CONTRIBUTION AND EXCHANGE AGREEMENT


 


This CONTRIBUTION AND
EXCHANGE AGREEMENT (this “Agreement”), is made and entered into as of February 28, 2013, by and between American
Realty Capital Operating Partnership III, L.P., a Delaware limited partnership (the “Operating Partnership”),
American Realty Capital Trust III Special Limited Partner, LLC, a Delaware limited liability company (the “Special Limited
Partner”) and ARC Properties Operating Partnership, L.P., a Delaware limited partnership (the “Parent OP”).


 


WHEREAS, the Operating
Partnership is the operating subsidiary of American Realty Capital Trust III, Inc., a Maryland corporation (the “REIT”),
and the REIT is the sole general partner thereof.


 


WHEREAS, the Special
Limited Partner is a limited partner of the Operating Partnership and owns all of the “Special Limited Partner Interest”
in the Operating Partnership (the “SLP Interest”).


 


WHEREAS, ownership
of the SLP Interest entitles the Special Limited Partner to receive certain distributions from the Operating Partnership, including
a subordinated distribution of net sales proceeds (“Subordinated Distribution”) resulting from an “Investment
Liquidity Event” (as defined in the Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated
as of September 6, 2011, and as amended up to but not including the date hereof (the “Partnership Agreement”))
(an “Investment Liquidity Event”).


 


WHEREAS, the Operating
Partnership and the REIT are parties to that certain Agreement and Plan of Merger, dated as of December 14, 2012 (the “Merger
Agreement”), by and among the Operating Partnership, the REIT, American Realty Capital Properties, Inc., a Maryland corporation
(“Parent”), the Parent OP, which is the operating partnership of Parent, and Tiger Acquisition, LLC, a Delaware
limited liability company wholly-owned by Parent (“Merger Sub”), pursuant to which (x) the REIT will merge with
and into Merger Sub, with Merger Sub being the surviving entity, and (y) the Operating Partnership will merge with and into the
Parent OP, with the Parent OP being the surviving entity (the “Merged OP” and the mergers, collectively, the
“Mergers”).


 


WHEREAS, the Mergers
constitute an Investment Liquidity Event, as a result of which the Special Limited Partner will be entitled to receive a Subordinated
Distribution in respect of the SLP Interest in an amount equal to $98,359,915 (the “Subordinated Distribution Amount”).


 


WHEREAS, in order to
induce the parties to the Merger Agreement to enter into the Merger Agreement, the Operating Partnership and the Special Limited
Partner, pursuant to a side letter, dated as of December 14, 2012, between the REIT, the Operating Partnership, the Special Limited
Partner, American Realty Capital Advisors III, LLC, American Realty Capital Properties III, LLC and Parent, agreed that, in accordance
with Section 8.7(b) of the Partnership Agreement, the Special Limited Partner would contribute its SLP Interest to the Operating
Partnership in exchange for a number of OP Units in the Operating Partnership (“OP Units”) calculated in accordance
with Section 8.7(b) of the Partnership Agreement, which calculation is to be based on the Subordinated Distribution Amount (the
“Exchange”).


 


WHEREAS, in connection
with the consummation of the Mergers, the parties hereto desire to consummate the Exchange in accordance with the terms set forth
below.


 


NOW, THEREFORE, in
consideration of the foregoing and the representations, warranties, covenants and other terms contained in this Agreement, the
parties hereto, intending to be legally bound hereby, agree as follows:


 






    	1



    	 



    



 


ARTICLE
I.

CONTRIBUTION AND EXCHANGE


 


Section
1.1.CONTRIBUTION TRANSACTION. The Special Limited Partner hereby
agrees to assign, set over, and transfer to the Operating Partnership, absolutely and unconditionally and free and clear of
all pledges, claims, liens, charges, restrictions, exceptions, reservations, covenants and conditions, encumbrances and
security interests of any kind or nature whatsoever (“Liens”), all of its right, title and interest in and
to the SLP Interest, together with $750,000.00 in cash (the “Cash Consideration”), in exchange for the
consideration set forth in Section 1.2, and the Operating Partnership hereby agrees to redeem the SLP Interest.


