (30) days to cure the default
which shall be completed with reasonable diligence; (B) 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 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 thirty (30) days; or (C) 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 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.


 


“Change of Control”
means a change of control of the Company of a nature that would be required to be reported in response to the disclosure requirements
of Schedule 14A of Regulation 14A promulgated under the Exchange Act, as enacted and in force on the date hereof, whether or not
the Company is then subject to such reporting requirements; provided, however, that, without limitation,
a Change of Control shall be deemed to have occurred if: (i) any “person” (within the meaning of Section 13(d) of the
Exchange Act, as enacted and in force on the date hereof) is or becomes the” beneficial owner” (as that term is defined
in Rule 13d-3, as enacted and in force on the date hereof, under the Exchange Act) of securities of the Company representing 9.8%
or more of the combined voting power of the Company’s securities then outstanding; (ii) there occurs a merger, consolidation
or other reorganization of the Company which is not approved by the Board of Directors; (iii) there occurs a sale, exchange, transfer
or other disposition of substantially all the assets of the Company to another Person, which disposition is not approved by the
Board of Directors; or (iv) there occurs a contested proxy solicitation of the Stockholders that results in the contesting party
electing candidates to a majority of the Board of Directors’ positions next up for election.


 




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“Code” means the Internal
Revenue Code of 1986, as amended from time to time, or any successor statute thereto. Reference to any provision of the Code shall
mean such provision as in effect from time to time, as the same may be amended, and any successor provision thereto, as interpreted
by any applicable regulations as in effect from time to time.


 


“Common Stock” means
the shares of the Company’s common stock, par value $0.01 per share.


 


“Company” has the
meaning set forth in the preamble.


 


“Competitive Real Estate Commission”
means a real estate or brokerage commission for the purchase or sale of an asset which is reasonable, customary and competitive
in light of the size, type and location of the asset.


 


“Contract Purchase Price”
has the meaning set forth in the Articles of Incorporation.


 


“Contract Sales Price”
means the total consideration received by the Company for the sale of an Investment.


 


“Dealer Manager” means
Realty Capital Securities, LLC, or such other Person selected by the Board of Directors to act as the dealer manager for the Offering.


 


“Dealer Manager Fee”
means the fee from the sale of Retail Shares in a Primary Offering, payable to the Dealer Manager for serving as the dealer manager
of such Primary Offering.


 


“Director” means a
director of the Company.


 


“Distributions” means
any distributions of money or other property by the Company to Stockholders, including distributions that may constitute a return
of capital for U.S. federal income tax purposes.


 


“Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to time, or any successor statute thereto. Reference to any provision
of the Exchange Act shall mean such provision as in effect from time to time, as the same may be amended, and any successor provision
thereto, as interpreted by any applicable regulations as in effect from time to time.


 


“Excess Amount” has
the meaning set forth in Section 13.


 


“Expense Year” has
the meaning set forth in Section 13.


 


“FINRA” means the
Financial Industry Regulatory Authority, Inc.


 


“GAAP” means United
States generally accepted accounting principles, consistently applied.


 


“Good Reason” means:
(i) any failure to obtain a satisfactory agreement from any successor to the Company or the Operating Partnership to assume and
agree to perform obligations under this Agreement; or (ii) any material breach of this Agreement of any nature whatsoever by the
Company or the Operating Partnership.


 


“Gross Proceeds” means
the aggregate purchase price of all Shares sold for the account of the Company through an Offering, without deduction for Selling
Commissions, volume discounts, any marketing support and due diligence expense reimbursement or Organization and Offering Expenses.
For the purpose of computing Gross Proceeds from the sale of Retail Shares, the purchase price of any Retail Share for which reduced
Selling Commissions are paid to the Dealer Manager or a Soliciting Dealer (where net proceeds to the Company are not reduced) shall
be deemed to be the full amount of the offering price per Retail Share pursuant to the Prospectus for such Offering without reduction.


 




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“Indemnitee” has the
meaning set forth in Section 21.


 


“Independent Director”
has the meaning set forth in the Articles of Incorporation.


 


“Independent Valuation Advisor”
means a firm that is (i) engaged in the business of conducting appraisals on real estate properties, (ii) not an affiliate of the
Advisor and (iii) engaged by the Company with the Board’s approval to appraise the Real Properties and other Investments
pursuant to the Valuation Guidelines.


 


“Insourced Acquisition Expenses”
means Acquisition Expenses incurred in connection with services performed by the Advisor or any of its Affiliates, including legal
advisory expenses, due diligence expenses, personnel expenses, acquisition-related administrative and advisory expenses, survey,
property, contract review expenses, travel and communications expenses and other closing costs.


 


“Institutional Shares”
means shares of the Common Stock that have been designated institutional shares.


 


“Investments” means
any investments by the Company or the Operating Partnership, directly or indirectly, in Real Estate Assets, Real Estate Related
Loans or any other asset.


 


“Joint Ventures” means
the joint venture or partnership or other similar arrangements (other than between the Company and the Operating Partnership) in
which the Company or the Operating Partnership or any of their subsidiaries is a co-venturer, limited liability company member,
limited partner or general partner, which are established to acquire or hold Investments.


 


“Listing” means the
listing of the Common Stock on a national securities exchange, or the inclusion of the Common Stock for trading in the over-the-counter-market.


 


“Loans” means any
indebtedness or obligations in respect of borrowed money or evidenced by bonds, notes, debentures, deeds of trust, letters of credit
or similar instruments, including mortgages and mezzanine loans.


 


“Management Agreement”
means the Property Management and Leasing Agreement, dated as of August 3, 2011, among the Company, the Operating Partnership and
American Realty Capital Properties II, LLC, as the same may be amended from time to time.


 


“Market Check” means
an analysis comparing (a) the amount of Insourced Acquisition Expenses paid in the previous calendar year to the Advisor or any
of its Affiliates with (b) the projected amount of Acquisition Expenses for the following calendar year assuming that a Person
other than the Advisor or its Affiliates performs substantially similar services for a substantially similar amount of Investments.


 


“NAREIT FFO” means
funds from operations, or FFO, consistent with the standards established by the White Paper on FFO approved by the Board of Governors
of the National Association of Real Estate Investment Trusts, or NAREIT, as revised in February 2004 and as modified by NAREIT
from time to time.


 


“NASAA REIT Guidelines”
means the Statement of Policy Regarding Real Estate Investment Trusts as revised and adopted by the North American Securities Administrators
Association on May 7, 2007, as the same may be amended from time to time.


