AMERICAN
REALTY CAPITAL TRUST, INC.
ARTICLES
OF AMENDMENT
American
Realty Capital Trust, Inc, a Maryland corporation (the “Corporation”), hereby
certifies to the State Department of Assessments and Taxation of Maryland
that:
FIRST:
The
definition of “LISTING” in
Article IV of the charter of the Corporation (the “Charter”) is hereby deleted
in its entirety and the following is substituted in lieu thereof:
“LISTING” means
the listing of the Common Shares on the New York Stock Exchange or NASDAQ stock
market. Upon such Listing, the Common Shares shall be deemed
listed.
SECOND: Article
VI, Section 6.4 of the Charter is hereby deleted in its entirety and the
following is substituted in lieu thereof:
SECTION
6.4 TERM. Each
director shall hold officer for one year, until the next annual meeting of
Stockholders and until his successor is duly elected and qualifies. Directors
may be elected to an unlimited number of successive terms.
THIRD:
Article
VIII, Section 8.8 of the Charter is hereby deleted in its entirety and the
following is substituted in lieu thereof:
SECTION
8.8 SUBORDINATED INCENTIVE LISTING FEE. Upon
listing the Company’s common stock on the New York Stock Exchange or NASDAQ
Stock Market, the Company shall pay the Advisor a fee equal to 15% of the
amount, if any, by which (1) the market value of the Company’s outstanding stock
plus distributions paid by the Company prior to listing, exceeds (2) the sum of
the total amount of capital raised from investors and the amount of cash flow
necessary to generate a 6% annual cumulative, non-compounded return to
investors.
FOURTH: Article
VIII, Section 8.11 of the Charter is hereby deleted in its entirety and the
following is substituted in lieu thereof:
SECTION
8.11 ASSET MANAGEMENT FEE. Unless
otherwise provided in any resolution adopted by the Board, the Company may pay
the Advisor and its Affiliates fees for the Advisor’s management of the
Company’s Assets; provided
however, that
such asset management fees shall equal 1% of the purchase price of each property
plus costs and expenses incurred by the advisor in providing asset management
services. This fee is payable quarterly in advance, on January 1, April 1, July
1 and October 1, based on assets held by us on that date, adjusted for
appropriate closing dates for individual property acquisitions.
FIFTH:
Article
VIII, Section 8.12 of the Charter is hereby deleted in its entirety and the
following is substituted in lieu thereof:
SECTION
8.12 FEES UPON TERMINATION OF ADVISOR. Upon
the termination of the Advisor upon a change of control of the Company, by the
Company without cause, or by the Advisor for good reason (as such terms may be
defined in the definitive agreement memorializing the engagement of the Advisor
by the Company), the Company shall pay the Advisor, at the Advisor’s election,
either (x) a deferred acquisition fee not to exceed the amount by which 6% of
the aggregate purchase price of all Properties purchased by the Company through
the date of such termination exceeds the aggregate of all Acquisition Fees and
Acquisition Expenses paid by the Company to such date, together with interest at
a rate of 6% per annum from the date of acquisition of each Property, such total
fee, including interest, not to exceed an amount equal to 6% of the Contract
Purchase Price of the Properties, or (y) a termination fee not to exceed 15% of
the amount, if any, by which the appraised value of the Properties owned by the
Company on the date of such termination, less amounts of all indebtedness
secured by such Properties exceeds the dollar amount equal to the sum of a 6%
cumulative non-compound return on the Company's stockholders' net investment
plus the amount of such investment.
SIXTH:
The
amendments to the Charter as hereinabove set forth have been duly advised by the
Board of Directors and approved by the stockholders of the Corporation as
required by law.
SEVENTH
: The
undersigned Chief Executive Officer and Chairman of the Board acknowledges these
Articles of Amendment to be the corporate act of the Corporation and as to all
matters or facts required to be verified under oath, the undersigned Chief
Executive Officer and Chairman of the Board acknowledges that to the best of his
knowledge, information and belief, these matters and facts are true in all
material respects and that this statement is made under the penalties for
perjury.
[REMAINDER
OF THE PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the Corporation has caused these Articles of Amendment to be
executed in its name and on its behalf by the undersigned Chief Executive
Officer and Chairman of the Board and attested by its Executive Vice President
and Secretary this 25 day of February, 2008.
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| ATTEST: |
AMERICAN REALTY
CAPITAL TRUST, INC. |
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| /s/
Michael Weil |
By: |
/s/
Nicholas S. Schorsch
(SEAL) |
Name: Michael
Weil |
Name: Nicholas
S. Schorsch |
|
Title:
Executive
Vice President
and Secretary |
Title:
Chief
Executive Officer
and
Chairman of the Board |