 


Section
1.2.CONSIDERATION. The Special Limited Partner hereby
irrevocably agrees to accept, in exchange for the SLP Interest and the Cash Consideration, an amount of OP Units equivalent
to 7,318,356 “OP Units” of the Parent OP in accordance with the Merger Agreement.


 


Section
1.3.ISSUANCE OF OP UNITS. The Operating Partnership shall, in exchange
for the SLP Interest and the Cash Consideration contributed by the Special Limited Partner, issue to the Special Limited
Partner, an amount of OP Units equivalent
to 7,318,356 “OP Units” of the Parent OP in accordance with the Merger Agreement. No fractional OP Units shall be issued pursuant to this Agreement. If the formula for calculating
the number of OP Units issuable pursuant to this Agreement would require the issuance of a fractional OP Unit, the number of
OP Units which the Special Limited Partner shall be entitled to receive shall be rounded to the nearest whole number. The
Operating Partnership shall revise the Partnership Agreement to reflect the Special Limited Partner’s ownership of such
OP Units. Immediately thereafter, upon the consummation of the Mergers, the OP Units will be converted into “OP
Units” of the Parent OP in accordance with the Merger Agreement.


 


Section
1.4.TAX TREATMENT OF THE EXCHANGE. The parties hereto intend and agree to treat,
for U.S. federal income tax purposes, the contribution of the SLP Interest and the Cash Consideration in exchange for OP Units
effectuated pursuant to this Agreement as a contribution to a partnership pursuant to Section 721 of the Internal Revenue Code
of 1986, as amended, and no party shall maintain any position to the contrary on any tax return or otherwise. Furthermore, the
parties hereto intend and agree that (a) consistent with the definition of “Gross Asset Value” contained in the Partnership
Agreement, the contribution by the Special Limited Partner of the Cash Consideration in exchange for OP Units pursuant to the terms
of this Agreement is a “book-up” event pursuant to which the Gross Asset Value of the Operating Partnership’s
assets should be adjusted to reflect the relative economic interests of the Partners, and that such adjustment in Gross Asset Value
of the Operating Partnership’s assets shall result in a corresponding adjustment, if any, to the Capital Accounts of the
Partners including, for the avoidance of doubt, the Capital Account of the Special Limited Partner and the holder of Class B Units
and (b) such booked-up Capital Accounts of the Partners will be reflected in the books and records of the Merged OP.


 


ARTICLE
II.

REPRESENTATIONS AND WARRANTIES OF THE SPECIAL LIMITED PARTNER


 


The Special Limited
Partner hereby represents, warrants and agrees with the Operating Partnership and the Parent OP that:


 


Section
2.1.ORGANIZATION; AUTHORITY. The Special Limited Partner is a limited
liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. The Special
Limited Partner has all requisite power and authority to enter this Agreement and to carry out the transactions contemplated
hereby, and to own, lease or operate its property and to carry on its business as presently conducted and, to the extent
required under applicable law, is qualified to do business and is in good standing in each jurisdiction in which the nature
of its business or the character of its property make such qualification necessary, other than in such jurisdictions where
the failure to be so qualified would not have a material adverse effect on the financial condition or results of operations
of the Special Limited Partner.


 






    	2



    	 



    



 


Section
2.2.DUE AUTHORIZATION. The execution, delivery and performance of this Agreement
by the Special Limited Partner has been duly and validly authorized by all necessary action of the Special Limited Partner. This
Agreement and each agreement, document and instrument executed and delivered by or on behalf of the Special Limited Partner pursuant
to this Agreement constitute, or when executed and delivered will constitute, the legal, valid and binding obligation of the Special
Limited Partner, each enforceable against the Special Limited Partner in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors’ rights and general principles of equity.


 


Section
2.3.OWNERSHIP OF SLP INTEREST. The Special Limited Partner is the
record owner of the SLP Interest and has the power and authority to transfer, assign and convey to the Operating Partnership
the SLP Interest free and clear of any Liens. There are no rights, subscriptions, warrants, options, conversion rights,
preemptive rights, agreements, instruments or understandings of any kind outstanding (i) relating to the SLP Interest or (ii)
to purchase, transfer or otherwise acquire, or in any way encumber, any of the interests which comprise the SLP Interest or
any securities or obligations of any kind convertible into any of the interests which comprise the SLP Interest.