 


“NAV” means the Company’s
net asset value, calculated pursuant to the Valuation Guidelines.


 


“Net Income” means,
for any period, the Company’s total revenues applicable to such period, less the total expenses applicable to such period
other than additions to reserves for depreciation, bad debts or other similar non-cash reserves and excluding any gain from the
sale of the Company’s assets.


 


“Notice” has the meaning
set forth in Section 23.


 




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“Offering” means any
public offering and sale of Shares pursuant to an effective registration statement filed under the Securities Act.


 


“Operating Partnership”
has the meaning set forth in the preamble.


 


“Operating Partnership Agreement”
means the Agreement of Limited Partnership of the Operating Partnership, among the Company, the Operating Partnership and American
Realty Capital Trust II Special Limited Partner, LLC, as the same may be amended from time to time.


 


“OP Units” means units
of limited partnership interest in the Operating Partnership.


 


“Organization and Offering Expenses”
means all expenses (other than the Selling Commission, the Platform Fee and the Dealer Manager Fee) to be paid by the Company in
connection with an Offering, including legal, accounting, printing, mailing and filing fees, charges of the escrow holder and transfer
agent, charges of the Advisor for administrative services related to the issuance of Shares in an Offering, reimbursement of the
Advisor for costs in connection with preparing supplemental sales materials, the cost of bona fide training and education meetings
held by the Company (primarily the travel, meal and lodging costs of the registered representatives of broker-dealers), attendance
and sponsorship fees and cost reimbursement for employees of the Company’s Affiliates to attend retail seminars conducted
by broker-dealers and, in special cases, reimbursement to soliciting broker-dealers for technology costs associated with an Offering,
costs and expenses related to such technology costs, and costs and expenses associated with facilitation of the marketing of the
Shares and the ownership of Shares by such broker-dealer’s customers.


 


“Original Advisory Agreement”
has the meaning set forth in the recitals.


 


“Person” has the meaning
set forth in the Articles of Incorporation.


 


“Platform Fee” means
an asset-based platform fee payable to the Dealer Manager monthly in arrears for sales of Institutional Shares in a Primary Offering.
The Platform Fee shall accrue daily and equals (a) the number of Shares outstanding each day, excluding shares issued under the
Company’s distribution reinvestment plan, multiplied by (b) 1/365th of NAV per Share on such day.


 


“Primary Offering”
means the portion of an Offering other than the Shares offered pursuant to the Company’s distribution reinvestment plan.


 


“Prospectus” means
a final prospectus of the Company filed pursuant to Rule 424(b) of the Securities Act, as the same may be amended or supplemented
from time to time.


 


“Real Estate Assets”
means any investment by the Company or the Operating Partnership in unimproved and improved Real Property (including fee or leasehold
interests, options and leases), directly, through one or more subsidiaries or through a Joint Venture.


 


“Real Estate Commission”
means the fees payable to the Advisor pursuant to Section 10(c).


 


“Real Estate Related Loans”
means any investments in mortgage loans and other types of real estate related debt financing, including, mezzanine loans, bridge
loans, convertible mortgages, wraparound mortgage loans, construction mortgage loans, loans on leasehold interests and participations
in such loans, by the Company or the Operating Partnership, directly, through one or more subsidiaries or through a Joint Venture.


 


“Real Property” means
(i) land, (ii) rights in land (including leasehold interests), and (iii) any buildings, structures, improvements, furnishings,
fixtures and equipment located on or used in connection with land and rights or interests in land.


 


“REIT” means a corporation,
trust, association or other legal entity (other than a real estate syndication) that is engaged primarily in investing in equity
interests in real estate (including fee ownership and leasehold interests) or in loans secured by real estate or both, as defined
pursuant to Sections 856 through 860 of the Code and any successor or other provisions of the Code relating to real estate investment
trusts (including provisions as to the attribution of ownership of beneficial interests therein) and the regulations promulgated
thereunder.


 




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“Retail Shares” means
shares of the Common Stock that have been designated retail shares.


 


“Sale” or “Sales”
means any transaction or series of transactions whereby: (i) the Company or the Operating Partnership directly or indirectly (except
as described in other subsections of this definition) sells, grants, transfers, conveys, or relinquishes its direct or indirect
ownership of any Real Estate Assets, Loan or other Investment or portion thereof, including the lease of any Real Estate Assets
consisting of a building only, and including any event with respect to any Real Estate Assets that gives rise to a significant
amount of insurance proceeds or condemnation awards; (ii) the Company or the Operating Partnership directly or indirectly (except
as described in other subsections of this definition) sells, grants, transfers, conveys, or relinquishes its ownership of all or
substantially all the direct or indirect interest of the Company or the Operating Partnership in any Joint Venture in which it
is a co-venturer, member or partner; (iii) any Joint Venture directly or indirectly (except as described in other subsections of
this definition) in which the Company or the Operating Partnership as a co-venturer, member or partner sells, grants, transfers,
conveys, or relinquishes its direct or indirect ownership of any Real Estate Assets or portion thereof, including any event with
respect to any Real Estate Assets which gives rise to insurance claims or condemnation awards; or (iv) the Company or the Operating
Partnership directly or indirectly (except as described in other subsections of this definition) sells, grants, conveys or relinquishes
its direct or indirect interest in any Real Estate Related Loans or portion thereof (including with respect to any Real Estate
Related Loan, all payments thereunder or in satisfaction thereof other than regularly scheduled interest payments) and any event
which gives rise to a significant amount of insurance proceeds or similar awards; or (v) the Company or the Operating Partnership
directly or indirectly (except as described in other subsections of this definition) sells, grants, transfers, conveys, or relinquishes
its direct or indirect ownership of any other asset not previously described in this definition or any portion thereof, but not
including any transaction or series of transactions specified in clauses (i) through (v) above in which the proceeds of such transaction
or series of transactions are reinvested by the Company in one or more assets within 180 days thereafter.


 


“Securities Act” means
the Securities Act of 1933, as amended from time to time, or any successor statute thereto. Reference to any provision of the Securities
Act shall mean such provision as in effect from time to time, as the same may be amended, and any successor provision thereto,
as interpreted by any applicable regulations as in effect from time to time.


 


“Selling Commission”
means the fee payable to the Dealer Manager and reallowable to Soliciting Dealers with respect to Shares sold by them in a Primary
Offering.


