Third Amendment, dated December 17, 2020, to Amended and Restated Credit Agreement, dated as of February 20, 2018 among Acadia Realty Limited Partnership, as borrower, Acadia Realty Trust and certain subsidiaries of Acadia Realty Limited Partnership from time to time party thereto, as guarantors, Bank of America, N.A., as administrative agent, swing line lender, L/C issuer, and as lender, PNC Bank, National Association and Wells Fargo Bank, National Association, as co-documentation agents, Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arranger and sole bookrunner and PNC Bank, National Association and Wells Fargo Securities, LLC, as joint lead arrangers, as amended to date
Exhibit 10.14
168939022
THIRD AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIRD AMENDMENT, dated as of December 17, 2020 (this “Amendment”), to the Amended and Restated Credit Agreement, dated as of February 20, 2018, by and among Acadia Realty Limited Partnership, a Delaware limited partnership (the “Borrower”), Acadia Realty Trust, a Maryland real estate investment trust (the “REIT”) and certain subsidiaries of the Borrower from time to time party thereto, as guarantors, the Lenders and L/C Issuers from time to time party thereto, and Bank of America, N.A., as Administrative Agent and Swing Line Lender (as heretofore amended, modified, extended, restated, replaced, or supplemented from time to time, the “Credit Agreement”). Any term used herein and not otherwise defined herein shall have the meaning assigned to such term in the Credit Agreement (as amended by this Amendment).
WHEREAS, the Borrower and the Lenders party hereto have agreed to modify the Credit Agreement as herein set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to Credit Agreement. Subject to the satisfaction of the conditions precedent set forth in Section 3 of this Amendment, the parties hereto hereby agree that (a) the Credit Agreement (other than the schedules and exhibits thereto) is amended to incorporate the changes marked on the copy of the Credit Agreement attached as Annex I hereto.
SECTION 2. Conditions of Effectiveness. This Amendment shall become effective on the date on which each of the following conditions precedent shall have been satisfied or waived in writing (such date being referred to herein as the “Third Amendment Effective Date”):
(a)The Administrative Agent shall have received counterparts of this Amendment duly executed by each of the Loan Parties, the Administrative Agent and the Lenders.
(b)The Borrower shall have paid such fees to the Administrative Agent, for the benefit of the Lenders, as are required to be paid on the date hereof pursuant to that certain fee letter dated November 25, 2020 among the Borrower and BofA Securities, Inc. (the “Third Amendment Fee Letter”).
(c)The Borrower shall have paid such fees to BofA Securities, Inc. as are required to be paid on the date hereof pursuant to the Third Amendment Fee Letter.
SECTION 3. Representations and Warranties of Loan Parties. After giving effect to this Amendment, the Borrower reaffirms and restates the representations and warranties set forth in the Credit Agreement and in the other Loan Documents and all such representations and warranties shall be true and correct in all material respects on the date hereof with the same
force and effect as if made on such date, except to the extent that (1) such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such date after giving effect to such qualification and (3) the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement. Each of the Loan Parties represents and warrants (which representations and warranties shall survive the execution and delivery hereof) to the Administrative Agent and the Lenders that:
(a)it has the requisite power and authority to execute, deliver and perform its obligations under this Amendment and has taken or caused to be taken all necessary company action to authorize the execution, delivery and performance of this Amendment;
(b)no consent of any Person (including, without limitation, any of its equity holders or creditors), and no action of, or filing with, any governmental or public body or authority is necessary or required in connection with, the execution, delivery and performance of this Amendment;
(c)this Amendment has been duly executed and delivered on its behalf by a duly authorized officer, and constitutes its legal, valid and binding obligation enforceable in accordance with its terms, subject to bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting the enforcement of creditors’ rights generally and the exercise of judicial discretion in accordance with general principles of equity;
(d)no Default or Event of Default has occurred and is continuing; and
(e)the execution, delivery and performance of this Amendment will not violate any Law, or any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject, or conflict with, or result in the breach of, or constitute a default under, any Contractual Obligation of any Loan Party or any of its Subsidiaries.
SECTION 4. Affirmation of Guarantors. Each Guarantor hereby approves and consents to this Amendment and the transactions contemplated by this Amendment and agrees and affirms that its guarantee of the Obligations continues to be in full force and effect and is hereby ratified and confirmed in all respects and shall apply to the Credit Agreement, as amended hereby, and all of the other Loan Documents, as such are amended, restated, supplemented or otherwise modified from time to time in accordance with their terms.
