FOURTHAMENDMENT TO CREDIT AGREEMENT
FOURTH AMENDMENT TO
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made and entered into as of September 28, 2012 by and among ARC PROPERTIES OPERATING PARTNERSHIP, L.P., a Delaware limited partnership ("Borrower"), AMERICAN REALTY CAPITAL PROPERTIES, INC., a Maryland corporation and the sole member of the sole general partner of Borrower ("Parent"), RBS CITIZENS, N.A., a national banking association ("RBS Citizens") and CAPITAL ONE, NATIONAL ASSOCIATION, a national banking association ("Capital One") as "Lenders", and RBS Citizens in its respective capacities "Administrative Agent" for itself and the other Lenders under the Credit Agreement (defined below) and as "L/C Issuer" (as each of such quoted terms are defined in the Credit Agreement and so referred to herein).
WITNESSETH:
WHEREAS, Borrower, Parent, Administrative Agent, Lenders, and L/C Issuer are parties to a certain Credit Agreement dated as of September 7, 2011, as amended by that certain First Amendment to Credit Agreement dated as of December 6, 2011 (the "First Amendment"), as further amended by that certain Second Amendment to Credit Agreement dated as of May 21, 2012 (the "Second Amendment"), as further amended by that certain Third Amendment to Credit Agreement dated as of August 16, 2012 (the "Third Amendment") (said Credit Agreement, as so amended by the First Amendment, the Second Amendment, the Third Amendment, and as from time to time may be further amended, modified, or restated, the "Credit Agreement"; and
WHEREAS, the Borrower has requested that Administrative Agent, Lenders, and L/C Issuer (singly and collectively, "Lender Party" or "Lender Parties") amend certain terms and conditions of the Credit Agreement, including to provide for an increase in the amount of the Aggregate Commitments from $81,500,000.00 to $110,000,000.00 (and a reduction to the amount of the Commitment of RBS Citizens from $81,500,000.00 to $75,000,000.00) as set forth below in this Amendment; and
WHEREAS, Lender Parties agreed to so amend certain terms and conditions of the Credit Agreement, all on the terms and conditions set forth below in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows:
| 1. | Definitions. (a) All capitalized undefined terms used in this Amendment shall have the meanings ascribed thereto in the Credit Agreement, as amended hereby, and (b) "Fourth Amendment Effective Date" means the effective date of this Amendment. | |
| 2. | Amendments to Credit Agreement. | |
| a. | Amendments to Article I of the Credit Agreement. Article I of the Credit | |
| Agreement, entitled "Definitions and Accounting Terms" is hereby modified and amended as follows: | ||
| i. | Section 1.01 of the Credit Agreement, entitled "Defined Terms" is hereby modified and amended as follows: | |
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| a) | By deleting in the entirety the definition of "Aggregate Commitments", as presently appearing therein, and by substituting in place thereof the following: | |
"Aggregate Commitments" means the Commitments of all the Lenders, which, as of the Fourth Amendment Effective Date, total One Hundred Ten Million Dollars ($110,000,000.00).
| b) | By deleting in the entirety the definition of "Acceptable Property", as presently appearing therein, and by substituting in place thereof the following: |
"Acceptable Property" means a Property (a) that is approved by Administrative Agent and meets the following requirements, or (b) that is approved by Administrative Agent and the Lenders:
(i) such Property is wholly-owned by, or ground leased pursuant to an Acceptable Ground Lease to, Borrower or a Subsidiary Guarantor free and clear of any Liens (other than Liens permitted by Section 8.01);
(ii) such Property is a retail, industrial and/or office property located within the United States which is one hundred percent (100%) leased and occupied by a single tenant or has an Occupancy Rate of at least ninety percent (90%), with any Property which is leased to a single tenant having a lease expiration no earlier than December 31, 2015;
(iii) if such Property is owned by, or ground leased pursuant to an Acceptable Ground Lease to, a Subsidiary Guarantor, then the Equity Interests of such Subsidiary Guarantor are owned, directly or indirectly by Borrower, free and clear of any Liens other than Liens permitted by Section 8.01; and
(iv) after giving effect to the addition of such Property as a Borrowing Base Property, such Property, together with all other Borrowing Base Properties, in the aggregate, shall not result in: (1) more than twenty-five percent (25%) of the total number of Borrowing Base Properties being located in any single MSA or (2) more than twenty-five percent (25%) of the Appraised Value of the total Borrowing Base Properties being attributable to Properties located in any single MSA.