 


“Shares” means the
Institutional Shares and Retail Shares.


 


“Soliciting Dealers”
means broker-dealers that are members of FINRA, or that are exempt from broker-dealer registration, and that, in either case, have
executed soliciting dealer or other agreements with the Dealer Manager to sell Shares.


 


“Sponsor” means AR
Capital, LLC, a Delaware limited liability company.


 


“Stockholders” means
the holders of record of the Shares as maintained on the books and records of the Company or its transfer agent.


 


“Termination Date”
means the date of termination of this Agreement.


 


“Total Operating Expenses”
has the meaning set forth in the Articles of Incorporation. The definition of” Total Operating Expenses” set forth
above is intended to encompass only those expenses which are required to be treated as Total Operating Expenses under the NASAA
REIT Guidelines. As a result, and notwithstanding the definition set forth above, any expense of the Company which is not part
of Total Operating Expenses under the NASAA REIT Guidelines shall not be treated as part of Total Operating Expenses for purposes
hereof.


 




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“Valuation Guidelines”
means the valuation guidelines adopted by the Board, as may be amended from time to time.


 


“2%/25% Guidelines”
has the meaning set forth in Section 13.


 


2. APPOINTMENT. The Company and the Operating
Partnership hereby appoint the Advisor to serve as their advisor to perform the services set forth herein on the terms and subject
to the conditions set forth in this Agreement and subject to the supervision of the Board, and the Advisor hereby accepts such
appointment.


 


3. DUTIES OF THE ADVISOR. The
Advisor will use its reasonable best efforts to present to the Company and the Operating Partnership potential investment opportunities
and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Company
as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the
Board and consistent with the provisions of the Articles of Incorporation, By-laws and the Operating Partnership Agreement, the
Advisor, directly or indirectly, will:


 


(a) serve as the Company’s and the Operating
Partnership’s investment and financial advisor;


 


(b) provide the daily management for the Company
and the Operating Partnership and perform and supervise the various administrative functions necessary for the day-to-day management
of the operations of the Company and the Operating Partnership;


 


(c) investigate, select and, on behalf of the
Company and the Operating Partnership, engage and conduct business with and supervise the performance of such Persons as the Advisor
deems necessary to the proper performance of its obligations hereunder (including consultants, accountants, correspondents, lenders,
technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for
collection, insurers, insurance agents, banks, builders, developers, property owners, property managers, real estate management
companies, real estate operating companies, securities investment advisors, mortgagors, the registrar and the transfer agent and
any and all agents for any of the foregoing), including Affiliates of the Advisor and Persons acting in any other capacity deemed
by the Advisor necessary or desirable for the performance of any of the foregoing services (including entering into contracts in
the name of the Company and the Operating Partnership with any of the foregoing);


 


(d) consult with the officers and Directors
of the Company and assist the Directors in the formulation and implementation of the Company’s financial policies, and, as
necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment
objectives and policies of the Company and in connection with any borrowings proposed to be undertaken by the Company or the Operating
Partnership;


 


(e) subject to the provisions of Section
4, (i) participate in formulating an investment strategy and asset allocation framework; (ii) locate, analyze and select potential
Investments; (iii) structure and negotiate the terms and conditions of transactions pursuant to which acquisitions and dispositions
of Investments will be made; (iv) research, identify, review and recommend acquisitions and dispositions of Investments to the
Board and make Investments on behalf of the Company and the Operating Partnership in compliance with the investment objectives
and policies of the Company; (v) arrange for financing and refinancing and make other changes in the asset or capital structure
of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with, Investments; (vi) enter into leases and service
contracts for Real Estate Assets and, to the extent necessary, perform all other operational functions for the maintenance and
administration of such Real Estate Assets; (vii) actively oversee and manage Investments for purposes of meeting the Company’s
investment objectives and reviewing and analyzing financial information for each of the Investments and the overall portfolio;
(viii) select Joint Venture partners, structure corresponding agreements and oversee and monitor these relationships; (ix) oversee,
supervise and evaluate Affiliated and non-Affiliated property managers who perform services for the Company or the Operating Partnership;
(x) oversee Affiliated and non-Affiliated Persons with whom the Advisor contracts to perform certain of the services required to
be performed under this Agreement; (xi) manage accounting and other record-keeping functions for the Company and the Operating
Partnership, including reviewing and analyzing the capital and operating budgets for the Real Estate Assets and generating an annual
budget for the Company; (xii) recommend various liquidity events to the Board when appropriate; and (xiii) source and structure
Real Estate Related Loans;


 




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(f) upon request, provide the Board with periodic
reports regarding prospective investments;


 


(g) make investments in, and dispositions of,
Investments within the discretionary limits and authority as granted by the Board;


 


(h) negotiate on behalf of the Company and the
Operating Partnership with banks or other lenders for Loans to be made to the Company, the Operating Partnership or any of their
subsidiaries, and negotiate with investment banking firms and broker-dealers on behalf of the Company, the Operating Partnership
or any of their subsidiaries, or negotiate private sales of Shares or obtain Loans for the Company, the Operating Partnership or
any of their subsidiaries, but in no event in such a manner so that the Advisor shall be acting as broker-dealer or underwriter; provided, however,
that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility
of the Company, the Operating Partnership or any of their subsidiaries;


 


(i) obtain reports (which may, but are not required
to, be prepared by the Advisor or its Affiliates), where appropriate, concerning the value of Investments or contemplated investments
of the Company and the Operating Partnership;


 


(j) from time to time, or at any time reasonably
requested by the Board, make reports to the Board of its performance of services to the Company and the Operating Partnership under
this Agreement, including reports with respect to potential conflicts of interest involving the Advisor or any of its Affiliates;


 


(k) provide the Company and the Operating Partnership
with all necessary cash management services;


 


(l) deliver to, or maintain on behalf of, the
Company copies of all appraisals obtained in connection with the investments in any Real Estate Assets as may be required to be
obtained by the Board;


 


(m) notify the Board of all proposed material
transactions before they are completed;


 


(n) effect any private placement of OP Units,
tenancy-in-common (TIC) or other interests in Investments as may be approved by the Board;


 


(o) perform investor-relations and Stockholder
communications functions for the Company;


 


(p) render such services as may be reasonably
determined by the Board of Directors consistent with the terms and conditions herein;


 


(q) maintain the Company’s accounting
and other records and assist the Company in filing all reports required to be filed by it with the Securities and Exchange Commission,
the Internal Revenue Service and other regulatory agencies;


 


(r) do all things reasonably necessary to assure
its ability to render the services described in this Agreement;


 


(s) at the end of each Business Day, calculate
the NAV as provided in the Valuation Guidelines, and in connection therewith, obtain appraisals performed by the Independent Valuation
Advisors; and


 


(t) supervise one or more Independent Valuation
Advisors and, if and when necessary, recommend to the Board its replacement.


