EXHIBIT 10.1


 


EXECUTION VERSION


 





SECOND AMENDMENT TO


CREDIT AGREEMENT


 


THIS SECOND AMENDMENT
TO CREDIT AGREEMENT (this “Second Amendment”) is made and entered into as of this 16th day of April, 2012 by
and among AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (“Borrower”),
AMERICAN REALTY CAPITAL TRUST, INC., a Maryland corporation and the sole member of the sole general partner of Borrower (“Parent”),
the Lenders party hereto, and RBS CITIZENS, N.A., a national banking association, as Administrative Agent for the benefit of the
Lenders (in such capacity, the “Administrative Agent”), as L/C Issuer and as Swing Line Lender.


 


W I T N E S S E T H:


 


WHEREAS, Borrower,
Parent, the Administrative Agent and the Lenders are parties to a certain Credit Agreement dated as of August 17, 2011 (together
with any modifications and amendments, collectively, the “Credit Agreement”);


 


WHEREAS, Borrower has
requested that the Administrative Agent and the Lenders amend certain terms and conditions of the Credit Agreement and the other
Loan Documents to permit Borrower to enter into the Term Loan Agreement (as defined below); and


 


WHEREAS, the Administrative
Agent and the Lenders have agreed to so amend certain terms and conditions of the Credit Agreement and the other Loan Documents,
all on the terms and conditions set forth below in this Second Amendment.


 


NOW, THEREFORE, for
good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows:


 


		1.	Definitions. All capitalized undefined terms used in this Second Amendment shall have the
meanings ascribed thereto in the Credit Agreement, as amended hereby.



 


		2.	Amendments to Credit Agreement. The Credit Agreement is amended as of the Second Amendment
Effective Date (as defined below), as follows:



 


		a.	Section 1.01 of the Credit
                                                              Agreement is hereby amended by deleting the definition of “Borrowing
                                                              Base Asset Value Ratio”, “Borrowing Base
                                                              Debt Service Coverage Ratio”, “Incentive
                                                              Listing Fee”, “Implied Loan Amount”,
                                                              and “Subordination Agreement”
in their entirety therefrom and substituting the following in lieu thereof:



  


“Borrowing Base Asset
Value Ratio” means, as of any date of determination, the ratio of (a) Borrowing Base Asset Value to (b) the sum of
(x) the Total Outstandings plus (y) the Total Outstandings (as defined in the Term Loan Agreement) plus (z) the aggregate unsecured
Indebtedness (other than the Incentive Listing Fee Note) of the Consolidated Group.


 






    	 



    	 



    
 


 


“Borrowing Base Debt
Service Coverage Ratio” means, as of any date of determination, the ratio of (a) the aggregate Adjusted Borrowing
Base NOI with respect to the Borrowing Base Properties for the quarter most-recently ended for which financial statements are available
divided by (b) pro forma annual debt service on an amount equal to the sum of (x) Total Outstandings plus (y) Total Outstandings
(as defined in the Term Loan Agreement) plus (z) the aggregate unsecured Indebtedness (other than the Incentive Listing Fee Note)
of the Consolidated Group assuming a twenty five (25) year amortization and an interest rate equal to the greater of (i) seven
percent (7.0%) per annum, or (ii) the sum of (A) the most-recent rate published on such date in the United States Federal Reserve
Statistical Release (H.15) for ten (10) year Treasury Constant Maturities plus (B) three percent (3.0%).


 


“Incentive Listing
Fee Note” means the three-year convertible note to be issued in the amount of the Incentive Listing Fee, in form
reasonably satisfactory to the Administrative Agent and substantially on the terms previously disclosed to the Administrative
Agent, together with such other terms as are reasonably satisfactory to the Administrative Agent (it being understood and agreed
that the draft Incentive Listing Fee Note attached as Exhibit I to the Second Amendment is satisfactory).


 


“Implied Loan Amount”
means, as of any date of determination and without duplication, the amount of “hypothetical Outstanding Amount” plus
the Outstanding Amount (under and as used in the Term Loan Agreement) plus the aggregate unsecured Indebtedness (other than
the Incentive Listing Fee Note) of the Consolidated Group that would result, on a pro forma basis, in a Borrowing Base Debt Service
Coverage Ratio as of such date of determination equal to 1.50 to 1.0.


 


“Subordination Agreement”
means the Subordination Agreement, to be entered into substantially contemporaneously with the issuance of Incentive Listing Fee
Note, between the Administrative Agent, the administrative agent under the Term Loan Agreement and AR Capital in form and substance
satisfactory to the Administrative Agent (it being understood and agreed that the draft Subordination Agreement attached as Exhibit
II to the Second Amendment is satisfactory).