 


Section
2.4.CONSENTS AND APPROVALS. Except as shall have been satisfied on or
prior to the Closing Date, no consent, waiver, approval or authorization of, or filing with, any individual, partnership,
corporation, limited liability company, joint venture, association, trust, unincorporated organization or other entity, or a
government or agency or political subdivision thereof (each, a “Person”) or governmental authority or
under any applicable laws is required to be obtained by the Special Limited Partner in connection with the execution,
delivery and performance of this Agreement and the transactions contemplated hereby.


 


Section
2.5.NO VIOLATION. None of the execution, delivery or performance of
this Agreement, any agreement contemplated hereby between the parties to this Agreement and the transactions contemplated
hereby or thereby does or will, with or without the giving of notice, lapse of time, or both, violate, conflict with, result
in a breach of, or constitute a default under or give to others any right of termination, acceleration, cancellation or other
right under (a) any agreement, document or instrument to which the Special Limited Partner is a party or by which the Special
Limited Partner or the SLP Interest is bound, (b) any term or provision of any judgment, order, writ, injunction, or decree
binding on the Special Limited Partner, or (c) any provisions of the organizational or other formation or governing documents
or agreements of the Special Limited Partner.


 


ARTICLE
III.

REPRESENTATIONS AND WARRANTIES OF THE OPERATING PARTNERSHIP


 


The Operating Partnership
hereby represents, warrants and agrees with the Special Limited Partner and the Parent OP as follows:


 


Section
3.1.ORGANIZATION; AUTHORITY. The Operating Partnership is a limited
partnership duly organized, validly existing and in good standing under the laws of the State of Delaware. The Operating
Partnership has all requisite power and authority to enter this Agreement and to carry out the transactions contemplated
hereby, and to own, lease or operate its property and to carry on its business as presently conducted and, to the extent
required under applicable law, is qualified to do business and is in good standing in each jurisdiction in which the nature
of its business or the character of its property make such qualification necessary, other than in such jurisdictions where
the failure to be so qualified would not have a material adverse effect on the financial condition or results of operations
of the Operating Partnership.


 






    	3



    	 



    



 


Section
3.2.DUE AUTHORIZATION. The execution, delivery and performance of this Agreement
by the Operating Partnership have been duly and validly authorized by all necessary action of the Operating Partnership. This Agreement
and each agreement, document and instrument executed and delivered by or on behalf of the Operating Partnership pursuant to this
Agreement constitute, or when executed and delivered will constitute, the legal, valid and binding obligation of the Operating
Partnership, each enforceable against the Operating Partnership in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors’ rights and general principles of equity.


 


Section
3.3.CONSENTS AND APPROVALS. No consent, waiver, approval or
authorization of, or filing with, any Person or governmental authority or under any applicable laws is required to be
obtained by the Operating Partnership in connection with the execution, delivery and performance of this Agreement and the
transactions contemplated hereby.


 


Section
3.4.NO VIOLATION. None of the execution, delivery or performance of
this Agreement, any agreement contemplated hereby between the parties to this Agreement and the transactions contemplated
hereby between the parties to this Agreement does or will, with or without the giving of notice, lapse of time, or both,
violate, conflict with, result in a breach of, or constitute a default under (a) the organizational documents of the
Operating Partnership, (b) any term or provision of any judgment, order, writ, injunction, or decree binding on the Operating
Partnership, or (c) any other material agreement to which the Operating Partnership is a party.


 


Section
3.5.VALIDITY OF OP UNITS. The issuance of the OP Units to the Special
Limited Partner pursuant to this Agreement will have been duly authorized by the Operating Partnership and, when issued
against the consideration therefor, will be validly issued by the Operating Partnership, free and clear of all Liens (other
than Liens created by the Partnership Agreement).


 


ARTICLE
IV.