SECTION 5. Ratification.
(a)Except as herein agreed, the Credit Agreement and the other Loan Documents remain in full force and effect and are hereby ratified and affirmed by the Loan Parties.
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(b)This Amendment shall be limited precisely as written and, except as expressly provided herein, shall not be deemed (i) to be a consent granted pursuant to, or a waiver, modification or forbearance of, any term or condition of the Credit Agreement or any of the instruments or agreements referred to therein or a waiver of any Default or Event of Default under the Credit Agreement, whether or not known to the Administrative Agent, the Swing Line Lender, any of the L/C Issuers or any of the Lenders, or (ii) to prejudice any right or remedy which the Administrative Agent, the Swing Line Lender, any of the L/C Issuers or any of the Lenders may now have or have in the future against any Person under or in connection with the Credit Agreement, any of the instruments or agreements referred to therein or any of the transactions contemplated thereby.
SECTION 6. Modifications. Neither this Amendment, nor any provision hereof, may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the parties hereto.
SECTION 7. References. The Loan Parties acknowledge and agree that this Amendment constitutes a Loan Document. Each reference in the Credit Agreement to “this Amendment,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in each other Loan Document (and the other documents and instruments delivered pursuant to or in connection therewith) to the “Credit Agreement”, “thereunder”, “thereof” or words of like import, shall mean and be a reference to the Credit Agreement as modified hereby and as the Credit Agreement may in the future be amended, restated, supplemented or modified from time to time.
SECTION 8. Counterparts; Execution. This Agreement may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same agreement. This Agreement may be executed using Electronic Signatures (including, without limitation, facsimile and .pdf) and shall be considered an original, and shall have the same legal effect, validity and enforceability as a paper record. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Administrative Agent of a manually signed paper hereof which has been converted into electronic form (such as scanned into .pdf format), or an electronically signed communication converted into another format, for transmission, delivery and/or retention. For purposes hereof, “Electronic Signature” shall have the meaning assigned to it by 15 USC §7006, as it may be amended from time to time. Upon the reasonable request of the Administrative Agent, any Electronic Signature of any other party hereto shall, as promptly as practicable, be followed by a manually executed counterpart thereof.
SECTION 9. Successors and Assigns. The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
SECTION 10. Severability. If any provision of this Amendment shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or enforceability without in any manner affecting the validity or enforceability of such provision in any other jurisdiction or the remaining provisions of this Amendment in any jurisdiction.
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SECTION 11. Governing Law. This Amendment and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this AMENDMENT and the transactions contemplated hereby shall be governed by, and construed in accordance with, the law of the State of NEW yORK.
SECTION 12. Headings. Section headings in this Amendment are included for convenience of reference only and are not to affect the construction of, or to be taken into consideration in interpreting, this Amendment.
SECTION 13. Loan Document. This Amendment is a Loan Document.
SECTION 14. Entire Agreement. This Amendment constitutes the entire contract among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Without limitation of the foregoing:
THIS AMENDMENT REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date hereof.
BORROWER:
ACADIA REALTY LIMITED PARTNERSHIP, a Delaware limited partnership
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| By: | ACADIA REALTY TRUST, its General Partner |
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| By: | /s/ Jason Blacksberg |
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| Name: Jason Blacksberg |
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| Title: Senior Vice President |