 


		b.	Section 1.01 of the Credit
                                                              Agreement is hereby further amended by deleting clause (viii)(B)
                                                              of the definition of “Consolidated EBITDA”
                                                              in its entirety therefrom and substituting the following in lieu
                                                              thereof:



 


“(B) the Tender Offer Transactions
(including, without limitation, the negotiation of and entry into the First Amendment) or (C) the negotiation and entry into the
Term Loan or any amendments to this Agreement or the Term Loan Agreement.”


 






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		c.	Section 1.01 of the Credit Agreement is hereby further amended by inserting the phrase “the
Intercreditor Agreement,” prior to the phrase “the Subordination Agreement” in the definition of “Loan
Documents”.



 


		d.	Section 1.01 of the Credit Agreement is hereby further amended by inserting in appropriate
alphabetical order the following new definitions:



 


“Intercreditor Agreement”
means that certain Intercreditor Agreement, dated as of the date hereof, by and among the Administrative Agent and the administrative
agent under the Term Loan Agreement in the form attached as Exhibit III to the Second Amendment.


 


“Second Amendment Effective
Date” means the “Second Amendment Effective Date” (as defined in the Second Amendment).


 


“Second Amendment”
means the Second Amendment to Credit Agreement, dated as of April 16, 2012, among Borrower, Parent, the Administrative Agent and
the Lenders.


 


“Term Loan Agreement”
means that certain Term Loan Agreement dated as of the Second Amendment Effective Date, among Borrower as borrower thereunder,
the Guarantor as a guarantor thereunder, Wells Fargo Bank, National Association, as Administrative Agent, certain lenders from
time to time party thereto, including any “Refinancing Debt Documents” (as defined in the Intercreditor Agreement).


 


		e.	Article I of the Credit Agreement
                                                              is hereby amended by inserting the following new Section 1.07
                                                              at the end thereof:



 


“1.07 Financial Standards.
All financial computations required of a Person under this Agreement shall be calculated without giving effect to any election
under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard
having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair
value”, as defined therein.”


 


		f.	Article VI of the Credit Agreement is hereby amended by inserting the following new Section
6.25 at the end thereof:



 


“6.25 Patriot Act and
Other Specified Laws.


 


(a)To the
extent applicable, each Loan Party is in compliance, in all material respects, with the (i) Trading with the Enemy Act, and each
of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V) and any other
enabling legislation or executive order relating thereto, and (ii) the Act. No part of the proceeds of the Loans will be used,
directly or indirectly, in violation in any material respect of the United States Foreign Corrupt Practices Act of 1977. No Loan
Party is engaged in or has engaged in any course of conduct that could reasonably be expected to subject any of its properties
to any Lien, seizure or other forfeiture under any criminal law, racketeer influenced and corrupt organizations or other similar
criminal laws. No Loan Party is named on the list of Specially Designated Nationals and Blocked Persons maintained by the United
States Department of Treasury Office of Foreign Assets Control.


 






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(b)No Loan
Party (i) is a Person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive
Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions prohibited by Section 2 of such Executive
Order, or, to the knowledge of the Borrower after due inquiry, is otherwise associated with any such Person in any manner that
violates such Section 2 and (iii) is a Person on the list of Specially Designated Nationals and Blocked Persons or subject to the
limitations or prohibitions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or
executive order.”


 


		g.	Section 7.13 of the Credit Agreement is hereby amended and restated in its entirety as follows:



 


“7.13 Maintenance of
Status. The Parent shall maintain at least one class of common shares which is subject to price quotations on The NASDAQ
Stock Market’s National Market System or having trading privileges on the New York Stock Exchange or any other national securities
exchange.”


 


		h.	Section 8.01(a) of the Credit
                                                              Agreement is hereby amended by inserting the following phrase prior
                                                              to the “;” at the end thereof:



 


“or any “Loan Document”
(or similar term) as defined in the Term Loan Agreement”


 


		i.	Section 8.11 of the Credit
                                                              Agreement of the Credit Agreement is hereby amended and restated
                                                              in its entirety as follows:



 


“8.11 Incentive Listing
Fee Note. The Parent shall not make cash payments under the Incentive Listing Fee Note in excess of the aggregate cash
payment amount permitted under the Term Loan Agreement, if applicable.”