| c) | By adding the following new definitions (in alphabetical order) to the definitions presently appearing therein: |
"Fourth Amendment Effective Date" means the "Fourth Amendment Effective Date" (as defined in the Fourth Amendment).
"Fourth Amendment" means the Fourth Amendment to Credit Agreement, dated as of September 28, 2012, among Borrower, Parent, Administrative Agent, Lenders, and L/C Issuer.
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"MSA" means, with respect to any Borrowing Base Property, the metropolitan statistical area applicable to such Borrowing Base Property, as reasonably determined by Administrative Agent from time to time.
| b. | Amendment to Article X of the Credit Agreement. Article X of the Credit Agreement, entitled "Administrative Agent" is hereby modified and amended as follows: |
| i. | Section 10.07 of the Credit Agreement, entitled "Non-Reliance on Administrative Agent and Other Lenders" is hereby modified and amended as follows: |
| a) | By adding the following text immediately following the last sentence of the existing text as presently appearing therein: |
Without limiting the foregoing, Administrative Agent has complied with and will continue to comply with all provisions of the Flood Disaster Protection Act, and all regulations thereunder, with respect to all of the Borrowing Base Properties.
| c. | Amendment to Schedules to Credit Agreement. The Schedules to the Credit Agreement, as presently appearing therein, are hereby modified and amended as follows: |
| i. | By deleting in the entirety the existing Schedule 2.01 to the Credit Agreement, entitled "COMMITMENTS AND APPLICABLE PERCENTAGES", by substituting in place thereof the amended Schedule 2.01 to the Credit Agreement attached as EXHIBIT A to this Amendment. | |
| ii. | By deleting in the entirety the existing Schedule 11.02 to the Credit Agreement, entitled "ADMINISTRATIVE AGENT'S OFFICE; CERTAIN ADDRESSES FOR NOTICES", by substituting in place thereof the amended Schedule 11.02 to the Credit Agreement attached as EXHIBIT B to this Amendment. | |
| d. | References to Credit Agreement. From and after the Fourth Amendment Effective Date, any and all references in the Loan Documents to the "Credit Agreement" (however defined or described), including, without limitation, with respect to the Obligations evidenced by each Note, shall mean and refer to the Credit Agreement as hereby modified and amended. |
| 3. | Additional Note. |
| a. | Additional Note. In connection with the execution and delivery of this Amendment, and in addition to the existing Note made by Borrower payable to RBS Citizens (the "Existing Note"), Borrower shall execute and deliver to the | |
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| Administrative Agent an additional Note in favor of Capital One, dated as of the Fourth Amendment Effective Date and substantially in the form of EXHIBIT C to this Amendment ( the "Additional Note"), with the Existing Note and Additional Note each payable by Borrower to the order of each respective Lender for the account of its applicable Lending Office and in a stated principal amount equal to each Lender's respective Commitment (as hereby amended). |
| b. | References to each Note. From and after the Fourth Amendment Effective Date, any and all references in the Loan Documents to the Note or Notes (however defined or described) shall mean and refer to each of the Existing Note and the Additional Note, respectively, as the same may be further endorsed, amended, restated, replaced, supplemented or otherwise modified from time to time. |
| 4. | References to Lender. Without limiting the definition of "Lender" or "Lenders" set forth in the Credit Agreement, from and after the Fourth Amendment Effective Date each reference to Lender or Lenders (however defined or described) shall include, without limitation, each of RBS Citizens and Capital One in their respective capacities as Lender under the Credit Agreement and the other Loan Documents. | |
| 5. | Further Assurances. Loan Parties shall take any and all such actions and execute any and all such instruments and agreements as Administrative Agent shall reasonably request for the purpose of effectuating this Amendment. | |
| 6. | Limited Amendment; Ratification of Loan Documents. Except as specifically amended hereby, the terms and conditions of the Credit Agreement and the other Loan Documents shall remain in full force and effect, and are hereby ratified and affirmed in all respects by each of the Loan Parties. This Amendment shall not be deemed a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Credit Agreement or any other Loan Document, except as expressly set forth herein. | |