GENERAL PROVISIONS


 


Section
4.1.DEFINITIONS. Capitalized terms used herein that are not otherwise defined herein
shall have the meaning ascribed to them in the Partnership Agreement.


 


Section
4.2.COUNTERPARTS. This Agreement may be executed in counterparts, all
of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been
signed by each party and delivered to each other party.


 


Section
4.3.ENTIRE AGREEMENT; THIRD-PARTY BENEFICIARIES. This Agreement,
including, without limitation, the exhibits and schedules hereto, constitute the entire agreement and supersede each prior
agreement and understanding, whether written or oral, among the parties regarding the subject matter of this Agreement. This
Agreement is not intended to confer any rights or remedies on any Person other than the parties hereto.


 


Section
4.4.GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, regardless of any Laws that might otherwise govern under applicable
principles of conflicts of laws thereof.


 






    	4



    	 



    



 


Section
4.5.ASSIGNMENT. This Agreement shall be binding upon, and shall be
enforceable by and inure to the benefit of, the parties hereto and their respective heirs, legal representatives, successors
and assigns; provided, however, that this Agreement may not be assigned (including by operation of law) by either
party without the prior written consent of the other party and any attempted assignment without such consent shall be null
and void and of no force and effect.


 


Section
4.6.JURISDICTION. The parties hereto hereby (a) submit to the
exclusive jurisdiction of any state or federal court sitting in Borough of Manhattan, City of New York, State of New York,
with respect to any dispute arising out of this Agreement or any transaction contemplated hereby to the extent such courts
would have subject matter jurisdiction with respect to such dispute, and (b) irrevocably waive, and agree not to assert by
way of motion, defense, or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of
the above-named courts, that its property is exempt or immune from attachment or execution, that the action is brought in an
inconvenient forum, or that the venue of the action is improper.


 


Section
4.7.SEVERABILITY. Each provision of this Agreement will be interpreted
so as to be effective and valid under applicable law, but if any provision is held invalid, illegal or unenforceable under
applicable law in any jurisdiction, then such invalidity, illegality or unenforceability will not affect any other provision,
and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been included herein.


 


Section
4.8.DESCRIPTIVE HEADINGS. The descriptive headings herein are inserted
for convenience only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.


 


Section
4.9.NO PERSONAL LIABILITY CONFERRED. This Agreement shall not create
or permit any personal liability or obligation on the part of any officer, director, partner, member, employee or shareholder
of the parties hereto.


 


Section
4.10.FURTHER ASSURANCES. Each of the parties shall, without further consideration,
take such action and execute and deliver such documents as may be necessary to carry out this Agreement.


 


Section
4.11.AMENDMENTS. This Agreement may be amended, supplemented or otherwise modified
only by written instrument signed by all the parties hereto.


  


[SIGNATURE PAGE FOLLOWS]


 






    	5



    	 



    



 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be signed by their respective duly authorized officers or representatives as of
the date first written above.


 





	 	AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP III, L.P.
	 	 	 
	 	By:	AMERICAN REALTY CAPITAL TRUST III, INC., 
	 	 	Its general partner
	 	 	 
	 	By:	/s/ Edward M. Weil, Jr. 
	 	 	Name: Edward M. Weil, Jr.
	 	 	Title: President and Chief Operating Officer


  


	 	
        AMERICAN REALTY CAPITAL TRUST III SPECIAL

        LIMITED PARTNER, LLC

	 	 	 
	 	By:	AR CAPITAL, LLC, 
	 	 	Its managing member
	 	 	 
	 	By:	/s/ Brian S. Block 
	 	 	Name: Brian S. Block
	 	 	Title: Authorized Signatory


 


ACKNOWLEDGED AND AGREED:


 


	ARC PROPERTIES OPERATING PARTNERSHIP, L.P.	 
	 	 	 
	By:	AMERICAN REALTY CAPITAL PROPERTIES, INC., 	 
	 	Its general partner	 
	 	 	 
	By:	/s/ Nicholas S. Schorsch 	 
	 	Name: Nicholas S. Schorsch	 
	 	Title: Chief Executive Officer	 
	 	 	 


 






    	6