 


		j.	Section 8.13 of the Credit Agreement is hereby amended by



 


		i.	amending and restating the parenthetical
                                                            at the end of Section 8.13(a) as follows:



 


“(other than in favor of
the Administrative Agent or the administrative agent (or equivalent person) under the Term Loan Agreement)”, and


 






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		ii.	amending and restating
                                                                               the parenthetical set forth in Section 8.13(d)
                                                                               as follows:



 


“(other than pursuant to
this Agreement or the Term Loan Agreement)”


 


		k.	Section 8.14(b) of the Credit Agreement is hereby amended by amending and restating the
parenthetical set forth therein as follows:



 


“(excluding Indebtedness under this Agreement
and the Term Loan Agreement)”


 


		l.	Section 9.01(f) of the Credit Agreement is hereby amended by inserting the following new
clause at the end thereof:



 


“(iii) there occurs an “Event
of Default” under and as defined in the Incentive Listing Fee Note and such “Event of Default” is not cured or
waived in writing within any applicable grace period; or”


 


		m.	Section 10.10(a) of the Credit Agreement is hereby amended by deleting the word “or”
prior to “(v)” where it appears therein, and inserting the following clause prior to the “;” at the end
thereof:



 


“or (vi) in accordance with the Intercreditor
Agreement”


 


		n.	Section 10.10 of the Credit
                                                              Agreement is hereby amended by inserting the following paragraphs
                                                              at the end thereof:



 


“In its
capacity, the Administrative Agent is a “representative” of the Lenders within the meaning of the term “secured
party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into
the Intercreditor Agreement and each of the Security Documents to which it is a party and to take all action contemplated by such
documents. Each Lender agrees that no Lender (other than the Administrative Agent) shall have the right individually to seek to
realize upon the security granted by any Security Document, it being understood and agreed that such rights and remedies may be
exercised solely by the Administrative Agent for the benefit of the Lenders upon the terms of the Security Documents. In the event
that any Collateral is hereafter pledged by any Person as collateral security for the Obligations, the Administrative Agent is
hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Lenders any Loan Documents necessary
or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Lenders.


 






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Upon any sale
or transfer of assets constituting Collateral which is permitted pursuant to Section 10.10(a)(ii), or consented to in writing
by the Required Lenders or all of the Lenders, as applicable, and upon at least five (5) Business Days’ prior written request
by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders
to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the
benefit of the Lenders herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i)
the Administrative Agent shall not be required to execute any such document on terms which, in the Administrative Agent’s
opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the
release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair
the Obligations or any Liens upon (or obligations of the Borrower or any Subsidiary in respect of) all interests retained by the
Borrower or any Subsidiary, including (without limitation) the proceeds of the sale, all of which, if applicable, shall continue
to constitute part of the Collateral.”


 


		3.	Amendments to Pledge Agreement.
                                                          The Pledge Agreement is amended as of the Second Amendment Effective
                                                          Date, as follows:



 


		a.	The Pledge Agreement is amended by inserting the following header on the first page thereof:



 


“NOTWITHSTANDING ANYTHING
HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO RBS CITIZENS, N.A., AS ADMINISTRATIVE AGENT, PURSUANT TO THIS
PLEDGE AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY RBS CITIZENS, N.A., AS ADMINISTRATIVE AGENT, HEREUNDER ARE SUBJECT
TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT, DATED AS OF APRIL 16, 2012 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME, THE “INTERCREDITOR AGREEMENT”), AMONG AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP, L.P., RBS CITIZENS,
N.A., AS AUTHORIZED REPRESENTATIVE FOR THE CREDIT AGREEMENT SECURED PARTIES, WELLS FARGO BANK, NATIONAL ASSOCIATION, AS AUTHORIZED
REPRESENTATIVE FOR THE TERM LOAN AGREEMENT SECURED PARTIES, AND CERTAIN OTHER PERSONS WHICH MAY BE OR BECOME PARTIES THERETO OR
BECOME BOUND THERETO FROM TIME TO TIME. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR AGREEMENT AND THIS
PLEDGE AGREEMENT, THE TERMS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.”


 






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		b.	Section 4(a)
                                                                                of the Pledge Agreement is amended and restated
                                                                                in its entirety as follows:



 


“Binding Obligation/ Perfection.
The pledge of the Collateral pursuant to this Agreement creates a valid Lien in the Collateral, securing the payment of the Secured
Obligations. Once financing statements covering the Collateral have been properly filed in the jurisdictions listed on Schedule
1 hereto, and, if applicable, the certificates or instruments representing the Collateral have been delivered to the Administrative
Agent, Administrative Agent’s Lien in the Collateral, for the benefit of the Secured Parties, will be fully perfected and
such Lien will constitute a first-priority Lien on such Collateral. Other than the financing statements with respect to this Agreement
and the Term Loan Agreement, there are no other financing statements covering any Collateral. The creation of the Lien in the Collateral
does not require the consent of any Person that has not been obtained.”