 


Notwithstanding the foregoing, or anything else
that may be to the contrary in this Agreement, the Advisor may delegate any of the foregoing duties to any Person so long as the
Advisor or its Affiliate remains responsible for the performance of the duties set forth in this Section 3.


 




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4. AUTHORITY OF ADVISOR.


 


(a) Pursuant to the terms of this Agreement
(including the restrictions included in this Section 4 and in Section 9), and subject to the continuing
and exclusive authority of the Board over the supervision of the Company, the Company, acting on the authority of the Board of
Directors, hereby delegates to the Advisor the authority to perform the services described in Section 3.


 


(b) Notwithstanding anything herein to the contrary,
all Investments will require the prior approval of the Board, any particular Directors specified by the Board or any committee
of the Board specified by the Board, as the case may be.


 


(c) If a transaction requires approval by the
Independent Directors, the Advisor will deliver to the Independent Directors all documents and other information reasonably required
by them to evaluate properly the proposed transaction.


 


(d) The Board may, at any time upon the giving
of Notice to the Advisor, modify or revoke the authority set forth in this Section 4; provided, however,
that such modification or revocation shall be effective upon receipt by the Advisor and shall not be applicable to investment transactions
to which the Advisor has committed the Company or the Operating Partnership prior to the date of receipt by the Advisor of such
notification.


 


5. FIDUCIARY RELATIONSHIP. The
Advisor, as a result of its relationship with the Company and the Operating Partnership pursuant to this Agreement, has a fiduciary
responsibility and duty to the Company, the Stockholders and the partners in the Operating Partnership.


 


6. NO PARTNERSHIP OR JOINT VENTURE. Except
as provided in Section 10(g), the parties to this Agreement 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.


 


7. BANK ACCOUNTS. The Advisor
may establish and maintain one or more bank accounts in the name of the Company or the Operating Partnership and may collect and
deposit into any such account or accounts, and disburse from any such account or accounts, any money on behalf of the Company or
the Operating Partnership, under such terms and conditions as the Board may approve, provided that no funds shall be commingled
with the funds of the Advisor; and, upon request, the Advisor shall render appropriate accountings of such collections and payments
to the Board and to the auditors of the Company.


 


8. RECORDS; ACCESS. The Advisor
shall maintain appropriate records of all its activities hereunder and make such records available for inspection by the Directors
and by counsel, auditors and authorized agents of the Company, at any time and from time to time. The Advisor shall at all reasonable
times have access to the books and records of the Company and the Operating Partnership.


 


9. LIMITATIONS ON ACTIVITIES. Notwithstanding
anything herein to the contrary, the Advisor shall refrain from taking any action which, in its sole judgment, or in the sole judgment
of the Company, made in good faith, would (a) adversely affect the status of the Company as a REIT, unless the Board has determined
that REIT qualification is not in the best interests of the Company and its Stockholders, (b) subject the Company to regulation
under the Investment Company Act of 1940, as amended, or (c) violate any law, rule, regulation or statement of policy of any governmental
body or agency having jurisdiction over the Company, the Operating Partnership or the Shares, or otherwise not be permitted by
the Articles of Incorporation or By-laws, except if such action shall be ordered by the Board, in which case the Advisor shall
notify promptly the Board of the Advisor’s judgment of the potential impact of such action and shall refrain from taking
such action until it receives further clarification or instructions from the Board. In such event, the Advisor shall have no liability
for acting in accordance with the specific instructions of the Board so given.


 




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10. FEES.


 


(a) Acquisition Fee. Subject
to Section 10(b), the Company shall pay an Acquisition Fee to the Advisor or its Affiliates as compensation for services
rendered in connection with the investigation, selection and acquisition (by purchase, investment or exchange) of Investments.
If the Advisor is terminated without Cause pursuant to Section 17(a), the Advisor or its Affiliates shall be entitled
to an Acquisition Fee for any Investments acquired after the Termination Date for which a contract to acquire any such Investment
had been entered into at or prior to the Termination Date. The total Acquisition Fee payable to the Advisor or its Affiliates shall
equal one percent (1.0%) of the reimbursement of acquisition expenses. The purchase price of the Real Estate Assets shall equal
the amount Contract Purchase Price of each Investment. The purchase price allocable for an Investment held through
a Joint Venture shall equal the product of (i) the Contract Purchase Price of the Investment and (ii) the direct or indirect ownership
percentage in the Joint Venture held directly or indirectly by the Company or the Operating Partnership. For purposes of this Section
10(a), “ownership percentage” shall be the percentage of capital stock, membership interests, partnership interests
or other equity interests held by the Company or the Operating Partnership, without regard to classification of such equity interests.
The Company shall pay to the Advisor or its Affiliates the Acquisition Fee promptly upon the closing of the Investment and shall
cover services rendered by the Advisor or its Affiliates until such time as a letter of intent to purchase such Investment has
been submitted to the seller by the Advisor and the Advisor has presented a detailed investment memorandum to the Board of Directors
for approval. In addition, if during the period ending two years after the close of the initial Offering, the Company sells an
Investment and then reinvests in other Investments, the Company will pay to the Advisor or its Affiliates one percent
(1.0%) of the Contract Purchase Price of the Investments.


 


(b) Limitation on Total Acquisition Fees
and Acquisition Expenses.


 


(i) The total of all “Acquisition
Fees” (as defined in the Articles of Incorporation) and Acquisition Expenses payable in connection with the Company’s
total portfolio of Investments and reinvestments, if any, shall be reasonable and shall not exceed an amount equal to four and
one-half percent (4.5%) of the Contract Purchase Price of the Company’s total portfolio of Investments or four and one-half
percent (4.5%) of the amount advanced for the Company’s total portfolio of Investments; provided, however, that
once all the proceeds from the initial Offering have been fully invested, the total of all Acquisition Fees shall not exceed one
and one-half percent (1.5%) of the Contract Purchase Price of all the Investments acquired.