| 7. | Representations and Warranties. | |
| a. | The representations and warranties of Borrower and each other Loan Party, contained in Article VI of the Credit Agreement or any other Loan Document are true and correct in all material respects (except to the extent that any such representation and warranty is qualified as to "materiality," "Material Adverse Effect" or similar language, in which case it shall be true and correct in all respects (after giving effect to any such qualification)) on and as of the Fourth Amendment Effective Date; provided, if any such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects (except to the extent that any such representation and warranty is qualified as to "materiality," "Material Adverse Effect" or similar language, in which case it shall be true and correct in all respects (after giving effect to any such qualification)) as of such earlier date. | |
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| b. | Without limiting the generality of the foregoing, in connection with the execution and delivery of this Amendment, Borrower shall provide Administrative Agent with the following: | |
| i. | An updated Schedule 4.01, with respect to all Borrowing Base Properties as of the Fourth Amendment Effective Date; | |
| ii. | An updated Schedule 6.13, with respect to all Subsidiaries and other Equity Investments and Equity Interests as of the Fourth Amendment Effective Date. | |
| All representations and warranties of Borrower and each other Loan Party, as contained in the Credit Agreement or any other Loan Document shall at all times be applicable with respect to the items set forth in said updated Schedule 4.01 and Schedule 6.13 as of the Fourth Amendment Effective Date (notwithstanding any existing references in the Credit Agreement or other Loan Documents to the prior Schedule 4.01 and Schedule 6.13 as of the Closing Date). | ||
| 8. | Regarding Mortgage and other Collateral. The respective indebtedness, liabilities, and other Obligations of the Loan Parties under the Loan Documents, as modified or otherwise provided herein, are and shall continue to be secured by each of the Mortgages, and any and all other Collateral as set forth under the Loan Documents. | |
| 9. | Waiver of Claims. Each Loan Party acknowledges and agrees that as of the date hereof, it does not have any claims, counterclaims, offsets, or defenses against any of the Lender Parties directly or indirectly relating to such Loan Party's relationship with, and/or the Obligations under, the Loan Documents, and to the extent that such Loan Party currently has or ever had prior to the date hereof any such claims, counterclaims, offsets, or defenses against any of the Lender Parties, such Loan Party affirmatively WAIVES the same and, on behalf of itself and its representatives, successors and assigns, hereby RELEASES, and forever discharges each Lender Party and its respective officers, directors, agents, servants, attorneys, and employees, and their respective representatives, successors and assigns, of, to, and from all known debts, demands, actions, suits, accounts, covenants, contracts, agreements, damages, and any and all claims, demands, or liabilities whatsoever, of every name and nature, both at law and in equity through the date hereof related to the same. | |
| 10. | Commitment Fee. In connection with the execution and delivery of this Amendment by the Lender Parties, the Loan Parties hereby acknowledge and agree that the Loan Parties shall have fully earned an additional "Commitment Fee" (so referred to herein) payable by the Borrower in the amount of $122,500, which Commitment Fee shall be in addition to any and all other fees and other amounts paid and/or to be paid by the Borrower and/or any other Loan Party pursuant to this Amendment or the other Loan Documents. The Commitment Fee shall be due and payable in full in connection with the execution and delivery of this Amendment in good and sufficient funds immediately available to the | |
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| Administrative Agent. Without limiting the generality of the foregoing, the Commitment Fee shall in all events constitute Obligations secured by each Mortgage. |