Signature Page to Third Amendment to Acadia Realty Amended and Restated Credit Agreement
GUARANTORS:
ACADIA REALTY TRUST, a Maryland real estate investment trust
By: /s/ Jason Blacksberg
Name: Jason Blacksberg
Title: Senior Vice President
ACADIA 1520 MILWAUKEE AVENUE, LLC,
a Delaware limited liability company
ACADIA 2914 THIRD AVENUE, LLC,
a Delaware limited liability company
ACADIA 5-7 EAST 17TH STREET LLC, a Delaware limited liability company
ACADIA 83 SPRING STREET LLC, a Delaware limited liability company
ACADIA BARTOW AVENUE, LLC, a Delaware limited liability company
ACADIA CHESTNUT LLC, a Delaware limited liability company
ACADIA GOLD COAST LLC, a Delaware limited liability company
ACADIA MAD RIVER PROPERTY LLC, a Delaware limited liability company
ACADIA MERCER STREET LLC, a Delaware limited liability company
ACADIA RUSH WALTON LLC, a Delaware limited liability company
Signature Page to Third Amendment to Acadia Realty Amended and Restated Credit Agreement
ACADIA TOWN LINE, LLC, a Delaware limited liability company
ACADIA WEST 54TH STREET LLC, a Delaware limited liability company
ACADIA WEST SHORE EXPRESSWAY LLC, a Delaware limited liability company
MARK PLAZA FIFTY L.P., a Pennsylvania limited partnership
By: ACADIA MARK PLAZA LLC,
its General Partner
ACADIA MARK PLAZA LLC, a Delaware limited liability company
RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership
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| By: | ACADIA PROPERTY HOLDINGS, LLC, its General Partner |
RD ABSECON ASSOCIATES, L.P., a Delaware limited partnership
By: ACADIA ABSECON LLC,
its General Partner
ACADIA ABSECON LLC, a Delaware limited liability company
RD BLOOMFIELD ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership
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| By: | ACADIA PROPERTY HOLDINGS, LLC, its General Partner |
RD HOBSON ASSOCIATES, L.P., a Delaware limited partnership
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| By: | ACADIA PROPERTY HOLDINGS, LLC, its General Partner |
Signature Page to Second Amendment to Acadia Realty Amended and Restated Credit Agreement
MARK TWELVE ASSOCIATES, LP, a Pennsylvania limited partnership
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| By: | ACADIA HOBSON, LLC, |
its General Partner
ACADIA HOBSON LLC, a Delaware limited liability company
RD METHUEN ASSOCIATES, PARTNERSHIP, a Massachusetts limited partnership
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| By: | ACADIA PROPERTY HOLDINGS, LLC, its General Partner |
ACADIA PROPERTY HOLDINGS, LLC, a Delaware limited liability company
ACADIA 181 MAIN STREET LLC, a Delaware limited liability company
ACADIA CHICAGO LLC, a Delaware limited liability company
ACADIA CONNECTICUT AVENUE LLC, a Delaware limited liability company
8-12 EAST WALTON LLC, a Delaware limited liability company
RD BRANCH ASSOCIATES, L.P., a New York limited partnership
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| By: | Acadia Property Holdings, LLC, its General Partner |
ACADIA WEST DIVERSEY LLC, a Delaware limited liability company
868 BROADWAY LLC, a Delaware limited liability company
120 WEST BROADWAY LLC, a Delaware limited liability company
Signature Page to Second Amendment to Acadia Realty Amended and Restated Credit Agreement
11 EAST WALTON LLC, a Delaware limited liability company
865 WEST NORTH AVENUE LLC, a Delaware limited liability company
61 MAIN STREET OWNER LLC, a Delaware limited liability company
252-264 GREENWICH AVENUE RETAIL LLC, a Delaware limited liability company
2520 FLATBUSH AVENUE LLC, a Delaware limited liability company
ACADIA CLARK-DIVERSEY LLC, a Delaware limited liability company
ACADIA NEW LOUDON LLC, a Delaware limited liability company
131-135 PRINCE STREET LLC, a Delaware limited liability company
201 NEEDHAM STREET OWNER LLC, a Delaware limited liability company
SHOPS AT GRAND AVENUE LLC, a Delaware limited liability company
2675 GEARY BOULEVARD LP, a Delaware limited partnership
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| By: | 2675 City Center Partner, LLC, its General Partner |
2675 CITY CENTER LLC, a Delaware limited liability company
ACADIA NAAMANS ROAD LLC, a Delaware limited liability company
ACADIA CRESCENT PLAZA LLC, a Delaware limited liability company
Signature Page to Second Amendment to Acadia Realty Amended and Restated Credit Agreement
RD ELMWOOD ASSOCIATES, L.P., a Delaware limited partnership