 


(ii) In accordance with the Articles
of Incorporation, the total of all Acquisition Fees and Acquisition Expenses payable in connection with any Investment or any reinvestment
shall be reasonable and shall not exceed an amount equal to four and one-half percent (4.5%) of the Contract Purchase Price of
the Investment or four and one-half percent (4.5%) of the amount advanced for any Investment; provided, further, however,
that a majority of the Directors (including a majority of the Independent Directors) not otherwise interested in the transaction
may approve fees and expenses in excess of these limits if they determine the transaction to be commercially competitive, fair
and reasonable to the Company.


 


(c) Real Estate Commission. In
connection with a Sale of a Real Estate Asset in which the Advisor or any Affiliate of the Advisor provides a substantial amount
of services, as determined by the Independent Directors, the Company shall pay to the Advisor or its assignees a Real Estate Commission
up to the lesser of (i) two percent (2.0%) of the Contract Sales Price of such Real Estate Asset or (ii) one-half of the Competitive
Real Estate Commission paid if a non-Affiliate broker is also involved; provided, however , that in no event may the Real Estate
Commission paid to the Advisor, its Affiliates and non-Affiliates, exceed the lesser of six percent (6.0%) of the Contract Sales
Price and a Competitive Real Estate Commission.


 


(d) Asset Management Fee. The
Company shall pay an Asset Management Fee to the Advisor or its assignees as compensation for services rendered in connection with
the management of the Company’s assets in an amount equal to 1.0% per annum, payable on the first business day of each month
for the respective current month in the amount of 0.0625% of the monthly average of daily NAV for the preceding monthly period.
The Asset Management Fee will be reduced to the extent that NAREIT FFO, as adjusted, during the six months ending on the last day
of the calendar quarter immediately preceding the date that such Asset Management Fee is payable, is less than the Distributions
paid with respect to such six month period. For purposes of this determination, NAREIT FFO, as adjusted, is NAREIT FFO adjusted
to (i) include acquisition fees and related expenses which is deducted in computing NAREIT FFO; and (ii) include non-cash restricted
stock grant amortization, if any, which is deducted in computing NAREIT FFO.


 




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(e) Subordinated Performance Fee.
The Company may pay an Annual Subordinated Performance Fee to the Advisor calculated on the basis of the total return to Stockholders,
payable monthly in arrears in any year in which the Company’s total return on Stockholders’ capital contributions exceeds
six percent (6%) per annum. In such year, the Advisor will be paid fifteen percent (15%) of the excess total return, not to exceed
ten percent (10%) of the aggregate total return for such year. This fee will only be payable upon the sale of assets
or other event which results in the Company’s total return on Stockholders’ Capital contributions exceeding six percent
(6%) per annum.


 


(f) Payment of Fees. In
connection with the Acquisition Fee, Real Estate Commission and Annual Subordinated Performance Fee, the Company shall pay such
fees to the Advisor or its assignees in cash or in Shares, or a combination of both, the form of payment to be determined in the
sole discretion of the Advisor. The Asset Management Fee shall be payable, at the discretion of the Board of Directors, in cash,
Shares or grants of restricted Shares, or any combination thereof. For the purposes of the payment of any fees in Shares, prior
to the end of the escrow period and the acquisition of the Company’s first Real Estate Asset, each Share shall be valued
at the per share offering price of our Shares in the initial Offering minus the maximum Selling Commissions, Platform Fees and
Dealer Manager Fee allowed in the initial Offering. Following the escrow period and the acquisition of the Company’s first
Real Estate Asset, each Share shall be valued using NAV; provided, however, that in the case of Asset Management
Fees payable in grants of restricted shares, each Share shall be valued in accordance with the provisions of the equity incentive
plan of the Company pursuant to which such grants are to be made.


 


(g) Exclusion of Certain Transactions.


 


(i) If the Company or the Operating
Partnership shall propose to enter into any transaction in which the Advisor, any Affiliate of the Advisor or any of the Advisor’s
directors or officers has a direct or indirect interest, then such transaction shall be approved by a majority of the Board not
otherwise interested in such transaction, including a majority of the Independent Directors.


 


(ii) If the Board elects to internalize
any management services provided by the Advisor, neither the Company nor the Operating Partnership shall pay any compensation or
other remuneration to the Advisor or its Affiliates in connection with the internalization transaction; provided, that nothing
in this Section 10(g) shall create any right to (x) any assets, intellectual property, personnel or pipeline of assets of the Advisor
or its Affiliates or (y) terminate the Agreement other than as set forth in Section 17.


 


(h) Limitation on Insourced Acquisition
Expenses.


 


(i) The total of all Insourced Acquisition
Expenses with respect to any Investment shall initially be fixed at, and shall not exceed, 0.50% of the Contract Purchase Price
of the Investment or 0.50% of the amount advanced for an Investment, which the Company shall pay to the Advisor or its Affiliate
at the closing of each Investment. For the avoidance of doubt, no payment in respect of Insourced Acquisition Expenses shall be
made unless the Advisor or its Affiliates shall have performed services related to selecting, evaluating and acquiring an Investment,
regardless of whether such Investment is ultimately acquired.


 


(ii) The total of all Insourced Acquisition
Expenses for any calendar year shall initially be fixed at, and shall not exceed, 0.50% of the Contract Purchase Price of the Investments
acquired during such period or 0.50% of the amounts advanced for the Investments made during such period (to be prorated for any
partial calendar year);provided, however, within a reasonable period of time following the end of each such calendar
year, the Company shall perform a Market Check and provide the results thereof to the Advisor within a reasonable period of time
and, if the result of the Market Check is that the projected amount of Acquisition Expenses that would be incurred if substantially
similar services with respect to a substantially similar amount of properties were to be provided by a Person other than the Advisor
or any of its Affiliates during the subsequent calendar year is lower than the amount of Insourced Acquisition Expenses paid to
the Advisor or its Affiliates during the previous calendar year, either (A) the Advisor shall agree to reduce the cap on the Insourced
Acquisition Expenses until the next Market Check such that the cap on Insourced Acquisition Expenses does not exceed the projected
amount of Acquisition Expenses that would be incurred if substantially similar services with respect to a substantially similar
amount of properties were to be provided by a Person other than the Advisor or any of its Affiliates during the subsequent calendar
year or (B) the Company may outsource to a Person other than the Advisor or its Affiliate certain services previously provided
by the Advisor or its Affiliates until the next Market Check.


 




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11. EXPENSES.