| 11. | Reimbursement of Fees and Expenses. Without limiting the terms and conditions of theCredit Agreement and the other Loan Documents, Borrower hereby agrees to pay to Administrative Agent on demand all of Lender Parties' reasonable legal, and other out-of-pocket fees and expenses incurred by each Lender Party in connection with its due diligence and the negotiation, preparation, and execution of this Agreement and all documents, instruments, and agreements incidental thereto and contemplated herein. |
| 12. | Conditions to Effectiveness. The agreements of Lender Parties hereunder shall not be effective until each of the following conditions precedent has been fulfilled to the satisfaction of Administrative Agent: |
| a. | This Amendment and all instruments, documents, and agreements contemplated herein shall have been duly executed and delivered by the respective parties hereto and, shall be in full force and effect and shall be in form and substance reasonably satisfactory to Administrative Agent, including, without limitation, satisfaction of the conditions set forth in Section 4.06 of the Credit Agreement with respect to the additional Mortgages being granted to Administrative Agent, for the benefit of Lenders and L/C Issuer, in connection with the execution and delivery of this Amendment. |
| All action on the part of the Loan Parties necessary for the valid execution, delivery and performance, respectively, by the Loan Parties pursuant to this Amendment and all instruments, documents, and agreements contemplated herein shall have been duly and effectively taken. |
| c. | Borrower shall have paid the Commitment Fee. | |
| d. | Borrower shall have paid all attorneys' reasonable fees and expenses and all title insurance premiums incurred with respect to the additional Mortgages being granted to Administrative Agent in connection with the execution and delivery of this Amendment. | |
| e. | Administrative Agent shall have received such other certificates, documents, instruments, opinions, consents, waivers, information, materials and/or agreements as Administrative Agent shall reasonably require in form and substance satisfactory in all respects to Administrative Agent. | |
| 13. | Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York. |
| 14. | Counterparts. This Amendment may be executed in any number of counterparts, which shall together constitute an entire original agreement, and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. |
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| 15. | Miscellaneous. This Amendment expresses the entire understanding of the parties with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof. Any determination that any provision of this Amendment or any application hereof is invalid, illegal or unenforceable in any respect and in any instance shall not affect the validity, legality, or enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provisions of this Amendment. The Loan Parties represent and warrant that they have consulted with independent legal counsel of their selection in connection herewith and are not relying on any representations or warranties of Lender Parties or their counsel in entering into this Amendment. |
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the day and year first above written.
BORROWER:
ARC PROPERTIES OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership
By: /s/ Jesse Galloway
Name: Jesse C. Galloway
Title: Authorized Signatory
PARENT:
AMERICAN REALTY CAPITAL
PROPERTIES, INC., a Maryland corporation
By: /s/ Jesse Galloway
Name: Jesse C. Galloway
Title: Authorized Signatory
| Fourth Amendment to ARCP Credit Agreement |
RBS CITIZENS, N.A., as Administrative Agent and L/C Issuer
By: /s/ Donald Woods
Name: Donald Woods
Title: SVP
RBS CITIZENS, N.A., as Lender
By: /s/ Donald Woods
Name: Donald Woods
Title: SVP
CAPITAL ONE, NATIONAL ASSOCIATION, as Lender
By:
Name:
Title:
| Fourth Amendment to ARCP Credit Agreement |
RBS CITIZENS, N.A., as Administrative Agent and L/C Issuer
By: ____________________________
Name:
Title:
RBS CITIZENS, N.A., as Lender
By: ____________________________
Name:
Title:
CAPITAL ONE, NATIONAL ASSOCIATION, as Lender
By: /s/ Paul Verdi
Name: Paul Verdi
Title: Senior Vice President
| Fourth Amendment to ARCP Credit Agreement |
The undersigned, American Realty Capital Properties, Inc., as Guarantor under that certain Parent Guaranty Agreement dated as of September 7, 2011, hereby consents to the foregoing Fourth Amendment to Credit Agreement and acknowledges and agrees that the Parent Guaranty Agreement executed by the undersigned dated as of September 7, 2011 remains in full force and effect.