 


		c.	Section 5(a)(ii) of the Pledge Agreement is hereby amended and restated in its entirety
as follows:



 


“create or suffer to exist
any Lien upon or with respect to any of the Collateral (except for the Lien granted hereby or permitted under the Credit Agreement).”


 


		d.	The Pledge Agreement is amended by inserting the following new Section 24 at the end thereof:



 


“SECTION 24. INTERCREDITOR
AGREEMENT. Anything herein to the contrary notwithstanding, so long as any “Term Loan Agreement Obligations” (as
defined in the Intercreditor Agreement) remain outstanding, the liens and security interests securing the Secured Obligations hereunder
and the exercise of any right or remedy with respect thereto, are subject to the provisions of the Intercreditor Agreement. In
the event of any conflict between the terms of this Agreement and the terms of the Intercreditor Agreement, the terms of the Intercreditor
Agreement shall govern and control.”


 


		4.	Consent to Amendment of Subsidiary Guarantor Organization Documents. The Administrative
Agent and the Required Lenders hereby consent to the amendment of each of the Subsidiary Guarantor’s Limited Liability Company
Agreement, in substantially the form of the “First Amendment of Limited Liability Company of ________” attached hereto
as Exhibit IV.



 


		5.	Conditions to Effectiveness. This Second Amendment shall not be effective until each of
the following conditions precedent has been fulfilled to the satisfaction of the Administrative Agent (such date, the “Second
Amendment Effective Date”):



 


		a.	The Administrative Agent shall have received counterparts of this Second Amendment duly executed
and delivered by each of the parties hereto;



 






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		b.	the Administrative Agent shall have received a fully executed Intercreditor Agreement;



 


		c.	the Administrative Agent shall have received such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible Officers of each Loan Party party hereto, as Administrative Agent
may require; evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible
Officer in connection with the Second Amendment and the Intercreditor Agreement; and



 


		d.	the Administrative Agent shall have received such documents and certifications as the Administrative
Agent may reasonably require to evidence that each Loan Party party hereto is duly organized or formed and in good standing in
its jurisdiction of formation, except to the extent that failure to do so would not have a Material Adverse Effect.



 


		6.	Representations and Warranties. The representations and warranties of Borrower and each
other Loan Party, contained in Article VI of the Credit Agreement or any other Loan Document are true and correct in all
material respects (except to the extent that any such representation and warranty is qualified as to “materiality,”
“Material Adverse Effect” or similar language, in which case it shall be true and correct in all respects (after giving
effect to any such qualification)) on and as of the Second Amendment Effective Date; provided, if any such representations
and warranties specifically refer to an earlier date, they shall be true and correct in all material respects (except to the extent
that any such representation and warranty is qualified as to “materiality,” “Material Adverse Effect” or
similar language, in which case it shall be true and correct in all respects (after giving effect to any such qualification)) as
of such earlier date.



 


		7.	Limited Amendment; Ratification of Loan Documents. Except as specifically amended hereby,
the terms and conditions of the Credit Agreement and the other Loan Documents shall remain in full force and effect, and are hereby
ratified and affirmed in all respects. This Second Amendment shall not be deemed a waiver of, or consent to, or a modification
or amendment of, any other term or condition of the Credit Agreement or any other Loan Document, except as expressly set forth
herein.



 


		8.	Waiver of Claims. Each Loan Party and each Additional Guarantor acknowledges and agrees
that as of the date hereof, it does not have any claims, counterclaims, offsets, or defenses against the Bank directly or indirectly
relating to such Person’s relationship with, and/or the Obligations under, the Loan Documents, and to the extent that such
Loan Party currently has or ever had prior to the date hereof any such claims, counterclaims, offsets, or defenses against the
Bank, such Loan Party affirmatively WAIVES the same and, on behalf of itself and its representatives, successors and assigns, hereby
RELEASES, and forever discharges the Bank and its officers, directors, agents, servants, attorneys, and employees, and their respective
representatives, successors and assigns, of, to, and from all known debts, demands, actions, suits, accounts, covenants, contracts,
agreements, damages, and any and all claims, demands, or liabilities whatsoever, of every name and nature, both at law and in equity
through the date hereof related to the same.