 


(a) In addition to the compensation paid to
the Advisor pursuant to Section 10, the Company or the Operating Partnership shall pay directly or reimburse the Advisor
for all the expenses paid or incurred by the Advisor or its Affiliates in connection with the services it provides to the Company
and the Operating Partnership pursuant to this Agreement, including, the following:


 


(i) Organization and Offering Expenses,
including third-party due diligence fees related to the Primary Offering, as set forth in detailed and itemized invoices; provided,
however , that the Company shall not reimburse the Advisor to the extent such reimbursement would cause the total amount of Organization
and Offering Expenses paid by the Company and the Operating Partnership to exceed one and one-half percent (1.5%) of the Gross
Proceeds raised in all Primary Offerings;


 


(ii) Acquisition Expenses, subject
to the limitations set forth in Section 10(b), and Insourced Acquisition Expenses, subject to the limitations set forth
in Section 10(h);


 


(iii) the actual cost of goods and
services used by the Company and obtained from entities not Affiliated with the Advisor;


 


(iv) interest and other costs for
Loans, including discounts, points and other similar fees;


 


(v) taxes and assessments on income
of the Company or Investments;


 


(vi) costs associated with insurance
required in connection with the business of the Company or by the Board;


 


(vii) expenses of managing and operating
Investments owned by the Company, whether payable to an Affiliate of the Company or a non-affiliated Person;


 


(viii) all expenses in connection
with payments to the Directors for attending meetings of the Board and Stockholders;


 


(ix) expenses associated with a Listing,
if applicable, or with the issuance and distribution of Shares, such as selling commissions and fees, advertising expenses, taxes,
legal and accounting fees, listing and registration fees;


 


(x) expenses connected with payments
of Distributions;


 


(xi) expenses of organizing, revising,
amending, converting, modifying or terminating the Company, the Operating Partnership or any subsidiary thereof or the Articles
of Incorporation, By-laws or governing documents of the Operating Partnership or any subsidiary of the Company or the Operating
Partnership;


 


(xii) expenses of maintaining communications
with Stockholders, including the cost of preparation, printing, and mailing annual reports and other Stockholder reports, proxy
statements and other reports required by governmental entities;


 


(xiii) administrative service expenses,
including all costs and expenses incurred by the Advisor or its Affiliates in fulfilling its duties hereunder, including reasonable
salaries and wages, benefits and overhead of all employees directly involved in the performance of such services; provided
, however , that no reimbursement shall be made for costs of such employees of the Advisor or its Affiliates to the extent
that such employees perform services for which the Advisor receives a separate fee; and


 




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(xiv) audit, accounting and legal
fees.


 


(b) Commencing upon the earlier to occur of
(i) the fifth fiscal quarter after the Company makes its first Investment and (ii) six (6) months after the commencement of the
initial Offering, expenses incurred by the Advisor on behalf of the Company and the Operating Partnership or in connection with
the services provided by the Advisor hereunder and payable pursuant to this Section 11 shall be reimbursed (excluding
Insourced Acquisition Expenses which shall be paid as described in Section 10(i)(i) of this Agreement), no less
than monthly, to the Advisor.


 


12. OTHER SERVICES. Should
the Board request that the Advisor or any director, officer or employee thereof render services for the Company and the Operating
Partnership other than set forth in Section 3, such services shall be separately compensated at such customary rates
and in such customary amounts as are agreed upon by the Advisor and the Board, including a majority of the Independent Directors,
subject to the limitations contained in the Articles of Incorporation, and shall not be deemed to be services pursuant to the terms
of this Agreement.


 


13. REIMBURSEMENT TO THE ADVISOR. The
Company shall not reimburse the Advisor at the end of any fiscal quarter in which Total Operating Expenses incurred by the Advisor
for the four (4) consecutive fiscal quarters then ended (the “Expense Year”) exceed (the “Excess Amount”)
the greater of two percent (2%) of Average Invested Assets or twenty-five percent (25%) of Net Income (the “2%/25% Guidelines”)
for such year. Any Excess Amount paid to the Advisor during a fiscal quarter shall be repaid to the Company or, at the option of
the Company, subtracted from the Total Operating Expenses reimbursed during the subsequent fiscal quarter. If there is an Excess
Amount in any Expense Year and the Independent Directors determine that such excess was justified based on unusual and nonrecurring
factors which they deem sufficient, then the Excess Amount may be carried over and included in Total Operating Expenses in subsequent
Expense Years and reimbursed to the Advisor in one or more of such years, provided that there shall be sent to the Stockholders
a written disclosure of such fact, together with an explanation of the factors the Independent Directors considered in determining
that such excess expenses were justified. Such determination shall be reflected in the minutes of the meetings of the Board. All
figures used in the foregoing computation shall be determined in accordance with GAAP applied on a consistent basis.


 


14. OTHER ACTIVITIES OF THE ADVISOR. Except
as set forth in this Section 14, nothing herein contained shall prevent the Advisor or any of its Affiliates from engaging
in or earning fees from other activities, including the rendering of advice to other Persons (including other REITs) and the management
of other programs advised, sponsored or organized by the Sponsor or its Affiliates; nor shall this Agreement limit or restrict
the right of any director, officer, member, partner, employee or stockholder of the Advisor or any of its Affiliates to engage
in or earn fees from any other business or to render services of any kind to any other Person and earn fees for rendering such
services; provided, however , that the Advisor must devote sufficient resources to the Company’s business to discharge its
obligations to the Company under this Agreement. The Advisor may, with respect to any investment in which the Company is a participant,
also render advice and service to each and every other participant therein, and earn fees for rendering such advice and service.
Specifically, it is contemplated that the Company may enter into Joint Ventures or other similar co-investment arrangements with
certain Persons, and pursuant to the agreements governing such Joint Ventures or arrangements, the Advisor may be engaged to provide
advice and service to such Persons, in which case the Advisor will earn fees for rendering such advice and service.


 


The Advisor shall report to the Board the existence
of any condition or circumstance, existing or anticipated, of which it has knowledge, which creates or could create a conflict
of interest between the Advisor’s obligations to the Company and its obligations to or its interest in any other Person.
If the Advisor, Director or Affiliates thereof have sponsored other investment programs with similar investment objectives which
have investment funds available at the same time as the Company, the Advisor shall inform the Board of the method to be applied
by the Advisor in allocating investment opportunities among the Company and competing investment entities and shall provide regular
updates to the Board of the investment opportunities provided by the Advisor to competing programs in order for the Board (including
the Independent Directors) to fulfill its duty to ensure that the Advisor and its Affiliates use their reasonable best efforts
to apply such method fairly to the Company.


