Exhibit 10.2.1


 


FIRST AMENDMENT TO







ADVISORY AGREEMENT









This FIRST AMENDMENT TO ADVISORY AGREEMENT is entered into as of June 23, 2011, among American Realty Capital Trust III, Inc. (the “Company”), American Realty Capital Operating Partnership III, L.P. (the “OP”) and American Realty Capital Advisors III, LLC (the “Advisor”).







RECITALS







WHEREAS, the Company, the OP and the Advisor entered into that certain Advisory Agreement (the “Advisory Agreement”), dated as of March 31, 2011; and







WHEREAS, pursuant to Section 24 of the Advisory Agreement, the Company, the OP and the Advisor desire to make certain amendments to the Advisory Agreement.







NOW, THEREFORE, in consideration of the premises made hereunder, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:








	
  

	
1.

	
Amendment to Section 10(d) of the Advisory Agreement. Effective June 1, 2011, Section 10(d) of the Advisory Agreement is hereby replaced in its entirety with the following:












“(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 0.75% per annum of Average Invested Assets; provided, however, that the Asset Management Fee shall be reduced by any amounts payable as an Oversight Fee (as defined in the Management Agreement), such that the aggregate of the Asset Management Fee and the Oversight Fee does not exceed 0.75% per annum of Average Invested Assets. The Asset Management Fee is payable on the first business day of each month in the amount of 0.0625% of Average Invested Assets for the preceding monthly period. The Asset Management Fee will be reduced to the extent that funds from operations 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 declared with respect to such six month period. For purposes of this determination, FFO, as adjusted, is FFO adjusted to (i) include acquisition fees and related expenses which is deducted in computing FFO; (ii) include non-cash restricted stock grant amortization, if any, which is deducted in computing FFO; and (iii) include impairments of real estate related investments, if any (including properties, loans receivable and equity and debt investments) which is deducted in computing FFO.”








	
  

	
2.

	
Amendment to Section 10(f) of the Advisory Agreement. Effective June 1, 2011, Section 10(f) of the Advisory Agreement is hereby replaced in its entirety with the following:







 




  





  











  






 


“(f) Payment of Fees. In connection with the Acquisition Fee, Property Disposition Fee and Financing Coordination 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, (i) if at the applicable time an Offering is underway, each Share shall be valued at the per-share offering price of the Shares in such Offering minus the maximum selling commissions and dealer manager fee allowed in such Offering; and (ii) at all other times, each Share shall be valued by the Board in good faith (A) at the estimated value thereof, calculated in accordance with the provisions of NASD Rule 2340(c)(1) (or any successor or similar FINRA rule), or (B) if no such rule shall then exist, at the fair market value thereof; 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.”







[Signature page follows.]


 




  





  











  






 


IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this agreement as of the date first set forth above.


 



	  	
AMERICAN REALTY CAPITAL TRUST III, INC.


	  	  	  	  
	  	
By:

	
 /s/ Nicholas S. Schorsch

	  
	  	  	
Name: Nicholas S. Schorsch

	  
	  	  	
Title: Chief Executive Officer

	  
	  	  	  	  
	  	
AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP III, L.P.


	  	  	  	  
	  	
By: 

	
American Realty Capital Trust III, Inc.,

	  
	  	  	
its General Partner

	  
	  	  	  	  
	  	
By: 

	
  /s/ William M. Kahane

	  
	  	  	
Name: William M. Kahane

	  
	  	  	
Title: President

	  
	  	  	  	  
	  	
AMERICAN REALTY CAPITAL ADVISORS III, LLC


	  	  	  	  
	  	
By: 

	
American Realty Capital Trust III Special Limited


Partner, LLC


	  	  	
its Member

	  
	  	  	  	  
	  	
By: 

	
American Realty Capital II, LLC

	  
	  	  	
its Managing Member

	  
	  	  	  	  
	  	
By:

	
   /s/ William M. Kahane

	  
	  	  	
Name: William M. Kahane

	  
	  	  	
Title: President