AGREEMENT FOR TRANSFER OF MEMBERSHIP INTERESTS

 

 

THIS AGREEMENT FOR TRANSFER OF MEMBERSHIP INTERESTS (this “Agreement”) entered into as of September 16, 2008 between ARC GROWTH FUND I, LLC, a Delaware limited liability company (“Seller”), and AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (“Buyer”).

 

 

Seller is the sole member of ARC WBPBFL0001, LLC, a Delaware limited liability company (the “Company”). The Company is a single-purpose entity created for the purpose of owning, operating and managing that certain tract or parcel of land more particularly described in Exhibit “A” attached hereto (the “Land”) and those certain improvements commonly known as 289 South Pompano Parkway, Pompano Beach, FL.

 

The Company currently leases the Land and improvements located thereon to National City Bank (the “Tenant”), pursuant to that certain lease agreement more particularly described in Exhibit “B” attached hereto (the “Lease”).

 

Buyer desires to purchase from Seller, and Seller desires to sell and transfer all of its right, title and interest in and to the Company to Buyer subject to the terms and provisions of this Agreement.

 

 

1. Transfer of Membership Interests. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, all of Seller’s right title and interest in and to Seller’s membership interests in the Company (the “Membership Interest”), as set forth in the Limited Liability Company Agreement for the Company, a copy of which is attached hereto as Exhibit “C”.

 

2. Representations and Warranties of Seller. Seller represents and warrants to Buyer as of the date hereof and as of the Closing as follows:

 

(a) Ownership of Membership Interest. Seller is the sole owner of the Membership Interest. Seller owns the Membership Interest free and clear of all liens, encumbrances, claims or restrictions on transfer or voting, other than restrictions on transfer imposed by the terms of the Loan, and federal and state securities laws. At all times between the date of formation of the Company and the Closing Date, Seller has constituted and shall constitute the sole holder of the Membership Interest.

 

(b) Authority of Seller. Subject to obtaining the consent of Lender (as hereinafter defined) to the transaction contemplated by this Agreement (the “Transaction”), Seller has the right, power and authority to enter into this Agreement and to consummate the Transaction. This Agreement is a valid and legally binding obligation of Seller, enforceable in accordance with its terms except to the extent that enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as enforcement is subject to the laws of equity. Subject to obtaining Lender’s consent to the Transaction, the execution by Seller of this Agreement and consummation of the Transaction does not, and as of the Closing will not, result in the breach of any of the terms and provisions of, or constitute a default under any document to which Seller or the Company is a party.

 

 

(c) Assets of the Company. The assets of the Company are more particularly described in Exhibit "D", attached hereto (the "Property").

 

(d) The Loan. Seller represents and warrants that the Property is encumbered by that certain loan in the principal amount of up to $32,000,000.00 (the “Loan”) by KBC Bank, N.V. (together with its successors and assigns, the “Lender”).

 

(e) Due Formation of Seller. Seller is a limited liability company duly organized and validly existing and in good standing under the laws of the State of Delaware.

 

(f) The Membership Interests. The Membership Interest comprises all of the economic interest in the Company.

 

(g) Bankruptcy. Neither Seller nor the Company is the subject of or a party to any state or federal bankruptcy or insolvency proceeding. Neither Seller nor the Company is contemplating either (i) the filing of a petition by it under any state or federal bankruptcy or insolvency laws, or (ii) the liquidation of all or a major portion of the assets of Seller or the Company.

 

(h) Due Formation of Company. The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and qualified to do business in, and in good standing under the laws of the State of Florida. The Company has not transacted business in any state other than the State of Florida. The Company has the requisite power and authority to conduct its business as now conducted and to own the Property.

 

(i) Litigation. There are no pending or, to Seller’s knowledge, threatened or contemplated actions, suits, proceedings, arbitrations, claims or governmental investigations which affect, or may affect, the Company or the Property or the Membership Interest.

 

(j) FIRPTA. Seller is not a “foreign person” as defined in Section 1445(f)(3) of the Internal Revenue Code.

 

The representations and warranties contained in this Section 2 shall survive the Closing for a period of six (6) months following the Closing.

 

To the extent that Seller makes representations and warranties “to Seller’s knowledge” or the like, such representations and warranties are made without due inquiry and are limited solely to the knowledge of William Kahane. William Kahane shall not have any liability hereunder in connection with such representations or warranties.