AMERICAN REALTY CAPITAL
PROPERTIES, INC., a Maryland corporation
By: /s/ Jesse Galloway
Name: Jesse C. Galloway
Title: Authorized Signatory
| Fourth Amendment to ARCP Credit Agreement |
Each of the undersigned, as Guarantor under that certain Subsidiary Guaranty Agreement dated as of September 7, 2011, hereby consents to the foregoing Fourth Amendment to Credit Agreement and acknowledges and agrees that the Subsidiary Guaranty Agreement executed by the undersigned dated as of September 7, 2011 remains in full force and effect.
American Realty Capital Partners, LLC
ARC Income Properties III, LLC
CRE JV Mixed Five CT Branch Holdings LLC
CRE JV Mixed Five IL 2 Branch Holdings LLC
CRE JV Mixed Five IL 3 Branch Holdings LLC
CRE JV Mixed Five IL 4 Branch Holdings LLC
CRE JV Mixed Five IL 5 Branch Holdings LLC
CRE JV Mixed Five MI 1 Branch Holdings LLC
CRE JV Mixed Five MI 2 Branch Holdings LLC
CRE JV Mixed Five MI 3 Branch Holdings LLC
CRE JV Mixed Five MI 4 Branch Holdings LLC
CRE JV Mixed Five MI 5 Branch Holdings LLC
CRE JV Mixed Five MI 6 Branch Holdings LLC
CRE JV Mixed Five MI 7 Branch Holdings LLC
CRE JV Mixed Five NH Branch Holdings LLC
CRE JV Mixed Five OH 1 Branch Holdings LLC
CRE JV Mixed Five OH 2 Branch Holdings LLC
CRE JV Mixed Five OH 3 Branch Holdings LLC
CRE JV Mixed Five OH 4 Branch Holdings LLC
CRE JV Mixed Five OH 5 Branch Holdings LLC
CRE JV Mixed Five OH 6 Branch Holdings LLC
CRE JV Mixed Five OH 7 Branch Holdings LLC
CRE JV Mixed Five PA Branch Holdings LLC
CRE JV Mixed Five VT Branch Holdings LLC
ARCP DGBLVAR001, LLC
ARCP DGCRLAR001, LLC
ARCP DGGRFAR001, LLC
ARCP DGJNBIL001, LLC
ARCP AAFNTMI001, LLC
ARCP AAYLNMI001, LLC
ARCP DGLSNM0001, LLC
ARCP DGASGM0001, LLC
ARCP DGBRNM0001, LLC
ARCP DGCTNM0001, LLC
ARCP DGASDM0001, LLC
ARCP DGDMDM0001, LLC
ARCP DGBLFM0001, LLC
ARCP DGAPCM0001, LLC
ARCP DGCMROK001, LLC
ARCP WGMRBSC001, LLC
ARCP WGEPTMI001, LLC
| Fourth Amendment to ARCP Credit Agreement |
ARCP GSFRENY001, LLC
ARCP JDDPTIA01, LLC
ARC FEMTVIL001, LLC
ARC FEEVLIN001, LLC
ARC FEMTPPA001, LLC
ARC FECCTOH001, LLC
ARC FELDNKY002, LLC
ARC FEKKEIL001, LLC
ARCP MBDLSTX01, LLC
ARCP TSRGCTX01, LLC
ARCP GSPLTNY01, LLC
ARCP GSWARPA001, LLC
ARC GSGLOVA001, LLC
ARC GSMOBAL001, LLC
ARCP DGSNTM001, LLC
ARCP DGFPNAR01, LLC
ARCP DGPCYFL01, LLC
ARCP DGHVLM001, LLC
ARCP DGAFTAR01, LLC
ARCP DGWSGM001, LLC
ARCP DGWNAM001, LLC
ARCP DGOGVM001, LLC
ARCP DGGFDM001, LLC
ARCP DGCCDM001, LLC
ARCP DGSJSM001, LLC
ARCP DGSNCM001, LLC
ARCP DGNWTOK01, LLC
ARCP DGCNYKS01, LLC
ARCP DGPMRM0001, LLC
ARCP DGCVRM001, LLC
ARC CVAPAGA001, LLC
ARC CVVDAGA001, LLC
ARC CVNVLTN001, LLC
ARC IMCLBOH001, LLC
[Signatures continue next page.]