 






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		9.	Governing Law. This Second Amendment shall be governed by and construed in accordance with
the laws of the State of New York.



 


		10.	Miscellaneous. This Second Amendment may be executed in any number of counterparts, which
shall together constitute an entire original agreement, and shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. This Second Amendment expresses the entire understanding of the parties with respect
to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions
hereof. Any determination that any provision of this Second Amendment or any application hereof is invalid, illegal or unenforceable
in any respect and in any instance shall not affect the validity, legality, or enforceability of such provision in any other instance,
or the validity, legality, or enforceability of any other provisions of this Second Amendment. The Loan Parties represent and warrant
that they have consulted with independent legal counsel of their selection in connection herewith and are not relying on any representations
or warranties of the Administrative Agent or the Lenders or their counsel in entering into this Second Amendment.



 


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IN WITNESS WHEREOF, the parties hereto
have caused this Second Amendment to be duly executed as of the day and year first above written.


 


 


	 	BORROWER:
	 	 
	 	AMERICAN REALTY CAPITAL
	 	OPERATING PARTNERSHIP, L.P.,
	 	a Delaware limited partnership
	 	 
	 	By: 	/s/ William M. Kahane
	 	 	Name: William M. Kahane
Title: President



 







 


	 	PARENT:
	 	 
	 	AMERICAN REALTY CAPITAL TRUST,
	 	INC., a Maryland corporation
	 	 
	 	By: 	/s/ William M. Kahane
	 	 	Name: William M. Kahane
Title: President



 


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Second Amendment]



    	 



    	 	



    
 








	 	 
	 	RBS CITIZENS, N.A., as Administrative Agent,
	 	Swing Line Lender, L/C Issuer and as a Lender
	 	 
	 	By: 	/s/ Donald Woods
	 	 	Name: Donald Woods
Title: SVP



 


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Second Amendment]



    	 



    	 	



    
 











	 	 
	 	GOLDMAN SACHS BANK, USA,
	 	as a Lender
	 	 
	 	By: 	/s/ Michelle Latzoni
	 	 	Name: Michelle Latzoni
Title: Authorized Signatory



 


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Second Amendment]



    	 



    	 	



    
 














	 	 
	 	CAPITAL ONE, NATIONAL BANK,
	 	as a Lender
	 	 
	 	By: 	/s/ Patricia Visone
	 	 	Name: Patricia Visone
Title: Vice President



 


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Second Amendment]



    	 



    	 	



    


















	 	 
	 	RAYMOND JAMES BANK, N.A.,
	 	as a Lender
	 	 
	 	By: 	/s/ James M. Armstrong
	 	 	Name: James M. Armstrong
Title: Senior Vice President



 


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Second Amendment]



    	 



    	 	



    
 


The
undersigned, American Realty Capital Trust, Inc., as Guarantor under that certain Parent Guaranty Agreement dated as of
August 17, 2011, hereby consents to the foregoing Second Amendment to Credit Agreement and acknowledges and agrees that the Parent
Guaranty Agreement executed by the undersigned dated as of August 17, 2011 remains in full force and effect.








	 	 
	 	AMERICAN REALTY CAPITAL TRUST,
	 	INC., a Maryland corporation
	 	 
	 	By: 	/s/ William M. Kahane
	 	 	Name: William M. Kahane
Title: President



 


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Second Amendment]



    	 



    	 	



    
 


Each
of the undersigned, as Guarantor under that certain Subsidiary Guaranty Agreement dated as of August 17, 2011 (as amended
and in effect from time to time) hereby consents to the foregoing Second Amendment to Credit Agreement and acknowledges and
agrees that the Subsidiary Guaranty Agreement executed by the undersigned remains in full force and effect.


 


[INSERT
BLOCK FOR SUBSIDIARY


GUARANTORS]


 


 





[Signature Page to
Second Amendment]



    	 



    	 	



    
 








	 	 
	 	By: 	/s/ William M. Kahane
	 	 	Name: William M. Kahane
Title: President



 


 


[Signature Page to
Second Amendment]



    	 



    	 	



    
 


EXHIBIT
I


 


Form
of Intercreditor Agreement


 






    	 



    	 	



    
 





EXHIBIT
II


 


Form
of Subordination Agreement


 






    	 



    	 	



    









EXHIBIT
III


 


Form
of Intercreditor Agreement


 






    	 



    	 	



    
 








EXHIBIT
IV


 


Form
of Amendment to Limited Liability Company Agreement


of Subsidiary
Guarantors