 

 

3. Representations and Warranties of the Buyer. Buyer hereby represents and warrants to Seller, that:

 

(a) Authority of Buyer. Buyer is a limited partnership validly existing and in good standing under the laws of the State of Delaware. Buyer has the right, power and authority to enter into this Agreement and to consummate the Transaction. This Agreement is a valid and legally binding obligation of Buyer, enforceable in accordance with its terms, except to the extent that enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as enforcement is subject to the laws of equity. The execution by Buyer of this Agreement and consummation of the Transaction does not, and, as of the Closing, will not, result in the breach of any of the terms and provisions of, or constitute a default under any document to which Buyer is a party.

 

(b) Litigation. There are no pending or, to Buyer’s knowledge, threatened or contemplated actions, suits, proceedings, arbitrations, claims or governmental investigations which affect, or may affect, the ability of the Buyer to consummate the Transaction contemplated hereby.

 

(c) Consents and Approvals. The execution, delivery and performance by Buyer of this Agreement and the consummation of the transactions contemplated hereby do not and will not require any consent, approval, authorization or other action by, or declaration, filing or registration with, or notification to, any governmental agencies or bodies.

 

Except as expressly provided otherwise in this Section 3, the representations and warranties contained in this Section 3 shall survive the Closing.

 

4. Purchase Price. The purchase price (the “Purchase Price”) to be paid by Buyer to Seller for the Membership Interest shall be THREE MILLION SIX HUNDRED SIXTY THREE THOUSAND SEVEN HUNDRED EIGHTY SIX AND NO/100 DOLLARS ($3,663,786.00). The total Purchase Price shall be payable as follows:

 

(a) By cash or immediately available funds, or by check subject to collection, to the order of Chicago Title Insurance Company (in this capacity, “Escrow Agent”) located at Suite 2550, 1601 Market Street, Philadelphia, PA 19103, Attention: Edwin G. Ditlow, Tel: (215) 568-4889, Fax: (215) 568-4880, in the amount of ONE HUNDRED EIGHTY THREE THOUSAND ONE HUNDRED NINETY AND NO/100 DOLLARS ($183,190.00) (the “Deposit”), simultaneously with the execution and delivery of this Agreement by Buyer to Seller to be held in accordance with the terms of this Agreement and Escrow Agent’s standard escrow instructions. The Deposit shall be non-refundable.

 

(b) By unendorsed bank check or certified check to the order of Escrow Agent, drawn on a bank that is a member of the New York Clearing House Association, or, at Seller’s option, by wire transfer of immediately available funds for the difference between the Purchase Price minus the Deposit on the Closing Date for the balance of the Purchase Price, subject to adjustment as hereinafter provided, on the Closing Date.

 

 

5. Conditions Precedent. Seller’s obligation to Close is contingent upon Seller having obtained the written approval of Lender to the Transaction.

 

6. Closing and Closing Date. The consummation of the transfer by Seller to Buyer of the Membership Interest (the “Closing”) shall take place through escrow at the offices of Escrow Agent on the later of (i) October 17, 2008 or (ii) the date which is three (3) business days after the Lender approves the Transaction (oral confirmation by Lender with written confirmation by Lender being delivered at Closing shall be deemed sufficient) (the “Closing Date”). TIME BEING OF THE ESSENCE WITH RESPECT TO THE CLOSING DATE.

 

7. Liabilities of the Company. Buyer acknowledges the existence of the liabilities of the Company under the Permitted Exceptions (as defined in Section 8 herein) and the Lease, and provided that the Transaction closes in accordance with Section 6 herein, agrees to accept the Membership Interest and the Property subject to all the terms and conditions contained in the Permitted Exceptions and the Lease.

 

8. Title to the Property. At the Closing, the Company shall hold fee simple title to the Land and Improvements, respectively, subject only to exceptions to title described in the title insurance policy (the “Permitted Exceptions”) and real estate taxes, sewer charges and assessments which are a lien but not yet due and payable.

 

9. Closing Costs. Subject to the limitations set forth below, Seller shall pay deed transfer and/or stamp taxes, if any. All charges and expenses relating to any loan secured by the Property obtained after the Closing shall be payable by Buyer. Escrow fees payable to Escrow Agent shall be split 50/50 between Seller and Buyer. Each party shall pay its own legal and attorneys’ fees.

 

10. Proration. Net rent due under the Lease, to the extent the same is payable upon the Closing (computed as accrued Basic Rent (as defined in the Lease) shall be apportioned as of the date of the Closing. No other apportionments shall be made at the Closing.