 




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15. THE AMERICAN REALTY CAPITAL NAME. The
Advisor and its Affiliates have or may have a proprietary interest in the names “American Realty Capital,” “ARC”
and “AR Capital.” The Advisor hereby grants to the Company, to the extent of any proprietary interest the Advisor may
have in any of the names “American Realty Capital,” “ARC” and “AR Capital,” a non-transferable,
non-assignable, non-exclusive, royalty-free right and license to use the names “American Realty Capital,” “ARC”
and “AR Capital” during the term of this Agreement. The Company agrees that the Advisor and its Affiliates will have
the right to approve of any use by the Company of the names “American Realty Capital,” “ARC” and “AR
Capital,” such approval not to be unreasonably withheld or delayed. Accordingly, and in recognition of this right, if at
any time the Company ceases to retain the Advisor or one of its Affiliates to perform advisory services for the Company, the Company
will, promptly after receipt of written request from the Advisor, cease to conduct business under or use the names “American
Realty Capital,” “ARC” and “AR Capital” or any derivative thereof and the Company shall change its
name and the names of any of its subsidiaries to a name that does not contain the names “American Realty Capital,”
“ARC” and “AR Capital” or any other word or words that might, in the reasonable discretion of the Advisor,
be susceptible of indication of some form of relationship between the Company and the Advisor or any its Affiliates. At such time,
the Company will also make any changes to any trademarks, servicemarks or other marks necessary to remove any references to the
words “American Realty Capital,” “ARC” and “AR Capital.” Consistent with the foregoing, it
is specifically recognized that the Advisor or one or more of its Affiliates has in the past and may in the future organize, sponsor
or otherwise permit to exist other investment vehicles (including vehicles for investment in real estate) and financial and service
organizations having any of the names “American Realty Capital,” “ARC” and “AR Capital” as
a part of their name, all without the need for any consent (and without the right to object thereto) by the Company. Neither the
Advisor nor any of its Affiliates makes any representation or warranty, express or implied, with respect to the names “American
Realty Capital,” “ARC” and “AR Capital” licensed hereunder or the use thereof (including without
limitation as to whether the use of the names “American Realty Capital,” “ARC” and “AR “Capital”
will be free from infringement of the intellectual property rights of third parties. Notwithstanding the preceding, the Advisor
represents and warrants that it is not aware of any pending claims or litigation or of any claims threatened in writing regarding
the use or ownership of the names “American Realty Capital,” “ARC” and “AR Capital.”


 


16. TERM OF AGREEMENT. This
Agreement shall continue in force for a period of one year from the date hereof. Thereafter, the term may be renewed for an unlimited
number of successive one-year terms upon mutual consent of the parties.


 


17. TERMINATION BY THE PARTIES. This
Agreement may be terminated upon sixty (60) days’ written notice (a) by the Independent Directors of the Company or the
Advisor, without Cause and without penalty, (b) by the Advisor for Good Reason, or (c) by the Advisor upon a Change of Control.
The provisions of Sections 19 through 31 of this Agreement shall survive termination of this
Agreement.


 


18. ASSIGNMENT TO AN AFFILIATE. This
Agreement may be assigned by the Advisor to an Affiliate with the approval of a majority of the Directors (including a majority
of the Independent Directors). The Advisor may assign any rights to receive fees or other payments under this Agreement to any
Person without obtaining the approval of the Directors. This Agreement shall not be assigned by the Company or the Operating Partnership
without the consent of the Advisor, except in the case of an assignment by the Company or the Operating Partnership to a Person
which is a successor to all the assets, rights and obligations of the Company or the Operating Partnership, in which case such
successor Person shall be bound hereunder and by the terms of said assignment in the same manner as the Company or the Operating
Partnership, as applicable, is bound by this Agreement.


 


19. PAYMENTS TO AND DUTIES OF ADVISOR UPON
TERMINATION.


 


(a) Amounts Owed. After
the Termination Date, the Advisor shall be entitled to receive from the Company or the Operating Partnership within thirty (30)
days after the effective date of such termination all amounts then accrued and owing to the Advisor, including all its interest
in the Company’s income, losses, distributions and capital by payment of an amount equal to the then-present fair market
value of the Advisor’s interest, subject to the 2%/25% Guidelines to the extent applicable.


 


(b) Advisor’s Duties. The
Advisor shall promptly upon termination of this Agreement:


 


(i) pay over to the Company and the
Operating Partnership all money collected and held for the account of the Company and the Operating Partnership pursuant to this
Agreement, after deducting any accrued compensation and reimbursement for its expenses to which it is then entitled;


 




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(ii) deliver to the Board a full accounting,
including a statement showing all payments collected by it and a statement of all money held by it, covering the period following
the date of the last accounting furnished to the Board;


 


(iii) deliver to the Board all assets,
including all Investments, and documents of the Company and the Operating Partnership then in the custody of the Advisor; and


 


(iv) cooperate with the Company and
the Operating Partnership to provide an orderly management transition.


 


20. INCORPORATION OF THE ARTICLES OF INCORPORATION
AND THE OPERATING PARTNERSHIP AGREEMENT. To the extent that the Articles of Incorporation or the Operating 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. INDEMNIFICATION BY THE COMPANY AND THE
OPERATING PARTNERSHIP.


 


(a) The Company and the Operating Partnership,
jointly and severally, shall indemnify and hold harmless the Advisor and its Affiliates, as well as their respective officers,
directors, equity holders, members, partners, stockholders, other equity holders and employees (collectively, the “Indemnitees,”
and each, an “Indemnitee”), from and against all losses, claims, damages, losses, joint or several, expenses (including
reasonable attorneys’ fees and other legal fees and expenses), judgments, fines, settlements, and other amounts (collectively,
“Losses,” and each, a “Loss”) arising in the performance of their duties hereunder, including reasonable
attorneys’ fees, to the extent such Losses are not fully reimbursed by insurance, and to the extent that such indemnification
would not be inconsistent with the laws of the State of New York, the Articles of Incorporation or the provisions of Section
II.G of the NASAA REIT Guidelines. Notwithstanding the foregoing, the Company and the Operating Partnership shall not
provide for indemnification of an Indemnitee for any Loss suffered by such Indemnitee, nor shall they provide that an Indemnitee
be held harmless for any Loss suffered by the Company and the Operating Partnership, unless all the following conditions are met:


 


(i) the Indemnitee has determined,
in good faith, that the course of conduct that caused the loss or liability was in the best interest of the Company and the Operating
Partnership;


 


(ii) the Indemnitee was acting on
behalf of, or performing services for, the Company or the Operating Partnership;


 


(iii) such Loss was not the result
of negligence or willful misconduct by the Indemnitee; and


 


(iv) such indemnification or agreement
to hold harmless is recoverable only out of the Company’s net assets and not from the Stockholders.


