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American Finance Trust, Inc – ‘8-K’ for 9/6/16 – ‘EX-10.4’

On:  Wednesday, 9/7/16, at 6:09am ET   ·   For:  9/6/16   ·   Accession #:  1144204-16-122964   ·   File #:  0-55197

Previous ‘8-K’:  ‘8-K’ on / for 9/6/16   ·   Next:  ‘8-K/A’ on 9/9/16 for 9/6/16   ·   Latest:  ‘8-K’ on / for 9/12/23   ·   3 References:   By:  Necessity Retail REIT, Inc. – ‘10-K’ on 2/23/23 for 12/31/22 By:  Necessity Retail REIT, Inc. – ‘10-K’ on 2/24/22 for 12/31/21 By:  Necessity Retail REIT, Inc. – ‘10-K’ on 2/25/21 for 12/31/20 

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 9/07/16  American Finance Trust, Inc       8-K:1,7,8,9 9/06/16    9:8.5M                                   Vintage/FA

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                      HTML     42K 
 2: EX-2.1      Plan of Acquisition, Reorganization, Arrangement,   HTML   1.07M 
                          Liquidation or Succession                              
 3: EX-4.1      Instrument Defining the Rights of Security Holders  HTML    369K 
 4: EX-10.1     Material Contract                                   HTML    114K 
 5: EX-10.2     Material Contract                                   HTML    122K 
 6: EX-10.3     Material Contract                                   HTML     56K 
 7: EX-10.4     Material Contract                                   HTML     59K 
 8: EX-99.1     Miscellaneous Exhibit                               HTML     15K 
 9: EX-99.2     Miscellaneous Exhibit                               HTML     55K 

Exhibit 10.4

Execution Version

AMENDED AND RESTATED

PROPERTY MANAGEMENT AND LEASING AGREEMENT

This Amended and Restated Property Management and Leasing Agreement (this “Management Agreement”) is made and entered into as of September 6, 2016, by and among AMERICAN FINANCE TRUST, INC., a Maryland corporation (the “Company”), AMERICAN FINANCE OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the “OP”), and AMERICAN FINANCE PROPERTIES, LLC, a Delaware limited liability company (the “Manager”).

WHEREAS, the OP was organized to acquire, own, operate, lease and manage real estate properties on behalf of the Company;

WHEREAS, pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of the date hereof, by and among the Company, Genie Acquisition. LLC (“Merger Sub”), American Realty Capital Operating Partnership V, L.P., American Realty Capital – Retail Centers of America, Inc. (“RCA”) and American Realty Capital Retail Operating Partnership, L.P. (“RCA OP”), (i) RCA was merged with and into Merger Sub, with Merger Sub being the surviving entity in the merger and (ii) RCA OP was merged with and into the OP, with the OP being the surviving entity in the merger;

WHEREAS, the Company, the OP and the Manager entered into that certain Property Management and Leasing Agreement, dated as of April 4, 2013 (the “Original Management Agreement”);

WHEREAS, in accordance with Section 6.5 of the Original Management Agreement and in connection with the Merger Agreement, the Company, the OP and the Manager desire to amend and restate the Original Management Agreement as set forth in this Management Agreement with the effectiveness of such amendment and restatement conditioned on, subject to, and only at, the Effective Time (as defined in the Merger Agreement, and such date being the “Effective Date”), and in the event that Closing (as defined in the Merger Agreement) does not occur or the Merger Agreement is terminated in accordance with its terms, then this Management Agreement shall not take effect and the Original Management Agreement shall continue in full force and effect;

WHEREAS, the Company intends to continue to raise money from the sale of its common stock to be used, net of payment of certain offering costs and expenses, for investment in the acquisition and rehabilitation of income-producing real estate and other real-estate related investments, which are to be acquired and held by the Company or by the OP on behalf of the Company; and

WHEREAS, the Owner desires to retain the Manager to manage and coordinate the leasing of the real estate properties acquired by the Owner, and the Manager desires to be so retained, all under the terms and conditions set forth in this Management Agreement.