 

11. No Other Representations. Except for the representations and warranties of Seller in this Agreement, it is expressly agreed that Buyer shall accept the Property, in its present condition, “AS IS”, “WHERE IS” and “WITH ALL FAULTS”, subject to all patent and latent defects and faults, if any, with no representation or warranty by Seller as to the fitness, suitability, merchantability, habitability, or usability, including but not limited to, (a) the quality or condition of all improvements and the real property, including without limitation, the water, soil and geology, (b) any construction defects, errors, omissions or on account of any other conditions affecting the Land and Improvements, (c) the manner of operating the Land or Improvements and the expenses related thereto, (d) the compliance of the Land or Improvements with any laws, rules, ordinances or regulations of any governmental body; and (e) the nature and extent of any recorded servitudes, rights-of-way, leases, possession, liens, encumbrances, licenses, reservations, conditions or otherwise.

 

12. Brokers Fees. Seller and Buyer represent and warrant each to the other that they have not dealt with any broker or realtor in connection with the Transaction. In the event of a breach of the foregoing warranties, the breaching party agrees to save, defend, indemnify and hold harmless the non breaching party from and against any claims, losses, damages, liabilities and expenses, including but not limited to attorneys’ fees.

13. Closing Documents.

 

(a) At Closing, Seller shall deliver to Escrow Agent the following:

 

(i) A duly executed Assignment and Assumption of Membership Interest for the Company in the form attached hereto as Exhibit “E” to this Agreement;

 

(ii) A certification in a form reasonably acceptable to Buyer, that Seller is not a foreign person;

 

(iii) Such documents as Buyer’s counsel may reasonably request to evidence Seller’s authority to execute and perform under this Agreement and to execute and deliver all documents assigning the Membership Interest to Buyer;

 

(iv) Such documents described in this Agreement to be executed by Seller, and deliver such other documents and papers which may be reasonably necessary to the consummation of the Transaction as may be reasonably requested by Buyer, or its respective counsel;

 

(v) Certificate of Good Standing for the Company and Certificate of Authority from the State of Florida;

 

(vi) Copies of the Certificate of Formation and Operating Agreement together with all modifications and amendments thereto for the Company, certified as true and correct by an authorized officer of Seller;

 

(vii) The original Limited Liability Company Agreement for the Company to which a certification from an authorized officer of Seller shall be attached stating that the Limited Liability Company Agreement has not been modified or amended except as requested herein;

 

(viii) The original Title Insurance issued by First American Insurance Company for the Property; and

 

(ix) Notice to Tenant notifying Tenant of this Transaction;

 

(b) At closing, Buyer shall:

 

(i) Deliver to Escrow Agent the balance of the Purchase Price;

 

(ii) Deliver to Seller such documents as Seller or Seller’s respective counsel, may reasonably request to evidence Buyer’s authority to execute and perform under this Agreement;

(iii) Deliver to Seller a duly executed Assignment and Assumption of Membership Interest for the Company; and

 

(iv) Such documents described in this Agreement to be executed by Buyer, and deliver such other documents and papers which may be reasonably necessary to the consummation of the Transaction as may be reasonably requested by Seller, Seller’s respective counsel.

 

14. Default and Remedies.

 

(a) In the event Seller defaults or willfully fails to perform any of the conditions or obligations of Seller under this Agreement and provided Buyer has performed all of its obligations hereunder required to be performed as of the date of Seller’s breach, Buyer, as Buyer’s sole and exclusive remedy, shall have the right to declare this Agreement terminated and, upon such termination (in which event Escrow Agent shall return the Deposit to Buyer), the parties shall have no further rights, liabilities or obligations with respect to this Agreement.

 

(b) In the event that the terms and conditions of this Agreement have been satisfied by Seller and Buyer fails to close on this Agreement within the time limits set forth, Seller, as Sellers sole and exclusive remedy, shall be entitled to retain the Deposit as liquidated damages and declare this Agreement terminated, the parties shall have no further rights, obligations or liabilities with respect to this Agreement.

 

15. Notices. Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given when deposited in the United States mail, registered or certified mail, postage prepaid, return receipt requested, or when faxed or deposited with a nationally recognized overnight courier service for next day delivery, and addressed to each party as set forth below. Either party may, from time to time, designate a different address to which notices shall be sent.

 

To Seller: 

ARC GROWTH FUND I, LLC

405 Park Avenue, 15th Floor

New York, New York 10022

Telephone: (212) 415-6500

Fax No.: (212) 421-5799

To Buyer:

 

AMERICAN REALTY CAPITAL OPERATING

PARTNERSHIP, L.P.

106 York Road

Jenkintown, Pennsylvania 19046

Telephone: (215) 887-2189

Fax No.: (215) 887-2585

16. Miscellaneous.

 

(a) This Agreement shall be governed by and construed in accordance with the laws of Delaware.