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| By: | Acadia Elmwood Park, LLC, |
its General Partner
ACADIA ELMWOOD PARK LLC, a Delaware limited liability company
ROOSEVELT GALLERIA LLC, a Delaware limited liability company
ACADIA 56 EAST WALTON LLC, a Delaware limited liability company
ACADIA SECOND CITY 843-45 WEST ARMITAGE LLC, a Delaware limited liability company
ACADIA SECOND CITY 1521 WEST BELMONT LLC, a Delaware limited liability company
ACADIA SECOND CITY 2206-08 NORTH HALSTEAD LLC, a Delaware limited liability company
ACADIA SECOND CITY 2633 NORTH HALSTEAD LLC, a Delaware limited liability company
HEATHCOTE ASSOCIATE, L.P., a New York limited partnership
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| By: | Acadia Heathcote, LLC, |
its General Partner
ACADIA HEATHCOTE LLC, a Delaware limited liability company
152-154 SPRING STREET RETAIL LLC, a Delaware limited liability company
ACADIA 152-154 SPRING STREET RETAIL LLC, a Delaware limited liability company
Signature Page to Second Amendment to Acadia Realty Amended and Restated Credit Agreement
165 NEWBURY STREET OWNER LLC, a Delaware limited liability company
ACADIA 639 WEST DIVERSEY LLC, a Delaware limited liability company
ACADIA BRENTWOOD LLC, a Delaware limited liability company
51 GREENE STREET OWNER LLC, a Delaware limited liability company
53 GREENE STREET OWNER LLC, a Delaware limited liability company
ACADIA 4401 WHITE PLAINS ROAD LLC, a Delaware limited liability company
BEDFORD GREEN LLC, a Delaware limited liability company
ACADIA MERRILLVILLE LLC, a Delaware limited liability company
41 GREENE STREET OWNER LLC, a Delaware limited liability company
47-49 GREENE STREET OWNER LLC, a Delaware limited liability company
849 W. ARMITAGE OWNER LLC, a Delaware limited liability company
912 W. ARMITAGE OWNER LLC, a Delaware limited liability company
37 GREENE STREET OWNER LLC, a Delaware limited liability company
907 W. ARMITAGE OWNER LLC, a Delaware limited liability company
45 GREENE STREET OWNER LLC, a Delaware limited liability company
Signature Page to Second Amendment to Acadia Realty Amended and Restated Credit Agreement
8436-8452 MELROSE OWNER LP, a Delaware limited liability company
8346-8452 MELROSE GENERAL PARTNER LLC, a Delaware limited liability company
917 W. ARMITAGE OWNER LLC, a Delaware limited liability company
CALIFORNIA & ARMITAGE MAIN OWNER LLC, a Delaware limited liability company
ACADIA TOWN CENTER HOLDCO LLC, a Delaware limited liability company
ACADIA MARKET SQUARE, LLC, a Delaware limited liability company
ACADIA NORTH MICHIGAN AVENUE LLC, a Delaware limited liability company
565 BROADWAY OWNER LLC, a Delaware limited liability company
ACADIA BRANDYWINE HOLDINGS, LLC, a Delaware limited liability company
By: /s/ Jason Blacksberg
Name: Jason Blacksberg
Title: Senior Vice President
on behalf of the 81 entities listed above
Signature Page to Second Amendment to Acadia Realty Amended and Restated Credit Agreement
LENDERS:
BANK OF AMERICA, N.A., as a Lender, an L/C Issuer and the Swing Line Lender
By: /s/ Gregory w. Egli
Name: Gregory W. Egli
Title: Senior Vice President
Signature Page to Third Amendment to Acadia Realty Amended and Restated Credit Agreement
PNC BANK, NATIONAL ASSOCIATION, as a Lender and an L/C Issuer
By: /s/ Denise Smyth
Name: Denise Smyth
Title: Senior Vice President
Signature Page to Third Amendment to Acadia Realty Amended and Restated Credit Agreement
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender and an L/C Issuer
By: /s/ Craig V. Koshkarian
Name: Craig V. Koshkarian
Title: Vice President
Signature Page to Second Amendment to Acadia Realty Amended and Restated Credit Agreement
TD BANK, N.A., as a Lender
By: /s/ Gianna Gioia
Name: Gianna Gioia
Title: Vice President
Signature Page to Second Amendment to Acadia Realty Amended and Restated Credit Agreement
TRUIST BANK, f/k/a Branch Banking and Trust Company, and Successor by Merger to SunTrust Bank, as a Lender
By: /s/ Ryan Almond
Name: Ryan Almond
Title: Director
Signature Page to Second Amendment to Acadia Realty Amended and Restated Credit Agreement
| ADMINISTRATIVE AGENT: |
| BANK OF AMERICA, N.A., as Administrative Agent |
By: /s/ Gregory W. Egli
Name: Gregory W. Egli
Title: Senior Vice President
Signature Page to Third Amendment to Acadia Realty Amended and Restated Credit Agreement
Annex I to Third Amendment
(see attached)
Signature Page to Third Amendment to Acadia Realty Amended and Restated Credit Agreement