NOW, THEREFORE, in consideration of the foregoing and of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:

ARTICLE I

DEFINITIONS

Except as otherwise specified or as the context may otherwise require, the following terms have the respective meanings set forth below for all purposes of this Management Agreement:

1.1          “Account” has the meaning set forth in Section 2.3(i) hereof.

1.2          “Affiliate” means with respect to any Person, (i) any Person directly or indirectly owning, controlling or holding, with the power to vote, ten percent (10%) or more of the outstanding voting securities of such other Person; (ii) any Person ten percent (10%) or more of whose outstanding voting securities are directly or indirectly owned, controlled or held, with the power to vote, by such other Person; (iii) any Person directly or indirectly controlling, controlled by or under common control with such other Person; (iv) any executive officer, director, trustee or general partner of such other Person; and (v) any legal entity for which such Person acts as an executive officer, director, trustee or general partner. For purposes of this definition, the terms “controls,” “is controlled by,” or “is under common control with” shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership or voting rights, by contract or otherwise. 

1.3          “Articles of Incorporation” means the Articles of Incorporation of the Company, as amended from time to time.

1.4          “Budget” has the meaning set forth in Section 2.5(c) hereof.

1.5          “Gross Revenues” means all amounts actually collected as rents or other charges for the use and occupancy of the Properties, but shall exclude interest and other investment income of the Owner and proceeds received by the Owner for a sale, exchange, condemnation, eminent domain taking, casualty or other disposition of assets of the Owner.

1.6          “Improvements” means buildings, structures, equipment from time to time located on the Properties and all parking and common areas located on the Properties.

1.7          “Independent Director” has the meaning set forth in the Articles of Incorporation.

1.8          “Joint Venture” means the joint venture or partnership arrangements (other than between the Company and the OP) in which the Company or the OP or any of their subsidiaries is a co-venturer or general partner which are established to own Properties.

1.9           “Owner” means the Company, the OP and any Joint Venture that owns, in whole or in part, any Properties.

1.10        “Ownership Agreements” has the meaning set forth in Section 2.3(k) hereof.

1.11        “Person” means an individual, corporation, partnership, joint venture, association, company (whether of limited liability or otherwise), trust, bank or other entity, or government or any agency or political subdivision of a government.

1.12        “Plan” has the meaning set forth in Section 2.5(c) hereof.

1.13        “Properties” means all real estate properties owned, directly or indirectly, by the Owner and all tracts as yet unspecified but to be acquired by the Owner containing income-producing Improvements or on which the Owner will develop or rehabilitate income-producing Improvements; provided, however, that “Properties” as defined herein shall exclude any Property acquired after the Effective Date that is (x) not a triple or double net leased Property similar to any of the properties currently owned by Company immediately prior to the Effective Date or (y) an existing anchored, stabilized core retail Property, such as a power center or lifestyle center.

ARTICLE II

APPOINTMENT OF THE MANAGER; SERVICES TO BE PERFORMED

2.1          Appointment of the Manager. The Owner hereby engages and retains the Manager as the sole and exclusive manager and agent of the Properties, and the Manager hereby accepts such appointment, all on the terms and conditions hereinafter set forth, it being understood that this Management Agreement shall cause the Manager to be, at law, the Owner’s agent upon the terms contained herein.

2.2          General Duties. The Manager shall use commercially reasonable efforts in performing its duties hereunder to manage, operate, maintain and lease the Properties in a diligent, careful and vigilant manner. The services of the Manager are to be of scope and quality not less than those generally performed by professional property managers of other similar properties in the area. The Manager shall make available to the Owner the full benefit of the judgment, experience and advice of its members and staff with respect to the policies to be pursued by the Owner relating to the operation and leasing of the Properties. 