 

(b) This Agreement and the attached Exhibits contain the entire understanding and agreement by and between the parties with respect to the subject matter of this Agreement and all prior or contemporaneous oral or written agreements or instruments are merged in this Agreement and no amendment to this Agreement shall be effective unless the same is in writing and signed by the parties hereto.

 

(c) The parties hereby designate Buyer’s attorney as the responsible party for filing a Form 1099 (or other substitute, additional or replacement forms) reporting this transaction to the Internal Revenue Service and agree to furnish such party with all information necessary to permit such party to file the same.

 

(d) This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, successors, executors, administrators and permitted assigns.

 

(e) Each party represents and warrants to the other party that the execution of this Agreement and any other documents required or necessary to be executed pursuant to the provisions of this Agreement are valid, binding obligations and are enforceable in accordance with their terms.

 

(f) The captions and headings throughout this Agreement are for convenience and reference only and the words contained therein shall in no way be held to define or add to the interpretation, construction or meaning of any provision of this Agreement.

 

(g) This Agreement may not be changed orally, but only by an agreement in writing signed by both Buyer and Seller. No waiver of any of the provisions to this Agreement shall be valid unless in writing and signed by the party against whom such waiver is sought to be enforced.

 

(h) In the event either party shall bring any action or proceeding pursuant to this Agreement, the prevailing party therein shall be entitled to recover its costs and expenses in such action or proceeding, including reasonable attorneys’ fees. The provisions of this subparagraph (g) shall survive the Closing or early termination of this Agreement.

 

(i) This Agreement shall not be assignable without the consent of the Seller which may be withheld or granted in its sole discretion; provided, however, nothing herein shall prevent Buyer from assigning this Agreement to an Intermediary (as hereinafter defined) or to an entity which is owned or controlled by or commonly controlled with Buyer, or the Intermediary. Buyer shall nevertheless have the right with notice to Seller to assign this Agreement or its right to purchase the Company to an entity owned by, controlled by or under common control with Buyer. In no event shall any assignment of this Agreement release or discharge Buyer from any liability or obligation hereunder.

(j) This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute one and the same instrument. Delivery of executed facsimile counterparts of this Agreement shall be deemed effective delivery hereof.

 

17. NO ATTORNEY CLIENT RELATIONSHIP/NO TAX ADVICE. BUYER ACKNOWLEDGES THAT SELLER HAS NOT HELD ITSELF OUT AS ENGAGED IN THE PRACTICE OF LAW OR ACCOUNTING AND HAS NOT ESTABLISHED, DIRECTLY OR INDIRECTLY, AN ATTORNEY-CLIENT OR ACCOUNTANT-CLIENT RELATIONSHIP WITH SELLER, OR ANY OF SELLER’S OFFICERS, DIRECTORS, MANAGERS, AGENTS, EMPLOYEES OR REPRESENTATIVES (INCLUDING, WITHOUT LIMITATION, SELLER’S LEGAL COUNSEL) (COLLECTIVELY, “SELLER’S PARTIES”). IT IS UNDERSTOOD AND AGREED THAT ANY REPRESENTATIONS OR STATEMENTS MADE BY SELLER OR ANY OF SELLER’S PARTIES REGARDING LEGAL OR TAX CONSEQUENCES MAY NOT BE USED OR RELIED UPON BY BUYER. BUYER REPRESENTS THAT IT HAS EITHER OBTAINED LEGAL COUNSEL AND TAX ADVICE PRIOR TO ENTERING INTO THIS AGREEMENT OR IT HAS ITSELF DEEMED IT UNNECESSARY TO SEEK SUCH ADVICE. SELLER SHALL NOT BE HELD RESPONSIBLE FOR ANY FAILURE OF BUYER TO SEEK AND OBTAIN LEGAL AND TAX ADVICE.

 

18. Recordation. Neither this Agreement nor any memorandum hereof may be recorded or filed. Any attempted recordation of this Agreement or a memorandum hereof shall render it null and void with Seller entitled to retain the Deposit paid hereunder.

 

 

	SELLER   ARC GROWTH FUND I, LLC, a Delaware limited liability company     By: /s/ William Kahane                       Name: William Kahane Title: President
	BUYER   AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP, L.P., a Delaware limited partnership   By: American Realty Capital Trust, Inc., its general partner     By: /s/ Brian Block                              Name: Brian Block Title: Chief Financial Officer

 

 

 

 

 

All of Tract B of PALM-AIRE MARKETPLACE, according to the Plat thereof recorded in Plat Book 164, Page 35, of the Public Records of Broward County, Florida.