 


(b) Notwithstanding the foregoing, an Indemnitee
shall not be indemnified by the Company and the Operating Partnership for any Losses arising from or out of an alleged violation
of federal or state securities laws by such Indemnitee 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 Indemnitee;


 


(ii) such claims have been dismissed
with prejudice on the merits by a court of competent jurisdiction as to the Indemnitee; or


 


(iii) a court of competent jurisdiction
approves a settlement of the claims against the Indemnitee and finds that indemnification of the settlement and the related costs
should be made, and the court considering the request for indemnification has been advised of the position of the Securities and
Exchange Commission and of the published position of any state securities regulatory authority in which securities of the Company
or the Operating Partnership were offered or sold as to indemnification for violation of securities laws.


 




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(c) In addition, the advancement of the Company’s
or the Operating Partnership’s funds to an Indemnitee 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 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 Company or the Operating Partnership;


 


(ii) the legal action is initiated
by a third party who is not a Stockholder or the legal action is initiated by a Stockholder acting in such Stockholder’s
capacity as such and a court of competent jurisdiction specifically approves such advancement; and


 


(iii) the Indemnitee undertakes to
repay the advanced funds to the Company or the Operating Partnership, together with the applicable legal rate of interest thereon,
in cases in which such Indemnitee is found not to be entitled to indemnification.


 


22. INDEMNIFICATION BY ADVISOR. The
Advisor shall indemnify and hold harmless the Company and the Operating Partnership from Losses, including reasonable attorneys’
fees to the extent that such Losses are not fully reimbursed by insurance and are incurred by reason of the Advisor’s bad
faith, fraud, willful misfeasance, intentional misconduct, gross negligence or reckless disregard of its duties; provided, however
, that the Advisor shall not be held responsible for any action of the Board in following or declining to follow any advice or
recommendation given by the Advisor..


 


23. NOTICES. Any notice,
report or other communication (each a “Notice”) required or permitted to be given hereunder shall be in writing unless
some other method of giving such Notice is required by the Articles of Incorporation, the By-laws, and shall be given by being
delivered by hand, by courier or overnight carrier or by registered or certified mail to the addresses set forth below:


 


	To the Company:	American Realty Capital Daily Net Asset Value Trust, Inc.
	 	405 Park Avenue
	 	New York, New York 10022
	 	Attention:  Chief Executive Officer
	 	 
	 	with a copy to:
	 	 
	 	Proskauer Rose LLP
	 	Eleven Times Square
	 	New York, New York 10036
	 	Attention:  Peter M. Fass, Esq.


 


	To the Operating Partnership:	American Realty Capital Operating Partnership II, L.P.
	 	c/o American Realty Capital Daily Net Asset Value Trust, Inc., its General Partner
	 	405 Park Avenue
	 	New York, New York 10022
	 	Attention:  Chief Executive Officer
	 	 
	 	with a copy to:
	 	 
	 	Proskauer Rose LLP
	 	Eleven Times Square
	 	New York, New York 10036
	 	Attention:  Peter M. Fass, Esq.


 




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	To the Advisor:	American Realty Capital Advisors II, LLC
	 	405 Park Avenue
	 	New York, New York 10022
	 	Attention:  Chief Executive Officer
	 	 
	 	with a copy to:
	 	 
	 	RCS Capital Corporation
	 	405 Park Ave.
	 	New York, New York 10022
	 	Attention:  General Counsel


 


Any party may at any time give Notice in writing to the other parties
of a change in its address for the purposes of this Section 23.


 


24. MODIFICATION. This Agreement
shall not be amended, supplemented, terminated, or discharged, in whole or in part, except by an instrument in writing signed by
the parties hereto, or their respective successors or assignees.


 


25. SEVERABILITY. The provisions
of this Agreement are independent of and severable from each other, and no provision shall be affected or rendered invalid or unenforceable
by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.


 


26. GOVERNING LAW. The provisions
of this Agreement shall be construed and interpreted in accordance with the laws of the State of New York as at the time in effect,
without regard to the principles of conflicts of laws thereof.


 


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. The express terms hereof control and supersede any course of
performance or usage of the trade inconsistent with any of the terms hereof.


 


28. NO WAIVER. Neither the
failure nor any delay on the part 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 occurrence.
No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.


 


29. PRONOUNS AND PLURALS. Whenever
the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.


 


30. HEADINGS. The titles
of sections and subsections contained in this Agreement are for convenience only, and they neither form a part of this Agreement
nor are they to be used in the construction or interpretation hereof.


 


31. EXECUTION IN COUNTERPARTS. This
Agreement may be executed (including by facsimile transmission) with counterpart signature pages or in any number of counterparts,
each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together
constitute one and the same instrument.


 


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    	17



    	 



    

 


IN WITNESS WHEREOF, the undersigned have executed
this Agreement as of the date first written above.


 


	 	AMERICAN REALTY CAPITAL DAILY NET ASSET VALUE TRUST,
    INC.
	 	 	 
	 	By:	/s/ William M. Kahane
	 	Name:	William M. Kahane
	 	Title:	Chief Executive Officer
	 	 	 
	 	AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP II, L.P.
	 	 	 
	 	By:   American Realty Capital Daily Net Asset
    Value Trust, Inc.
	 	 	 
	 	 	its General Partner
	 	 	 
	 	By:	/s/ William M. Kahane
	 	Name:	William M. Kahane
	 	Title:	Chief Executive Officer
	 	 	 
	 	AMERICAN REALTY CAPITAL ADVISORS II, LLC
	 	 	 
	 	By:   American Realty Capital Trust II Special
    Limited Partner, LLC
	 	 	 
	 	 	its Member
	 	 	 
	 	By:   AR Capital, LLC
	 	 	 
	 	 	its Managing Member
	 	 	 
	 	By:	/s/ William M. Kahane
	 	Name:	William M. Kahane
	 	Title:	Authorized Signatory