2.3          Specific Duties. The Manager’s duties include the following:

2.4          Approval of Leases, Contracts, Etc. In fulfilling its duties to the Owner, the Manager may and hereby is authorized to enter into any leases, contracts or agreements on behalf of the Owner in the ordinary course of the management, operation, maintenance and leasing of the Properties.

2.5          Accounting, Records and Reports.

2.6          Subcontracting. Notwithstanding anything to the contrary contained in this Agreement, the Manager may subcontract any of its duties hereunder, without the consent of the Owner, for a fee. In the event that the Manager does so subcontract any its duties hereunder, such fees payable to such third parties will be paid by the Owner to such parties.

ARTICLE III

EXPENSES

3.1          Owner’s Expenses. Except as otherwise specifically provided, all costs and expenses incurred hereunder by the Manager in fulfilling its duties to the Owner shall be for the account of and on behalf of the Owner. Such costs and expenses may include, without limitation, reasonable wages and salaries and other employee-related expenses of all on-site and off-site employees of the Manager who are engaged in the operation, management, maintenance and leasing of the Properties, including taxes, insurance and benefits relating to such employees, and legal, travel and other out-of-pocket expenses which are directly related to the operation, management, maintenance and leasing of specific Properties. All costs and expenses for which the Owner is responsible under this Management Agreement shall be paid by the Manager out of the Account. In the event the Account does not contain sufficient funds to pay all of the costs and expenses, the Owner shall fund all sums necessary to meet such additional costs and expenses.

3.2          Manager’s Expenses. The Manager shall, out of its own funds, pay all of its general overhead and administrative expenses.

ARTICLE IV

INSURANCE AND INDEMNIFICATION

4.1          Insurance to be Carried.

4.2          Cooperation with Insurers. The Manager shall cooperate with and provide reasonable access to the Properties to representatives of insurance companies and insurance brokers or agents with respect to insurance which is in effect or for which application has been made. The Manager shall use its best efforts to comply with all requirements of insurers.

4.3          Accidents and Claims. The Manager shall promptly investigate and report in detail to the Owner all accidents, claims for damage relating to the ownership, operation or maintenance of the Properties, and any damage or destruction to the Properties and the estimated costs of repair thereof, and shall prepare for approval by the Owner all reports required by an insurance company in connection with any such accident, claim, damage, or destruction. Such reports shall be given to the Owner promptly and any report not so given within ten (10) days after the occurrence of any such accident, claim, damage or destruction shall be noted in the report delivered to the Owner pursuant to Section 2.5(b). The Manager is authorized to settle any claim against an insurance company arising out of any policy and, in connection with such claim, to execute proofs of loss and adjustments of loss and to collect and provide receipts for loss proceeds.

4.4          Indemnification. The Manager shall hold the Owner harmless from and indemnify and defend the Owner against any and all claims or liability for any injury or damage to any person or property whatsoever for which the Manager is responsible occurring in, on, or about the Properties, including, without limitation, the Improvements when such injury or damage is caused by the negligence or misconduct of the Manager, its agents, servants, or employees, except to the extent that the Owner recovers insurance proceeds with respect to such matter. The Owner will indemnify and hold the Manager harmless against all liability for injury to persons and damage to property caused by the Owner’s negligence and which did not result from the negligence or misconduct of the Manager, except to the extent the Manager recovers insurance proceeds with respect to such matter.

ARTICLE V

TERM; TERMINATION

5.1          Term. This Management Agreement shall commence on the Effective Date and shall continue until terminated in accordance with the earliest to occur of the following:

The term of this Management Agreement may be extended for such additional periods of time as the parties agree to in writing. Upon termination, the obligations of the parties hereto shall cease; provided, however; that the Manager shall comply with the provisions hereof applicable in the event of termination and shall be entitled to receive all compensation which may be due to the Manager hereunder up to the date of such termination; provided, further, however; that if this Management Agreement terminates pursuant to clauses (b) or (c) of this Section 5.1, the Owner shall have other remedies as may be available at law or in equity.