 

 

.EXHIBIT “B”

 

 

Lease dated as of July 23, 2008, between ARC WBPBFL0001, LLC, as landlord, and National City Bank, as tenant.

 

 

 

Limited Liability Company Agreement for ARC WBPBFL0001, LLC

 

[TO BE ATTACHED]

 

 

 

 

With respect to ARC WBPBFL0001, LLC (the "Property"):

(a) All of the Company’s interest as fee owner of the Land;

 

(b) Subject to the terms of the Lease, all improvements and fixtures now located on the Land including, without limitation, any and all other buildings, structures, parking areas, landscaping improvements and other amenities currently located on the Land (collectively, the "Improvements");

 

(c) Subject to the terms of the Lease, all personal property, if any, now owned or hereafter acquired by the Company and located on or to be located on or in or used in connection with the Land and Improvements (collectively, the "Personal Property");

 

(d) All of the Company's interest, if any, in any intangible property now or hereafter owned by the Company and used in connection with the Land, the Improvements and the Personal Property, including, without limitation, the following: (A) all existing warranties and guaranties issued in connection with the Property; and (B) all existing permits, licenses, approvals and authorizations issued by any governmental authority in connection with the Property, including, without limitation, the right to use any name or trade name associated with any of the foregoing (collectively, the “Intangible Property”).

 

(e) All of the Company's right, title and interest as landlord under the Lease, including any and all rents, charges, and claims of landlord thereunder, tenant estoppel certificates, reimbursement rights, and the like (collectively, the “Lease Rights”).

 

 

 

Assignment and Assumption of Membership Interest

 

THIS ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST (“Assignment”) is entered into as of __________, 2008 by and among ARC GROWTH FUND I, LLC (“Transferor”), and AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP, L.P. (“Transferee”).

 

 

A. ARC _________, LLC, a Delaware limited liability company (the “LLC”), was formed pursuant to a Limited Liability Company Agreement dated as of _____________ (the “LLC Agreement”), executed by Transferor, as the sole member of the LLC.

 

B. Pursuant to Section 8.1 of the LLC Agreement Transferor desires to assign and transfer one hundred percent (100%) of its Membership Interest (as such term is defined in the LLC Agreement) in the LLC, as the sole Member (as such term is defined in the LLC Agreement) in the LLC to Transferee and to admit Transferee as a Member of the LLC (the “Transaction”).

 

 

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Assignment and the LLC Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1. Definitions. All terms used herein which have their initial letter capitalized which have been specially defined in the LLC Agreement shall have the same meaning herein as set forth in the LLC Agreement, unless expressly provided otherwise herein.

 

2. Assignment. Transferor does hereby assign and transfer unto Transferee one hundred percent (100%) of its Membership Interest in the LLC, which Membership Interest constitutes the entire ownership interest outstanding in the LLC. By execution of this Assignment, Transferee intends to become the sole Member of the LLC. Transferee hereby accepts the assignment and transfer of such Membership Interest in the LLC from Transferor, and does hereby ratify, accept, adopt and agree to and hereby agrees to be bound by, all of the terms and provisions of the LLC Agreement, and such Transferee hereby assumes all obligations, responsibilities, duties, liabilities and costs of a Member accruing or becoming due from and after the date hereof. The Transferor, as the Member of the LLC, hereby approves Transferee and the transfer of the Membership Interest belonging to the Transferor to Transferee. Transferee is hereby admitted as a Member with respect to the Membership Interest so transferred, and from and after the execution and delivery of this Assignment, Transferee shall be the sole Member of the LLC under the LLC Agreement.  

 

3. Counterparts. To facilitate execution, this instrument may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature or acknowledgment of, or on behalf of, each party, or that the signature of all persons required to bind any party, or the acknowledgment of such party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this instrument to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, and the respective acknowledgments of, each of the parties hereto. Any signature or acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures or acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature or acknowledgment pages.

 

 

4. Severability. Any provision of this Assignment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

5. Successors and Assigns. All covenants and agreements contained herein shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and assigns. Any request, notice, direction, consent, waiver, or other writing or action by the Managers or the Members prior to the date hereof shall bind each of its or their successors and assigns.

 

6. No Amendments. Except as amended hereby, the LLC Agreement shall not be amended and shall remain in full force and effect in accordance with its terms.

 

7. Governing Law. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, INCLUDING ALL MEANS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.

 

[SIGNATURES TO APPEAR ON THE FOLLOWING PAGES]

 

 

EXECUTED as of the date first above written.