| Fourth Amendment to ARCP Credit Agreement |
ARC Income Properties, LLC,
Each a Delaware limited liability company
By: /s/ Jesse Galloway
Name: Jesse C. Galloway
Title: Authorized Signatory
ARC TRS Corp,. a Delaware corporation
By: /s/ Jesse Galloway
Name: Jesse C. Galloway
Title: Authorized Signatory
| Fourth Amendment to ARCP Credit Agreement |
EXHIBIT A
SCHEDULE 2.01
COMMITMENTS
AND APPLICABLE PERCENTAGES
| Lender | Commitment | Applicable |
| Percentage | ||
| RBS CITIZENS, N.A. | $75,000,000.00 | 68.18% |
| CAPITAL ONE, NATIONAL | $35,000,000.00 | 31.82% |
| Total | $110,000,000.00 | 100.00% |
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EXHIBIT B
SCHEDULE 11.02
ADMINISTRATIVE AGENT'S OFFICE;
CERTAIN ADDRESSES FOR NOTICES
PARENT AND BORROWER:
do American Realty Capital
405 Park Avenue, 15th Floor
New York, New York
Attn: William M. Kahane
with a copy to:
do American Realty Capital
405 Park Avenue, 15th Floor
New York, New York
Attn: Jesse C. Galloway
ADMINISTRATIVE AGENT:
Administrative Agent's Office
(for payments and Requests for Credit Extensions):
RBS Citizens, N.A.
1215 Superior Avenue
Cleveland, Ohio 44114
Ref: ARC Properties Operating Partnership, L.P. Credit Facility
with a copy to (other than for payments and Requests for Credit Extensions):
Riemer & Braunstein LLP
Three Center Plaza
Boston, Massachusetts 02108
Attn: Kevin J. Lyons, Esq.
L/C ISSUER:
RBS Citizens, N.A.
20 Cabot Road
Mail Stop: MMF470
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Medford, Massachusetts 02155
Ref: ARC Properties Operating Partnership, L.P. Credit Facility
LENDERS:
RBS Citizens, N.A.
1215 Superior Avenue
Cleveland, Ohio 44114
Ref: ARC Properties Operating Partnership, L.P. Credit Facility
with a copy to (other than for payments and Requests for Credit Extensions):
Riemer & Braunstein LLP
Three Center Plaza
Boston, Massachusetts 02108
Attn: Kevin J. Lyons, Esq.
Capital One, National Association
90 Park Avenue
New York, NY 10016
Attention: Paul Verdi, SVP
with copies to (other than for payments and Requests for Credit Extensions):
Capital One, National Association
275 Broadhollow Road
Melville, NY 11747
Attention: Jennifer Hussey,VP
and to
Farrell Fritz, P.C.
1320 RXR Plaza
Uniondale, NY 11556
Attention: Christopher P. Daly, Esq.
| Fourth Amendment to ARCP Credit Agreement |