5.2          Manager’s Obligations after Termination. Upon the termination of this Management Agreement, the Manager shall have the following duties:

ARTICLE VI

MISCELLANEOUS

6.1          Notices. All notices, approvals, consents and other communications hereunder shall be in writing, and, except when receipt is required to start the running of a period of time, shall be deemed given when delivered in person or on the fifth day after its mailing by either party by registered or certified United States mail, postage prepaid and return receipt requested, to the other party, at the addresses set forth after their respect name below or at such different addresses as either party shall have theretofore advised the other party in writing in accordance with this Section 6.1.

6.2          Governing Law. This Management Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of law thereof.

6.3          Assignment. Except as permitted in Section 2.6 hereof, this Management Agreement may not be assigned by the Manager, except to an Affiliate of the Manager, and then only upon the consent of the Owner and the approval of a majority of the Independent Directors. Any assignee of the Manager shall be bound hereunder to the same extent as the Manager. This Agreement shall not be assigned by the Owner without the written consent of the Manager, except to a Person which is a successor to such Owner. Such successor shall be bound hereunder to the same extent as such Owner. Notwithstanding anything to the contrary contained herein, the economic rights of the Manager hereunder, including the right to receive all compensation hereunder, may be sold, transferred or assigned by the Manager without the consent of the Owner.

6.4          No Waiver. Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this Management Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrences. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.

6.5          Amendments. This Management Agreement may be amended only by an instrument in writing signed by the party against whom enforcement of the amendment is sought. 

6.6          Headings. The headings of the various subdivisions of this Management Agreement are for reference only and shall not define or limit any of the terms or provisions hereof.

6.7          Counterparts. This Management Agreement may be executed (including by facsimile transmission) with counterpart signature pages or in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument.

6.8          Entire Agreement. This Management Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof.

6.9          Disputes. If there shall be a dispute between the Owner and the Manager relating to this Management Agreement resulting in litigation, the prevailing party in such litigation shall be entitled to recover from the other party to such litigation such amount as the court shall fix as reasonable attorneys’ fees.

6.10        Activities of the Manager. The obligations of the Manager pursuant to the terms and provisions of this Management Agreement shall not be construed to preclude the Manager from engaging in other activities or business ventures, whether or not such other activities or ventures are in competition with the Owner or the business of the Owner.

6.11        Independent Contractor. The Manager and the Owner shall not be construed as joint venturers or partners of each other pursuant to this Management Agreement, and neither party shall have the power to bind or obligate the other except as set forth herein. In all respects, the status of the Manager to the Owner under this Management Agreement is that of an independent contractor.

6.12        Pronouns and Plurals. Whenever the context may require, any pronoun used in this Management Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.

6.13       Effectiveness of Property Management Agreement. This Management Agreement shall not become effective for any purpose until the Effective Time, and prior to the Effective Time, the Original Management Agreement shall remain in full force and effect; and in the event that Closing under the Merger Agreement does not occur or the Merger Agreement is terminated in accordance with its terms, then this Management Agreement shall not take effect and the Original Management Agreement shall continue in full force and effect.

[Remainder of page intentionally left blank] 

IN WITNESS WHEREOF, the parties have executed this Management Agreement as of the date first above written.

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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘8-K’ Filing		Date		Other Filings
		10/1/18
Filed on:		9/7/16		425
For Period End:		9/6/16		8-K
		4/4/13		424B3,  8-K,  8-K/A
				List all Filings

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3 Subsequent Filings that Reference this Filing

As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/23/23 Necessity Retail REIT, Inc. 10-K 12/31/22 97:55M 2/24/22 Necessity Retail REIT, Inc. 10-K 12/31/21 102:50M 2/25/21 Necessity Retail REIT, Inc. 10-K 12/31/20 92:47M

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Filing Submission 0001144204-16-122964   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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